Ho Kam Choy v Chung Chin Hiong (BA-22NCC-69-04/2024)

Is this the case of a benevolent uncle? It might appear so if the Plaintiff's narrative is accepted. However, according to the Defendant, the reality is quite different.

This case involves the Plaintiff suing the Defendant for the return of monies which, according to the Plaintiff, were advanced as a friendly loan. The Plaintiff is the Defendant's uncle, but the Defendant disputes the claim, asserting instead that the monies received were utilized for share S/N pbG3ew0FSkyYGyQYrn/kw **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 transactions carried out on the Plaintiff’s instructions. Notably, the Plaintiff has initiated similar claims against the Defendant’s wife and mother.

Additionally, the Plaintiff has filed a separate action against the same Defendant, alleging that another loan was given to fund the Defendant's venture into a café business.

Initially, two interlocutory applications were before this Court: Enclosures 12 and 33.

Enclosure 33, an application for discovery filed by the Plaintiff, has since been withdrawn.

What remains for determination is Enclosure 12, the Defendant’s application to strike out the Plaintiff’s action pursuant to Order 18, rule 19(1)(a), (b), (c), and/or (d) of the Rules of Court 2012.

The essential issue is whether this is a proper case for this Court to exercise its powers to strike out the Plaintiff’s action pursuant to Order 18, rule 19(1)(a), (b), (c), and/or (d) of the Rules of Court 2012.

In support of his application to strike out the Plaintiff’s action in Enclosure 12, the Defendant adopted a two-prong approach.

There was no loan to start with, argued the Defendant. S/N pbG3ew0FSkyYGyQYrn/kw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

Essentially, it was the Defendant’s submission that the Plaintiff’s pleadings in seeking to recover a loan given to the Defendant was premised on an alleged untrue allegation and contradicts the contemporaneous documents.

The Defendant pressed on the point that the contemporaneous documents reveal that the monies transferred into his account was to buy, sell and/or trade shares in Straits Energy Resources Berhad (“SERB”).

The Defendant further contended that the Plaintiff’s claim for return of Outstanding Sum is unsustainable because the contemporaneous documents show that the proceeds of the sale of SERB’s shares have been paid from the Defendant’s account to third parties in accordance with the Plaintiff’s purported instructions.

The Defendant also substantiated his case for striking out by asserting that the action of the Plaintiff in transferring the monies into his account to carry out “transactions” as per the Plaintiff’s instructions is tainted with illegality as it allegedly contravenes section 188 and section 317 of the Capital Markets and Services Act 2007 and section 219 of the Companies Act 2016.

On the unlawful and illegality assertation, the Defendant referred this Court to cases such as Triple Zest Trading & Suppliers & Ors v Applied Business Technologies Sdn Bhd [2023] 8 AMR 225; [2023] 10 CLJ 187; [2023] 6 MLJ 818; [2023] 1 MLRA 144, Ideal Advantage Sdn Bhd v Perbadanan Pengurusan Palm Spring @ Damansara and another appeal [2019] 5 AMR 201; [2019] 1 LNS 894; [2020] 4 MLJ 93; [2019] 6 MLRA 721, Dr Mansur bin Hussain & Ors v Barisan Tenaga Perancang S/N pbG3ew0FSkyYGyQYrn/kw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 (M) Sdn Bhd & Ors [2019] AMEJ 0477; [2019] 1 LNS 661; [2019] MLJU 1552; [2019] MLRAU 170 and Worldwide Platinum Records Sdn Bhd v Tan Sew Cheng [2024] 8 AMR 117; [2025] 2 CLJ 406; [2024] MLJU 2257; [2024] 6 MLRA 347. [15] In reply to the submissions by the Defendant, the Plaintiff maintained that the WhatsApp messages pertaining to the alleged trading of shares on behalf of the Plaintiff “failed to provide any context with respect to the WhatsApp messages”. [16] The Plaintiff also took issue with the Defendant’s contention that proceeds of sales of SERB’ shares had been paid to third parties based on the Plaintiff’s purported instructions. The crux of this contention is that the Defendant had failed to adduce any payment slips to show that money had been transferred to any third party. [17] Regarding the issue of unlawfulness and illegality, the Plaintiff contended that, first, this argument was presented from the bar, and second, any invocation of the Capital Markets and Services Act 2007 and the Companies Act 2016 necessitates that the Defendant demonstrate a connection between the sum claimed by the Plaintiff and the trading of the SERB shares — an assertion that the Defendant has failed to substantiate. [18] Third, the Plaintiff also submitted that the Defendant “is not the proper party” to raise any issue pertaining to any contravention of the Capital Markets and Services Act 2007. S/N pbG3ew0FSkyYGyQYrn/kw The Decision of this Court [19] In determining the dominant issue in Enclosure 12, this Court is bound to follow and apply the law and principles governing the striking out of pleadings and endorsements as laid down in Order 18 rule 19(1) of the Rules of Court 2012 and as enunciated by case law respectively. [20] The principles governing this area of practice and procedure are well-established and widely recognized. They are so firmly entrenched in legal jurisprudence that they require no further restatement or detailed exposition in this context. [21] Building on the foregoing, the task before this Court is to carefully examine the factual matrix of this case, assess that against the established principles, and determine whether the circumstances justify striking out the main action. [22] It is trite law no evidence shall be admissible on an application under Order 18 rule 19(1)(a) of the Rules of Court 2012. This is explicitly stated in Order 18 rule 19(2) of the Rules of Court 2012. [23] When queried by this Court regarding his reliance on subparagraph

(1)(a) of Order 18 rule 19, the Defendant clarified that his primary reliance is on subparagraphs (1)(b) and (1)(d), namely, that the claim is scandalous, frivolous, or vexatious, or constitutes an abuse of the court’s process. [24] At the hearing, Counsel for the Defendant submitted that the Defendant had acted in accordance with the Plaintiff's instructions. S/N pbG3ew0FSkyYGyQYrn/kw Counsel further argued that allowing this case to proceed to trial would serve no useful purpose, as the Plaintiff would ultimately fail to establish the existence of a loan. [25] Despite the contemporaneous documents placed before this Court, numerous questions have been raised and remain unanswered. [26] Having considered the matter, this Court is not persuaded that the action ought to be struck out on the grounds that the claim is scandalous, frivolous, or vexatious, or that it amounts to an abuse of the court’s process. [27] After the full trial, we will uncover whether this is truly a case of a benevolent uncle or merely a facade. Should it be proven that the Defendant’s position holds true, and the benevolence claimed is shown to be otherwise, the Defendant may be compensated with an appropriate order as to costs. [28] Accordingly, the Defendant’s application in Enclosure 12 is dismissed, with costs of RM5,000. Dated: 3 March, 2025 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam S/N pbG3ew0FSkyYGyQYrn/kw Counsel: Sandra Tan for the Plaintiff (Messrs. Mak LK & Co) Justin Voon and Tan Ko Xin for the Defendant (Messrs. Justin Voon Chooi & Wing) S/N pbG3ew0FSkyYGyQYrn/kw