Ng Kian Tek v Ng Hui Joo (MC-A72-5-04/2025)

This judgment concerns the Plaintiff’s claim against the Defendant, where in November 2021, the Defendant took three gold bars weighing 50 grams each from the room of the Plaintiff’s late mother and sold them to Poh Kong Jewellers without the Plaintiff’s knowledge and/or consent. At the time of the claim, the gold was valued at RM470.00 per gram, amounting to a total of RM70,500.00. Further, in September 2021, the Defendant also took RM5,629.21 from the funeral donation collection contributed by the visitors.

The Plaintiff called three witnesses before closing their case on 12.8.2025. Thereafter, the trial proceeded with the Defendant’s case, where one witness wherein the Defendant herself testified as the sole witness on 26.8.2025. The witnesses were as follows: Plaintiff’s case a) PW1: Ms. Kiew Pei Ei, account clerk; b) PW2: the Plaintiff himself; c) PW3: Ms. Ng Mee Kuan, the Plaintiff’s sister; and Defendant’s case d) DW1: the Defendant herself.

After a full trial, this Court dismissed the Plaintiff’s claim with costs of RM6,000.00. S/N Bp1kWasncke/z9BkHwedFA

The Plaintiff and the Defendant are family members, where the Plaintiff is the younger brother of the Defendant’s late husband, Mr. Ng Kean Huat (“the Deceased”). In compliance with my direction given to both counsels at the commencement of this trial and as complied with by the Defendant’s counsel only, a copy of the family relationship chart (“family tree”) of the parties is attached hereto as Annexure A, enclosed behind these grounds.

Between 16.7.2012 and 27.12.2021, the Plaintiff and his sisters, namely Ms. Ng Mee Kuan and Ms. Ng Bee Kian, were business partners in Kean Ann Drinking Water Refill Station. The Deceased was also one of the partners in the said Drinking Water business from 16.7.2012 until his demise on 13.4.2020. The Defendant subsequently replaced her late husband as a partner in the said Drinking Water business beginning 18.5.2020.

In September 2021, the Plaintiff’s late mother, Madam Lee Vin Kuan, passed away. The funeral donation fund collected from visitors amounted to RM30,960.00. On or about 25.11.2021, the Defendant sold to Poh Kong Jewellers one (1) gold bar weighing 100 grams for RM22,960.00, at the rate of RM229.60 per gram. On 6.12.2021, the Defendant settled a part payment through the Loan Account No. 2063418734 by paying RM28,589.21. This sum S/N Bp1kWasncke/z9BkHwedFA comprised the proceeds from the sale of the said gold bar amounting to RM22,960.00 and an additional RM5,629.21, which the Defendant had taken from the funeral donation fund of the Plaintiff’s late mother.

The Plaintiff’s claim against the Defendant herein is that the Defendant had taken three gold bars, each weighing 50 grams and collectively valued at RM70,500.00, calculated at RM470.00 per gram, as well as the sum of RM5,629.21 from the funeral donation fund of the Plaintiff’s late mother.

In the event, the Defendant’s counsel had filed Enclosure 22 seeking consolidation of proceedings between the two Magistrates’ Court cases, namely A72-7-04/2025 and the present case A72-5- 04/2025, for them to be heard together in the Sessions Court Case No. MC-A52-1-04/2025. This was because, in the Defendant’s defence, reference was made to the Sessions Court case as it concerned the Drinking Water business, which had allegedly obtained a loan from Public Bank Berhad under the name of the Deceased via the said account number 2063418734 (“the Loan Account”).

The said Loan Account is also the subject matter of the case No. MC-A72-7-04/2025, in which the Plaintiff sued the Defendant for making part payment of the said Loan Account by issuing two S/N Bp1kWasncke/z9BkHwedFA cheques for RM63,000.00 from the business partnership account of Kian Ann Poultry Farm. Nevertheless, the said consolidation application was dismissed by the learned Sessions Court Judge on 4.8.2025.

The Plaintiff contended that following the death of his late mother in November 2021, the Defendant had, without consent, entered the private room of the Plaintiff’s late mother and took three gold bars, each weighing 50 grams, without the knowledge and/or approval of the Plaintiff. The Defendant subsequently sold the said gold bars to Poh Kong Jewellers.

