ONG SOO KWEE v Ong Soo Kan (WA-22NCvC-820-12/2021)

AND ONG SOO KEOK 10 (NRIC No.: 290829-10-5049) (deceased) (As Executor and Trustee of the Estate of Loh Ah Moy @ Loh Siew Keng, deceased and represented by Ong Ghee Soon as Executor and Trustee of the Estate of Ong Soo Keok, deceased)

ONG GHEE SOON (NRIC No.: 650811-10-7341) (As Trustee of the Estate of Loh Ah Moy @ Loh Siew Keng, deceased)

ONG GHEE SAI 20 (NRIC No.: 611128-10-5497) (as representative of the estate of Ong Soo Kan)

ONG SOO KIT (NRIC No.: 330127-10-5275)

KHONG KOK YEW 25 (NRIC No. 600927-71-5343)

KHONG KOK YUN (NRIC No.: 620307-71-5957)

KHONG KOK YAU (NRIC No.: 690625-10-5015)

ONG GHEE SAI (NRIC No.: 611128-10-5015) (As Administrators de bonis non of the Estate of

Loh Ah Moy @ Loh Siew Keng, deceased) ONG GIOK PIN (NRIC No.: 730616-10-5906) 35 (As Administrators de bonis non of the Estate of Loh Ah Moy @ Loh Siew Keng, deceased) …DEFENDANTS 40 10/02/2025 11:46:23 Kand. 143 S/N NM8H0Quc50iwjN6knHrg JUDGMENT (Enclosure 1) INTRODUCTION 45 [1] The parties in this suit are related to each other. Plaintiff (P) filed the present suit to determine whether the contents of the three (3) safe deposit boxes belonging to the late Loh Ah Moy @ Loh Siew Keng (LAM) should be distributed according to the last will of the deceased dated 04.03.1992. 50 [2]

2.1 After considering all cause papers, evidence at the trial, and the parties' respective arguments on a balance of probabilities, I find that the plaintiff failed to discharge his burden to establish his case 55 against the defendants. Accordingly, I dismissed the plaintiff’s claim.

2.2 After hearing parties on costs, I have awarded global costs of RM60,000.00 to D1-D2, RM35,000.00 to D3-D7, RM5,000.00 to D8- D9, payable by P within thirty (30) days from the date of this order, subject to the allocator. 60 2.3 Aggrieved, P filed this appeal, and my reasons are as follows: [3] The witnesses at the trial are:

Plaintiff: PW1: Mr Tay Kin Meng 65 PW2: Mr Tan Hun Ee, solicitor for LAM’s estate

D2 and D3: DW1: Mr Siow Kwen Sia (Forensic Handwriting Expert) DW2: Mr Ong Ghee Soon 70 S/N NM8H0Quc50iwjN6knHrg

D3 to D7: DW3: Mr Ong Ghee Sai (as representative of the estate of his father, Ong Soo Kan (originally the 3rd Defendant), who was a beneficiary of the estate of LAM and one of the administrators de bonis non of the estate of LAM.

On the hearing date:

The learned counsel for P informed me that P would not take the stand to give evidence and be cross-examined by the Ds counsels.

The defendants’ counsels were taken by surprise since they were not informed, and they were, in fact, ready to cross-examine P on his witness statement.

At this juncture, I agree with the D3-D7’s counsels that since P did not take the stand at trial, his witness statement 85 (encl.122) was never admitted into evidence and should be disregarded. [4] THE BACKGROUND FACTS IN A NUTSHELL:

4.1 One Loh Ah Moy @ Loh Siew Keng (LAM-the deceased) has a vast 90 estate located in Malaysia and overseas:

She passed away on 25.03.2001, leaving her last Will and Testament (Will) dated 04.03.1992, which is not disputed: L.106, CBOD, pp.7-9

A grant of probate was initially issued on 11.12.2001: 95 L.106, CBOD, pg.6

P and D1 were appointed co-executors and co-trustees of the deceased’s estate under the Will.

However, under a Court Order dated 22.12.2022 at Kuala Lumpur High Court Civil Suit No: WA-22NCvC-542-08/2021, it 100 S/N NM8H0Quc50iwjN6knHrg was ordered that P be removed as the executor and trustee of the deceased’s estate.

P’s appeal to the CoA was dismissed, and his motion for leave to appeal to the Federal Court was similarly dismissed.

On 20.6.2023, the Grant of Letters of Administration de bonis 105 non dated 19.6.2023 was issued to D8 and D9 vide OS No. WA- 31NCvC- 1631-05/2023.

