Tan Chin Kwee v 1. Jova International Sdn. Bhd. (JA-22NCC-3-01/2019)

JOVA INTERNATIONAL SDN. BHD. (Company No: 1024803-K) (In liquidation)

2.

HENNING FRIEDRICH WITT ...DEFENDANTS GROUNDS OF JUDGMENT 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 2 Introduction [1] This was the Plaintiff’s claim (“this Claim”) against the Defendants for the repayment of two loans amounting to MYR5.45 million. The background facts [2] The First Defendant was a company (which was wound up on 28 August 2019), incorporated under the Companies Act 2016, whilst the Plaintiff was one of its shareholders. The Second and Third Defendants, a married couple, were shareholders as well as directors of the First Defendant. [3] A loan in the amount of MYR2.5 million was given by the Plaintiff to the First Defendant, which it acknowledged in a letter dated 29 May 2017, whilst the second loan in the amount of MYR2.95 million was provided via an agreement dated 30 January 2018, wherein all three Defendants, including the Second and Third Defendants had signed. [4] The Plaintiff’s claim against all three Defendants was allowed, for the following reasons. Contentions, evaluation, and findings [5] The Plaintiff’s case was that there were two loans; and whilst the first loan was given to the First Defendant, the second loan was given to all three Defendants, with the Second and Third Defendants in their individual capacities. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 3 [6] In support thereof, with regard to the first loan, the Plaintiff relied on an undisputed letter dated 29 May 2017 (“Letter dated 29 May 2017”), which clearly indicated that MYR3 million was payable by the Plaintiff to the First Defendant, whereby MYR500,000 was for the purchase of shares from the Third Defendant, and that MYR2.5 million was an interest-free loan. To support his claim, the Plaintiff had also adduced a document dated 5 June 2017 (“Document dated 5 June 2017”) which indicated that the First Defendant had agreed to make monthly payments of MYR50,000 beginning 21 September 2018. [7] The Defendants, on the other hand, averred that the Plaintiff was introduced to the Defendants as a potential investor to invest in the First Defendant, to replace the original intended investor, one Kang Hock Hin, and that the Plaintiff had agreed to purchase 500,000 share units in the First Defendant from the Third Defendant, at the shareholding value of MYR3 million. [8] The Defendants further averred that this arrangement was due to the Defendants’ reluctance in increasing the First Defendant’s paid-up capital, and had therefore, agreed to record MYR500,000 as the amount for the purchase of shares, whilst the balance of MYR2.5 million was to be given by the Plaintiff to the First Defendant in the form of investment into the First Defendant. The Defendants claimed that via an arrangement that was made orally, such repayment to the Plaintiff was in reality payment of interest that was subject to the First Defendant’s performance, in terms of profits of the First Defendant. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 4 The parol evidence rule [9] I was unable to accept the Defendants’ contention, for the main reason that the terms of the Letter dated 29 May 2017, had clearly indicated that the MYR2.5 million was in fact a loan. At this juncture, it is crucial to bear in mind the parol evidence rule that excludes evidence that purports to add to, vary, contradict or subtract from the terms of the document: Eng Mee Yong v Letchumanan [1979] 2 MLJ 212, PC. The aspects of the parol evidence rule were explained by Mohd Zawawi Salleh J (as he then was) in Bank Pertanian Malaysia Berhad v Fiskal Fantasi Sdn Bhd & Anor [2011] 1 LNS 678, where his Lordship in referring to the UK Law Commission of England and Wales, Law of Contract: The Parol Evidence Rule (Working Paper No. 70, 1976), had stated in the following passages: [7] … The rule embodies three distinct rules. The Law Commission of England and Wales explained it in the following way: We must start by explaining what we mean by 'the parol evidence rule'. When a transaction is recorded in a document, it is not generally permissible to adduce other evidence of (a) its terms or (b) other terms not included, expressly or by reference, in the document or (c) its writer's intended meaning. There are here three distinct rules which exclude what is known as extrinsic evidence, being evidence outside or extrinsic to the document. The evidence excluded is usually oral, but it may be other documentary evidence. The three rules, either separately or together, are sometimes known as the parol evidence rule. The first rule excludes a particular means of proof, namely secondary evidence of a document: where the rule applies it prevents the contents of the document being proved by any means other than the production of the document. This is more usually known as the 'best evidence rule'. By the second rule extrinsic evidence is inadmissible for the purpose of adding to, varying, contradicting or subtracting from the terms of the document: the writing is conclusive. The third rule deals with the admissibility of facts in aid of the interpretation or construction of documents. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 5 [10] The parol evidence rule is found in sections 91 and 92 of the Evidence Act 1950 (“Evidence Act”), which read: Section 91 – Evidence of terms of contracts, grants and other dispositions of property reduced to form of document When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. **** Section 92 – Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: [11] The Letter dated 29 May 2017 was without a doubt, indicative that it was an interest-free loan given to the First Defendant. In light of the documentary evidence relied on by the Plaintiff, and the oral evidence adduced by the Defendants to contradict such document, reference was made to the Federal Court case of Tindok Besar Estate Sdn. Bhd. v. Tinjar Co. [1979] 1 LNS 119, where it was clarified by Chang Min Tat FJ, in the following passage: ... the learned trial judge expressed himself to be completely satisfied with the veracity of the respondent's witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 6 consider that the respondent's oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safer to refer to and 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 to serve and if it did not account for the statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity. [Emphasis added.] [12] Secondly, the Defendants, averred that the Letter dated 29 May 2017 contained terms that were modified pursuant to discussions that had involved one Kang Hock Kin. At this juncture, a reminder of the general principles of contract law is apt, and may be found in The Royal Selangor Golf Club v. Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995; [1990] 3 CLJ (Rep) 37, where Lim Beng Choon J, in referring to National Coal Board v. Wm Neill & Son (St Helen) [1984] 1 All ER 555, summarised the general principles as follows: In considering the disputes of the parties I must first of all bear in mind the general principles of construction of contract as enunciated in the National Coal Board v. Wm Neill & Son (St Helen) [1984] 1 All ER 555 where it is said at p 560: The first two issues involve the construction of the contract. I bear in mind the principles of construing a contract. The relevant ones for the purpose of this case are: (1) construction of a contract is a question of law; (2) where the contract is in writing the intention of the parties must be found within the four walls of the contractual documents; it is not legitimate to have regard to extrinsic evidence (there is, of course, no such evidence in this case); (3) a contract must be construed as at 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 7 the date it was made: it is not legitimate to construe it in the light of what happened years or even days later; (4) the contract must be construed as a whole, and also, so far as practicable, to give effect to every part of it. In Central Bank of India v. Hartford Fire Insurance Co. Ltd. [1965] AIR SC 1288, the Supreme Court of India lays stress on the second principle advocated in the Wm. Neill & Son (St Helens) Ltd. case when it says at p. 1290: Now it is commonplace that it is the Court's duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the Court has to do. The Court must give effect to the plain meaning of the words however much it may dislike the result. [Emphasis added.] [13] I found instructive also the case of Asiapools (M) Sdn Bhd v. IJM Construction Sdn Bhd [2010] 2 CLJ 28, where it was stated by Abdul Malik Ishak JCA: In construing a written contract the professed object of the court was to discover the mutual intention of the parties. The intention of the parties must be ascertained from the document itself. Thus, the parties themselves cannot give direct evidence to show that their intentions were at variance with the provisions of the contract document. The task of the court is quite simple namely, to construe the contractual term without any pre-conception as to what the parties intended. When the minds of the parties are expressed in an unambiguous manner, the principle of construction which are at best only a guide in the search for the intention of the parties cannot be relied upon to override the declared intention of the parties unequivocally expressed in the contract document.” 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 8 [Emphasis added.] [14] It is important, therefore, to bear in mind that where the contract is in writing, the intention of the parties are confined within the four walls of the contract. The alleged oral agreement that the repayments were actually payment of interest had flatly contradicted the Document dated 5 June 2017, and did not, therefore, fall within the purview of any exception to the parol evidence rule, as found in section 92 of the Evidence Act, which reads: Section 92 – Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: Provided that-

any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document;

the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved; 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 9

the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;

