Nik Anira Binti Nik Mohd Zain (Sebagai Pentadbir Kepada Pusaka Nik Mohd Zain Bin Haji Omar) v Bank Kerjasama Rakyat Malaysia Berhad (WA-22M-72-04/2021)

This is the Plaintiff’s claim against the Defendant for the payment of RM4,000,000.00 plus profits in relation to six Al-Mudharabah Investment Certificates (the “Certificates”) issued by the Defendant to the late Nik Mohd Zain bin Haji Omar in 1997.

The Plaintiff, who is the Administrator of the Estate of Nik Mohd Zain bin Haji Omar, contends that the Defendant has wrongfully Page 2 of 49 refused to honour the six Certificates which were discovered by the Deceased’s daughter in September 2019, some 22 years after the investment was made.

Unless otherwise stated, all references to the “Plaintiff” or “the Deceased” in this Judgment shall refer to the late Nik Mohd Zain bin Haji Omar.

The Defendant opposed the Plaintiff’s claim and contended that the investments were withdrawn by the Deceased prior to 1999.

The trial of this action spanned approximately 11 days, during which 15 witnesses testified: 6 witnesses for the Plaintiff and 9 for the Defendant. A]

The material facts are not in dispute. On 27.9.1997, the Defendant issued six Al-Mudharabah Investment Certificates to the Deceased as follows: i) Certificate 1258 for RM1,000,000.00; ii) Certificate 1259 for RM1,000,000.00; iii) Certificate 1260 for RM500,000.00; iv) Certificate 1261 for RM500,000.00; v) Certificate 1262 for RM500,000.00; and vi) Certificate 1263 for RM500,000.00.

Each Certificate had a maturity date of 27.10.1997, being a one-month investment.

There was also a seventh certificate dated 27.10.1997 (Certificate 1379) bearing the same account number as Certificate 1263, for the amount of RM503,025.68, which is the renewal of Certificate 1263 with profit included. This seventh certificate was eventually excluded from the Plaintiff’s claim.

9.

From 1997 until 2019, there was no record of any communication between the Deceased and the Defendant regarding these investments.

The Deceased was declared a bankrupt on 25.11.2011. The Statement of Affairs submitted by the Deceased to the Insolvency Department did list these investments as part of his assets.

In September 2019, the Deceased’s daughter (PW2) discovered the original certificates while searching for other documents at the Deceased’s house.

Following the discovery, the Deceased made contact with Puan Zuraini binti Ariffin, the Defendant’s Assistant Manager at their Jalan Ipoh branch (DW1), to enquire about his Al-Mudharabah investments, but was informed that the Defendant did not have any record of them in its system.

On 30.1.2020, the Deceased met personally with DW1 to enquire about his investments but received the same response that no records existed.

On 31.1.2020, the Deceased checked with the Unclaimed Money Department and was informed that they had no records of the investments.

On 5.2.2020, the Deceased emailed the Defendant’s Complaint Management Unit seeking confirmation on the status of his investments.

On 18.2.2020, the Defendant replied stating they had no record of the investments and believed the Deceased must have withdrawn them upon maturity, or if not withdrawn, the funds would have been transferred to the Unclaimed Money Department.

18.

The Deceased wrote further letters on 24.2.2020, 20.3.2020,

3.2020, and 1.4.2020 requesting the Defendant to produce supporting documents, but the Defendant consistently maintained they had no records of the investments and believed the Deceased had already withdrawn them.

The Deceased subsequently filed this suit on 9.4.2021 seeking recovery of his investments with accrued profits.

The Deceased passed away on 15.11.2021 during the pendency of this suit, and his daughter, Nik Anira Binti Nik Mohd Zain (PW1), was appointed as the Administrator of his estate and substituted as the Plaintiff in this action. B]

The main issues for determination by this Court are as follows: i) Whether the Defendant is obliged to honour the six Certificates. ii) Whether the Al-Mudharabah Investments (the “investments”) had been withdrawn by the Deceased as alleged by the Defendant. iii) Whether the Plaintiff’s claim is time-barred or otherwise barred by laches. Page 6 of 49 C]

The Plaintiff always bears the burden of proof, and this case is no exception, although the Plaintiff’s case appears to be predicated on an attempt to shift that burden onto the Defendant.

It is a well-established principle under Sections 101 and 102 of the Evidence Act 1950 (“EA”) that whoever desires any court to give judgment as to any legal right or liability must prove that those facts exist.

Section 102 EA further clarifies this by stating that the burden of proof lies on the person who would fail if no evidence at all were presented by either party. This establishes the starting position that the Plaintiff must prove their entitlement to the relief sought, failing which the claim must be dismissed.

In this case, the Plaintiff alleges that he has discharged that burden by showing that he was in possession of the original Certificates. The Plaintiff contends that since he is in possession of the Certificates, this raises a presumption that the funds are still held by the Defendant.

The Plaintiff has produced the original Certificates as proof of the investment made by the Deceased in 1997. The authenticity of these Certificates is not in dispute. The Plaintiff therefore contends that possession of the original Certificates constitutes Page 7 of 49 prima facie evidence of a debt owed by the Defendant to the Plaintiff.

However, with respect, I do not consider the matter to be so straightforward. Prima facie evidence may be rebutted.

There appear to be few cases directly on point. The three authorities cited by the parties that are relevant to this issue are: i) Standard Chartered Bank v. Tiong Ngit Ting [1997] 5 CLJ 552; ii) Chua Kok Tee David v. DBS Bank Ltd [2015] SGHC 198; and iii) Douglass v. Lloyds Bank, Ltd. (1929), 34 COM. CAS.

