i
(i) the trite legal position on the standard of proof for forgery cases in civil proceedings is on a balance of probabilities; and (ii) the important principles relating to the burden of proof on a party asserting a document’s validity and on a party alleging forgery. The following principles may be distilled from the judgment of the Federal Court: There is an essential distinction between burden of proof and onus of proof. The burden of proof lies upon the person who has to prove a fact and it never shifts but the onus of proof shifts; The burden of proof in s 101 of the Evidence Act 1950 (‘the legal burden’) is the burden to establish a case which rests throughout on the party who asserts the affirmative of the issue; Page 6 of 9 The burden of proof in s 102 of the Evidence Act (‘the evidential burden’) is the burden to adduce evidence, to make out or rebut the claim. The burden of proof in s 102 shifts from one side to the other according to the weight of the evidence; The plaintiff has both the burden of proof as well as the initial onus of proof; The plaintiff is bound in the first instance to show a prima facie case; When the plaintiff gives such evidence as will support a prima facie case, the onus shifts on to the defendant, to adduce rebutting evidence to meet the case made out by the plaintiff; In a civil case, the onus of proving the genuineness of a deed is cast upon the party who produces it and asserts its validity. If there be conflicting evidence as to the genuineness, either by reason of alleged forgery or otherwise, the party asserting the deed must satisfy the court that it is genuine; and There is no law which says that a claim automatically succeeds if the defence fails. A claim succeeds only if a prima facie claim is made out or the cause of action is admitted, and there is no defence. [6] On the evidence on record, it is clear that the defendant has led no evidence whatever to support his allegation except for his own testimony Page 7 of 9 that he never signed the form. It is pertinent to note that the defendant was unable to account for what he was doing in Kuala Lumpur on 4th to 5th August 1997, dates proximate to the date on the form. More significantly, when the defendant was cross-examined on the fact that he was present at the meeting in question, his answers were vague, equivocal and essentially bare denials. Consequently, the defendant’s allegation of forgery was not made out. [7] The third plank on illegality relates to (i) breaches of s 84 of the Securities Industry Act 1983 (SIA 1983) as there was no change in beneficial ownership and (ii) that the plaintiff participated in a scheme to evade its obligations, thereby practising deception on the KLSE. In this regard, we noted that the transactions were off market transactions. As such we were of the view that the learned judge correctly found that the defendant had failed to lead any evidence to show that the roll-over transactions created, were intended to create or were likely to create a false and misleading appearance. The learned judge took into account the fact that the transactions were not reported fortified the plaintiff’s position that the intention of the roll over transactions was never to give the impression of trading activity, which would have been the case had reporting in fact been done. As for the alleged breach of the KLSE rules, we agreed with the learned judge that KLSE rules did not have the force of law and that its breaches attracted only sanctions by the KLSE and nothing more. It did not have the effect of invalidating the contracts or make them illegal. [8] The fourth and last plank relates to the plaintiff’s failure to mitigate its losses. We agreed with learned counsel for the plaintiff that the plaintiff did mitigate its losses by force selling the shares in February 1998. The Page 8 of 9 defendant also contended that the transactions exceeded the credit limit set by the plaintiff. In our considered view, this is a non-issue as the evidence of PW1 and PW6 showed that the trading limit was only to facilitate the opening of the account. At any rate, the defendant would not have been aware of any limitations given that it is an internal limit. CONCLUSION [9] For the foregoing reasons, we do not find any merit in the issues raised by the defendant. In our considered view and upon a perusal of the appeal record, we are satisfied that the learned judge had properly evaluated the totality of the oral and documentary evidence and correctly found that the plaintiff had proved its case on a balance of probabilities. As such the evidential burden shifted onto the defendant to prove his defence of forgery and illegality; which burden of proof the learned judge found that the defendant failed to discharge as he failed to lead any cogent or credible evidence to support his defence. The appeal is hereby dismissed with costs. The decision of the High Court is affirmed. Deposit refunded to defendant. sgd (Vernon Ong) Judge Court Of Appeal Malaysia Dated : 25th January 2019 Page 9 of 9 Counsel: For the Appellant: Wan Aizuddin bin Wan Mohammed Messrs. Ranjit Ooi & Robert Low For the Respondent: Khoo Guan Huat (Preetha Pillai and Khong Siong Sie with him) Messrs. Skrine