Chuah Chong Ngee v Yishun Construction Sdn. Bhd. (JA-12BNCvC-41-10/2025)

This is the Appellant’s appeal against the whole decision of the Sessions Court Judge ("the SCJ") dated 3 October 2025, after a full trial, allowing the Respondent’s claim and dismissing the Appellant's counterclaim.

At the trial Court, the Respondent’s company is suing Appellant, its former director, for a director's loan. To prove the loan existed, the company points to its annual report, financial statements, tax forms, an audit confirmation letter signed by the Appellant in 2015 and his own resignation letter. The Appellant denies taking any loan and alleged that the audit confirmation letter is a forgery. He also counter-sued the company and its auditor (the latter counterclaim was later withdrawn). In this judgment, this Court deals with the Appellant’s complaint against the SCJ which was said to be wrong in the facts, the law and the procedure.

For ease of reference and consistency, the parties in this proceeding are referred to as the were at the trial Court, i.e. the Defendant for the Appellant and the Plaintiff for the Respondent.

Having considered the Records of Appeal, the parties' written submissions and submissions in reply and the Bundles of Authorities filed by both parties, this is my decision and its reasons.

The Plaintiff is a company incorporated in Malaysia. The Defendant is one of two former directors and shareholders of the Plaintiff. The other director was Mr. So Thian Wan, who appear as the Plaintiff’s witness at the trial. The two directors held the company on a 50:50 basis until the Defendant's resignation by letter dated 10 August 2017.

The Plaintiff's claim is for the unpaid balance of a director's loan said to have been advanced to the Defendant. The figures are –

as at 31 August 2014, an alleged outstanding loan of RM518,961.71;

in 2016, a payment of RM260,000.00 by the Defendant to the

an alleged unpaid balance of RM258,961.71.

The Plaintiff's case at trial rested on a chain of contemporaneous accounting and tax documents, in summary –

the Annual Report 2014 dated 4 February 2015 recording "Amounts due from directors" totalling RM614,919.00;

an Audit Confirmation Letter dated 4 February 2015 issued by the Plaintiff’s external auditor (Messrs Alan Yoon Associates) addressed to the Defendant, stating his portion of that director's loan as RM518,961.71 and bearing what is said to be the Defendant's signature in confirmation;

a parallel Audit Confirmation Letter of the same date stating SP- 1's portion as RM95,957.35 (the two figures together making up the RM614,919.00 total);

Financial Statements for the years ended 31 August 2015, 2016, 2017 and 2018;

e-C tax computation forms submitted by the Plaintiff for assessment years 2014–2018; and

the Defendant's resignation letter dated 10 August 2017 expressly stating, "I have no claims against the Company...and... there is no outstanding agreement or arrangement under which the Company...has or could have any obligation to me".

The Defendant's case is that he never received any such loan. He says that the figure of RM614,919.00 in the Annual Report is an aggregate not attributed to any specific director, that the Audit Confirmation Letter dated 4 February 2015 is forged, that the RM260,000.00 he paid in 2016 was a contribution towards the Plaintiff's accrued income tax payable to LHDN and unrelated to any loan and that the documents prepared after his resignation in 2017 cannot be relied upon against him.

The Defendant counterclaimed against the Plaintiff and Messrs Alan Yoon Associates (the auditor and the 2nd Defendant in the counterclaim) –

for declarations that the Audit Confirmation Letter was forged;

that the Plaintiff and its representatives had failed to give full and frank disclosure of the company's accounting records;

general/punitive damages;

interest; and

costs.

On 6 October 2024, the Defendant withdrew his counterclaim against the 2nd Defendant in the counterclaim, with costs of RM20,000.00. He maintained the counterclaim against the Plaintiff.

The trial took place over three days, spanning approximately two years and before two different SCJ. This procedural history matters because part of the appeal is built on it. The chronology is as follows–

21 May 2023 (1st day) : before Tuan Hakim Mohd Zaki bin Mohd Salleh. SP1 (Mr. So Thian Wan) testified. The Plaintiff closed its case;

5 August 2024 (2nd day) : before the SCJ (Puan Hakim Madihah binti Zainol). The Defendant (SD1) and his witness SD2 testified. The Defendant closed his case;

1 September 2024 : at e-review case management, the Defendant indicated his intention to withdraw the counterclaim against the 2nd Defendant. The Plaintiff immediately requested that it be permitted to call a witness from the 2nd Defendant (Dr. Yoon Chung Sin) so that the original audit confirmation letter could be tendered;

6 October 2024 : the Defendant formally withdrew the counterclaim against the 2nd Defendant with RM20,000.00 costs. The SCJ directed parties to file written submissions on the Plaintiff's request to call Dr. Yoon and to fix a continued trial date;

5 November 2024 : the SCJ refused the Plaintiff's application ("Ruling 1"). Written grounds for Ruling 1 were issued on 13

9 April 2025 : at case management, the SCJ allowed the Plaintiff to call Dr. Yoon as a witness in its defence to the counterclaim that remained on foot against the Plaintiff ("Ruling 2"). The Plaintiff filed a List of Witness for the Defence to Counterclaim on 9 April 2025 and subsequently withdrew its appeal against Ruling 1;

23 May 2025 (3rd day) : Dr. Yoon Chung Sin testified as SP-2.

14 August 2025 : oral submissions;

3 October 2025 : the SCJ delivered the decision now under appeal. Written Grounds were issued on 31 January 2026.

Both parties accept the appellate standard. An appellate court will not interfere with findings of fact by a trial judge unless those findings are plainly wrong or are reached in the absence of, or with insufficient, judicial appreciation of the evidence. [See : Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67; and Tengku Dato' Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177].

It bears emphasis that what is required of the appellate court is not whether, on a fresh evaluation, it would have reached the same conclusion as the trial judge. The question is whether the trial judge's conclusion is one which no reasonable judge could have reached on the evidence. [See Henderson v Foxworth Investments Ltd and another [2014] 1 WLR 2600, cited with approval in Tengku Dato' Ibrahim Petra]. Where the trial judge has had the advantage of seeing and hearing the witnesses and has set out a reasoned evaluation of contemporaneous documentary evidence, the threshold for appellate intervention is high.

I have approached this appeal with that standard firmly in mind.

The grounds of appeal, distilled from the Memorandum of Appeal and the Defendant's Written Submissions (Enclosure 15), may be grouped as follows –

pre-determination of the Plaintiff's claim and the Defendant's counterclaim;

misdirection in the evaluation of evidence, including selective consideration of evidence across the three days of trial which was heard by two different Sessions Court Judges;

contradictory rulings on the calling of Dr. Yoon Chung Sin (SP-2) said to offend the principle of res judicata and the related procedural complaints;

erroneous application of legal principles relating to burden of proof and hearsay;

erroneous reclassification of the Audit Confirmation Letter dated 4 February 2015 from Part C to Part B; and

failure to appreciate the issues to be tried, including by treating the authenticity of the financial statements as a live issue and by placing undue weight on the absence of a police report. THE MAIN CLAIM

The Sessions Court Judge's findings

The SCJ found that on the balance of probabilities, the Plaintiff had proved the existence of the loan and the outstanding balance. Her reasoning, distilled from her Grounds of Judgment, may be summarised as follows –

the Plaintiff's case was supported by a series of contemporaneous documents executed or approved by the Defendant when he was still a director of the company. These included the Annual Report 2014 (which the Defendant signed and supported by statutory declaration), the Audit Confirmation Letter dated 4 February 2015, the Financial Statements 2015 - 2018 and the e-C tax computation forms 2014 - 2018 (Grounds of Judgment, paragraphs 31 and 35);

the Defendant himself admitted at trial that he attended the auditor's office in early February 2015 to sign audited accounts for the financial years 2009 to 2014, that the auditor had not forged his signature, that no police report had been lodged and that no handwriting expert had been engaged (Grounds of Judgment, paragraphs 21 - 24, 38);

the Defendant's evidence that the RM260,000.00 paid in 2016 was solely for tax was incomplete. SP-1's full evidence was that both directors had agreed to contribute RM260,000.00 each to fund the company's accrued tax liability and that those payments would be deducted from each director's loan balance, the smaller balance of SP-1 being thereby fully extinguished while the Defendant's larger balance was reduced to RM258,961.71. (Grounds of Judgment, paragraphs 32, 34);

