Ong Koh Hou @ Won Kok Fong [ Identity Card No.: 490308055169 ] [ Messrs Alfred Lai & Partners (Kuala Lumpur) ] v Wong Chee Meng [ Identity Card No.: 580804085411 ] [ Messrs Joseph Ting & Co. (Puchong) ] (Klhc WA-22NCC-308-07/2021)

This Action was filed by the Plaintiff in respect of a sum of RM3,000,000 lent to the Defendant (“the loan”).

During trial agreed to be conducted virtually online by using the Zoom video conferencing platform, lasting 2 on 10.8.2023 and 11.8.2023, both Plaintiff and Defendant testified. The Defendant also called a Ms Chew Sow Kuan (DW2) as a witness.

I had on 29.9.2023 allowed the Plaintiff’s claim. This judgment contains the reasons for my decision.

The Plaintiff and Defendant are shareholders and directors of Platinum Wholesales City Sdn Bhd (“PWCSB”) which owns a shopping 2 mall called Platinum Wholesales City (“the PWC mall”) in Kota Bharu. Besides the Plaintiff and the Defendant, the other directors of PWCSB are Tan Sri Guok Nguong Peng (“Tan Sri Guok”) and the Plaintiff’s 2 sons Ong Liang Yu, and Ong Hao You. The other shareholders of PWCSB are Guok Hui Shing (Tan Sri Guok’s daughter), Heng Kui Heng (Tan Sri Guok’s wife) and Ong Liang Yu (Plaintiff’s son”).

GNP Construction Sdn Bhd (“GNP”) is the main contractor appointed by PWCSB to construct the PWC mall.

According to the Plaintiff:

6.1 at the request of the Defendant, the Plaintiff has lent a sum of RM3,000,000.00 (“the Loan”) to the Defendant, vide a United Overseas Bank (Malaysia) Bhd (“UOB Bank”) Cheque bearing number 135206 dated 31.3.2017 (“the UOB Bank Cheque”) issued by the Plaintiff to GNP;

6.2 The Defendant promised that he will repay the loan by June 2017;

6.3 The Defendant issued a Maybank cheque no. 057524 in the amount of RM 3 million as repayment of the loan. However when presented for payment, it was stopped payment/countermanded; the Plaintiff has a right of statutory recourse under the Bill of Exchange Act 1949 (“the BEA”); and

6.4 Hence this action was filed. 3 [7] The Defendant on the other hand denied he took any loan from the Plaintiff and in essence pleaded that:

7.1 he incorporated on 11 April 2017 a company called A To Z Concept Sdn Bhd (No. 1226424-T) (“the Company”) for the business of buying and selling textile goods, clothing and fashion accessories where the Plaintiff’s wife holds 55% shares and the Defendant’s wife holds 45% shares in the Company. The Plaintiff and Defendant’s respective wives are directors of the Company;

7.2 the Plaintiff had proposed that he will inject RM 3,666,666.66 and the Defendant RM 3,000,000 into the

7.3 The Defendant told the Plaintiff that the Defendant was not able to provide the RM3million for the Company whereupon the Plaintiff stated he will assist the Defendant get a loan and the Plaintiff asked the Defendant to issue an undated cheque of RM 3 million and without stating the payee’s name (“the RM3million cheque”) to be used as security for the loan to be obtained by the Plaintiff from his friends for the Defendant;

7.4 Based on the Plaintiff’s representation, the Defendant issued the RM3million cheque in early April 2017 in the manner requested by the Plaintiff; 4

7.5 the Company then issued purchase orders to suppliers to buy goods;

7.6 the Plaintiff failed to inject his portion of RM 3,666,666.66 into the Company as promised. The Plaintiff also failed to obtain the loan of RM 3 million for the Defendant from the Plaintiff’s friends;

7.7 as the Company has no funds to pay the suppliers, the Defendant has used other companies to pay for the goods ordered by the Company;

7.8 since the Plaintiff breached his promise to invest the sum of RM 3,666,666.66 and to get a loan for the Defendant, in early August 2017 the Defendant stopped payment/countermanded payment of the RM3million cheque; there was a total failure of consideration for the RM3million cheque. The date 30 August 2017 and payee’s name stated on the RM3million cheque was written by the Plaintiff without the Defendant’s knowledge and consent;

