Chan Chean Gaik v Elegance Club Sdn. Bhd. (WA-12BNCC-14-06/2025)

In this judgment, the parties shall be referred to as they were in the Sessions Court.

This is an appeal by the Defendant against the decision of the learned Sessions Court Judge (“SCJ”) on 10.6.2025 (after full trial) to allow the Plaintiff’s claim.

After perusal of the cause papers and after hearing submissions from the counsels, I have decided to dismiss the Defendant’s appeal with costs based on the reasonings which I shall explain hereafter.

The Plaintiff is in the business of selling jewellery. The Plaintiff claims that the Defendant owes the sum of RM 622,000.00 (“Outstanding Sum”) for nine (9) pieces of jewellery (“Jewellery”), consigned with the Defendant under six (6) consignment notes (“Consignment Notes”) and six (6) invoices dated 27.8.2021 (“Invoices”).

The details of the Jewellery, Consignment Notes and Invoices is as follows: - Consignment Notes No Invoice No Jewellery Value 10554 00001 Diamond Watch Bracelet (“1st Jewellery”) Diamond Earring (“2nd Jewellery”) RM 28,000.00 RM 68,000.00 10555 00002 Diamond Onyx Ring (“3rd Jewellery”) RM 28,000.00 11142 00003 Diamond Earring (“4th Jewellery”) RM 380,000.00 11143 00004 Pearl Necklace (“5th Jewellery”) Pearl Diamond Earring (“6th Jewellery”) Pearl Diamond Ring (“7th Jewellery”) RM 36,000.00 RM 18,000.00 RM 8,000.00 10186 00005 White Gold Diamond Pendant (“8th Jewellery”) RM 28,000.00 11144 00006 Diamond Longines Watch (“9th Jewellery”) RM 28,000.00 RM 622,000.00

The Defendant denied liability, asserting that: -

The Defendant has never entered into any consignment arrangement with the Plaintiff;

The Defendant never signed nor received the Consignment

The signatures on the Consignment Notes were forged;

The 1st Jewellery, 2nd Jewellery, 3rd Jewellery, 4th Jewellery, 5th Jewellery, 6th Jewellery, 7th Jewellery and 8th Jewellery were given as gifts by the Plaintiff’s director, Datuk Tracy Ong Gaik Thiang (“Datuk Tracy”) and Datuk Tracy’s son, Derrick Ng Keng Lin (“Derrick Ng”) to the Defendant and the Defendant’s daughter, Ashyka Chan Kaur (“Ashyka”);

The 9th Jewellery was never received by the Defendant;

Some of the Jewellery are not natural diamonds but lab-grown diamonds. [7] In retaliation, the Defendant filed a counterclaim against the Plaintiff for legal costs on a full indemnity basis, general damages and / or exemplary damages. Summary of the decision of the SCJ [8] The SCJ laid down six (6) issues that needed to be resolved: -

Were the Jewellery given as gifts to the Defendant and / or to

Are the Jewellery still in the Defendant’s possession;

Are the signatures in the Consignment Notes forged;

Has the Plaintiff committed fraud;

Is the Plaintiff required to return the Jewellery or pay for the consideration;

Is the Defendant entitled to her counterclaim. [9] The SCJ, in allowing the suit, held that: -

On the first issue, the SCJ found that there was no close individual relationship between Datuk Tracy, Derrick Ng, the Defendant and Ashyka. There was also no evidence to prove that the Jewellery were gifts;

On the second issue, the SCJ found that the 1st Jewellery, 2nd Jewellery, 3rd Jewellery, 4th Jewellery, 5th Jewellery, 6th Jewellery, 7th Jewellery and 8th Jewellery are in the Defendant’s custody. The 9th Jewellery is also in the Defendant’s custody, despite claims that the Defendant did not receive it;

On the third issue, although the Defendant has called a signature expert (“D’s Signature Expert”) to verify the signatures, the SCJ has found D’s Signature Expert’s evidence to be unreliable;

On the fourth issue, the SCJ found that the Defendant’s allegation that the Plaintiff had committed fraud was without basis and was merely an excuse not to pay for the Jewellery;