Further, the Plaintiff submitted that during the funeral ceremony of his late mother in September 2021, the Defendant had taken money amounting to RM5,629.21 from the funeral donation collection fund, which comprised contributions from visitors who came to pay their respects to the Defendant’s late mother-in-law and/or the Plaintiff’s late mother. The said donation fund, being contributions from members of the public, was intended to cover the funeral expenses of the Plaintiff’s late mother. However, the Defendant took the sum without handing it over to the Plaintiff and/or the Plaintiff’s family members. The Plaintiff alleged that the Defendant had acted on her own accord, without the consent and/or approval of the Plaintiff and/or his family members.

After all the above incidents and following the burial of the Plaintiff’s late mother, the Defendant absconded without taking any responsibility to repay the said amounts. To date, the Defendant remains uncontactable. The Defendant also has no surviving heirs with her late husband (the Deceased).

The Defendant contended that she had taken one gold bar weighing 100 grams and sold it to Poh Kong Jewellers on 25.11.2021 for RM22,960.00, at the rate of RM229.60 per gram. The proceeds from the sale amounting to RM22,960.00, together with RM5,629.21 taken from the funeral donation collection fund of her late mother-in-law, were used to settle a loan obtained by the Defendant’s late husband, Mr. Ng Kean Huat (the Deceased), on 6.12.2021. The said loan was taken for the business purposes of Kean Ann Drinking Water Refill Station, in which the Plaintiff, his sisters Ms. Ng Mee Kuan and Ms. Ng Mee Kian, as well as the Defendant’s late husband (the Deceased) were the partners of the same business.

The Defendant further submitted that the loan had previously been serviced by the Plaintiff between 2.1.2021 and 4.5.2021 through monthly instalments of RM1,000.00, and subsequently by the said business through instalments of the same amount between

1.6.2021 and 1.11.2021. The Defendant emphasised that the Plaintiff and his family members were aware of the existence of the loan and the manner in which it was repaid, and that they had enjoyed and derived benefit from the proceeds of the sale of the said gold bar and the funeral donation collection fund. Accordingly, the Defendant prays that the Plaintiff’s claims be dismissed.

This Court pens down its decision by progressively addressing the following issues raised in the current case. Upon examining the common issues to be tried filed under Enclosure 14, they may be summarised as follows: a) First Issue: whether the Plaintiff’s claim discloses any cause of action; b) Second Issue: whether the Plaintiff is estopped from commencing this action due to inordinate delay of 3 years in instituting the current claim; c) Third Issue: whether the Defendant had sold the three gold bars (each weighing 50 grams) to Poh Kong Jewellers without the knowledge and/or approval of the Plaintiff; d) Fourth Issue: whether the Defendant had taken money amounting to RM5,629.21 from the funeral donation collection fund of the Plaintiff’s late mother without the consent and/or approval of the Plaintiff and/or the Plaintiff’s family members; and S/N Bp1kWasncke/z9BkHwedFA e) Fifth Issue: whether the Plaintiff had suffered any loss or damage. F. EVALUATION AND FINDINGS BY THIS COURT First Issue 16. The first issue is whether the Plaintiff’s claim shows any cause of action. This Court first looks at the pleading issue raised by the Defendant’s counsel, who argued that the Plaintiff has failed, refused, or neglected to state any proper cause of action against the Defendant for the gold bars and the funeral donation collection fund that were said to be taken by the Defendant without authorization from the Plaintiff.

From the Plaintiff’s pleadings, the Plaintiff only stated that the Defendant took three gold bars weighing 50 grams each and amount of RM5,629.21 from the funeral fund of the Plaintiff’s late mother. It was argued by the Defendant that the Plaintiff did not plead what legal basis or cause of action upon which the current claim is founded.

In the same vein, the Defendant’s counsel argued that the Plaintiff’s claim looks like it is based on the tort of conversion. However, the Plaintiff never stated in the pleadings that the claim is for conversion expressly. Because of this, the Defendant said the pleadings are irregular and, for this reason alone, the Plaintiff’s S/N Bp1kWasncke/z9BkHwedFA claim should be dismissed. The Plaintiff also failed to reply properly to this issue raised by the Defendant. In the circumstance, the Defendant submitted that, in both the Statement of Claim and Reply to Defence, the Plaintiff did not state who had the legal ownership or possession of the gold bars or the funeral fund that were allegedly taken.

The Defendant referred to the case of Joseph Paulus Lantip v Tnio Chee Chang and Another Appeal [2020] 5 MLJ 708 (Court of Appeal). In that case of Joseph Paulus Lantip (supra), the Court of Appeal decided that the Plaintiff there only had a contractual right to extract commercial timber from the lands, and never about the sale of the said lands. It was held that the Plaintiff could only sue for breach of contract, not for conversion, as it did not assert ownership over the said lands or even the timber on such lands. The Court of Appeal said that a decision based on an issue not raised in the pleadings could not stand, and would not consider such a claim in contract since the Plaintiff has elected to pursue a claim in the tort of conversion.

