Yoong Sze Fatt v Pengkalen Securities Sdn Bhd

[2010] 1 MLJ 85

A Yoong Sze Fatt v Pengkalen Securities Sdn Bhd

COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL NO W-02–398

OF 2006
B
LOW HOP BING, HELILIAH AND ABDUL MALIK ISHAK JJCA
11 FEBRUARY 2009

Civil Procedure — Appeal — Interference by appellate court — Circumstances

C where appellate intervention warranted — Whether trial court had so
fundamentally misdirected itself

Civil Procedure — Trial — Submission of no case to answer — No evidence led

D by defendant — Whether all evidence led by plaintiff must be assumed to be
correct — Whether adverse inference to be drawn against defendant under
s 114(g) of the Evidence Act 1950

Contract — Shares, sale of — Contra losses — Validity of transactions — Share

E trading account opened by defendant through third party — Shares purchased by
remisier on behalf of defendant upon instructions of third party — Whether
defendant liable for losses — Whether defendant estopped from denying
knowledge and validity of transactions
F
Evidence — Adverse inference — Failure to lead evidence — Submission of no
case to answer — Whether adverse inference could be drawn against defendant —
Evidence Act 1950 s 114(g)

G Evidence — Expert evidence — Handwriting — Effect of failure to call expert

— Handwriting expert passed away — Whether specimen signatures mentioned
in report incapable of independent verification — Whether report admissible as
evidence
H
Securities — Shares — Sale and purchase — Claim for contra losses — Whether
defendant had knowledge of transaction — Share trading account opened by
defendant through third party — Shares purchased by remisier on behalf of
defendant upon instructions of third party — Whether defendant liable for losses
I — Whether defendant estopped from denying knowledge and validity of
transactions

The plaintiff/respondent was a stock broking company. The first

86 Malayan Law Journal [2010] 1 MLJ

defendant/appellant was the plaintiff ’s client who had through his employer, A
one Dato’ Wong opened a trading account with the plaintiff (‘the account’).
Pursuant to cl 6 of the agreement between the plaintiff and first defendant,
the first defendant undertook to pay for shares purchased on his behalf. The
plaintiff purchased 602,000 shares for the first defendant under the account
pursuant to the instructions given by the first defendant’s employer on the B
first defendant’s behalf to the plaintiff ’s remisier (‘PW2’). The contract notes
and contra statements were sent by the plaintiff to the first defendant’s home
address provided by the first defendant in his application for the opening of
the account. The first defendant had never asserted that the purchase was not
his transaction and did not respond to the plaintiff ’s letter of demand. C
Transactions conducted on the account had led to an overall loss on the said
account. The first defendant now contended that he had never instructed
anyone to purchase the shares. At the close of the plaintiff ’s case, the first
defendant submitted that the he had no case to answer and elected not to
adduce any evidence. However, the first defendant produced a purported D
handwriting expert’s report and tendered through his counsel to prove the
first defendant’s contention that he did not sign the account opening form.
The High Court allowed the plaintiff ’s claim and hence this appeal.
E

Held, dismissing the appeal with costs:

(1) (per Low Hop Bing JCA) It is trite law that once a defendant in civil
proceedings makes a submission of no case to answer and elects not to
F
call evidence, then all the evidence led by the plaintiff must be assumed
to be correct (see para 5).
(2) (per Low Hop Bing JCA) While there was no evidence of the first
defendant personally instructing PW2 to trade in the shares, there was
evidence that the first defendant’s employer had on behalf of the first G
defendant instructed PW2 to purchase the shares. This attracted the
application of cl 6 of the agreement (see para 19).
(3) (per Low Hop Bing JCA) If the first defendant had nothing to do with
the account or the trading of the shares by his employer through the H
account, the first defendant as a reasonable man should have at the
earliest opportunity raised a complaint or query in relation to the
contract notes, contra statements and letter of demand sent to his home
address. He had not done so. It was now too late to deny liability and
his conduct called for the application of the doctrine of estoppel (see I
para 21).
(4) (per Abdul Malik Ishak JCA) Having failed to protest to the
transactions or usage of his account, the first defendant must now be
estopped from denying the losses arising from the trades conducted on
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ 87

A his trading account. Parties to litigation who have continued the

proceedings with knowledge of an irregularity of which they might have
availed themselves were definitely estopped from afterwards setting it up
(see para 37).