On the fifth issue, the SCJ decided that the Defendant should pay for the Jewellery instead of returning the Jewellery back to the Plaintiff;

On the final issue, the SCJ ordered for the Defendant’s counterclaim to be dismissed. [10] Accordingly, the SCJ made the following orders against the

Payment of the sum of RM 622,000.00;

General damages of RM 10,000.00;

Aggravated / exemplary damages at RM 5,000.00;

Costs of RM 7,000.00;

Interest. Summary of the Defendant’s case (in supporting the appeal) [11] The Defendant submits that the SCJ had erred in her findings (in fact and in law) on the following grounds: -

Wrongly shifted burden of proof;

Validity of the Consignment Notes;

Implied consignment not pleaded;

Whether the Jewellery are gifts;

Error in awarding damages;

Counterclaim;

Appellate intervention warranted. Wrongly shifted burden of proof [12] The Defendant points out that the SCJ had, in paragraph 37 of the SCJ’s ground of judgment (“GOJ”), referred to Section 101 of the Evidence Act 1950 and found that the Defendant had failed to provide any evidence to show that the Jewellery were gifts. [13] The Defendant argues that such a finding is wrong because it effectively reverses the burden of proof, as it is for the Plaintiff who bears the burden of proving its case. Such a finding is therefore a misdirection in law, particularly on the application of Section 101 of the Evidence Act 1950. Validity of the Consignment Notes [14] The Defendant argues that the SCJ had erred (in paragraph 44 of the GOJ) in casting doubt on the evidence given by D’s Signature Expert and thereby concluding that the Consignment Notes had been completed and duly signed. [15] The Defendant also argues that the SCJ made an error (in paragraph 41 of the GOJ) when she treated the past transactions between the Plaintiff and the Defendant as giving rise to an implied consignment Implied consignment not pleaded [16] The Defendant states that the notion of implied consignment was never pleaded by the Plaintiff in the pleadings. In fact, during the proceedings, the SCJ had also ruled that implied consignment was not part of the Plaintiff’s pleaded case. Notwithstanding this, the SCJ proceeded to make a finding that there exists an implied consignment in this case. Whether the Jewellery are gifts? [17] The Defendant states that the SCJ had erred to conclude that there was no relationship between Datuk Tracy, Derrick Ng, the Defendant and Ashyka; and that the Jewellery were not gifts. The Defendant submits that the SCJ has failed to take into account that the parties were previously business partners and they had attended birthday parties organized by the Defendant. Error in awarding damages [18] The Defendant states that the SCJ had erred by invoking the provisions of the Sale of Goods Act 1957 and concluding that the Plaintiff was entitled to enforce its rights over the consignment valued at RM 622,000.00. The Defendant submits that the SCJ had wrongly determined the authenticity of the Consignment Notes, which would render the Plaintiff without a legal foundation to assert title and ownership over the Jewellery. [19] The Defendant also argues that the SCJ had erred by awarding damages without first determining the authenticity of the Consignment Notes or establishing the prior ownership and title of the Jewellery. The SCJ’s approach to award damages of RM 622,000.00 in lieu of specific performance was also erroneous as there was no valuation reports, expert’s testimony or documentary proof of the actual market value of the Jewellery. This is because the Plaintiff had exaggerated the value of the Jewellery without any independent valuation. [20] The Defendant also states that the SCJ had erred by rejecting the Defendant’s case on fraud and by concluding that the Defendant had failed to lodge a police report concerning the authenticity of the 4th Jewellery. The Defendant argues that this is a factual error as there as there was a police report lodged on 24.2.2022. Counterclaim [21] The Defendant submits that the SCJ had erred in dismissing the Defendant’s