Worldwide Platinum Records Sdn. Bhd. v TAN SEW CHENG (BA-22NCvC-38-01/2022)

This is a trial of a suit for the Plaintiff’s claim for Euro 1 million based on the Defendant’s breach of undertakings.

This case was transferred from Penang High Court to Shah Alam High Court vide the Court’s Order dated 10-1-2022. 27/04/2023 18:37:29 BA-22NCvC-38-01/2022 Kand. 177

This suit proceeded to trial on 1-2-2023. In the list of Plaintiff’s witnesses, the Plaintiff is calling its sole witness, Chua Yu Sheng. In the list of Defendant’s witnesses, there are 4 witnesses (the Defendant herself, the Chairman of Noble Mettle LCC, the lawyer and the Bank Executive Officer) to give evidence.

The Defendant elected not to call any witness and submitted no case to answer. The trial was completed on the same day.

Parties concurrently filed their written closing submissions followed by their written submissions in reply.

The summary of the Plaintiff’s case is reproduced as follows: • Pada segala masa yang material, Defendan telah menampilkan dirinya sebagai wakil dan/atau agen di Malaysia dengan satu syarikat korporat dari AmerikaSyarikat yang dikenali sebagai Noble Mettle Group melalui Noble Mettle, LLCdan/atau afiliasi dan/atau rakan kongsi yang berkaitan (selepas daripada ini dipanggil “Noble Mettle”) melalui suatu Perlantikan Perwakilan Noble Mettle [“Noble Mettle Representative Appointment”] bertarikh 15.11.2016. • Defendan merepresentasikan bahawa suatu pinjaman berupa Euro/€ 102 juta bolehdiluluskan kepada Plaintif dengan syarat jumlah Euro/€ 1 juta perlu dibayar kepadaNoble Mettle dan/atau Defendan terlebih dahulu sebagai bayaran fi Pentadbiran dan due diligence. Pembayaran Euro/€ 1 juta tersebut yang dapat dikembalikan sekiranya pinjaman tidak diluluskan dan/atau dilepaskan kepada Plaintif. • Pada 30-12-2016 jumlah sebanyak Euro/€ 100,000.00 melalui pemindahan wiretransfer telah dibuat kepada Noble Mettle dan jumlah Euro/€ 900,000.00 dibuat dan/atau dibayar kepada Defendan sebagai wakil korporat dan/atau agen dan/atau orang yang berhubung dengan Noble Mettle menurut Tawaran Pinjaman yang ditandatangani. • Defendan menerima dan/atau mengambil jumlah sebanyak Euro/€ 900,000.00 dari Plaintif dengan memberi kepada Plaintif suatu Acknowledgment of Receipt andUndertaking bertarikh 30-12-2016. • Selepas itu pembayaran Euro/€ 1 juta sebagai fi pentabiran dan due diligence, Plaintif tidak menerima apa-apa pinjaman dari Noble Mettle seperti yang dijanjikan dan direprentasikan oleh Defendan sebagai wakil dan/atau agen Noble Mettle kepada Plaintif. • Beberapa Notis Tuntutan telah dikeluarkan oleh Plaintif kepada Defendan. • Pada masa yang material pada 23-10-2017 Defendan telah memberi satu surat akujanji dan indemniti kepada Plaintif di mana Defendan mengakujanji akan-membayar balik kesemua wang Plaintif yang berjumlah Euro/€ 1 juta. • Malahan Defendan memohon maaf atas kesilapannya dan/atau kesalahannya dan berjanji untuk mengembalikan wang Plaintif kepada Plaintif. • Defendan juga menyatakan dengan jelas bahawa beliau tidak akan membela diri dalam apa-apa tindakan sekiranya ada terhadap beliau oleh pihak Plaintif. • Defendan sebenarnya juga bersetuju untuk suatu Penghakiman Persetujuan menurut surat akujanji dan indemniti bertarikh 23-10-2017 tersebut. • Pada kesemua masa yang material semasa penerimaan dan pembayaran wang sebanyak Euro/€ 1 juta dari Plaintif, tiada isu-isu illegality dan apa-apa isu berkenaan percanggahan undang-undang dibangkitkan oleh Defendan.