B (5) (per Abdul Malik Ishak JCA) When a submission of no case to answer
has been made and coupled with the submission that no witnesses will
be called, it gives rise to the unrebuttable implications that: (a) the
outcome to the question of whether there is a case to answer would be
that all evidence led by the plaintiff must be presumed to be correct;
C and (b) the burden falls on the first defendant to call evidence to rebut
the plaintiff ’s case and the first defendant’s failure to do so in the
absence of reasonable explanation will trigger an adverse inference to be
drawn against the first defendant under s 114(g) of the Evidence Act
1950 (‘Act’) (see para 46).
D
(6) (per Abdul Malik Ishak JCA) Since the evidence led by the plaintiff
must be presumed to be true, the plaintiff had therefore satisfied the
requirements under s 101 of the Act. It therefore fell on the first
defendant to prove his defence under s 101. The first defendant too had
E to introduce such evidence as was necessary to discharge that burden
under ss 102 and 103 of the Act. The first defendant’s failure to call
evidence resulted in an appropriate adverse inference to be drawn
against him (see para 47).
(7) (per Abdul Malik Ishak JCA) The handwriting ‘expert’ had passed
F away prior to the trial. Thus, in the absence of direct evidence from the
‘expert’ his report could not be admissible as evidence. The sample or
specimen signatures mentioned in the ‘expert’ report were also
incapable of independent verification. The High Court had correctly
disregarded the ‘expert’ report (see para 61).
G
(8) (per Abdul Malik Ishak JCA) The appellate court is under a duty to
intervene with the finding of facts by the trial court where the trial court
has so fundamentally misdirected itself that a reasonable man may safely
say that no reasonable court which had properly directed itself and
H asked the right questions would have arrived at the same conclusion. In
the present appeal, there were no reasons to intervene or interfere with
the finding of facts arrived at by the High Court (see paras 64 & 66).

[Bahasa Malaysia summary

I
Plaintif/responden adalah sebuah syarikat saham. Defendan pertama/perayu
merupakan pelanggan plaintif yang telah membuka akaun dagangan dengan
plaintif (‘akaun tersebut’) melalui majikannya, Dato’ Wong. Menurut klausa
6 perjanjian di antara plaintif dan defendan pertama, defendan pertama telah
88 Malayan Law Journal [2010] 1 MLJ

mengaku janji untuk membayar saham yang telah dibeli bagi pihaknya. A
Plaintif telah membeli 602,000 saham bagi pihak defendan pertama di bawah
akaun tersebut mengikut arahan yang diberikan oleh majikan defendan
pertama bagi pihak defendan pertama kepada remisier plaintif (‘PW2’).
Nota-nota kontrak dan kenyataan-kenyataan kontra telah dihantar oleh
plaintif ke alamat rumah defendan pertama yang diberikan oleh defendan B
pertama dalam permohonannya untuk membuka akaun tersebut. Defendan
pertama tidak pernah menegaskan bahawa pembelian tersebut bukan
transaksinya dan tidak menjawab surat tuntutan plaintif. Transaksi yang
dilakukan ke atas akaun tersebut membawa kepada kerugian keseluruhan ke
atas akaun tersebut. Kini defendan pertama menegaskan bahawa dia tidak C
pernah mengarah sesiapa untuk membeli saham tersebut. Pada penutupan
kes plaintif, defendan pertama menghujah bahawa dia tiada kes untuk
dijawab dan memilih untuk tidak mengemukakan apa-apa keterangan.
Walau bagaimanapun, defendan pertama telah mengemukakan laporan pakar
D
tulisan tangan dan menender melalui peguamnya bagi membuktikan hujah
defendan pertama bahawa dia tidak menandatangani borang membuka
akaun. Mahkamah Tinggi membenarkan tuntutan plaintif dan justeru itu
rayuan ini.
E

Diputuskan, menolak rayuan dengan kos:

(1) (oleh Low Hop Bing HMR) Adalah undang-undang tetap bahawa
setelah defendan dalam prosiding sivil membuat penghujahan tentang F
tiada kes untuk dijawab dan memilih untuk tidak memberi keterangan,
maka semua keterangan yang dikemukakan oleh plaintif hendaklah
dianggap betul (lihat perenggan 5).
(2) (oleh Low Hop Bing HMR) Tidak ada keterangan bahawa defendan G
pertama sendiri mengarahkan PW2 untuk berdagang dalam saham
tersebut tetapi pada masa yang sama terdapat keterangan bahawa
majikan defendan pertama bagi pihak defendan pertama telah
mengarahkan PW2 untuk membeli saham tersebut. Ini telah menarik
pemakaian klausa 6 perjanjian (lihat perenggan 19). H
(3) (oleh Low Hop Bing HMR) Jika defendan pertama tidak mempunyai
kaitan dengan akaun mahupun dagangan saham tersebut oleh
majikannya melalui akaun tersebut, defendan pertama sebagai seorang
yang munasabah sepatutnya pada peluang terawal lagi telah membuat
aduan atau siasatan berkenaan nota-nota kontrak, kenyataan-kenyataan I
kontra dan surat tuntutan yang telah dihantar ke alamat rumahnya.
Namun dia tidak berbuat sedemikian. Sekarang sudah terlewat untuk
menafikan liabiliti dan perlakuannya memerlukan pemakaian doktrin
estopel (lihat perenggan 21).
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ 89