any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and

any fact may be proved which shows in what manner the language of a document is related to existing facts. [15] It is also trite law that the interpretation of a contract is a question of law to be decided by the court and not by witnesses through their oral evidence. This is pursuant to section 94 of the Evidence Act which reads: Section 94 – Exclusion of evidence against application of document to existing facts When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. [16] Section 94 of the Evidence Act was expounded in a plethora of cases including the Federal Court case of Public Bank Bhd v. New Ace Digital Print Sdn Bhd & Anor [2019] 5 CLJ 1. I am, therefore, unable to allow any oral evidence to contradict the written terms of the agreement which was the Letter dated 29 May 2017. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 10 The role of Kang Hock Kin [17] It is crucial to note that the Defendants had objected to questions put to the Plaintiff in examination-in-chief regarding Kang Hock Kin’s involvement in the matter, and resisted any references by the Plaintiff to Kang Hock Kin, on the basis that such facts had not been pleaded. Yet, the Defendants’ whole narrative was based on the purported role played by Kang Hock Kin in the matter. As a result of the Defendants’ objection, the Plaintiff had refrained from making any references to Kang Hock Kin in his submissions. [18] However, since the purported role played by Kang Hock Kin was a particular fact raised by the Defendants themselves, it was for them to prove it, pursuant to section 103 of the Evidence Act, which reads: Section 103 – Burden of proof as to particular fact 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. [Emphasis added] [19] As such, it was for the Defendants to produce Kang Hock Kin, which they had failed to do, resulting in an adverse inference being drawn. The provision which contains the adverse inference is found in illustration