Dr. Yoon Chung Sin (SP-2), who gave evidence as the Plaintiff's external auditor, produced the original audit confirmation letter from his firm's records and confirmed that on a comparison with other documents in his firm's records bearing the Defendant's signature, the signature on the letter was the Defendant's. (Grounds of Judgment, paragraphs 29, 36 - 37);

the Defendant's allegation of forgery, in the absence of any police report any handwriting expert and any contemporaneous protest, was a bare allegation. (Grounds of Judgment, paragraph 39). The Defendant's defence was found to be an afterthought without merit (Grounds of Judgment, paragraph 46).

So, was the SCJ “plainly wrong”?

I do not think she was. The SCJ's findings rest squarely on contemporaneous documentary evidence and on the Defendant's own admissions. The evidential structure of her reasoning is consonant with the orthodoxy stated by the Federal Court in Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, where the Court observed – "For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve..."

It is to be noted that Tindok Besar Estate is itself one of the authorities relied upon by the Defendant. On a fair reading, however, that case supports rather than undermines the SCJ's approach. The Defendant's denial of the loan in 2020, six years after he first signed the Annual Report 2014 and the related audit confirmation letter and three years after his own resignation letter expressly stating that he had "no claims against the Company", is precisely the kind of subsequent recollection that the Federal Court in Tindok Besar Estate cautioned against preferring over contemporaneous documentary evidence.

The Defendant's central submission is that the Annual Reports merely record "Amounts due from directors" in aggregate without attribution to any specific director and that the Financial Statements 2017 and 2018 record "Other receivables" without identifying him as the debtor. He further points to a perceived discrepancy in that the 2018 Statement of Cash Flows shows nil amounts under both "Amount due from directors" and "Other receivables".

These points, attractive at first glance, fall away on closer examination of the record, based on the following grounds –

the attribution to the two directors is not in the Annual Reports because there were only two directors (the Defendant and SP1). The aggregate of RM614,919.00 is broken down by the two parallel audit confirmation letters of 4 February 2015 (one to SP1 stating his portion as RM95,957.35) and the other to the Defendant stating his portion as RM518,961.71. The two figures sum precisely to RM614,919.00 (subject to a minor rounding difference of RM6.06). SP1's portion was not in dispute and indeed SP1 gave unchallenged evidence to that effect at trial;

the figure of RM258,962.00 appearing in the Financial Statements 2017 and 2018 under "Other receivables" is the natural arithmetic result of the loan balance after the 2016 payments by both directors. The Defendant resigned in August 2017, which is why the figure migrated from "Amounts due from directors", which is relevant only when he was a director to "Other receivables". This was explained at trial and is consistent with the Statement of Financial Position of those years;

as to the apparent nil entries in the 2018 Statement of Cash Flows : the Statement of Cash Flows records cash movements during the period, not the closing balance of receivables. The closing balance is recorded in the Statement of Financial Position, where the RM258,962.00 figure does indeed appear. The Defendant's complaint conflates two different parts of the same financial statement. The accounting treatment is, in any event, a matter on which the auditor SP-2 could have been cross-examined; he was not cross-examined on this point.

What the Defendant must persuade me to do is to disbelieve a chain of independently audited documents spanning 2014 to 2018, all signed or approved by him as a director and as a person making a statutory declaration, in favour of his subsequent oral denials made only after the Plaintiff’s claim was filed in 2020. That is a steep proposition. The SCJ declined the invitation. So would I.

The Defendant's own admissions reinforce this conclusion. He admitted at trial –

that in early February 2015, he attended the auditor's office and signed audited accounts for the years 2009 to 2014;

that he was not present when the audit confirmation letter was prepared and issued and could not point to any specific tampering or fabrication;

that he had not lodged any police report in respect of the alleged forgery;

that he had not engaged a handwriting expert; and

that his resignation letter dated 10 August 2017, which he signed, expressly disclaimed any claim against the Plaintiff.

