Sim Chuan Peng v Law Kain Ann (WA-12BNCC-6-03/2023)

a mandatory injunction is granted to compel the Appellant/Defendant to transfer 11.51955 Ether units to the Respondent’s/Plaintiff’s e-wallet within 7 days from the date of the Judgment; (“Injunction Order”);

in the alternative, the Appellant/Defendant is to pay a sum of RM65,000.00 to the Respondent/Plaintif within 7 days from the date of the Judgment; (“Monetary Order”); S/N yNv1d6veQkGRTJwbEjCdg

interests at the rate of 5% per annum on the sum of RM65,000.00 from the date of the filing of the Writ, i.e. from 26.7.2022 until the full payment thereof; and

costs of RM18,000.00 to be paid by the Appellant/Defendant to the Respondent/Plaintif. [2] Being dissatisfied, the Appellant/Defendant appealed against the judgment and after perusing the written submissions and hearing oral submissions from counsel, I allowed the appeal with costs. [3] For ease of reference, the parties are hereinafter referred to their respective capacities in the Sessions Court, i.e. the Appellant as the “Defendant” and the Respondent as the “Plaintiff”. Background facts [4] The Plaintiff and his cousin, Low Wai Keong (“WK”) (who was also the Defendant’s business partner) had engaged the Defendant to manage the activities relating to the cryptocurrency mining of Ether units since January 2018. [5] A cash of RM40,000.00 was given by the Plaintiff to the Defendant to purchase the equipments and software to mine the Ether units. [6] After the Defendant had purchased the equipments and softwares to mine the Ether units, the equipments were placed in a warehouse owned by WK and the Defendant was entasked to manage the S/N yNv1d6veQkGRTJwbEjCdg activities relating to the mining of the Ether units for the Plaintiff and WK. [7] Since the commencement of the mining activities in January 2018, the Plaintiff had only requested the Defendant to sell a few Ether units on or around 30.1.2018, to which the Defendant did and upon the sale of the said Ether units, the Defendant had transferred a sum of RM1,371.62 to the Plaintiff. [8] On 26.11.2020, the Defendant informed the Plaintiff that the Defendant was unable to proceed with the mining of Ether units as the software utilised to mine the Ether units were outdated. [9] Following that, the Plaintiff removed all the equipments used for mining of the Ether units from WK’s warehouse; [10] As at 26.11.2020, the Defendant has mined a total of 11.51955 Ether units for the Plaintiff and 8.7768 units for WK and the Plaintiff and WK had requested Defendant to transfer those Ether units to them respectively. At the same time, the Plaintiff and WK also agreed to give 1.64565 Ether units to the Defendant as the Defendant’s consideration for managing the mining activities. [11] However, the Defendant only transferred 7 Ether units to WK and the balance Ether units of 11.51955 and 1.7768 were not transferred to the Plaintiff and WK respectively. [12] It is the Defendant’s averments that, inter-alia:- S/N yNv1d6veQkGRTJwbEjCdg

(a)

however, the Defendant was unable to transfer and or retrieve the 11.51955 and the balance 1.7768 Ether units to the Plaintiff and WK respectively as the IDAX portal used to store and maintain the said Ether units was permanently closed;

in fact, the Defendant was also unable to transfer and or retrieve the 1.64565 Ether units (which was meant for him) as the said Ether units were also stored in the e-wallet maintained in the IDAX portal and the Defendant also suffered losses of the said 1.64565 Ether units following from the closing of the said IDAX portal. [13] The Defendant contended that as the Ether units of 11.51955 and 1.7768 were unable to be transferred by the Defendant to the Plaintiff and WK respectively:

on 29.12.2020, it was agreed between the Plaintiff, the Defendant and WK verbally that the Defendant was to pay a sum of RM34,700.00 (which is equivalent to the market price of around USD645 for each Ether units as at 29.12.2020) to the Plaintiff and or WK as a settlement for this matter (“1st Settlement Agreement”); S/N yNv1d6veQkGRTJwbEjCdg

however, on 8.1.2021, which was only 10 days after the entering of the 1st Settlement Agreement between the parties, the Plaintiff had attended to the Defendant’s office together with 2 unknown men to demand the payment of RM76,363.00 from the Defendant. WK was also present at the office and the Plaintiff’s presence with 2 unknown men was also witnessed by the Defendant’s employees in the factory;

