Public Bank Bhd v 1. ) See Swee Keat (WA-12BNCvC-93-08/2024)

SEE SWEE KEAT (No. K/P: 711128-10-5858)

HENG SAU WAH (No. K/P: 470419-10-5036) …RESPONDEN-RESPONDEN [Dalam Mahkamah Sesyen Di Kuala Lumpur Dalam Wilayah Persekutuan Kuala Lumpur, Malaysia

SEE SWEE KEAT (No. K/P : 711128-10-5858)

HENG SAU WAH (No. K/P : 470419-10-5036) … Plaintif-Plaintif Dan 14/08/2025 10:38:32 WA-12BNCvC-93-08/2024 Kand. 29 S/N 9GYNwaCQJ0mhqg0teGvqLg PUBLIC BANK BHD. (No Syarikat : 196501000672 [6463-H]) … Defendan GROUNDS OF JUDGMENT INTRODUCTION [1] This is an appeal against the decision of the learned Sessions Court Judge (SCJ) that allows the Respondents’ claim against the Appellant (Appeal). The Respondents also cross appeal to alter the accrual date of the interests (Cross Appeal). [2] For ease of reference, the respective parties will be referred to as the Plaintiffs and Defendant as they were in the Sessions Court. BRIEF FACTS [3]

At the Sessions Court, after the trial on 2.6.2022, 3.6.2022,

3.2024 and 19.3.2024, the learned SCJ then allowed the Plaintiffs’ claim on 22.7.2024 and entered judgment against the Defendant in the sum of RM111,018.46 with interest accruing from 6.1.2021 (date of the Writ) until 22.7.2024 at the rate of 5% per annum on the judgment sum from 22.7.2024 until the date of full settlement and costs of RM10,000.00. [4] The witnesses were the Plaintiffs, a mother and daughter, Madam Heng (SP-1) and Ms See (SP-2) and the Defendants’ witnesses were Mr. Tung Chee Chong (SD-1) as the Senior Assistant Manager of System S/N 9GYNwaCQJ0mhqg0teGvqLg Control, Banking Operations Division at the Defendants’ Head Office in Kuala Lumpur and Ms. Lam Pak Aoi (SD-2) as the Head of Red-Carpet Banking (RCB) at the Defendants’ Kuala Lumpur City Main Office. [5] On 9.3.1996, the Plaintiffs jointly opened a Fixed Deposit account No.: 000215-0 (FD Account) with the Defendant, subject to the rules and regulations of the Bank's Fixed Deposit Receipt (Rules and Regulations). The Plaintiffs have been customers of the Defendant since 9.3.1996 and remain customers of the Bank to-date. [6] The mandate to operate the FD Account is to be operated by any one of the Respondents. At all material times, the 2nd Plaintiff also opened and maintained several other fixed deposit accounts with the Defendant, in addition to the FD Account in question. [7] On 21.7.1996, the Plaintiffs initially placed two (2) fixed deposits with the Defendant, one for RM50,000.00 with fixed deposit receipt no. 211031 (FD Receipt 031) and another for RM60,000.00 with fixed deposit receipt no. 211032 (FD Receipt 032), each for a 3-month term (maturity date on 21.10.1996), with instructions for automatic renewal. [8] On 21.10.1996, FD Receipt 031 and FD Receipt 032 were automatically renewed resulting in Fixed Deposit Receipt No. E989564 (FD Receipt 564) for RM50,917.48 and Fixed Deposit Receipt No. E989565 (FD Receipt 565) for the sum of RM61,100.98, each for another 3-month term (maturing on 20.1.1997), with instructions for automatic renewal. S/N 9GYNwaCQJ0mhqg0teGvqLg [9] On 20.1.1997, FD Receipt 564 and FD Receipt 565 were automatically replaced and renewed into Fixed Deposit Receipt No: 898112 for the sum of RM51,845.92 (RM50,000 including interest) (FD Receipt 112) and Fixed Deposit Receipt No: 898111 for the sum of RM62,215.11 (RM60,000 including interest) (FD Receipt 111) replacing the initial FD Receipt 564 and FD Receipt 565, respectively. During the trial, the original FD Advice Receipts 112 and 111 were produced by the Defendant Bank and the Plaintiffs confirmed that they do not possess the originals and this evidence remained undisputed. [10] For ease of reference, the flow of the Fixed Deposits are as follows-FLOW OF THE FDs