4.2 The present dispute is founded on P's claim for three (3) safety deposit boxes in the estate of LAM:

Initially, there were five (5) disputed safety deposit boxes, but the parties later conceded that two (2) of the safety deposit boxes were to be given to P.

P claimed that these three (3) safety deposit boxes are not included in the deceased's will and, therefore, are not subject to 115 be distributed to the other beneficiaries (the defendants) of the estate of the deceased. He claims the boxes and their contents for himself.

Upon the expiry of the Will trust on the 20th anniversary (25.03.2021) of the deceased's passing, it opened the door for 120 P to claim the three (3) boxes and their contents, disregarding the other beneficiaries.

4.3 P took out the present action under OS: WA-24NCVC-673-04/2021, notwithstanding substantial factual disputes and allegations of fraud involved. On 15.12.2021, the Court ordered the OS action be 125 converted to the present Writ action.

4.4 Before the present action, several other suits over this matter had been ventilated and determined by the Courts:

2003 Suit HC Order: OS: S1-24-1161-2003 (L.106 CBOD p 20- 21).

2005 Suit HC Order: OS: S5-24-2019-2005 (L.106 CBOD p 26- 27).

2011 Suit HC Order: OS-24-2719-10/2011 (L.106 CBOD p 28- 30). 135 But the most significant application in the present action would be:

In 2003, D1: Ong Soo Keok (D1) took out an action against P seeking a Court determination on the rights and entitlement of the five (5) safety deposit boxes and their valuable contents.

In that suit, on 14.05.2004, the High Court ruled that the safety 140 deposit boxes, and their contents belong to the deceased's estate and are subject to any lawful claim by any person (2003 HC Order).

Parties did not appeal the 2003 HC Order to the Court of Appeal. It renders the 2003 HC Order final and binding and constituting 145 the truth of the matter for the parties. Res judicata bars relitigating the issue. [5] The Family Tree in the defendants' learned counsel’s submissions gives a clear picture of the parties' position: 150

5.1 The facts pleaded and argued in the OS action before its conversion to a writ showed:

P grounded his claim in the OS on the supposed discovery of a handwritten note supposedly dated 29.12.1989 by the deceased 155 stating everything in this box belongs to Soo Kwee (P).

The Ds challenged the validity and veracity of that evidence, where P failed to provide the particulars of the alleged discovery.

A handwriting expert concludes that the photocopied document was made to look like an original copy with different authorship. 160 P failed to clarify or negate this position.

Consequently, the OS action was ordered on 15.12.2021 to be converted to the present writ action.

In this converted writ action, P elected to abandon the foundation of his action in the OS, the purported new piece of a 165 S/N NM8H0Quc50iwjN6knHrg handwritten note by the deceased, which had been successfully challenged on its authenticity with no compelling rebuttal from P to salvage his position.

On the trial day of the writ action, P elected not to give any evidence on the stand and relied entirely on the unsupported 170 assertions pleaded in the SoC.

It is to be noted that I had every right to dismiss this present suit sufficiently on the grounds of res judicata alone, as the 2003 HC Order had already determined the legal position of the impugned safety deposit boxes, which binds the parties to this 175 day. Resurrecting the legally decided issues would not be allowed in the circumstances. However, I decided to examine P’s arguments to be thorough and for completeness. PLAINTFF’S SUBMISSIONS 180 [6] I had duly considered and observed P’s submissions. In a nutshell:

6.1 P argued:

In trying to justify his position on the contested impugned Note, he took a position that his oral evidence was not required to give effect to the interpretation of the estate order and the Will. It is 185 for the Court to interpret. L103 already contained all the agreed facts (Statement of Agreed Facts). Therefore, s.56 of the Evidence Act 1950 provides that it does not require P to provide oral evidence to prove its authenticity.

P submitted that he had abandoned the contested Note 190 (concerning Safety Box K1283B) by the Ds from his claim. S/N NM8H0Quc50iwjN6knHrg Consequently, it is no longer relevant or constitutes an issue in this proceeding.

Since the Ds raised the issue of fraud on the impugned Note, the burden is on them to prove it (s.103 EA 1950).

He agreed that under the 2003 HC Order, the safety deposit boxes belonged to LAM’s estate, but he submitted that the manner of distribution is an open issue for anyone with a legitimate right to prove their claim and just confined to the beneficiaries of the Will. That was made clear in the said 2003 200 HC Order.

This remains a live issue amongst the parties. The 2003 HC Order permits any party with a legitimate right to claim distribution of the contents of the safety deposit boxes read together with the Will. He took the position that this issue was 205 not determined by the Court in the HC 2003 Order, thereby granting him the liberty to raise the issue now. Estoppel should not prevent him from ventilating this.