The summary of the Defendant’s case is reproduced as follows: • Defendan adalah wakil Noble Mettle, LCC. • Transaksi di antara Plaintif dan Noble Mettle, LCC adalah salah di sisi undang-undang (illegal), melanggar undang-undang di bawah Exchange Control Act 1953 dan Garispanduan MITI (Kementerian Perdagangan dan Industri Antarabangsa) dan juga melanggar Garispanduan Bank negara Malaysia. • Kesalahan di sisi undang-undang (illegal) ini tidak boleh membangkitkan apa-apa kausa tuntutan oleh Plaintif terhadap Defendan. • Plaintif juga tidak memaklumkan sumber wang diberikan kepada Defendan kerana kesemua wang adalah dalam bentuk tunai matawang Singapura. Tindakan Plaintif ini bertentangan dengan Akta Pencegahan Pengubahan Wang Haram, Pembiayaan Anti-Keganasan dan Hasil Kegiatan Tidak Sah 2001 (AMLA). • Defendan telah menunaikan kewajipannya menurut surat akujanji bertarikh 30-12-2016. • Setelah perjanjian bertarikh 11-12-2016 ditandatangani antara Noble Mettle, LCC dan Plaintif, Plaintif dikehendaki membayar Euro/€ 1 juta untuk pentadbiran dan perkhidmatan usaha wajar (due diligence) kepada Noble Mettle, LCC. Wang Euro/€ 100,000 yang pertama telah dibayar dan dihantar terus oleh Plaintif kepada pihak Noble Mettle,LCC pada 30-12-2016 melalui Maybank. • Plaintif meminta Defendan menghantar baki bayaran kepada Noble Mettle, LLC tetapi Defendan enggan dan menyatakan Plaintif telahpun menghantar Euro/€ 100,000 terus kepada Noble Mettle, LLC. Namun begitu, atas desakan Plaintif, Defendan sanggup berbuat demikian bagi Plaintif. Plaintif melalui pengarahnya, Dato’ Low Eng Hock telah memberikan Defendan Euro/€ 900,000 dalam matawang dollar Singapura berjumlah SGD/$ 1,362,850.00 di pejabat Plaintif. Plaintif telah membuat bayaran tersebut melalui Defendan tanpa mendapatkan kelulusan Bank Negara Malaysia. • Defendan telah menyerahkan keseluruhan jumlah Euro/€ 900,000 tersebut kepada Noble Mettle, LCC dan mereka telah memberi resit pengakuan penerimaan pada 9-10-2017 dan 17-10-2017. • Sejumlah Euro/€ 1 juta telahpun diterima oleh Noble Mettle, LLC melalui akaun “Thomas Nelson, Esq. A Professional Corporation Trust Account” dan oleh Noble Mettle, LLC yang disahkan oleh pengarahnya, David Kay melalui surat bertarikh 9-10-2017. • Defendan telah melaksanakan obligasinya sepenuhnya dan telah membuktikan kepada Plaintif dengan resit pengakuan penerimaan wang berjumlah Euro/€ 900,000 oleh Noble Mettle, LCC. • Kausa tindakan Plaintif adalah terhadap Noble Mettle dan bukannya terhadap Defendan. • Plaintif juga tidak mendedahkan punca jumlah matawang dalam Dolar Singapura berjumlah SGD/$ 1,362,850.00 dalam bentuk tunai. Plaintif gagal mendapatkan kelulusan Bank Negara selaras dengan Akta Perkhidmatan Kewangan 2013. • Resit atau surat rasmi oleh Noble Mettle, LCC mengakui penerimaan Euro/€ 1 juta diterima selepas 9-10-2017. Justeru itu, remedi Plaintif, jika ada, adalah terhadap Noble Mettle, LLC. • Plaintif gagal mematuhi ketekunan sewajarnya (due diligence) yang mengakibatkan pinjaman tidak dikeluarkan. • Setelah guaman Plaintif difailkan di sini, Plaintif bertindak terhadap Defendan apabila Plaintif mengugut Defendan dengan menyebabkan Defendan ditahan di dalam lokap di Barat Daya, Georgetown, Pulau Pinang dan dipaksa menandatangani suatu dokumen ketika dalam lokap. Defendan juga diugut di dalam lokap oleh seorang bernama Siva bahawa sekiranya Defendan tidak menandatangani dokumen tersebut, Defendan akan terus berada dalam lokap selama 14 hari.

The parties filed Issues to be tried separately as follows: Plaintiff Defendant

Sama ada Defendan terikat dengan surat akujanji dan indemniti bertarikh 23-10-2017 yang diberikan oleh Defendan kepada Plaintif? Sama ada Defendan diminta menghantar wang sebanyak Euro/€ 900,000 kepada Nobel Mettle, LCC dan juga atas permintaan Plaintif, Defendan menandatangani surat akujanji bertarikh 30- 12-2016?

Sama ada Defendan sebagai wakil dan/atau agen kepada Noble Mettle Group bertanggungjawab memulangkan wang Plaintif kerana Defendan adalah seorang agen Noble Mettle Group di Malaysia dan/atau berdasarkan kepada surat akujanji dan indemniti bertarikh 23-10-2017 yang diberikan oleh Defendan kepada Plaintif? Sama ada Defendan telah menyerahkan keseluruhan wang Euro/€ 900,000 kepada Nobel Mettle, LCC dan sama ada Defendan telah menunaikan kewajipannya menurut surat akujanji bertarikh 30-12- 2016?