A (4) (oleh Abdul Malik Ishak HMR) Setelah gagal membantah terhadap
transaksi-transaksi atau penggunaan akaunnya, defendan pertama kini
perlu diestopkan daripada menafikan kerugian akibat daripada
dagangan yang dilakukan ke atas akaun dagangannya. Pihak-pihak
dalam litigasi ini yang meneruskan prosiding dengan pengetahuan
B tentang luar aturan yang mereka sendiri mungkin bergantung tentunya
diestop daripada menggunakannya kemudian (lihat perenggan 37).
(5) (oleh Abdul Malik Ishak HMR) Apabila penghujahan tentang tiada
kes untuk dijawab telah dibuat bersama dengan penghujahan bahawa
C
tiada saksi akan dipanggil, ia menimbulkan implikasi yang tidak boleh
dipatahkan bahawa: (a) hasil untuk soalan sama ada terdapat kes untuk
dijawab adalah bahawa semua keterangan yang dikemukakan oleh
plaintif hendaklah dianggap betul; dan (b) beban terletak ke atas
defendan pertama untuk memberi keterangan bagi mematahkan kes
D
plaintif dan kegagalan defendan pertama untuk berbuat demikian
dengan ketiadaan penjelasan munasabah akan mencetuskan inferens
bertentangan yang dibuat terhadap defendan pertama di bawah
s 114(g) Akta Keterangan 1950 (‘Akta’) (lihat perenggan 46).
(6) (oleh Abdul Malik Ishak HMR) Memandangkan keterangan yang
E dikemukakan oleh plaintif hendaklah dianggap benar, plaintif dengan
itu telah memenuhi keperluan-keperluan di bawah s 101 Akta. Dengan
itu ia terletak ke atas defendan pertama untuk membuktikan
pembelaannya di bawah s 101. Defendan pertama juga perlu
mengemukakan keterangan sebegini kerana ia perlu melepaskan beban
F di bawah ss 102 dan 103 Akta. Kegagalan defendan pertama untuk
memberi keterangan membawa kepada inferens bertentangan yang
sewajarnya dibuat terhadapnya (lihat perenggan 47).
(7) (oleh Abdul Malik Ishak HMR) ‘Pakar’ tulisan tangan tersebut telah
G meninggal dunia sebelum perbicaraan. Oleh itu, dalam ketiadaan
keterangan langsung daripada ‘pakar’ tersebut laporannya tidak boleh
diterima sebagai keterangan. Contoh atau spesimen
tandatangan-tandatangan yang disebutkan dalam laporan ‘pakar’ itu
juga tidak dapat ditentusahkan secara berasingan. Mahkamah Tinggi
H telah sewajarnya menolak laporan ‘pakar’ tersebut (lihat perenggan 61).
(8) (oleh Abdul Malik Ishak HMR) Mahkamah rayuan mempunyai
kewajipan untuk campur tangan dengan penemuan fakta oleh
mahkamah perbicaraan jika mahkamah perbicaraan itu telah salah arah
pada dasarnya sehingga seorang yang munasabah boleh mengatakan
I bahawa tiada mahkamah yang munasabah yang dengan betul telah
mengarahkan sewajarnya dan bertanyakan soalan yang sewajarnya akan
mencapai kesimpulan yang sama. Dalam rayuan ini, tiada sebab untuk
mengganggu atau campur tangan dengan penemuan fakta yang
diputuskan oleh Mahkamah Tinggi (lihat perenggan 64 & 66).]
90 Malayan Law Journal [2010] 1 MLJ

Notes A
For a case on contra losses, see 3(1) Mallal’s Digest (4th Ed, 2006 Reissue)
para 5053.
For cases on adverse inference in general, see 7(2) Mallal’s Digest (4th Ed,
2006 Reissue) paras 125–234.
For cases on handwriting, see 7(2) Mallal’s Digest (4th Ed, 2006 Reissue) B
paras 1465–1473.
For cases on interference by appellate court, see 2(1) Mallal’s Digest (4th Ed,
2007 Reissue) paras 1042–1065.
For cases on sale and purchase, see 11 Mallal’s Digest (4th Ed, 2005 Reissue) C
paras 951–966.
For cases on submission of no case to answer, see 2(1) Mallal’s Digest (4th Ed,
2007 Reissue) paras 7888–7893.