Extrinsic evidence can be used to establish LAM’s intention to gift the contents of Safety Deposit Box K1283B to whom she 210 wants: Halsbury’s Law Vol.50, para 383: Evidence as to gift to the executor: Where a testator has expressed outside his will the intention of making a gift of personal estate to a person who, on his death, becomes his Executor, the Court admits extrinsic evidence of the intention. 215 I observed:

As rightly pointed out by the counsels for the Ds concerning the purported claim of gift (Notes in OCBC Box K1283B and OCBC Box K997B), no tangible evidence was adduced to 220 support P’s position during the trial, nor was it subject to the S/N NM8H0Quc50iwjN6knHrg Ds' right to test it in cross-examination. It was his choice not to offer evidence to corroborate his position. The said argument must fail for want of duly tested evidence at the trial of this action.

It was also pointed out that these are matters not pleaded in P's pleadings. It is trite law that the Court cannot entertain issues outside of his pleadings.

Similarly, regarding his position on the contents of OCBC Box 1741LA (principle of survivorship), P adduced no 230 tangible evidence at the trial that could be tested in cross-examination. It also has to fail for want of compelling and thoroughly tested evidence.

P claimed that he has complete control, custody and possession of 235 the key to the Joint Safety Deposit Box, where the Ds has not challenged his dominion as a sole custodian of the key to the box. Upon LAM's death, he is entitled to LAM’s share under his complete dominion over the box. I observed:

As with the foregoing, by Ps choice, there is no tested evidence led at the trial to establish this assertion.

I am inclined to conclude on the totality of the facts in the present case that P did not come to Court with clean hands. 245 In such circumstances, P prays for order in his prayers regarding the distribution of the Security Deposit Boxes as set out in his SoC. D1-D2 SUBMISSIONS [7] I had duly considered and observed their submissions. In a nutshell, 250 they argued:

7.1 Res Judicata and Estoppel.

Res Judicata and Estoppel apply: S/N NM8H0Quc50iwjN6knHrg

The 2003 HC Order had already determined the safety deposit boxes belonged to the LAM estate. They were to be 255 distributed according to the will and subject to legitimate claims.

P’s positions in the 2003 High Court proceedings, in adding those five safety boxes into the list of assets of the LAM estate, give rise to estoppel.

The Federal Court in Sykt Sebati Sdn Bhd v Pengarah Jabatan Perhutanan & Anor [2019] 2 MLJ 689, FC held the elements to be satisfied to invoke res judicata:

That the decision was judicial.

(ii) It was pronounced.

(iii) The tribunal had jurisdiction over the parties and the subject matter.

(iv) The decision was final and on the merits.

It determined the same questions as that raised in the later 270 question, and the parties to the later litigation were either parties to the earlier litigation.

P had already included the deceased’s five safety deposit boxes as part of the deceased’s list of assets under the Grant of 275 Probate: Enc.106, BOD (B1), pp.6-15

The 2003 Suit sought to determine the rights and entitlement to the contents of the LAM estate’s safety deposit boxes.

The High Court ordered that the contents belonged to the LAM estate subject to any legitimate claims made against the estate. 280 S/N NM8H0Quc50iwjN6knHrg

7.2 In the present suit, P elected to rely on specified notes:

OCBC Box K1283B, there are three notes:

CBC Note - OCBC Box K1283B.

(ii) King’s Hotel Note - OCBC Box K1283B; and

(iii) 2002 Note – OCBC Box K1283B.

P seeks a distribution following the specific bequest in 290 OCBC Box K1283B (4/15 shares to him) and (1/15 shares to Ds), which appears to be based on the King’s Hotel Note - OCBC Box K1283B with no explanation or evidence on why the other two notes were not applicable.

The pleaded case in support of P’s claim for OCBC Box 295 1283B, however, was not according to the King’s Hotel Note - OCBC Box K1283B (para 7(1)(a) -(c) & 8(iii)(c) of the SoC).

It is trite law that parties are bound by their pleadings, and the case cannot be decided on a matter not pleaded. The 300 word “bequest” is defined by Jowitt’s Dictionary of English Law (5th edn): “…To bequeath property is to leave it by will, and a bequest is a gift by will. A bequest is technically of personality, whilst a gift by will of real property is a devise …” 305

OCBC Box K987B, there are two notes:

A note stating, “All jewellery + everything also belongs to the Estate of Loh Ah Moy. 1st March 91 Unsigned”; and

(ii) Business Card Note-OCBC K987B stating, “Everything in 310 this box belongs to Soo Kwee. Signed Loh Ah Moy, 12-89”.

