Guang Heng Plastic Industries Sdn Bhd v 1.TEE Kok Seng (No. K/P: 720710-05-5213) (JA-22NCC-81-12/2020)

TEE KOK SENG (No. K/P: 720710-05-5213)

TEE BEE NID (No. K/P: 720117-05-5108) … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT [for Enclosure 7] Introduction [1] On 26.1.2021, the Plaintiff filed an application for summary judgment in Enclosure 7 under Order 14 rule 1 of the Rules of Court 2012 for a few prayers inter alia that the 1st Defendant to pay the Plaintiff a sum of ___________________________________________________________________________________________ 2 SGD415,517.16 as payments made by the Plaintiff’s customers in Singapore as at 8.8.2019 equivalent to RM1,257,064.06 (at the Bank Negara Malaysia exchange rate of RM3.0253 on 8.8.2019). [2] This application was supported by the affidavit of Tee Kok Fatt (in Enclosure 8) who is one of the Plaintiff’s directors and affirmed on 14.1.2021. Application for summary judgment [3] This application only involves a part of the Plaintiff’s claims against the 1st Defendant i.e in relation to a sum of SGD415,517.16 which the Plaintiff averred that the 1st Defendant received from the Plaintiff’s customers in Singapore. [4] On this issue, I find that Order 14 of the Rules allows an application for summary judgment to be made on a part of the entire claim. That Order says – “Application by plaintiff for summary judgment (O. 14, r. 1)

1.

Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has entered an appearance in the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part thereof except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.”. [5] Therefore there is no issue on such application. [6] On Order 14 of the Rules, before a court to hear an application under this Order, the following conditions must be fulfilled by the Plaintiff: ___________________________________________________________________________________________ 3

the 1st Defendant must have entered an appearance;

the statement of claim must have been served on the 1st

the affidavit in support of the application must comply with the requirements of r. 2 of the O. 14. [7] In Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544 Steve Shim CJSS when delivering the judgment of the Federal Court held that – “(1) In the instant case, the Court of Appeal had put the burden on the plaintiff to prove his case in an O. 14 application. With respect, that could not be the correct proposition of law. In an application under O. 14 RHC, the burden is on the plaintiff to establish the following conditions: (i) that the defendant must have entered an appearance; (ii) that the statement of claim must have been served on the defendant; and (iii) that the affidavit in support must comply with r. 2 of O. 14 RHC in that it must verify the facts on which the claim is based and must state the deponent's belief that there is no defence to the claim. Once those conditions are fulfilled, the burden then shifts to the defendant to raise triable issues. The law on this is trite (National Company for Foreign Trade v. Kayu Raya Sdn Bhd folld). The Court of Appeal, in reversing the burden of proof, had misapplied the relevant principles relating to an application for summary judgment under O. 14 RHC. (para 4)”. [8] In National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283, the Federal Court held that if, these conditions are satisfied, the plaintiff will have established a prima facie case and he comes entitled to judgment. The burden then shifts to the defendant to satisfy the Court why judgment should not be given against him. ___________________________________________________________________________________________ 4 [9] Now the question is whether the 1st Defendant has succeed in establishing triable issues. [10] The 1st Defendant raised the following arguments as to oppose this application:

there was no evidence that the 1st Defendant received the alleged sum of money;

the alleged money was transferred to Tee Kok Heng (the 1st Defendant’s younger brother) for the purchase of 3 properties in London; and