Sama ada akujanji dan indemniti bertarikh 23-10-2017 yang diberikan kepada Plaintif oleh Defendan dibuat di bawah undue influence dan/atau duress? Sama ada Plaintif mempunyai kausa tindakan terhadap Defendan sedangkan bayaran Plaintif telah diterima oleh Noble Mettle, LCC dan pihak yang harus didakwa adalah Noble Mettle, LCC?

Sama ada Defendan boleh membangkitkan isu illegality yang bercanggahan dengan undang-undang/Akta-Akta yang sedia ada memandangkan Defendan yang memberi representasi dan/atau galakan kepada Plaintif untuk memohon pinjaman dari Noble Mettle dari Amerika Syarikat? Sama ada Plaintif telah atau harus mengambil atau mengendalikan ketekunan sewajarnya (due diligence) sebelum memasuki perjanjian pinjaman tersebut dengan Noble Mettle, LCC?

Sama ada semua isu-isu berkenaan illegality, undue influence dan duress merupakan pembelaan “afterthought”? Sama ada transaksi antara Plaintif dan Noble Mettle adalah salah di sisi undang-undang (illegal).

− Sama ada transaksi antara Plaintif dan Noble Mettle melanggar undang-undang di bawah Exchange Control Act 1953, Garis Panduan MITI? Plaintiff Defendant 7. − Sama ada transaksi antara Plaintif dan Noble Mettle melanggari garis panduan Bank Negara Malaysia?

− Sama ada Defendan terpaksa menandatangani suatu dokumen Undertaking and Indemnity dalam keadaan mendesak yang tidak wajar (undue influence), paksaan (duress) dan ketakutan (fear) semasa Defendan berada di dalam lokap polis di Pulau Pinang?

− Sama ada tindakan Plaintif untuk menghulurkan matawang Singapura dalam quantiti yang besar kepada Defendan untuk diberikan kepada Noble Mettle bertentangan dengan Akta Pencegahan Pengubahan Wang Haram, Pembiayaan Anti-Keganasan dan Hasil Plaintiff Defendant Kegiatan Tidak Sah 2001 (AMLA)? The decision [9] On 27-2-2023, my decision via eReview – KEPUTUSAN BICARA PENUH [1] Plaintif (Plf) memplidkan bahawa Defendan telah menipu wang Plaintif melalui suatu skim penipuan, kes perlanggaran kepercayaan jenayah (CBT), kemungkiran akujanji dan/atau representasi. Reliefs yang dipohon oleh Plaintif ialah sebagaimana pada perenggan 22 (a) hingga (n) pernyataan tuntutan. [2] Pada 1-2-2023, dalam perbicaraan penuh di hadapan Mahkamah ini, Plaintif telah memanggil seorang saksi iaitu En Chua Yu Sheng (Saksi Plaintif/SP), Project Advisor to the CEO of Ivory Properties Group Berhad. Penyata Saksi SP difailkan dan SP disoal balas dan diperiksa balas. [3] Defendan mempunyai 4 orang saksi. [4] Selepas Plaintif menutup kesnya, peguam Defendan berhujah “no case to answer”. Analisa Keterangan Lisan dan Dokumentar selepas Bicara Penuh & dapatan Mahkamah [5] Dalam perbicaraan, Mahkamah ini telah mendengar keterangan saksi Plaintif. [6] Keseluruhan keterangan SP gagal membuktikan tuntutan Plaintif terhadap Defendan. [7] Berkenaan dengan pilihan Defendan “no case to answer”, nas undang-undang yang dipetik oleh pihak-pihak adalah dirujuk. [8] Atas imbangan kebarangkalian, Plaintif gagal untuk membuktikan perkara utama mengenai tuntutannya terhadap Defendan. [9] Oleh yang demikian Mahkamah ini memutuskan untuk menolak tuntutan Plaintif dengan kos sebanyak RM10,000.00 (tertakluk kepada fi alokatur). [10] The Plaintiff appeals. The Legal Principles [11] First, the law. When the Plaintiff closed its case after callian one sole witness, the Defendant then submitted to this Court, ‘no case to answer’. The Law On ‘No Case To Answer’: [12] There are three leading Federal Court cases on the principles applicable to a submission by a defendant on ‘no case to answer’ after a plaintiff had closed its case. [13] The cases in chronological order are –

Jaafar Shaari & Anor v. Tan Lip Eng & Anor [1997] 4 CLJ 509 SC.

(ii) Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037; [2015] 3 MLJ 609 FC.