the Plaintiff was dissatisfied with the settlement sum agreed between the parties under the 1st Settlement Agreement as the price of the Ether units had increased significant;y to the sum of about USD1281.58 per unit as at 8.1.2021. The Defendant did not agreed to pay the said sum of RM76,363.00 as it was a clear breach of the 1st Settlement Agreement entered between the parties;

one of the unknown men had then slapped the Defendant and threatened the Defendant to pay the said sum of RM76,363.00 to the Plaintiff and the said man had also grabbed a metal stick at the Defendant’s office and threatened the Defendant that they would dig a hole and bury the Defendant in a cemetery if the Defendant failed and or refusde to pay the said sum of RM76,363.00 to the Plaintiff;

out of the fear that the Plaintiff and or the 2 unknown men would inflict bodily harm to the Defendant, the Defendant was forced to issue a cheque dated 9.1.2021 amounting to the sum of RM76,363.00 (a company cheque issued under Twinkle S/N yNv1d6veQkGRTJwbEjCdg Sweet Foodstuff Industries Sdn. Bhd., which was also signed by WK) to the Plaintiff (“the said Cheque dated 9.1.2021”);

subsequently on 10.1.2021, the Defendant also lodged a police report regarding the aforesaid matter;

the Plaintiff did not present the said Cheque dated 9.1.2021 for payment and the Defendant had on 19.2.2021 made a payment of RM5,000.00 to the Plaintiff by way of bank transfer (“First Payment”);

however, at around 1.3.2021, the market price of the Ether units had rocketed to the price of about USD 1530 per unit and once again, the Plaintiff was dissatisfied with the settlement sum agreed between the parties and hence, the Plaintiff once again threatened the Defendant to make a payment of RM100,000.00 to the Plaintiff;

on around 23.7.2021, the Defendant made a payment of RM30,000.00 to the Plaintiff vide a Public Bank Cheque dated 23.7.2021 (“the Second Payment”);