7.9 The Plaintiff has failed to give notice of dishonour of the RM3million cheque; and

7.10 the Plaintiff has included the claim for the Loan against GNP in the Kota Bharu High Court Suit No: DA22NCvC-66- 12/2021 (“the Kota Bharu Suit”) as additional construction costs which is inconsistent with the Loan claimed in this court; there is also duplicity in the claim for the Loan. 5 Issues [8] The issues to be tried in my view boiled down to 3 as follows:

8.1 Whether the Plaintiff has given a Loan of RM3,000,000.00 to the Defendant?

8.2 If so, whether the Plaintiff is a holder for value of the Maybank cheque for RM,3000,000 and whether the Defendant is liable to repay the Loan in the sum of RM3,000,000.00 to the Plaintiff pursuant to the Bills Of

8.3 Whether the Plaintiff is making a duplicate claim for the Loan in the Present Action? Burden of proof [9] The Plaintiff bears the legal and evidential burden to prove on a balance of probabilities of establishing a case against the Defendant throughout the trial. In the case of Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, the Federal Court held: “Sections 101, 102, 103 and 106 of the Evidence Act 1950 deal with the burden of proof. Under s 101, it is provided that whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. Under s 102 the burden of proof lies on that person who would fail if no evidence at all were given on either side. Under s 103, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the 6 proof of that fact shall lie on any particular person. Under s 106, when any fact is especially within the knowledge of any person the burden of proving that fact is upon him.” [10] In Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697, Jeffrey Tan FCJ elucidated as follows: “[56] Thus, a plaintiff has both the burden of proof as well as the initial onus of proof. In Britestone Pte Ltd v Smith & Associates Far East, Ltd [2007] 4 SLR 855, the Singapore Court of Appeal per VK Rajah JCA, delivering the judgment of the court, explained that at the start of the plaintiff’s case the burden of proof and the onus of proof coincide: … at the start of the plaintiff’s case, the legal burden of proving the existence of any relevant fact that the plaintiff must prove and the evidential burden of some (not inherently incredible) evidence of the existence of such fact coincide. Upon adduction of that evidence, the evidential burden shifts to the defendant, as the case may be, to adduce some evidence in rebuttal. If no evidence in rebuttal is adduced, the court may conclude from the evidence of the defendant. If, on the other hand, evidence in rebuttal is adduced, the evidential burden shifts back to the plaintiff. If, ultimately, the evidential burden comes to rest on the defendant, the legal burden of proof of the relevant fact would have been discharged by the plaintiff. The legal burden of proof — a permanent and enduring burden — does not shift. A party who has the legal burden of proof on any issue must discharge it throughout. Sometimes, the legal burden is spoken of, inaccurately, as ‘shifting’; but what is truly meant is that another issue has been engaged, on which the opposite party hears the legal burden of proof. 7 [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, not on him who denies it; et incumbit probation qui decit, non qui negat, Actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A plaintiff’s case must stand or fall upon the evidence adduced by him. When, however, the defendant, or either litigant party, instead of denying what is alleged against him, relies on some new matter which, if true, is an answer to it, the burden of proof changes sides; and he, in his turn, is bound to show a prima facie case at least and, if he leaves it imperfect, the court will not assist him. Reus excipendo fit actor’ (Woodroffe and Amir Ali, Vol 3 at pp 3190-3191). (Emphasis added) [11] I would thus remind myself that if the Plaintiff does not discharge his burden, the claim would be dismissed notwithstanding whether the defence is or is not established. I now deal with the issues. Whether the Plaintiff has given a Loan of RM3,000,000.00 to the Defendant [12] Considering the entire evidence adduced by the parties, the answer is YES. In this regard, I do not accept the Defendant’s argument that there is no loan just because there is no written evidence of a loan agreement nor written instructions to pay the loan sum to GNP for reasons as follows. [13] “Evidence” is not confined to documents and the Court is enjoined by s. 3 of the Evidence Act 1950 to consider oral statements by witnesses, the evaluation and assessment of the credibility (or otherwise), of the witnesses were crucial to the present case. In assessing credibility 8 of the witnesses, I have taken note that credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence and this court must pay attention to a number of factors which, inter alia, include the following as exposited by Gillen J in Sean Thornton (a minor by his mother and next friend) v Northern

The inherent probability or improbability of representations of fact;

