Suhaili Bin Abdul Rahman v Mara Corporation Sdn. Bhd. (WA-11BNCvC-4-01/2025)

The Defendant appealed against the decision of the learned Magistrate who had allowed the Plaintiff’s claim with cost against the Defendant after a full trial. The Plaintiff’s claim was for the Defendant’s misuse of a corporate credit card given to the Defendant as the Executive Director of the Plaintiff. 27/10/2025 14:53:04 WA-11BNCvC-4-01/2025 Kand. 16 S/N VgO2cN/R1keea09io9aOdA The brief facts

The Defendant as the Executive Director of the Plaintiff had been provided with a corporate credit card conditional upon the credit card be used only for official purposes.

It was discovered by the Plaintiff that the Defendant had used the credit card for personal use and the Defendant was duly notified of the same via various letters sent to him.

On not getting any justification from the Defendant on why he had used the credit card for the personal use, the Defendant was notified that his salary would be deducted with the amount wrongly used.

Eventually the Defendant’s service was terminated and his final salary was withheld to pay for the outstanding sum still owing from the personal use of the credit card.

As the final salary was insufficient to set off the total amount owed with a sum of RM38,603 still unpaid the Plaintiff filed this present case to recover this sum.

As an alternative claim the Plaintiff contended that the Defendant had breached his fiduciary duty with the plaintiff therefore entitling the plaintiff to claim for general damages.

In his defense the Defendant denied that he had used the credit card for personal use. The Defendant contended that the limit of usage S/N VgO2cN/R1keea09io9aOdA of the credit card was RM50,000 which he shared with the group CEO. The Defendant further contended that all the expenses for the credit card were approved by the Chief Finance Officer.

The Defendant also contended that all actions taken against him, leading to his termination was as a result of retaliation against him for reporting certain officials to the Anti-Corruption Commission.

The Defendant counter claimed against the plaintiff for wrongfully deducting his salary to set off the expenses incurred from the usage of the credit card. The usage of the card

The learned Magistrate found that the 7 group of personal expenses by the Defendant which included medical expenses, Netflix subscription, purchases of electrical appliances, purchases of souvenirs and gifts, golfing, accommodation, plane tickets and telephone bill payments, breached the express use of cards for “business related travel, meals hotels, car rentals and food and beverage business related expenses”.

The learned Magistrate noted that the Defendant had failed to provide any receipts for the above expenses although he was bound to so as an agreed condition for the usage of the credit card although the approval from the Chief Finance Officer was produced as evidence in at the trial.

In the Court’s view the learned magistrate was correct in determining that the Defendant was in breach of the condition for the usage of the credit card by not submitting the receipts as was required.

The plaintiff has the burden of proof under section 101 of the Evidence Act 1950 to proof the usage of the credit card which according to this Court they have discharged this burden of proof. Section 101 of the Evidence Act 1950 stipulates that:

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. ILLUSTRATIONS

A desires a court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. A must prove the existence of those facts.

Once the Plaintiff has discharged the burden of proof showing the personal expenses for the use of the credit card, in the Court’s view, the burden then shifts to the Defendant to show that the expenses were for the purposes the credit card was issued.

This is in line with section 103 of the Evidence Act 1950 that: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

In this case the Defendant had clearly failed to discharge this burden by failing to show that the usages were for official purposes. On the face of it Netflix subscription, purchases of electrical appliances and payment of telephone bill cannot be for official purposes.

Other expenses like medical expenses the Plaintiff had testified that should have been paid by the Defendant first and claimed later as the Defendant was entitled to such medical expenses. Deduction of salary

As the Defendant had failed to justify the expenses by producing the receipts the learned Magistrate decided that the Plaintiff have a right to recover these expenses from the Defendant by way of deduction of the salary and holding back the last salary. This Court finds no fault in the reasoning of the learned Magistrate.

In addition the learned Magistrate rightfully noted that the Defendant by way of writing had agreed to the deduction voluntarily. To this Court by agreeing to the deduction the Defendant has deemed to have admitted to breaching the term for the usage of the credit card.

This admission by the Defendant is a factor which the Court can take into account. This is provided for in section 21 of the Evidence Act 1950 as follows: Admissions are relevant and may be proved as against the person who makes them or his representative in interest; Breach of fiduciary duty

The learned Magistrate taking guidance from the cases like Avel Consultants Sdn Bhd & Anor V Mohd Zain Yusof & Ors and Tengku Dato’ Ibrahim Petra V Petra Perdana Bhd & Anor ruled S/N VgO2cN/R1keea09io9aOdA that the Defendant owed a fiduciary duty to the Plaintiff and had breached the said duty.

Again, this Court finds no fault in this decision of the learned Magistrate and agrees that the Defendant apart from misusing the credit card had also breached his fiduciary duty toward the Plaintiff. Unjust enrichment

The learned Magistrate also agreed with the submission of the Plaintiff that the Defendant was unjustly enriched in misusing the credit card. In this Court’s view the learned Magistrate was in error in deciding on unjust enrichment when it was not even pleaded by the Plaintiff in their Statement of Claim. A party is bound by its pleading and cannot lead evidence nor submit on a matter not pleaded.

The learned Magistrate rightly decided that the Plaintiff was entitled to the sum claim which represented the excess owed by the Defendant after deducting the salary and holding back the last salary.

This Court also agrees with the decision of the learned Magistrate in only allowing nominal damages for the Defendant’s breach of duty as the Plaintiff had failed to show any other losses apart from the excess amount owed by the Defendant. S/N VgO2cN/R1keea09io9aOdA Counter claim

The learned Magistrate had also rightfully dismissed the Defendant’s counter claim based on the same reason allowing the Plaintiff’s claim.

In the upshot the Court agreed with the decision of the learned Magistrate except for the issue of unjust enrichment, in allowing the Plaintiff’s claim.

This Court therefore dismissed the Defendant’s appeal against the decision of the learned Magistrate with a cost of RM5,000. Dated: 24.10.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur S/N VgO2cN/R1keea09io9aOdA PARTIES For the Plaintiff: Nama Peguamcara: Ganesh Perumal & Shasha Aquliah Tetuan Ganesh & Co, D1-U2-6, Solaris Dutamas, No.1, Jalan Dutamas 1, 50480 Kuala Lumpur. Jade Hills 43000 Kajang Selangor. For the Defendant: Nama Peguamcara: Alison Goh Poi Sze Tetuan Shook Lin & Bok 20th Floor, Bangunan Ambank Group, 55, Raja Chulan Rd, Bukit Ceylon, 50200 Kuala Lumpur.