counterclaim for costs and damages and finding that there was a failure on the part of the Defendant to produce any invoices and receipts to support the counterclaim. The Defendant argues that there were directions that quantum would be determined at a separate assessment of damages and that all invoices and receipts will only be issued after the experts testify at the trial. Appellate intervention warranted [22] The Defendant also argues that the SCJ had failed to undertake a full and proper evaluation of all evidence and issues before her. In addition, the SCJ had also misunderstood and failed to consider material evidence. Summary of the Plaintiff’s case (in opposing the appeal) Whether the Jewellery are gifts? [23] The Plaintiff states that the SCJ was correct to find that there was no special or close relationship between the parties which warrants the Plaintiff to give the Jewellery to the Defendant and / or Ashyka. Based on the testimonies, Datuk Tracy and the Defendant were merely previously landlord and tenant. Implied consignment not pleaded [24] The Plaintiff states that they have actually pleaded the existence of a “general credit terms” and “consignment terms” in the pleadings, which would include express or implied consignment. Ownership and possession of the Jewellery [25] The Plaintiff argues that it is illogical for the Plaintiff to be required to prove that they are the owners of the Jewellery. The Defendant has already taken delivery of the Jewellery (alleging that they are gifts), which goes to show that the Defendant has already accepted that the Plaintiff are the owners of the Jewellery. The Plaintiff states that the issue of prior ownership was also never pleaded by the Defendant. [26] On the whereabouts of the 9th Jewellery (Diamond Longines Watch), the Plaintiff states that the police report lodged on 24.2.2022 makes no mention about the Jewellery. The testimony shows that the Defendant had in fact taken the 9th Jewellery as stated in the Consignment Notes. Validity of the Consignment Notes [27] The Plaintiff submits that the SCJ was not wrong to decide that D’s Signature Expert is not a dependable witness. It is possible for the SCJ to reject such an expert opinion after judicial consideration. [28] The Plaintiff also states that there should not be any presumption of adverse inference for the failure to call a witness by the name of Premy (“Premy”) in respect of the Consignment Notes. The Plaintiff submits that the maker of the Consignment Notes is actually Datuk Tracy. Premy was only the mere processor of the Consignment Notes. [29] The Plaintiff also points out that the original copies of the Consignment Notes will be kept by the Plaintiff’s clients (in this case, the Defendant) as this is the norm in the industry. Valuation and appraisal of the Jewellery [30] The Plaintiff argues that the SCJ was correct in finding that the Defendant’s appraisal expert (“D’s Appraisal Expert”) cannot rely on the findings of a third-party gemology expert to determine the actual value of the Jewellery. D’s Appraisal Expert should not be relying on third party’s gemologist report and authentication report. [31] On the allegation of “lab grown” diamonds, the Plaintiff points out that D’s Appraisal Expert himself has admitted that lab grown diamonds are not fake diamonds. The Plaintiff states that the SCJ had made a correct evaluation of the evidence and had correctly concluded that in the jewellery retail market, the value of jewellery is still subject to the basic principle of “willing buyer and willing seller”. Findings on the 4th Jewellery (Diamond Earring) [32] The Plaintiff explains that the issue relating to the 4th Jewellery is that it is alleged to be a lab grown diamond, and not a “fake” diamond. The Plaintiff submits that the SCJ was correct to find that, if it is indeed true that the 4th Jewellery is a “fake” diamond, then the Defendant should have immediately return the 4th Jewellery or to raise this issue with the Plaintiff. Fraud by the Plaintiff [33] The Plaintiff argues that the Defendant’s allegation of fraud are