(ii) The presence of independent evidence tending to corroborate or undermine any given statement of fact;

(iii) The presence of contemporaneous records;

(iv) The demeanour of witnesses e.g., does he equivocate in cross examination;

The frailty of the population at large in accurately recollecting and describing events in the distant past;

(vi) Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication;

(vii) Does the witness have a motive for misleading the court; and

(viii) Weigh up one witness against another 9 [14] Sir George Farwell in the Privy Council case of Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386, PC, in addressing the credit of a witness upon cross-examination, said that ‘it is most relevant in a case where everything depends on the judge’s belief or disbelief in the witness’ story.’ Particularly so in the instant case as the loan agreement was not in writing. [15] In assessing the facts in issue on the basis of their “inherent probability or improbability”, I am also guided by the Federal Court in Md Zainudin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773: “[33] It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence..... [16] From the evidence adduced before the court, there can be no dispute that RM3 million was paid to GNP by the Plaintiff. [17] The Plaintiff testified under cross-examination (pg. 14 and 15 notes of proceedings) that the RM3,000,000 loan by verbal agreement with the Defendant was paid on behalf of the Defendant to GNP. The sum was for construction costs. [18] Sophia Guok of GNP in April 2017 (a month after the loan was paid to GNP) mailed the Plaintiff to inform payment of RM3million was received and the email had a listing of payments made by the Plaintiff and the Defendant. The sum of RM3million was credited to the Defendant. [19] I reject the Defendant’s contentions that he does not owe GNP money, that he did not receive the email as it was not addressed to him 10 and further, as the Plaintiff did not call Sophia as a witness, he was therefore entitled to invoke s. 114(g) Evidence Act against the Plaintiff as I found them to be unmeritorious. [20] It is settled law that an adverse inference ‘can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence’. The Supreme Court in Munusamy v Public Prosecutor [1987] 1 MLJ 492 held: - “It is essential to appreciate the scope of section 114(g)of the Evidence act, 1950 lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but a material document by a party in his possession nor for non-production of just any witness but only an important and material witness to the case.” [21] The Federal Court in Letchumanan Chettiar Alagappan (supra) referred to Munusamy’s case. [22] In my respectful view, Sophia Guok was not a material witness and nothing turns on the Defendant’s beating of drums on the alleged Plaintiff’s failure to call her. Further, in my opinion, any witness called is a witness of the court, whose testimony if relevant and admissible, assists the court in making its determination of the issues. In this regard I am reminded of the well-established principle that ‘there is no property in a witness’ - See the judgments of the Federal Court in Husdi v Public Prosecutor [1979] 2 MLJ 304; [1979] 1 LNS 33; and Suruhanjaya Sekuriti v Datuk Ishak bin Ismail [2016] 1 MLJ 733; [2016] 3 CLJ 19. 11 [23] It was incumbent on the Defendant to address sufficiently this issue of RM3million credited to his account at GNP. He could also have called Sophia Guok. The email and listing of payments are Part B documents; they are not fake or fictitious documents. The Defendant did not challenge credibly the entry of RM3million credited to his account in GNP is wrong. [24] Additionally, in my view, Sophia’s email and Listing of payments to GNP are contemporaneous evidence and supportive of the Plaintiff’s case that RM3million was credited to GNP to account of the Defendant. [25] The Plaintiff’s evidence is that Tan Sri Guok, Plaintiff and Defendant are involved together in PWCSB to develop a mall where construction costs according to the Plaintiff is RM200m. This evidence is not disputed by the Defendant. The Defendant however testified that his money must enter into Platinum (PWSB) first and thereafter, Platinum will use the money to pay GNP. However, this does not change the fact that GNP did credit RM3million into the Defendant’s account of payments. [26] In my view, it is inherently probable and more likely than not, that because of the loan by Plaintiff to the Defendant, and instructed by him to pay GNP, the Maybank cheque of RM3million was then given to the Plaintiff as repayment of the loan. In my view, it is highly improbable for any prudent businessman in the form of the Defendant to have given the Maybank cheque to the Plaintiff except for the purpose as asserted by the Plaintiff. 12 [27] I find there is not an iota of evidence led by the Defendant to give credence to his narrative that he had to pay the suppliers and creditors of the Company, A To Z Concept Sdn Bhd when the Plaintiff failed to invest the sum agreed and failed to get from the Plaintiff’s friends a loan of RM3million to invest in A To Z and therefore he stopped payment of the cheque. If as postulated by the Defendant that the Company had indeed purchased goods from suppliers, it was revealing that there was no evidence tendered by the Defendant on what goods were purchased, who were the suppliers and the amounts incurred. Glaringly too, not a single invoice nor payment voucher, cheque or receipt was tendered by the Defendant to lend weight to his defence that he had used other companies to pay for the goods ordered by the Company when the Plaintiff failed to invest the sum agreed and failed to get from the Plaintiff’s friends a loan of RM3million for the Defendant to invest in the Company. Given the implications, it would also have been reasonably expected that the names of the companies that the Defendant has allegedly used to make payment be disclosed in evidence but were not. I can thus be forgiven for finding that it is patently obvious that this totally unsubstantiated tale was drummed up as a disingenuous posturing and an artful machination to avoid payment of the loan paid into GNP. [28] A cheque for an amount of RM3million by anyone’s standard is not a small sum of money. I do not find the Defendant’s story credible as a prudent man will not give a RM3million cheque willy nilly as collateral upon the supposition that the Plaintiff will get him a loan for his share of investment in A To Z until there is at least on the horizon, prospect of such a loan being obtained by the Plaintiff from his friends. 13 Whether the Plaintiff is a holder for value of the Maybank cheque for RM,3000,000 and whether Defendant is liable to repay the Loan in the sum of RM3,000,000.00 to the Plaintiff pursuant to the Bills Of Exchange Act 1949 [29] Pursuant to s. 30 BEA, valuable consideration from the holder of the Maybank Cheque is presumed until the contrary is proven and the Defendant bears the burden of proving that the Maybank Cheque is tainted by fraud, duress, force and fear, illegality or there is a total failure of consideration on the part of the Plaintiff, see Ong Guan Hua v Chong