This means that the issue which was not raised by the parties in their pleadings is liable to be set aside, as confirmed in Iftikar Ahmed Khan v Perwira Affin Bank Bhd [2018] 1 CLJ 415 (Federal Court). In short, parties are bound by their pleadings. It is the duty of this Court to remind the Plaintiff’s counsel in the current case to S/N Bp1kWasncke/z9BkHwedFA exercise care and caution when drafting pleadings. Still, in the interest of justice, this Court believes pleadings should be read in a practical and flexible way, not too rigid one. The purpose of the law is to make sure justice is done, but not to trap parties in technicalities. This principle is supported by MTrustee Berhad v Tashima Development Sdn Bhd [2025] MLRHU 246 (High Court).

Looking at the current case, this Court found that even though the Plaintiff did not use the word “conversion”, the requirement of the pleading rules can still be met if the material facts that show conversion are pleaded. It is better to use the exact term, but not using it is not fatal if the material facts are there. Bearing in mind that, the purpose of modern pleadings is to avoid surprise and to let the case be heard fairly, as explained in Guan Heng Construction Works (Suing as a Firm) v IMM White Button Mushroom (M) Sdn Bhd and Another Suit [2013] 10 MLJ 465 (High Court); Boustead Trading Sdn Bhd v Arab-Malaysian Merchant Bank Berhad [1995] 3 MLJ 331 (Federal Court).

Here, this Court found that even though the Plaintiff did not expressly say the claim was for conversion, the material facts pleaded do show that the Defendant dealt with the Plaintiff ’s gold bars and/or funeral donation fund in a way that went against the Plaintiff’s rights, and did so without the Plaintiff’s knowledge or consent, as claimed by the Plaintiff. Because of that, this Court did S/N Bp1kWasncke/z9BkHwedFA not agree with the Defendant’s counsel on this part. However, the Plaintiff’s counsel is reminded to be more careful in future and clearly state the intended cause of action in the pleadings. Second Issue 23. Turning now to the second issue which is, whether the Plaintiff is estopped from commencing this case due to inordinate delay of more than 3 years in instituting the current claim against the Defendant. Counsel for the Defendant argued that it is an undeniable fact that the Plaintiff took more than three years to file the current action against the Defendant. The Defendant pointed out that whether (a) from the date the Defendant allegedly took money from the funeral donation fund of the Plaintiff’s late mother in September 2021; or (b) from the date the Defendant allegedly took the three gold bars in November 2021; or (c) from the date the Plaintiff was informed by PW1 around December 2021, that the current action was only filed more than three years later, in or around April 2025.

Such conduct, according to the Defendant, showed that the Plaintiff had no real intention to recover the gold bars and/or the funeral money allegedly taken by the Defendant. During the trial, the Defendant’s counsel put to PW2 (the Plaintiff himself) that the Plaintiff had never asked for the return of the gold bars. PW2 replied that he had instructed his former lawyer, one JJ Lee, to S/N Bp1kWasncke/z9BkHwedFA take the necessary action, but that lawyer failed to do so. PW2’s answer, however, only related to the gold bars and he did not offer any explanation regarding the delay in filing the claim for the funeral donation collection fund of his late mother.

Considering the conduct of the Plaintiff and the circumstances of the current case, I am of the view that there was not only an inordinate delay but also an inexcusable delay on the Plaintiff’s part in filing the conversion claim. The Plaintiff failed to provide any satisfactory explanation for the delay. Instead, the Plaintiff insisted that there was no delay on his part because his former lawyer had failed to file the action earlier. However, the Plaintiff failed to produce any documentary evidence or proof showing that instructions had been given to his previous lawyer to file the claim at the earliest opportunity.

In the considered view of this Court, as trade forms the backbone of a modern economy, the law must strike a fair balance between protecting property rights and maintaining efficient commercial market activity. In the current case, it was strange that the Plaintiff did not pursue recovery of the gold bars very soon but until more than three years later, particularly when the Plaintiff now claims the gold bars at an increased market value per gram. It is also illogical for the Plaintiff to suggest that the funeral money, which was intended for his late mother’s funeral expenses, could remain S/N Bp1kWasncke/z9BkHwedFA untouched for more than three years before being used for that very purpose. This long period of inactivity is inconsistent with the conduct expected of a claimant who alleges interference with or conversion of his goods commercially, as guided by OSK Trustees Bhd & Anor v Metroplex Holdings Sdn Bhd [2019] MLJU 76; [2020] 3 MLJ 358 (Court of Appeal). If the Plaintiff’s conduct were to be condoned, it would frustrate the objective of ensuring a just and economical disposal of litigation.

