IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU
IN THE STATE OF JOHOR DARUL TA’ZIM
CIVIL SUIT NO. 22-935-2008
_______________________________________________________
BETWEEN
SEE CHOO @ SEE GUAT KIOK … Plaintiff
AND
JB SECURITIES SDN BHD … Defendant
(No. Syarikat: 17812-U)
JUDGMENT
GUNALAN A/L MUNIANDY, J.C:
[1] The plaintiff („P‟)‟s cause of action, which arises from a
contractual relationship with the defendant („D‟) involving share
trading, is premised on fraud as particularised in the statement of
claim. The alleged fraud by D revolved around the manner in which
P‟s share trading accounts were operated by D. The claim was
broken down into various heads, each particularised in the form of
individual trading names for shares of companies listed on the Kuala
Lumpur Stock Exchange („KLSE‟). The various heads refer to the
trading counters as set out in the statement of claim („SOC‟)
Summary of Facts (Agreed)
[2] (1) The plaintiff was a client of the defendant. The
defendant is a stock broking company, whose main
trading activity is the buying and selling of shares on
the Kuala Lumpur Stock Exchange.
(2) The plaintiff had two trading accounts with the
defendant, namely 2AM033 and 3SE035.
(3) Account No. 2AM033 was a margin-trading account.
This margin trading facility was offered under account
2AM033 which was set up by Arab-Malaysian
Merchant Bank Berhad (“AMBB”).
(4) There were transactions under the following counters
of companies of the KLSE :
(a) Malakoff
(b) Faber Merlin
(c) Jasa Mega
(d) Landmark
(e) MFCB
(f) Mentiga
(g) HICOM
(h) Sitt Tatt
(i) NBT
(j) ANCOM
(k) BIN
(5) The plaintiff has made many complaints and inquiries,
and had also made various relevant applications as
follows :
(a) Johor Bahru High Court on 3/11/1999,
(b) Johor Bahru High Court 13/6/2002, and
(c) Johor Bahru High Court 2/12/2002
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for the Defendant to disclose the said purchases
(together with the documentation relevant thereto).
P obtained orders of disclosure against D through
these applications.
Summary of Defendant (‘D’)’s Case
[3] 1. The Defendant states that the 2AM033 account was a
margin financing facility opened by the plaintiff but
operated by the plaintiff‟s agent, Arab Malaysian
Merchant Bank Berhad (AMMBB).
2. AMMBB dealt directly with the Defendant in respect of
the trade settlement of payments for the plaintiff under
the 2AM033 account and since the margin financing
facility was operated by AMMBB, the Defendant sent
to AMMBB all contract notes, bills, contract statements
and the monthly statement of accounts in respect of
the 2AM033 account.
3. In respect of the trades in specific shares the gist of
D‟s main contentions were:
a) All the sale and purchase transactions were done
on P‟s instructions with her full knowledge without
any fraud, breach of duty or wrongful actions.
b) All the contract notes pertaining to the above
transactions had been given to AMMB, who
managed P‟s 2AM033 account, in the normal
course of business.
c) Losses, if any, sustained by P were the result of
normal trades and risks associated with share
trading.
d) D was not privy to the statements of accounts
(SOA) issued by AMMB to P nor responsible for
them.
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e) P‟s two accounts, 2AM033 and 3SE035 were
separate and distinct accounts.
f) The buy-in of shares complained of was to comply
with KLSE‟s requirement and practice due to P‟s
„short sell‟ position and there was no wrongdoing.
g) All sale and purchase transactions in respect of
the relevant counters were reflected in the SOA
sent to P either by D for 3SE035 account or by
AMMB for 2AM033 account, including the „keying-
in mistake‟ shown by notice of wrong entry and
subsequent amendment.
h) D did not conceal any trades or cancellations from
P.
i) P had not raised any complaints or issue of
discrepancies upon receipt of the contract notes in
respect of both accounts.