FD Receipt 031 FD Receipt 564 (Renewed) FD Receipt 112 (Renewed) RM50,000.00 RM50,917.48 RM51,845.92 FD Receipt 032 FD Receipt 565 (Renewed) FD Receipt 111 (Renewed) RM60,000.00 RM61,100.98 RM62,215.11 [11] SP-2’s evidence-in-chief confirmed that the 2nd Plaintiff does not withdraw cash from the FD Account but there were direct transfers of monies from the FD Account to her own current account when making withdrawals. However, the Plaintiffs failed to produce the 2nd Plaintiff’s Current Account Statement to prove that the monies under FD Receipts 112 and 111 (which renewed and replaced FD564 and FD565) were still outstanding. Both the Plaintiffs confirmed that they are not in possession of the original FD Receipts for 112 and 111. S/N 9GYNwaCQJ0mhqg0teGvqLg [12] Around 1997, there was some changes in the banking system of the Defendant. According to the Defendant, the Defendant underwent a nationwide system transition from the Standalone PC system to Branch Delivery system. During cross-examination, SD-1 explained that all balances from the old Standalone PC System including fixed deposit accounts were transferred to the Bank’s new Branch Delivery System. The Standalone PC system has to be "zerorised". As a result of the transition, all fixed deposit receipts for the Defendant 's customers (including the Plaintiffs) that are still outstanding and unpaid at that time, were transferred entirely and recorded in the Defendant’s new system. The transition resulted in a new fixed deposit account number i.e number 1-0171407-31 being assigned to the Plaintiffs' Fixed Deposit Account (New FD Account Number), replacing the Plaintiffs’ old account no. 000215-0. [13] The conversion in the Defendant’s system resulted in all FD receipts that are still outstanding and have not been paid in the Defendant’s old system at the material time to be transferred in its entirety and recorded in the Defendant’s new system. As at 31.12.1997, the Defendant Bank's Daily Time Trial Balance shows that the Plaintiffs had only two (2) outstanding FDs at that time, namely Cash Deposit 1 (CD1) and Cash Deposit 2 (CD2) which were outstanding in the total amount of RM135,640.75 (RM79,395.50 + RM56,245.25). Pursuant to the Bank's Time Trial Balance, all of the Respondents’ monies in the FD Account have been accounted for. [14] During the trial, the SD-1 produced Statements of Accounts of the FD Account dated 22.8.2003, 21.10.2013 and 21.6.2015 to show the flow of monies for CD1 showing the withdrawal of monies in relation thereto. As for CD2, the monies were credited into the 2nd Plaintiff’s Current Account and the Bank, bound by banking secrecy under the Financial Services Act 2013, was unable to disclose the same. S/N 9GYNwaCQJ0mhqg0teGvqLg [15] On 5.2.2020, the Registrar of Unclaimed Money, Accountant General's Department (JAN) confirmed to the Plaintiffs that there is no record of any unclaimed money under the Plaintiffs' names, including the two (2) claimed FDs. Accordingly, for an FD which was placed under automatic renewal mode to be transferred to JAN, the FD must be dormant for more than seven (7) years. Accordingly, in the present case, if the FD Receipt 564 and FD Receipt 565 were not withdrawn by the Plaintiffs, the funds would have been remitted to JAN. [16] Further, SD1 confirmed that the two (2) notices would be sent when an account remains inactive for nearly seven (7) years; one at about six years, and another near seven years. However, in this case, no such notices were sent to the Plaintiffs as their FD Account did not fall under the "unclaimed" category. In other words, there is no longer any outstanding balances under FD Receipt 564 and FD Receipt 565. [17] Therefore, the following facts are material-