bare allegations. In this respect, the SCJ was correct to find (at paragraph 64 of the GOJ) that the issue of whether the Jewellery is genuine or not is merely a tactic by the Defendant to avoid paying. Similarly, on the issue of the value of the Jewellery, the SCJ had correctly stated (at paragraphs 69 and 75 of the GOJ) that the industry revolves heavily on the principle of “willing buyer and willing seller”. On the issue of the 9th Jewellery (Longines Watch), the Plaintiff argues that the Defendant at all times have possession of the 9th Jewellery and it is the Defendant’s own concocted narrative to avoid payment. Error in awarding damages [34] The Plaintiff submits that the SCJ was correct to grant damages to the Plaintiff instead of ordering for the return of the Jewellery. The Plaintiff points out that the Defendant had taken possession of the Jewellery since 2018 and has been keeping and utilizing the Jewellery for almost 7 years for free. Due to the length of time, the Plaintiff cannot be sure as to the condition of the Jewellery. Counterclaim [35] The Plaintiff states that the SCJ’s rationale is correct in dismissing the Defendant’s counterclaim (at paragraph 85 of the GOJ) in that costs on full indemnity basis can only be awarded in special circumstances or in situation where it is an abuse of the Court’s process. Findings by the Court Wrongly shifted burden of proof [36] I do not accept that the burden of proof has been reversed because the SCJ misdirected herself by going straight into the determination of the Defendant’s defence (at paragraph 37 of the GOJ) and finding that the Defendant had failed to provide any evidence to prove that the Jewellery were gifts. [37] Just because the SCJ had assessed the Defendant’s defence on its onset does not necessarily mean that the SCJ had imposed an evidential burden on the wrong party. The GOJ would have to be read in its entirety. The mere “arrangement” and “sequencing” in the GOJ does not in any way indicate that the burden of proof has been reversed. The sequence and flow of the issues that has been discussed in the GOJ is nothing more than a presentation style or approach preferred by the SCJ. [38] More importantly, the SCJ had specifically dealt with the parties’ burden of proof at paragraphs 91 and 92 of the GOJ as follows: - “[91] Beban pembuktian segala tuntutan adalah sentiasa terletak di bahu Plaintif. Ini selaras dengan nas “BESTINO GROUP BERHAD v CHONG YUK MING & YANG LAIN [2018] MLRHU dimana Mahkamah memutuskan bahawa: “… burden of proof at all times is of course borne by the plaintiff to establish on the balance of probability the existence of legally enforceable settlement agreement … In other word, it was upon the Plaintiff itself, and certainly not the defendant, to discharge the burden showing the settlement agreement had come into evidence” [92] Berdasarkan sebab-sebab di atas, Mahkamah berpuas hati bahawa Plaintif telah berjaya mengemukakan keterangan yang cukup untuk membuktikan, pada imbangan kebarangkalian, tuntutan oleh Defendan.” [39] Therefore it is clear that the SCJ had discussed the burden of proof at paragraphs 91 and 92 of the GOJ and that the SCJ had correctly imposed the burden of proof on the Plaintiff. There is no wrongly shifted burden of proof. The Plaintiff at all times would still have to prove their case, and the Defendant, in turn, has the burden to prove her defences. Whether or not the Jewellery were gifts? [40] I find that the SCJ had not erred when she found that there was no close relationship between Datuk Tracy, Derrick Ng, Ashyka and the Defendant; and concluded that there was no evidence to support the contention that the Jewellery were gifts. The SCJ had carefully analyzed all the relevant testimonies of Datuk Tracy, Derrick Ng, Ashyka and the Defendant. In fact, the SCJ had also gone to consider and discuss the matrix of each of their respective relationship before reaching to her findings. [41] For example, on the alleged close relationship between Datuk Tracy and Ashyka, the SCJ (in paragraphs 24 and 25 of the GOJ) found that: -