To my mind, these admissions, taken together with the documentary chain, more than satisfied the burden on the Plaintiff. The SCJ was entitled to rely on section 31 of the Evidence Act 1950 [Act 56] (admissions) and section 115 of Act 56 (estoppel) as she did at paragraphs 25 - 28 of her Grounds of Judgment. And I find no error in her doing so.

The pre-determination complaint

The Defendant submits that the SCJ pre-determined the existence of the loan, the nature of the RM260,000.00 payment and the outstanding balance under the section of her Grounds headed "FAKTA KES". I do not accept that submission. I take a judicial notice that a "FAKTA KES" section in a Malaysian judgment customarily summarises the parties' pleaded case as the analytical framework for the reasoning that follows. That is the structure the SCJ adopted. Her substantive findings of fact are set out under "DAPATAN MAHKAMAH", where she engages with the documents and the testimony and arrives at her conclusions through reasoned evaluation. The labelling of pleaded facts as introductory background is a matter of nomenclature and drafting style. It is not pre-determination. The cases relied upon by the Defendant including Ng Hoo Kui speak to a different vice, i.e absence of judicial appreciation of the evidence, which I am unable to find on a fair reading of the SCJ's Grounds as a whole.

Failure to consider the 1st day evidence

The Defendant submits that the SCJ omitted to consider material evidence given on the 1st day of trial before the predecessor judge, in particular SP1's evidence about who prepared the "Final Accounts", the inconsistencies in his account of his daughter's involvement and the unsigned and undated nature of those Final Accounts.

The submission has surface attractiveness, particularly in a case heard by successive judges. A judge inheriting a part-heard trial has a heightened duty to engage with the entire record. I have considered the SCJ's Grounds with that obligation in mind. She does engage with the testimony of SP1 (paragraphs 20, 23, 32, 34) and refers throughout to the Notes of Evidence at Lampiran 139 and the documents at Lampiran 90.

The Defendant also points to an inconsistency in SP1's account of who prepared the "Final Accounts". Initially that they were prepared by SP1 with the aid of his daughter, Ms So Lay Keng and later that they were prepared by the auditor. That inconsistency is real on the face of the Notes of Evidence, but it does not assist the Defendant on the central question. The audited Annual Reports and Financial Statements 2014 – 2018 are independently prepared documents bearing the imprimatur of an external auditor and in the case of the Annual Report 2014, the Defendant's own signed statutory declaration. Whether SP1 or his daughter had a hand in collating internal tax computations does not impeach those audited statements. The SCJ was entitled to place weight on the audited chain notwithstanding any frailty in SP-1's recollection on a collateral matter.

The complaint about the "Final Accounts" is, on closer examination, immaterial to the outcome. The "Final Accounts" the Defendant attacks are the internal income tax computations prepared as part of the LHDN submission. They are not the audited Annual Reports and Financial Statements on which the SCJ's decision rests. The audited statements are independent documents prepared by an external auditor and they are signed or formally approved by the Defendant. Even if the SCJ's analysis of the internal tax computations could have been more elaborately set out, that omission does not undermine the load-bearing pillar of her judgment, which is the audited documentary trail and the Defendant's admissions. Accordingly, the threshold articulated in Tengku Dato' Ibrahim Petra is not met.

Hearsay objections

The Defendant submits that the SCJ relied on hearsay evidence from SP1 and SP2. Specifically, that SP1's evidence about the "Final Accounts" was hearsay from his daughter and that SP-2's evidence that the Defendant signed the audit confirmation letter was hearsay because SP2 did not personally witness the signing.

The hearsay rule, excludes evidence of a statement made out of court if the object is to establish the truth of what is contained in the statement. It does not exclude evidence of the fact that the statement was made, nor does it exclude direct testimony about what a witness himself observed, or about the contents of records lawfully in his custody.

On a careful reading of SP2's testimony, his evidence in chief was that –

the original audit confirmation letter formed part of his firm's records and he produced it from those records;

it is the standard practice of an audit firm to obtain such confirmations from each director as part of the auditing process;

on a comparison of the signature on the audit confirmation letter with other signatures of the Defendant in his firm's records and in other documents (including the Defendant's own resignation letter), the signature on the letter is the Defendant's.

