Ng Chui Kin v Ng Chin Kum (Sebagai Wasi Harta Pusaka Ng Chin Hon @ Ng Chin Woon (WA-24NCvC-1630-05/2023)

(deceased)] In the matter of Section 68 of the Probate and Administration Act 1959 In the matter of Order 80 rule 2 and Order 92 rule 4 of the Rules of Court 2012 In the matter of Grant of Probate Kuala Lumpur High Court Originating Summons No. 32NCvC-502-05/2013 and Order 23/11/2024 17:50:53 WA-24NCvC-1630-05/2023 Kand. 88 S/N kJecnov/kUeKbCxeMvkr1Q Page 2 of 10 dated 26/6/2015 Kuala Lumpur High Court Writ No. 22NCvC-432- 09/2014 BETWEEN NG CHUI KIN (NRIC No.: 540721-06-5339) …PLAINTIFF NG CHIN KUM (NRIC No.: 530701-06-5391) [As the Executor of the Estate of NG CHIN HON @ NG CHIN WOON [NRIC No.: 310922-06-5091

(0920802)] …DEFENDANT GROUNDS OF JUDGMENT (Enclosure 36) Preliminary [1] In Enclosure 36, the defendant is applying to this court for an order that an expert from the Department of Chemistry, Ministry of Science, Technology and Innovation Malaysia, examine the plaintiff's impugned signatures to determine whether the affidavits allegedly signed by the plaintiff are forged. [2] According to the defendant, there appear to be discrepancies in the plaintiff's signatures in four (4) affidavits. It is, therefore, mandatory, S/N kJecnov/kUeKbCxeMvkr1Q Page 3 of 10 according to the defendant, to ensure that the plaintiff is the one who initiated this legal action, not someone else. An overview of the facts [3] Both the plaintiff and the defendant are brothers. [4] Their father, the late Ng Chin Hon @ Ng Chin Woon (hereinafter referred to as 'the deceased'), left behind a Will when he passed away. [5] The defendant is the sole executor of the estate. [6] The plaintiff is a beneficiary of the deceased's Will. [7] There is a complaint by the plaintiff that he has not received his share of the estate. [8] As a result, the plaintiff filed an Originating Summons on 3.5.2023 [Enclosure 1], in order to have the defendant distribute the estate in accordance with the Will of the deceased. Court’s analysis and findings [9] This application is made under Order 72 rule 18 and Order 92 rule 4 of the Rules of Court 2012 (ROC). S/N kJecnov/kUeKbCxeMvkr1Q Page 4 of 10 [10] According to Order 72 rule 18 of the ROC: “Application to Court (O. 72, r. 18)

Except where these Rules otherwise provide, any application to the Court in a probate cause or matter may be made by notice of application.” [11] As for Order 92 rule 4 of the ROC, it states: “Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.” [12] Getting back to the core issue before me, the defendant claims that he discovered apparent discrepancies in the plaintiff's signatures in the affidavits filed in court sometime in or around March 2024. [13] For comparison, the defendant asserts that he has exhibited the impugned affidavits and other original documents signed by the plaintiff. [14] There are four (4) affidavits in which the defendant challenges the plaintiff's impugned signatures: S/N kJecnov/kUeKbCxeMvkr1Q

The plaintiff’s Affidavit in Support affirmed by Ng Chui Kin on 27.4.2023 (Enclosure 2);

The plaintiff’s Affidavit in Reply affirmed by Ng Chui Kin on 27.7.2023 (Enclosure 8);

The plaintiff’s Affidavit in Reply (2) affirmed by Ng Chui Kin on 11.9.2023 (Enclosure 14); and

The plaintiff’s Affidavit in Reply affirmed by Ng Chui Kin on 13.10.2023 (Enclosure 17). [15] The first three affidavits stated above are related to Enclosure 1, which is still pending before this court, whereas the last affidavit was already relied upon by this court in an already disposed application for Enclosure 15 on 30.11.2023. In Enclosure 15, the defendant sought to use and rely upon a defective affidavit filed on behalf of the defendant, which was allowed by the court since the plaintiff had no objection to it. [16] According to the defendant, he exhibited the plaintiff's previously signed documents, where discrepancies are evident between the plaintiff's impugned signatures and the other documents signed by the plaintiff. Due to the apparent discrepancies, the defendant argues that it is reasonable for him to suspect that the impugned signatures on those affidavits are fake. In light of this, he applied to have the signatures examined by the Department of Chemistry. S/N kJecnov/kUeKbCxeMvkr1Q Page 6 of 10 [17] In conclusion, the defendant acknowledges that no reported case addresses the guiding principles of such an application. The defendant argues, however, that the court can still send the impugned signatures to the Department of Chemistry based on the facts and circumstances of the case, which ought to be the applicable test for this type of application. [18] As far as this matter is concerned, I have given it the utmost consideration. [19] In this regard, I find that Enclosure 36 does not have any merit. [20] As a starting point, I agree with the trite legal position that proving a signature can also be done through the self-admission of the person who wrote it. [21] In the case of Jahit bin Rahmat & Anor v Ng Kim Chooi & Ors [2024] 8 MLJ 550, the High Court observed that a person's signature or handwriting can be proven by various methods, including the admission by the person who wrote it. Her Ladyship Faizah Jamaludin J analysed the issue at p 579 as follows: “[63] Pursuant to ss 103 and 106 of the EA, D2 must prove that the signatures on the impugned plan and Form 9B were those of P1, the deceased and the other co-owners. [64] Augustine Paul FCJ in Evidence: Practice and Procedure (4th Ed, LexisNexis) at p 667, citing Sarkaria J’s judgment in State (Delhi Administration) v Pali Ram 1979 AIR 14, stated that similar to the Indian Evidence Act and English Law, our EA recognises two S/N kJecnov/kUeKbCxeMvkr1Q Page 7 of 10 direct methods of proving a person’s signature or handwriting, which are:

the admission of the person who wrote the signature or writing; or

the evidence of a witness who saw the person sign or write the document. [65] His Lordship went on to state that a person’s signature or handwriting may also be proved by:

by the evidence of a handwriting expert: s 45 of the EA;

by the evidence of a witness acquainted with the handwriting of the person with the handwriting of the person by whom it is supposed to have been written or signed: s 47 of the EA;

opinion formed by the court on the comparison made by itself: s 73 of the EA; and

by circumstantial evidence: per Abdoolcader FJ in Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232; [1983] CLJ Rep 101; [1983] 2 CLJ 10 (FC).” [22] Taking this legal viewpoint into account, I accept the plaintiff's admission to this effect as acknowledged by him in his affidavit in reply [Enclosure 43] in response to Enclosure 36, whose signature therein is not challenged by the defendant. S/N kJecnov/kUeKbCxeMvkr1Q Page 8 of 10 [23] Further, I find that there is no prejudice to any of the parties, particularly since if Enclosure 1 is allowed, the plaintiff's entitlement will be remitted solely to him. The result of this litigation will not go into the hands of anyone else. [24] The above is not all there is to it. [25] This application, which was made in April 2024, was also made late in the day. This is especially true since the alleged discrepancies in signatures existed from April 2023 to October 2023. [26] I held it as such because the plaintiff brought this action against the defendant on 3.5.2023. Following this, affidavits were exchanged and filed, which were exhausted by 11.9.2023. In fact, both parties had submitted written submissions as Enclosure 1 was initially scheduled for hearing on 13.5.2024. [27] Interestingly enough, the defendant did not contest or dispute the authenticity or validity of the plaintiff's signatures on his affidavits until he suddenly filed Enclosure 36 less than one month before the hearing for Enclosure 1. [28] In addition, I take note of the plaintiff's position that all those impugned affidavits were sworn testimony given under oath before a Commissioner for Oaths and in the presence of a solicitor. [29] Moreover, section 73 of the Evidence Act 1950 provides as follows: “Comparison of signature, writing or seal with others admitted or proved 73. S/N kJecnov/kUeKbCxeMvkr1Q

In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person.

This section applies also, with any necessary modifications, to finger impressions.” [30] Accordingly, even if I compare the impugned signatures with the other documents provided by the defendant in accordance with section 73 of the Evidence Act 1950, there are other factors that would lead to the slight difference in the impugned signatures. This is perfectly understandable. Specifically, the defendant made comparisons between the plaintiff's signatures in 2006, 2015 and 2016 and the signatures in 2023, which spanned at least seven (7) years. Adding credence to this issue, the current signatures were made by the plaintiff when he was nearly 70 years of age and had suffered from physical deterioration. [31] In addition, I am aware that the plaintiff is ready to testify before me regarding the authenticity and veracity of his signatures. S/N kJecnov/kUeKbCxeMvkr1Q Page 10 of 10 Nevertheless, I decided against this as I am convinced that there is no reason to dispute those signatures based on the above factors as well as the fact that the judgment applied by the plaintiff, if allowed by the Court, would still go to the plaintiff. The fact that he regularly attended the Court proceedings on this matter is also noteworthy. [32] Taking into account the above factors, I do not have any valid reason to doubt the authenticity of the signatures. Conclusion [33] Accordingly, Enclosure 36 is dismissed with costs of RM7,000.00 subject to allocatur. …………………………………………… (RAJA AHMAD MOHZANUDDIN SHAH) Judicial Commissioner High Court of Kuala Lumpur Dated 16th August 2024 For the Plaintiff - Messrs Mira Sham, Yong & Connie Ng Yong Hooi Chie & Tan Xiao Hui For the Defendant - Messrs Chan & Associates Lim Fang Say, Robin S/N kJecnov/kUeKbCxeMvkr1Q