Minddios Berhad v Ting Chin Siong (PA-12B-26-12/2022)

The Plaintiff company (P) can be described as a joint venture company. It was a joint venture between the Defendant (D) and the other shareholders of P.

P was incorporated to venture into the education business. The Defendant bought shares in P. P alleges that D promised to transfer to P some manner of his know-how or intellectual property in education programmes. D denies that such a promise was made.

P asserts that when D did not transfer the alleged intellectual property to P, P suffered a loss. P alleges that it spent more than RM411K in expenses to promote and market its business, because it relied on D’s promise.

P sued D for this money. The Sessions Court dismissed P’s claim. P appeals to the High Court. Should P’s appeal be allowed or dismissed? THE LAW ON APPELLATE INTERVENTION—THE “PLAINLY WRONG” TEST

It is vital, in this post-trial appeal, to review the law on appellate intervention. An appellate court should only interfere to disturb the findings of the first-instance court (here: the Sessions Court: SC), if the SC was “plainly wrong”.

Our Federal Court, in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC); [2020] 8 AMR 227; [2020] 10 CLJ 1; [2020] 6 MLRA 193, comprehensively expounded the genesis of the “plainly wrong” principle, through its development over the years, into its current meaning.

Ng Hoo Kui (supra) propounded that the primary “plainly wrong” principle includes the following not-exhaustive elaborative tenets, and I apply them here—

The SC’s judgment is “plainly wrong” if it was arrived at through “no or insufficient judicial appreciation of the evidence”: citing UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338 (FC); [2010] 9 CLJ 785; [2010] 2 MLRA 668; [2010] MLJU 2179.

This phrase of the “lack of judicial appreciation of the evidence” encompasses these three errors—

critical factual finding which has no basis in evidence (that is, findings not based on the evidence);

(ii) demonstrable misunderstanding of the relevant evidence (that is, misunderstanding the evidence);

(iii) demonstrable failure to consider the relevant evidence (that is, failure to consider the evidence). Page 4 of 19

The SC’s judgment is “plainly wrong” if it was arrived at through a “material error of law”: following Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600 (UKSC).

The SC’s decision is “plainly wrong” if it “could not reasonably be explained or justified”, making it a decision “which no reasonable judge could have reached”: citing Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal [2018] 2 MLJ 177 (FC); [2018] 1 AMR 517; [2018] 2 CLJ 641; [2018] 1 MLRA 263.

An appellate court is to evaluate whether the SC’s decision was “reasonably made”: paragraph 77 of Ng Hoo Kui (supra).

The “plainly wrong” principle, however, is not intended to be used as a catch-all method to replace the SC’s decision with my own (the appellate court’s) decision, on the facts of the case. The Federal Court in Ng Hoo Kui (supra) puts it this way— [76] What is pertinent is that, the ‘plainly wrong’ test is not intended to be used by an appellate court as a mean to substitute its own decision for that of the trial court on the facts. [78] Hence following this court’s ruling in Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was ‘plainly wrong’ where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if Page 5 of 19 the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge. [emphases added]

Put differently—even if an appellate court finds, on the evidence and the facts of a case, that the appellate court would have come to a different decision, the appellate court, when it is deciding on the appeal, should not bypass an analysis of the first-instance court’s reasoning.

I must consider the SC’s appreciation of the evidence and the SC’s application of the principles of law, in the context of these elaborative tenets, to see if the SC has committed a fundamental error.

Another case law authority that instructs me to be careful not to interfere with the judgment of the Court of first instance is MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA); [2016] 4 CLJ 665; [2016] 3 MLRA 1144; [2016] AMEJ 0743. The Court Of Appeal there, through the grounds of Justice Nallini Pathmanathan JCA (later FCJ), held— [14] The requirement for the trial judge to have come to a finding which was ‘plainly wrong’ before an appellate court may intervene is therefore well entrenched in our appellate philosophy and practice. In Henderson v Foxworth Investments Ltd and another, Lord Reed considered the meaning to be accorded to the phrase ‘plainly wrong’: …It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different Page 6 of 19 conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. [15] This is a point of some importance because it underscores the rationale that the appellate court is not at liberty to reverse or interfere in the finding of a trial judge even if the appellate court is clearly of the view that it would not have reached the conclusion the trial judge did on the evidence on record before it. It requires something more. The requisite or correct standard to be applied is that no reasonable judge, on the evidence on record, could have reached the conclusion of the trial judge. In other words, so long as the findings of the trial judge are plausible on the evidence on record, there is no room for interference merely on the grounds that the appellate court forms a different opinion on the same evidence. . [17]…A first instance judgment is open to challenge when it fails to address or wholly ignores material evidence or issues placed before it, or when bald findings of fact are made with no reasoning or evidence to substantiate such findings. Equally errors of law, a clear misunderstanding of relevant evidence and such clearly identifiable errors will all contribute towards a decision that would be considered to be ‘plainly wrong’. [emphases added] Summary of the principles 12. An appellate court will intervene in the decision of a lower court if the lower court is found to be “plainly wrong”.

