Dato' Sri Andrew Kam Tai Yeow v Kam Lee Ching @ Kang Sak Wah (WA-12BNCC-34-10/2023)

This judgment arises from an appeal against the decision of the learned Sessions Court Judge who had allowed the Respondent’s claims after trial.

The Respondent claimed that she had given the Appellant (who is her nephew) a personal loan. Whilst there is no dispute that a sum of RM 600,000.00 was transferred by the Respondent into the Appellant’s account, the Appellant contended that the said sum was in fact payment made by his father to him in respect of the S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 Appellant’s entitlement of profits from the family group of companies which the Appellant’s father had paid to the Appellant through the Respondent.

After hearing oral submissions from counsel, I dismissed the appeal as I was of the view that the learned Session Court Judge was certainly not ‘plainly wrong’ and or that the decision was one where no reasonable judge would have arrived at.

I set out below my grounds.

The Respondent is the Appellant’s biological aunt.

The Respondent claimed a sum of RM600,000.00 against the Appellant, being the repayment of a friendly loan said to have been given on 26.1.2016. At that time, the Respondent was 80 years old. She withdrew her fixed deposit savings prematurely, suffered a loss in interest from the bank, and gave the Appellant the RM600,000.00.

The Respondent’s claim was supported by banking documents evidencing the transfer of the said RM600,000.00 to the Appellant. The Defendant never denied receiving these funds.

Instead, the Appellant asserted that the said sum of RM600,000.00 was part of monies due to the Appellant from profits of Raub Mining & Development Company Sdn Bhd (“RMDC”) and Raub Oil Mill Sdn Bhd (“ROM”) that was channelled to the Appellant by his father, Tan S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 Sri Kam Woon Wah (“Tan Sri Kam”) through the account of the Respondent. It was accordingly not a personal loan.

The Respondent was neither a director nor a shareholder of RMDC and or ROM.

The Appellant had relied on disputes that had arisen between the Appellant and Tan Sri Kam, leading to one Suit No WA-22NCC-352- 09/2017 (“Suit 352”), whereby the Appellant had sought to enforce a Shareholders Agreement dated 16.01.2017 (the “Agreement”).

In Suit 352, Tan Sri Kam had asserted that the Appellant owed a sum of approximately RM58 million. The sum of approximately RM58 million asserted by Tan Sri Kam encompassed the RM600,000.00 now claimed by the Respondent. Based on the aforesaid, the Appellant contended that this is a third-party evidence corroborating his claim that the RM 600,000.00 was not a personal loan from the Respondent.

The learned Sessions Court Judge decided after a full trial that: a) the sum of RM600,000.00 was a personal loan. The learned Sessions Court held that trust, being the crux of a friendly loan, the Respondent’s case was to be believed because of their blood and close biological relationship (the Appellant being the nephew of the Respondent). The learned Sessions Court Judge had accepted the Respondent’s testimony that she had “motherly feeling” towards the Appellant; S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 b) further, the Respondent had reasonably explained why and how the loan was given to the Appellant; c) the Appellant had the burden of proving that the said sum of RM 600,000.00 was in fact profits due to the Appellant from RMDC and ROM. In this regard, no documents evidencing the Appellant’s entitlement to the profits of RMDC and ROM were adduced in support; d) as regards the claim that the said RM 600,000.00 was encompassed within the RM58 million sought by Tan Sri Kam in Suit 352, the learned Sessions Court Judge had found that the Appellant had not established the same since he had failed to call Tan Sri Kam to testify entitling the Court to draw an adverse inference.

The general principle is that this Court, sitting as an appellate court, ought not and indeed will not interfere with the decision of the trial Court unless convinced that the trial Court had reached a conclusion that is plainly wrong.

From the learned Sessions Court Judge’s grounds of judgment, I do not see any grounds to justify any interference with the findings of fact. In arriving at the 54 paged long judgment, I cannot say that the learned Sessions Court Judge had reached a conclusion that no reasonable judge would have arrived at such as to warrant any appellate intervention. S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

As regards the existence of the loan, there is no dispute that the Respondent had withdrawn her 12 fixed deposits (each for the sum of RM 50,000) and had transferred the total sum of RM 600,000.00 into the Appellant’s account.

The Respondent had in fact suffered a penalty for the pre-maturity withdrawal of the fixed deposits.

On the other hand, the Appellant’s claim that the RM 600,000.00 were sums due to him from his father in the form of dividends or profits from the family group of companies is not supported by any documentary evidence at all.

There was no document from any of the family companies adduced before the Court in support of the Appellant’s alleged arrangement that the amount of RM 600,000.00 would be paid to him, let alone, to be paid through the Respondent. In fact, no reason was proffered to explain why this was even necessary.