263.

The High Court in Tiong Ngit Ting (supra) cited the English case of Douglass v. Lloyds Bank (supra) which held that that deposit receipt is not conclusive evidence that the funds are in fact available, and does not give rise to an irrebuttable legal presumption: “On the facts I recognise to the full strength of the fact that the plaintiff produces this deposit receipt, but I cannot ignore what experience tells me, and the evidence in this case shows, that people lose or mislay their deposit receipts at the time when they wan to get their moneyback, Page 8 of 49 and that money is paid over, if they are respectable persons and are willing to give the necessary indemnity or receipt, without production of the deposit receipt; indeed, otherwise life would intolerable and business impossible. Many people have the misfortune to mislay these documents from time to time and they afterwards very often find them. Accordingly, the production of the deposit receipt is, in the light of those facts, not conclusive in this case, and there is no ground for saying it is presumption of law which cannot be rebutted.” (own emphasis added)

In Tiong Ngit Ting (supra), the Court, relying on Poh Chu Chai’s Law of Banking (2nd Edition), held that: "When a customer is in possession of a receipt issued by a bank for money deposited with the bank, the receipt constitutes prima facie evidence against the bank of a debt owing to the customer. Equally, if no claim has been made by a customer for the repayment of the debt after a considerable lapse of time, a presumption that the debt had been paid could arise". (own emphasis added)

Therefore, the presumption in the context of Tiong Ngit Ting (supra) is that payment could be presumed to have been made if no claim is made by the customer for a considerable period of time.

In the present case, there was a lapse of 22 years (from 1997 to 2019) before any claim was made. This constitutes a considerable period of time, which gives rise to a presumption that the debt had been paid (Chua Kok Tee David (supra)).

The Plaintiff relies heavily on the fact that he is in possession of the original Certificates. However, the burden of proof does not shift to the Defendant merely because the Plaintiff has produced the original Certificates. In this regard, the Supreme Court in Selvaduray v. Chinniah [1939] 1 LNS 107 held as follows: “The burden of proof under s. 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on the either side, and accordingly the plaintiff must establish his case. If he fails to do so, it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say “it is wholly immaterial whether I prove my case or not. You have not proved yours” (see the judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar six Bengal Law Reports p 303)” (own emphasis added)

I reiterate the principle established in Douglass v. Lloyds Bank (supra), which held that the production of a deposit receipt (or, in the present case, the Certificates) is not, in itself, conclusive evidence and does not give rise to an irrebuttable presumption of law. Page 10 of 49 D]

The Plaintiff called the following 6 witnesses: i) PW1: Nik Anira Binti Nik Mohd Zain (Administrator of the Plaintiff’s estate and the Plaintiff’s daughter); ii) PW2: Nik Sheireen Bt Nik Mohd Zain (the Plaintiff’s daughter); iii) PW3: Azlan Shah Bin Mohamad Shah (PW2’s husband); iv) PW4: Dr Mohamad Yazid Bin Isa (Expert witness); v) PW5: Wong Phek Lang (former Assistant Brach Manager of Ambank); and vi) Subpoenaed Witness: Roslan Saad (Former Bank Rakyat Chief Technology Officer (“CTO”)).

The most striking aspect of the Plaintiff’s case is the consistent admission by all relevant witnesses that no one was aware of the investments until the Certificates were discovered in September 2019, approximately 22 years after the investment was made in 1997.

PW1 candidly admitted during cross-examination: i) She was unaware of the investment from 1997 until the Certificates were discovered in September 2019. ii) Her late father, the Plaintiff, never mentioned this RM4 million investment to her throughout the 22-year period. iii) When cross-examined: “I put it to you that your late father had never mentioned to you throughout that period from 1997 to 2019, which is 22 years, never mentioned to you about this investment”, PW1 responded: “Not my business to know what my father invests in. So no, I am not aware.” (own emphasis added)

PW2’s testimony similarly revealed the absence of any knowledge: i) She agreed that before the certificates were found in September 2019, her late father had no recollection of the investments. Page 12 of 49 ii) She agreed that a period of 22 years, from 1997 to 2019, was a considerable amount of time. iii) She confirmed that, prior to the discovery of the Certificates in September 2019, the Deceased had no recollection of the investments.

The circumstances of the alleged discovery further undermine the Plaintiff’s case: i) PW2 testified that she found the certificates while looking for housing loan documents in 2019. ii) Crucially, she stated that when she showed the Certificates to her late father, “he was taken aback”. iii) This reaction is consistent with someone who had forgotten about the investment because it had been previously dealt with.

Despite PW1 and PW2’s own assertion in their witness statements that the Plaintiff (the Deceased) had “many people who have assisted him” including “secretaries, private and personal assistants, lawyers, accountants, remisiers and employees,” the Plaintiff failed to call any of these individuals as witnesses.

Both PW1 and PW2 made these assertions in their respective witness statements: i) PW1 stated in her witness statement (Question 35): “There were many people who have assisted him in this, in his investments" and elaborated that he had "secretaries, private, and personal assistants, lawyers, accountants, remisiers and employees. So there were many people who would have assisted him in these investments.” ii) PW2 stated in her witness statement (Question 14): “Financial affairs were handled by his employees, accountants and other professionals.”

However, none of these “secretaries, private, and personal assistants, lawyers, accountants, remisiers and employees” were called as witnesses.