To this Court, it is clear that the Plaintiff’s claim is an afterthought. The Plaintiff should therefore be estopped from asserting any right or claim over the gold bars and the portion of the funeral donation collection fund. Accordingly, this Court found that the Plaintiff’s claim for conversion must fail, as the goods are deemed to have been abandoned after being left unclaimed for more than three years. This Court agrees with the Defendant’s argument on this point and will now proceed to consider the law on tort of conversion and next issue. Law on Tort of Conversion 28. Before addressing the issue of conversion, it is a trite principle of law that conversion exists in three forms. The first form consists of a positive wrongful act of dealing with goods in a manner inconsistent with the rights of the owner, coupled with an intention, in so doing, to deny the owner’s rights or to assert a right S/N Bp1kWasncke/z9BkHwedFA inconsistent with them. This inconsistency with the owner’s rights forms the basis of the action. It is not necessary for the person sued to have knowledge that the goods belong to someone else, nor is it required that there be a deliberate intention to challenge the true owner’s rights. The second form of conversion arises where the defendant wrongfully detains the plaintiff’s goods. The usual method of establishing wrongful detention is to show that the plaintiff made a demand for the return of the goods and that the defendant failed or refused to comply with that demand within a reasonable time. Whilst, the third form of conversion occurs when the defendant wrongfully disposes of the goods. In simpler terms, this includes situations where a bailee allows the loss or destruction of goods in breach of his duty. Bailment arises when one person (bailee) is voluntarily in possession of goods belonging to another person (bailor), for example, in case of Foong Chee Chong v Inspector Mohd Nasir Shamsuddin [1998] 6 MLJ 421; [1998] 4 CLJ 309 (HC), the police, who had custody of jewellery that was lost, acted as bailees of the items. When they informed the claimant that the jewellery was missing and were unable to return it upon demand, it amounted to conversion (OSK Trustees Bhd & Anors[supra]).

It must be appreciated that although the rules governing the tort of conversion are complex, they are nevertheless clear and consistent when an action in conversion lies only where it can be S/N Bp1kWasncke/z9BkHwedFA proven that the claimant had possession, or a right to immediate possession, of the goods in question. Conversion arises where the defendant deals with the plaintiff’s goods in a manner inconsistent with the plaintiff’s rights, takes possession intending to assert rights over them, abuses goods lawfully in his possession, or unconditionally refuses to return the plaintiff’s goods upon demand [OSK Trustees Bhd & Anors (supra); Syed Ahmad SA Alsagoff, Law of Torts in Malaysia (LexisNexis, 2017)]. Hence, in my considered view, this is a claim in conversion based on the material facts pleaded by the Plaintiff.

Before proceeding further, it is pertinent to note that based on Zung Zang Wood Products Sdn Bhd & Ors v Kwan Chee Hang Sdn Bhd & Ors [2014] 2 MLJ 799 (Federal Court) and Zurich Takaful Malaysia Berhad v Mohd Haris bin Abd Ghani [2018] MLJU 259 (High Court), it is incumbent upon the Plaintiff to prove the following elements to establish conversion: i. that the Defendant’s conduct was inconsistent with the rights of the owner (or person entitled to possession); ii. that the Defendant’s conduct was deliberate and not accidental; and iii. that the Defendant’s conduct amounted to such an extensive encroachment upon the owner’s rights as to exclude the owner from the possession of the goods.

It must further be emphasized that conversion is a tort of strict liability. This means that, in the view of this Court, a defence of mistake or inadvertence is no defence to an action in conversion. It will be the same even to deal with another person’s goods under an honest or even reasonable mistake as to ownership still amounts to conversion [Syed Ahmad SA Alsagoff, Law of Torts in Malaysia (LexisNexis, 2017)]. At common law, one owes a duty to his neighbour who is the owner of personal property not to take, sell, or exercise control over it. Anyone who usurps another’s ownership rights is strictly liable, even if he honestly believed he had the right to do so or did not know to whom the property belonged. This duty is absolute and the person acts at his own peril (Daniel S/O D William v Luhat Wan & Ors [1990] 2 MLJ 48, High Court).