the Second Payment was made on 23.7.2021 as payment under the 1st Settlement Agreement with the express notation that there would be no further claims from the Plaintiff. In this regard, the Defendant prepared a payment voucher dated 23.7.2021 (“Payment Voucher”) bearing the words “agreed 2nd payment settle cases” and “no more payments” and upon receipt of the Second Payment from the Defendant, the S/N yNv1d6veQkGRTJwbEjCdg Plaintiff had also signed on the said Payment Voucher on the spot without any qualifications. [14] However, subsequently on 4.4.2022 (which is about 8 1/2 months after the Second Payment was made), the Plaintiff instructed his solicitors to issue a letter of demand to the Defendant to allege that the Defendant had purportedly agreed to make a payment of RM100,000.00 to the Plaintiff but had failed to make the balance payment of RM65,000.00 to the Plaintiff. The Plaintiff demanded the Defendant to transfer the 11.51955 Ether units to him. [15] Subsqequently on 26.7.2022, the Plaintiff filed the present claims at the Sessions Court against the Defendant. Plaintiff’s Case [16] In summary, the Plaintiff alleged and claimed against the Defendant, that inter-alia: a) the Defendant has purportedly agreed to pay a sum of RM100,000.00 to the Plaintiff as compensation, but the Defendant has only paid a sum of RM35,000.00 to the Plaintiff; b) the Defendant had deceived the Plaintiff in that the Defendant was purportedly still active in the mining activities and was still holding the balance of the Ether units and refused to transfer the said Ether units to the Plaintiff; and S/N yNv1d6veQkGRTJwbEjCdg c) the Plaintiff claimed for the Injunction Order to compel the Defendant to transfer 11.51955 Ether units to the Plaintiff and or alternatively for a sum of RM65,000.00 plus interests to be paid to the Plaintiff within 7 days from the date of the Judgment. Defendant’s Case [17] The Defendant’s case is that: a) the Defendant was unable to transfer the Ether units of 11.51955 to the Plaintiff and the balance Ether units of 1.7768 to WK because the IDAX portal used to store the said Ether units had been closed permanently and the Defendant is unable to transfer or retrieve any of the balance Ether units anymore; b) the Plaintiff, the Defendant and WK had entered into the 1st Settlement Agreement dated 29.12.2020 for the Defendant to pay a sum of RM34,700.00 to the Plaintiff to settle the matter fully and the Defendant had never agreed to make any further payments to the Plaintiff; and c) the Defendant had made a full payment of RM35,000.00 to the Plaintiff and hence, the matter had been fully resolved and the Plaintiff is not entitled to claim any further sums from the Defendant anymore. S/N yNv1d6veQkGRTJwbEjCdg Court’s Considerations [18] In the case of Low Tin Yong v Low Yong Thuan [2016] 5 CLJ 217, the Court of Appeal has held that: “[44] As stated at the outset, we reversed the finding of the trial judge. In doing so we were mindful of the trite but oft stated principle that an appellate court will be slow to overturn the decision of a High Court Judge, particularly after the trial of a suit, where the latter has enjoyed the audio visual advantage of seeing and hearing witnesses first hand. [45] We were further mindful of the principle that a finding of fact by a trial judge, when based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge's conclusions are erroneous. This was a case where we concluded that the decision at trial was highly improbable or contrary to reasonable inferences to be drawn from the evidence on record. [46] The appellate courts are ever vigilant to ensure that first tier decisions are not reversed simply on the grounds that the appellate court would have arrived at a different decision, but because no reasonable trier of fact would have arrived at such a conclusion based on the evidence before it. It bears repeating that an appellate court should and will intervene in circumstances where there are errors of law or where there is a lack of judicial appreciation of the evidence on record, giving rise in turn to an erroneous conclusion in law…” (emphasis added) S/N yNv1d6veQkGRTJwbEjCdg [19] It is my judgment that this is an apt case for this Court to intervene and to reverse the findings of the Learned Sessions Court Judge. Settlement Agreements [20] At the outset, I agree that the Learned Sessions Court Judge has erred in finding that there are 3 separate oral agreements formed between the parties wherein in each successive agreements, the Defendant had purportedly agreed to pay the Plaintiff significantly higher sums that the previous agreements. Instead, it is my judgment that there was only a single settlement agreement, which was the settlement agreement dated 29.12.2020. 1st Settlement Agreement on 29.12.2020 [21] That there was in fact an agreement on 29.12.2020, where it was agreed between the Plaintiff, the Defendant and WK verbally that the Defendant was to pay a sum of RM34,700.00 (which is equivalent to the market price of around USD645 for each Ether units as at 29.12.2020) to the Plaintiff as full and final settlement is not in dispute. [22] However, the Learned Sessions Court Judge has erred in holding that when the Defendant failed to pay the amount promised, a second settlement agreement was agreed on 8.1.2021 where the settlement sum was increased to RM76,363.00 to be paid to the Plaintiff (“2nd Settlement Agreement”). S/N yNv1d6veQkGRTJwbEjCdg [23] In arriving at this finding on the 2nd Settlement Agreement, the Learned Sessions Court Judge has failed to give sufficient judicial appreciation to the fact that: a) it simply does not make any sense for the Defendant to voluntarily agree to a substantially increased settlement sum of RM 76,363.00 after having agreed to pay RM RM34,700.00 under the 1st Settlement Agreement; b) the purported second round of negotiation which took place on 8.1.2021 was only 10 days after the 1st Settlement Agreement with no change of circumstances except an increase to the market value of the Ether units; c) the Plaintiff failed to prove that there was an agreement for the Defendant to make an immediate payment and or a payment within 10 days from the date of the 1st