These four identifiable, non-exhaustive errors by the trial judge are included in what amounts to the trial judge being “plainly wrong”—

a material error of law;

a critical finding of fact which has no basis in the evidence; Page 7 of 19

a demonstrable misunderstanding of relevant evidence; and

a demonstrable failure to consider the relevant evidence.

Errors (2), (3) and (4) above can also be called “a lack of judicial appreciation of the evidence”—the expression used in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (FC); [2004] 6 AMR 781; [2004] 4 CLJ 309; [2004] 2 MLRA

1.

Applying these elaborative tenets to this appeal, I do not find that the SC’s analysis of the evidence, and its conclusion on the evidence, to be “plainly wrong”; or fundamentally erroneous; or that the SC had not sufficiently appreciated the evidence; or that the SC’s decision was not reasonably made.

These are P’s pertinent pleaded facts—

D represented to P or P’s agent that he owns the “activation sound wave”, “SSD & SSR syllabus”, and “the related programme, technology, technique and activities”, which P referred to as “the IP”.

P was incorporated to market and operate “the IP programmes”.

D was given shares in P as the “consideration” for D’s “cash contribution” of RM51K, and “non-cash contribution” in the form of the transfer of the “ownership of the IP” to P. In other words, in exchange for shares in P, D has to pay RM51K and transfer the IP to P. Page 8 of 19

D failed to transfer the IP to P.

P could not run the programmes that use the IP because D failed to transfer the IP to P.

P relied on D’s representation that he is the owner of the IP and that he would transfer the IP to P. P spent RM411,156.11, as of May 2020, on marketing activities relating to the IP (Expenses).

P issued a letter dated 7.8.2019, demanding that D pays P the Expenses. D replied that he did not transfer the IP because P instructed him not to transfer the IP.

P responded by letter dated 25.10.2019. P denied giving such instructions. Instead, P demanded that D transfers the IP to P by 25.11.2019 (Deadline).

By a letter dated 15.7.2020, P informed D that it no longer wanted the IP, as the Deadline to transfer the IP had lapsed. P nevertheless claims from D the RM411,156.11.

These are D’s pertinent pleaded facts—

D denies P’s claim. P failed to plead the particulars of the alleged misrepresentation, including the date that D made the misrepresentation.

P failed to plead the particulars of the IP, whether it was a copyright or a trade mark.

P was incorporated on 12.3.2018, to provide educational material for self-improvement, child care, primary schools, and kindergartens.

D admits to having paid RM51K to P in April 2018, but puts P to strict proof that he had agreed to transfer any intellectual property to P. Page 9 of 19

At the meeting on 13.2.2019, P’s representative (Kedios Ooh) told D that the transfer of the IP is not important. P, in fact, waived the transfer of the IP from D to P.

P could still operate and continue with the programmes, particularly the programmes relating to primary school and kindergarten (without the IP).

P failed to specifically plead the IP that D owns.

It was irrational and unreasonable for P to incur the Expenses without first getting ownership of the relevant intellectual property that it says it needed to operate its business.

P never informed D about incurring the Expenses.

There was no “nexus” between the Expenses and D’s alleged misrepresentation.

P’s letter of demand dated 7.8.2019 demanded the amount of RM517,819.91 from D. P’s demand for this amount contradicts P’s claim for RM411,156.11. THE ISSUES BEFORE THE SESSIONS COURT

Reading the Grounds Of Judgment (GOJ), I glean that the issues before the SC were these issues—

Was there an agreement (contract) for D to transfer the IP to P?

Was D liable to P for the Expenses (which P had purportedly spent)? WAS THE SC PLAINLY WRONG IN FINDING THAT THERE WAS NO AGREEMENT (CONTRACT) FOR D TO TRANSFER THE IP TO P? Page 10 of 19

The SC found that there was no agreement (contract) for D to transfer the IP to P. I find that the SC was not plainly wrong in making this finding. These are my reasons. The SC correctly set out the parties’ respective pleaded cases 20. First—I find that in the SC’s GOJ, the SC has set out the parties’ pleaded cases correctly. I refer to the parties’ pleadings and find that the SC has, in the GOJ, set out P’s pleaded case and D’s pleaded case accurately.