4. The plaintiff‟s claims are time barred under the
Limitation Act, 1953.
5. Further and/or in the alternative, the plaintiff is stopped
from filing the above claims on the grounds that the
plaintiff had filed a similar action at the High Court at
Johor Bahru Suit No. MT5-22-676-1999 (4) which was
struck-out by the court.
Issues For Trial
P’s Issues
[4] 1. Whether the plaintiff‟s accounts were operated by the
Defendant based upon fraud and deception, that is,
based upon the relevant transactions of counters for
companies at the KLSE as listed in the statement of
claim.
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2. Whether there was evidence of negligence by D in
respect of operation of P‟s accounts.
3. Whether there was evidence of breach of contract by
D in respect of operation of P‟s accounts.
4. Whether the plaintiff had suffered loss as a result of
the fraud and deception, negligence and breach of
contract by the defendant.
5. What is the plaintiff‟s quantum of loss?
D’s Issues
[5] 1. Whether the plaintiff‟s relevant accounts were
managed by the defendant?
2. Whether the plaintiff is estopped from making claims in
the above proceedings?
3. Whether the plaintiff‟s claims were barred by limitation
under the Limitation Act, 1953?
Analysis of Evidence & Issues
Defence of Limitation
[6] The first and foremost defence contention was that this suit
was filed out of time after limitation had set in by virtue of s. 6(1) of
the Limitation Act, 1953 (‟the Act‟). It was not in dispute that the
present action was „founded on contract‟ so that the 6 year limitation
period applied. Also undisputed was that the share transactions that
formed the basis of P‟s claim occurred more than 6 years before the
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writ was filed. However, P contended that as this was a fraud claim,
time did not begin to run until the alleged fraud was discovered by P
despite the cause of action having arisen very much earlier.
[7] S.29 of the Act provides for postponement of limitation
period in cases of fraud or mistake notwithstanding any period of
limitation prescribed in the Act whereby the period shall not begin to
run until the fraud or mistake has been discovered or could have
been discovered with reasonable diligence. This was precisely the
clause that P sought to rely on to support her stand that this suit was
not time-barred on the ground that the discovery of fraud as pleaded
occurred only sometime in year 2002. This was after she had
obtained the relevant documents from D through orders for
production that she had obtained from the Johor Bahru High Court
[„JHBC‟].
[8] Whether P had discovered the fraud only after the said event
was a serious point of contention by D whose stand was to the
contrary, that the discovery was long before that, for which there was
ample evidence. D placed emphasis on the 1999 suit filed on behalf
of P at JBHC by her current solicitors. This suit was amended on
21.12.2000 as a result of which P had included claims in respect of
trades involving 10 counters that are the same as in the present suit.
[9] Defence counsel highlighted the fact that the present claims
are based on transactions in statements of accounts („S/A‟) exhibited
in Bundle „B‟. The transactions relate mainly to P‟s AMIM account
number 2AM033 while account number 3SE035 only involves 2
transactions in respect of 3 counters. All the impugned transactions
were completed latest by 1996 and there was none within the 6
years‟ period before the current suit was filed on 02.12.2008 as
admitted by P (PW3) herself in cross-examination. Based on these
facts, it was submitted that P‟s present claim grounded in breach of
duty, trust, negligence, etc. that had clearly exceeded 6 years since
the cause of action arose was time-barred.
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[10] What was left to be considered was whether the period of
limitation could be postponed to begin to run only when P had
discovered the fraud or could with reasonable diligence have
discovered it. In respect of the 3SE035 account, PW3 admitted
receiving D‟s monthly S/A whereas for the 2AM033 account, D had
sent monthly S/A to AMMB which was admitted by PW1, the AMMB
officer called by P. PW1 testified that AMMB prepared monthly S/A
which were sent to P by using D‟s monthly S/A and contract notes.