When cross-examined on the following questions by learned counsel for the Defendant, PW1 testified as follows: MM: Did you ask anybody who is his assistants or accountants at the time?" ANIRA: I don't know. I don't know them. MM: I put it to you that you did not contact any of the personal assistants or accountants at the time as well. Page 14 of 49 PW1: No, not me. (own emphasis added)

PW2 similarly admitted the following: i) When asked if she had questioned any employees, accountants or professionals about the certificates, she responded: "I'm not aware of." ii) When asked whether she would know if any of his personal secretaries or assistants had withdrawn the investment on his behalf, PW2 replied: "I wouldn't know."

PW1 also admitted under cross-examination that the Plaintiff (the Deceased) himself did not know whether he had redeemed the investments: “MM I put it to you that before the discovery of the sijil in September 2019, your father did not know whether he had redeemed the pelaburan or not before that. ANIRA Yes, agree.” (own emphasis added)

The remaining witnesses called by the Plaintiff provided no direct evidence of the alleged continuing investment: i) PW4 (expert witness) was solely an expert on Islamic banking calculations and had no expertise or knowledge regarding the Defendant’s banking procedures, practices, or the Deceased’s investments. ii) PW5 (Wong Phek Lang) testified generally about banking practices but had no specific knowledge of the Deceased’s investments or the Defendant’s banking procedures and practices. iii) PW5 was subpoenaed to testify about the Defendant’s system variances but provided no evidence about the Plaintiff’s specific accounts.

Stripped of all peripheral evidence, the Plaintiff’s case rests entirely on the physical possession of the Certificates. However, it must be noted that: i) No one knew of the investments’ existence for 22 years (from 1997 to 2019). ii) The Deceased himself appeared surprised when the Certificates were found. Page 16 of 49 iii) The Deceased made no reference to these investments during his financial difficulties in 2011. iv) No supporting documentation, correspondence, or witnesses were produced to corroborate any ongoing investment relationship.

The totality of the Plaintiff’s evidence reveals that apart from the physical Certificates themselves, there is no credible evidence that anyone, including the Plaintiff/the Deceased, believed these investments to be active or ongoing after 1997. E]

The Defendant called 9 witnesses which includes one subpoena witness: i) DW1: Zuraini @ Zurainiza Binti Ariffin (Defendant’s Assistant Manager, Jalan Ipoh Branch); ii) DW2: Azrin Binti Dahlan (Defendant’s Service Performance Manager); iii) DW3: Rohaidah Binti Abd Rahman (Defendant’s Product Trainor and Signatory to the Certificates); iv) DW4: Haji Azlan Bin Haji Alias (Defendant’s Jalan Ipoh Branch Manager); Page 17 of 49 v) DW5: Md Ali Bin Abd Aziz (the Defendant’s IT Migration specialist); vi) DW6: Ahmad Asuwad Bin Bidin (Defendant’s relief Assisstant Manager and Management Information Systems (“MIS”) Officer); vii) DW7: Rozarina Binti Shahri (Defendant’s Vice President, Procurement Management); viii) DW8: Mohd Hazri Bin Idris (Defendant’s Former Branch Officer who dealt directly with the Deceased); ix) Subpoenaed Witness: Zulmazlinawati Binti Hussin (Insolvency Department Officer (“JIM Officer”)).

Several of the Defendant’s key witnesses, including those in senior positions, had substantial experience with the Defendant, with some having decades of service that gave them direct knowledge of the bank’s operations, policies, and the specific events in question. i)

In contrast to the Plaintiff’s witnesses, who had no knowledge of the investment, the Defendant called DW8, who had direct Page 18 of 49 and personal experience dealing with the Plaintiff (the Deceased) during the material period from 1995 to 1998.

DW8’s testimony provided crucial direct evidence: i) He confirmed he was the officer in charge of fixed deposits at Jalan Ipoh branch from 1995 to 1998. ii) He had personal dealings with the Deceased during this exact period. iii) He testified that the Deceased was a “personal client” who received special treatment. iv) Most significantly, he confirmed that the Deceased regularly conducted withdrawal transactions through telephone calls.

When asked about the Deceased’s transaction patterns, DW8 testified: i) "Boleh dikeluarkan, sebab saya keluarkan, masuk ke akaun dia. Daripada akaun dia, masuk ke akaun dia, bukan ke orang lain". ii) He confirmed multiple withdrawals: "Banyak kali". iii) He testified that it was the Deceased’s practice to withdraw through phone calls and surrender certificates 2- 3 days later.

DW8, as a direct witness who had personal dealings with the Plaintiff during the material time, is a crucial witness. He was able to provide specific details supporting his confirmation that the Plaintiff had withdrawn the investments. This is evident from, inter alia, the following testimony by DW8: “JUDGE Macam mana dia buat macam itu? How does it, macam mana dia (..02:04:11)? Itu bila Datuk Nik Zain, dia instruct, ok, “yang ini kredit ke akaun BankBumi saya”, ataupun lagi satu, bank mana entah. Dia ada dua bank. So, bila matured saja, dia suruh kita inilah, withdraw. Bila En Hazri menyebut bank-bank ni, maknanya pernah berlaku? Is that, apa yang pernah berlaku? Ya, itulah saya buat, dengan dia, bila dia suruh, “ok, Hazri, sudah keluar, keluarkan ini”. Ataupun kadang-kadang Pn Zaharah, ingat lagi, secretary dia bagi tahu, “Hazri, Datuk Nik Zain ini hendak keluarkan yang ini, maturity ini. Nanti you masuk akaun ini”, “Ok”. Jadi – Sebab, saya tanya soalan ini sebab tadi dalam soalan peguam Plaintif, kalau tak silap saya, En Hazri kata duit ini dikeluarkan, akan masuk akaun dia. Ya – Page 20 of 49 Itu sebab saya hendak tanya, akaun ini dekat mana? Not necessarily akaun Bank Rakyat. Dia akaun di bank luar. Kita buat interbank transfer. Akaun dialah? Akaun dialah, personal dialah.” (own emphasis added)