In particular, the SC correctly found that D’s case is that he did not agree to transfer any specific intellectual property to P. D denied agreeing to transfer intellectual property to P and put P to strict proof.

The SC then applied the principle that it is P’s burden to prove, on the balance of probabilities, that there was an agreement for D to transfer the IP (as defined in P’s Statement Of Claim) to P. The burden is not on D to prove that there was no agreement for D to transfer the IP. It is not D’s duty to “fill up the gaps” in P’s case. In other words, it is not D’s duty to prove in the negative, what P could not positively prove to support P’s case—The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 4 MLJ 791 (CA); [2017] 6 CLJ 189; [2017] 3 MLRA 650, at paragraph [49]. The SC did not misappreciate the evidence 23. Second—on the evidence, this is what the SC analysed and correctly found. One—when cross-examined, P’s 1st witness: Page 11 of 19 Ooh @ Woo Chin Teck (PW1), who is P’s director and shareholder, testified that—

he had no personal knowledge about the IP, which was the subject of this suit;

he was unsure whether there was a document that proved that D promised to transfer the IP to P;

he was unsure whether there was any “proof” given to P’s board of directors that shows that D had agreed to transfer the IP to P;

he was unable to produce any document that shows that D had represented that D would transfer the IP to P;

he conceded that P should have started its marketing activities (which incurred the Expenses) after it had obtained the IP.

Two—when cross-examined, P’s 3rd witness: Lim Choy Ling (PW3), who is also P’s director, testified that she agreed that D was responsible for developing a new syllabus for P. This evidence (and fact) corresponded with D’s testimony (in his witness statement) that as P’s Chief Learning Officer, D’s role was “to develop syllabus” for P.

Three—when cross-examined, P’s 5th witness: Ooh Chin Hooi (PW5), who was P’s previous solicitor, admitted that—

there was no signed agreement that provided that D would transfer the IP to P; Page 12 of 19

there was no documentary evidence to describe the type of intellectual property that D was allegedly obligated to transfer to P.

These facts are reinforced by D’s evidence that he never signed any agreement to transfer any intellectual property to P, nor was there a period (a deadline) for him to transfer any intellectual property to P.

P relies on several letters issued by its solicitors—particularly the letters dated 7.8.2019, 25.10.2019, 5.12.2019—to assert that D agreed and hence had the obligation to transfer the IP to P. But D’s reply letter dated 11.10.2019, denies that he had failed to transfer the IP, and asserts that “Kedios Ooh, whom [D] had been dealing with at all material times, had instructed [D] not to transfer the said IP”, as well as “Kedios Ooh was at all material times consistent with not wanting to effect the said transfer [of the IP]” There was no certainty or specificity about the IP

Third—the evidence discloses that there was little to no certainty or specificity about the IP (which P asserts D must transfer to P). Put differently, there was no clear description of the IP. As there was no certainty or specificity of the IP that P asserts D must transfer to P, there was no certainty in this alleged term in the agreement that P pleaded.

On the contrary, the evidence produced by several of P’s witnesses reinforces the fact that the there was no certainty in the IP which P asserts D was obligated to transfer to P. PW3, PW5 and P’s 4th Page 13 of 19 witness: Ooh Ewe Hock (PW4), another director of P, gave different answers as to what the IP is.

PW3 said that the IP was a trade mark. PW5 said that the IP refers to copyright. And PW5 said that the IP included a trade mark and a patent.

Certainty or specificity in the terms of an agreement (contract) is a necessary and pertinent ingredient in a contract. In this suit, there was no written contract between P and D. However, P argues that there was an oral contract for D to transfer the IP to P.

I find this oral contract argument untenable. As there was little or no certainty or specificity about the IP in writing, there would be even less certainty or specificity in the terms of the alleged oral contract. The evidence just does not favour P. P has failed to prove their case. The SC correctly applies sections 101, 102 and 103 of the Evidence Act 1950 33. Fourth—sections 101, 102 and 103 of the Evidence Act 1950 can be described as variations of the principle that the person who asserts a fact must prove that fact. That person has the burden of proving that fact.

Section 101 provides that since P seeks judgment against D, and P’s claim depends on certain facts (such as that there was a contract for D to transfer some intellectual property to P)—P must prove those facts to succeed in the claim.

