Hubei Wanhe Food Co. Ltd v GUAN HIANG MARKETING SDN BHD (A52NCVC-85-02/2020)

a sum of USD53,266.50 (or its equivalent in Ringgit Malaysia until the date of full settlement) ;

interest at rate of 5% on the USD53,266.50 (or its equivalent in Ringgit Malaysia until the date of full settlement);

costs; and

such further or other relief as this Honourable Court deems fit and proper to grant. [2] The Plaintiff is having a business in Province of Wuhan, China and the Defendant is a company incorporated and having its business in Malaysia. 2 [3] The Plaintiff has called its director Mr Hu Ji Cheng passport no. EA 004774 as its only witness (SP) who had taken oath in Mandarin and giving evidence at its solicitor’s firm office in Province of Hubei, China by way of remote technology via zoom meeting. The counsel of the firm is Mr Li San, identity number 429001197905215597 has also appeared online and confirmed that they were at his law office in Hubei, China. [4] The evidence by the Plaintiff’s witness and the Defendant’s witnesses were given through a Mandarin Interpreter in this court. B. Plaintiff’s claim [5] The Plaintiff and the Defendant have entered an agreement dated 1.8.2016 and on the request of the Defendant, the Plaintiff has sold and delivered raw dried mushrooms and fungus (the goods) to the Defendant sometime in August 2016. The Defendant has acknowledged the receipt of the goods and has yet to pay USD53,266.50 to the Plaintiff despite of the Plaintiff’s several demands. Eventually, a Notice of Demand dated 21.5.2018 was issued by its solicitor Messrs Affendi Zahari but to no avail. [6] SP has testified that the goods were shipped to the Defendant using KMTC Line, a transporter from Korea and supported the delivery with a Bill of Lading dated 28.6.2016 and marked as exhibit ID-1. A Letter of Demand was issued on 2.12.2019 to Defendant claiming the debt of USD53,266.50 for the mushrooms (exhibit ID-2) and the Defendant has yet to make any payment to the Plaintiff. [7] According to SP, the following documents were issued to the Defendant: 3

the Draft Copy of Bill of Lading (ID-1);

an invoice No: WH2016-0801 (the said invoice) and packing List dated 18.7.2016 containing, amongst others, the details, prices of the goods and the outstanding amount;

a contract;

a Certificate of Food Inspection which is issued by the China

a Cargo Tracking dated 12.8.2020. [8] SP has sent a voice message and message through WeChat application to the Defendant’s representative named Ah Meng on the outstanding sum issue and Ah Meng has informed SP to contact Mr Lim who is the Defendant’s director whose name appears on a name card as in page 1 of Common Bundle of Documents (CBOD) Part B. [9] During cross examination, SP admitted that the Bill of Lading is only a draft copy and the Cargo Tracking Document is related to the goods delivered to the Defendant. [10] SP has further testified that the Plaintiff did not receive any of the Defendant’s letters dated 16.9.2016 and 30.9.2019 marked as ‘ID-4 (a and b)’ in which the Defendant has expressed its intention to return the unqualified decayed mushroom. SP denied any knowledge that the Defendant has disputed the quality of the dried mushrooms. [11] SP has also denied any knowledge of the Defendant’s solicitor’s letter dated 18.6.2018 to Messrs Affendi Zahari, among others disputing the outstanding sum, the quality of the mushrooms and informing the visit by the Plaintiff’s representative and a buyer to inspect the goods at the 4 Defendant’s premise although there is an acknowledgement of receipt on the Defendant’s solicitor letter. SP does not have any knowledge that the Messrs Affendi Zahari has replied to the Defendant’s solicitor letter dated 18.6.2018. SP does not understand English language at all and admitted that SP did not look for any interpreter to assist him in understanding the content of the Defendant’s solicitor letter even after the letter was placed in the CBOD. [12] SP has not seen the condition of the mushrooms which are not merchantable and fit for its purpose and does not know Defendant at all. When the Defendant’s solicitor showed the mushroom packets exhibited in “ID-3 (a – d)”, SP testified that it does not belong to his company. C. Defendant’s case [13] The Defendant has called two witnesses and they are Lee Kam Foong, who was the director of the Defendant in 2016 (SD1) and Lim Cheong Puan, the Manager of the Defendant company (SD2). [14] The Defendant has pleaded that it has received invoice, Notice of Demand from the Plaintiff’s solicitor and the goods. The Defendant claims that the dried mushroom had terrible smell, decayed, stale and believed to be expired stocks which did not conform to the Defendant’s need for the goods to be marketed