of section 114 of the Evidence Act, which reads: Section 114 – Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 11 human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; [20] As stated by the Supreme Court in Munusamy v PP [1987] 1 MLJ 492, through Mohd. Azmi SCJ, the evidence that is referred to in section 114(g) of the Evidence Act must not only be relevant, it must be material. [21] In my view, Kang Hock Kin would have been material to the Defendants’ case as he would have been able to corroborate their narrative. On this note, reference was made to the case of Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in The Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515, where it was stated by Nallini Pathmanathan J (now FCJ): …The person best placed to explain fully the events of the day would have been the Master but the Defendant failed to call the master as witness. Stating that he was uncooperative. Given the importance of this witness’ evidence, the defendant’s failure to subpoena him led this court to conclude that the master’s evidence if produced, would affect the defendant adversely. This was a fit and proper case for this court to draw an adverse inference under s 114(g) against the defendant… [Emphasis added.] [22] A further aspect of the evidence referred to in illustration (g) of section 114 of the Evidence Act is that an adverse inference is drawn only if 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 12 there was deliberate withholding of the evidence. Deliberate withholding of the evidence is inferred from the lack of a reasonable explanation for the failure to produce the witness: Adel Muhd El-Dabbah v AG of Palestine [1944] AC 156, Murugan v Lew Chu Cheong [1980] 2 MLJ 139, and Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428. In the present case, there was no satisfactory explanation proffered for the absence of Kang Hock Kin, leading to the inference that there was deliberate withholding of the witness. As such, the failure to call Kang Hock Kin resulted in the invocation of an adverse inference against the Defendants, and which compromised their narrative. [23] It must also be highlighted that it was indicated in the Document dated 5 June 2017 that the First Defendant had agreed to make monthly payments of MYR50,000 beginning 21 September 2018. This fortified the Plaintiff’s contention that the First Defendant had in fact obtained a loan, from the Plaintiff, and nothing else. Whether the Second and Third Defendants had signed in their individual capacities [24] The Plaintiff’s claim regarding the second loan was based on a document dated 30 January 2018 (“Document dated 20 January 2018”) which was signed by all three Defendants. [25] The first issue was whether the Second and Third Defendants had signed the Document dated 30 January 2018, on behalf of the 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 13 First Defendant alone or whether they had signed in their individual capacities as well. [26] The Defendants claimed that since the First Defendant was a separate legal entity, the Second and Third Defendants should not have been made parties to this suit, as the loan agreement was signed by the Second and Third Defendants, not in their individual capacities, but only as directors of the First Defendant. [27] In my view, a comparison between the Letter dated 29 May 2017, and Document dated 30 January 2018, was necessary. Letter dated 29 May 2017: Document dated 30 June 2018: 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 14 [28] In the Letter dated 29 May 2017, it was undisputed that the Second Defendant had signed on behalf of the First Defendant. However, in the Document dated 30 January 2018, reference was made to ‘Borrowers’ in the plural and not ‘Borrower’ in the singular, pointing to the fact that ‘Borrowers’ included not only the First Defendant, but the Second and Third Defendants as well, as they had signed in their individual capacities, and not merely on behalf of the First Defendant. [29] It was, therefore, inequitable for both the Second and Third Defendants to use the corporate veil as a method of avoiding liability. Whether the second transaction was a separate loan [30] The Defendants contended that the Document dated 30 January 2018 was not evidence of a loan, but that of a continuous transaction from the Letter dated 29 May 2017, which was an investment into the First Defendant, and that the Plaintiff would be entitled to the profits, if at all, made by the First Defendant. [31] First and foremost, there was nothing in the Document dated 30 January 2018 which had made any reference to the payment made to the First Defendant in accordance with the Letter dated 29 May 2017. This again would attract the parol evidence rule alluded to earlier. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 15 [32] I am mindful that the title of the Document dated 30 January 2018 was ‘Investment Payment Agreement’. However, the amount of MYR2.95 million was referred to as a loan, as indicated below: 1) Parties This Interest payment agreement is made between: JOVA INTERNATIONAL SDN BHD (Company Reg. No. 1024803-K) No.6 & 8, Jalan Penaga 11, 81750, Masai, Johor. ("the Borrower"). TAN CHUI YEANG (NRIC No: ************) ("the Borrower"). HENNING FRIEDRICH (Passport No: *********) ("the Borrower"). TAN CHIN KWEE (NRIC No: ************) No. 15, Jalan Keruing 12, Taman Bukit Rinting 81750, Masai, Johor. ("the Lender"). 2) Date of agreement This agreement is effective on 0 January 2018 3) Loan amount Ringgit Malaysia Two Million Nine Hundred and Fifty Thousand (RM2,950,000-000) 4) Interest The borrower shall be obliged to pay interest at the rate of 2 percent (%) per month 5) Late charge For this Interest payment due date is until 31 July 2018 6) Amendment This loan may be amended or modified only by a written agreement signed by the Borrower and Lender … 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 16 [Emphasis added.] [33] It was, therefore, inconceivable that the Document dated 30 January 2018 could have been an investment payment agreement, as the substance of the document was not indicative as such. Furthermore, if the Document dated 30 January 2018 was in fact an investment payment agreement, the contents would have pointed to the details of such investment, and the return on such. In this case, there were none. [34] In addition, payments made by the Plaintiff, evidenced by exhibits in pages 12 to 21 of the Common Bundle of Documents, fortified the Plaintiff’s claim that this was a loan. The Second Defendant’s admission during cross-examination that he would have not signed the Document dated 30 January 2018 if he had not received the MYR2.95 million, put paid to the Defendants’ denial of such loan. Credibility of the witnesses [35] Since the Defendants’ narrative was based solely on their oral evidence, it was crucial to assess their credibility. As such, reference was made to section 146 of the Evidence Act, which reads: Section 146 - Questions lawful in cross-examination When a witness may be cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—

to test his accuracy, veracity or credibility; 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 17