DW8 also testified as to the reason the Plaintiff withdrew the investments, as reflected in his testimony set out below. “JUDGE So, kenapa, ok, ini penting, ya. Semua ini pentinglah, tapi ini perkara yang penting. Kenapa En Hazri berpendirian, percayaan bahawa arwah Plaintif ini telah mengeluarkan FD-FD yang menjadi isu dalam kes ni? Walhal En Hazri bukanlah orang yang mencairkannya, betul? Betul. So, kenapa? Saya tahu sebab selepas tahun 1998, shipping industry teruk. Dan abang ipar saya, MD di Nepline, partner kepada Datuk Nik Zain, dia pun teruk. So, dia pun banyak keluarkan dia punya personal FD to top-up, share turun, kan. Sama jugalah apa yang terjadi pada Datuk Nik Zain. Page 21 of 49 Abang ipar ini, maksud En Hazri, macam mana itu? Apa dia punya connection? Abang ipar saya partner dengan… Datuk Dr Nik Zain, chairman. My brother-in-law, MD. Nama? Mohd Razali Abu Hassan (02:08:00). MD, ya? Abang ipar, macam mana kaitan? Saya kahwin dengan adik dia. Adik kepada? Mohd Razali. Mohd Razali. Adakah secara kebetulan ataupun khusus bahawa En Hazri ditugaskan untuk menjaga akaun? Tak ada, kebetulan saja. Kebetulan, sebab, you know, macam abang ipar saya kata “pergilah simpan dekat Bank Rakyat”, you know, macam itu. Mungkin itu yang Datuk Nik Zain simpan, itu saja.” (own emphasis added)

It is clear from DW8’s testimony above that he not only had direct dealings with the Plaintiff during the material time but also knew him personally. He was able to explain the reason the Plaintiff withdrew his investments, namely, the financial difficulties the Plaintiff was facing at the time.

DW8’s evidence was not rebutted, and the Plaintiff did not produce any evidence to the contrary, particularly in relation to his financial situation during that period. I have no reason to doubt DW8’s testimony. He was forthcoming, consistent in his answers during cross-examination, and at no point did he appear evasive or defensive.

Accordingly, I accept DW8’s testimony, which I find to be both material and highly relevant. ii)

The Defendant adduced substantial documentary evidence including: Internal Banking Policies and Guidelines i) Garis Panduan Operasi Perbankan Syariah (Al-Mudharabah) Bil. 1 dated 28.2.1995. ii) Clear policy limiting automatic renewals to maximum 5 years (Clause 7.2). Page 23 of 49 iii) Mandatory requirement for certificate surrender upon withdrawal or renewal. System Migration Records iv) Comprehensive evidence of Y2K system migration from Finware to new system in 1999-2000. v) DW5 provided detailed testimony about the migration process. vi) Evidence that only active accounts were migrated to the new system. Unclaimed Monies Compliance vii) Evidence of statutory compliance with Unclaimed Monies Act 1965. viii) DW2 and DW7 testified about the mandatory transfer of inactive accounts after 7 years. ix) Clear procedures for handling dormant accounts. iii)

The Defendant’s evidence revealed several compelling circumstantial factors: Page 24 of 49 Certificate 6 and 7 Anomaly i) Both original Certificate 6 (RM500,000) and its renewal Certificate 7 (RM503,025.68) remain in Plaintiff’s possession. ii) DW8 confirmed that standard procedure required surrender of the original before issuing a renewal. iii) This anomaly strongly demonstrates that an exception was made to the Deceased given his position as a “personal client” of the Defendant. iv) This also demonstrates that the investments can be withdrawn without surrendering the original Certificates. Banking System Integrity v) DW6 testified that the Defendant still maintains records of active accounts from 1998 onwards. vi) If the Deceased’s accounts were still active, they would appear in current records. vii) The complete absence from current systems indicates closure before migration. Page 25 of 49 Audit and Compliance Framework viii) Evidence of strict annual auditing requirements under Development Financial Institutions Act 2002. ix) DW7 testified about rigorous compliance procedures. x) The impossibility of RM4 million remaining undetected through multiple audit cycles. iv)

The Defendant’s witnesses demonstrated comprehensive knowledge of banking operations: DW5 - IT Systems Expert i) Provided detailed technical evidence about data migration processes. ii) Confirmed that account information from 1999-2000 remains accessible. iii) Explained the logical impossibility of active accounts not being migrated. DW6 - MIS Officer iv) Testified about current system capabilities and record retention. Page 26 of 49 v) Confirmed access to historical data where accounts remained active. vi) Explained why closed accounts would not appear in current records. DW7 - Senior Management vii) Testified about policy implementation and compliance procedures. viii) Confirmed the 5-year automatic renewal limitation. ix) Explained procedures for transferring inactive accounts. v)