domestically and internationally. As a result, the Defendant could not sell all the dried mushrooms and had to sell them by auction. [15] SD1 has signed two letters dated 13.6.2016, complaining the quality of the mushrooms and 30.9.2016 reminding the Plaintiff on the return of the mushrooms. The letters were prepared by the Defendant’s clerk who 5 had left the Defendant company. There is no proof that the letters were sent to the Plaintiff although it was facsimiled to the Plaintiff. They are marked as ID-4 (a and b). [16] The pictures of the dried mushrooms packets as in ID-3 (a until d) were taken during the inspection of the mushroom after the container was opened and the Plaintiff was informed of the condition of the mushroom. The Defendant has managed to sell some mushroom which had good quality ie Camilla mushroom, Smooth mushrooms and black fungus. The Defendant had made attempts to return the decayed dried mushrooms which is “ia adalah jenis yang kecil, sudah rosak, tidak cantik.” to the Plaintiff but was rejected. The Defendant was told to sell them which the Defendant did except the decayed and stale dried mushrooms. [17] Based on the packaging as in exhibit ID-3, SD1 testified that the dried mushrooms are not of merchantable quality as there were black rings, yellowish black on the products and decaying smell when the boxes were opened. SD2 knows that the mushrooms has expired based on the colour and as a comparison, fresh mushroom (was shown to this court), is yellow or white milk while the stale mushrooms can be seen from exhibit ID-5 is black or brown colour. The pictures of the packets and dried mushrooms are marked as ID-3 (a, b and c) and ID-5 (a, b, c and d) respectively as they were prepared and taken by the Defendant’s clerk who has left the Defendant’s company. [18] In his evidence, SD-2 confirmed that the complaint letters were signed by SD1 and that the Defendant’s solicitor had also written to the Plaintiff disputing the same. By two letters dated 16.9.2016 and 30.9.2016 (the complaint letters), the Defendant has informed the Plaintiff that the 6 goods are not merchantable quality and fit for purpose. The goods have decayed smell, stale, white colour appearing on the goods and believed to be expired stocks. The Defendant through its solicitor Messrs K.W.Teh & Associates has on 18.6.2018 replied to the Plaintiff’s Notice of Demand informing the unmerchantable quality of the goods was conveyed to SP. [19] The original disputed packaging that contains the mushrooms were produced in this court. Fresh mushrooms were also brought to the court as comparison to the one that the Defendant has received. [20] SD1 and SD2 testified that the fresh mushrooms are white and flowering not thin and wrinkled. The expiry date of the dried mushrooms is two years and it depends on the temperature which can last for two years in cold weather but in a weather like Malaysia, it would not last long unless stored in a cold place. [21] During cross examination, SD2 testified that this is the first time the Defendant brought the goods from the Plaintiff. They were received from the Plaintiff in 2016 and are kept until now. SD2 has agreed that the original packaging does not reflect the Plaintiff’s name. [22] As testified by SD2, the dried mushrooms have many types of quality. SD2 has shown to this court the decayed stale dried mushrooms and explained the original colour of dried mushroom which is white milk and will be changed to black or brown. The existence of fungus will be shown by the appearance of white spots on the dried mushrooms. SD2 agrees that the mushrooms were received from the Plaintiff because the packaging in ID-3 are from the Plaintiff’s company which were received in 7 a container and the packaging is just like in the pictures when the boxes were opened. [23] The Defendant denied the dried mushrooms that they received were the one that was ordered and has informed the Plaintiff to take them back. As further testified by SD2, the Defendant was informed by SP that the Plaintiff has a purchaser to buy the dried mushrooms. I 2016, SP and a buyer from Pulau Pinang have come to view the goods. SP has flown to Malaysia and brought a client from Pulau Pinang to view the dried mushrooms but the buyer had refused to take them as they were not of merchantable quality. The Plaintiff has informed the Defendant to sell the dried mushrooms to the market at a reasonable price and inform the Plaintiff the amount of sales. Since then the stocks have been kept with the Defendant for one year. The Defendant managed to sell the merchantable quality dried mushrooms by way of auction for the total sum of RM64,686-00 and after deducting all the expenses, the Defendant proposed to pay RM50,000-00 but no