Soo Cheong Pui v 1. ) Wong Swee Kwoang (BA-12B-11-02/2025)

WONG SWEE KWOANG (No. K/P: 520616-06-5101)

LAI FOOK PING (No. K/P: 560107-07-5228)

WONG SEE MUN (No. K/P: 770523-14-5286) N-RESPONDEN [Dalam Perkara Guaman Sivil No. BA-B52-22-03/2021 Dalam Mahkamah Sesyen di Shah Alam Dalam Negeri Selangor Darul Ehsan, Malaysia Antara Soo Cheong Pui (No. K/P: 530426-10-5138) S/N M2Mlh82d0EywKLukkcfQ (Berniaga sebagai Hoong Ying Construction (No. 000821239-A) laintif

Wong Swee Kwoang (No. K/P: 520616-06-5101)

Lai Fook Ping (No. K/P: 560107-07-5228)

Wong See Mun (No. K/P: 770523-14-5286) - Defendan]

This is an appeal by the Appellant/Plaintiff after his case against the Respondents/Defendants was dismissed by the Sessions Court after a full trial. The Appellant had sought to set aside a prior Sessions Court Judgment in SASC Civil Suit No: B53-4-11/2015 dated 28 November 2017, which found him and one Chin Fui Fong liable for negligence as contractor and client respectively, in causing damage neighbouring property . The Sessions Court awarded substantial damages against them ( ).

This action to set aside the Impugned Judgment was premised on grounds of fraud i.e. that part of the assessed damages in the sum of RM340,500.00 was allegedly premised on a falsified set of documents, namely a quotation, invoices and receipts from one Porcelain Ace Marketing Sdn. Bhd. ( for the supply of tiles and repair services ( Falsified Documents ), proof of which is said to have been discovered through inquiries made with PAM while the appeal against the Impugned Judgment was pending before the Court of Appeal. Analysis and findings

A a) PAM was never in the contractor and/or repair business; b) The PAM invoices with Invoice No. 009982 and 009983 related to different business transactions; c) PAM never received payment of RM340,500.00 from the Defendants or issued the PAM receipts; d) The signature . invoices and receipts was forged; and e) PAM never received any subpoena to appear before the Court.

The legal and evidential burden of proof was on the Appellant to prove that the Impugned Judgment was obtained through the fraudulent acts of the Respondents as pleaded i.e. in fabricating the Falsified Documents, forging the signature of Ms. Yong on the documents and intentionally tendering the same to mislead and deceive the Sessions Court into believing that they had retained PAM to supply materials and labour for the alleged repair of the Respondents house.

The Respondents claimed that the 1st Respondent had dealt exclusively with one Sim Kian Thye, a director of PAM at the material time, for the repair works on his damaged house and had no knowledge of any fraud in relation thereto. The Respondents also claimed that they had caused to be issued, but were unable to serve a subpoena for Sim Kian Thye to testify at the first trial that led to the Impugned Judgment.

On a review of the record of appeal, this Court finds at the outset that the Appellant is bound by his pleadings and since the allegations of fraud were levelled squarely on the Respondents, that is what he must prove at the trial on a balance of probabilities. It was not sufficient to prove that the Falsified Documents were of questionable authenticity as far as PAM was concerned alleged complicity in the fraud, no case was led why the internal management rule would not have applied in relation to the 1st hye.

The Appellant had attempted to call Sim Kian Thye to testify during the second trial to set aside the Impugned Judgment but the subpoena issued was also not served on the elusive Sim Kian Thye. Neither was Ms. Yong, the PAM employee whose signature was allegedly forged. Ultimately, the Sessions Court found that the Appellant failed to prove his case based on the testimony of Foo Zin Zin, PAM ce alone, which testimony underpinned the entire action. As the initial onus of proof was not met, the onus to call Sim Kian Thye to the stand did not shift to the Respondents (See: Sections 101 and 102 of the Evidence Act 1950 ( and Letchumanan Chettiar Alagappan (as Executor to SL Alameloo Achi (Deceased) & Anor v. Secure Plantation Sdn. Bhd. [2017] 5 CLJ 418).

As far as this appeal is concerned, the finding that no fraud was proved against the Respondents was based entirely on the trial ies - the 1st Respondent why this Court should interfere with those findings. There was also no Sections 101 and 102 of the EA in finding that the onus was on the Appellant to call relevant witnesses like Sim Kian Thye and Ms. Yong.

This Court will add that although this case was framed as a Badiaddin type action to set aside the Impugned Judgment (Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 2 CLJ 75), it cannot be said that res judicata does not apply to bar this action on the prevailing facts and circumstances i.e. the Appellant had the opportunity to question the authenticity of the Falsified Documents at S/N M2Mlh82d0EywKLukkcfQ the first trial before the Sessions Court, argue the admissibility of the same into evidence as a ground of appeal to the High Court, and the Appellant did in fact ventilate the issue of fraud through fresh evidence proceedings at the Court of Appeal. The Appellants had failed in all three (3) prior avenues to properly raise the issue now sought to be re-ventilated.

In an adversarial system of civil litigation, the Appellant must take all legal and procedural objections and be held to any election made on how the trial and appeal are conducted. In this case, the Appellant had presumably objected to the admissibility of Falsified Documents at first instance, and the Sessions Court marked the Falsified Documents into evidence without calling the maker based on exceptions to the documentary hearsay rule which was argued and ruled on. The Impugned Judgment was appealed on quantum but upheld by the High Court on 27 May 2019 and by the Court of Appeal on 30 September 2020. However, the latter appeal was struck out because the Plaintiff who had been adjudicated bankrupt on 18 January 2019 sanction to properly pursue the fresh evidence proceedings and the own making.

Conclusion For the above reasons, the appeal is dismissed with costs of

In post-script, the Appellant had also lodged a police report and the 1st Respondent was charged on 3 November 2021 under Section 193 S/N M2Mlh82d0EywKLukkcfQ of the Penal Code, but there is to date no outcome of those proceedings that the Court is aware of. That there is an unproven criminal charge against the 1st Respondent does not advance the case at this time. Bertarikh : 18 Ogos 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Perayu/Plaintif: Colin anak Victor George Messrs Colin Victor & Co. Peguam bagi pihak Responden-responden/Defendan-defendan: