If the instruments are a sham, then the DOT and ATP are wrongful in law, unenforceable, and in violation of the Moneylenders Act 1951, and the Plaintiff is not entitled to any remedy. Preliminary Objection [51] Before going any further, there is also a preliminary objection raised by the Plaintiff on the admissibility of certain documents of the Defendant by way of Section 90A of the Evidence Act 1950 (EA 1950). There are IDD1, IDD2 and IDD3 (collectively referred to as the Documents) as follows-S/N CidtipAyjkagvAqSQ3NU3g Exhibit No. Documents IDD1 20 pieces of post-dated cheques from Chew Ruenn Hing and Chew Ruenn How to the Defendant IDD2 A copy of the Defendant’s handwritten acknowledgment of receipt of a Hong Leong Bank Berhad cheque bearing number 315152 from Chew Ruenn How for the amount of RM3,500,000-00 IDD3 A copy of the letter dated 11.11.2016 issued by DA Land Sdn Bhd to the Defendant [52] The Plaintiff’s counsel has raised objections against the admissibility of the Documents on the basis that the Documents, by their nature, cannot be admitted through Section 90A of the EA 1950. The Plaintiff contended that the Documents were not documents, originally created by a computer but are merely digital reproductions of non-computer-generated originals. [53] The Plaintiff put his reliance on the cases of Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613 and Approfit Sdn. Bhd. v Kent Sing Construction Sdn Bhd & Ors [2001] MLJU 619. The learned counsel for the Plaintiff strongly objected to the admission of this document as Exhibit "P", arguing that the maker of the document was not called as a witness to verify its contents. Decision on the Admissibility of the Documents [54] Section 90A of the EA 1950 provides that a document which was produced by a computer is only admissible if it was produced by a computer in the ordinary course of its use. S/N CidtipAyjkagvAqSQ3NU3g [55] This Court is of the considered view that, even if the documents are merely marked as IDD, this Court has the inherent power to accord them due weight as evidence. Clearly, under Sections 73A(1)(a) and 73(2)(a) of the EA 1950, documentary evidence is admissible if the person who made the statement had personal knowledge of the matter stated in the document and Section 73(2)(a) of the EA 1950, allows the court to admit a statement as evidence in civil proceedings if doing so would prevent undue delay or expense. The Court may accept the statement even if the person who made it is available but not called as a witness, and even if the original document is not produced, as in this case, on the basis that the Documents were within the Defendant's knowledge and were received by him. Further, Ong Liang Yu (DW1) testified that the Documents were scanned from the originals obtained from his father, the Defendant. This was also corroborated by the Defendant in his statement, who admitted that he had received the Cheques. [56] This Court observed that the Documents were all directly related to the Defendant and supported his contentions and version of the story. The Documents were not specifically challenged, and the Defendant was not questioned regarding them. Therefore, this Court would allow the documents as exhibits. Nevertheless, even if the Documents were not admitted as exhibits, this Court finds that the Documents were consistent with the Defendant’s version. [57] Furthermore, the Plaintiff admitted the existence of those Cheques as reflected in his witness statement regarding the S/N CidtipAyjkagvAqSQ3NU3g payment for the Trust Properties that “On 25.11.20214, the Developer issued an authorisation letter to the Defendant to release the total purchase price of RM3,500,000.00 for the seven units of houses under the Project to Houz Depot Sdn Bhd (“Houz Depot”), three out which were the Trust Properties. I paid RM500,000-00 to Houz Depot through a RHB Bank Berhad cheque dated 25.11.2014 and handed it to the Defendant while the Defendant issued his United Overseas Bank (Malaysia) Bhd cheque dated 25.11.2014 for the amount of RM3,000,000- 00 to Houz Depot. Thereafter, I issued a RHB Bank Berhad cheques dated 28.11.2024 to the Defendant to repay him RM1,000,000-00 for the remaining portion of the purchase price of the Trust Properties.”