response received from the Plaintiff. D. Analysis and findings of the court [24] This is a straight forward case on the goods sold and delivered and the purchaser does not pay the amount of the goods purchased and received on the grounds that the goods received are unmerchantable quality and unfit for its purpose. The High Court in Caltex Oil Malaysia Ltd v Classic Best Sdn Bhd & Ors [2007] 4 MLJ 772 has decided as follows: “[10] In coming to a decision in cases involving goods sold and delivered such as in this case, I would place due emphasis on the written documents, namely the statement of accounts, invoices, delivery orders, delivery notes and the debit notes. These documents would collectively constitute a contract reduced into writing. This principle had been laid down in the case of Pernas Trading Sdn Bhd v Persatuan Peladang Bakti Melaka [1979] 2 MLJ 124 where Salleh Abas FJ (as he 8 then was), delivering the judgment of the Federal Court said, 'We feel that this course of action is not open to the respondents, as it is clear that under s 92 of the Evidence Act 1950, oral evidence to contradict, vary, add to or subtract from, the terms of any contract, grant or disposition of property which had been reduced in writing is not admissible. The sales invoice and the delivery note being the contract reduced in writing between the appellants and the respondents s 92 therefore applies.' See also YK Fung Securities Sdn Bhd v Ronald Yeoh Kheng Hian [1989] 3 MLJ 490 where the High Court had decided that 'he was subsequently furnished with the relevant monthly statement of accounts to which he had no objections, protest or queries.' [11] Further in the case of Syarikat Pakar Kayu dan Perdagangan Sdn Bhd v Maa-sk Sdn Bhd [1986] 1 CLJ 595, also a case concerning goods sold and delivered, the High Court granted the plaintiffs application for summary judgment on the ground that the defendant had not raised any objection or queries even though detailed particulars of the transactions were provided through the monthly statements of accounts. [12] Based on the above authorities and by virtue of s 92 of the Evidence Act 1950, the defendant in this case cannot offer oral evidence to contradict, vary, add to or subtract from, the terms of any contract.”. [25] It is trite law that burden to prove the claim is on the Plaintiff as expressly stated in section 101, 102 and 103 of Evidence Act 1950, “101. Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”.

On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 103 Burden of proof as to particular fact 9 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 any law that the proof of that fact shall lie on any particular person.”. [26] This was well explained in the case of Eon Bank Bhd v. Hotel Flamingo Sdn Bhd [2005] 5 CLJ 253, “IV. BURDEN OF PROOF …. Burden of proof as contained in s. 101 is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. On the other hand, the onus of proof relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss. 102 and 103 of the Evidence Act, if the party with whom the onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail : per Salleh Abas FJ (later LP) in delivering the judgment of the Federal Court in International Times, supra, at p. 87. International Times, supra, was followed by Augustine Paul JC (now JCA) in Tan Kim Chuan, supra, where the learned Judge at p. 706 said: "when a party on whom the burden of proof lies has discharged it, then the evidential burden shifts to the other party What shifts is the burden of adducing evidence to discharge that burden. When the burden shifts to the other party, it can be discharged by cross-examination of witnesses or by giving evidence himself or by a combination of the different methods.”. [27] The standard of proof on the Plaintiff to prove his claim is on a balance of probabilities as written in the judgment delivered by Tan Sri Abdul Hamid Embong FCJ (as he then was) in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885. The term of ‘balance of probabilities’ is referred in the case of JP Logistics Sdn Bhd v. Holsten Marketing (M) Sdn Bhd [2020] 1 LNS 1389, 10 “[36] The term ‘balance of probablities’ was described in Miller v. Minister of Pensions [1947] 2 All ER 372 by Denning J (as he then was) as 'more probable than not' and which is 'not so high as required in a criminal case...but if the probabilities are equal, it is not discharged'. The standard, therefore, does not allow for any guesswork, speculation, surmise or conjecture. Miller v. Minister ofPensions has been assimilated into Malaysian jurisprudence through several cases including Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885; [2016] 2 MLJ 1. [37] I found instructive also the case of Unsung Rasad