the alleged money was collected by the 1st Defendant for the purpose of tax evasion. [11] On the first issue raised by the 1st Defendant, I find that page 10 of Tee Kok Fatt’s Affidavit (Enclosure 8) enumerated the goods sold to the Plaintiff’s customers in Singapore and the moneys received by the 1st Defendant. All these amounting the sum of SGD415,517.16. [12] In paragraphs 32, 33, 37, 38 and 53 of the 1st Defendant’s Affidavit (Enclosure 10), the 1st Defendant admitted that the alleged money was paid to his personal account for the purchase of properties in the United Kingdom and registered under the name of Tee Kok Heng for the purpose of tax evasion. [13] These list of goods mentioned in Tee Kok Fatt’s Affidavit and statement by the 1st Defendant in his affidavit are clear evidence that the ___________________________________________________________________________________________ 5 1st Defendant did receive the alleged money. Hence I am of the view that there is no necessity for the Plaintiff to prove further on the acceptance of the money by the Plaintiff. [14] In Jetara Sdn Bhd v. Maju Holdings Sdn Bhd [2007] 3 CLJ 41, Hasan Lah JCA (as he then was) when delivering the judgment of the Court of Appeal said – “[17] In Pembenaan Leow Tuck Chui & Sons Sdn Bhd v. Dr Leela's Medical Centre Sdn Bhd, Edgar Joseph Jr FCJ said at pp. 365-366 that: However, there are certain general observations we should like to add by way of postscript. When, upon the proper construction of a particular contract which, of course, is a question of law, there is no obligation on the part of an employer in a main contract, or a main contractor in a sub-contract, to pay upon being served with a progress payment certificate, because of pending disputes, allegations of defects in works or, materials or claims for damages for delay, without giving some reasonable amount of detail and quantification, are unlikely to result in the dismissal of an application for summary judgment under O. 14 and leave to defend being given. (See Kilby & Gayford Ltd v. Selincourt Ltd [1973] 229 EG 1343, CA). As for the degree of proof required of a plaintiff builder in O. 14 proceedings based upon an interim certificate issued by an architect or engineer pursuant to a construction contract, this has been variously described in Ellis Mechanical Services Ltd v. Wates Construction Ltd [1978] 1 Lloyd's Rep 33 as "indisputably due" (per Denning MR at p 35), "as plain as could be" (per Denning MR at p 36) or "beyond reasonable doubt" (per Bridge LJ at p 37). In his book Keating on Building Contracts (4th edn), Mr. Donald Keating ___________________________________________________________________________________________ 6 QC, under the sub-heading "Evidence supporting application for summary judgment", at p 279 says this:- Every case turns upon its facts but excellent evidence is either an admission by the defendant, or his authorized agent, or a certificate by the defendant's architect or engineer, which is a special and formal kind of admission. When evidence of this nature is established the court usually requires cogent evidence from the defendant before it grants leave to defend. Thus merely to allege the existence of defects in the works, or a claim for damages for delay without in each case giving some reasonable amount of detail and of quantification is unlikely to result in leave to defend.”. [15] By admitting the receipt of the money, I am of the view that the first issue falls unfounded. [16] On the second issue raised by the 1st Defendant, I find that there was no documentary evidence adduced by the 1st Defendant to prove that the alleged money was transferred to Tee Kok Heng for the purposes of the purchase of 3 properties and tax evasion. [16] The 1st Defendant’s admitted that all records and documents on the purchase of the properties are kept by Tee Kok Heng but the 1st Defendant alleged that he has no access to those documents as no cooperation from Tee Kok Heng. At the same time the 1st Defendant submitted that the Plaintiff must request Tee Kok Heng to clear the air about the alleged money. [17] I think this is incorrect position. As required by s. 103 of the Evidence Act 1950, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by ___________________________________________________________________________________________ 7 any law that the proof of that fact shall lie on any particular person. Therefore the 1st Defendant must prove by documentary evidence that the money was transferred to Tee Kok Heng who later used the money to purchase the properties and not to