The Defendant’s evidence was corroborated by independent testimony: Subpoena Witness from Insolvency Department i) Zulmazlinawati binti Hussin (JIM Officer) confirmed that the Deceased made no declaration of these investments in his bankruptcy proceedings. ii) This supports the inference that the Deceased knew the investments no longer existed by 2011. Page 27 of 49 Document Disposal Evidence iii) DW5 provided evidence of proper document disposal procedures. iv) Detailed lists of documents destroyed after 7-year retention period. v) Demonstrated compliance with legal record-keeping requirements. vi) Technical Evidence on System Capabilities

The Defendant provided sophisticated technical evidence: i) DW5 confirmed that the Microlink system from 1999-2020 remains accessible. ii) Computer records could definitively show whether accounts existed post-migration. iii) The Defendant’s position that records were unavailable was clarified - while physical documents were disposed of, electronic records of active accounts were preserved. vii)

The Defendant demonstrated comprehensive regulatory compliance: Page 28 of 49 i) Annual reporting to Bank Negara Malaysia. ii) Mandatory transfers to Unclaimed Monies Registry after 7 years of inactivity. iii) Strict audit requirements that would have detected any RM4 million discrepancy. iv) Clear evidence that no such transfers were made regarding the Deceased’s accounts.

In conclusion, the Defendant's evidence presents a coherent, well-documented picture supported by: i) Direct testimony from the officer who personally handled the Deceased’s accounts. ii) Comprehensive documentary evidence of policies, procedures and compliance. iii) Technical evidence about system capabilities and migration processes. iv) Independent corroboration from regulatory and insolvency sources. v) Strong circumstantial evidence including the certificate anomaly and the Deceased’s bankruptcy conduct.

Unlike the Plaintiff’s case which relies solely on physical possession of Certificates with no supporting knowledge or documentation, the Defendant has provided multiple layers of evidence from witnesses with direct knowledge, comprehensive documentation, and independent corroboration.

Having set out the evidence presented by both the Plaintiff and the Defendant, I will now address how this evidence relates to the issues in the present case. F]

The evidence shows that according to the Defendant’s Garis Panduan Operasi Perbankan Syariah (Al-Mudharabah) Bil. dated 28.2.1995, automatic renewal of Al-Mudharabah investments is only permitted for up to 5 years from the date of the first maturity (Clause 7.2).

This means that even if the Certificates were automatically renewed, they would have been automatically renewed only until 2002 (i.e. 5 years from their first maturity in 1997).

I note that this policy places a limitation on the renewal period and indicates that the Defendant would not indefinitely hold the investment monies without action or instruction from the investor.

In this regard, the Plaintiff has not demonstrated, by documentary evidence or otherwise, that he instructed the investments to be reinvested after 5 years, thereby strengthening the Defendant’s position that the funds were withdrawn. G] STATUTORY REQUIREMENTS UNDER THE UNCLAIMED

Under Section 8 of the Unclaimed Monies Act 1965 (“UMA”), any monies to the credit of an account that has not been operated in whatever manner by the owner for a period of not less than seven years are considered “unclaimed monies”.

Section 10(2) UMA requires the Defendant to transfer such unclaimed monies to the Registrar of Unclaimed Monies.

Fixed deposits with automatic renewals are included in the definition of unclaimed monies according to the Malaysian Administrative Modernisation and Management Planning Unit.

Therefore, even if the Certificates were automatically renewed for 5 years until 2002, and there was no withdrawal thereafter, the monies would have been statutorily required to be transferred to the Unclaimed Monies account by 2009 (i.e. years after 2002).

The fact that there are no such monies in the Unclaimed Monies account, as confirmed by the Deceased’s own inquiry with the Registrar of Unclaimed Monies, strongly supports the contention that the monies had been withdrawn before they could be classified as unclaimed monies. H] THE DEFENDANT’S RECORDS, DATABASE, AUDIT, AND

According to Section 3 of the Bankers’ Books (Evidence) Act 1949, a banker's book is prima facie evidence. The fact that the Defendant has no record of the investments in its current system is prima facie evidence that the monies are no longer with the Defendant.

The Defendant’s records show that accounts from 1998 that are still active remain in the Defendant’s records. There is no reason why the Deceased’s investment accounts, if still active, would not be reflected in the Defendant’s records.

Based on the Defendant’s evidence, particularly through witnesses DW6 and DW1, the Defendant’s current banking system contains no records of the Certificates.

DW6 testified that throughout his review of the IBS system, which contains data from 1999 onwards, "tiada pun rekod pelanggan untuk kita kemukakan sama ada dia closed ataupun dia masih aktif".

This absence is significant because the Defendant’s system retains records of all accounts that remained active during and after the Y2K migration in 1999-2000.

The Defendant’s records demonstrate that active accounts from as early as 1998 are still reflected in their current system, as confirmed by DW1’s testimony regarding other accounts belonging to the Deceased that were opened in 1999 and carried forward.

DW6 specifically confirmed that “segala akaun yang masih aktif dan closed, saya boleh akses”, yet no trace of the Certificates in question appears in these accessible records. This systematic absence, despite the Defendant’s ability to maintain records of other contemporaneous active accounts, supports the inference that the investment accounts were closed prior to the 1999 system migration and were therefore not carried forward into the current banking system.

On the part of the Defendant, I am satisfied that they have acted diligently, even managing to locate and call DW8, a former officer at the Defendant’s branch where the funds under the Certificates were originally held. DW8’s testimony is crucial, as he had directly dealt with the Plaintiff in previous transactions and is familiar with the Plaintiff’s business and company.