v. PP [2019] 1 LNS 662, where the concept of balance of probabilities was explained by Abang Iskandar Abang Hashim JCA (now FCJ), adopting the English case of Re B [2008] UKHL 35: In the celebrated case of Miller v. Minister of Pensions [1947] 2 All ER 372, Denning J (as he then was) said: If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilites are equal it is not. [17] That would invariably require that party involved having to lead or adduce affirmative evidence to prove his case, as the court shall presume the absence of those circumstances, to reach a level of proof of at least 51% probability against his adverse party. We would cite the English case of Re B [2008] UKHL 35, where Lord Hoffman had used a mathematical analogy to illustrate what needed to be proven by a party desirous of having judgement entered in his favour, like so: If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. [Emphasis added.]”. [28] It is to be noted that in this case, the contemporaneous documents tendered are marked as IDs as they are placed in the CBOD Part C which contents and makers of the documents are disputed. On the admissibility 11 of ID evidence, reference is made to Pannir Selvam Sinnaiyah & Anor v Tan Chia Foo & Ors [2019] 1 LNS 2031 at page 14 dan 15 as follows, “[54] Furthermore, the procedure when dealing with ID documents is clear, that is, since they have not been classified as Part A or Part B documents under Order 34 rule 2 of the Rules of Court 2012 ("Rules of Court"), the party tendering the ID document has to ensure that such document falls within at least one of the exceptions to the rule against hearsay. Documents that are marked as ID, therefore, are not automatically rendered inadmissible, but will be subject to the full force of the Evidence Act. [55] This was also explained by Ramly Ali J (as he then was) in Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474: ...At that stage of the proceedings, all those documents have to be marked as "ID” first, but it does not stop the court from deciding on their admissibility at the end of the trial ie, during submissions stage. Section 73A(2) of the Evidence Act 1950 empowers the court to do so. The said subsection provides for the exercise of the power "at any stage of the proceedings, having regards to all the circumstance of the case". There is nothing to say that those documents cannot be admitted as evidence under s. 73A(2) just because they have only been marked as “ID”… [Emphasis added.]”. In Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd & Ors [2001] 2 CLJ 474, the High Court has further explained the application of section 73A(2) Evidence Act 1950, “Section 73A(2) of the Evidence Act 1950 provides for the admittance of documents when the maker is not called, if having regard to all the circumstances of the case the court is satisfied that undue delay or expense would otherwise be caused. In doing so, the court may draw any reasonable inference from the form or contents of the document or from any other circumstances. This is provided under s. 73A(5) of the same Act. The relevant parts of s. 73A(2) and (5)reads as follows:

In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence: 12 a) notwithstanding that the maker of the statement is available but is not called as a witness; and b) notwithstanding that the original document is not produced, if, in lieu therefore, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

For the purpose of deciding whether or not a statement is admissible as evidence by virtue of subsection (1) to (4), the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances. … Therefore, by virtue of the above provisions of law, I am satisfied that the said notices of demand (ID17 - ID19) and (ID21 - ID23); the AR Cards (ID18 - ID20) and Certificates of Posting (ID22 - ID24) are admissible as evidence. All these documents are part of a transaction or records which are consistent, and were issued in the course of business and discharge of professional duty. The court can see the genuinity of these documents without the makers being called. By virtue of s. 73A(5) and 73A(6) of the same Act, in deciding whether all these documents are admitted, the court had also considered the reasonable inference from the form and contents of the document as well as from any related circumstances, as to the accuracy or otherwise of the statement and in particular to the question whether or not the statements or the documents were made contemporaneously with the occurrence or existence of the facts stated.”. (emphasis added) [29] Therefore, it is the duty of this court not only to analyse and evaluate the documents exhibited but also the facts and circumstances that relate to the documents adduced in this court.