. ANALYSIS AND FINDINGS Burden of proof [58] It is a trite law that the onus lies on the Plaintiff to prove his claim to succeed against the Defendant under Sections 101 and 102 of the EA 1950 (See Datuk Mohd Ali bin Hj Abdul Majid & Anor v. Public Bank Berhad [2014] 4 MLRA 397; [2014] 4 MLJ 465; [2014] 6 CLJ 269; [2014] 4 AMR 301 and Tenaga Nasional Berhad (Formerly Lembaga Letrik Negara Tanah Melayu) v. Perwaja Steel Sdn Bhd (Formerly Perwaja Terengganu Sdn Bhd) [1995] 3 MLRH 196; [1995] 4 MLJ 673; [1995] 4 CLJ 670). [59] In this Suit, there were two versions of the facts, one of the Plaintiff’s and also the Defendant’s. In this regard, in Global Globe Property (Melawati) Sdn Bhd V. Jangka Prestasi Sdn Bhd [2020] 5 MLRA 140; [2020] 6 MLJ 333; [2020] 6 CLJ 1, the Court of Appeal held-S/N CidtipAyjkagvAqSQ3NU3g [1] How does one know when a sale and purchase agreement is actually a cloak for an illegal moneylending transaction where interest is charged by an unlicensed moneylender which under the Moneylenders Act 1951 is unenforceable? Unscrupulous moneylenders would of course try to leave no trace of any moneylending transaction. At the same time there may well be cases where having signed a sale and purchase agreement, a party may later have had a change of mind and tried to wriggle out of it by alleging it is a sham to cover up an illegal moneylending transaction. [2] When confronted with two versions, one by the plaintiff saying that it is an ordinary sale and purchase transaction and another by the defendant saying it is a sham sale and purchase agreement meant only as a collateral to the moneylending transaction, the court would have to comb the evidence carefully to see if there are gaps that could not be explained away in the sale and purchase transaction and unusual features that will militate against a genuine sale and purchase transaction as well as the conduct of the parties. [127] In Pannir Selvamalar Sinnaiyah & Anor v. Tan Chia Foo & Ors [2020] 2 MLRH 48, a case where the argument of a sham agreement in the form of a sale and purchase agreement asking the underlying illegal moneylending agreement was upheld, Evrol Mariette Peters JC observed as follows: "[26] In my view, reliance on the parol evidence rule by the 1st defendant is misconceived, as the plaintiffs are not denying that they signed all the documents in question. The oral evidence by the plaintiffs in court was not for the purpose of contradicting, varying, adding to or subtracting the terms of the Agreement, but to explain that these documents were a facade to an illegal moneylending scheme. [27] The argument of counsel for the 1st defendant is, therefore, misconceived, as the oral evidence of the 1st plaintiff was not caught by the exclusion of parol evidence rule, as envisaged by ss 91 and 92 of the Evidence Act 1950. [28]Furthermore, it is trite law that s 92 presupposes the validity of the transaction evidenced by the document. If the validity of the transaction is in question, and if it is being disputed, then the court is not bound by what has been described as the paper expression of the parties." S/N CidtipAyjkagvAqSQ3NU3g [Emphasis Added] [128] We are more than convinced on the balance of probabilities that the SPAs are a sham, standing up like a sore thumb, when their terms are brushed aside with no compunction of what tomorrow may bring simply because undergirding it is the real transaction of illegal moneylending business where the plaintiff is more than secured, both in the sense of collateral and legal position, to act leisurely and "legally" as it may be pleased. [60] Likewise, in Mahmood Ooyub V. Li Chee Loong & Other Appeals [2021] 1 MLRA 609; [2020] 6 MLJ 755; [2020] CLJU 660, the Court of Appeal held- [141] It is often a characteristic of illegal moneylending transactions masquerading as an SPA that the sums do not always add up because the amount paid is often malleable and massage-able to cater for the element of interest paid upfront by the borrower. [61] This Court has perused all the documents pertaining to this Suit, including the submissions by the learned counsels. This is the Court's observation; at first blush, the ATP and the DOT, seemed just like any other ordinary instrument. However, upon a thorough review of the transactions, this Court is not satisfied that these documents are what they are purported to be. [62] This Court finds that the entire transaction was disguised to conceal a sham: an illegal money-lending transaction cleverly portrayed as a normal ATP & DOT, but in actual fact an instrument for a money-lending transaction with the property as security for the loan. Thus, this Court is inclined to the Defendant's submission, particularly in light of the fact that S/N CidtipAyjkagvAqSQ3NU3g monies were paid to the Plaintiff's account, which likewise resembled the interest on the loan and were not disputed. [63] It must be emphasized that the ATP and DOT are interconnected, as without the ATP, DOT does not exist. [64] Therefore, the following are some of the suspicious circumstances and unusual features that would justify a further probing as pointing in the direction of a sham agreement of the ATP and DOT, masking the illegal moneylending transaction-