FD Receipt 564 and FD Receipt 565 were automatically renewed and replaced with FD Receipt 112 FD Receipt 111 respectively, on 20.1.1997. Consequently, the former FD receipts have expired and are no longer outstanding and/or valid for payment;

The latest original FD Receipt 112 and FD Receipt 111 (which subsequently renewed and replaced FD Receipt 564 and FD Receipt 565), are no longer in the possession of the Plaintiffs;

Financial institutions, including the Defendant, are required in law to retain records for only seven (7) years and the Defendant has been adversely prejudiced by the Plaintiffs’ action which was initiated after 24 years;

adverse inference under section 114(g) of the Evidence Act 1950 (EA 1950) ought to have been drawn against the Plaintiffs for their failure and refusal to produce the passbook and/or statements of account for the 2nd Plaintiff’s current account;

it was not contradicted that the 2nd Plaintiff has been a member of the Defendant’s Red-Carpet Banking (RCB) Programme since year 1997 and as such, the 2nd Plaintiff was entitled to certain privileged services at her request, including to collect the renewed FD receipts, namely FD Receipt 112 and FD Receipt 111, without immediately returning the original expired FD receipts of FD Receipt 564 and FD Receipt 565 at that material time; and

on 5.2.2020, JAN confirmed that there was no unclaimed money under the Plaintiffs’ names for the FD Account. [18] Accordingly, the Bank's Daily Time Trial Balance as at 31.12.2017 evidently showed that the monies maintained by the Plaintiffs with the Bank under the FD Account had been accounted for and that FD 112 and FD 111 were no longer outstanding. ANALYSIS AND FINDINGS [19] Order 55 Rule 2 of the Rules of Court 2012 provides that an appeal from the subordinate court is by way of a rehearing. [20] In this regard, it is trite that the appellate court can intervene with the finding of facts by the trial court where the trial court has so fundamentally misdirected itself. In the Court of Appeal case of Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd [2010] 1 MLJ 85 it was held- “[64] Finally, I will now say something about the finding of facts by the High Court which has been alluded to by my learned brother Low Hop Bing, JCA. An appellate court will not readily interfere with the finding of facts arrived at by the trial court. It is trite law that the primary task of evaluation of the evidence and the function of determining where the truth lies, on a balance of probabilities, is entrusted by law to the trial court. And the appellate court is under a duty to intervene with the finding of facts by the trial court where the trial court has so S/N 9GYNwaCQJ0mhqg0teGvqLg fundamentally misdirected itself that a reasonable man may safely say that no reasonable court which had properly directed itself and asked the right questions would have arrived at the same conclusion (Renal Link (KL) Sdn Bhd v. Dato' Dr Harnam Singh [1997] 1 MLRA 259; [1997] 2 MLJ 373; [1997] 3 CLJ 225; [1997] 3 AMR 2430 CA; Heller Factoring Sdn Bhd (previously known as Matang Factoring Sdn Bhd) v. Metalco Industries (M) Sdn Bhd [1995] 1 MLRA 641; [1995] 2 MLJ 153; [1995] 3 CLJ 9; [1995] 2 AMR 1353 CA; Associated Tractors Sdn Bhd v. Woo Sai Wa [1996] 4 MLRH 21; [1997] 5 MLJ 441; and Setapak Heights Development Sdn Bhd v. Tekno Kota Sdn Bhd [2006] 1 MLRA 413; [2006] 3 MLJ 131; [2006] 2 CLJ 337; [2006] 3 AMR 410 CA). [65] The case of Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors and Other Appeals [2002] 2 MLRA 319; [2003] 1 MLJ 567; [2003] 1 CLJ 585; [2003] 2 AMR 6, CA , sets out certain categories in which appellate interference may be warranted. It would be ideal to set out, briefly, instances where the finding of facts by the trial court was reversed by the appellate court:

non-consideration or insufficient or no judicial appreciation of material evidence constitutes "insufficient judicial appreciation of relevant evidence" (Asean Security Paper Mills Sdn Bhd v. CGU Insurance Bhd [2007] 1 MLRA 12; [2007] 2 MLJ 301; [2007] 2 CLJ 1; [2000] 2 AMR 1270, FC );

where the audio visual advantage reserved to a trial judge had been missed or that the findings made by the trial judge do not accord well with the probabilities of the case (Len Min Kong v. United Malayan Banking Corp Bhd and Another Appeal [1997] 2 MLRA 441; [1998] 2 MLJ 478; [1998] 2 CLJ 879; [1998] 3 AMR 2641, CA ; Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd and Other Appeals [2004] 1 MLRA 832; [2004] 4 MLJ 105; [2004] 4 CLJ 282; [2004] 6 AMR 319, CA ; and Gan Yook Chin (P) & Anor v. Lee Ing Chin @ Lee Teck Seng & Ors [2004] 2 MLRA 1; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781, FC);

where the facts were misapprehended and the wrong principles of law were blindly applied by the trial judge (Lim Chor Ching & Anor v. Idris Abdul Karim (and Anor Appeal) [1998] 1 MLRH 367; [1998] 3 CLJ Supp 145 at 156 a-g);

where there was a failure to assess the evidence with the documents at hand and view it against the probabilities of the case (Loo Hon Kong v. Loo Kim Lim @ Loo Kim Leong [2004] 1 MLRA 711; [2004] 4 CLJ 1; [2004] 4 AMR 591, CA);

where there was a failure to consider the relevancy of contemporaneous documents (Eastern & Oriental Hotel (1951) Sdn Bhd v. Ellarlous George Fernandez & Anor [1988] 1 MLRA 172; [1989] 1 MLJ 35; [1988] 1 CLJ (Rep) 50; [1988] 2 CLJ 734,

where the finding of facts was contrary to the documentary evidence (Associated Tractors Sdn Bhd v. Woo Sai Wa (supra)). [21] This Court finds that the learned SCJ had failed to judicially appreciate all the material evidence submitted, and thereby warranted an appellate intervention based on the following deliberations. [22] The Plaintiffs contended that they have the originals for FD Receipt 564 and FD Receipt 565. However, those 2 FDs were automatically renewed upon maturity, and were effectively replaced by FD Receipt 112 and FD Receipt. Therefore, the original FD Receipt 564 and FD Receipt 565 can no longer be valid for payment. FD Receipt 564 and FD Receipt 565 have been renewed and replaced by subsequent FD Receipts 112 and 111. Furthermore, SP-1 admitted that she does not possess the originals. It is therefore it was apparent that the FDs had been withdrawn. [23] Further, this Court finds that the act of the Plaintiffs in filing this claim, only after 24 years, alleging that the FD Receipt 564 and FD Receipt 565 are still in their possession, and therefore the sums are still outstanding, as unusual in a normal sense. There is certainly a delay on the part of the Plaintiffs in taking this action to Court. No explanation has been offered by the Plaintiffs for this delay. It is a cardinal principle of law that when a S/N 9GYNwaCQJ0mhqg0teGvqLg litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. [24] Additionally, section 245(3) of the Companies Act 2016 provides: “245. Accounts to be kept …

