Tee Wei Chiang v Great Eastern Life Assurance (WA-22NCC-464-08/2019)

This writ action was filed against the Defendant (“GE”) premised on the alleged breach of agency agreement by GE.

After the completion of trial, this Court found that the Plaintiff failed to prove his case against GE. This is the Grounds of Judgment of this Court. 2

In 2004, the Plaintiff was appointed as an insurance agent of GE by virtue of an agency agreement executed on 23.9.2004 (“the Agency Agreement”).

The Plaintiff subsequently was designated as a Unit Sales Manager on 1.1.2007. Then beginning 1.1.2011, he was redesignated as a Life Insurance Advisor.

In 2013, GE received a written complaint from one of its customers, Madam Wong Kok Foong (“Madam Wong”), alleging in essence that she had paid a large sum of money to the Plaintiff to purchase seven (7) policies issued by GE inclusive of Personal Accident (PA) policies offered by Overseas Assurance Corporation (Malaysia) Berhad (“OACM”) through the Plaintiff. The Plaintiff represented to her that the payment of premiums for the seven (7) policies were one-off. Madam Wong subsequently discovered that she had to continue paying the premiums for the seven (7) policies.

Madam Wong also lodged a police report against the Plaintiff on 4.6.2013.

Upon receipt of Madam Wong’s complaint, GE suspended the Plaintiff as an agent. GE also simultaneously suspended the payment of the commissions, overriding commissions and benefits due to the Plaintiff from June 2013. 3

GE wrote a letter dated 19.6.2013 and 4.7.2013 to the Plaintiff requesting for full written explanation in respect of the complaint. On 19.7.2013, GE received a written explanation from the Plaintiff, which basically denied the complaint but admitted Madam Wong bought the seven (7) policies for her daughters with premiums of RM410,000.00 and Madam Wong had transferred a sum of RM400,00.00 into his account for “investment”.

On 30.7.2013, the Plaintiff was called in to GE’s head office for an interview in respect of the complaint made by Madam Wong.

At the conclusion of the inquiry, GE made a decision to terminate the Plaintiff’s agency through a termination notice dated 8.1.2014. The termination took effect on 15.1.2014. By virtue of the Agency Agreement being terminated, the Plaintiff’s appointments as Unit Sales Manager and Life Insurance Advisor were also terminated.

Concurrent to GE’s inquiry about Madam Wong’s complaint, the Plaintiff was also investigated and charged in the criminal court based on the police report lodged by Madam Wong. The Plaintiff was convicted by the Kuala Lumpur Sessions Court on 20.2.2014. The conviction was affirmed by the High Court but the Plaintiff appealed to the Court of Appeal and on 15.5.2015, he was acquitted by the Court of Appeal.

The Plaintiff claimed that as a result of the unlawful action of GE in terminating the Agency Agreement and its refusal to pay the Plaintiff the commissions, overriding commissions and benefits due 4 to him under the Agency Agreement before and after the alleged wrongful termination, the Plaintiff suffered loss and damages including but not limited to loss of income, reputation and mental anguish.

After being acquitted by the Court of Appeal, the Plaintiff wrote a letter to the Chief Executive Officer of GE seeking for his agency status to be reinstated. However, GE maintained its decision to terminate the Plaintiff’s agency hence the filing of the present Suit.

To better appreciate the case of the Plaintiff, the full reliefs claimed as they appear at paragraph 24 of the Statement of Claim are reproduced as follows: i. All commissions, overriding commissions and benefits due and payable from June 2013 to 15.1.2014 on the policies secured by the Plaintiff and which was inforce; ii. All commissions, overriding commissions and benefits due and payable on the policies secured by the Plaintiff that were inforce as at 15.1.2014 and which remained inforce thereafter; iii. A statement of account of all insurance policies effected and issued by GE through the agency of the Plaintiff that was effective as at 15.1.2014 for which commissions, overriding commissions and benefits were payable on all 5 policies inforce after 15.1.2014 and still remaining unexpired, in accordance with the Schedule of Commission under the Agency Agreement; iv. General damages for mental anguish and financial distress; v. Exemplary and/or aggravated damages; vi. Interest of 5% per annum from June 2013 until full realisation; and vii. Costs. Trial [15]