Apart from photographs taken during gatherings on Chinese New Year and Christmas, there were no other evidence to show any close relationship;

Ashyka herself had admitted that she has never communicated with Datuk Tracy on her own;

Datuk Tracy, on the other hand, has testified that she only knew Ashyka only as the Defendant’s daughter. [42] As regards to the alleged close relationship between Derrick Ng and Ashyka, the SCJ (at paragraph 26 of the GOJ) found that: -

Derrick Ng has testified that he only knows Ashyka merely as an acquaintance and has never communicated with her;

Ashyka herself has admitted that she does not know much about Derrick Ng and has never met up with Derrick Ng on her own. [43] As to the Defendant’s contention that the gifts were given as presents during a birthday party, the SCJ (at paragraph 30 of the GOJ) found that: -

There was no evidence to show that Derrick Ng had even attended the said birthday party;

Ashyka has also testified that she was not aware of the gifts given by Derrick Ng and where the gifts are, as it was kept in the Defendant’s safe. [44] The SCJ had also considered the Defendant’s contention that the gifts were allegedly being given to the Defendant and Ashyka as a token of appreciation to the Defendant for successfully promoting the Plaintiff’s business. The SCJ (at paragraphs 31, 32 and 33 of the GOJ) found that: -

The Defendant had only shown that her cousin, one Mr Alvin, had purchased a piece of jewellery from the Plaintiff for RM 310,000.00;

However, the gifts were made on 30.8.2018, whereas Mr Alvin had only made the purchase on 25.9.2018, which is one (1) month after Ashyka’s birthday;

It also does not make sense for a gift worth RM 380,000.00 to be given as a token of appreciation for a purchase of jewellery worth at RM 310,000.00. [45] In concluding that there was no close relationship between the parties, the SCJ had also (in paragraphs 23, 27 and 37 of the GOJ) found that the Defendant was merely (at one point of time) a business partner to Datuk Tracy / Derrick Ng, and (at another point of time) was a tenant to the premises of Datuk Tracy. [46] Overall, I find that the findings by the SCJ have been made with careful analysis and is plausible based on the evidence given by Datuk Tracy, Derrick Ng, Ashyka and the Defendant. There were proper evaluation of the evidence and the decision by the SCJ was arrived at with proper judicial appreciation. Validity of the Consignment Notes (dispute as to the Defendant’s signature) [47] The Defendant had stated that she has never entered into any consignment arrangement with the Plaintiff. She also denied signing nor receiving the Consignment Notes or the Invoices. The Defendant also said that the signatures in the Consignment Notes were forged. In order to prove that the signatures were forged, the Defendant called D’s Signature Expert (DW4) to examine the signatures in the Consignment Notes. [48] However, the SCJ had made (in paragraphs 57 to 60 of the GOJ) the following observations and findings in respect of D’s Signature Expert’s testimony: -

There were inconsistencies as to D’s Signature Expert’s appointment;

D’s Signature Expert’s CV has not been updated for more than 10 years;

D’s Signature Expert had admitted that only cases favorable to him were included in his report;

D’s Signature Expert failed to remember details;

D’s Signature Expert did not actually view the Defendant’s original signature but merely relied on the specimen provided. [49] The SCJ then concluded that D’s Signature Expert was not able to provide independent assistance to the court by way of objective unbiased opinion. However, the Defendant argued that the SCJ had erred in rejecting the evidence by D’s Signature Expert based on procedural grounds (issues relating to his CV and appointment). The Defendant also argued that the Plaintiff did not adduce any expert evidence to rebut D’s Signature Expert’s opinion. [50] I do not find that the SCJ had erred in her decision. The overall reading of paragraphs 51 to 60 of the GOJ shows that the SCJ had carefully analyzed and properly evaluated D’s Signature Expert’s report and evidence and had correctly made a finding that D’s Signature Expert was not a dependable expert witness. The SCJ had also correctly relied on the authority of Chew Eng Choon & Ors v Profound Gateway Sdn Bhd & Ors [2021] MLJU 2959, which states that: - “2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise ...

An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J sup.). Firstly, the Plaintiff DW3 omission in updating his CVs and his wilful election to tender only his winning case but not the whole truth has clearly demonstrated his overriding personal interest over the court in this case. Bear in mind that DW3 has testify that such action is on DW3 voluntary action, but not due to undue influence or mistakes.” [51] The SCJ is also not obliged to accept D’s Signature Expert’s evidence in the absence of a rebutting expert. In the case where there is only one expert opinion, it is possible for the court to reject such an expert opinion, after judiciously considering whether the expert’s opinion was defensible or supported by basis facts: Dr Shanmuganathan v Periasamy Sithambaram Pillai [1997] 2 CLJ