To try the principle, a defendant’s liability in conversion will be established irrespective of whether he knew or had reason to know that he was asserting rights belonging to the plaintiff (Coolrich Engineering (M) Sdn Bhd & Anor v Protection Rigging Access Services Sdn Bhd & Ors [2018] MLJU 2006, High Court). Accordingly, this Court now proceeds to examine whether the Plaintiff of the current case has proven the elements of the cause of action in conversion against the Defendant. S/N Bp1kWasncke/z9BkHwedFA Third Issue 33. The third issue concerns whether the Defendant had sold the three gold bars (each weighing 50 grams) to Poh Kong Jewellers without the knowledge and/or approval of the Plaintiff.

The Plaintiff contended that on or about 23.11.2021, the Defendant had shown to the Plaintiff a sales receipt numbered 4707 from Poh Kong Jewellers and admitted that she had sold the said gold bar, where both the taking and the sale of the gold were done without the Plaintiff’s consent and/or knowledge. According to the Plaintiff, the Defendant (DW1) never denied having taken the gold bar, but the issues in dispute between the parties were whether DW1 had obtained full approval from the Plaintiff’s family members to sell the gold bar and to use the proceeds thereof for her own purpose.

Meanwhile, PW2 (the Plaintiff himself) in his testimony confirmed that he never gave any approval to DW1 to take or sell the said gold bars. PW3 (the Plaintiff’s sister) also confirmed in her testimony that she never gave any approval to DW1 to take and sell the gold bar.

Referring to page 20, Bundle B, it only showed the total proceeds of sale amounting to RM22,960.00, which were received by the Defendant through her own Public Bank Berhad account; and page 34, Bundle B, where the Defendant confirmed that it was a S/N Bp1kWasncke/z9BkHwedFA Customer Declaration Form, in which every person who wishes to sell gold must declare that the goods are not stolen, not from a robbery, or otherwise unlawfully obtained in such a declaration form.

However, the Plaintiff’s counsel argued that there was no gold weight specification stated in the sales receipt (page 20, Bundle B), and that the sales receipt was not referred to in the Declaration Form (page 34, Bundle B). Therefore, according to the Plaintiff, the two documents did not relate to the same transaction, given the break in the chain of evidence linking them, even though both bore the same date.

In this situation, as raised by learned counsel for the Plaintiff, a Notice to Produce Documents under Order 24 rule 10 of the Rules of Court 2012 had been served on the Defendant’s counsel requiring the Defendant to produce the gold sales receipt issued by Poh Kong Jewellers on 25.11.2021, but no response and/or reply was ever furnished.

This Court has considered this notice argument advanced by the Plaintiff’s counsel. Nonetheless, page 20 of the Bundle B, which was admitted by PW2 during the trial, is sufficient to constitute a receipt evidencing the sale of the gold bar (cross-referred to the Notes of Proceedings, prepared at the initiative of the Defendant’s S/N Bp1kWasncke/z9BkHwedFA counsel at PDF page 32 of Encl. 42), which had already been made known to the Plaintiff for inspection.

From the evidence presented and the facts above, I agree with the Defendant that throughout this action, the Plaintiff has only produced one receipt showing that the Defendant sold the gold bar to Poh Kong Jewellers for RM22,960.00. Therefore, the Plaintiff has failed in producing evidence to demonstrate that the Defendant made away with three 50-gram gold bars. The Plaintiff adduced no evidence whatsoever to prove the allegation that the Defendant took and sold three gold bars of each 50 grams worth to the Poh Kong Jewellers.

This Court found that none of the Plaintiff’s witnesses could explain or provide a clear description of the alleged gold bars said to have been taken by the Defendant. The Plaintiff also failed to produce any evidence showing that the alleged gold bars were valued at RM470 per gram, as claimed. Instead, during the cross-examination of PW2, the Plaintiff himself conceded that there was no evidence to show that the gold bars allegedly taken by the Defendant were worth RM470 per gram.

The note tendered by the Plaintiff through PW1 likewise did not indicate that the Defendant had taken three 50-gram gold bars. In addition, this Court found that the Declaration Form produced by S/N Bp1kWasncke/z9BkHwedFA the Defendant showed that the Defendant had only sold one gold bar weighing 100 grams to Poh Kong Jewellers. The Court further observed that the contents of the Declaration Form was consistent with the contents of the sales receipt produced by the Defendant, where the date and amount stated are identical, and thus, there was no break in the chain of evidence.