The trial of this action was held for four (4) days on 18.6.2020,

7.2020, 6.8.2020 and 1.10.2020. During the course of the trial, four (4) witnesses were called to testify. The witnesses are: i. PW1: Tee Wei Chiang, the Plaintiff; ii. PW2: Lee Yoke Kuew, former immediate officer of the Plaintiff and a serving agent at GE, holding the designation of Group Sales Manager; iii. DW1: Thian Yaa Fang, ex-investigating officer of GE; and iv. DW2: Helen Quat, Head of Compliance of GE. 6 Issues to be tried [16] The issues that have been identified requiring to be tried are as follows: i. Whether the Plaintiff has breached the terms of the Agency Agreement or the Code of Ethics and Conduct in dealing with Madam Wong which may result in the termination of the Plaintiff’s Agency Agreement? ii. If the answer to issue (i) is yes, whether GE’s decision to suspend the Plaintiff and the payment of the commissions, overriding commissions and benefits due to the Plaintiff from June 2013 were made on unproven allegations of Madam Wong and without giving full credence to the Plaintiff’s version of events; iii. Whether GE has the responsibility to conduct the inquiry/interview with adherence to the principles of natural justice, openness and fairness. If the answer is yes, whether the inquiry/interview has been conducted in such a way; iv. Whether the termination of the Agency Agreement by GE for the reasons stated in the notice dated 8.1.2014 is lawful; and v. If the Court finds that the termination is unlawful, whether the Plaintiff is entitled for the reliefs sought. 7 Analysis of the Court The contention of parties [17] It was the case of the Plaintiff that the handling of the complaint by Madam Wong by GE was impartial, one sided and defective. The consequence of which, GE was being grossly unfair, biased towards the complainant Madam Wong with the objective of victimizing the Plaintiff. Conversely, the Plaintiff was described as an innocent, hardworking and diligent agent who was very successful. The allegations by Madam Wong was all but Madam Wong’s own dissatisfaction with the personal arrangement between the Plaintiff and Madam Wong. The arrangements included the payment of approximately RM1.1 million to the Plaintiff by Madam Wong for the premiums and financial assistance that Madam Wong gave him. [18] The Plaintiff also challenged the interview that GE’s Compliance Department had with the Plaintiff. It was argued by the Plaintiff that the interview was not conducted in fairness in breach of natural justice. [19] It was suggested that the explanation by the Plaintiff in his letter to GE dated 19.7.2013 to Helen Quat, Head of Compliance of GE, (“DW2”) was the whole truth. In short he committed no wrong. This contention was backed by the fact that the Plaintiff was acquitted by the Court of Appeal of his criminal charges. Thus, he was therefore absolved of any blame or wrong doing. The Plaintiff urged this court to agree with him that he did no wrong. The obvious consequence 8 of the Plaintiff’s contention is that he must be entitled to the reliefs as prayed in the suit. [20] GE on the other hand contended that they were fully entitled to take action against the Plaintiff. This included the suspension, termination and the withholding of any commission due to the Plaintiff. GE contended that their action was premised on the Agency Agreement which allowed them to terminate and withhold any commission once a breach of the Agency Agreement is proven to their satisfaction. It was contended that the termination of the Agency Agreement can be made by mutual consent or at the election of either party. If the termination was based on factors such as gross misconduct, fraud, deceit or breach of trust, then as a consequence, the Plaintiff is not entitled to any commission and payment. [21] GE also contended that they conducted the relevant investigations over the complaint of Madam Wong by interviewing her and carrying out investigations in accordance with their standard practice. This included carrying out phone surveys and conducting a check of all the policies that the Plaintiff sold in the past. This was apart from the other information that the Compliance Department obtained from the daughter of Madam Wong which included an audio recording of a conversation between Madam Wong, her daughter and the Plaintiff. However, no such recording was produced in Court. 9 The Inquiry/ Interview [22] The first particulars of breach pleaded against GE is an attack on the admissibility of the Interview Statement. [23] The Plaintiff argued that GE failed to adhere to the principles of natural justice, openness, fairness and using intimidation to force an admission of guilt in terminating the Plaintiff’s agency during the course of the interview. [24] The contents of the Interview Statement were heavily disputed by the Plaintiff as it contained admissions which were detrimental to him. This therefore formed the bedrock of the Plaintiff’s case where it was argued that GE wrongly used the contents of the Interview Statement as the foundation to terminate the Plaintiff as an agent of GE. [25] It is therefore important for this Court to assess the Plaintiff’s complaint on how the interview was conducted. Reference is made to the Interview Statement itself as it was the contemporaneous document that was signed by the Plaintiff immediately after the said interview. The transcribed statement is marked as “B11”. [26] A general observation of the statement would show that the interview was recorded by Thian Ya Fang who was GE’s first witness (DW1). It was recorded by hand by DW1 on a form marked as “GREAT EASTERN ASSURANCE (MALAYSIA) BERHAD INTERVIEW STATEMENT”. The first page had boxes for recording 10 the preliminary information of the interview. At the bottom of the said form were signature panels for the interviewee, Recording Officer and a Witness. The interview was recorded to have started at 2.50 pm and ended at 5.45 pm. [27] It was pleaded by the Plaintiff in his Statement of Claim that the person who recorded the interview subjected the Plaintiff to “harassment, persistently pressured questioning and accusation of wrong. The Compliance Officer of GE repeatedly requested the Plaintiff to admit to all the allegations levelled against him by Madam Wong Ko Fong.” This Court embarked on a careful consideration of the Plaintiff’s allegation against the evidence presented during trial. [28] During the course of the trial, both GE’s witnesses were crossed examined extensively by counsel for the Plaintiff, Mr. Godfrey D’Cruz. His questions were directed to the manner the interview was carried out. He challenged both witnesses as to whether the Plaintiff was given the opportunity to understand what was recorded. It was put to the witnesses that the interview was carried out unfairly. It was also the suggestion of counsel that what was recorded by DW1 was something that the Plaintiff did not understand. This was because the questions were asked in Mandarin while the answers were recorded in English. [29] The witnesses for GE denied all the allegations levelled against them. 11 [30] The transcribed Interview Statement was marked as B11. But for some minor corrections, the transcribed statement was accepted by both parties. The transcribed Interview Statement is reproduced for convenience. 12 13 14 15 [31] This Court makes two observations from the said Interview Statement. A. The flow and content of the Interview Statement [32] The Interview Statement contained a first-hand account of how the dealings between the Plaintiff and Madam Wong (identified as Policy Holder – PH) were carried out. It was recorded in a manner which provided a narration of facts and events that suggested that it was based on a series of questions. It is the view of this Court that to procure answers in the fashion that was recorded by DW2 could only be done as a result of answers given out by the Plaintiff himself. It is difficult to accept that such a coherent statement was obtained as a result of “harassment, persistent pressure, questioning and accusation of wrong” as pleaded by the Plaintiff. [33] Not all of the Interview Statement contents contained admissions which incriminated the Plaintiff. It also contained explanations by the Plaintiff on matters which related to facts which was not the basis of GE’s finding against the Plaintiff. One such example is on the explanation that there was a personal arrangement between the Plaintiff and Madam Wong that saw Madam Wong granting him a personal loan amounting to RM 1.1 million. This did not form any of the grounds for his termination. Thus, to suggest that the statement cannot be relied upon by this Court is an extreme position that this Court would be very cautious in taking. 