TAN SIEW NEE v Chiang Dyi Woei (J-02(NCvC)(W)-2416-12/2019)

TETUAN TEA, KELVIN KANG & CO. (Sued as a firm) ... RESPONDEN-RESPONDEN DIDENGAR BERSAMA RAYUAN SIVIL NO. J-02(NCVC)(W)-117-01/2020 19/09/2022 10:57:14 J-02(NCvC)(W)-2416-12/2019 Kand. 88 CHIANG DYI WOEI ... PERAYU TAN SIEW NEE ... RESPONDEN DIDENGAR BERSAMA RAYUAN SIVIL NO. J-02(NCVC)(W)-118-01/2020

TETUAN TEA, KELVIN KANG & CO. (Sued as a Firm) ... RESPONDEN-RESPONDEN [DALAM MAHKAMAH TINGGI DI JOHOR BAHARU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN NO : J-22NCVC-193-09/2018 CHEW YEE HUI ... PLAINTIF TAN SIEW NEE ... DEFENDAN ( TINDAKAN ASAL)

TETUAN TEA, KELVIN KANG & CO. (Disaman sebagai sebuah firma) .. DEFENDAN-DEFENDAN (DI DALAM TUNTUTAN BALAS)] CORAM: YAACOB BIN HAJI MD SAM, JCA S. NANTHA BALAN, JCA MOHD NAZLAN BIN MOHD GHAZALI, JCA GROUNDS OF JUDGMENT Introduction [1] There are three related appeals before us which arose from the decision of the High Court after a trial. Appeal No. J-02(NCVC)(W)-2416- 12/2019 is filed by Tan Siew Nee (“Appeal No. 2416”) in respect of part of the decision made by the learned Judicial Commissioner of the High Court (“learned JC”) after trial which dismissed the Appellant’s (Tan Siew Nee) claim against all the Respondents and allowed the Second Respondent’s (Chew Yee Hui) counterclaim. Appeal No. J- 02(NCVC)(W)-117-01/2020 is filed by Chiang Dyi Woei (“Appeal No.117”) relates to the decision made by the learned JC which dismissed the Appellant’s (Chiang Dyi Woei) counterclaim. Appeal No. J- 02(NCVC)(W)-118-12/2019 is filed by Chew Yee Hui (“Appeal No. 118”) against part of the order of the learned JC which allowed part of the Appellant’s (Chew Yee Hui) counterclaim. [2] It was agreed by parties in all appeals that the three appeals be heard together. This judgment is our grounds for all the appeals. [3] For the purpose of this judgment, the parties will be referred to as follows: Madam Tan Siew Nee the Appellant in Appeal No. 2416 as “Borrower/Vendor”, Chiang Dyi Woei the Appellant in Appeal No.117 as “Lender/Purchaser”, Ms Chew Yee Hui the Appellant in Appeal No.118 as “Miss Chew” and Tetuan Tea Kelvin Kang & Co as “the Law Firm”. [4] The civil suit in the Johor Bahru High Court was filed by Miss Chew to claim payment of rentals and an order for the Borrower/Vendor to give her vacant possession of three houses which have been sold and transferred by the Borrower/Vendor to her. The Borrower/Vendor responded by filing a counterclaim against Miss Chew, the Lender/Purchaser and the Law Firm to claim for payment of damages. The Lender/Purchaser filed his Defence and also a Counterclaim against the Borrower/Vendor to claim repayment of friendly loans which he had given to the Borrower/Vendor. More details will be referred to below. So, in total there were three claims which were dealt with by the trial judge (Learned JC), namely Miss Chew’s original claim, the Borrower/Vendor’s claim and the Lender/Purchaser’s claim. [5] In her pleadings, the Borrower/Vendor pleaded coercion, undue influence, duress, inequality of bargaining power, fraud and forgery as the basis of her Counterclaim against the other parties (see page 129 Enclosure 3 in Appeal No. 2416). [6] The learned JC made adverse findings against all parties except the Law Firm. Her final decision was to dismiss Miss Chew’s claim for payment and only allowed her claim for vacant possession of the three houses/properties already registered in her name, which were charged to the banks. The Borrower/Vendor’s counterclaims against Miss Chew and the Lender/Purchaser were dismissed with no costs ordered, while her claim against the Law Firm was dismissed with RM35,000.00 costs. Finally, the Lender/Purchaser’s counterclaim against the Borrower/Vendor for repayment of friendly loans was dismissed with no costs ordered. (See : High Court Order dated 18th December 2019 in Jilid 3 ROA which contained the following):

However, despite this, Counsel for the Plaintiff informed the Court that since specific dates had been scheduled for this trial, coupled with the averment that he had not received the original documents from Counsel for the First Defendant, he would not be calling any expert to testify to the signatures of the Plaintiff. I found this explanation unsatisfactory, in view of the fact that it was the Plaintiff who had amended her pleadings at the eleventh hour to factor in the issue of forgery, and that there was, in my view, more than ample time for the Plaintiff to have called her own expert witness to testify. [103] Nevertheless, Counsel for the Plaintiff attempted to discredit the expert opinion evidence