Each of these is direct evidence of which SP2 had personal knowledge as the proprietor of the auditing firm. None of it is hearsay in the Subramaniam v Public Prosecutor [1956] 1 WLR 965 sense. Even if any portion were technically hearsay, the conditions in sections 73A(1)(b) and 73A(2) of Act 56 are satisfied. The audit confirmation letter is part of a continuous record kept by the Audit firm in the performance of its duties, the maker of the underlying record is unavailable (i.e the responsible audit clerk having left the firm) and the document was produced by the head of the firm who could speak to its provenance. The presumption of regularity under section114(f) of Act 56 that "the common course of business has been followed" also applies.

The cases relied upon by the Defendant, Pembinaan Kota Laksamana (Melaka) Sdn Bhd & Anor v Damansara Realty Berhad [2016] MLJU 1744, Good View Property Sdn Bhd v Standard Chartered Bank (M) Bhd [2015] 1 MLJ 99, Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175 are distinguishable. Each of those cases concerned a witness purporting to give evidence about events of which he had no direct knowledge and where the maker of the document was identifiable but not called. Here, SP2 spoke to records in his own firm, his firm's standard practice and a signature he had personally compared. The audit confirmation letter is, on the evidence, a record kept in the ordinary course of an audit firm's business.

Accordingly, the hearsay challenge therefore fails.

Burden of proof

The Defendant submits that the SCJ improperly shifted the burden of proof onto him, contrary to Letchumanan Chettiar Alagappan @ L Allagappan [as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased] & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. He points in particular to –

the SCJ's observation that he should have applied for discovery under Order 27 of the Rules of Court 2012 if he genuinely required disclosure of company documents; and

the SCJ's adverse comment on his failure to call Ms. Tan Lily.

In my view, the SCJ correctly identified the burden as resting on the Plaintiff and applied the burden in the orthodox sequence. At paragraphs 16 - 17 of the Grounds, she expressly cited Letchumanan Chettiar and the principle that "a plaintiff has both the burden of proof as well as the initial onus of proof". She then evaluated the Plaintiff's evidence and found at paragraph 33 that, on the balance of probabilities, the Plaintiff had proved the loan and the outstanding balance. Only after that was the burden assessed as having shifted to the Defendant under section 103 of Act 56.

I also observed that the discovery comment at paragraph 53 of the Grounds was made specifically in the context of the counterclaim for non-disclosure, not in the context of the main claim. It was not a misallocation of the burden on the main claim. Read in context, the comment is unobjectionable. The Defendant cannot complain that documents were not produced if he failed to take the procedural steps available to him to compel their production.

The adverse comment on the failure to call Ms. Tan Lily is, properly characterised, a permissible inference under section 114(g) of Act 56. It was the Defendant himself who raised Ms. Tan Lily's role. It was his evidence that she had instructed both directors via WhatsApp to make equal payments to LHDN. Having raised her, he was bound either to call her or to provide an explanation for not calling her. The SCJ did no more than take that omission into account in evaluating the credibility of his version of events. That is not a reversal of the burden of proof. It is the application of an established evidentiary principle.

It is also relevant that the Defendant's account of the RM260,000.00 payment is in fact contradicted by the very witness on whom he purports to rely. SP1's full evidence was not merely that the RM260,000.00 was for tax. SP1's evidence was that both directors agreed to contribute RM260,000.00 each to the company to fund accrued tax and that the contributions would be deducted from each director's outstanding loan balance. The arithmetic of the Plaintiff's case fits this account precisely. SP1's smaller debt of RM95,957.35 was extinguished by his contribution of RM95,957.35 (paid as part of the agreed RM260,000.00 mechanism) and the Defendant's larger debt of RM518,961.71 was reduced to RM258,961.71 by his contribution of RM260,000.00. The Defendant's selective reliance on only part of SP-1's evidence, i.e. the part recording that the funds were paid "for the company to pay LHDN", does not assist him, because SP1 also explained how the contributions were treated against the loan balances.