16 [34] From a reading of the Statement and having the opportunity to evaluate the responses given by DW1 and DW2 during cross examination, it is difficult for this Court to believe the version put forward by the Plaintiff. On the contrary, DW1 by her own character is a soft spoken person who was at all times more concerned about committing any errors in answering the questions posed to the extent that many of her responses were non-committal answers often layered with “I cannot remember”, much to the annoyance of counsel for the Plaintiff. [35] DW1 cannot to the mind of this Court be capable of intimidating and pressuring the Plaintiff. The allegations levelled against the GE witnesses were calculated to convince this Court that the entire process was conducted high handedly akin to an interrogation. The Court however, is not convinced by the Plaintiff’s complaints. B. Language [36] It was also the case of the Plaintiff that he was not conversant in English. As such, he complained that he did not understand what he signed at the interview. Therefore, he cannot be held for what is stated in the Interview Statement. [37] As an experienced agent of GE, having started his career as an agent as early as 2004, it boggles the mind of this Court that he is unable to understand what is written in English. After all, he claimed that he was a successful agent with many awards under his belt. 17 [38] He also admitted in Court that all marketing and training materials used by GE were only in Bahasa Malaysia and English. The Great Eastern website which displays the e-Partner page, is also only available in Bahasa Malaysia and English. As an agent, he is also required to attend trainings and seminars. Again, it was part of his attempt to distance himself from the contents of the Interview Statement. [39] In this regard, the law is trite when it comes to the obligations of a person who signs a document in the absence of fraud or misrepresentation. The case of Chin Well Fasteners Co Sdn Bhd V Sampath Kumar Vellingiri & 51 Others [2006] 1 MLJ 117 explained the trite position as follows: “[26] …It has been held that in the absence of fraud or misrepresentation, a person is bound by a writing to which he has put his signature, whether he has read its contents or has chosen to have them unread (see L'Estrange v Graucob [1934] 2 KB 394; Serangoon Garden Estate Ltd v Marion Chye [1959] MLJ 113; Majumder v AG of Sarawak [1966] 1 MLJ 41). The defendant is therefore bound by the contract of employment…” [40] The Plaintiff’s testimony that he did not understand what was stated in the Interview Statement is unsupported by any factual basis. The Interview Statement was a document recorded by DW1 and was contemporaneously signed by the Plaintiff. [41] The value of contemporaneous documents can never be understated. It can be used to test the veracity of a witness’s evidence. In Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 1 18 LNS 119; [1979] 2 MLJ 229, Chang Min Tat FJ, in delivering the judgment of the Federal Court observed: “Nevertheless 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 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) [42] It was certainly open to the Plaintiff to insist and record his disapproval on the document itself when he signed the said statement. He was after all, given the liberty to disallow the interview session from being recorded and this was duly noted in the Interview Statement itself. What can be seen however, were his initials at places where words were cancelled out, suggestive of his acquiescence to the changes made by DW1. His failure to make any correction at the time the interview ended does not support his version that the interview ended at 7.30 pm as pleaded in the Statement of Claim. He could simply have corrected the time stated in the form. It could have been as simple as that. 19 [43] From the two observations made by this Court, it is clear that the Plaintiff was tailoring his evidence. He offered no support for the plausibility of his contentions. To the mind of this Court, the Plaintiff was forced to disavow the Interview Statement because he was aware that he had admitted to gross misconduct. [44] It is the case of GE that the Plaintiff was not authorized to sell Personal Accident (PA) policies offered by OACM, an affiliate of GE. PA insurance is an annual policy which provides compensation in the event of injuries, disability or death caused solely by violent, accidental, external and visible events. It is different from life insurance and medical & health insurance. One of the complaints against the Plaintiff was him selling two PA policies for RM 400,000.00 to Madam Wong when actual payable premium amounted to merely RM420.00. In the Interview Statement, the Plaintiff admitted that he was not a PA agent but instead he sold the policies to Madam Wong as a “sub-agent” to an OACM agent known as Chew Leng Soon. It was explained by him in the Interview Statement that this was a normal occurrence within his agency. Chew Leng Soon would at the end of every month, transfer the commission to him. An extract of the said Interview Statement is reproduced as follows: - I’m not OACM agent and I’m a sub-agent of Chew Leng Soon. (CLS) - CLS is not same agency group with me but I know him and I would pass on all general insurance cases to him. CLS would pay me 8% of commission and he would bank-in to me on month basis. 20 - Actually, this practice (sub-agency) is quite common in our agency group. [45] An extract of the cross examination by counsel for GE is reproduced. It reads as: Ok. I’m not going to take you through everything because it’s there, we can all read, but Mr Tee, there’s just a few things. Do you see at page 734, five lines from the bottom, the statement says, ‘I’m not OACM agent. Do you see that? Yes, I see that. I am not OACM agent and I am sub-agent of Chew Leng Soon, CLS. CSL is not same agency group with me but I know him and I would pass’, and then you initialled, apparently there was a correction, ‘all general insurance cases to him. CLS would pay me 8% of commission and he would bank in to me on monthly basis. Actually this practice, sub-agency is quite common in our agency group’. Mr Tee, I’m putting it to you that this information could have only come from you. Nobody could have invented it. Do you agree? Yes. [46] It is the view of this Court that the answers provided by the Plaintiff in his Interview Statement were very precise and could only come from him alone. There is no basis to agree with the contention that the Plaintiff was in any manner “fixed up” by DW1 during the course 21 of the statement recording. It is also baseless to suggest that the answers given by the Plaintiff in the Interview Statement were not his. [47] As such, the Court finds no reason to rule that the contents of the statement did not come from the Plaintiff himself. It would be very difficult for anyone apart from the Plaintiff to give such a clear account of how the events unfolded. There was no basis to suggest that the Interview Statement was obtained as a result of “harassment, persistent pressure, questioning and accusation of wrong” as pleaded by the Plaintiff. Inconsistencies in the Plaintiff’s case [48] It is the finding of this Court that the complaint by the Plaintiff was riddled with inconsistencies. Among the inconsistencies were the identification of who actually carried out the interview. In the Statement of Claim, he had categorically identified DW2 as the Compliance Officer who recorded the statement. However, in his Witness Statement marked as WSPW-1, he identified the recording officer as the DW1. He also pleaded in his Statement of Claim that it was DW2 who asked him to sign the Interview Statement but in his witness statement, he said it was DW1 who asked him to do so. [49] The Plaintiff went on to explain in detail what DW1 did during the interview. This included the failure of DW1 to read the statement back to him before signing his statement and to explain to him the 22 reasons why amendments of the statement had to be initialed by him. He also stated that DW1 asked him to sign the statement by assuring him by saying “Don’t worry, nothing wrong in signing, it is only internal”. [50] Discrepancies were also seen in the pleadings and the Plaintiff’s witness statement when he complained about the manner how he was treated during the interview. In the Statement of Claim he pleaded that he was deprived of any food or beverages during the course of the interview. However, in his witness statement, he stated he was “allowed to go down and get my own drinks”. [51] This Court is of the view that the discrepancies were material for this Court’s determination of the version of events that transpired on the day of the interview. The failure of counsel for the Plaintiff to offer an explanation to the Court on why such discrepancies occurred did not assist the case of the Plaintiff. The right of GE to terminate [52] It is important to discuss the termination rights of GE under the Agency Agreement. It is imperative to note that the relationship between GE and the Plaintiff is a contractual relationship. It is not an employer and employee relationship. Therefore, there is no requirement of any domestic inquiry or internal human resource processes to be complied by GE. GE’s rights to terminate the Agency Agreement are contractually provided under the terms of the Agency Agreement. 23 [53] The relevant provision in the Agency Agreement on termination are clauses 18 and 20. They read as follows: “18. Either party may at any time and without assigning any reason terminate the Agreement by giving not less than 15 days written notice of such intention to the other party. The exercise by the Company of its rights of termination under this Clause shall not disentitle the agent from receiving any commission (individual policies or group schemes (overriding and fringe benefit thereinafter referred to as “the said Benefits”) due to the Agent up to the date of termination and the agent so affected in the manner described herein before shall further be entitled to the renewal commission due on premium actually paid on policies therein after referred to as “the additional Benefits”). In the year following after the date of such termination PROVIDED ALWAYS that the said Benefits and / or the additional benefit as the case maybe, shall not be payable to the agent if the Agency Agreement has been terminated between the parties by the Agent under this Clause or by the Company for any of the following reasons namely fraud, deceit, breach of trust or gross-misconduct (thereinafter referred to as the said “wrongs”) by the Agent whether acting as a principles or as an abettor in the commission of the said wrongs or if this Agreement has been terminated by the company under any other provision in this Agreements.