of DW1 by pointing out flaws in the method he employed in arriving at this conclusion. In my view, the evidence of DW1 remained intact even after being cross-examined by Counsel for the Plaintiff. DW1 inspired confidence and, in my view, remained consistent throughout. He took the Court through his grounds of evidence and went into minute details of the basis of his opinion that the signatures of the Plaintiff as they appeared on the Acknowledgements of Receipt, were not at all forged. [112] Evidence was adduced by DW5 that the Plaintiff had in fact signed the documents is direct evidence as provided in section 60(1)(a) of the Evidence Act, that is, it is the evidence of the witness who saw the Plaintiff actually sign the document. In light of the evidence adduced pertaining to the various other documents that the Plaintiff had signed simultaneously, I had no reason to disbelieve that she had in fact signed the Acknowledgements of Receipt. [113] Since the Plaintiff had disputed her signatures on the Acknowledgements of Receipt, the legal burden was now on her to prove on a balance of probabilities that her signatures were forged. This is prescribed by 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. [115] DW1's expertise was not disputed, and he had provided the grounds of his opinion, and explained them in detail in Court. Coupled with my own observation of the Plaintiff's signatures and the comparison made with the disputed ones, it warrants me to conclude that the signatures of the Plaintiff as they appeared on Acknowledgments of Receipt were not at all forged. [116] In fact, I would add that the Plaintiffs allegation of forgery was also an afterthought, and an attempt to wrestle out of the quagmire she had found herself in.” [17] It is trite law that an appellate court should be slow to disturb the finding of facts of the trial judge and orders made based on those finding. In this case, the learned JC in fact made finding of facts about the Borrower/Vendor (who was referred to as “the Plaintiff” in her Grounds of Judgment) with full details to explain the reasons for her conclusion, as follows: “[88] The Plaintiff claimed that not only were the SPAs and Tenancy Agreements a sham, but that she had acted under 'coercion', 'undue influence', 'duress'; that there was inequality in bargaining power when she entered into such agreements; and that fraud and forgery were perpetrated. These vitiating factors are found in Contracts Act in sections 15, 16, and 17. [89] In alleging 'coercion', the Plaintiff claimed that the First Defendant had threatened to send debt collectors after her, to exercise bodily harm to her through violent means if she did not sign all the agreements to facilitate Plan B. However, there was no independent evidence whatsoever to support this claim. Furthermore, in view of the fact that these agreements were signed by the Plaintiff in 2016 and 2017, when the parties were still on good terms, this allegation, in my view, is wholly unfounded. [90] With regard to 'undue influence', the Plaintiff pleaded that at all material times, the Second Defendant, through the First Defendant, was in the position to dominate her will. I find this averment baffling. The Plaintiff is an educated, shrewd, and an experienced property investor. By her own admission during cross-examination, she claimed to have owned more than ten properties, and was familiar with dabbling in real estate. Furthermore, there is no evidence at all to support this contention. To claim that she was dominated by the First and Second Defendants, therefore, is nothing but a bald allegation. [91] 'Duress' and 'inequality in bargaining power' were also pleaded by the Plaintiff. She alleged that she was under duress when she executed the Guarantee Agreements, Letters of Instruction and the Tenancy Agreements , and that the Second Defendant, through the First Defendant had, on numerous occasions, threatened to harass her existing tenants with debt collectors, and to cut off electricity and water supply to the Properties. In my view, this argument is bereft of merit, as these incidents occurred, if at all, in 2018 when the Second Defendant was trying to enforce the Tenancy Agreements which the Plaintiff had signed in year 2017. The contention of duress and undue influence is, therefore, untenable. [92] The Whatsapp messages between the Plaintiff and First Defendant that were adduced as evidence contained no indication of duress or undue influence. In fact, words of gratitude and affection such as "thanks", and "Sister Jenny" were used between the Plaintiff and the First Defendant in 2016 