shift the burden of proof to the Plaintiff. [18] In Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627 where the Federal Court in held that he who alleges must prove such allegation and the onus is on the appellant to do so. [19] Further in Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ Supp 147; [1998] 1 MLJ 697 Augustine Paul JC (as he then was) held that – “It is settled law that the burden of proof rests throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies has discharged it, then the evidential burden shifts to the other party (see UN Pandey v. Hotel Marco Polo Pte Ltd [1980] 1 MLJ 4; Wong Chong Chow v. Pan-Malaysian Cement Works Bhd [1980] 2 MLJ 75 and Johara Bi bte Abdul Kadir Marican v. Lawrence Lam Kwok Fou & Anor [1980] 1 LNS 199; [1981] 1 MLJ 139). What shifts is the responsibility of adducing evidence to discharge that burden (see International Times & Ors v. Leong Ho Yuen [1980] 2 MLJ 86). When the burden shifts to the other party, it can be discharged by cross-examination of witnesses of the party on whom the burden of proof lies or by calling witnesses or by giving evidence himself or by a combination of the different methods. No adverse inference can be drawn against that party for failure to give evidence himself. If he does not adduce any evidence when the burden has shifted to him, he will fail. If the party on whom the burden lies fails to discharge it, the other party need not call any evidence. In that event, it will not avail him to turn round and say that the respondent has not established his. In such circumstances, as the Privy Council observed in Raja Chandranath Roy v. Ramjai Mazumdar 6 BLR 303, the respondent can say: "It is wholly ___________________________________________________________________________________________ 8 immaterial whether I prove my case or not. You have not proved yours' (see Selvaduray v. Chinniah [1939] 1 LNS 107; [1939] MLJ 253).”. [20] It is incumbent upon the 1st Defendant to prove the fact that the alleged money was utilized by Tee Kok Heng for purchasing of the 3 properties in London. Unfortunately the 1st Defendant failed to do so. [21] Likewise on the third issue raised by the 1st Defendant. There was no single piece of evidence produced by the 1st Defendant that he was authorized by the Plaintiff to use the money to purchase the properties as to avoid the tax. On the 1st Defendant’s argument that the evidence will be disclosed during the full trial, I think this argument cannot be accepted. The 1st Defendant must produce all evidence in his disposal at this juncture for the Court to ascertain whether there is, not only issue but triable issue. [22] The failure of the 1st Defendant to prove his statements would render the issues raised by the 1st Defendant lacking in credibility and carries no weight. Conclusion [23] Raja Azlan Shah J (as HRH then was) in Esso Standard Malaya Bhd v. Southern Cross Airways (M) Bhd [1972] 1 LNS 31 held: "It is, I think, right that an order under Order 14 should be made only if the court thinks it is a plain case and ought not to go to trial. If one simply has a short matter of construction with a few documents, the court, on summary application, should decide what in its judgment is the true construction. There should be no reason to go formally to trial where no further facts could emerge which would throw any light upon the letters that have to be construed.". ___________________________________________________________________________________________ 9 [24] In Citibank NA v Ooi Boon Leong & 2 Ors [1981] 1 MLJ 282 the HRH against was echoing the same principle again when delivering the Supreme Court decision – “That brings us to the important question whether the Assistant Registrar was entitled to deal with the case under the R.S.C. Order 14 procedure. We have often said in this court many a time that where all the issues are clear and the matter of substance can be decided once and for all without going to trial there is no reason why the Assistant Registrar or the judge in chambers, or, for that matter this court, shall not deal with the whole matter under the R.S.C. Order 14 procedure. In the present case the guarantee contains a clause which enables the bank by producing a certificate of indebtedness by its officer to dispense with legal proof of the actual indebtedness of the respondents. Clause 19 provides thus "A certificate by an officer of the bank as to the money and liabilities for the time being due or incurred to the bank from or by the customer shall be conclusive evidence in any legal proceedings against us or any one of us or our personal representatives." It means that, for the purpose of fixing liability of the respondents, the company's indebtedness may be ascertained conclusively by a certificate: see Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643; Bache & Co v Banque Vernes [1973] 2 LLLR 437.”