whether the goods are not merchantable quality and unfit for its purpose [30] It is pleaded that the goods was delivered in August 2016. The Plaintiff submitted that as the Defendant has admitted the delivery and acceptance of the goods, the quality of the goods in a non-issue. The 13 Defendant has never challenged the accuracy of the particulars of goods and price as set out in the Invoice. Thus, payment of the goods has to be made as stated in sections 4, 31, 32 and 55 of the SOGA 1957. The Draft Copy of the Bill of Lading should not be made as an ID-1 as the tracking reference number of the shipment is identical with the Cargo Tracking Result. Relying on Asia Pacific Information Services Sdn Bhd v Cycle & Carriage Bintang Berhad & Anor Mercedes Benz Malaysia Sdn Bhd [2010] MLJU 233, the Defendant has also failed to prove that the mushrooms are unmerchantable quality and unfit for its purpose as they resold by the Defendant and no expert witness was called to testify on the conditions of the mushrooms. The Defendant argued that it has a right under section 41 and 43 of Sales of Goods Act 1957 to inspect the goods which were not previously examined and is not bound to return the goods to the seller as they are not of merchantable quality. [31] It is pleaded in paragraph 3 of Pernyataan Tuntutan that the goods were delivered to the Defendant based on an agreement dated 1.8.2016 and on the request and order from the Defendant. SD1 and SD2 have testified that the mushrooms received are not as ordered by them. SP has testified that there is a contract of the goods but is not in the CBOD which is confirmed by its counsel. Neither the request and order from the Defendant were produced in this court. Section 91 Evidence Act 1950 provides that in a contract, no evidence shall be given in proof of the contract except the document itself, "Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the 14 terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.”. [32] The Court of Appeal in Wee Lian Construction Sdn. Bhd. v. Ingersoll-Jati Malaysia Sdn. Bhd. [2010] 4 CLJ 203 has decided that “goods shall correspond with the description”…… It must be emphasised that the “description” by which the goods are sold is confined to those words found in the contract which are intended by the parties to identify the kind of goods which were to be supplied….”. [33] All communications between the Plaintiff and Ah Meng were in Chinese language. According to SP, the said invoice and other documents were sent to the Defendant by post and also sent to Ah Meng for several times through WeChat application dated 7.9.2016 as in page 7,8 and 9 of CBOD Part C. As the trial was done by way of zoom video communication, all the attachment and documents in the WeChat application were enlarged and perused. SP agreed that the documents are not clear and no word can be seen from them. It is my duty to analyse all the documents that have been adduced in the CBOD and I find no document to show that the said invoice was sent to the Defendant by post and all the documents as alleged in the WeChat application are not made available in the CBOD too. [34] Relying on section 114 (g) of the Evidence Act 1950, the Defendant further submitted that the Draft Copy of Bill of Lading is only a draft and it has to be remained as ID as the maker was not called to testify on the authenticity and content of a document. See Diego Ireland v MY Flexitank Industries Sdn Bhd [2017] 1 LNS 815. 15 [35] I had perused the Draft Copy of the Bill of Lading which was issued by a Korean company to transport the goods from China to Malaysia. After reading the details of the Draft Copy of Bill of Lading, the details correspond with the Cargo Tracking document even though the Cargo Document does not state the Defendant’s company name. The draft copy of Bill of Lading was issued in Shenzhen, China on Aug 26,2016 and Shipped On Board on the same date. However, there are four different dates in the Cargo Tracking concerning the shipment of the goods which are 21.8.2016, 28.8.2016, 5.9.2016 and 7.9.2016 and left unexplained. [36] The word ‘draft’ is defined in New Oxford Dictionary 9th Edition 2006 as follows, “noun