and 2017. The language employed and conduct (relevant under section 8 of the Evidence Act) of the Plaintiff towards the First Defendant were relevant to rebut (relevant under section 9 of the Evidence Act) the allegations of coercion and duress, and to demonstrate that the Plaintiff had entered into these Agreements knowingly, willingly and voluntarily. [93] It is also significant to note that no complaints were made by the Plaintiff after the last transaction in 2017. Her first complaint was in February 2018, after her irate husband had discovered her activities, and who was vexed with the manner in which the Plaintiff had parted with her money and Properties. [94] The documentary evidence adduced by the Plaintiff such as letters and police reports were documented in February and May 2018 (exhibited at pages 393-395 and 398-402 of Part B of the CBD) and could not be considered in determining if there were indeed "coercion", "undue influence", "duress", and "inequality of bargaining power" which purportedly caused the Plaintiff to enter into those transactions as early as 2016 and 2017. In fact , there was not even a speck of evidence to support such averments. [95] Counsel for the Plaintiff submitted that the facts must be looked at as a whole, including the narrative of Bradley , to appreciate the alleged duress the Plaintiff was under to borrow the money for him. In my view, this argument is wholly untenable. First and foremost, the only evidence adduced in this Court about Bradley and his allegedly bogus revenue-generating activities is from the Plaintiff, which I find incredulous. The Plaintiff admitted in court that the reason for parting with an astonishingly huge sum of money in favour of Bradley was for the return of the investments that he promised her. She was even able to dictate her own terms and conditions in the Agreement between herself and Bradley. It was therefore erroneous for the Plaintiff to conveniently 'pass the buck' to Bradley to claim that the elements of duress and coercion extended to his conduct. [96] In my view, the Plaintiff has failed to prove the existence of "coercion", "undue influence", "duress", or "inequality of bargaining power", as she had failed to adduce contemporaneous or even an iota of evidence to that effect. It is my finding, therefore, that these averments by the Plaintiff were an afterthought in order to extricate herself from the quandary she found herself in. [125] I found the Plaintiff to be unconvincing and implausible. She not only contradicted herself, but was evasive and feigned ignorance to questions which answers she felt was not favourable to her. [126] At this juncture, I am guided by Zabariah Mohd Yusof JCA (as she then was) in the Court of Appeal case of Sediabena Sdn Bhd v China Comservice (Hong Kong) Limited [2017] 1 LNS 2042, in the following words: ... The learned trial Judge preferred the evidence of the Plaintiff whom she viewed as "more credible" in support of their contention, as compared to the witnesses of the Defendant who were "evasive and blowing hot and cold in responding to questions in relation to the failure in providing the invoice in question as in so much it had portrayed untruthfulness on their part and also lack transparency as the parties to the agreement [127] In the case before me, taking into account all the facts and circumstances, I disbelieved completely the narrative of the Plaintiff. In my view and assessment of her, she was not the gullible and defenseless woman as her Counsel had attempted to portray. On the contrary, she was astute, and even admitted to the Court that the reason for borrowing for Bradley was because she saw investment opportunities in his business proposal. [128] The Plaintiff had even admitted under cross-examination that she was an experienced property investor, and had owned more than 10 properties. As such, she was hardly a novice in monetising her properties - in this case by partitioning them into several rooms rented to multiple 'room tenants'. Her shrewdness belied the gullibility she attempted to portray. [129] I also found contradictions between the documentary evidence adduced and her oral evidence in Court. The documentary evidence, in particular the Whatsapp messages between the Plaintiff and the First Defendant, revealed that they were on very good terms... [130] In Court, the Plaintiff attempted to give an impression that she was defenseless and a victim of a labyrinthine moneylending scheme which left her exploited and oppressed. In my view, the Plaintiff knew what she was doing and did it knowingly, willingly and voluntarily. In fact, she