The audit confirmation letter and Part B/Part C reclassification

The Defendant complains that the audit confirmation letter (ID3B), originally marked as Part C, was reclassified by the SCJ as Part B notwithstanding a discrepancy between ID3B and the original copy produced by SP2. The discrepancy is said to be that the original bears a company stamp whereas ID3B does not.

The presence or absence of a company chop on a copy as compared with the original is a mundane and routine difference. I take judicial notice that office copies are very often filed without the chop having been physically affixed. The chop is sometimes applied only to the file copy retained by the auditor or to the original delivered to a third party. The Defendant does not point to any difference in the wording, the layout, the signature, or any other substantive feature of the document. The contents of ID3B and the original copy are identical.

The reclassification of an exhibit during the course of trial, on the production of an original by a competent witness, is a matter within the trial judge's discretion. To set aside a decision on the strength of a Part C or Part B reclassification, the Defendant must show that the misclassification caused a miscarriage of justice. He has not. Even if the document had remained at Part C, the SCJ was entitled to rely on the original tendered by SP2, which is undeniably Part B (being produced by its custodian).

The Defendant's counterclaim against the Plaintiff was for declarations that –

the audit confirmation letter dated 4 February 2015 was forged; and

the Plaintiff had failed to make full and frank disclosure of company financial and accounting records, with damages, interest and costs.

The SCJ dismissed the counterclaim. Her primary reason, at paragraph 50 of the Grounds, was that the withdrawal of the counterclaim against the 2nd Defendant in the counterclaim had "automatically" extinguished the counterclaim against the Plaintiff. With respect, that reasoning, taken alone, is doctrinally infelicitous. A counterclaim against the Plaintiff is, in principle, a distinct cause of action. The withdrawal of a counterclaim against a co-defendant does not, as a matter of law, automatically extinguish a counterclaim against the Plaintiff. To that extent, paragraph 50 of the Grounds is to be approached with caution.

However, the SCJ went on at paragraphs 51 - 53 to give alternative reasons for dismissing the counterclaim, all of which I find unimpeachable –

the Defendant himself admitted at trial that he had signed the company's financial reports;

no police report had been lodged in respect of the alleged forgery;

no handwriting expert had been engaged;

as a former director who had resigned in 2017 and signed a letter expressly disclaiming any claim, the Defendant had no continuing entitlement to the company's documents; and

if the Defendant genuinely required disclosure of specific documents for the purpose of the litigation, the proper course was an application for discovery under Order 27 ROC 2012. He made no such application.

These reasons independently sustain the dismissal of the counterclaim. While I respectfully disapprove the "automatic" formulation at paragraph 50 of the SCJ's Grounds, the result is correct. As to the standard of proof for civil fraud, it is now settled at the level of the Federal Court that the standard is the balance of probabilities and not beyond reasonable doubt. [See : Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 and Teoh Kiang Hong v. Theow Say Kow & Other Appeals [2025] 2 CLJ 683].

To the extent that the SCJ's references to Ismail Hashim v. Inno Concrete Technologies Sdn Bhd & Anor [2021] CLJU 855, Floral Trends Ltd v. Li Onn Floral Enterprise (M) Sdn Bhd [2006] 6 CLJ 525 and Chong Wan Ping & Anor v. Shamshudeen Hj Mohd Yunus [2009] CLJU 834 might be read as requiring a higher standard, they should be re-read as authorities on the evidential weight to be given to the absence of contemporaneous police reports. In my considered view, read in that way, those authorities do not offend Sinnaiyah & Sons.

I add that the absence of a police report was not, on a fair reading of the Grounds, treated by the SCJ as decisive. It was one factor among several and was weighed alongside the absence of a handwriting expert, the absence of any contemporaneous protest by the Defendant, his admission that the auditor had not forged his signature, his admitted attendance at the auditor's office in the first week of February 2015 to sign audited accounts and his resignation letter expressly disclaiming claims. Taken together, these factors made the bare allegation of forgery unsustainable on the balance of probabilities. I would have reached the same conclusion.