(iii) Yui Chin Song & Ors v. Lee Ming Chai & Ors [2019] 7 CLJ 740; [2019] 6 MLJ 417 FC. [14] In Jaafar Shaari & Anor v. Tan Lip Eng & Anor (supra) Gopal Sri Ram JCA said at p. 528 d: “… counsel would have been entitled to inform the court that he was not calling any evidence. Once he had done this, it was incumbent for the learned Sessions judge to have put counsel to his election, namely, that if he did not call evidence, he would stand or fall on his submissions. The rule of procedure, which requires these steps to be followed, is not a mere formality but one of essential justice. For, once a defendant in civil proceedings elects not to call evidence, then all the evidence led by the plaintiff must be assumed to be true. In this context it is sufficient to refer to the following passage in the judgment of Elphinstone CJ Wasakah Singh v. Bachan Singh [1931] 1 MC 125, 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true.”. In the same case, Peh Swee Chin FCJ also said at p. 519 e: “The defendants had however chosen to close the case at the end of the plaintiff’s case, they were entitled to do so though they would be in peril of not having the evidence of their most important witness and of having any adverse inference drawn against them for failing to call any such evidence should the circumstances appropriately call for such an adverse inference or for the presumption of avoiding unfavourable evidence by the defence to be invoked against the defendants.”. [15] In Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim (supra) Ramly Ali FCJ held: “Whether the Plaintiff Has Met the Burden Of Proof Where The Defendant Elected Not To Call Any Witnesses [56] Learned counsel for the plaintiff argued that the Court of Appeal ought not to disturb findings of fact by the High Court. … It was further submitted that the evidence led by the plaintiff must be assumed to be true when the defendant elected not to call any witnesses. On these submissions we have two observations to make. The first is that the principle on which an appellate court could interfere with findings of fact by the trial court is the plainly wrong test (See Gan Yook Chin (P) & Anor v. Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 and UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785). And the second is that the burden of proof at all times is of course borne by the plaintiff to establish on the balance of probability the existence of a legally enforceable settlement agreement (See Ranbaxy (Malaysia) Sdn Bhd v. EI Du Pont De Nemours And Co [2011] MLJU 1135; [2011] 1 AMCR 857). In other words, it was upon the plaintiff itself, and certainly not the defendant, to discharge the burden of showing the settlement agreement had come into existence. It is for the plaintiff to prove its case and satisfy the court that its claim is well-founded before the court grants judgment on the claim (See The Fordeco Nos 12 And 17; The Owners Of And All Other Persons Interested In The Ships Fordeco No 12 And Fordeco No 17 v. Shanghai Hai Xing Shipping Co Ltd, The Owners Of The Ship Mv Xin Hua 10 [2000] 1 MLJ 449; Maju Holdings Sdn Bhd v. Fortune Wealth (H-K) Ltd And Other Appeals [2004] 4 MLJ 105 and Teh Swee Lip v. Jademall Holdings Sdn Bhd [2013] 6 MLJ 32). It is true that in the present case the defendant elected not to call any witnesses. However, it is imperative to bear in mind that from the outset the legal burden of the existence of the settlement agreement was with the plaintiff as the claimant in the present action. By reasons of the legal principles, the fact that the defendant led no evidence or call no witnesses did not absolve the plaintiff from discharging its burden in law. In this regard, in adopting the approach of the case of Storey v. Storey [1961] P 63, Suriyadi JCA (as His Lordship then was) in Mohd Nor Afandi bin Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor [2008] 3 MLJ 81; [2008] 2 CLJ 369 recognised this to be the case as can be seen from the following passage of His Lordship’s judgment: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff's evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged. [57] We therefore agree with the submission of learned counsel for the defendant to the effect that despite the fact the defendant did not call any witness and that even if the plaintiff’s evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This crucial point was overlooked by the learned High Court judge. On the factual matrix of the case, it is patently clear that the plaintiff has not discharged the burden. On this basis, the Court of Appeal was in every respect justified in holding that the learned High Court judge was plainly wrong in making a ruling of law that the settlement agreement had come into existence based on the conduct of both parties. Indeed, the election by the defendant to call no evidence at trial does not preclude the reversal of a plainly wrong findings of the learned High Court judge by the Court of Appeal.”. [16] In Yui Chin Song & Ors v. Lee Ming Chai & Ors (supra) [Ramly Ali FCJ reiterated the principles set out by him in Syarikat Kemajuan Timbermine and summarised the law on ‘no case to answer’ as follows: “Question 3 ‘No case to answer’ [46] The basic principles on the issue as adopted in those authorities cited above may be summarised as follows:

where the defence submits no case to answer, the trial judge must put to the defence the election available as to whether he wishes to call evidence for the defence or not; the judge should generally refuse to make such a ruling on such submission of no case to answer unless the defence makes it clear that he does not intend to call evidence;

if the judge does not put the defendant to election whether to call evidence or not, then in such a situation the defence retains his right to call evidence if his submission fails; and