Validity of the Consignment Notes (failure to call material witness) [52] The Defendant had argued that since the Consignment Notes is disputed as to its authenticity and validity, the failure to call Premy (who had prepared the Consignment Notes) as a witness would warrant an adverse inference under Section 114(g) of the Evidence Act 1950. The Defendant submits that the SCJ had failed to appreciate that the Consignment Notes had remained as Part C documents and had relied on it in making her determinations. [53] However, on this issue, I accept the Plaintiff’s submission that the Consignment Notes were actually instructed by Datuk Tracy to Premy, and thereafter Datuk Tracy had signed the Consignment Notes. Where there are multiple makers, any one of the makers’ testimonies is sufficient to admit the documents as evidence: Pembinaan SPK Sdn Bhd & Anor v Conaire Engineering Sdn Bhd - LLC [2022] 3 MLJ 659. Implied consignment [54] The SCJ had stated that although the Consignment Notes were being challenged by the Defendant, the SCJ (at paragraph 45 of the GOJ and relying on the case of Aluminium Industrie Vaasen BV v Romalpa Aluminium Ltd [1976] 2 All ER 552) found that there was an implied consignment that exists between the Plaintiff and the Defendant. The consignment can be implied from the previous course of dealings between the parties, whereby the Defendant was allowed to take possession of the jewellery and payment can be made at a later stage or by instalment. The SCJ had also explained (at paragraph 47 of the GOJ) that the court would need to look at the surrounding circumstances, including the conduct of the parties in order to ascertain the true intention of the parties. [55] However, the Defendant argued that the SCJ had erred as follows:

Implied consignment was never pleaded by the Plaintiff;

The Plaintiff’s case should rest solely on the Consignment Notes. If the Consignment Notes are found to be not valid, then the whole of the Plaintiff’s case will collapse;

The SCJ had improperly relied on the Defendant’s previous transactions in order to make a finding of implied consignment. However, these past transactions were not consignments but were outright purchase of the jewellery by the Defendant from the Plaintiff. [56] With respect, I am not able to accept the Defendant’s argument. The issue of general credit terms and consignment terms have already been pleaded in the statement of claim. As long as sufficient facts or matters which give rise to the implied term have been pleaded, this would be sufficient. In See Leong Chye @ Sze Leong Chye & Anor v United Overseas Bank Berhad & another appeal [2019] 1 MLJ 25, it was held that there is no requirement or necessity to plead the exact implied term which is a legal implication based on the pleaded facts and matters. Similarly, in Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd and another appeal [2019] 1 MLJ 181, it was held that the court has inherent jurisdiction to preside any matters entered from the evidence, testimonies, pleaded facts or pleadings. [57] As such, I do not find that there was any error on the part of the SCJ to invoke the operation of an implied consignment. Regardless of whether the previous transaction amounted to outright purchase or consignment arrangements, it is well within the SCJ’s discretion to rely on the parties’ previous transactions to come to a finding or conclusion. Fraud committed by the Plaintiff against the Defendant [58] The Defendant argued that the Plaintiff had committed fraud against the Defendant, in that the 4th Jewellery (Diamond Earring) is actually a lab grown diamond and not real diamonds. [59] In this respect, the SCJ (in paragraphs 61 to 77 of the GOJ) has made the following findings: -

Datuk Tracy had testified that the Plaintiff only sells real diamonds;

The invoice by the Plaintiff’s supplier, Shreya Jewel (“Supplier”) also showed that the 4th Jewellery is made from real diamonds;

Therefore, if what the Defendant is alleging is true, the Defendant should have either returned the 4th Jewellery or raised this issue with the Plaintiff;

However, the Defendant failed to do so, but instead sent the 4th Jewellery to a third party for evaluation;

The Defendant also failed to lodge a police report;

Even after receiving confirmation that the 4th Jewellery is a lab grown diamond, the Defendant still did not take any action;

As such, the Defendant’s allegation was merely an excuse not to pay for the goods;

There is also a difference between lab grown diamonds and fake diamonds. Lab grown diamonds are real diamonds, identical chemically, physically and optically to real diamonds, but created in a lab using technology that replicates natural growth;

The Plaintiff’s gemologist expert (PW3) (“P’s Gemologist Expert”) has testified that the market price of a diamond, regardless of whether they are real diamonds or lab grown diamond, depends ultimately on a “willing buyer, willing seller” basis;

The Defendant’s gemologist expert (DW5) (“D’s Gemologist Expert”) had admitted that he did not conduct further examination of the 4th Jewellery. As such, D’s Gemologist Expert’s evidence did not assist the court;

The report provided by the Defendant’s jewellery examiner (DW3) (“D’s Jewellery Examiner”) failed to explain the methodology that was used in the examination. There were also no references to the market value and other particulars and details in order to ascertain the actual value;

In fact, D’s Jewellery Examiner admitted that there are no real standards to ascertain the price of a piece of jewellery, and ultimately the concept of “willing buyer, willing seller” applies;

D’s Jewellery Examiner had also admitted that he did not conduct an examination on the disputed jewellery but instead relied on a third-party report. [60] The Defendant argued that the SCJ erred in concluding that the Defendant had failed to lodge a police report concerning the authenticity of the 4th Jewellery. The Defendant pointed out that this conclusion is factually incorrect as the Defendant had in fact lodged a police report on 24.2.2022. Therefore, the existence of the police report on 24.2.2022 directly contradicts the SCJ’s findings and undermines any adverse inference drawn from the alleged failure to take steps to verify authenticity. [61] The Defendant also argued that the SCJ failed to give proper weight to the evidence of D’s Gemologist Expert. The Defendant stated that P’s Gemologist Expert failed to address the actual value of the jewellery, whereas D’s Gemologist Expert’s testimony remains unchallenged. Therefore, the SCJ ought to have accepted D’s Gemologist Expert as the only probative evidence. [62] However, I do not find any real merits in the Defendant’s arguments. I am of the opinion that the SCJ was well within her authority to decide whether or not D’s Gemologist Expert is a dependable expert witness. The overall reading of paragraphs 74 to 77 of the GOJ will show that the SCJ had carefully analyzed and evaluated D’s Gemologist Expert. [63] The SCJ had pointed out (at paragraph 76 of the GOJ) that D’s Gemologist Expert admits that he had limited knowledge in valuing jewellery and his prior experiences are more related to insurance claims and police investigations. D’s Gemologist Expert has also no formal qualification in gemology or jewellery valuation. Additionally, the SCJ pointed out (at paragraph 77 of the GOJ) that D’s Gemologist Expert had also admitted that he relied on a third-party’s report (Global Gemologist Laboratory). [64] As such, I find that there is no error by the SCJ in her evaluation of D’s Gemologist: Chew Eng Choon & Ors v Profound Gateway Sdn Bhd & Ors (supra) and Dr Shanmuganathan v Periasamy Sithambaram Pillai (supra). [65] There is also nothing to suggest that the SCJ has erred in her findings on the difference between lab grown diamonds and real diamonds. Neither was there anything to show that the SCJ was wrong in her evaluation of P’s Gemologist Expert’s testimony in relation to the market price of diamonds as being dependent on a “willing buyer willing seller” basis. In fact, as the SCJ had rightly pointed out, D's Jewellery Examiner had also made the same admission. [66] I also disagree with the contention that the existence of the police report on 24.2.2022 directly contradicts the SCJ’s findings and undermines any adverse inference drawn therefrom. The SCJ’s finding is not just limited to the police report. The SCJ had found that the Defendant, upon discovering that the 4th Jewellery is a lab grown diamond, should have taken the initiative to return the 4th Jewellery to the Plaintiff. Instead, the Defendant sent it to a third-party. Even after receiving confirmation that the 4th Jewellery is a lab grown diamond, the Defendant took no further action or steps. The 9th Jewellery was never in the Defendant’s possession [67] It is not disputed that the 1st Jewellery to the 8th Jewellery is in the Defendant’s possession. However, in respect of the 9th Jewellery (Diamond Longines Watch), the Defendant maintains that she had never received it. The Defendant argued that the SCJ had erred in finding that the Defendant had actually taken possession of the 9th Jewellery. [68] However, I do not see how the SCJ could have erred in making such a finding. In paragraph 49 of the GOJ, the SCJ had found that the Defendant had failed to lodge a police report as soon as the Defendant received the notice of demand in respect of the 9th Jewellery, and accordingly drew adverse inferences against the Defendant. Such an inference has clearly been made with sufficient evidential basis. Ownership of the Jewellery [69] The issue of ownership of the Jewellery should not arise. It is not for the Plaintiff to prove ownership. The fact that the Defendant had accepted the Jewellery (allegedly as gifts) goes to show that the Defendant had never disputed the Plaintiff’s ownership. It would be illogical for all litigants to be required to prove prior ownership of the goods before being allowed to succeed in a claim against a debtor. Error in awarding damages [70] There was also no error on the part of the SCJ to award monetary damages in lieu of the return of the Jewellery. The SCJ has already made correct findings as to the authenticity of the Consignment Notes. It is also clear that the Plaintiff’s claim is worded in two alternative prayers or reliefs. The Defendant had also taken the Jewellery since 2018 and has been keeping it all this while. Due to the length of time, it would not be fair to expect the Plaintiff to collect back the Jewellery. Counterclaim [71] The SCJ (in paragraphs 84 to 90 of the GOJ) has made the following findings in respect of the counterclaim: -