The Defendant's most strenuous procedural complaint concerns Ruling 2. He submits that having refused on 5 November 2024 to allow the Plaintiff to call Dr. Yoon (Ruling 1), the SCJ was bound by res judicata not to revisit that issue and that her decision on 9 April 2025 to permit the Plaintiff to call Dr. Yoon as a witness (Ruling 2) was therefore a violation of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57.

The principle in Hartecon JV is well-established as follows – "We cannot over emphasize the proposition that once a judge makes a ruling, substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened willy-nilly".

The application of res judicata, however, requires that the same issue be re-litigated. On a careful examination of the procedural record, I am satisfied that Ruling 2 did not address the same issue as Ruling

The two rulings concerned different procedural relief in different procedural postures.

Ruling 1, on its face, addressed an application by the Plaintiff to recall a witness and reopen its case-in-chief after the Plaintiff had closed. The SCJ refused that relief on grounds set out in her Alasan Penghakiman dated 13 March 2025, i.e laches (the application being made years after the documents had been marked ID), absence of any formal application under Order 32 rule 1 ROC 2012, a hidden motive to repair the Plaintiff's case, and unfairness to the Defendant. I find that the ruling was correct on its terms, and the Plaintiff did not, in the end, pursue an appeal against it.

Ruling 2 arose in a different procedural posture. Following the withdrawal of the counterclaim against the 2nd Defendant on 6 October 2024, the counterclaim against the Plaintiff remained on foot. The Plaintiff therefore had to defend that counterclaim. Defending a counterclaim necessarily entitles the Plaintiff, as it would entitle any defendant to a counterclaim, i.e. to call witnesses in support of its defence. The Plaintiff filed a List of Witness for the Defence to Counterclaim on 9 April 2025, naming Dr. Yoon as the witness it intended to call in defence of the forgery counterclaim. The SCJ allowed that course.

In my judgment, that is not a reversal of Ruling 1. It is a different procedural step entirely. Ruling 1 said : the Plaintiff cannot recall a witness for its own case-in-chief. Ruling 2 said : the Plaintiff, as defendant to a surviving counterclaim, may call witnesses in defence of that counterclaim. The procedural relief in question is different. The witness in question (Dr. Yoon) happens to be the same, but that does not make the issue the same. Res judicata, as Hartecon JV makes clear, attaches to the issue determined; not to the witness identified.

I add three further considerations that fortify this conclusion.

First, the Notes of Evidence of the First day of trial (21 May 2023) record that the Defendant's own counsel had then taken the position that the audit confirmation letter "should be answered through the 2nd Defendant" when it was the 2nd Defendant's turn to call evidence. That is to say, the Defendant himself, on day 1, identified the 2nd Defendant's witness (i.e., Dr. Yoon) as the appropriate witness to address the audit confirmation letter. He cannot now complain that the auditor was eventually called.

Second, the timing of the Defendant's withdrawal of the counterclaim against the 2nd Defendant. At the very point at which the 2nd Defendant was about to open his case and Dr. Yoon was on the brink of producing the original audit confirmation letter, has the appearance of a tactical manoeuvre designed to keep that document out of the trial record. Whether deliberately so or not, the practical effect was to deprive the Plaintiff of access to evidence that would otherwise have been led in the course of the 2nd Defendant's case. The SCJ's reformulation of the procedural posture (allowing Dr. Yoon to be called for the defence to counterclaim) was a measured response that prevented manifest unfairness while respecting the Defendant's right to maintain his counterclaim.

Third, the Defendant did not in fact suffer any prejudice. Dr. Yoon gave evidence on 23 May 2025 and was cross-examined by the Defendant's counsel at length. The Defendant relied on extracts from that cross-examination in his own written submissions on appeal. He cannot, while having had the benefit of cross-examining the witness, simultaneously be heard to say that the witness should not have been called at all.

Insofar as the Defendant complains that he was denied the opportunity to recall his own witnesses to rebut Dr. Yoon's testimony, that is a question of trial management committed to the SCJ's discretion. The Defendant did not file any formal application under Order 32 rule 1 ROC 2012 to recall his witnesses and the bulk of Dr. Yoon's evidence concerned the existence and authenticity of documents in the auditor's records, on which the Defendant himself had no direct evidence to give. I am not persuaded that the SCJ's exercise of discretion in this respect occasioned a miscarriage of justice.