The Defendant maintained that the Plaintiff’s investment accounts had been closed prior to the system migration in 1999 Page 33 of 49 and, as a result, were not transferred to the new system. Given that the accounts had been closed and contained no funds, there was no necessity for the Defendant to capture them during the migration.

Furthermore, banking procedures are stringent and subject to oversight by Bank Negara Malaysia, including through the implementation of audits. In this regard, annual and periodic reports are issued and published regularly in accordance with regulatory requirements. In this regard the Defendant has produced the Defendant’s Annual Report for Year 1999, being the year, the system migration occurred.

It is therefore difficult to accept that a substantial sum of RM4 million could have been “hidden” or left unrecorded by the Defendant. I]

Based on the Singapore case of Chua Kok Tee David (supra) where the bank was unable to trace the records of the customer, the Singapore High Court held that: “78 The absence of a record where one would expect to find a record can, in itself, be evidence from which inferences can be drawn about the matters not recorded. In R v Shone (1982) 76 Cr App R 72 “Shone”), the issue was whether certain springs had been stolen from a company. Each spring had a unique identification number. The company’s procedure was to record that number when a spring was properly disposed of. The Page 34 of 49 prosecution was able to prove that certain springs had been delivered to the company and that the identification numbers for those springs were absent in the company’s records of springs properly disposed of. The question for the English Court of Appeal was: a) whether the company’s records were hearsay evidence; and b) whether the absence in those records of the identification numbers of the springs in question could be relied on as evidence that those springs had been stolen. The court held that: a) the records were not hearsay because the makers of the records had testified at trial; and b) that the absence of the identification numbers in those records was capable of supporting an inference that the springs had been stolen.” 79 As Shone albeit for a different reason, no hearsay issue arises in the present case. The documentary evidence adduced by the defendant is admissible under s 171 of the Evidence Act see [47]–[50] above). The issue to be analysed then is the probative strength of the inference which can be drawn from the absence of any trace of the 9246 account in the defendant’s available records of fixed deposit accounts from February 1984 to the present day. That depends entirely on the extent to which the defendant is able to satisfy me that its systems and procedures for keeping those records are sufficiently rigorous and robust that the closure of the 9246 account in or before 1985 is, on the balance of probabilities, the only explanation for that absence. The more rigorous and robust those systems and procedures are shown to be, the stronger the chain of inferential reasoning from this negative circumstantial evidence to the conclusion that the 9246 account was closed in or before 1985.” (own emphasis added)

This is precisely the situation in the present case. Apart from the inference that the investment funds had been withdrawn, I find that there are several compelling pieces of evidence which demonstrate that the Deceased had, in fact, withdrawn the investments. viii) The “Lost” or “Missing” Certificates

The Plaintiff’s own witness, PW1 (the Plaintiff’s daughter), agreed during cross-examination that her late father did not know whether he still had the investment before the Certificates were discovered in 2019. The fact that the certificates were “discovered” in 2019 implies that they had been lost or misplaced before then.

The evidence shows that the Plaintiff was surprised when the Certificates were accidentally discovered, indicating that he had no recollection of them prior to that. This suggests that his belief that the funds remained intact arose from the physical presence of the Certificates at the time of discovery and not on any actual knowledge of the status of the investment.

It would appear that the Plaintiff made the “assumption” the funds were still held by the Defendant when the Certificates were found and not that he actually knew what had happened to the funds.

This is further supported by PW1’s admission under cross-examination that the Plaintiff (the Deceased) himself did not know whether he had redeemed the investments prior to the discovery of the certificates in September 2019 (see paragraph 45 above).

As noted in the case of Douglass v. Lloyds Bank (supra), people often lose or mislay their deposit receipts when they want to get their money back, and money is paid over without production of the deposit receipt if they are respectable persons and are willing to give the necessary indemnity or receipt.

In the present case, there may have been an indemnity document signed by the Plaintiff, however, the Defendant has no record of such a document, although it is their standard practice to request one. As more than 7 years have passed and no claim was made on the investment during that time, the Defendant cannot be faulted for being unable to produce the indemnity. ix)

The Deceased was declared bankrupt in 2011, however, he did not disclose the investments associated with the Certificates in his Statement of Affairs affirmed on 28.12.2011 (“Statement of Affairs”) and submitted to the Malaysian Insolvency Department (“JIM”).

In fact, the Plaintiff did not mention these investments or the Certificates at any time prior to 2019. On at least two separate occasions, the Plaintiff did not state on oath that he held such investments. This is evident from: i) The Plaintiff’s affidavit in Opposing the bankruptcy proceedings affirmed on 2.10.2010 (Afidavit Bantahan Penghutang Penghakiman); and ii) The Statement of Affairs affirmed on 28.12.2011.

This is particularly significant considering that the amount claimed by the Judgment Creditor (CIMB Bank Berhad) against the Deceased was only RM1,098,815.29, and the alleged investments of RM4 million would have been more than sufficient to pay off this debt and prevent his bankruptcy.

This defies logic, and it is difficult to accept that the Deceased simply “forgot” he had RM4 million. A similar observation was made by the High Court judge in Tiong Ngit Ting (supra), involving a sum significantly less than the amount claimed by the Plaintiff in this action, where His Lordship remarked as follows: “It is common knowledge that the amount of $10,000 was not a meagre amount in 1955 and it is unreasonable to expect the respondent to have forgotten altogether about this deposit of hers until 1987 when she discovered exh. “Р1” which is not a deposit receipt Page 38 of 49 in the context of the business of the respondent if at all true that she had never withdrawn the said amount.” (own emphasis added)

In the present case, not only would the RM4 million have prevented the Deceased from being declared a bankrupt, but it may well have put him in a financially viable position.