. [25] Also in Bank Negara Malaysia v. Mohd Ismail and Ors [1992] 1 CLJ Rep 14; [1992] 1 MLJ 400 where Mohamad Azmi SCJ (as he then was) in delivering the majority judgment of the Federal Court held: "Under an O. 14 application, the duty of a judge does not end as soon as a fact is asserted by one party, and denied or disputed by the other in an affidavit. Where such assertion, denial or dispute is equivocal, or lacking in precision or is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable in itself, then the judge has a duty to reject such assertion or denial, thereby rendering the issue not triable. In our opinion, unless this principle is adhered to, a judge is in no position to exercise his discretion judicially in an O. 14 application. Thus, apart from ___________________________________________________________________________________________ 10 identifying the issues of fact or law, the court must go one step further and determine whether they are triable. This principle is sometimes expressed by the statement that a complete defence need not be shown. The defence set up need only show that there is a triable issue.”. [26] In Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim [1985] 1 LNS 33 Mohamad Dzaiddin J (as he then was) held that – “The issue here is whether or not there is a triable defence. This simply means that it is for the Defendant to show on merits, he has a good defence to the claim, or that a difficult point of law is involved, or the dispute is as to the fact which is to be tried or any other circumstances showing reasonable grounds of a bona fide defence.”. [27] Futher in Perwira Affin Merchant Bank Berhad v. Dato' Soh Chee Wen [1999] 1 LNS 170 Abdul Wahab J has said that – "the Court has to be satisfied on the affidavit evidence that the defence has not only raised an issue, but also that the said issue is triable. The determination of whether or not an issue is triable depends on the facts arising from each case as disclosed in the affidavit evidence before the Court. There must be sufficient facts disclosed on the affidavit evidence to show there is substance to the assertions, a final determination upon which is best made after discovery, interrogatories and or examination of witnesses as the parties think fit, in a trial... A triable issue is an assertion that not only has been raised and is denied or disputed, but is one upon which there is some evidence that is not equivocal or lacking in precision, or is not inconsistent with undisputed contemporary documents or other statements by the same deponent, or is not inherently improbable in itself to support it." . ___________________________________________________________________________________________ 11 [28] Based on the above grounds, it is clear to me that the 1st Defendant failed to establish to the Court that the existence of any triable issue or defence to make out the Plaintiff’s application deserving to be dismissed. Thus, I allow the Plaintiff‘s application for summary judgment in Enclosure 7 with cost. Dated: 17 July 2021 -signed- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, High Court, Johor Bahru Counsels: For the Plaintiff – Lai Chee Meng (Joyce Chew Hooi Ying with him); Messrs C.M. Lai & Partners For the 1st Defendant – Chang Tau Sian; Messrs Henry Soong & Chang Cases referred to: ➢ Bank Negara Malaysia v. Mohd Ismail and Ors [1992] 1 CLJ Rep 14; [1992] 1 MLJ 400 ➢ Citibank NA v Ooi Boon Leong & 2 Ors [1981] 1 MLJ 282 ➢ Cempaka Finance Bhd v. Ho Lai Ying & Anor [2006] 3 CLJ 544 ➢ Esso Standard Malaya Bhd v. Southern Cross Airways (M) Bhd [1972] 1 LNS 31 ➢ Jetara Sdn Bhd v. Maju Holdings Sdn Bhd [2007] 3 CLJ 41 ➢ Juahir Sadikon v. Perbadanan Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1; [1996] 3 MLJ 627 ___________________________________________________________________________________________ 12 ➢ National Company for Foreign Trade v. Kayu Raya Sdn. Bhd. [1984] 1 CLJ (Rep) 283 ➢ Perwira Affin Merchant Bank Berhad v. Dato' Soh Chee Wen [1999] 1 LNS 170 ➢ Syarikat Kerjasama Serbaguna Tunas Muda Sungai Ara v. Ghazali Bin Ibrahim [1985] 1 LNS 33 ➢ Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd [1998] 1 CLJ Supp 147; [1998] 1 MLJ 697 Legislation referred to: ➢ Evidence Act – s. ➢ Rules of Court – O. 14 r 1