was invested in this scheme which was devised to circumvent the rules and regulations governing moneylending and property. It was, therefore, extremely injudicious and unprincipled for her to now claim that she was coerced, threatened, and unduly influenced to enter into all those agreement.” [18] The effect of the learned JC’s finding of facts, as reproduced above, was that the Borrower/Vendor knew and understood the contents of documents which she signed, and she must be presumed to have agreed to be bound by those documents. This would include all those documents for what she and the Lender/Purchaser called “Plan B”. [19] Regarding the learned JC’s finding of facts about the Law Firm, we would reproduce the relevant parts which led to her conclusion that the Law Firm should not be held liable to the Borrower/Vendor. The following passages from the Grounds of Judgment are, in our opinion, relevant regarding the Law Firm. The Law Firm is referred to as “Third Defendant”. “[138] The Plaintiff's allegation of fraud and conspiracy were unsubstantiated in view of the fact that she herself had made the requests for numerous loans from the First Defendant , and had dealt directly with him on the alleged provision of securities by way of the initial as well as the new SPAs. During cross-examination, the Plaintiff herself had admitted that, in all the transactions, she had negotiated directly with the First Defendant. She was, therefore, fully aware of the nature of the various transactions entered into with the First Defendant. [139] The Plaintiff had admitted that the Third Defendant entered the scenario only after the various arrangements were firmed up. In this connection, she had failed to adduce any evidence of any prior agreement between the First and Third Defendants with common intention to cause injury to the Plaintiff. [140] Bearing in mind that the Plaintiff is an educated woman, and in my view, a discerning one, I had no reason to disbelieve the attending solicitors at the Third Defendant who testified that the Plaintiff had taken her time to peruse the documents each time before she signed them. Furthermore, she was repeatedly advised to engage her own lawyers to represent her, but declined. She had, therefore, knowingly, willingly and voluntarily signed, without protest, all documentation relating to the transactions prepared by the Third Defendant. [141] It is also pertinent to note that the relevant Acknowledgements of Receipts were in fact signed by the Plaintiff herself, which the Third Defendant was entitled to rely upon in the course of its appointment, thereby dispelling any suggestion that the Third Defendant could have committed any conspiracy with a view to forcing the Plaintiff into perpetual indebtedness to the First Defendant. [142] Furthermore, pursuant to Plan B, the Plaintiff had agreed that the balance purchase prices paid by the Second Defendant would be deposited with the Third Defendant as stakeholder, which sum was ultimately to be released to the First Defendant. [143] In this connection, my opinion is that the Third Defendant had no part to play in any of the negotiations which led to the various transactions. The monies involved in the various transactions were dealt with directly between the Plaintiff and First Defendant, and none went through the account of the Third Defendant. [144] While it is undisputed that the Third Defendant did act for the First Defendant and was responsible for the preparation of the documents used in some of the transactions between the Plaintiff and the First Defendant, it does not automatically mean that the Third Defendant had colluded with the First Defendant to defraud the Plaintiff. In fact it was confirmed by both the Plaintiff and First Defendant during cross-examination, that the Third Defendant's role was merely to reduce into writing the various arrangements between the parties. It was only after the parties had agreed to Plan B, that the Third Defendant was instructed to prepare the relevant documentation. [145] The Plaintiff had further alleged that the Third Defendant had unilaterally amended the Letters of Instruction by replacing the name of the Third Defendant with the First Defendant. It is pertinent to note that DW5 had testified that the amendment to the Letters of instruction was to rectify a mistake, as he claimed that it would not have made sense for the Plaintiff to authorise release of payment to the Third Defendant itself. Assessing the totality of the evidence, I found no reason to disbelieve DW5. [146] Whilst the Plaintiff's subpoena witness produced another letter of instruction