if the defendant or his counsel has so elected, he is bound by it and loses his right to call evidence in the defence case and accordingly must stand or fall on their submission. [47] The following statement by Lord Greene MR, sitting at the Court of Appeal, in the case of Yuill v. Yuill provides a clear picture on the issue: It does not mean that counsel by submitting no case ipso facto loses his right to call evidence if his submission fails. He only loses that right if he definitely elects to call no evidence. He may make this election expressly or (as in Laurie v. Raglan Building Co Ltd) impliedly. The practice which has been laid down amount to no more than a direction to the judge to put counsel who desires to make a submission of no case to his election and to refuse to rule unless counsel elects to call no evidence. Where counsel has so elected he is, of course, bound: but if for any reason, be it through oversight or (as here) through a misapprehension as to the nature of counsel’s argument, the judge does not put counsel to his election and no election in fact takes place, counsel is entitled to call his evidence just as much as if he had never made the submission. [48] This court in Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim [2015] 3 MLJ 609 has laid down the principle on this issue in the following words: The respondent’s election to call no evidence at the trial did not preclude the reversal of plainly wrong findings of the High Court by the Court of Appeal. Though no witnesses were called by the respondent and even if the appellant’s evidence was unopposed and therefore presumed to be true, that did not automatically mean the evidence had satisfied the burden of proving the existence of the settlement agreement borne by the appellant, or mean the burden of proving on balance of probabilities no longer applied or that a case to answer was automatically made out. The evidence adduced by the appellant had to be sufficient to prove the existence of the settlement agreement. The appellant failed to discharge that burden. [49] The above ruling was consistent with the well-established principle that the burden of proof at all times is borne by the plaintiff on the balance of probabilities to establish his case against the defendant or the existence of a legally enforceable claim against the defendant. It is upon the plaintiff, and certainly not the defendant, to discharge that burden. It is for the plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. The fact that the defendant has led no evidence or called no witnesses does not absolve the plaintiff from discharging his burden in law. [50] In this regard, Suriyadi, JCA (as His Lordship then was) in Mohd Nor Afandi bin Mohamed Junus v. Rahman Shah Alang Ibrahim & Anor [2008] 3 MLJ 81, recognised the above ruling in the following passage: There are, however, two sets of circumstances under which a defendant may submit that he has no case to answer. In the one case there may be a submission that, accepting the plaintiff’s evidence at its face value, no case has been established in law, and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof has not been discharged.”. [17] Another relevant case is the Court of Appeal decision in Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd [2010] 1 CLJ 484; [2011] 4 MLJ 805 where Abdul Malik Ishak JCA said − [41] … I am of the opinion that the following guidelines may be taken as well settled. At the close of the plaintiff’s case, the first defendant chose to submit that there was no case to answer and preferred not to call witnesses. It was a perilous course to take simply because all the evidence adduced by the plaintiff must be presumed to be correct. It is a sound general rule that a judge should not consider a submission of no case to answer unless the defendant (here the first defendant) agrees not to call any evidence, whatever the outcome of the submission. Thus, where a defendant is put to his election and elects not to call evidence, just like the present appeal, the result is this. That the trial is in effect truncated and the question for the judge to consider is whether the plaintiff has established his case by the evidence called on the balance of probabilities. If the plaintiff has done so, then the judgment should be given to the plaintiff. If the plaintiff has not done so, then the judgment should be given to the defendant. If the judge chooses the latter course of action and give judgment to the defendant, the judge may indeed be of the view that there is no case for the defendant to answer. But such a judgment should not be given unless the judge finds that the plaintiff has not established his case by the evidence adduced on the balance of probabilities.”. [18] From the above cases, the principles applicable when a defendant submits ‘no case to answer’ can be distilled as follows:

At the close of the plaintiff’s case, a defendant can opt not to call any witness for the defence but instead make a submission of ‘no case to answer’.

(ii) Where the defence submits ‘no case to answer’, the trial judge must put the defence counsel to his election, namely, that if he elects not call evidence, he will stand or fall on his submissions.

(iii) The judge should refuse to make a ruling on a submission of ‘no case to answer’ unless the defence makes it clear that he does not intend to call any witness for the defence.

(iv) For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. (See Jaafar Shaari’s case).

Adverse inference can be drawn against the defendant for failing to call any witnesses should the circumstances appropriately call for such an adverse inference. (See Jaafar Shaari’s case).