I find that it is not reasonable for the Deceased to have “forgotten” about investments of such magnitude if they were still in existence, especially when he was in financial distress and in need of funds.

At all material times, the Deceased neither retracted nor indicated that the declaration of assets in his Statement of Affairs, made after he was declared bankrupt, was inaccurate. x)

DW8, who was the bank officer dealing with the Deceased at the material time in 1997, testified that the Deceased was a “personal client” of the Defendant and was given special treatment. It was the norm for the Deceased to execute withdrawal transactions through telephone calls.

The evidence of DW8 is of particular significance, as he is the only witness with direct knowledge and dealings with the Deceased. I find his testimony to be cogent and credible. He was forthcoming in explaining how he came to know the Deceased, including their familial connections. He was also able to provide a relatively detailed account of the manner in which the Deceased conducted transactions with the Defendant and how he was treated as a preferred or high-net-worth customer. His testimony supports the Defendant’s position that while the funds were withdrawn, the Certificates were not returned to the Defendant.

DW8 further testified that usually, the Deceased would surrender the certificates 2 or 3 days after the account was liquidated, but in this case, he had probably forgotten to surrender the original certificates.

The fact that the Deceased retained both Certificate 1263 and its renewal, Certificate 1379, supports this testimony, as it indicates that the original certificate was not surrendered upon renewal. This, in itself, is evidence that the funds could be withdrawn without the need to surrender the Certificates.

In PP v. Hanif Basree Abdul Rahman [2005] 2 MLJ 755, the Court of Appeal reaffirmed that circumstantial evidence may be relied upon, but also acknowledged the value of direct evidence, stating: Page 40 of 49 "Of course, if there is credible direct evidence proving the essential elements of the offence, then that is the best evidence." (own emphasis added)

DW8’s testimony that the Deceased was an “exclusive client” who was permitted to make withdrawals via telephone calls is credible and consistent with banking practices for high-net-worth clients.

I find that while this practice may not align with the Defendant’s usual procedure requiring the surrender of original certificates, it was within the Defendant’s discretion to accord such privileges to valued clients.

The fact that the Deceased was a high-net-worth customer is not disputed, as confirmed by PW1 during cross-examination. J]

The Defendant pleads that, in any event, the Plaintiff’s claim is time-barred pursuant to Section 6(1)(a) of the Limitation Act 1950.

As stated in the case of Tiong Ngit Ting (supra), for fixed deposits, the amount becomes payable on the designated day Page 41 of 49 of maturity. The Certificates matured on 27.10.1997, and even with the 5-year automatic renewal period, the ultimate payable date would have been 27.10.2002.

Therefore, the limitation period of 6 years would have expired on 26.10.2008, making this claim, which was filed on 9.4.2021, well out of time.

Additionally, the doctrine of laches applies. The Deceased’s failure to make any inquiry about these substantial investments for 22 years constitutes unreasonable delay, which has prejudiced the Defendant’s ability to defend itself, particularly in terms of accessing and producing relevant records.

The principle that time runs from maturity date is well-established. In Julian Chong Sook Keok & Anor v. Lee Kim Noor & Anor [2024] 5 CLJ 519, the Federal Court emphasized that under Section 6(1)(a) of the Limitation Act 1953, actions must be brought before the expiration of six years from the date on which the cause of action accrued. The cause of action for recovery of fixed deposits accrues upon maturity, not upon demand or refusal to pay.

The Plaintiff’s argument that the cause of action only arose in March 2020 when the Defendant refused payment is misconceived. As held in Tiong Ngit Ting (supra), the bank's obligation to pay arises automatically upon maturity, no Page 42 of 49 demand is required for fixed deposits with predetermined maturity dates.

The doctrine of laches requires two elements as established in IB Capital Sdn Bhd v. Ivory Indah Sdn Bhd & Anor [2021] MLRAU 148: i) unreasonable delay in commencing proceedings, and ii) that the consequences of delay render the grant of relief unjust in all circumstances.

Both elements are satisfied here.

The 22-year delay is particularly egregious given the substantial amount involved (RM4 million) and the short-term nature of the investments (monthly deposits). As noted in Tiong Ngit Ting (supra), it is unreasonable for a depositor to have completely forgotten about a deposit, particularly when the amount involved was substantial and the investments were short-term rather than long-term deposits.

The Deceased’s conduct demonstrates acquiescence. Significantly, when declared bankrupt in 2011 with debts of only RM1,098,815.29, he failed to declare these alleged RM4 million investments in his Statement of Affairs. This omission is inexplicable if he genuinely believed the investments existed, as Page 43 of 49 they would have easily covered his debts and prevented bankruptcy.

The American jurisprudence principle, as referenced in Dickinson Law Review Volume 57, Issue 4, supports this position: a delay of 20 years in enforcing a debt raises a presumption of payment, with the creditor bearing the burden of proving non-payment. This presumption is strengthened when the obligor was in “needy circumstances” (as the Deceased was during his bankruptcy) yet made no demand or attempt to collect.

The delay has caused substantial prejudice to the Defendant’s ability to defend. In Zainab Mohamed v. Syarikat Permodalan Johor (PP) Sdn Bhd [1998] 4 CLJ SUPP 262, the Court emphasised that laches requires consideration of “the change in a defendant’s position which has resulted from a plaintiff’s delay in bringing an action.”