As such, D/C submitted that P could have easily procured all the
required documents from AMMB (S/A, contract notes, etc) but failed
to do so as not a single letter was sent by P or her solicitors to AMMB
for this purpose. Hence, it was alleged that P had not exercised
reasonable diligence to be informed of the true state of events in
respect of this account.
[11] Plaintiff‟s counsel („P/C‟) in his submissions did not seriously
dispute the above assertion regarding the S/A in respect of both
accounts having been within P‟s knowledge as far back as year 2000
but stressed that the present suit could not have been instituted
without the complete details of account 2AM033. The production of
the relevant documents containing these details was secured via the
3 court orders for, inter alia, Contract Notes, receipts, payment
vouchers, books, vouchers, journals, etc. The point sought to be
made was that the discovery of the fraud that led to the present suit
being filed was as a result of these documents having been
eventually secured and as such time should only begin to run from
the date of their production. If so, this suit cannot be considered
time-barred.
[12] The question arising was whether P/C‟s argument was
tenable based on the existing facts. D/C submitted that the purpose
of the 3 court orders was to procure evidence to confirm the suspicion
of fraud in order to support this claim whereas the alleged fraud had
long been discovered well before that point in time. D/C relied on the
events surrounding P‟s 1999 suit as being evidence in support
thereof. D/C diligently pointed out that P was able to plead and state
specifically in her statement of claim („SOC‟) dated 24.12.1999
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(redated 24.12.2000 after amendments) full particulars of the alleged
fraud pertaining to all the counters. This she could not have done
had she not been in possession of all the information required to set
out the particulars of fraud in their present form. In my view, it was
rightly submitted that as at the date of amendments to the 1999 suit
on 21.12.2000, P must have had full and complete knowledge of all
matters raised in that suit as amended, particularly the SOA of both D
and AMMB, the sales and purchase contract notes, contra notes, bills
etc.
[13] For the record, a perusal of the claims in the Amended 1999
suit, which is to be found in Bundle „C‟ in Item 13 would reveal them
to be identical to the present suit. PW3 admitted under cross-
examination that both suits relate to the same claims. In the
circumstances, the only reasonable and logical conclusion was, to my
mind, that by the time of the amendments on 21.12.2000, at the
latest, PW3 had already discovered the alleged fraud so that for the
purposes of calculation of limitation under s. 29 of the Act time should
begin to run from not later than 21.12.2000. The instant writ was filed
on 02.12.2008, which was well in excess of 6 years after that date
and accordingly, this claim had become time-barred as of
21.12.2006.
[14] The law of limitation is strictly applied in appropriate cases.
It is absolute and makes no exceptions with a view to finality of
proceedings. Once the defence of limitation is raised, the burden
shifts to the plaintiff to establish that the suit was commenced within
the applicable limitation period. [See Ong Ah Bee v. Hii Chong Siong
Robin [1993] 1 CLJ. 504 at p. 505; Muhamad Solleh b. Saarani Anor
v. Norrudad b. Omar & Ors. [2010] MLJ p. 397
Prior Legal Suit
[15] There was disagreement between the parties as to the effect
and outcome of the earlier legal suit (22-676-1999) involving the
same claim and parties. While P/C contended that the Notice of
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Discontinuance exhibited by P, which was an agreed document in
Part A, was conclusive that the suit was discontinued with leave to file
afresh, D/C contended that the document was only admitted as to its
authenticity and contents but not admitted as proof of filing. There
was no doubt the document by itself doesn‟t contain proof that it had
properly been filed under the Rules of the High Court, 1980 with
payment of the required praecipe and leave under Order 21, Rule
2(1) which requires the plaintiff to obtain leave of the court if he
wishes to withdraw on action more than 14 days after the date of
service of the defence on him. The documentary evidence in this
case shows clearly that the Deputy Registrar, Johor Bahru High Court
had on 22.03.2007 issued to P‟s present solicitors as well as to D‟s
then solicitors for show cause proceedings on 03.04.2007. On that
date, the same Deputy Registrar struck out the suit for want of
prosecution. Hence, in my view, the issue of P herself having
discontinued the suit on her instructions, which was in conflict with
the official record, did not arise. In any event, P had not satisfied the
onus of resolving the conflict. Neither that the discontinuance was in
accordance with the Rules. As such, the question of P having leave
to file a fresh did not arise.