The Company shall be entitled to automatically terminate this Agreement by giving 7 days notice in writing to the Agent, if the

20.1 Is in breach of any circular of directive issued by the Company pursuant to any Government directive, regulation, rule or statute; 24

20.2 Is in breach of any term or condition of this Agreement and/or the prevailing Agency Rules and Regulations;

20.3 By any act or omission including any breach of law brings this credit to reputation and integrity of the Company or is guilty of any conduct which in the opinion of the Company is prejudicial to the Company’s interest;

20.4 Is adjudicated a bankrupt or enters into or attempts to enter into a compositions or arrangement with his creditors;

20.5 Becomes totally and permanently disabled or in the opinion of the company from any cause becomes incapable of carrying out the terms of the agency;

20.6 Misappropriates any money or payment : in any form made in respect of premium or if he pays or offers to pay as an inducement or otherwise to any proposer for life assurance any rebate or any other form of payment if such rebate of payment is not specified in the policy or if the Agent attempts to do any of the above mentioned acts.” [54] As such, once GE is of the view that the Plaintiff committed an act that merits a termination of the Agreement, GE is entitled to do so subject to giving the requisite notice period to the agent. In the current case, GE had done so by virtue of the letter dated 8.1.2014. [55] In the current case, it was explained by DW2 that after carrying out the necessary investigations, GE found that the Plaintiff had 25 committed acts which constituted a breach of the Agency Agreement and Agency Rules and Regulations. The breaches [56] The following breaches were found to have been committed by the Plaintiff.