(vi) However, even if the plaintiff’s evidence is presumed to be true and adverse inference is drawn, the burden of proof at all times is borne by the plaintiff on the balance of probabilities to establish his case against the defendant. It is for the plaintiff to prove his case and satisfy the court that his claim is well-founded before the court can grant judgment on his claim. The fact that the defendant has led no evidence or called no witnesses does not absolve the plaintiff from discharging his burden in law. (See Jaafar Shaari, Peh Swee Chin FCJ at p. 519; Syarikat Kemajuan Timbermine Sdn Bhd v. Kerajaan Negeri Kelantan Darul Naim; Yui Chin Song & Ors v. Lee Ming Chai & Ors and Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd). The Defendant’s submissions [19] The learned counsel for the Defendant brings this Court to this case i.e Tan Sew Cheng v Worldwide Platinum Records Sdn. Bhd. [2020] 1 LNS 147, which went up on appeal from a summary judgment decision granted by the learned Penang High Court Judge, before this suit was transferred to this Court from the Penang High Court. [20] This Court has read the decision by the Court of Appeal where the Court of Appeal allowed the appeal by the Defendant (in this case) as follows: [2] After hearing both sides, we unanimously dismissed the appeal on the dismissal of the striking out application; and allowed the appeal in respect of the entry of summary judgment. Factual background [3] The respondent’s claim arises from an agreement that it made with a company known as Noble Mettle LLC, an American company which was part of the Noble Mettle Trust Group, for a loan of €102 million. The respondent claimed that the appellant, as the representative and/or agent of Noble Mettle in Malaysia, had represented to the respondent that this loan of €102 million would be approved on the condition that the respondent paid a refundable administrative and due diligence fee of €2 million, where €100,000 was to be paid by wire transfer on 30.12.2016, €900,000 to be paid bycash deposit on 30.12.2016, and the balance of €1 million to be deducted from the first drawdown initial €1 million. [4] The respondent claimed that the appellant further represented that if the €102 million loan was not released to the respondent according to what is known as a ‘Funding Schedule’, the refundable administrative and due diligence fee would be fully refunded together with a sum of €1 million. The appellant followed this up with a written undertaking dated 30.12.2016 where she undertook to pay any damages, bear any loss including the €900,000 in the event Noble Mettle ‘fail, omit and/or negligent’ in disbursing the loan of €102 million, and fully refund any payments made. [5] Despite having paid a sum of SGD1,362,850.00 which is equivalent to €900,000, the respondent claimed it never received theloan of €102 million. The respondent’s solicitors issued the appellant a notice of demand invoking payment under the written undertaking. This proved unsuccessful. The respondent sued the appellant for refund of its money including a sum of €1 million together with interest at the rate of 10% per annum, damages for deception, and general damages for unjust enrichment as well as aggravated and exemplary damages. [6] The appellant filed a Defence pleading inter alia that Noble Mettle only acknowledged the respondent’s payment on 9.10.2017; that the respondent’s remedy and claim lay against Noble Mettle; that it was the respondent’s failure to comply with the instructions of Noble Mettle in the due diligence conducted that resulted in the nonrelease of the loan; that the transaction between Noble Mettle and therespondent was illegal and contrary to the provisions of the Exchange Control Act 1953 and the Guidelines issued by the Ministry of International Trade and Industry and those issued by the Central Bank; that the respondent had not informed the appellant that its payments would be in Singapore currency. Enclosure 20 – application for summary judgment [7] By enclosure 20, the respondent sought leave to enter summary judgment on the basis that the appellant had no defence of merit. The learned Judge agreed with the respondent finding that the appellant had acknowledged receipt of the payment of SGD1,362,850.00 which is equivalent to €900,000 being payment of the refundable administrative and due diligence fee; that the appellant had agreed to refund that sum; and that the respondent did not obtain the loan of €102 million. As for the issue of illegality, the learned Judge was of the view that this did not concern the immediate parties but would only be relevant in a claim between the respondent and Noble Mettle. The learned Judge further disagreed with the appellant that she had discharged her obligations when the respondent’s payment of €900,000 was handed over to Noble Mettle Our decision [9] Here, the defence is not one of mere platitude; it raises serious issues on the validity of the very agreement which the respondent entered with Noble Mettle, that the undertaking is necessarily one which is to be read together with that agreement, whether contextual or more; that divorced of the underlying agreement between the respondent and Noble Mettle, there really would have been no need for such an undertaking, written or even verbal. After all, the material part of the letter of