The Issue of Fraud By Defendant (‘D’)
[16] On the assumption that this suit is not time-barred due to
limitation I would proceed to consider whether the allegation that D
had acted wrongfully based on fraud in dealing with all the impugned
transactions had been proved. The other allegations relating to
breach of contract or trust, negligence, etc. in respect of the same
need not be considered as claims found on these causes of action
have already become time-barred under s. 6 of the Limitation Act,
1953.
[17] In a civil claim the plaintiff bears the legal burden of proof to
prove his claim and where specific allegations or assertions are made
to found the claim he also bears the evidential burden of proving
these before the burden shifts to the defendant to rebut the case
made out, failing which the defendant would have no case to rebut.
The legal burden of proving the case, on the other hand, rests with
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the plaintiff all throughout and does not shift to the defendant as the
trial progresses. The onus of proof of fraud, which is an allegation of
a particular fact, therefore, lies on the plaintiff. [ See 102 – 103,
Evidence Act, 1950; Selvaduray v. Chinniah [1939] MLJ 253 (CA);
Abrath v. North Eastern Railway [1883] 11 QBD 440 ].
[18] Where the cause of action is premised on allegations of
fraud, the criminal standard of proof, which is beyond a reasonable
doubt, would apply to sustain the claim. The standard of proof for
fraud in civil cases is now established. In Chong Song @ Chong
Sum & Anor v. Uma Devi a/p V. Kandiah [2011] 2 MLJ 485, the Court
of Appeal held:
“It is trite law that the standard of proof for fraud in civil cases
is beyond reasonable doubt”.
[19] The question to be resolved was, thus, whether P had
discharged the evidential burden of proving fraud against D as
pleaded to the required standard as above. To start with, in the SOC
P has not pleaded fraud against any named individual as agent of P
when in fact all her dealings with D were through an individual
employee, a company dealer [DW2] who had carried out all the
impugned transactions on behalf of PW3 under both accounts. In the
SOC it is pleaded generally that D had acted fraudulently viewed from
the manner in which the transactions were conducted causing PW3
to incur losses of accumulating profits if the sales and purchases had
been properly dealt with. Yet, it was clear from the evidence that it
was only DW2 from D company who had dealt with PW3 and the
evidence adduced through cross-examination of DW2 seemed to be
designed to implicate DW2 as having perpetrated the fraudulent acts
that caused the losses claimed. However, no allegation whatsoever
of fraud was pleaded against him or that he had acted wrongfully in
furtherance of fraud in carrying out the transactions without
instructions from PW3. It is settled law that material facts and issues
on which evidence is intended to be led must be pleaded failing which
the impugned evidence cannot be considered in determining the
validity of the claim. D is a corporate body which could not have
acted on its own, it could only have acted through its officers as
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agents. Yet the serious allegation of fraud was not directed at any
particular individual or individuals for D to answer the allegation but
PW3, nevertheless, sought to adduce evidence against the individual
concerned (DW2) to support her claim.
[20] The law on the need for evidence to be strictly confined to
issues, whether of facts or law, raised in the pleadings is settled. D/C
made reference to the case of Bank Bumiputra (M) Bhd. v. Mahmud
b. Hj. Mohamed Din (Datin Hjh. Salma bt Md Jamin, Intervenor)
[1989] 1 MLJ 381 where Peh Swee Jin J (as he then) was said:
“Before I comment on the submissions stated above, I shall
like to make it clear that though the facts of any given case
may sometimes give rise to all sorts of speculative issues,
however, at the end of the day, it is only the issues, whether
on questions of law or fact, which are specifically and
actually raised or pleaded that invite the adjudication by the
court which cannot go outside the pleadings or statements in
the nature of the pleadings.”.