Settlement Agreement. During the Trial, the Plaintiff himself failed to state what was the date agreed between the parties for the Defendant to pay the sum of RM34,700.00 to the Plaintiff, and the Plaintiff further agreed that there was no timeline fixed for the Defendant to repay the sum of RM34,700.00 Notes of Proceedings on 15.11.2022: 29 Disember ialah tarikh yang telah pun dipersetujui. Ok, tak apa. Tak ada tarikh yang dicadangkan. Saya nyatakan bahawa tiada apa-apa tarikh pembayaran balik yang dicadangkan. S/N yNv1d6veQkGRTJwbEjCdg Ok, setuju tak setuju? Ya, setuju. Tapi saya untuk – Setuju. Ok, itu jawapan dia.” d) given that no repayment date was agreed between the Plaintiff and the Defendant, it was baseless for the Defendant to allege that the Defendant had breached the terms of the 1st Settlement Agreement when the Defendant did not make immediate payment to the Plaintiff at that material time; e) even if there was a breach by the Defendant to make the payment, the Defendant could be sued by the Plaintiff for the RM 34,700.00 and had no reason to agree to pay RM 76,363.00 instead. [24] To my mind, the Learned Sessions Court Judge had failed to give due weight to the following: a) it is an agreed fact, and also the Plaintiff’s own evidence in his Witness Statement, that 1st Settlement Agreement was entered between the Plaintiff, WK and Defendant for the Defendant to pay to the Plaintiff a sum of RM34,700.00, which is equivalent to the market price of each Ether unit as at 29.12.2020, given that the Defendant was unable to transfer 11.51955 and 1.7768 Ether units to the Plaintiff and WK respectively; b) the Defendant had also fulfilled the 1st Settlement Agreement when the Defendant made the First Payment on 19.2.2021 and Second Payment on 23.7.2021; S/N yNv1d6veQkGRTJwbEjCdg c) the Plaintiff had signed on the written Payment Voucher on 23.7.2021 to indicate that there are no outstanding sums due from the Defendant to the Plaintiff and the total payments received was in accordance with the 1st Settlement Agreement. [25] With respect to the Learned Sessions Court Judge, no due and or sufficient consideration was given to the contention that the Plaintiff was in fact seeking to unilaterally revise the terms of the 1st Settlement Sgreement in order to reflect the rising value of the Ether units in the market. [26] Once the 1st Settlement Agreement had been reached and entered between the parties, the Plaintiff ought not to be allowed to retract and or change the terms of the same at his own will and arbitrarily, given that a valid and effective contract had already been formed between the parties and the parties ought to be bound by the settlement sum between the parties. [27] This position is supported by the Plaintiff’s own witness, WK and there is no evidence adduced by the Plaintiff to contradict the same: Notes of Proceedings on 21.11.2022: Ok. Saya nyatakan bahawa, tidak kira sama ada harga unit Ether selepas itu adalah naik atau jatuh, Defendan mesti hendak lah membayar jumlah sebanyak RM34,700 ini kepada Encik dan juga Plaintif. Setuju atau tidak? ... S/N yNv1d6veQkGRTJwbEjCdg Ya. Encik, jadi soalan saya adalah simple. So, Encik hanya perlu jawab setuju atau tidak. So, kalau saya cadangkan kepada Encik bahawa jumlah ini adalah muktamad. Jumlah untuk membayar RM34,700 ini adalah muktamad pada masa tersebut. Setuju atau tidak? Ya.“ Meeting on 8.1.2021 [28] The Learned Sessions Court Judge has erred in holding that the Plaintiff and Defendant met up for another round of negotiations and an agreement was again reached that RM76,363.00 was to be paid to the Plaintiff instead of RM 34,700.00. [29] In this regard, the Learned Sessions Court Judge failed to give sufficient judicial appreciation to the fact that it was the Plaintiff’s evidence in Q&A 15 of his Witness Statement that after the 1st Settlement Agreement was entered on 29.12.2020, it was the Defendant who had made a new proposal to pay a sum of RM76,363.00, which was equivalent to the market price of the Ether unit as at 8.1.2021. It is simply illogical for the Defendant to unilaterally propose to increase his payment obligation to the Plaintiff. [30] The Learned Sessions Court Judge did not give full appreciation to the following: S/N yNv1d6veQkGRTJwbEjCdg a) the Plaintiff himself admitted that the Defendant never invited the Plaintiff to his office or factory and it was the Plaintiff who brought 2 unknown men who were never involved in the mining activities to meet the Defendant at his office or factory on 8.1.2021; b) the Plaintiff’s own witness, i.e. WK who was also present at the office or factory on 8.1.2021 had agreed that it was the Plaintiff who requested and or demanded for the sum of RM76,363.00 from the Defendant and not the other way round; Notes of Proceedings on 21.11.2022: Ok. Saya cadangkan bahawa ianya adalah Plaintif yang meminta jumlah sebanyak RM76,363 tersebut daripada Defendan. Setuju atau tidak? Setuju. ... Ok. Tadi Encik telah pun setuju bahawa ialah Plaintif yang bercadang untuk Defendan membayar jumlah RM76,000 tersebut. Jadi soalan yang lanjut saya ialah bahawa bukannya Defendan sendiri yang bercadang untuk membayar jumlah sebanyak RM76,000 tersebut. Bukannya Defendan yang propose to pay. Setuju atau tidak? Ya.” S/N yNv1d6veQkGRTJwbEjCdg c) the Plaintiff and or the 2 unknown men had threatened the Defendant that they would harm the Defendant if the Defendant refused to make further payments to the Plaintiff; d) under the coercion and or duress by the Plaintiff and or the 2 men, the Defendant had no choice but to issue the said Cheque dated 9.1.2021 amounting to the sum of RM76,363.00 to the Plaintiff. [31] The Learned Sessions Court Judge ought to have given due and sufficient weight to the following evidence, where, inter-alia: a) the Plaintiff’s admission during Trial that he was dissatisfied with the settlement sum of RM34,500.00: Notes of Proceedings on 15.11.2022: Jadi, soalan saya adalah senang. Encik berpuas hati atau tidak berpuas hati dengan jumlah tuntutan RM34,000? Itu sahaja. Puas hati atau tidak berpuas. Memang tidak puas hati.” b) that the market price of each Ether unit had, post the 1st Settlement Agreement, rocketed to the price of about USD