addressed to the bank in a similar format and wordings, this in itself did not prove that the Letters of Instruction signed by the Plaintiff in favour of the Third Defendant had been tampered with. [147] The Plaintiff had also alleged that the Third Defendant had inserted 'questionable amounts' in the Letters of Instruction. In my view, this allegation would logically mean that the Plaintiff had known that the amounts in the Letters of Instruction were left blank at the time of signing, and as such, I am guided by the Court of Appeal in Malaysian Assurance Alliance Bhd v. Yeam Sai Ming & Ors [1996] 5 MLJ 345 where it was ruled that the Court would not assist a party whom had acted negligently in signing blank documents. [148] In any event, it is my finding that the Plaintiff was complicit to the execution of Plan B, and had knowingly, voluntarily and willingly signed the Letters of Instruction to facilitate such plan. As such, it is inequitable for the Plaintiff to now claim that fraud had been perpetrated, as the Court will not and cannot assist the Plaintiff in such circumstances.” Our Decision [20] Since the learned JC had given clear grounds for finding that the Law Firm was not to be blamed, we find no basis to disturb her finding, especially in a case like this, where the Borrower/Vendor is an experienced investor who confirmed that she had been advised to engage a lawyer to represent her in her transactions with the Lender/Purchaser but she chose not to be represented. Further, she admitted that she went to the Law Firm many times to sign documents. It was not a case of the Law Firm using illegal means to compel her sign many documents. [21] As quoted above from her Grounds of Judgment, the learned JC found the Borrower/Vendor to be “an educated, shrewd, and an experienced property investor” and “she was not the gullible and defenseless woman as her Counsel had attempted to portray”. Since the trial judge had concluded that the Borrower/Vendor was not the victim of a scam, we cannot ignore the important finding of fact made in her Grounds of Judgment, at para [96], that the Plaintiff has failed to prove the existence of coercion, undue influence, duress, or inequality of bargaining power. In other words, the Borrower/Vendor had failed to prove her pleaded case against the other parties. [22] Learned counsel for Lender/Purchaser on the other hand submitted that as a matter of fact, the Borrower/Vendor was herself an illegal money lender. We were asked to look at her evidence (page 209 to 211, Enclosure 23 in Appeal No.117) which included agreements which she made with ERMA ANGEDAN TOWLE and Agreement between her and Bradley Miles Towle, the person named “Bradley” mentioned by the Borrower/Vendor herself in her pleadings (see paragraphs 8, 9 and 10 Amended Statement of Defence and Counterclaim) and Witness Statement. Counsel pointed out to us that the Borrower/Vendor admitted during cross-examination that she drafted the Agreement herself. Looking at her Agreement with Erma Angedan Towle, it showed that the Vendor/Borrower paid Erma RM50,000.00 but she made Erma repay to her RM5,000.00 every month for two months and then RM7,500.00 every month for 10 months, which total RM85,000.00, and finally repayment of principal sum of RM50,000.00. Even though para (1) of their Agreement mentioned “business of funding the deployment of HOUSEMAIDS”, the sums to be paid to her every month was fixed, not dependent on profits made. Based on the Agreement and the figure of RM85,000.00 as “profit” for lending RM50,000.00 which must be paid by Erma, it is clear the Borrower/Vendor was charging Erma interest of 170% per year. Since the Borrower/Vendor was not a licensed money lender, she herself was actually involved in illegal moneylending business. [23] The Borrower/Vendor did not call Bradley as her witness. Since she had alleged that the Lender/Purchaser was conspiring with Bradley, it is relevant for us to look at the finding of facts made by the learned JC: “[119] ASP Azamin bin Naim, the I.O. who was supposed to have conducted investigations (see letter dated 15 May 2018 by ASP Azamin bin Naim exhibited at page 403 of Part B of the CBD) based on the Plaintiff's police report against Bradley, was in the Plaintiff's List of Witnesses, listed to testify. However, no explanation was proffered regarding his absence. [122] With regard to Bradley, he remained an obscure character whom the Plaintiff had singled out as the root of the wrangle. It was, therefore, incumbent on her to produce him. The Plaintiff, however, had not proved to the satisfaction of the court that Bradley