P again was selective. He only sought to rely on Business Card Note-OCBC K987B in support of his claim regarding 315 the same, with no explanation or evidence adduced.

The Business Card Note-K987B OCBC Box was dated 29.12.1989.

It predates the Will, which LAM made on 4.3.1992.

The will clearly states that LAM revoked all wills and codicils 320 she made and declared that this would be her last Will.

OCBC Box 1741LA:

P relies on the doctrine of joint survivorship to claim that the 325 safety deposit boxes belong to him.

D3-D7 submitted that the doctrine of survivorship does not apply.

The Court of Appeal in Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2006] 4 MLJ 705 held that the 330 survivorship clause or the right of survivorship merely entitles the survivor to receive the money and enables the bank to pay the money to the survivor and the survivorship clause alone and does not confer beneficial ownership. 335 7.3 P elected not to offer evidence at the trial. In this writ action that was initially an OS, P affirmed an affidavit on 30.03.2021 contending that there was a specific bequest to him premised upon a handwritten note allegedly by LAM in respect of K1283B OCBC Box that P had purportedly just discovered (“the 340

A series of correspondences were exchanged for the original Note to be made available to the Ds for verification by a handwriting expert.

On 5.10.2021, the solicitor for P informed the court that they 345 would no longer rely on the Note for his claim in the OS.

P refused to give oral evidence at trial without any valid reason given:

This is despite P being present at trial.

Being listed as a witness in the list of witnesses and even 350 having filed a witness statement (Enc. 122).

It is trite law that a plaintiff must prove his case.

This is against the backdrop that conflicting notes are contained within OCBC Box K1283B and OCBC Box K987B.

Plain reading of the notes sans oral evidence/corroboration does not give context and is contradictory.

I agree with the submission of the learned counsel that an adverse inference under s.114(g) Evidence Act 1950 applies to 360 P that this court may presume that evidence which could be and is not produced would, if produced, be unfavourable to P: United Logistics Sdn Bhd v Stamford College (PJ) Sdn Bhd [2016] MLJU 392. In the circumstances, the defendants pray that the claim by P is dismissed 365 with cost and that the contents of the Safety Deposit Boxes (save for the contents in the 3339A & 4527B HSBC Boxes as at the time of LAM’s death) be distributed to the beneficiaries of LAM’s estate according to the Will. D3-D7 SUBMISSIONS 370 [8] D8 and D9 are the joint administrators de bonis non of LAM’s estate.

8.1 I had duly considered and observed the submissions. In a nutshell, D3-D7 argued as follows:

8.2 D3-D7 took a similar position to D1-D2:

That P’s action is dismissed with cost.

The contents of the Safety Deposit Boxes (save for the contents in the 3339A & 4527B HSBC Boxes as at the time of LAM’s S/N NM8H0Quc50iwjN6knHrg death) be distributed to the beneficiaries of LAM’s estate according to the Will. 380 8.3 D3-D7 argued that the Safety Deposit Boxes must be distributed according to the Will:

Regarding K1283B OCBC Box, K987B OCBC Box, and the 1741LA OCBC Box, the contents in these safe deposit boxes belong to LAM’s estate and, therefore, are to be distributed to 385 the beneficiaries according to the Will.

The issue of the ownership of the contents of the Safety Deposit Boxes is res judicata.

Concerning K987B OCBC Box, the learned counsel submitted that the Business Card Note – K987B OCBC Box cannot form a 390 specific bequest to P as the Will prevails over the said note.

As for 1741LA OCBC Box, it was argued that the doctrine of survivorship does not apply because:

There is no principle of joint survivorship that determines whether the survivor of a joint account is beneficially entitled to the money in the 395 joint account.

(ii) Whether the survivor is beneficially entitled to the money is another question. THE LAW 400 [9] A joint reading of ss 101, 102 and 103 of the Evidence Act 1950 provides that the burden of proof in civil cases rests on a party who substantially asserts the affirmative on the issue and not upon the party who denies it for a negative is incapable of proof.

9.1 The Court must not only weigh such evidence on a balance of 405 probabilities but must also consider the surrounding circumstances and evaluate contemporary documents that may tend to establish S/N NM8H0Quc50iwjN6knHrg the truth or otherwise of a given fact: Guan Teik Sdn Bhd v Hj Mohd Noor bin Hj Yakob & Ors [2000] 4 MLJ 433, CA.

9.2 The Federal Court in Johara Bi bt. Abdul Kadir Marican v. 410 Lawrence Lam Kwok Fou & Anor [1981] 1 MLJ 139, FC ruled that it was all a matter of proof and that until and unless the plaintiff has discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the defendant. No matter if the defendant's case was completely unbelievable, the claim against 415 him must, in these circumstances, be dismissed.