1281.58 as at 8.1.2021; c) the Defendant‘s witness, i.e. Ms. Salasiah (DW2) who were one of the employees working at the Defendant’s factory on 8.1.2021 had testified that that while she was working in the S/N yNv1d6veQkGRTJwbEjCdg factory on 8.1.2021, she witnessed the Plaintiff, together with the 2 unknown men, went to the Defendant’s factory and entered the Defendant’s office and one of the men were holding an iron stick on his hand. She also saw one of the men appearing to be threatening the Defendant by holding the back of the Defendant’s shirt; d) the Plaintiff and WK had never disputed the fact that the Plaintiff had in fact brought 2 unknown men to see the Defendant in his office on 8.1.2021 to purportedly ‘negotiate’ with the Defendant. Therefore, it is immaterial even if Ms. Salasiah did not know the Plaintiff personally and Ms. Salasiah’s evidence should not be discredited purely because she testifed that she did not know the Plaintiff; and e) the Defendant had also lodged a police report on 10.1.2021 regarding the incidents that took place on 8.1.2021 and this shows that the Defendant’s defence that the said Cheque dated 8.1.2021 was issued under duress or coercison is not merely an afterthought. [32] Therefore, I agree that the Defendant has adduced credible evidence to support his Defence and that the issuance of the said Cheque dated 8.1.2021 was made under duress and cannot be sufficient evidence to support the Plaintiff’s case that the Defendant has purportedly agreed to make a payment of RM76,363.00 to the Plaintiff. S/N yNv1d6veQkGRTJwbEjCdg Meeting on 1.3.2021 [33] Similarly, the Learned Sessions Court Judge also erred in holding that there was a final agreement that was agreed between the parties on 1.3.2021 where the Defendant had agreed to pay the Plaintiff RM 100,000.00 (“the 3rd Settlement Agreement”). [34] The Learned Sessions Court Judge found that it was the Defendant who had offered to pay the sum of RM100,000.00 to the Plaintiff and that the Defendant had applied for a loan to pay the Plaintiff the said RM100,000.00 as agreed. [35] In this regard, the Learned Sessisons Court Judge erred and failed to give sufficient judicial appreciation to the evidence that, inter-alia: a) WK who was present during the meeting on 1.3.2021 had testified at the Trial agreeing that it was in fact the Plaintiff who had demanded for the sum of RM100,000.00 from the Defendant because the price of each Ether unit had increased again and not the other way round. Notes of Proceedings on 21.11.2022: Ok. Saya nyatakan bahawa tujuan pertemuan tersebut adalah kerana Plaintif nak menuntut jumlah sebanyak RM100,000 daripada Defendan. Setuju atau tidak setuju? Ok. Saya nyatakan bahawa harga pasaran unit Ether pada masa tersebut juga telah menaik ke S/N yNv1d6veQkGRTJwbEjCdg lebih kurang USD1,500 seunit. Setuju atau tidak setuju? Setuju lah. Tapi yang exactly berapa saya tak tahu lah dia punya harga itu. Ok, boleh. Lebih kurang sana lah. Ok. Then selepas itu, saya cadangkan bahawa Plaintif menuntut jumlah sebanyak RM100,000 ini adalah kerana harga pasaran seunit Ether telah pun naik terlalu banyak sehingga USD1,500 seunit tetapi jumlah pampasan hanya berdasarkan kepada harga pasaran lebih kurang USD650 seunit. Setuju atau tidak setuju? Ya, setuju. “ b) there is also no obvious or logical reason for the Defendant to further propose to pay a higher sum to the Plaintiff when the parties had already agreed to settle the matter at the sum of RM34,700.00 under the 1st Settlement Agreement on 29.12.2021; c) in contrast, the WK’s evidence clearly supports the Defendant’s evidence that it was the Plaintiff who was dissatisfied with his own extorted sum of RM76,363.00 when the market price of each Ether unit hiked up again on 1.3.2021 and it was the Plaintiff who demanded for RM100,00.00 from the Defendant; and d) regarding the loan application, the fact that the Defendant had applied for a loan is not evident that the Defendant had agreed to pay the sum of RM100,000.00 to the Plaintiff. At that material S/N yNv1d6veQkGRTJwbEjCdg time in 1.3.2021, the Defendant had only paid a sum of RM5,000.00 to the Plaintiff and the Defendant merely applied for the loan to repay the balance