The company shall retain the records referred to in subsection (1) for seven years after the completion of the transactions or operations to which the entries relate.” [25] Likewise, in the Court of Appeal case of Hong Leong Bank Bhd lwn Chan Siew Tneg (p) dan satu lagi [2012] 6 MLJ 81; [2011] CLJU 1741, it was held- “[17] Hakim perbicaraan menolak keterangan SD1 bahawa dokumen-dokumen penting mengenai akaun simpanan tetap si mati telah dimusnahkan dan defendan tidak lagi menyimpan rekod-rekod lama selepas tujuh tahun. Rekod-rekod tersebut telah dimusnahkan mengikut amalan defendan dan selaras dengan garis panduan Bank Negara Malaysia. Sebaliknya hakim perbicaraan telah menggunapakai s 114(g) Akta Keterangan terhadap defendan kerana gagal memanggil saksi-saksi dari Bank Negara bagi membuktikan garis panduan tersebut. Seksyen 167(2) Akta Syarikat 1965 jelas mengatakan bahawa obligasi untuk menyimpan rekod mengenai akaun hanyalah untuk selama tujuh tahun sahaja. Keterangan di dalam kes ini jelas menunjukkan bahawa defendan telah melakukan apa sahaja yang perlu mengikut undang-undang untuk mengesan cek bank yang telah ditunaikan oleh plaintif termasuk mendapatkan perintah mahkamah bertarikh 27 Julai 2007 yang mengarahkan MBB membekalkan butir-butir akaun cek bank No 9590 bertarikh 31 Oktober 1996 berharga RM113,090.28 yang dikeluarkan atas nama plaintif tetapi MBB tidak dapat mematuhi perintah tersebut kerana ia juga tidak lagi menyimpan rekod-rekod lama selepas tempoh tujuh tahun.” (Emphasis added) S/N 9GYNwaCQJ0mhqg0teGvqLg [26] This Court cited with approval the case submitted by the Defendant of Standard Chartered Bank v Tiong Ngit Ting (F) [1998] 5 MLJ 220; [1997] 5 CLJ 552, where it was held- “Assuming in the present case that the said amount had not been withdrawn from the appellant bank. Then the said amount would have remained with the appellant and on the coming into force of the 1965 Act, upon the account becoming dormant, the said deposit would have been remitted to the Registrar and it would have been in the record of the said Registrar but in this case there was none. The next assumption is the appellant must have kept the amount for itself and gave the excuse that its record beyond the ten-year period had been destroyed.… This action in the court below was instituted by the respondent. It is for the respondent in order to succeed to establish her case on the balance of probabilities. It is not for the appellant as a defendant to supplement the lacuna in the evidence of the respondent to assist the respondent to succeed in her claim…” [27] This Court is of the considered view that the learned SCJ had erred in her finding when she decided that the Plaintiffs had proven their case against the Defendant and reversed the burden of proof on the Defendant to prove that the FD sum has not been withdrawn. It is plainly obvious that the FD receipts 111 and 112, are in the possession of the Defendant and not with the Plaintiffs. The learned SCJ has not taken into account the fact that the FD Receipts 112 and FD Receipts 111 were subsequently renewed and replaced the subject FD receipts. [28] Based on the case of Tiong Ngit Ting (supra), the burden of proof lies with the Plaintiffs, on a balance of probabilities, to show that the FD Receipts are still outstanding. This, the Plaintiffs failed. In Tiong Ngit Ting (supra), the plaintiff brought a claim against the defendant bank for S/N 9GYNwaCQJ0mhqg0teGvqLg purported monies outstanding in his fixed deposit account, which he had deposited in 1955. The plaintiff only brought a claim against the defendant bank in 1987. Although the defendant bank could not produce any records to show that the plaintiff had withdrawn the money in the fixed deposit account due to excessive effluxion of time, the defendant bank alleged that if the money was actually outstanding, the money would be transferred to JAN. Upon checking with JAN, it was found that the details of the deposit were not in the register. Excerpt of the facts- “Interrogatories were ordered against the appellant before the trial of the action. In answer to the interrogatories by the respondent, the appellant admitted that the respondent had a fixed deposit account with the appellant bank on 17 September 1955, the date shown in exh. "P1", wherein $10,000 was credited into the account on that date. It admitted that the exhibit was on the letterhead of its successor in title. As to whether the said deposit had been repaid to the respondent with accrued interest, the answer given was that the practice of the appellant in regard to fixed deposit were and are that on the opening