The pertinent portions of section 101 are set out here for reference (with my emphases added)— Section 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.

(a)…

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts.

Section 102 provides that the burden of proof in this suit is on the party who would fail if no evidence is produced by both sides. If both P and D here produce no evidence, P would obviously fail. There would be no contract (written or oral) to obligate D to transfer some manner of intellectual property to P. There would be no contract to obligate D to pay P the amount of the Expenses.

The pertinent portions of section 102 are set out here for reference (with my emphases added)— Section 102. 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.

A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to his possession. Page 15 of 19 Therefore the burden of proof is on A.

(b)…

Section 103 provides that if P relies on a fact (that D promised to transfer the IP), and P wants the court to believe that the fact exists, then the burden of proving that fact lies on P.

The pertinent portions of section 103 are set out here for reference (with my emphases added)— Section 103. Burden of proof as to particular fact. 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.

…

B wishes the court to believe that at the time in question he was elsewhere. He must prove it. WAS THE SC PLAINLY WRONG IN FINDING THAT D IS NOT LIABLE TO P FOR THE EXPENSES?

The SC found that D is not liable to P for the Expenses of RM411,156.11. I similarly find that the SC was not plainly wrong in making this finding. My reasons are as follows. The SC found contradictions in P’s evidence about the Expenses 41. First—in its GOJ, the SC found that there were contradictions in P’s evidence about the Expenses. The SC found that PW5 testified that the Expenses were necessary for marketing purposes, without waiting for D to transfer the IP to P.

But, contrary to PW5’s testimony, PW1, in cross-examination, admitted that P should have waited until it had obtained the IP before it incurred the Expenses.

Such contradictions in P’s evidence led the SC to find that P had committed inconsistent or contradicting conduct in the context of incurring the Expenses. There was no agreement for D to pay the Expenses to P

Second—in cross-examination, PW2 admitted that there was no agreement between P and D that made D liable to P for marketing costs, which was what the Expenses were. The SC was not plainly wrong to find that there was no agreement that obligated D to pay P the Expenses. It was a conclusion that a reasonable Judge would have made.

In other words, the SC was not wrong to find that P did not have the right (under any contract with D) to spend the RM411,156.11 Expenses, and then hold D accountable for it. Certain items in the Expenses were not marketing costs 46. Third—in cross-examination, PW2 agreed that these items of expenditure, which were part of the Expenses, were in fact not marketing costs: salary, office rental, company secretary fees, the cost of incorporating other entities, and tax.

I find that the SC has not made a judgment that no reasonable Judge would have made, and thus is not plainly wrong. Page 17 of 19

I find that SC did not commit a fundamental error of law, or wrongly evaluated the evidence, or made a decision that no reasonable court would have made. I find that the SCJ was not plainly wrong.

I hence dismiss P’s appeal with costs of RM7K to be paid by P to D. Costs are subject to the allocatur. Dated: 19 August 2025 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA GEORGETOWN PULAU PINANG Solicitors for the Appellant/Plaintiff : Simon Tan Messrs. Aswar, Simon & Azhar (Georgetown, Pulau Pinang) Page 18 of 19 Solicitors for the Respondent/Defendant : Lee Wing Hong Messrs. Marcus Tan & Co. (Kuala Lumpur) Legislation referred to:

Section 101 of the Evidence Act 1950.

Section 102 of the Evidence Act 1950.

Section 103 of the Evidence Act 1950. Cases referred to:

Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67 (FC); [2020] 8 AMR 227; [2020] 10 CLJ 1; [2020] 6 MLRA 193.

UEM Group Bhd (previously known as United Engineers (M) Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2011] 1 AMCR 338 (FC); [2010] 9 CLJ 785; [2010] 2 MLRA 668; [2010] MLJU 2179.

Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600

Tengku Dato’ Ibrahim Petra bin Tengku Indra Petra v Petra Perdana Bhd & Anor Appeal [2018] 2 MLJ 177 (FC); [2018] 1 AMR 517; [2018] 2 CLJ 641; [2018] 1 MLRA 263.

MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 (CA); [2016] 4 CLJ 665; [2016] 3 MLRA 1144; [2016] AMEJ 0743.

Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (FC); [2004] 6 AMR 781; [2004] 4 CLJ 309; [2004]

The Carbon Company Sdn Bhd v Ng Lee Hoon [2017] 4 MLJ 791 (CA); [2017] 6 CLJ 189; [2017] 3 MLRA 650.