Tampering of e-Partner printout [57] The e-Partner is a website built by GE which is accessible by their agents to check amongst others policy information. It is mean to be used by agents to check the status and details of policies taken out by the client of the agents. [58] Counsel for GE cross examined the Plaintiff with regards to the function of the e-Partner statement. “Yes? Ok. Because, I mean, you don’t attend 30 hours of training, they can also terminate you, so this one is very serious. Alright. Now one, Mr Tee, one of the, I’ll just look at one of the allegations. This appears, Mr Tee, in, I would call it No.3, in both letters, it’s the third allegation. It refers to a document called an ‘e-Partner printout’. Can you explain, Mr Tee, what e-Partner is? TEE e-Partner is a Great Eastern website to let agent to log in to check the policy holder details, and some campaign, latest news. All through by this website. GD Say that again? 26 This Great Eastern, this e-Partner is a Great Eastern website to let agent to log in to check the policy holder details, and then can see the latest campaign or article, or news, upcoming, maybe like, campaign.” [59] In the Interview Statement, the Plaintiff admitted to amending the e-Partner printout using Microsoft Office. An excerpt of the Interview Statement at page 3B of B11 states as follows: “- For the e-partner print out which I had sent to Low Louise on 20/05/2013 was drafted by me by using Microsoft Office. - Actually I’ve seen one ex-agent did the document document and thus, I’ve use the same template to copy and paste and amend the information (details therein). - I admitted that I’ve drafted/prepared/amended the e-partner printout.” [60] The e-Partner printout in question was produced by the Plaintiff himself for the purpose of this current trial. It was attached as part of the exhibits used during the criminal trial of the Plaintiff. [61] The Plaintiff denied this was a printout done by him but he was unable to produce the “correct” copy of the printout he gave to Madam Wong and her daughters. [62] The Plaintiff had amended the e-Partner printout to include false information and breached clause 20.3 of the Agency Agreement and the Agency Rules and Regulations. It was pointed out by counsel for GE that even on this ground alone, GE could have terminated the Plaintiff’s agency. 27 [63] DW2 in her revised witness statement WSDW-2 explained the details of the breach. Reference was made to clause 20 of the Agency Agreement and the Agency Rules and Regulations in bundle “B4” at page 707 to 710 “List of undesirable agency conduct, practices, behaviour, action/omission to be avoided; agency rules & regulations” Misconduct Breaches Q&A 11(1) Tampering of e-Partner printout to provide false information to the policy holder: • His agency rank was stated as Group Sales Manager when he was Life Insurance Advisor (LIA) • Payment frequency was stated as one time when Policy 1011581276 is a regular premium policy • Basic sum assured was RM500,000 but was stated as premium amount • Risk commencement date was stated as 23/3/2013 when the policy was not inforced • Surrender date was stated as 23/2/2014 when the policy could not be surrendered as it is yet to be inforced. Clause 20.3 of Agency Agreement – by any act or omission including any breach of law brings discredit to the reputation and integrity of the Company or is guilty of any conduct which in the opinion of the Company is prejudicial to the Company’s interest Agency Rules & Regulations-Cheating, deception, falsification, forgery-Supply false information 28 [64] A copy of the e-Partner statement is reproduced below for ease of reference: 29

(ii) Cheating and providing misleading statements/ misrepresentation of facts [65] The Plaintiff was found to have provided false information to Madam Wong i.e. the premiums required to be paid for the seven

policies were one-off. In his Interview Statement, he stated the following at Bundle B11 at page 4B: - “In addition, I also informed PH that the plan is required for one time off payment and the plan would be expired on 23/02/2014. - I did not explain the plan’s benefit and features to PH. - PH is aware of the existence of the plan but she was made to understand that the said plan is a short term investment plan. (P/N: 1011581276). - I admitted that all statements recorded by PH is my voice and statements. - I also admitted to have informed PH that the seven policies (P/NL 1011962868, 1010811790, 1011017158, 1010580549, 1011017247, 1010811613 and 1010545123) are required for one time off payment. The reason being is I was threatened by PH. - I’ve informed PH that the Automatic Premium Loan (APL) is an option loan offered by the Company as I dare not informed Ph that the policies would lapse due to non-payment. - I’ve also admitted to inform PH that the plan are savings plan that come with Free insurance coverage. 30 - However, I wish to clarify that I did not inform PH and the lives assured that the seven policies only required for one off payment only during my point of sales.” [66] DW2 in her revised witness statement WSDW-2 identified that this conduct of the Plaintiff was a breach of clauses 20.1, 20.2 and 20.7 of the Agency Agreement and also the Agency Rules and Regulations found in B4. “List of undesirable agency conduct, practices, behaviour, action/omission to be avoided; agency rules & regulations.” Misconduct Breaches 11(2) Cheating and providing misleading statements/ misrepresentation of facts, amongst others: • The 7 insurance policies for policyholder’s daughters are policies with one-time off payment when these are regular payment policies range from 5 to 20 years • GE would offer “free” insurance coverage • Policy holder would obtain “full refund of premium” upon maturity • Interest rate offered by GE was 25%, better than bank Clause 20.1 of the Agency Agreement – is in breach of any circular or directive issued by the Company pursuant to any Government directive, regulation, rule or statute Clause 20.2 of the Agency Agreement – is in breach of any term or condition of this Agreement and/or prevailing Agency Rules and Regulations Clause 20.7 of the Agency Agreement – makes a representation to any person for the purpose of inducing a policyholder of the Company or any insurance company to 31 convert, lapse or surrender his policy or for any other purpose Agency Rules & Regulations (Page 143-146): -Acting outside authority-Cheating, deception, falsification, forgery-Supply false information-Misrepresentation