could not be contacted. It was her bare averment that he had disappeared, and I have to pay heed to the fact that the whole narrative of her entangled relationship with Bradley was not corroborated by any independent evidence. [123] Without the testimony of the I.O. regarding the whereabouts of Bradley and whether he had traced him or even his statements, it remained unclear if Bradley had actually absconded or if it was the Plaintiff who chose to refrain from calling Bradley as her witness, for fear that whatever evidence adduced by Bradley would be unfavourable to her. [124] As such, an adverse inference is drawn against the Plaintiff for failing to produce both the I.O. and Bradley.” [24] The Borrower/Vendor could have called ASP Azamin by serving a subpoena on the police officer but chose not to do so. Based on the above adverse inference made by the learned JC against the Borrower/Vendor for failing to produce Bradley and the Investigation Officer to give some explanation, we agree it was justified for the learned JC to conclude that Bradley and/or the I.O. might have evidence which would be unfavourable to the Borrower/Vendor. Her evidence was that she gave millions of Ringgit in cash to Bradley but how about the money which Bradley have repaid to her? It is quite impossible that the Borrower/Vendor, whom the learned JC found to be a shrewd investor, would continue to pay cash to Bradley over a period of a few years without receiving any repayment of high amount of interest. Since the Borrower/Vendor was doing unlicensed moneylending business herself, it could be that she did not want the amount of money and interest which she had received from Bradley to be made known to the trial judge. In any event, we find no basis to conclude that the learned JC was plainly wrong on the issue of adverse inference made by her against the Borrower/Vendor. [25] The Borrower/Vendor admitted payments received by her from the Lender/Purchaser through the banks but denied receiving payment by cash from him. However, she admitted in cross-examination that she withdrew cash from her bank accounts as soon as money was paid in because she only used cash to pay Bradley. This could be seen in the Notes of Evidence, page 81 of Enclosure 9 in Appeal No. 2416. In light of the learned JC finding that the Borrower/Vendor did sign the Acknowledgments of Receipt of payments, she could be held to have received the money which she acknowledged receipt. [26] The Borrower/Vendor’s evidence was that she gave millions of Ringgit in cash to Bradley but she did not adduce any evidence regarding her source of millions in cash. The Lender/Purchaser’s evidence included his bank statements from UOB Bank Singapore, which showed that he made a cash withdrawal of S$4,254,180.00 on 31st July 2015 from his company Ezytronic Pte Ltd (see page 233 of Enclosure 23 in Appeal No.117). He also proved that he (Chiang Dyi Woei) was the only shareholder of that company (see page 224 Enclosure 23 in Appeal No.117). These facts were not challenged by the Borrower/Vendor. Instead her learned counsel submitted about whether the Singapore Dollars were brought into Malaysia through the proper channel. With respect, the relevant issue was whether the Lender/Purchaser actually had the cash to pay to the Borrower/Vendor. On a balance of probabilities, the Borrower/Vendor must have received cash from the Lender/Purchaser, for her to have millions in cash to give to Bradley. The conduct of the Borrower/Vendor to keep only to helself of her source of millions in cash was defiance of common sense and commercial sense. One would have expected the Borrower/Vendor to immediately protest and/or raise an inquiry with the Lender/Purchaser if the agreed amount she suppose to receive was not received. Based on the facts and evidence, it was impossible for the learned JC to determine the exact sum that the Borrower/Vendor actually received from the Lender/Purchaser. It is also impossible for us to determine the exact amount of money which the Borrower/Vendor had received from the Lender/Purchaser, especially when we take note again that the learned JC had held in her Grounds of Judgment the following: “[127] In the case before me, taking into account all the facts and circumstances, I disbelieved completely the narrative of the Plaintiff.” [27] As mentioned above, learned counsel for the Borrower/Vendor is relying on Pang Mun Chung & Anor v. Cheong Huey Charn (supra) and Patel v Mirza (supra) to submit that the Lender/Purchaser and the Law Firm should be ordered to pay damages to the Borrower/Vendor, and he further submitted that the learned