A piece of writing etc which will probably be changed and improved; not the final version;” and in Compact Oxford Thesaurus Third Edition (Revised) 2008, “noun 1. the draft of his speech: preliminary version, rough outline, plan, skeleton, abstract, main points, bare bones.”. In online Black's Law Dictionary it is defined as, “tentative, provisional, or preparatory writing out of any document (as a will, contract, lease, etc.) for purposes of discussion and correction, which is afterwards to be copied out in its final shape.”. [37] It is hard to believe that an international shipping company who has an office in Kelang, Selangor Malaysia could only issue a draft copy of the Bill of Lading when the Draft Copy of the Bill of Lading itself clearly states No. Original B/L is THREE (3). SP could not explain reasons for tendering the Draft Copy and the maker of the Draft Copy was not called to testify the truth content and explanation of the draft document being given to the Plaintiff. The Federal Court in the case of UEM Group Bhd v. Genisys 16 Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 has said as follows:- "[36] It is fundamental that it is the requirement of the best evidence rule that the maker of a document must be called to prove it. (Allied Bank (Malaysia) Bhd v. Yau Fiok Hua [1998] 2 CLJ 33 ). Further s. 73A of the Evidence Act states that in civil proceedings, the maker must be called as a witness in order to render it admissible in evidence. (Ooi Yoke In (f) & Anor v. Public Finance Berhad [1993] 2 CLJ 464 ). And a document cannot be admitted into evidence and marked as such until properly proven. (Chong Khee Sang v. Phang Ah Chee [1983] 1 LNS 57 ). In the instant case, it is clear that both the subcontract and the fax were not properly proven and should have been disregarded. Thus, the Court of Appeal, by relying on those documents in reversing the findings of facts of the trial judge was clearly in error on evidential issues.". [38] In Kong Ming Trading Sdn Bhd & Anor [2016] 1 LNS 1343 it was held that the law is trite that inadmissible evidence remains inadmissible irrespective of whether any objection was raised to its admission. [39] For the above reasons, I held that ID-1 is inadmissible in law without the maker being called as the proviso of section 73A Evidence Act 1950 has clearly not been satisfied. As there is no proof that ID-2 was sent to the Plaintiff, ID-2 can be no more than an identification document as its contents do not constitute admissible evidence in support of the Plaintiff’s case. [40] As admitted by SP, any exportation and importation of goods between China and Malaysia need to get clearance from the respective authority. The goods were inspected by the China Custom and certificate of inspection was issued based on the requirement of the export country. A Certificate of Food Inspection which is issued by the China Custom is 17 in the hand of SP but was not produced during the trial neither in the CBOD. [41] Although the Defendant does not dispute the delivery of the goods and the accuracy of the details of the goods as in the invoice, the duty is on the Plaintiff to prove that all the documents pleaded and testified are properly proven. There was no contemporaneous document to support the fact that the goods were delivered as requested and ordered by the Defendant. The Plaintiff’s version is not only inconsistent with contemporaneous documents but also the material document of contract, the purchase order and Certificate of Food Inspection documents were not produced in the court. Therefore, I invoke section 114(g) of Evidence Act 1950 and draw an adverse inference against the Plaintiff that if all the documents were to be produced, it would presumably contain information detrimental to the Plaintiff. The locus classicus on section 114(g) is Munnusamy v. PP [1987] CLJ Rep 221, "It is essential to appreciate the scope of section 114(g) of the Evidence Act, 1950 lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case" [42] It is the duty of this court to take and consider the facts as a whole including the contemporaneous documents as stated in Tindok Besar Estate Sdn. Bhd. v. Tinjar Co. [1979] 1 LNS 119; [1979] 2 MLJ 229 where the Federal Court has stated, "Nevertheless the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the 18 oral evidence but did not notice or consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. 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 and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.". whether the Defendant has disputed the quality of the goods [43] The Defendant defended their case by the testimonies of its two witnesses that the complaint letter dated 16.9.2016 and a letter requesting the Plaintiff to take back the goods on 30.9.2016 (ID4 a and b) were sent directly to the Plaintiff. However, during cross examination, SP has denied any knowledge of ID-4 (a and b). SD2 has testified that all correspondence between the Plaintiff and the Defendant were made through Ah Meng as in the WeChat application dated 7.9.2016 which was supported by SP’s testimony. [44] In 2016, SP and a buyer from Pulau Pinang have come to view the goods at the Defendant’s premise where the goods were kept. The buyer had refused to take the goods as they were not of merchantable quality and the Plaintiff has informed the Defendant to sell the goods at a reasonable price. SD2’s testimony was not challenged by the Plaintiff. [45] After perusing the testimony of SD2, I am of the view that SD2 has given a consistent evidence on the presence of SP and the buyer to view the mushrooms which has also been pleaded. To my mind, without any single information from the Defendant on the quality of the mushrooms, 19 the Plaintiff would not have come to Malaysia in 2016 with a buyer to view and inspect the mushrooms as complained. The buyer has refused to buy and the Defendant had to sell whatever they could as told by the Plaintiff, by way of an auction. [46] The Plaintiff pleads in paragraph 6 of its Pernyataan Tuntutan that “Selanjutnya, Plaintif telah berulang kali membuat permintaan dan tuntutan termasuk tetapi tidak terhad kepada tuntutuan Plaintif melalui surat bekas Peguamcara Plaintif bertarikh 21.5.2018 kepada Defendan untuk jumlah sebanyak USD53,266.50 tersebut, Defendan masih gagal, enggan dan/atau abai membayar jumlah tersebut dan/atau sebahgaian daripadanya sehingga hari ini kepada Plaintif”. In his answer to Question 8 of his Witness Statement, SP testified as follows, “8. Q: Please refer to page 5 of Ikatan Dokumen Bersama and tell the Court what this document is about? A: This is the Notice of Demand dated 21.5.2018 issued by the Plaintiff’s former solicitor to the Defendant for the purpose of demanding the Outstanding Amount.”. [47] The Plaintiff has submitted that the Defendant did not reply to their Notice of Demand dated 21.5.2018 which the Defendant has rebutted by arguing that the Defendant has, at the earliest possible raising their dispute on the claim by way of letter dated 18.6.2018 which is about a month after the Plaintiff’s Notice of Demand. As the Plaintiff was represented by a solicitor at that material time, it is only proper that the Defendant’s solicitor replied the demand to the same solicitor as both parties were represented by their respective solicitors. This action of the Defendant has clearly showed that the Defendant has never satisfied with the quality of the dried mushrooms. 20 [48] The facts in this case before me can be distinguished with the fact in Petrozchem Oilfield Services Sdn Bhd v. Scomi Oiltools Sdn Bhd [2020] 1 LNS 1476 in which the Defendant has failed to deny its indebtness to the Plaintiff by being idly and silence in responding to the Plaintiff’s notice of demand, “[34] The conduct of the defendant in not refuting the claims made via the Notice of Demand would be relevant as we do not expect a company to stand idly by when liability and indebtedness are alleged and more so when a formal demand for payment is made. The silence is often revealing and deafening when a strenuous objection to an allegation would be expected. [35] The oft-quoted dicta found in David Wong Hon Leong v. Noorazman bin bin Adnan [1995] 4 CLJ 155, at 159, would resonate with the Court where the Court of Appeal observed as follows: "During argument, we registered our surprise at the learned Judge's reluctance to enter judgment for this sum of RM100,000. After all, the appellant had failed to respond to the letter of 17 December. If there had never been an agreement as alleged, it is reasonable to expect a prompt and vigorous denial. But, as we have pointed out, there was no response whatsoever from the appellant. In this context, we recall to mind the following passage in the judgment of Edgar Joseph Jr. J. in Tan Cheng Hock v. Chan Thean Soo [1986] 1 LNS 42; [1987] 2 MLJ 479-487: In Wiedemann v. Walpole [1891] 2 Q.B. 534, 537 an action for breach of promise of marriage, it was held, that the mere fact that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, was no evidence corroborating the plaintiff's testimony in support of such promise. Lord Esher M.R., in his judgment, remarked, Here, we have only to see whether the mere fact of not answering the letters, with nothing else for us to consider is any evidence in corroboration of the promise.' (Emphasis added). Earlier, in his judgment, he said, 'Now there are cases - business and mercantile cases in which the Courts have taken notice that, in the ordinary course of business, if one man of business states in a letter to another that he has agreed to do certain things, the person who receives that letter must answer it if he means to dispute the fact that he did so agree. (The emphasis is ours.)" (emphasis added)”. See also High Court case in Sediperak Sdn Bhd v Baboo Chowdhury [1999] 5 MLJ 229. 