The Defendant has been prejudiced through: i) disposal of physical records after 7 years in accordance with legal requirements under Sections 245 of the Companies Act 2016 and 82A of the Income Tax Act 1967; ii) system migrations in 1999 and 2020 where inactive accounts were not carried forward; Page 44 of 49 iii) unavailability of key personnel who handled the accounts in 1997-1998; and iv) the impossibility of reconstructing the circumstances of any alleged withdrawal after such an extended period.

The Plaintiff cannot shift responsibility for this prejudice to the Defendant. The Defendant’s record-keeping policies comply with statutory requirements and industry standards. As held in Chua Kok Tee David (supra), the absence of records after such an extended period, combined with the Defendant’s rigorous systems and audit procedures, supports the inference that the accounts were properly closed.

Even if the Court were to excuse the limitation period, the equitable doctrine of laches provides an independent ground for dismissing this stale claim where the Plaintiff has slept on his rights for over two decades to the substantial prejudice of the Defendant. K]

Based on the totality of evidence, I find that the Plaintiff has failed to rebut the presumption that the investment had been withdrawn by the Deceased prior to 1999 (Tiong Ngit Ting (supra); Chua Kok Tee David (supra)).

Upon careful examination of the evidence in light of the chronology of events, I have reached my decision based on the following key considerations: i) The Deceased had been declared a bankrupt and failed to disclose the investments in his declaration of assets, despite the fact that the said investments would have been sufficient to cover the outstanding debts that led to his bankruptcy at the time. ii) The testimonies of PW1 (Nik Anira) and PW2 (Nik Sheireen) indicate that the Deceased did not have knowledge of the fate of the investments. iii) The Deceased’s enquiries with the Defendant and the Unclaimed Monies Department further support the conclusion that he was unaware of the status of the investments, and do not corroborate the Plaintiff’s allegations. iv) The credible testimony of DW8, who confirmed that the Deceased was a high-net-worth client with the privilege of making withdrawals via telephone, and had, in fact, done so in the past as witnessed personally by DW8, further supports the Defendant’s case. Page 46 of 49 v) The Deceased’s possession of both Certificate 1263 and its renewal Certificate 1379, suggesting that the funds could be renewed without the need to surrender the original certificate; and vi) The absence of any record of the investment accounts in the Defendant’s internal banking system, Audited Financial Reports, or the Unclaimed Monies account, despite the stringent banking protocols and auditing procedures in place, further undermines the Plaintiff’s claim.

It is also pertinent to note that none of the Plaintiff’s witnesses possessed personal knowledge of the Deceased’s investment or the Certificates in question. Their testimonies do not substantiate the Plaintiff’s claim. PW1 and PW2 were only able to testify to the discovery of the Certificates in 2019 and the subsequent inquiries made thereafter. None of the witnesses had direct knowledge of the investments, whether before or after 2019, apart from the mere existence of the Certificates.

The evidence supports the conclusion that the investments had been withdrawn long ago. The mere possession of the original Certificates, particularly in light of the 22-year delay before any claim was made, is insufficient to establish that the investments are still held by the Defendant.

Accordingly, the Plaintiff’s claim is dismissed with costs of RM45,000/- in favour of the Defendant (subject to allocator fee). Dated this 29th day of July, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) HIGH COURT OF MALAYA, (COMMERCIAL DIVISION (NCC 3)) HIGH COURT OF KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA COUNSEL FOR THE PLAINTIFF : Rajashree Suppiah (Aliza Hilyati binti Wan Haron, Rex Kuan Kai Tat, Amira Nur Nadia binti Azhar and Husnatul Naznin binti Mohamad together with her) Messrs Wan Haron & Associates Unit No. E-10-06, East Wing, Subang Square, Jalan SS 15/4G, 47500 Subang Jaya, Selangor Darul Ehsan Tel: 03-56218088 Emel: general@wha.com.my Page 48 of 49 COUNSEL FOR THE DEFENDANT : Mohd Munzeer bin Zainul Abidin (Mohammad Zaid bin Daud @ Daud Yatimee, Muhammad Ali Redha bin Ahmad Rashidi and Mohd Syafiq bin Mohd Safien together with him) Messrs Yusfarizal, Aziz & Zaid No. Unit 01-26 & 01-27, Maxim Citylights Sentul, No. 25 Jalan Sentul Perdana, 51000 Kuala Lumpur Tel: 03-40320949 Emel: general@yaz-law.com LEGISLATION / RULES CITED Evidence Act 1950  Section 101  Section 102 Unclaimed Monies Act 1965  Section 8  Section 10(2) Bankers’ Books (Evidence) Act 1949  Section 3 Limitation Act 1950  Section 6(1)(a) Companies Act 2016  Section 245 Income Tax Act 1967  Section 82A Page 49 of 49

Chua Kok Tee David v. DBS Bank Ltd [2015] SGHC 198

Douglass v. Lloyds Bank, Ltd. (1929), 34 COM. CAS.

IB Capital Sdn Bhd v. Ivory Indah Sdn Bhd & Anor [2021] MLRAU 148

Julian Chong Sook Keok & Anor v. Lee Kim Noor & Anor [2024]

PP v. Hanif Basree Abdul Rahman [2005] 2 MLJ 755

Standard Chartered Bank v. Tiong Ngit Ting [1997] 5 CLJ 552

Selvaduray v. Chinniah [1939] 1 LNS 107

Zainab Mohamed v. Syarikat Permodalan Johor (PP) Sdn Bhd [1998] 4 CLJ SUPP 262