to discover who he is and what is his position in life; or

to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. [36] Credibility concerns the opportunities for a power of observation of the witness in question, his accuracy for recollection, and capacity to explain to the Court what he remembers. [37] I also found instructive the observations made by Gillen J in Sean Thornton v Northern Ireland Housing Executive [2010] NIQB 4 which was adopted in McAllister v Campbell [2014] NIQB 24, in the following passages: Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence. In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following: • The inherent probability or improbability of representations of fact • The presence of independent evidence tending to corroborate or undermine any given statement of fact • The presence of contemporaneous records • The demeanour of witnesses e.g. does he equivocate in cross examination • The frailty of the population at large in accurately recollecting and describing events in the distant past • Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication • Does the witness have a motive for misleading the court • Weigh up one witness against another 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 18 [38] The Plaintiff himself gave evidence, and I found him to be credible. I had to make some allowances for him as he did not understand English, and although he had the assistance of a Mandarin-speaking interpreter, there were still some challenges. However, whatever contradictions, if at all, had been ironed out in re-examination. He was consistent that he had parted with MYR5.45 million in the form of two loans that had not been repaid. I also believed him when he said that he had deposited the sums of money to the bank account of the First Defendant at the behest of the Second and Third Defendants, and that a cash payment was even made to the Second Defendant. [39] The Second and Third Defendants, on the other hand, had contradicted themselves. Whilst they claimed that the whole amount of MYR3 million referred to in the Letter dated May 2017 was for the purchase of shares, yet in the same breath, they alleged that the sum indicated in the Document dated 30 January 2018 was to guarantee the repayment of MYR2.5 million which they claimed was an investment by the Plaintiff. However, the Third Defendant on several occasions during cross-examination admitted that the documents in question referred to only loans and not anything else. As such, I was guided by the words of Ali J in Mohamed Bin Kasdi v Public Prosecutor [1968] 1 LNS 78: No hard and fast rule can be laid down for determining the credibility or otherwise of a witness, but when a witness gives or makes two statements which differ in material particulars there must necessarily be ground for believing that he is not a truthful witness. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 19 [40] On the whole, my assessment of the Second and Third Defendants was that they were attempting to avoid liability at all costs, first by shifting it to the First Defendant (especially since the First Defendant was already wound up), and subsequently by denying altogether that loans were in fact given to them. I also found very telling, the fact that both the Second and Third Defendants had admitted that the documents were a veneer to some other arrangement, that they were attempting to conceal. This admission had not only cast doubts on their honesty, but was also indicative that they were not forthright with the actual nature of these transactions, and as such, I found their evidence unconvincing, and an afterthought. Whether the Plaintiff had proved his case [41] In the final analysis, the issue was whether the Plaintiff had proved his case. It is trite law that the Plaintiff had the legal burden of proof, as prescribed by sections 101 and 102 of the Evidence Act which read: Section 101 – Burden of proof