9.3 The burden of proof lies on the party who would fail if no evidence were given by both parties to a suit [Selvaduray v Chinniah [1939] MLJ 253; EA 1950, s 102, illustration (a)].

9.4 Where a party seeks relief, the onus is on such party to satisfy the 420 court that they are entitled to the relief sought: Nanyang Development (1966) Sdn Bhd v How Swee Poh [1970] 1 MLJ 145, FC. FINDINGS 425 [10] I have examined all relevant cause papers and the parties' submissions and concluded that P failed to prove his case on the balance of probabilities caused by the absence of compelling evidence.

10.1 I agree with the Ds that refusing to offer evidence for his case as a 430 key witness and to be cross-examined on his evidence reflects volumes on his demeanour and the veracity of his claim.

10.2 In the circumstances:

The fact that P attempted to produce potentially fraudulent evidence must be answered in court. It goes to his demeanour 435 and truthfulness to the court.

Though he had dropped this fraudulent evidence in this converted writ action, he still needed to answer for the suspect evidence he had knowingly adduced to the court.

Failure to do so would not abode well for his position before this 440 Court. Therefore, an adverse inference under s.114(g) of the EA 1950 is warranted against P.

10.3 The subject matter of P’s claims concerning the impugned safety deposit boxes:

Had been thoroughly ventilated and determined in the 2003 HC 445 Order. A final and binding order on the parties before me that has not been stayed varied or set aside. In the circumstances, I find for the defendants that this action must be barred by res judicata.

Res-judicata would bar the decided issues from being re- 450 litigated herein: Asia Commercial Finance (M) Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189, FC: "(1) When a court of competent jurisdiction has adjudicated a matter between two parties, they and their privies are not permitted to litigate once more the res judicata, as the Judgment becomes the truth 455 between such parties. An estoppel per rem judicatum has been created as a result.

Issue estoppel prevents contradiction of the correctness of a final judgment by the same parties in a subsequent proceeding. S/N NM8H0Quc50iwjN6knHrg

The court has an inherent jurisdiction to dismiss an action by applying 460 the doctrine of res judicata, which is estoppel based on public policy, even if it has not been pleaded, as public policy requires that there should be finality in litigation."

The Court of Appeal Hartecon JV Sdn Bhd v Hartela 465 Contractors Ltd [1996] 2 MLJ 57, CA observed: "A failure to adhere to the principle of res judicata may lead to chaos in civil proceedings. It would be a circular tail-chasing exercise with no forward movement, proving to the man on the street that the maxim 'the law is an ass' is not without content. The absurd results that would ensue in 470 accepting the contention of counsel demonstrate the inaccuracy of the proposition advanced... Extending that principle's scope would be to effectively demolish the requirements of certainty and finality, which are the two pillars on which the judicial process rests." 475

Section 25(2) CJA read with the Schedule, which empowers the Court to dismiss proceedings where the matter in question is res judicata between the parties.

As correctly cited by the Ds, it bears repeating that the Federal Court in Syarikat Sebati Sdn Bhd v Pengarah Jabatan 480 Perhutanan & Anor [2019] 2 MLJ 689, FC, observed that to establish res-judicata all that is needed is that:

The decision was judicial in the relevant sense.

That it was pronounced.

The tribunal had jurisdiction over the parties and the subject 485 matter.

That the decision was:

final and

(ii) on the merit.

That it determined the same questions raised in the later 490 question; and

That the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem. S/N NM8H0Quc50iwjN6knHrg CONCLUSION 495 [11] All things considered:

11.1 I find that P failed to discharge his burden on his claim. Accordingly, I dismissed P’s claim against the defendants.

11.2 Global costs of RM60,000.00 is awarded to D1-D2, RM35,000.00 is awarded to D3-D7, RM5,000.00 to D8-D9, payable by P within thirty 500

days from the date of this order, subject to the allocator. Dated 10.02.2025. 505 HAYATUL AKMAL ABDUL AZIZ JUDGE 510 HIGH COURT OF MALAYA WILAYAH PERSEKUTUAN KUALA LUMPUR 515 Parties: Jerry Y.T. Ling Messrs Lee, Ling & Partners for the Plaintiff Daniel Albert, together with Nicholas Yap Chun Yew 520 Messrs Daniel & Wong for the 1st and 2nd Defendants Hazel Siau Messrs Elizabeth Lau for the 3rd to 7th Defendants 525 Siew Choon Jern, together with Ong Chern Yii Messrs Douglas Yee for the 8th and 9th Defendants S/N NM8H0Quc50iwjN6knHrg