(iii) Overselling/Mis-selling [67] It was also in evidence that the Compliance Department also investigated the policies that were sold by the Plaintiff to the daughters of Madam Wong. This was one of the considerations taken into account by GE in assessing the Plaintiff’s conduct that he had “oversold” the policies. [68] This means that the Plaintiff had sold policies with premiums or commitments higher than the policyholders’ annual income. Based on their investigations, the policyholders will not be able to afford the commitments. [69] DW2 in her revised witness statement WSDW-2 identified that this conduct of the Plaintiff was a breach of clauses 20.1 and 20.2 of the Agency Agreement and also the Agency Rules and Regulations found in B4 “List of undesirable agency conduct, practices, behaviour, action/omission to be avoided; agency rules & regulations.” 32 Misconduct Breaches 11(3) Errant Sales Advice – Overselling / Mis-selling, failure to conduct suitability assessment and improper sales advice • Overselling of policies to Low Louise and Low Lucille (daughters of policyholder) in that the total premium per annum to be paid by Low Louise and Low Lucille including the 7 policies proposed by the Plaintiff was RM155k (97% of Low Louise’s earned income declared as property agent) and RM265k (165% of Low Lucille’s earned income as property agent) respectively. • Failure to conduct suitability assessment where the 7 policies recommended by the Plaintiff to Low Louise and Low Lucille required total commitments (for the premium duration from 5 years to 20 years) of RM1.975 million and RM3.475 million respectively. The total commitments were beyond Low Louise’s and Low Lucille’s means. • Errant sales advice as the financial assessment was not based on financial standing of Low Louise and Clause 20.1 of the Agency Agreement – is in breach of any circular or directive issued by the Company pursuant to any Government directive, regulation, rule or statute Clause 20.2 of the Agency Agreement – is in breach of any term or condition of this Agreement and/or prevailing Agency Rules and Regulations Agency Rules & Regulations (Page 143-146): -Failure to the fact find and needs analysis or recommended appropriate plans tailored to client’s needs and risk tolerance-Not acting in policyholder’s best interest-Overselling or too aggressive selling, customer could not afford it over the longer time horizon or may have other priorities / commitments, or making unrealistic assumptions as to income, economy etc 33

(iv) Soliciting and selling general insurance policies without license [70] It was determined that the Plaintiff did not hold a license to sell general insurance policies but he nevertheless solicited and sold general insurance policies to Madam Wong. In his Interview Statement at Bundle B11 at page 2B : - “I’m not OACM agent and I’m a sub-agent of Chew Leng Soon. (CLS) - CLS is not same agency group with me but I know him and I would pass on all general insurance cases to him. CLS would pay me 8% of commission and he would bank-in to me on month basis. - Actually, this practice (sub-agency) is quite common in our agency group.” [71] DW2 in her revised witness statement WSDW-2 identified that this conduct of the Plaintiff was a breach of clauses 20.1 and 20.2 of the Agency Agreement and also the Agency Rules & Regulations found in B4 “List of undesirable agency conduct, practices, behaviour, action/omission to be avoided; agency rules & regulations.” Misconduct Breaches 11(4); Soliciting and selling of general insurance policies without licence Clause 20.1 of the Agency Agreement – is in breach of any circular or directive issued by the Company pursuant to any Government directive, regulation, rule or statute 34 Clause 20.2 of the Agency Agreement – is in breach of any term or condition of this Agreement and/or prevailing Agency Rules and Regulations Agency Rules & Regulations (Page 143-146): -Sell without license – soliciting business in prohibited neighbouring jurisdictions/ countries or selling certain products not yet licensed to sell – ILP without CEILI passes [72] During cross examination of the Plaintiff on this issue by counsel for GE, the following questions and answers were recorded: “AT Ok. I’m not going to take you through everything because it’s there, we can all read, but Mr Tee, there’s just a few things. Do you see at page 734, five lines from the bottom, the statement says, ‘I’m not OACM agent. Do you see that? Yes, I see that. I am not OACM agent and I am sub-agent of Chew Leng Soon, CLS. CSL is not same agency group with me but I know him and I would pass’, and then you initialled, apparently there was a correction, ‘all general insurance cases to him. CLS would pay 35 me 8% of commission and he would bank in to me on monthly basis. Actually this practice, sub-agency is quite common in our agency group’. Mr Tee, I’m putting it to you that this information could have only come from you. Nobody could have invented it. Do you agree? Yes.” [73] Counsel also asked PW-2, Lee Yoke Kuew, former immediate officer of the Plaintiff whether it was permitted for a life insurance agent to sell general insurance policies. The witness agreed that it was wrong to do so. The cross examination can be seen as follows: “AT Ok. Saya bukan tak tanya mengenai Ms Lee ya. Saya bertanya mengenai pengalaman Ms Lee dan pengetahuan Ms Lee. Adakah Ms Lee tahu jika seorang life insurance agent menjual general insurance tanpa mendapat licence, itu adalah kesalahan yang besar. Ms Lee setuju? LEE Setuju.”