Significantly, the Appellant had failed to call his father to give evidence to support his case. This was more so when the Appellant is relying on the “Statement of Account” purportedly prepared by his father to support his claim. In the absence of the Appellant’s father testifying in Court, the learned Sessions Court Judge rightly gave little to no weight to the “Statement of Account”. Further, the Appellant’s father had made a demand from the Appellant which according to the Appellant had included the RM 600,000.00. Thus, there is no good reason why the Appellant could not have subpoenaed his father to testify since it would have been in his S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 favour if his father were to give inconsistent statement in Court on his own claims against the Appellant.

The learned Sessions Court Judge was not wrong to hold that nothing in fact turns on the Statement of Account. It was prepared by Tan Sri Kam. The Respondent did not know about it at that material time. It is therefore not binding on the Respondent. Further, because Tan Sri Kam was not called to testify on the Statement of Account, little or no weight was rightly not given to the said document.

There was also ample evidence before the Session Court Judge that the Appellant was in financial difficulty and this corroborates the Respondent’s evidence that the Appellant had pleaded with her for a friendly loan. The Appellant was an additive gambler. The loan was given by the Respondent to the Appellant at the time when the Appellant was in financial troubles.

The learned Session Court judge was not wrong in relying on, amongst others, the blood relationship between the Appellant and the Respondent in concluding that on the balance of probabilities, it is more likely that the Respondent had agreed to the Appellant’s request for a personal loan.

The Appellant’s reference to comments made by the Respondent regarding the Appellant’s negative character must be taken in their proper contexts. These comments were made after the Appellant had reneged on his promise to repay the Respondent the loan amount. S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

More specifically, the Respondent explained during re-examination that her negative views about the Appellant were contributed by his act of taking her RM 600,000 but refused to repay her. The learned Session Court Judge had relied on the Respondent’s testimonies that she had trusted the Appellant as her nephew in January 2016. The bloodline relationship was the basis of her trust at that time. Little did she know that the Appellant would renege on his promise to repay the loan. The learned Sessions Court Judge was entitled to accept the Respondent’s explanation that she would not have known that the Appellant would “turn out to be a rotten nephew”.

The learned Sessions Court Judge, having the benefit of direct evidence on the demeanour of the witness, was convinced that the Respondent’s evidence was consistent and truthful. These observations by the leaned Sessions Court Judge should be afforded great weight and these findings should not be disturbed.

In Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors and another appeal [2019] MLJU 38, the Court of Appeal held as follows: “[25] We are mindful of the limited role of the appellate court in relation to findings of facts made by the court of first instance. The general principle is that the conclusion of a trial judge is a finding of fact on the oral evidence based on the demeanour and credibility of the witnesses before him or her. Generally, such finding ought not be disturbed unless the appellate court is convinced that it is plainly wrong. It would not be sufficient to warrant any interference merely because the appellate court entertains doubt whether such finding is right (See: Lee Ing Chin & Ors v. Gan Yook Chin [2003] S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 8 2 CLJ 19, Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309).”

The contention by learned counsel for the Appellant that the Sessions Court’s finding of a trust relationship is not supported by evidence is not true. Heavy weather was made on the negative remarks by the Respondent about the Appellant’s character but as demonstrated by learned counsel for the Respondent, these remarks were made only after the Appellant had reneged on his promise to make the repayment of the loan.

Given that the Respondent had withdrawn a substantial amount of her personal savings to give the loan to the Appellant, her negative remarks after the Appellant had disappointed her are not extraordinary and quite understandable.

In Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, it was held by the Federal Court as follows: “[78] Hence following this court’s ruling in Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was ‘plainly wrong’ where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge.” S/N /gontsIvZkWvUtpWXEWuyQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 9

In the instant appeal, I am not satisfied that the decision of the trial judge was ‘plainly wrong’ where in arriving at the decision it could not reasonably be explained or justified and was one which no reasonable judge could have reached.

For the reasons above, the appeal is dismissed with costs. Dated the 19th day of March 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Mr. Chan Kheng Hoe with Mr. Chong Kah Heng, Ms. Luvenie mark and Ms. Nurjannah Selamat (PDK) for Appellant

Mr. Y C Wong with Mr. Marcus Lee for Respondent Messrs. Marcus Lee (Kuala Lumpur) S/N /gontsIvZkWvUtpWXEWuyQ

Ong Leong Chiou & Anor v Keller (M) Sdn Bhd & Ors and another appeal [2019] MLJU 38 2. Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 S/N /gontsIvZkWvUtpWXEWuyQ