undertaking reads as follows: “I hereby agree to indemnify and keep fully indemnified for the full payment of the said Sum in the event I fail, omit and/or negligent in the remittance of the Sum to the abovementioned Account and the said Sum shall be refunded to you immediatelyupon your written demand.” [emphasis added] [10] The appellant had argued that the obligation under the letter of undertaking pertained to the obligation to ensure that the sum of SGD1,362,850.00 received from the respondent was remitted to NobleMettle. As noted by the learned Judge, it was so remitted – see paragraph 21 of the grounds of decision. This, in itself, indicates an arguable defence on what exactly was the appellant’s obligation and whether there has been due performance by the appellant. [11] However, despite that payment which was acknowledged many months later in October of the following year for unexplained reasons, which delay is not disputed or even the subject of any complaint by the respondent, the respondent did not obtain that loan of €102 million. [12] The appellant has raised concerns and questions over the respondent’s payment of the €900,000 in cash of SGD1,362,850.00. Prior to this payment, the respondent had itself remitted directly to Noble Mettle the sum of €100,000. The sum of SGD1,362,850.00 was given in cash by the respondent’s director to the appellant to remit to Noble Mettle. [13] The agreement, though seemingly simple and straightforward was without legal assistance, and this has raised concerns as to the propriety of the agreement and the related arrangements including the undertaking by the appellant and the payment and onward remittance of €900,000 by the appellant to Noble Mettle. [14] This €900,000 is a very substantial sum by any measure and the circumstances surrounding its payment and the arrangement for its payment and remittance to Noble Mettle, a foreign institution merits proper examination and consideration through a trial. Even the loan sum of €102 million requires examination. The payment of €900,000 would, amongst others, be relevant to the issue of whether there are any violations or contraventions of any monetary regulations including those under the Financial Services Act 2013, Exchange Control Act and even under the Anti-Money Laundering, AntiTerrorism Financing and Proceeds of Unlawful Activities Act 2001. The appellant has adduced evidence to the effect that the respondent’s director who made the payment was fully aware of the strict enforcement by Bank Negara and that its approval would be required before the monies could leave or enter our shores. [15] It would seem to us that if that payment of SGD1,362,850.00, paid by the respondent to Noble Mettle under its agreement with Noble Mettle was in any way contrary to any of those laws mentioned, then surely any refund would similarly suffer the same fate under the principle of ex turpi causa non oritur actio and that the respondent may possibly be in pari delecto to the illegality or wrongful act, or at the very least, this issue warrants further examination. [16] It was also erroneous for the learned Judge to say that the loan agreement with Noble Mettle had no connection whatsoever with the letter of undertaking; the two were plainly and obviously interrelated. At this point, we are incline to say that the appellant has raised very real and serious questions of illegality which must be examined properly for its full facts and circumstances. The respondent’s knowledge or awareness of those facts would also be material to that determination. [17] We cannot shut our eyes to the plainly unusual arrangements pertaining to the substantial loan in a foreign currency which required prior payment from the potential borrower in the person of the respondent even before it receives any part of that substantial loan; and which suggest some real concerns on its validity and legality that must be scrutinized by the Court. The lending transaction in the agreement is even questioned as being an unauthorized transaction or even an illegal money lending/laundering transaction. See cases such as Norihan Talib & Ors v. Mohd Nasir Hassan & Ors [2017] MLRAU 1 and Lim Xue Shan & Anor v. Ong Kim Cheng [1990] 3 MLJ 449. [18] All these concerns and issues are defences of merit, none of which are plainly and obviously unsustainable. We were thus of the unanimous view that the learned Judge had plainly erred in the exercise of discretion in allowing the application for summary judgment for the reasons set out in the grounds of judgment. This is certainly not a plain and obvious case of illegality raised by the appellant. The circumstances warrant full examination at trial.”. Findings of The Court [21] Since the Court of Appeal remit this case for full trial on the grounds that “the defence is not one of mere platitude; it raises serious issues on the validity of the very agreement which the respondent entered with Noble Mettle, that the undertaking is necessarily one which is to be read together with that agreement, whether contextual or more; that divorced of the underlying agreement between the respondent and Noble Mettle, there really would have been no need for such an undertaking, written or even verbal.”, therefore the Plaintif MUST prove its case on the balance of probabilities. [22] The issues raised by the Defendant pertaining to –