(iv) Policy acknowledgment slips [74] It is also a requirement that an insurance agent has a duty to ensure the policy acknowledgment slips of the policyholders are delivered to GE for record. [75] However, despite the experience of the Plaintiff, he failed to do so. The Plaintiff’s explanation can be seen at Bundle B11 page 2B. 36 “I confirm that the Policy Acknowledgment Slips were signed by lives assured. I was not aware that the Slips were not submitted to the Company as I’ve submitted to my agency office.” [76] DW2 in her witness statement pointed out the breach as follows: Misconduct Breaches 11(5); Failure to obtain policyholders’ signatures in the Policy Acknowledgment Slips Agency Rules & Regulations (Page 143-146): Poor after-sales service e.g. non-delivery of policy or bad services when policyholders require GE was satisfied with the outcome of their investigation [77] The Court was informed that GE was convinced that the Plaintiff had committed acts which violated the Agency Agreement. DW2 went on to inform the Court GE was satisfied with the outcome of their investigations on the Plaintiff. Based on the internal investigations on the Plaintiff’s agency history, evidence obtained in the course of the investigation coupled with the Plaintiff’s Interview Statement and admissions, they were strong basis to confirm Madam Wong’s complaint. [78] It is the view of this Court that GE has the final say when determining there was a breach of the terms of the Agency Agreement. In this case, this Court cannot go beyond what was carried out by GE and their satisfaction on the results of their investigations. 37 [79] To the mind of this Court, GE was convinced that the Plaintiff had breached the Agency Agreement clauses. As such, they were entitled to terminate the Agency Agreement between them and the Plaintiff. [80] This Court does not find any reason to disagree with the Plaintiff invoking clauses 20.1, 20.2 and 20.3 of the Agency Agreement. Once there is satisfaction on the part of GE that the Plaintiff had breached the relevant provisions in the Agency Agreement, they were fully entitled to exercise their rights under the said clauses. The acquittal – any relevance to the termination? [81] The Plaintiff argued that as a result of the acquittal by the Court of Appeal, he no longer had any criminal conviction to his name. He was therefore, entitled to be reinstated as an agent with GE and would be entitled to all the commissions as provided under the Agency Agreement. [82] From the facts, it was before this Court that the Plaintiff wrote to the Chief Executive Officer of GE requesting to be reinstated as an agent of GE and be paid the commission that he felt was due to him. His request was formally rejected by GE vide a letter dated 20.5.2016. [83] This Court finds the argument to be misplaced. It apposite to recall that the termination of the Agency Agreement was made based on 38 the finding by GE that the Plaintiff had breached the Agency Agreement. [84] The finding of a breach of the Agreement is the all important consideration for GE. In other words, GE no longer found him to be suitable to act as their agent. As such, it does not lie in the mouth of the Plaintiff that he must be reinstated as an agent. [85] It must be reminded that a person becomes an agent of GE upon the parties entering into an agency agreement. If to the assessment of GE that the Plaintiff is no longer fit and proper to act as its agent, GE cannot be compelled to re-enter into an agreement with the Plaintiff. As such, GE was at all times entitled to refuse any form of contractual relationship in the form of the Agency Agreement. [86] It is important to note that the termination of the Plaintiff as agent was made on 8.1.2014 while he was only convicted by the Kuala Lumpur Sessions Court on 20.2.2014. GE was obviously not concerned of the status of the Plaintiff whether he was convicted or otherwise. The very fact he was subjected to police investigations was serious enough. Such a position taken by GE was not in any manner wrong. Entitlement to commission [87] It is the finding of this Court that the Plaintiff was not entitled to any benefits arising of the Agency Agreement as his termination was 39 based on proviso in clause 18 which expressly states that no commission is entitled to be paid if the termination is based on a finding of “wrongs” by GE. The said proviso reads as follows: “…PROVIDED ALWAYS that the said Benefits and / or the additional benefit as the case maybe, shall not be payable to the agent if the Agency Agreement has been terminated between the parties by the Agent under this Clause or by the Company for any of the following reasons namely fraud, deceit, breach of trust or gross-misconduct (thereinafter referred to as the said “wrongs”) by the Agent whether acting as a principles or as an abettor in the commission of the said wrongs or if this Agreement has been terminated by the company under any other provision in this Agreements.” [88] Based on the express wordings of clause 18, it is patently clear that the Plaintiff was not entitled to any payment of commissions. The “wrongs” as defined in clause 18 reads as “fraud, deceit, breach of trust or gross misconduct”. Other issues raised by the Plaintiff [89] It was also an issue raised by the Plaintiff during trial that GE was wrong to suspend the Plaintiff as an agent even before completing the investigation. This Court does not find the issue as something pivotal. GE was entitled to take steps to preserve its position in light of the serious allegations made against the Plaintiff. Furthermore, there was a police report that was lodged together with the complaint. It was not an unreasonable action to take. 40 [90] The insurance industry is heavily regulated by the insurance industry regulator, Bank Negara. GE cannot afford to take the issue lightly especially when agents are persons who interface with members of the public and are in a position of trust. They not only handle private information but also are entrusted with money. It is only right that stern action is taken whenever any such allegations arise. [91] Be that as it may, the issue of wrongful suspension was not specifically pleaded by the Plaintiff in his Statement of Claim. The Plaintiff is therefore not entitled to raise the issue during trial. [92] The Plaintiff has in fact faulted GE for not calling witnesses such as Madam Wong or her daughters. The Plaintiff also faulted GE for not producing the investigation report produced by the Compliance Department. [93] It is the view of the Court that such complaints merit no consideration by this Court. It is clear that the burden of proof lies with the Plaintiff to prove to this Court that the termination is unlawful. However, the Plaintiff has failed to prove its case on the required standard of a balance of probabilities. It is trite that GE has no duty to supplement the case of the Plaintiff. GE on the other hand, was able to rebut the contention of the Plaintiff. 41 Credibility of the witnesses [94] During the course of the trial, this Court had the opportunity to observe the demeanor of all the witnesses. This included the two GE witnesses. DW1 was assigned to investigate the complaint by Madam Wong sometime in June 2013.However, she left GE in September 2013, before the final determination against the Plaintiff was made. As she was no longer an employee of GE, she had to be subpoenad by GE. During the course of the trial, she repeatedly said that she could not remember specific events or actions as it had been seven (7) years since she left GE and the file against the Plaintiff. [95] As mentioned earlier, DW1 was a very careful and cautious witness. This led her to answer “I cannot remember” on questions that she was unsure of. However, she was not a timorous person. This was seen from her answers during cross examination by counsel for the Plaintiff. She was not a person who would not easily agree to answers where she was certain. This Court was particularly impressed with her firm answer when she was pressured by counsel in responding to how to treat answers recorded during an interview. There is no reason for this Court to doubt the truthfulness of DW1. [96] DW2 was a long serving employee of GE. She rose through the ranks in GE and at the time of her testing in Court, she was the Head of the Compliance Department. She was assertive and knew the area of her work well. The cross examination did not manage 42 to shake her. She was able to explain the breaches committed by the Plaintiff. She explained that the dismissal of the Plaintiff was based on an overall assessment of their investigations. This included instigative results such as interviews with Madam Wong, additional materials received from her daughters, random calls to policy holders and a check on the policies sold by the Plaintiff to other customers. She was able to stand up to all the questions with regards to the basis of termination which was crucial to GE and its case. [97] This Court does not find any reason for the two witnesses to concoct or fabricate any outcome of the investigation against the Plaintiff. This Court too, does not find any reason to disbelief the two witnesses when they were on the stand. To the mind of this Court, they were credible witnesses. [98] On the other hand, it is this Court’s finding that the evidence given by the Plaintiff with regards to the version of events that transpired during the interview were tainted by inconsistencies and self-serving statements. The Plaintiff had an axe to grind against GE. He was trying his best to portray the GE employees who handled his case as persons who were out to ensure that he was guilty of the allegations made against him. Answers to the issues to be tried [99] In the final analysis, this Court finds the issues to be tried ought to be answered in the following manner: 43