It was pleaded by the Plaintiff that there were three 50-gram gold bars allegedly taken by the Defendant, and that the Defendant had sold two of them of each 50 grams (totalling 100 grams) to Poh Kong Jewellers pursuant to the sales receipt (page 20, Bundle B), while the remaining 50 grams remained in her possession. However, the Declaration Form and the said receipt sufficiently showed that only one gold bar weighing 100 grams was sold, indicating a mistaken identity of the gold bar items as claimed by the Plaintiff, strengthened the fact that the Plaintiff did not know how many pieces of gold bars there were, nor the actual weight of each gold bar.

The said mistake of the number and weight of the gold bars clearly demonstrated that the Plaintiff was not the person in immediate or actual possession of the said gold bars. Hence, the Defendant’s conduct did not amount to an encroachment upon the Plaintiff’s rights. It is therefore untenable for the Plaintiff to argue this point, as he was not excluded from the use or possession of the gold S/N Bp1kWasncke/z9BkHwedFA bars, nor were the gold bars ever properly established as part of the estate of his late mother, even though he claimed the gold bars were belonged to the late mother.

This further raises another point successfully argued by the Defendant’s counsel that the Plaintiff’s capacity in this action was purely personal, and that he had never pleaded that he was the administrator of his late mother’s estate. Therefore, if the gold bars belonged to the late mother, the Plaintiff, in his personal capacity, had no right or locus standi to claim against the Defendant on behalf of the estate. In fact, at the material time of the alleged conversion, the Plaintiff was not the person entitled to sue for conversion, having not been vested with any right of custody over the gold bars allegedly converted. Accordingly, this Court found that the Plaintiff has failed to prove his cause of action in conversion against the Defendant in respect of the gold bars claim. Fourth Issue 46. The fourth issue concerns whether the Defendant had taken money amounting to RM5,629.21 from the funeral donation collection fund of the Plaintiff’s late mother without the consent and/or approval of the Plaintiff and/or the Plaintiff’s family members.

The Plaintiff argued that PW2 and PW3, being the children of their late mother, had entrusted the Defendant only with the S/N Bp1kWasncke/z9BkHwedFA responsibility to safeguard the funeral donation collection fund and not to use the donated fund for her personal purposes. The Plaintiff further contended that the Defendant had failed to prove that she obtained approval from the Plaintiff and/or other family members to use the funeral fund and/or any remaining balance from the funeral fund for her own use.

PW2 (the Plaintiff himself) confirmed in his testimony that the Defendant was only entrusted to take care of the funeral donation collection fund. The funeral donation record book for the funeral of the Plaintiff’s late mother can be referred to at pages 7–19, Bundle B. PW1, in his testimony, also confirmed that the Defendant had taken the funeral donation fund belonging to the Plaintiff’s late mother based on notes written by PW1, which were derived from information provided by the Defendant (refer to pages 39–40, Bundle B).

It is worth noting that, the funeral donation record produced by the Plaintiff merely showed that the total amount collected was RM30,960.00. The record did not show that the Defendant had held, received, or taken any sum of RM5,629.21 from the funeral donation collection fund of the Plaintiff’s late mother.

In strict terms, the Defendant’s counsel argued that no evidence had been produced by the Plaintiff or any of his witnesses to show S/N Bp1kWasncke/z9BkHwedFA that the Defendant had taken RM5,629.21 from the funeral donation collection fund, whether in cash or by online transfer into her bank account. If the note produced through PW1 were to be considered as evidence that the Defendant took RM5,629.21 from the said funeral fund, such note, on the contrary, showed that the funeral fund was used by the Defendant to settle the debt of the Drinking Water business, which will be discussed under the fifth issue.

In this regard, the central question is whether the Defendant’s conduct in relation to the portion of the funeral donation collection fund of her mother-in-law / the Plaintiff’s late mother amounted to a conversion. In the considered view of this Court, after evaluating the evidence and submissions of both parties, it is clear that the Plaintiff never pleaded who had ownership or possession rights over the funeral donation collection fund of his late mother. Furthermore, the Plaintiff failed to produce any evidence showing that he personally had ownership or possessory rights over the said funeral fund.

The glaring evidence supports the Defendant’s submission that the Plaintiff’s capacity in this action is purely personal, and he has never pleaded that he is the administrator of his late mother’s estate. Accordingly, if the funeral donation collection fund belonged to the estate of the Plaintiff’s late mother and the S/N Bp1kWasncke/z9BkHwedFA Plaintiff, acting in his personal capacity, had no right or locus standi to claim against the Defendant on behalf of the estate.