This established rule of pleadings is explained in the Supreme Court
judgment in Yew Wan Leong v. Lai Koh Chye [1990] 2 MLJ 152
where Gunn Chit Tuan, SCJ (as he then was) said:
“We agreed with the following passage in the judgment of
the learned judge in that case in which his Lordship stated:
The court is not entitled to decide a suit on a matter on
which no issue has been raised by the parties. It is not
the duty of the court to make out a case for one of the
parties when the party concerned does not raise or wish
to raise the point. In disposing of a suit or matter
involving a disputed question of fact, it is not proper for
the court to displace the case made by a party in its
pleadings and give effect to an entirely new case which
the party had not made out in its own pleadings. The trial
of a suit should be confined to the pleas on which the
parties are at variance.”.
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[21] In view of the above, the court cannot decide the issue of
fraud or wrongdoing allegedly by D based on the evidence involving
the role or acts of SD2 as the issue of DW2‟s involvement had not
been pleaded. It is to be noted that PW3 (plaintiff) herself did not
make any allegations of fraud/wrongdoing against DW2 even though
all the impugned trades were conducted through DW2 purportedly
based on direct instructions from PW3 so that the fraud/wrongdoing,
if any, could only have been practised by DW2. Hence, D/C,
submitted that P had failed to discharge the onus of proof placed on
her.
[22] Whether fraud exists in a given case is to be decided upon
the circumstances of that particular case. Fraud is understood to be
a wilful act to dishonestly deprive another party by unjustifiable
means of an existing right with an intention to cheat. [P.J.T.V Denson
(M) Sdn. Bhd & Ors. v. Roxy (M) Sdn. Bhd. 1 LNS 55; [1980] 1 MLJ
136 F/C (Raja Azlan Shah, CJ (Malaya) (as he then was)]. In the
instant case, PW3 admitted that both the impugned accounts
[3SE035 and 2AM033] were solely managed by DW2. PW3 gave
detailed and extensive evidence on how her accounts were operated
in a prejudicial manner that caused her huge losses. I would not
delve further into details of this allegation except to note that it
particularly concerned late reporting of trades and
cancellations/reversals of certain contra gains made by PW3 without
her instructions. Granted that DW2‟s explanation of the alleged
unauthorised acts contradicted with the relevant part of the defence
but I did not see how P could succeed on the allegation of fraud
against D without implicating DW2 in the pleadings with full
particulars of his fraudulent acts which were only brought to light in
the evidence. In the circumstances, PW3‟s evidence that she had
made numerous complaints and enquiries relating to her accounts
that culminated in having to resort to Court orders to compel
production of the required documentation did not contribute to
satisfying the onus of proof of fraud placed on her.
[23] P contended that the unchallenged fact that the above
documentation was not provided willingly by D until compelled to do
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so through court action implied that D had something to hide and had
tried to obstruct PW3‟s quest for information pertaining to her
accounts that she was entitled to. This, to my mind, amounted no
more than a suspicion of fraud short of actual proof, which has to be
much more than possibilities or conjectures.
[24] Of the two trading accounts, the 2AM033 account was the
margin trading account that formed the main cause of complaint for
P. The statements of account („SOA‟) of this account were not
rendered to P but directly to the Arab Malaysian Merchant Bank
(„AMMB‟) who managed the account for P. Upon receipt of the SOA
from D, AMMB then generated its own SOA which were then
rendered to P. As such, D could not rely on the time honoured
defence that the SOA rendered by a statement generating entity like
D, unless disputed, would be regarded as conclusive evidence of the
transactions entered into. D, however, relied on the evidence of PW1
to assert that there was nothing irregular or anomalous about the
SOA sent by D in respect of 2AMO33 and that all SOA during the
impugned period had been duly received by AMMB. As such, it was
contended that, on the unchallenged evidence of PW1, all the SOA
relevant to the disputed transactions had been duly sent by AMMB,
as agent of P, to her. She was, therefore, said to be fully aware of
the transactions carried out by D in relation to the various counters
involved in the alleged fraud upon receipt of the SOA. PW1
confirmed that she had not made any complaints on the accounts and
more importantly that he had not come across any fraud in the
handling of 2AM033 by D.