Costs on an indemnity basis will only be awarded in exceptional circumstances;

The Defendant has failed to show any special circumstances to be entitled to costs on an indemnity basis;

The Defendant has also failed to prove the amounts that were paid and the date of payment. There were also no receipts provided. [72] On this issue, I find that the SCJ had correctly decided that the Defendant had failed to prove its counterclaim for costs on an indemnity basis. I accept the SCJ’s rationale in that costs on full indemnity basis can only be awarded in special circumstances. Conclusion [73] Generally, a judge must arrive at his decision by assessing and weighing the evidence placed before him. He can then either accept or reject the whole or any part of the evidence. In Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, the Court held: - “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness test it against relevant criteria. He must also test the evidence of a particular witness against the probabilities of the case.” [74] In Lee Ah Seng and Anor v Pendakwa Raya [2007] MLJU 624, the Court held that: - “6. It is for that reason that a guiding principle for the appellate court has been well established that in dealing with issues of facts the appellate court should be very slow in disturbing the finding of the trial judge. I only need to refer to the decision of Abdul Hamid FJ (as he then was) in the Federal Court case of Lai Kim Hon & Ors v PP [1981] 1 MLJ 91 at p. 93 where His Lordship stated as follows: - "Viewed as a whole it seems clear that the finding of fact made by the trial judge turned solely on the credibility of the witnesses. The trial judge heard the testimony of each witness and had seen him. He also had the opportunity to observe the demeanour of the witnesses. Discrepancies will always be found in the evidence of a witness but what a judge has to determine is whether they are minor or material discrepancies. And which evidence is to be believed or disbelieved is again a matter to be determined by the trial judge based on the credibility of each witness. In the final analysis it is for the trial judge to determine which part of the evidence of a witness he is to accept and which to reject. Viewed in that light we did not consider it proper for this court to substitute its findings for that of the learned trial judge." [75] Accordingly, for the reasons above, the Defendant’s appeal is dismissed with costs fixed at RM 7,000.00. Dated the 24th day of December 2025 …………………………………….. DR. SEOW HOCK PENG Judicial Commissioner High Court (Commercial Division NCC2 & Admiralty) High Court of Kuala Lumpur In the Federal Territory, Malaysia Counsel for Appellant: Mr Adam Lee Leong Soon; together with Mr Hadiputera bin Mohd Dzulrila (Messrs. Sanjay Mohan) Counsel for Respondent:

Chew Eng Choon & Ors v Profound Gateway Sdn Bhd & Ors [2021] MLJU 2959 2. Dr Shanmuganathan v Periasamy Sithambaram Pillai [1997] 2 CLJ 153 3. Pembinaan SPK Sdn Bhd & Anor v Conaire Engineering Sdn Bhd - LLC [2022] 3 MLJ 659 4. Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 2 All ER 552 5. See Leong Chye & Anor v. United Overseas Bank Bhd & Another Appeal [2019] 1 MLJ 25 6. Kondisi Utama Sdn Bhd v Baltic Agencies Pte Ltd and Another Appeal [2019] 1 MLJ 181 7. Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309 8. Lee Ah Seng And Anor v Pendakwa Raya [2007] MLJU 624

Sections 101 and 114(g) of the Evidence Act 1950 2.