the invocation of section 114(1)(g) of the Evidence of an adverse inference against the Plaintiff for failing or willfully refusing to adduce Dato' Low Eng Hock, the Managing Director of the Plaintiff as the key witness. The Plaintiff’s sole witness has no knowledge of the facts of case of which he was present in Court to testify.

the issue on lending transaction in the agreement is even questioned as being an unauthorized transaction or even an illegal money lending/laundering transaction.

the Plaintiff relied firmly on the letter of undertaking given by the Defendant to refund the money to the Plaintiff but the Plaintiff’s sole witness has no knowledge of the letter of undertaking. All his answers are “I don’t know”. [23] From the cross-examination of SP-1, I have observed that SP-I has almost no knowledge of the fact of the case. In cross-examination, the Plaintiff's witness, SP-1 repeated claimed, “I don’t know” or ”I’m not sure”. SP-1 even admitted that the person knowledgeable is Dato’ Low. [24] The learned counsel said to this Court as follows: “PD: Yang Arif, I cannot. But do you know-Yang Arif, I have a line of questioning. Maybe you can say don’t know, don’t know, don’t know. Okay. Do you know how, you see you don’t know who prepared, if you don’t know who prepared, do you know who gave this letter to be given in the lock-up? CYS: Don’t know. PD: He doesn’t, he wouldn’t know. You don’t know anything about this matter, right? So, Yang Arif, I cannot go any further on that. But you, but Dato’ Low is the main person, right? CYS: Yes.”. And also, as follows: “PD: Oh my god. You don’t seem to know much. Yang Arif, he is making-Now, you refer to page, Question 28. Why, why, why the demand for EUR 1,000,000 from the Defendant. And look at your answer. It is because the Defendant agreed undertook to refund 1,000,000 if the loan of 102 was not dispersed. Now, I put it to you, I put it to you, Mr. Chua. I put it to you, look in the agreement, look at the agreement. Anything in the agreement to say that the Defendant, Jenny, what’s the name? Tan Sew Cheng must give back 1 million EUR if the loan amount is not disbursed. Anything in the agreement I put it to you. CYS: It’s in the undertaking.”. [25] The learned counsel for the Defendant cited the High Court’s case CTI Leather Sdn. Bhd. v. Hoe Joo Leong & Ors [2012] 10 CLJ 287 castigated the solicitors for preparing witness statements that reflect the legal position of the solicitors are not the testimony of the witnesses. The learned Judge held at page 304 as follows “(51] [...] In dire contrast, in the course of cross-examination, it became apparent that he had no such detailed knowledge. Every time he was confronted with a difficult question relating to the accounts of the plaintiff or the affairs of the plaintiff while he was the Managing Director, he simply answered ‘I don’t know’ or ‘I don’t remember’. His demeanour was simplistic, and could be likened to that of one who had no real knowledge or control of the plaintiff. [52] ... When cross-examined on what is, in effect the solicitor’s language, the witness is astounded and unable to answer, offen not even comprehending the content of what is, affer all, his testimony in evidence in chief. This has a deleterious effect on his credibility.”. [26] The Plaintiff asserts that the Defendant has failed to perform her obligation in refunding the money to the Plaintiff. But in the full trial, the Plaintiff has failed to prove the non-performance of the Defendant. In fact, the sole Plaintiff’s witness has agreed that Defendant had remitted the money to Noble Mettle, LC. [27] The learned counsel for the Defendant submits that from the evidence given in Court by the Plaintiff’s sole witness, SP-1, the claim of the Plaintiff is wholly without basis or merit as follows:

There was no challenge by the Plaintiff though its sole witness or its pleadings on the illegality of the loan agreement between the Plaintiff and Noble Mettle LLC for−

Not having consent of Bank Negara Malaysia pursuant to its guidelines for remittance out of Malaysia;

(ii) Contravention of the Exchange Control Act 1953 and Guidelines of the Ministry of International Trade and Industry;

(iii) Using cash in the terms of Singapore currency without any explanation by SP-I on the source of these monies which amounts to money laundering under the Anti-Money Laundering and Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.

No evidence was adduced by SP-I to support the Plaintiff’s contention that the Defendant failed to remit the sum of Euro/€ 900,000 given to her to remit under a letter of indemnity dated 30.12.2016.

SP-I testimony that it was not the remittance by the Defendant but the fact that loan was not disbursed that made the Defendant liable to repay the Euro/€ 900,000 which is in total contradiction to the Defendant obligation under the undertaking.

SP-I offering no evidence or little evidence to support any of the pleaded facts of the Plaintiff or even support his own witness statement.

The material witness for the Plaintiff as admitted by SP-1 is Dato’ Low. His willful non-appearance as a witness ought to draw a hearing adverse inference pointing to the irresistible conclusion that there is no case made out by the Plaintiff. [28] In conclusion, the learned counsel for the Defendant submits has ‘no case to answer’, there is no duty on the Defendant to answer a case against it when the Plaintiff failed to adduce any evidence to make out a case. [29] The learned counsel for the Defendant to quote what Justice Vernon Ong (as he then was) in the case of Tey Moon Kin – “[...] In this case Lim’s evidence has been discounted for the reasons abovementioned. Consequently, there is essentially no other evidence to support the plaintiff’s case. The plaintiff has failed to make out a prlma facie case. Therefore, the Coud finds that the plaintiff has clearly failed to satisfy the original burden of introducing evidence to prove her case on the balance of probabilities. In consequence, it is not necessary for the Court to consider the question of whether the defendant has established her defence.”. Conclusion [30] In view of the foregoing reasons, I therefore dismissed the Plaintiff claim with costs. Dated: 27 April 2023. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner High Court NCvC12 Shah Alam Counsels: For the Plaintiff: Lim Choon Kim (Dato’) bersama dengannya Chin Yan Leng & David Yii Hee Kiet Tetuan CK Lim Law Chambers, Kuala Lumpur For the Defendant: Walter Pereira bersamanya Annie Gomez Tetuan Kamarudin & Partners, Kuala Lumpur