21 [49] During cross examination, SP said that he does not understand the content of the Defendant’s solicitor’s letter and does not agree the letter was sent to Messrs Affendi Zahari. Initially, SP has denied any knowledge of the Defendant’s solicitor’s letter as the Plaintiff has never appointed any solicitor to act on its behalf. [50] Because SP himself does not know Messrs Affendi Zahari, the Notice of Demand was shown to SP and SP admitted that Messrs Affendi Zahari has issued the Notice of Demand on behalf of the Plaintiff after being introduced by SP’s friend through telephone conversation. It was SP’s friend who sent the invoice and documents to Messrs Affendi Zahari. However, the Plaintiff has failed to produce his introducer friend to prove his testimony. The only reason given by SP is he has no proof and no longer in communication with his introducer friend and has not been in contact for about one to two years since the date of the Notice of Demand. [51] The Defendant’s solicitor’s letter was acknowledged and stamped RECEIVED on 22.6.2018 by Messrs Azhar Zahari which clearly shows that it was perfectly sent to Messrs Azhar Zahari BY HAND. It also supports the Defendant’s contention that the Plaintiff has knowledge of the unmerchantable quality of the dried mushrooms. In his evidence, SP has admitted that the Defendant’s solicitor’s letter (the said letter) was not interpreted to him neither SP looked for one to interpret the said letter for him. The content of the said letter supports the Defendant’s contention that they have been disputing the quality of the goods since 2016, what more with the presence of SP and his buyer from Penang in 2016 to view the dried mushrooms. The Plaintiff has neither disputed this fact when SP was cross-examined nor defending it in its Jawapan Kepada Pembelaan. 22 [52] Furthermore, the existence of ID-4 (a and b) were mentioned in the Defendant’s solicitor’s letter dated 18.6.2018 which the Plaintiff again denied receiving and having knowledge of the same despite of acknowledgement receipt by Messrs Affendi Zahari. [53] SP’s evidence on the appointment of Messrs Affendi Zahari is only a hearsay as his introducer friend was not called to support his statement in this court. Being a company involving in an international trade, the explanation given by SP on the appointment of the Messrs Affendi Zahari and the unknown whereabouts of his introducer are illogical and strange as the Plaintiff could just appoint a solicitor to act on its behalf after just being introduced by a friend and the friend disappeared without any effort to trace him/her. Thus, section 114(g) Evidence Act 1950 is invoked against the Plaintiff for its failure to produce the friend without reasonable explanation. [54] Being the only witness for the Plaintiff, I find that SP was evasive and deviating his own testimony on the issue of the Plaintiff’s and Defendant’s solicitors’ letter by not being consistent in his statement. In Guan Teik Sdn Bhd v. Haji Mohd Noor bin Haji Yakob & Ors [2000] 4 CLJ 324, the Court of Appeal has explained the duty of this court when facing inconsistencies in evidence, "Dalam kes-kes di mana keterangan yang bercanggahan dikemukakan di hadapan mahkamah, adalah tugas mahkamah untuk bukan sahaja menimbangkan kebarangkalian tetapi juga mahkamah mesti meneliti semua faktor yang mengelilinginya dan menimbang serta menilai dokumen-dokumen semasa yang berkemungkinan akan menetapkan kebenarannya atau sebaliknya berhubung dengan faktor-faktor yang diberikan". 23 E. Conclusion [55] After careful consideration of the facts and submissions by both parties to arrive at the decision in accordance with law and premised on the above, the Plaintiff’s claim is dismissed with cost of RM8,000/- to be paid to the Defendant within fourteen days after the date of this order. Dated: 13th July 2021 (ROHATUL AKMAR BT ABDULLAH) Judge Sessions Court 9 Shah Alam Selangor Counsel for the Plaintiff : Mr Ng Kam Thai Messrs Ng Kam Thai & Co Shah Alam, Selangor Darul Ehsan Counsel for the Defendant : Mr Syed Mohd Farid Alhabshi Bin Syed Idrus Messrs Farid Wong & Wee Puchong, Selangor Darul Ehsan