JC had failed to apply the principles in those two authorities in making her decision. To be fair to the learned JC, she must have found those two authorities from her own research because none of the counsel cited those cases at the High Court below. Therefore, with respect, learned counsel for the Borrower/Vendor should not have submitted that the learned JC erred in failing to apply the principles in those two authorities in making her decision. Lengthy written submissions were filed at the High Court by all the counsel. Those two authorities were reported in year 2017 and 2018 respectively, and were available before the trial of this case in 2019 (see para 13 above). [28] This Court held in Pang Mun Chung & Anor v. Cheong Huey Charn that: [72] In assessing whether enforcement of a claim would be harmful to the integrity of the legal system and therefore contrary to the public interest, it is necessary to consider the following:

(a) The underlying purpose of the prohibition or reasons why the conduct was made illegal;

(b) Other relevant public policy which would be affected by a denial of the claim;

(c) Whether denial of the claim would be proportionate response to the illegality by considering factors such as seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was a marked disparity in the parties’ respective culpability. [29] A reading of her Grounds of Judgment showed us that the learned JC correctly applied, and we agree, the principles set out by this Court in Pang Mun Chung, even though none of the counsel cited that authority to her at the High Court. She held as follows: “[160] In the upshot, despite making a finding that the transactions entered into between the Plaintiff on the one hand, and the First and Second Defendants on the other, were illegal, unlawful and entered into to circumvent the law, this Court cannot and will not allow the Plaintiff's claims, as she was complicit to these illegal transactions. She entered into those transactions knowingly, willingly and voluntarily and in my view, had abetted both First and Second Defendants in executing Plan B. [162] Taking into account the conduct of the parties, coupled with the fact that the Plaintiff's reliefs did not include the return of the Properties, I am compelled to weigh two public policy issues, namely (a) the need to discourage unlawful acts and refusing them judicial approval; and (b) preventing injustice and the enrichment of one party at the expense of the other. [163] After weighing and considering both these issues, I am of the view that the loss will have to lie where it falls. I have reached this conclusion after considering the public interest in the integrity of the legal system; the proportionality of the outcome; the conduct of all parties to this action; the need to bring closure to the dispute; and above all, to demonstrate strong disapproval, condemnation and denunciation of these acts. [164] In considering these factors, I am guided by the Court of Appeal in Pang Mun Chung & Anor v Cheong Huey Cham [2018] 8 CLJ 663, where it was stated that certain degree of flexibility is given to the Courts in deciding the reliefs sought by parties to an illegal transaction. On this point, in particular with regard to the principle of proportionality, reference is also made to the Ting Siew May v Boon Lay Choo [2014] SGCA 28, and ParkingEye Ltd v Somerfield Stores Ltd [2013] 2 WLR

939.” [30] The learned JC had clearly stated in para [163] of her Grounds of Judgment: “I have reached this conclusion after considering the public interest in the integrity of the legal system; the proportionality of the outcome; the conduct of all parties to this action” and in para [164] made it very clear with her following words: “In considering these factors, I am guided by the Court of Appeal in Pang Mun Chung”. We should therefore uphold her finding of facts and the final order which she made as the trial judge. As already pointed out earlier, the Borrower/Vendor herself had been doing illegal money lending business too. Based on all the evidence and finding of facts, we are satisfied that the learned JC’s decision was proportionate and fair. [31] In view of the common stance taken by all learned counsels for the Respondents as mentioned at paragaraphs (13) and (14) above, we do not deem it necessary to deal with the Respondents’ appeal in Appeal No. 117 and Appeal No. 118. Conclusion [32] Quite clearly the outcome of this case turned primarily on findings of fact. In our view, based on the evidence led during the trial, it cannot be said that the learned JC’s conclusion upon the evidence was