settlement sum as per the parties’ 1st Settlement Agreement on 29.12.2020. [36] Hence, It is my judgment that the Learned Sessions Court Judge was wrong to conclude that the Defendant had agreed to pay a sum of RM100,000.00 to the Plaintiff. Defendant fully discharged payment under 1st Settlement Agreement [37] It is not disputed that the Plaintiff had received the First Payment of RM5,000.00 from the Defendant on 19.2.201 and the Second Payment of RM30,000.00 from the Deendant on 23.7.2021. [38] It is also not disputed that when the Plaintiff received the Second Payment from the Defendant on 23.7.2021, the Plaintiff had also signed on the said Payment Voucher bearing the words “agreed 2nd payment settle cases” and “no more payments”, which signifies that the Plaintiff has agreed that the Second Payment of RM30,000.00 is a full and final settlement of the whole matter. [39] The authenticity of the said Payment Voucher was not disputed by the Plaintiff as the said Payment Voucher was placed under Part B in the Bundle of Documents. In fact, the Plaintiff himself also admitted and confirmed that he had signed on the said Payment Agreement and agreed with all the terms of the Payment Voucher when he signed the same. S/N yNv1d6veQkGRTJwbEjCdg Notes of Proceedings on 15.11.2022: So, ya, just wish to highlight, this document the authenticity was not challenged. So, I will proceed with my question. So, Encik, saya cadangkan bahawa apabila Encik menandatangani payment voucher ini, Encik bersetuju dengan semua terma di dalam payment voucher ini. Setuju atau tidak? Ya, memang saya sain tapi itu – Apa jawapan dia? Apa jawapannya, setuju tak setuju? Setuju.” [40] Therefore, the Plaintiff is clearly estopped from alleging that the said sum of RM35,000.00 is not a full and final settlement of the Plaintiff’s claims. [41] It is trite law that the veracity of an oral evidence has to be critically tested against the whole of the other evidence, in particular, any contemporaneous documentary evidence and the circumstances of the case [See: Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229, 234]: “Nevertheless, the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent’s witness and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent’s oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own S/N yNv1d6veQkGRTJwbEjCdg to serve and if it did not account for the statements in his documents and writings. Judicial perception of the evidence requires that the oral evidence be critically tested against whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity.” (emphasis added) [42] The Plaintiff’s oral allegations that he had purportedly reserved his rights to claim for balance sum of RM65,000.00 from the Defendant directly clashed with the wordings of the written Payment Voucher signed by the Plaintiff and the Plaintiff’s own clear admission during the Trial that he had agreed with the terms of the said Payment Voucher. Plaintiff’s burden that Defendant still had the Ether units [43] Finally, in the present case herein, the Learned Sessions Court Judge has erred in placing the burden of proof on the Defendant to prove his Defence that he did not deceive the Plaintiff in respect of the Ether units. [44] The Plaintiff alleged that the Defendant had deceived the Plaintiff as there was purportedly an agreement that the Defendant ought to transfer the Ether units to the Plaintiff’s e-wallet and that the Plaintiff had repeatedly reminded the Defendant to transfer the said Ether units to the Plaintiff but the Defendant had failed to do so. [45] It was the Defendant’s Defence that there was no agreement for the e-wallet to be registered under the Plaintiff’s name and or that there were no requests for the Ether units to be transferred to the Plaintiff’s S/N yNv1d6veQkGRTJwbEjCdg e-wallet at all the material times. The Defendant further testified that after the Ether units were mined from the pool, the Ether units would be transferred to an e-wallet registered under the programmer’s name. [46] In this regard, the Learned Sessions Court Judge erred and did not give proper weight to the following: a) it was not the Plaintiff’s pleaded case, and in any case, the Plaintiff also failed to