Taking a strictly sensible and fair approach, even if the unauthorized use of the late mother’s estate funds including the funeral donation collection fund, is alleged to have been committed by the Defendant, the Plaintiff as the administrator, bears a fiduciary duty to manage the estate diligently. The fact that this action was filed more than three years after the alleged incident indicated a breach of fiduciary duty on the Plaintiff’s part in failing to act promptly in managing the estate funds.

During the trial, the Plaintiff himself admitted uncertainty regarding who recorded the funeral donation collection funds, who received online transfers, and whose bank accounts were used for the donations. PW2 (the Plaintiff himself) further admitted that online transfers were made into “several accounts”, but he could not identify who those “several people” were. He also could not confirm whether the Defendant’s account was involved in receiving any portion of the funeral donation collection funds (cross-referred to the Notes of Proceedings prepared at the initiative of the Defendant’s counsel at PDF page 35 of Encl. 42).

Therefore, the Plaintiff was not fully aware of the matter and produced no evidence to prove that the Defendant had taken any S/N Bp1kWasncke/z9BkHwedFA portion of the funeral donation collection fund, other than the note written by PW1 based on information allegedly provided by the Defendant herself. In the considered opinion of this Court, applying common sense, funeral donation collection fund is typically regarded as a trust fund intended to cover funeral expenses or form part of a deceased’s estate for necessary costs, which is in this case, it shall be belonged to the estate of the Plaintiff’s late mother. Based on the evidence adduced at trial, and not merely from the note via PW1, the Defendant herself, in her testimony (WS(DW1), answer no. 4), admitted that she had taken RM5,629.21 from the funeral donation fund of her late mother-in-law / the Plaintiff’s late mother. This admission could not be ignored by this Court.

According to the Defendant’s version, the Plaintiff and/or his family members knew that the funeral donation collection fund had been used to settle the business loan of their family enterprise, and therefore, they took no action against the Defendant for almost three and a half years until the current claim was filed. This Court reiterated the findings under the second issue as above-mentioned and found that the Defendant’s version is more probable, as the material evidence indicated that the Plaintiff and his family members had previously made claims against the Defendant concerning properties belonging to the Defendant’s late husband’s (the Deceased’s) estate, in which the Defendant acted as administrator and beneficiary. However, during such earlier period, S/N Bp1kWasncke/z9BkHwedFA the Plaintiff and his family members had never made any claim against the Defendant concerning the sale proceeds of the gold bars (addressed under the third issue) or the funeral donation money (addressed under this fourth issue). This is the first time the Plaintiff has made such claims against the Defendant regarding both the gold bars and the funeral donation collection fund.

It is axiomatic that this matter also raises the issue of whether the Plaintiff himself, as the administrator of his late mother’s estate, breached his fiduciary duty under trust law by failing to account for or ascertain the flow of the funeral donation collection fund by not knowing who recorded the donations, whose account received the online transfers, and only initiating this claim in his personal capacity but not as administrator, despite being aware that the funeral fund did not personally belong to him.

This Court is fortified in its considered view that the Plaintiff failed to prove that the Defendant had dealt with or converted the funeral donation collection fund belonging to him personally, since the fund formed part of the estate of the late mother and was not his personal property. Furthermore, the Court agrees with the Defendant’s submission that the Plaintiff’s delay of more than three years in bringing this claim, despite having knowledge that the funeral fund was used to settle the family business loan to which he himself contributed to the same Loan Account, demonstrated S/N Bp1kWasncke/z9BkHwedFA that he was aware of the Defendant’s actions. Therefore, the Plaintiff has failed to prove that the Defendant acted without his knowledge or consent, as his claim rests solely on the note written by PW1 based on what the Defendant had informed him in December 2021, while this suit was only filed in April 2025, more than three years after the funeral of his late mother in September 2021.

In view of the above, the Plaintiff has clearly failed to meet the evidential burden to establish lack of consent or knowledge, and given the nature of the funeral donation collection fund as part of his late mother’s estate, the Plaintiff had no proprietary or possessory rights over it. Having regard to authorities such as Ibrahim Hashim v Devi Mulya Tristiati & Anor [2023] MLRHU 2353, High Court and Ong Tok How & Anor v Madam Ong Lay Eng @ Ong Lay Len (Proposed Administrator/Administrator for Ooi Koe Ley, wife of the deceased) & Ors [2011] 3 MLJ 799, High Court, this Court found that the issue is more properly within the realm of fiduciary duty and trust law if found out there was misappropriation of funeral donation collection fund. Accordingly, this Court found that there is no element of usurpation of the Plaintiff’s rights or possession of the funeral donation collection fund by the Defendant, and therefore, no conversion took place. S/N Bp1kWasncke/z9BkHwedFA Fifth Issue 60. The fifth issue concerns whether the Plaintiff had suffered any loss or damage.