Accordingly, the res judicata ground therefore fails.

Connected to the res judicata point is the Defendant's complaint that the SCJ wrongly treated Ruling 1 as appealable, by allowing a formal Order to be drawn up in respect of it and thereby facilitating the Plaintiff's now-withdrawn appeal.

To my judicial mind, this complaint is misconceived. Section 3 of the Courts of Judicature Act 1964 [Act 91] governs appealability to the Court of Appeal. [See : Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1, Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614]. Whether a ruling falls within the exclusionary clause in the definition of "decision" is a question for the appellate court when faced with the appeal and not for the trial court when issuing the order or memorandum recording its ruling.

The drawing up of a formal order does not convert an interlocutory ruling into an appealable decision. The Plaintiff did file a notice of appeal against Ruling 1 (Civil Appeal No. : JA-12ANCvC-32- 11/2024), but that appeal was withdrawn after the procedural posture changed. No order was made on its appealability. The point is, in any event, it is academic. Therefore, I find that no miscarriage of justice flows from this.

The Defendant submits that the SCJ erroneously treated the authenticity of the financial statements as an issue when it was not in dispute and that she placed undue weight on the absence of a police report.

On the first point, the financial statements as documents were marked as exhibits (P7, P10, P13, P23). What was disputed was not their physical authenticity as accounting records but their evidential significance, specifically, whether the entries in them established the Defendant's indebtedness. The SCJ's references to authenticity, read in context, are properly understood as references to evidential weight, not to whether the documents had been forged.

The principle in Mok Yong Kong & Anor v Mok Yong Chuan [2002] 2 MLJ 718, on which the Defendant relies, is uncontroversial. Appellate intervention is warranted where the trial judge has taken into account irrelevant considerations, failed to take into account relevant ones, or misdirected herself on the correct principles of law. The question is whether that test is met here. On a fair reading of the SCJ's Grounds as a whole, I find that it is not. In my judgment, the references to "authenticity" do not constitute the taking into account of an irrelevant consideration; they are, in substance, observations about the weight properly to be given to the documents as evidence of the Defendant's indebtedness.

On the second point, I have addressed the police-report issue at paragraph 49 above. To the extent that the SCJ's references to Ismail Hashim and the related authorities import a higher standard than balance of probabilities, the law on the standard of proof for civil fraud is settled in Sinnaiyah & Sons and Teoh Kiang Hong. I do not, however, read the Grounds as having applied a higher standard. Read fairly, the SCJ was treating the absence of a police report as one factor going to the credibility of the bare allegation of forgery - which is a permissible use of that factor.

Stepping back from the individual grounds, I ask myself whether there is any basis on the totality of the appeal record to conclude that the SCJ was plainly wrong, in the sense that her decision is one which no reasonable judge could have reached on the evidence. I am not so satisfied. On the contrary, her conclusion that the Plaintiff had proved the loan and the unpaid balance is well supported by the documentary chain spanning 2014 to 2018, by the Defendant's own admissions and by the corroborating testimony of an independent external auditor. Her dismissal of the counterclaim is sustainable on the alternative reasoning at paragraphs 51 - 53 of her Grounds, which I would have adopted in any event.

I am respectful of the SCJ's careful and detailed treatment of the evidence in a case that, by the time it reached her, had already passed through the hands of several judges and had been part-heard for years. Her Grounds of Judgment are not perfect. But none of the error comes close to the threshold for appellate intervention as articulated in Gan Yook Chin and Ng Hoo Kui.

Accordingly, the appeal is dismissed with costs of RM 10,000.00 to the Plaintiff subject to the allocator. Dated : 30 April 2026 -signed-YA Dr Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Solicitor for the Appellant : : James Patrick Monteiro together with Ban Qiao Hui and Ahmad Aiman Farique bin Rusli Messrs. James Monteiro Solicitor for the Respondent : : Pang Kong Seng together with S.K Low Messrs. K S Pang & Co.