adduce any evidence, not even a message or an email, to show that there was an agreement for the e-wallet to be registered under the Plaintiff’s name and or that the Plaintiff had purportedly reminded the Defendant to transfer the Ether units to the Plaintiff’s e-wallet from time to time; b) it is also inherently improbable to allege that there was an agreement to register the e-wallet under the Plaintiff’s name or that the Ether units were to be transferred to the Plaintiff’s wallet from time to time, when the Defendant was entasked to manage the mining activities for and on behalf of the Plaintiff; c) further, it was pleaded by the Plaintiff in paragraph 3 of the Statement of Claim that “...Defendan telah bersetuju untuk mengekalkan akaun Plaintif dalam Ethereum dengan persefahaman bahawa Defendan perlu menjual unit Ether dan memindahkan harga belian kepada Plaintif apabila diminta oleh Plaintif.” This clearly shows that the agreement and understanding between the Plaintiff and the Defendant was S/N yNv1d6veQkGRTJwbEjCdg for the Defendant to sell the Ether units on behalf of the Plaintiff and only to transfer the proceeds of sale to the Plaintiff upon request by the Plaintiff, and not to transfer the Ether units from time to time as alleged by the Plaintiff. The Plaintiff is bound by its own pleadings; d) the Defendant had sold Ether units for and on behalf of the Plaintiff in January 2018 and the Defendant had only transferred the proceeds of the sale to the Plaintiff. At all the material times, the Plaintiff had never raised the issue that the e-wallet ought to be registered under the Plaintiff’s name and or that the Ether units ought to be transferred to the Plaintiff after they were mined by the programmers. [47] Further, the Defendant had notified the Plaintiff on 26.11.2020 that the Defendant was unable to proceed with the mining activities as the software used to mine the Ether units were outdated. As at 26.11.2020, the Defendant had mined 11.51955 Ether units to the Plaintiff and 8.7768 to WK. [48] The Defendant was able to transfer 7 Ether units to WK as the said Ether units were stored in the Remitano portal, whereas the 11.51955 Ether units belonging to the Plaintiff was stored in a the IDAX portal which had been permanently closed and that was why, the Defendant could only transfer 7 Ether units to WK. [49] In support of the above contention, the Defendant had adduced several proof, including a screenshot of the said IDAX app, 3 articles extracted online and a printscreen from the online web to show that S/N yNv1d6veQkGRTJwbEjCdg the said IDAX portal had been shut down permanently and the Defendant no longer had any access to the same. More specifically, in one of the articles, it is stated thus: “In November 2019, IDAX users found themselves unable to withdraw coins from the exchange. The rumors of an exit scam began to circulate on social media platforms...... Soon, the exchange reps confessed that the IDAX CEO was gone and they cannot reach out for him... Update 10.03.2021: IDAX exchange is closed. Its founders committed an exit scam.” [50] In contrast, the Plaintiff failed to adduce any single evidence to show that the Defendant still had access to the said IDAX Portal and had intentionally refused to transfer the 11.51955 Ether units to the Plaintiff. [51] Therefore, based on the aforesaid, there is no credible evidence to prove that the Defendant had deceived the Plaintiff by not transferring 11.51955 Ether units to the Plaintiff and the Appeal herein ought to be allowed by this Court. Conclusion [52] In the premises, it is my judgment that this Court as an appellate Court should intervene on the decision made by the Learned Sessions Court Judge as there are clear errors and lack of judicial appreciation of the evidence on record. S/N yNv1d6veQkGRTJwbEjCdg [53] Accordingly, the Appeal is allowed with costs. Dated the 3rd day of January 2024 ONG CHEE KWAN Judge of the High Court of Malaya High Court of Kuala Lumpur, NCC2 Counsel:

Ms. Nur Syamimi Amalina binti Mohd Munir for Appellant

Ms. Farah Mohd Afzal for Respondent

Low Tin Yong v Low Yong Thuan [2016] 5 CLJ 217 2. Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 S/N yNv1d6veQkGRTJwbEjCdg