[25] It was an important part of the defence case [see para 2 of
the Defence] that all the relevant contract notes, bills, contra
statements and monthly SOA for the above account had been duly
sent to P. In view of PW1‟s evidence which showed that P must have
been aware of all the material details of the transactions under this
account, P/C‟s submission was that she was not in a position to
immediately realize any mistake or fraud perpetrated against her was
clearly untenable. The point stressed was that, under the
circumstances, it was highly unlikely that D, through DW2, had
effected the transactions that brought losses to PW3 without her
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instructions. PW3 herself, when asked to confirm whether the
disputed transactions were on her instructions, replied that she could
not remember as it was too long ago and she had to check back.
She even conceded that P‟s Bundle was incomplete for verification
purposes. Hence, in view of her uncertain and vague evidence on
this essential point, D/C submitted P had failed to discharge the
burden of proof of fraud allegedly perpetrated by D.
[26] As pointed out by D/C, an essential aspect of P‟s pleaded
case was that transactions found in D‟s SOA are not seen in AMMB‟s
SOA which the latter had sent to PW3, implying that D had not
submitted complete SOA to AMMB. This was an allegation of fact
and P had the burden of proving the existence of this particular fact
[s. 103, Evidence Act, 1950]. I agree with the defence submission
that it was incumbent upon P to first establish that the SOA received
by PW3 from AMMB did not disclose some of the transactions
disclosed in D‟s complete SOA tendered in court [pages. 1 – 108, „B‟].
In attempting to prove this, P sought to rely on Exhibits P2 and P3 but
these SOA obviously did not represent the complete set of SOA sent
by AMMB to PW3. Exhibits P2 and P3 were in respect of only a few
months. P‟s own witness (PW1) admitted that AMMB‟s SOA
produced in Court by P were incomplete. PW3 herself admitted the
same but could not provide a satisfactory explanation why the rest of
the SOA had not been produced. As correctly submitted by D/C,
AMMB‟s complete monthly SOA for the period in question were vital
to resolve the current issue whether D had deliberately not disclosed
all the transactions under the 2AM033 account to AMMB in order to
conceal the fraudulent transactions.
[27] For P‟s failure to produce the essential evidence referred to
above, D/C urged that s. 114 (g), Evidence Act, 1950 be invoked and
an adverse inference be drawn against P. Reference was made to
the case of Foo Fio Na v. Hospital Assunta & Anor [1999] 6 MLJ 730
where the Court invoked s. 114 (g) against the plaintiff for failure to
produce evidence of vital importance to both sides, especially the
plaintiff herself, in the form of X-rays. Likewise, in the instant case,
production of the aforesaid SOA was imperative, especially to P
herself, in determining whether the allegation of non-disclosure
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against D, which was essential to her case, was proven to be true.
This was a question of fact that could only be answered based on the
complete sets of accounts, The evidence was all the more essential
as PW1 admitted that he had used D‟s monthly SOA and contract
documents to generate AMMB‟s SOA without omitting anything.
[28] The defence also contended that even if AMMB‟s SOA sent
to PW3 did not contain all the transactions shown in D‟s SOA, it did
not follow that D had committed fraud as it was the responsibility of
AMMB, as agent of PW3, to ensure that the accounts sent to her
were complete and correct. Throughout the period of the accounts
from 1993 to 1996 there had not been a single complaint regarding
the accounts, whether from PW3/her solicitors or AMMB.