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. ********** 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 20 Section 102 – On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [42] Both sections 101 and 102 of the Evidence Act were referred to in MGI Securities Sdn Bhd v Teong Teck Leng & Ors [2000] 1 MLJ 354, by KL Rekhraj J in the following passage: … sections 101 and 102 of the Evidence Act 1950 require ‘whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove those facts do exist’; and here the plaintiff having chosen and elected not to lead the evidence of the oral agreements through its witnesses, the court could only hold that there was no evidence of the plaintiff’s before the court to adjudicate upon; and accordingly dismissed the plaintiff’s claim with costs. [43] I found instructive also the Federal Court case of U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 10 CLJ 580, and Court of Appeal case of Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors [2004] 3 MLJ 599, on the interpretation of sections 101 and 102. [44] The reminder on who has the burden to prove was administered by the Federal Court in Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491 and Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151, where in the latter case, it was stated by Ong CJ in the following passage: In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 21 inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself. [45] It was further emphasised in the case of Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491, by Arifin Zakaria CJ, in the following passage: It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (section 101 of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. [46] The standard of proof on the Plaintiff to prove his claim was on a balance of probabilities, a term which was described in Miller v Minister of Pensions [1947] 2 All ER 372 by Denning J (as he then was) as ‘more probable than not’ and which is ‘not so high as required in a criminal case…but if the probabilities are equal, it is not discharged’. Miller v Minister of Pensions has been assimilated into Malaysian jurisprudence through several cases including Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1. [47] The concept of balance of probabilities was further explained in Unsung Rasad v. PP [2019] 1 LNS 662, in which Abang Iskandar Abang Hashim JCA (as he then was), in adopting the English case of Re B [2008] UKHL 35, stated in the following passage: In the celebrated case of Miller v. Minister of Pensions [1947] 2 All ER 372, Denning J (as he then was) said: 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 22 If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not. [17] That would invariably require that party involved having to lead or adduce affirmative evidence to prove his case, as the court shall presume the absence of those circumstances, to reach a level of proof of at least 51% probability against his adverse party. We would cite the English case of Re B [2008] UKHL 35, where Lord Hoffman had used a mathematical analogy to illustrate what needed to be proven by a party desirous of having judgement entered in his favour, like so: If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened. [Emphasis added.] Conclusion [48] In the upshot, I was of the view that the Plaintiff had in fact reached the threshold of proof. Although the Defendants in ordinary circumstances would have had merely the evidential burden of raising sufficient evidence to ensure that the probabilities are equal, in this case the Defendants had raised particular facts, and as such, they had the burden of proving those facts, pursuant to section 103 of the Evidence Act, alluded to earlier. This they had failed to do. In any event, it was my view that the Defendants had not even discharged their evidential burden of raising sufficient evidence. 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 23 [49] In the final analysis, the documentary evidence adduced by the Plaintiff carried more weight than the oral evidence adduced by the Defendants. As it was stated by Sarkar J in the Supreme Court case of Central Bank Of India Ltd. v Hartford Fire Insurance Co. Ltd. AIR 1965 SC 1288, ‘…it is the court's duty to give effect to the bargain of the parties according to their intention and when that bargain is in writing the intention is to be looked for in the words used unless they are such that one may suspect that they do not convey the intention correctly. If those words are clear, there is very little that the court has to do. The court must give effect to the plain meaning of the words, however it may dislike the result.’ [50] Based on the foregoing reasons, therefore, and after careful scrutiny and consideration of all the evidence before this Court, including the written and oral submissions of both parties, the Plaintiff’s claim was allowed with costs. Dated: 16 July 2021 ……………SIGNED…..………… (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 24 Counsel: For the Plaintiff – Christy Lim Ying Ying and Heng Wang Qianyou; Messrs Chris & Partners For the Defendants – Fyiona Lai, Lai Yee Fan and Benjamin Tan; Messrs Benjamin Tan & Co Cases referred to:  Adel Muhd El-Dabbah v AG of Palestine [1944] AC 156, Murugan v Lew Chu Cheong [1980] 2 MLJ 139  Asiapools (M) Sdn Bhd v. IJM Construction Sdn Bhd [2010] 2 CLJ 28  Bank Pertanian Malaysia Berhad v Fiskal Fantasi Sdn Bhd & Anor [2011] 1 LNS 678  Central Bank Of India Ltd. v Hartford Fire Insurance Co. Ltd. AIR 1965 SC 1288  Eng Mee Yong v Letchumanan [1979] 2 MLJ 212, PC  Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491  Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1  Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors [2004] 3 MLJ 599  Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428  McAllister v Campbell [2014] NIQB 24  MGI Securities Sdn Bhd v Teong Teck Leng & Ors [2000] 1 MLJ 354  Miller v Minister of Pensions [1947] 2 All ER 372  Mohamed Bin Kasdi v Public Prosecutor [1968] 1 LNS 78 16 July 2021 ……………………………………………………………………………………………… ________________________________________________________________________ 25  Munusamy v PP [1987] 1 MLJ 492  Murugan v Lew Chu Cheong [1980] 2 MLJ 139  National Coal Board v. Wm Neill & Son (St Helen) [1984] 1 All ER 555  Public Bank Bhd v. New Ace Digital Print Sdn Bhd & Anor [2019] 5 CLJ

 Re B [2008] UKHL 35  Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in The Ship or Vessel the ‘Borcos Takdir’ [2012] 5 MLJ 515  Sean Thornton v Northern Ireland Housing Executive [2010] NIQB 4  The Royal Selangor Golf Club v. Anglo-Oriental (Malaya) Sdn Bhd [1990] 1 CLJ 995; [1990] 3 CLJ (Rep) 37  Tindok Besar Estate Sdn. Bhd. v. Tinjar Co. [1979] 1 LNS 119  U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 10 CLJ 580  Unsung Rasad v. PP [2019] 1 LNS 662  Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151 Legislation referred to:  Companies Act 2016  Evidence Act 1950 – sections 91, 92, 94, 101, 102, 103, 114(g), 146 Other sources referred to:  UK Law Commission of England and Wales, Law of Contract: The Parol Evidence Rule (Working Paper No. 70, 1976)