Konsortium Express Sdn Bhd v Chong Kim Loy (BA-12BNCvC-73-11/2024)

This is an appeal by the Appellant against the decision of the Sessions Court delivered on 18 November 2024, which dismissed the Appellant’s claim against the Respondent with costs.

After hearing the submissions of both parties and having perused the appeal record, this Court dismissed the appeal with costs of RM5,000.00, subject to the allocator. Below are my reasons. The Parties

The Appellant, Konsortium Express Sdn Bhd, was the Plaintiff in the Sessions Court. It is a company incorporated in Malaysia and, at the material time, was involved in construction works for a project in Cyberjaya.

The Respondent, Chong Kim Loy, was the Defendant and, at the material time, was employed by the Appellant and involved in the management of the Appellant’s project. Salient Facts

The Appellant is a company involved in construction works and had undertaken a project in Cyberjaya. The Respondent was employed by the Appellant and was involved in the management of the project. S/N 4bng5m9lBE63uZIyxzMg

The Appellant’s case is that, on or about January 2020, it issued four cheques totalling RM500,000.00 to the Respondent, each for RM125,000.00. According to the Appellant, the said sum was entrusted to the Respondent for the purpose of making payments to suppliers or subcontractors involved in the project. The Appellant contends that the Respondent was entrusted with the cheques to facilitate payments to those suppliers.

The Appellant alleges that the Respondent failed to utilise the said sum for the intended purpose. The Appellant further alleges that the Respondent had instead used the money for his own benefit. On that basis, the Appellant claims that the Respondent had breached the trust reposed in him and seeks to recover the sum of RM500,000.00 from the Respondent.

The Respondent disputes the Appellant’s case. The Respondent maintains that the sum of RM500,000.00 was not entrusted to him for payment to suppliers. Instead, the Respondent contends that the amount was paid to him by the Appellant as a bonus or incentive in recognition of his role in relation to the project. The Respondent therefore maintains that the money belonged to him and that he was entitled to deal with the sum as his own.

Following a full trial, the Sessions Court Judge (SCJ) dismissed the Appellant's claim against the Respondent. Dissatisfied with that decision, the Appellant filed the present appeal before this Court. S/N 4bng5m9lBE63uZIyxzMg Findings of the SCJ

From the grounds of judgment of the SCJ, she made the following findings:

It is trite that an appellate court should be slow to disturb findings of fact made by the trial court, which had the advantage of seeing and hearing the witnesses. Interference is only justified where there are substantial and compelling reasons, or where the findings are clearly against the weight of the evidence. In this regard, reference may be made to Che Omar Mohd Akhir v Public Prosecutor [2007] 3 CLJ 281 and PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457, which emphasise that an appellate court should be slow in disturbing the findings of facts arrived by the trial court, which had the advantage of seeing and hearing the witnesses (audio-visual advantage) unless there are substantial and compelling reasons for disagreeing with the finding or such finding is clearly against the weight of evidence.

The applicable test is commonly referred to as the "plainly wrong test". The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441 reaffirmed the principle earlier stated in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, that an appellate court will not interfere with findings of fact unless the trial judge is shown to be plainly wrong. The Court of Appeal in Sivalingam Periasamy v Periasamy & Anor [1996] 4 CLJ 545 further held that while appellate courts generally do not interfere with factual findings, intervention is warranted where the trial court has fundamentally misdirected itself S/N 4bng5m9lBE63uZIyxzMg such that no reasonable tribunal properly directing itself could have reached the same conclusion.

Guided by these principles, this Court now turns to consider whether the findings of the SCJ in the present case warrant appellate intervention. Issues to be Determined

Having considered the Memorandum of Appeal and the submissions of both parties, the issues arising for determination in this appeal may be distilled as follows:

Before turning to the issues raised in this appeal, I note that both counsel had advanced detailed submissions addressing the factual and legal aspects of the dispute. I appreciate the efforts made. The Trust

Having considered the submissions of both parties, I find that the appeal essentially turns on a single central issue. The issue is whether the SCJ erred in finding that the Appellant had failed to prove that the sum of RM500,000.00 was entrusted to the Respondent for the purpose of making payments to suppliers for the project.

The Appellant submits that the four cheques amounting to RM500,000.00 were given and entrusted to the Respondent so that he could make payments to suppliers involved in the Cyberjaya project. The Appellant argues that the Respondent, being the project director, had dealt with suppliers and subcontractors and that the cheques were issued to him to facilitate such payments. It was further submitted that the SCJ failed to appreciate the evidence that there were occasions where cheques were given to the Respondent to pass on to subcontractors.

On that basis, the Appellant contends that the surrounding circumstances demonstrate that the Respondent had been entrusted with the money for the purpose of paying suppliers. S/N 4bng5m9lBE63uZIyxzMg

The Respondent disputes this and submits that the Appellant failed to prove the alleged entrustment. The Respondent argues that there were no contemporaneous documents showing that the four cheques were intended for payment to specific suppliers. In particular, the Respondent submits that there were no invoices, payment instructions or other records linking the cheques to any identified suppliers. The Respondent further points out that the cheques were issued without any named payee and that the Appellant’s own witness acknowledged that this was a one-off occurrence.