[29] Submitting all the accounts and contract documents to
AMMB was said to be conduct inconsistent with an intention to
commit fraud by D. Emphasis was placed on the evidence of PW1,
who said that PW3 was generally satisfied with the accounts and
even on the cancellation of 50 lots of MFCB shares which was duly
reported by D to AMMB. PW3 had accepted the explanation of
AMMB and there was no further complaint received.
[30] On the allegation of late crediting of moneys paid to AMMB
by D, the only available evidence was as to the payment of a sum of
RM874, 966.78 [Exhibit P3]. P3 showed that D had paid AMMB on
14.02.1994, which was not denied. PW1, who was referred to the
said late crediting, admitted that AMMB was responsible for the said
delay. Hence, D could not be held liable for the conduct or default of
AMMB that caused the delay and this allegation was, thus, shown to
be without basis.
[31] Lastly, the defence referred to the admission by PW3 herself
that she couldn‟t confirm whether D‟s SOA were correct or not as that
was a matter between D and AMMB and only they would know about
the accuracy and correctness of the accounts.
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[32] As there was not even an iota of evidence that AMMB had
ever raised any complaint about the accounts or rejected them, it was
submitted that they cannot be regarded as being incorrect. Further,
that as PW3 herself had admitted receipt of all the SOA that she
had exhibited, they must be deemed to be correct and binding on her.
Conclusion
[33] In view of the 6 year limitation period for causes of action
based on contract and tort apart from fraud or mistake, which applied
to the instant case, I would confine my finding to whether D can
committed fraud as alleged which P (PW3) was said to have
discovered only upon receipt of the relevant documents from D.
[34] As submitted by P/C himself, the law imposes a high degree
of proof to establish a cause of action of fraud. He cited the landmark
case of Asean Security Paper Mills Sdn. Bhd v. CGU Insurance Bhd.
[2007] 2 CLJ1 where the Federal Court held (at p. 19):
“It is now settled law that the standard of proof required
where there is an allegation of fraud in a civil proceedings
must be one of beyond reasonable doubt and not on balance
of probabilities (see Yong Tim v. Hoo Kok Chong & Anor
[2005] 3 CLJ 229 FC).”.
[35] A definition of fraud in relation to contracts can be found in
Section 17, Contracts Act, 1950.
[36] P/C, however, stressed that proof beyond a reasonable
doubt was sufficient to establish fraud, which should not be confused
with proof beyond the shadow of doubt as the latter was not the
applicable standard of proof. He cited the case of AmBank (M) Bhd.
v. Lee Wee Kim [2009] 1 LNS 320 where, it was held, inter alia:
“Proof beyond reasonable doubt does not, however, mean
proof beyond the shadow of doubt. The degree of proof
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must carry a high degree of probability so that on the
evidence adduced the court believes its existence or a
prudent man considers its existence probable in the
circumstances of the particular case.”.
P/C concluded that the circumstances existent in this case rendered
fraud a high probability, specifically from the manner in which D had
handled P‟s trading accounts contrary to existing trading rules without
any satisfactory explanation. The question was, however, whether
the totality of the evidence had satisfied the “beyond reasonable
doubt” test.
[37] Based on my analysis of evidence as above, I found that the
facts and circumstances of this case, including those highlighted by
P/C, went no further than to raise a suspicion of fraud perpetrated by
D‟s employee (DW2) who was solely in charge of P‟s account. It is
trite law that suspicion alone, however strong and convincing, does
not amount to proof. The evidence, in its totality, in my judgment, fell
far short of proving fraud as alleged against D beyond a reasonable
doubt. I, therefore, dismissed this claim with costs.
Dated: 24th June 2011.
( GUNALAN A/L MUNIANDY )
Judicial Commissioner
High Court
Johor Bahru.
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For the Plaintiff … Mr. T.S.Chang
Messrs. Henry Soong & Chang
Advocates & Solicitors
Johor Bahru.
For the Defendant … Mr. C.H. Ng
Messrs. S.C. Teh & Azura
Advocates & Solicitors
Johor Bahru.
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