plainly wrong. We need only refer to the reminder by the Federal Court in Ng Hooi Kui & Anor v Wendy Tan Lee Peng [2020] 12 MLJ 67: “As long as the trial judge’s conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [33] In light of all the above, we are not pursuaded that the learned Judicial Commissioner made any error in terms of the findings of fact and in reaching her conclusions. It bears repeating that the High Court had made a finding that the SPAs were a shame and the underlying transaction was an illegal money-lending transactions and pursuant to these impugned transactions, the subject properties (the 3 Houses) which were previously owned by the Borrower/Vendor, were transferred to and registered in the name of Miss Chew being nominee of the Lender/Purchaser. But despite her attempt at impugning the SPAs and other documents on the ground of fraud, forgery, coercion, duress and undue influence, the Borrower/Vendor did not pray for an order to set aside the register and registration of title to the 3 Houses in the name of Miss Chew. Rather, the Borrower/Vendor asserted that she is entitled to payment of the excess sum after accounting for the purchase price of the properties set-off with the actual amount of loan sums disbursed, and the various repayments which she had made to the Lender/Purchaser; and refund of RM69,196.00 from Miss Chew as the purported rental that she had paid to the latter. [34] It is obvious that the High Court had carefully, meticulously examined the evidence and was convinced as to the Borrower/Vendor’s complicity in the illegal activities which had been undertaken by the Lender/Purchaser and Miss Chew. The learned Judicial Commissioner opined that the Borrower/Vendor had come to the Court with unclean hands, and therefore, should not be entitled to any reliefs sought. (See : The High Court’s Grounds of Judgment reported as Chew Yee Hui v. Tan Siew Nee [2020] 1 LNS 136; [2020] MLJU 165). [35] In our view, based on the unique and exceptional facts and circumstances of the case, the learned Judicial Commissioner was entitled to come to the conclusion that despite making a finding that the transactions entered into between the Borrower/Vendor and the Lender/Purchaser and Miss Chew were illegal, unlawful and entered into to circumvent the law in regards to money-lending and property transactions, the Court declined to allow the Borrower/Vendor’s claims, as she was complicit to these illegal tranacstions. The learned Judicial Commissioner found that the Borrower/Vendor entered into those transactions knowingly, willingly and voluntarily and had abetted the other two in respect of these impugned transactions. The learned Judicial Commissioner was of the view that despite having the power to adopt a flexible approach to the question of reliefs, on the facts it would be disproportionate and unjust to grant any form of monetary relief to the Borrower/Vendor. Further, and since the houses had already been transferred to Miss Chew, the “loss should lie where it falls”. In those circumstances, the learned Judicial Commissioner considered it to be just and appropriate to dismiss the claims and counterclaims except the order of vacant possession of the houses, which was sought by Miss Chew as one of the reliefs in the Statement of Claim in the original action. We see no reason to disagree with the learned Judicial Commissioner in the approach which she took in dismissing all the claims and counterclaims and only granting the relief of vacant possession in favour of Miss Chew. [36] For all the foregoing reasons, we unanimously dismiss all the three appeals with no order regarding costs. The order of the High Court dated 18th December 2019 is hereby affirmed. t.t. (YAACOB BIN HAJI MD SAM) Judge Court Of Appeal Malaysia Dated 19th July 2022 Solicitors : Appeal 2416: For the Appellant: Dato’ Dr. Gurdial Singh Nijhar Abraham Au Tian Hui Tan Hee Soon Wong Kai Fen (Tetuan Tan Hee Son, Wong & Partner) For the Respondents: First Respondent: Gan Techiong Wong Wan Ting (Tetuan Gan & Lim) Second Respondent: Chin Shiaw Wei How Pek Lean (Tetuan Kuah, Lim, Chin & Ooi) Third Respondent: Chen Wai Jiun (Tetuan WJ Chen & Co.) Appeal 117 : For the Appellant: Gan Techiong Wong Wan Ting (Tetuan Gan & Lim) For the Respondent: Dato’ Dr Gurdial Singh Nijhar Abraham Au Tian Hui Tan Hee Soon Wong Kai Fen (Tetuan Tan Hee Son, Wong & Partner) Appeal No. 118 : For the Appellant: Chin Shiaw Wei How Pek Lean (Tetuan Kuah, Lim, Chin & Ooi) For the Second Respondent: Dato’ Dr Gurdial Singh Nijhar Abraham Au Tian Hui Tan Hee Soon Wong Kai Fen (Tetuan Tan Hee Son, Wong & Partner).