It is undisputed that the Defendant stated she had sold the gold bar for RM22,960.00, and the proceeds from the sale were used to settle the Drinking Water business loan. Additionally, the Defendant had withdrawn RM5,629.21 from the funeral donation collection fund of her late mother-in-law / the Plaintiff’s late mother. As discussed earlier, the note written by PW1 instead showed that the said sum was taken by the Defendant to pay off the Drinking Water business loan, in which the Plaintiff and her sisters were business partners, as asserted in the Defendant’s defence.

The Defendant further submitted that between 1.6.2021 and 1.11.2021, the Drinking Water business also made partial repayments of the said loan through monthly instalments of RM1,000.00, amounting to a total of RM6,000.00, deposited into the Loan Account. The same observation applied here where the money was used to settle the Drinking Water business loan, from which the Plaintiff and her sisters, being partners in the business, benefited from such payments.

Another claim filed by the Plaintiff against the Defendant in a separate suit No. MC-A72-7-04/2025, before this same Court, involved the Defendant’s withdrawal of RM63,000.00 from one Poultry Farm business partnership account to deposit into the Deceased’s Loan Account with Public Bank Berhad (Account No. 2063418734), which was involved the same Loan Account. In that earlier case, the Plaintiff argued that the Loan Account was a personal loan belonging to the Deceased. However, after the argument was tested and examined, this Court found that the purpose of the Loan Account was for business use.

At this stage, both parties in the current case also acknowledge that the Loan Account was taken by the Deceased for the Drinking Water business loan (their family business). Having balanced the submissions of both parties, this Court found that the Defendant’s conduct caused no loss or damage to the Plaintiff, as the Loan Account was paid and settled without further interest charges or additional loss.

The Plaintiff again raised a similar argument as in the earlier suit, asserting that the Loan Account should have included life insurance coverage to redeem the entire loan in the event of the borrower’s death, and that DW1, as the administrator of the Deceased’s estate, failed to notify Public Bank Berhad of her Deceased husband’s death so that the insurer could redeem the S/N Bp1kWasncke/z9BkHwedFA full loan amount. This argument was also centrally raised in the said suit no. MC-A72-7-04/2025, and was dealt with in detail in the grounds of judgment of that case which can be referred in the case of Ng Kian Tek (berniaga di atas nama dan gaya Kian Ann Poultry Farm) v Ng Hui Joo (dahulunya rakan kongsi yang berniaga di atas nama dan gaya Kian Ann Poultry Farm) [2025] MLJU 3386.

In brief, the Plaintiff’s argument regarding the alleged insurance is unconvincing, as there was no evidence to prove that the loan was mandatorily insured to cover the debt upon death. Sensibly, such insurance coverage is optional and depends on the borrower’s decision to purchase it, which has not been proved by the Plaintiff.

Following this Court’s deliberation on the claim and issues, this Court concluded that the Plaintiff had failed to prove, on a balance of probabilities, that the Defendant committed the tort of conversion by dealing with the gold bar and funeral donation collection fund as alleged.

In the upshot, and premised on the above considerations, this Court therefore dismissed the Plaintiff’s claims with costs of RM6,000.00. Dated this 27 October 2025 SGD ------------------------------ (TEOH SHU YEE) MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH FOR THE PLAINTIFF : Mr. Ng Fun Boon, TETUAN NG FUN BOON & CO, MELAKA. FOR THE DEFENDANT : Mr. Choo Wei Sern with Ms. Lim Jia Yi (PDK), TETUAN SERN & LEE, MELAKA. S/N Bp1kWasncke/z9BkHwedFA NG CHUAN @ NG WAH Bapa LEE VIN KUAN Mendiang ibu NG BEE KIAN • Anak Sulung • Rakan Kongsi Kean Ann Drinking Water Refill Station NG KEAN HUAT • Anak Kedua/ mendiang suami Defendan • Rakan Kongsi Kean Ann Drinking Water Refill Station sehingga 13.4.2020 NG MEE KUAN • Anak Ketiga/ SP3 • Rakan Kongsi Kean Ann Drinking Water Refill Station NG KIAN TEK • Anak Keempat/ Plaintif/ SP4 • Rakan Kongsi Kean Ann Drinking Water Refill Station NG KEAN SEONG • Anak Bongsu NG HUI JOO • Defendan • Rakan Kongsi Kean Ann Drinking Water Refill Station sejak 13.4.2020