Having considered the evidence and submissions of both parties, I find no reason to disagree with the SCJ’s finding on this issue. The SCJ was correct in her finding that the burden lay on the Appellant to prove that the RM500,000.00 was entrusted to the Respondent for a specific purpose.

Where a party alleges that money is held on trust, the Court must be satisfied that the essential elements of a trust are present. In particular, there must be certainty of intention, certainty of subject matter and certainty of objects. Unless these three certainties are established, a trust cannot arise. In ESPL (M) Sdn Bhd v Radio & General Trading Co Sdn Bhd [2004] 2 MLRA 552, the Court of Appeal reaffirmed that the existence of these certainties is necessary before a trust may be recognised. The Court of Appeal in Ong Kong Beng & Anor v Ong Kong Leong & Ors [2021] MLRAU 262 further emphasised that a mere intention or vague arrangement is insufficient to create a trust unless the intention to create such a relationship is clearly manifested from the evidence. S/N 4bng5m9lBE63uZIyxzMg

In the present case, the evidence relied upon by the Appellant does not establish that the four cheques were tied to any identified suppliers or that they were impressed with a trust. The absence of documentary evidence linking the cheques to any suppliers was a matter the SCJ was entitled to consider. In my view, the SCJ was correct in finding that the Appellant had failed to prove that the money was entrusted to the Respondent. The Bonus

The Appellant also submits that the SCJ erred in accepting the Respondent’s explanation that the RM500,000.00 was paid to him as a bonus. The Appellant argues that the alleged bonus was unsupported by documentary evidence and that the amount was not reflected in the Respondent’s EA Form nor declared for income tax purposes. The Appellant further submits that the amount of RM500,000.00 is unreasonable when compared with the usual bonus payments within the company.

The Respondent submits that the Appellant’s argument proceeds on a mistaken premise. The Respondent contends that the Appellant bore the burden of proving entrustment and misuse of the funds. The Respondent argues that even if the Appellant seeks to challenge the explanation that the payment was a bonus, that alone does not establish that the money was entrusted to the Respondent for payment to suppliers.

I agree with the Respondent on this point. I note that a significant portion of the Appellant’s submission was directed at challenging S/N 4bng5m9lBE63uZIyxzMg the Respondent’s explanation that the RM500,000.00 was paid as a bonus. However, even if the Respondent’s explanation is questioned, that does not by itself establish the Appellant’s case. The Appellant still bears the burden of proving that the sum was entrusted to the Respondent for a specific purpose. The weakness of the Respondent’s explanation does not relieve the Appellant of that burden.

The legal burden remained on the Appellant to prove that the money was entrusted to the Respondent for a specific purpose and that the Respondent had misused the funds. It is trite that the party that asserts a fact bears the burden of proving it. In Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors [1995] 2 MLJ 770, the Federal Court affirmed that the burden of proof lies on the party asserting the existence of a fact. In cases involving an alleged trust, the claimant must first discharge the burden of proving the existence of the trust before any burden arises on the other party to rebut it. This principle was reiterated by the Court of Appeal in Liaw Hen Kyun & Ors v Ho Mui Fen [2016] 6 MLRA 502.

In the present case, the SCJ found that the Appellant had failed to discharge that burden. Having reviewed the evidence, I find no reason to interfere with that conclusion. Weight of the Evidence

Finally, I must consider whether the SCJ’s findings of fact were against the weight of the evidence to justify appellate intervention. S/N 4bng5m9lBE63uZIyxzMg

This was a case decided after a full trial, in which the SCJ had the advantage of hearing the witnesses and evaluating their evidence. The findings made by the SCJ were based on the evidence before the Court and were adequately explained in the Grounds of Judgment.

The Appellant has not demonstrated that the SCJ had misdirected herself in law or that the findings reached were plainly wrong. In essence, the appeal invites this Court to re-evaluate the evidence and substitute its own view of the facts. This is not the role of an appellate court. As stated by the Federal Court in Gan Yook Chin

(P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, an appellate court should not interfere with findings of fact unless it can be shown that the trial judge had plainly misapprehended the evidence or that the decision was plainly wrong. Conclusion

Having considered the appeal record, the Grounds of Judgment of the SCJ, and the submissions of both parties, I find no reason to interfere with the decision of the SCJ.

The SCJ had correctly identified the issues for determination, applied the proper standard of proof, and evaluated the evidence adduced at trial. She had correctly appreciated the evidence before her and had not misdirected herself in law. The Appellant failed to prove the existence of entrustment, fiduciary obligation, or breach of trust. S/N 4bng5m9lBE63uZIyxzMg

In the circumstances, this is not a case that warrants appellate intervention. Accordingly, the appeal was dismissed with costs of RM5,000.00 subject to the allocator. Dated this: 6th March 2026 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Representative: For the Appellant : Dinesh Nandrajog Messrs Nandrajog For the Respondent : Siti Nabilah binti Shamsudin Messrs HL Lee & Co. S/N 4bng5m9lBE63uZIyxzMg