29 MLJ 6 and Ong Kee Chak v Au Heng Tong [1997] 5 CLJ 414. [30] Due to my finding on the 1st issue, it follows that I find that the Defendant has failed to discharge the burden that there is a total failure of consideration on the part of the Plaintiff for the Maybank cheque of RM3 million. [31] Next, the Defendant contended he was never issued any notice of dishonour in respect of the Maybank Cheque as required by s. 48 BEA

However, I am of the view that this assertion is bereft of merits. As the Maybank cheque was countermanded by the Defendant, there is no need to issue a notice of dishonour pursuant to s. 50(2)(c)(v) BEA 1949 which reads: “50 (1)…. 2 Notice of dishonour is dispensed with –

when, after the exercise of reasonable diligence, notice, as required by this Act, cannot be given to or does not reach the drawer or indorser sought to be charged; 14

by waiver express or implied; notice of dishonour may be waived before the time to giving notice has arrived, or after the omission to give due notice;

as regards the drawer in the following cases, namely-

where the drawer and drawee are the same person;

(ii) where the drawee is a fictitious or a person not having capacity to contract;

(iii) where the drawer is the person to whom the bill is presented for payment;

(iv) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill;

where the drawer has countermanded payment.

………. “ [32] As for the Defendant’s postulations that the cheque was not dated and no payee was stated, the short answer is found in s.3 (4) (a) BEA which provides that a bill is not invalid by reason that it is not dated. As for payee not being stated when the Defendant first handed the Maybank cheque to the Plaintiff, in my view the payee's name can be inserted before the cheque was presented to the bank for payment. At any rate, pursuant to s. 2 BEA, the Plaintiff in this case is holder of the cheque: “2 Interpretation In this Act, unless the context otherwise requires— … “holder” means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof;” 15 [33] As such, DW2 ’s evidence does not add to the defence. [34] The Plaintiff having been deemed to have become a party thereto for value pursuant to s. 30 of the BEA and when read with s. 55 BEA, it is manifestly plain that the Defendant has not defence at all. “55 Liability of drawer or indorser

The drawer of a bill by drawing it—

engages that on due presentment it shall be accepted and paid according to its tenor, and that if it be dishonoured, he will compensate the holder or any indorser who is compelled to pay it, provided that the requisite proceedings on dishonour be duly taken;” [35] The well-known dictum of Lord Denning MR in Fielding and Platt Ltd v Najjar [1969] 2 All ER 150 applies in the context that a cheque or promissory note is to be treated as cash, and is to be honoured unless there is some good reason to the contrary, and only in exceptional circumstances will a court deprive a claimant of judgment on a claim based on a cheque. [36] That a cheque is treated as payment of cash has been applied in both Singapore and Malaysian cases; to name a few, see : Yeo Hiap Seng v Australian Food Corp Pte Ltd & Anor [1991] 3 MLJ 144, Wong Fook Heng v Amixco Asia Pte Ltd [1992] 2 SLR 342 (decisions of the Singapore High Court and Court of Appeal respectively); Dato’ Francis Ng Tian Sang v Alexander Wong Shoon Choy & Ors [2002] 7 CLJ 301; Affin Bank Bhd v MMJ Exchange Sdn Bhd & Anor [2011] 9 MLJ 787; Raymond Mah Mun Kitt v Bengjaya Sdn Bhd [2014] 1 LNS 82; Ting Sie Chung (A) v Ors v Yeap Jing Fong [2009] MLJU 244, Uni Wall Architectural Product & 16 Services Sdn Bhd v Global Upline Sdn Bhd [2011] MLJU 517; Nulink Solutions Sdn Bhd v Afdilia Holdings Sdn Bhd [2016] 6 AMR 639; Axisjaya Sdn Bhd v B Cor Geotechnics Sdn Bhd [2020] MLJU 324; Yee Teck Fah v Lee Chee Meng [2020] MLJU 1054. [37] The 2nd issue is thus answered in the affirmative. Whether the Plaintiff is making a duplicate claim for the Loan in the Present Action? [38] I am satisfied and accept the Plaintiff’s justification that he had included the claim for the same RM3million against GNP in the Kota Bharu Suit on 31.12.2021 because the present action was struck out by the High Court on 1.12.2021. As such, when the Plaintiff commenced the Kota Bharu Suit on 31.12.2021, the Plaintiff had included the loan sum in the Plaintiff’s claim to safeguard his interest. It was also made demonstrably clear to this court that the Plaintiff was taking steps to exclude the RM3million from the Kota Bharu Suit. [39] In deciding the matter, I have preferred the evidence of the Plaintiff who I viewed as ‘more credible’ in support of the Plaintiff’s contentions, as compared to the evidence of the Defendant whom I found to be unconvincing. The Defendant’s narrative simply does not add up. I thus took his evidence with a pinch of salt. Even if there were discrepancies in the Plaintiff’s evidence, if at all, were minor and not relevant, and on the whole, his evidence was quite compelling, convincing and consistent with the documents and the overall probabilities of the case. In the context of the entirety of the evidence before the court, any lingering doubts that I have, I would resolve in favour of the Plaintiff. 17 [40] Evaluating and weighing the totality of the evidence as presented by the parties in the course of the trial, I am of the view that Plaintiff has succeeded on a balance of probability that he is a holder for value of the Maybank cheque for RM3million. I also find that the Plaintiff has made out a case for unjust enrichment. [41] In light of the findings made, it follows that the Plaintiff's Claim is allowed with interests and costs subject to allocator. Dated 7th November 2023 - signed - …………………………. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Alfred Lai Choong Wu (together with him, Toh Mei Swan) Messrs Alfred Lai & Partners For the Defendant : HY Lee (together with him, Joseph Ting and Alan Tan Fu Seng) Messrs Joseph Ting & Co. CASES CITED: Bombay Cotton Manufacturing Company v Motilal Shivlal ILR 1915 39 Bom 386 Md Zainudin Bin Raujan v Public Prosecutor [2013] 3 MLJ 773 Munusamy v Public Prosecutor [1987] 1 MLJ 492 18 Husdi v Public Prosecutor [1979] 2 MLJ 304; [1979] 1 LNS 33 Suruhanjaya Sekuriti v Datuk Ishak bin Ismail [2016] 1 MLJ 733; [2016] 3 CLJ 19 Ong Guan Hua v Chong (1963) 29 MLJ 6 Ong Kee Chak v Au Heng Tong [1997] 5 CLJ 414 Fielding and Platt Ltd v Najjar [1969] 2 All ER 150 LEGISLATION/STATUTE REFERRED: Section 3 and 114(g) of the Evidence Act Section 2, 3(4)(a), 30, 48, 50(2)(c)(v) and 55 Bill of Exchange Act 1949