of a fixed deposit account, a fixed deposit certificate or receipt printed on security paper would be issued to the depositor. The depositor would have to surrender the fixed deposit certificate or receipt to withdraw the deposit. However, in this particular case, the appellant is unable to provide any record of the withdrawal of this fixed deposit as this related back to 1955, and the practise of the appellant was and is to retain the register of fixed deposits issued and paid for a period of ten years only. The register now kept by the appellant does not show the alleged fixed deposit at all, indicating that the fixed deposit must have been withdrawn. Further, if the said deposit was not withdrawn, then it would have come within the meaning of unclaimed money under the Unclaimed Monies Act 1965 (hereinafter referred to as 'the 1965 Act').The appellant wrote to the Registrar of Unclaimed Monies (hereinafter referred to as 'the Registrar') on the matter and the reply received from the Registrar was that they do not have on their register the particulars in respect of the said deposit. The reply to the interrogatories goes further to state that the above facts indicate that the amount of the fixed deposit must have been withdrawn sometime prior to the coming into effect of the 1965 Act upon the presentation of the certificate so issued. As to the receipt or documentary proof of repayment of the said RM10,000 the appellant answered the interrogatories that since it is the practice of the appellant to retain the register of fixed deposit issued and paid only for a period of 10 S/N 9GYNwaCQJ0mhqg0teGvqLg years, the receipt or documentary proof of the repayment is no longer available.”. [29] In allowing the appeal the Court in Tiong Ngit Ting (supra) held- “The burden is on the respondent as the plaintiff in this case to satisfy the court on the balance of probabilities and not for the appellant as the defendant to prove that the amount deposited has not been withdrawn. … Assuming in the present case that the said amount had not been withdrawn from the appellant bank. Then the said amount would have remained with the appellant and on the coming into force of the 1965 Act [Unclaimed Monies act 1987], upon the account being dormant, the said deposit would have been remitted to the Registrar and it would have been in the record of the said Registrar but in this case there was none.... It is not for the appellant as a defendant to supplement the lacuna in the evidence of the responsen to assit the respondent to succeed in her claim such as to provide the maturity date, interest rate, etc provided for the fixed deposit based on the evidence of the acceptance of teh deposit in exh P-1. She has to satisfy the court on the balance of probabilities that the said acmount stated in exh P-1 which is not a deposit receipt for a fixed deposit account had not been withdrawn. On the evidence as a whole, she has failed to do so.” [30] Furthermore, the Plaintiffs have failed or refused to produce the passbook or the statement of accounts for the 2nd Plaintiff’s personal Current Account to support their contention that the monies under the subject FD receipts were still outstanding. The Plaintiffs did not provide a valid reason as to why the passbook or the statement of accounts for the 2nd Plaintiff’s personal Current Account were not produced, when such documents are within the possession and control of the 2nd Plaintiff at all material times. The failure on the part of the Plaintiffs to produce the passbook or the statement of accounts for the 2nd Plaintiff’s personal S/N 9GYNwaCQJ0mhqg0teGvqLg Current Account is an adverse inference under section 114(g) of the Evidence Act 1950, that the Plaintiffs are withholding evidence. [31] Finally, this Court finds that on a balance of probabilities, the Plainitffs have failed to prove their case. Thus, the appeal is allowed. The Respondents’ Cross-Appeal [32] The cross-appeal seeks to vary the date from which interest accrues on the judgment sum, varying it from the maturity of FD Receipt 564 and FD Receipt 565 from 20.1.1997 until 22.7.2024, a period of 24 years. [33] As this Court has decided that the appeal is allowed, consequently, the cross appeal is also dismissed accordingly. CONCLUSION [34] The Appeal is allowed and the cross appeal is dismissed with costs. Dated: 12 AUGUST 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC1 Kuala Lumpur S/N 9GYNwaCQJ0mhqg0teGvqLg COUNSELS For The Appellant : Marianne Loh dan Chan Jia Lin Tetuan Shook Lin & Bok For The Respondents : S. Kandasivam Tetuan Lawrence Hisham & Co. S/N 9GYNwaCQJ0mhqg0teGvqLg