Whether the Plaintiff has breached the terms of the Agency Agreement or the Code of Ethics and Conduct in dealing with Madam Wong which may result in the termination of the Plaintiff’s Tenancy Agreement?

(ii) If the answer to issue (i) is yes, whether GE’s decision to suspend the Plaintiff and the payment of the commissions, overriding commissions and benefits due to the Plaintiff from June 2013 were made on unproven allegations of Madam Wong and without giving full credence to the Plaintiff’s version of events; Answer: No.

(iii) Whether GE has the responsibility to conduct the inquiry/interview with adherence to the principles of natural justice, openness and fairness. If the answer is yes, whether the inquiry/interview has been conducted in such a way; Answer: No, but the interview did not breach any legal or procedural provisions.

(iv) Whether the termination of the Agency Agreement by GE for the reasons stated in the notice dated 8.1.2014 is lawful; and Answer: Yes, the termination was lawful.

If the Court finds that the termination is unlawful, whether the Plaintiff is entitled for the reliefs sought. No answer required. 44 Conclusion [100] It is the finding of this Court that the Plaintiff has failed to establish a case on a balance of probabilities against GE. It follows none of the remedies prayed for by the Plaintiff is allowed. [101] In the foregoing, the claim by the Plaintiff is dismissed with costs of RM35,000.00. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judge High Court of Malaya Kuala Lumpur Dated: 9th July 2021 45 Counsels Godfrey Philip D'Cruz together with Mak Jun Yeen for Plaintiff Messrs Godfrey D’Cruz & Co (Petaling Jaya, Selangor) Andrew Teh, Tan Chong Pei for the Defendant