Cases referred to
D
Alexander v Rayson [1936] 1 KB 169, CA (refd)
Alfred Ernest Derrick (1910) 5 Cr App R 162 (refd)
Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors and other
appeals [2003] 1 MLJ 567; [2003] 2 AMR 6; [2003] 1 CLJ 585, CA (refd)
Asean Security Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 CLJ 1, FC E
(refd)
Associated Tractors Sdn Bhd v Woo Sai Wa [1997] 5 MLJ 441, HC (refd)
Benham Ltd v Kythira Investments Ltd & Anor [2003] EWCA Civ 1794, CA
(Civ Div) (refd)
Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd F
[1995] 3 MLJ 331, FC (refd)
Boyce v Wyatt Engineering & Ors [2001] EWCA Civ 692, CA (refd)
Burgoyne & Co Ld and PB Burgoyne v AH Godfree & Co (1904) 22 RPC 168,
CA (refd)
Chai Then Song v Malayan United Finance Bhd [1993] MLJU 128; [1993] 2 G
CLJ 640, HC (refd)
Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, FC
(refd)
Dunn v Shanks [1932] NI 66, CA (refd) H
Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George Fernandez & Anor
[1989] 1 MLJ 35, SC (refd)
Else v Barnard (1860) 28 Beav 228 (refd)
EON Bank Bhd v Hotel Flamingo and another case [2005] 1 MLJ 712, HC
(refd) I
Fortunatus Edmund Andrews v John Elliott (1855) 5 El & Bl 502 (refd)
Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2
MLJ 1; [2004] 6 AMR 781; [2004] 4 CLJ 309, FC (refd)
Gwyther v Boslymon Quarries Ltd [1950] 2 KB 59; [1950] 1 All ER 384 (refd)
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ 91

A Heller Factoring Sdn Bhd (previously known as Matang Factoring Sdn Bhd) v
Metalco Industries (M) Sdn Bhd [1995] 2 MLJ 153; [1995] 2 AMR 1353,
CA (refd)
Herman v Royal Exchange Shipping Co and Patton, Jr & Co (1884) C & E 413
(refd)
B Hopgood v Brown [1955] 1 All ER 550; [1955] 1 WLR 213, CA (refd)
Jaafar bin Shaari & Anor (suing as administrators of the estate of Shofiah bte
Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693, SC (refd)
Jackson v Knutsford Urban District Council [1914] 2 Ch 686 (refd)
Lai Yong Koon v PP [1962] MLJ 327, HC (refd)
C Len Min Kong v United Malayan Banking Corp Bhd and another appeal [1998]
2 MLJ 478; [1998] 3 AMR 2641; [1998] 2 CLJ 879, CA (refd)
Lim Chor Ching & Anor v Idris bin Abdul Karim and anor appeal [1998] 3
AMR 3182; [1998] 3 CLJ Supp 145, HC (refd)
Loo Hon Kong v Loo Kim Lim @ Loo Kim Leong [2004] 4 AMR 591; [2004]
D 4 CLJ 1, CA (refd)
Maju Holdings Sdn Bhd v Fortune Wealth (H-K) Ltd and other appeals [2004]
4 MLJ 105; [2004] 6 AMR 319; [2004] 4 CLJ 282, CA (refd)
Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ 1100, CA (refd)
Murarilal v State of MP AIR 1980 SC 531 (refd)
E
Oakland Metal Co Ltd v D Benaim & Co Ltd [1953] 2 QB 261; [1953] 2 All
ER 650 (refd)
PP v Yiau Swee Tung [1999] 3 MLJ 353, HC (refd)
Peyman v Lanjani & Ors [1985] 1 Ch 457; [1984] 3 All ER 703, CA (refd)
F
Queen, The v Silverlock [1894] 2 QB 766 (refd)
RHB-Cathay Securities Pte Ltd v Ibrahim Khan & other actions [1999] 3 SLR
464, HC (refd)
Renal Link (KL) Sdn Bhd v Dato’ Dr Harnam Singh [1997] 2 MLJ 373;
[1997] 3 AMR 2430, CA (refd)
G Sarawak Securities Sdn Bhd v Andy Chan Chiaw Guan; Fabian Eh Ng (third
party) [2000] 7 CLJ 364, HC (refd)
Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ
131; [2006] 3 AMR 410; [2006] 2 CLJ 337, CA (refd)
Shrager v Basil Dighton Ltd & Ors [1924] 1 KB 274, CA (refd)
H Sim Ah Song & Anor v Rex [1951] MLJ 150, HC (refd)
Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395, CA (refd)
Subry bin Hamid v Husaini bin Tan Sri Ikhwan & Anor [2006] 6 MLJ 229,
CA (refd)
Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701, CA (refd)
I Thomas v Brown (1875–76) 1 QBD 714 (refd)
Thomas Tyerman v Sarah Smith (1856) 6 El & Bl 719 (refd)
Toronto Railway Co v Corp of the City of Toronto [1904] AC 809, PC (refd)
Wasakah Singh v Bachan Singh (1931) 1 MC 125 (refd)
Whitehouse v Jordan & Anor [1981] 1 WLR 246, HL (refd)
92 Malayan Law Journal [2010] 1 MLJ

Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Rep Med A

223, CA (refd)
Wright v John Bagnall & Sons Ltd [1900] 2 QB 240, CA (refd)
Yorkshire Insurance Company Ltd & Ors v Craine [1922] 2 AC 541, PC (refd)

Legislation referred to B
Evidence Act 1950 ss 51, 60(1)(d), 73, 101, 102, 103, 114(g)
Tharmaiden Singh (Wong Guo Lun with him) (Vazeer Akbar Majid & Co) for
the appellant.
Sulaiman bin Abdullah (Stanley S Sinnappen with him) (Izral Partnership) for
the respondent. C

Low Hop Bing JCA:

APPEAL
D
[1] This appeal by the appellant (‘the defendant’) is directed against the
decision of the learned High Court judge who had allowed the respondent’s
(‘the plaintiff ’s’) claim for the sum of RM2,927,621.70 with interest against
the defendant, and dismissed the defendant’s counterclaim for RM2m, with
E
costs (collectively ‘the entire judgment’).

[2] On 23 January 2009, we dismissed the appeal and affirmed the entire
judgment of the court below. Our grounds now follow.
F
SUBMISSION OF NO CASE TO ANSWER

[3] The first issue, raised by plaintiff ’s learned counsel Mr Tharmaiden

Singh (Mr Wong Guo Lun with him), is a question of law. It concerns the
legal implications of the defendant’s submission of no case to answer, coupled G
with the intention not to call witnesses. It was submitted that, in the
circumstances, all evidence adduced in the plaintiff ’s case must be presumed
to be correct, on the basis of Wasakah Singh v Bachan Singh (1931) 1 MC
125; Jaafar bin Shaari & Anor (suing as administrators of the estate of Shofiah
bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 3 MLJ 693 (SC); and H
Subry bin Hamid v Husaini bin Tan Sri Ikhwan & Anor [2006] 6 MLJ 229
(CA).

[4] Defendant’s learned counsel, Sulaiman bin Abdullah (assisted by

Mr Stanley S Sinnappen) offered no response to the above submission. I
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Low Hop Bing JCA) 93

A [5] In our judgment, it is trite law that once a defendant in civil

proceedings makes a submission of no case to answer and elects not to call
evidence, then all the evidence led by the plaintiff must be assumed to be
correct: per Gopal Sri Ram JCA in Jaafar bin Shaari, at p 712, citing Wasakah
Singh. This principle has found similar expression in a number of judgments
B handed down in the motherland of common law. These cases include
Alexander v Rayson [1936] 1 KB 169; Boyce v Wyatt Engineering & Ors [2001]
EWCA Civ 692; Miller (t/a Waterloo Plant) v Cawley [2002] EWCA Civ
1100; and Benham Ltd v Kythira Investments Ltd & Anor [2003] EWCA Civ
1794 (CA).
C
[6] With this principle uppermost in our mind, we proceeded to consider
the evidence led by the plaintiff in the court below, which culminated in the
finding of facts.
D FINDING OF FACTS

[7] After a full trial, the court below arrived at a finding of facts which may
be unfolded below.
E
[8] The plaintiff is a stockbroking company and a member of the Kuala
Lumpur Stock Exchange (‘KLSE’), now Bursa Malaysia. The defendant was
the plaintiff ’s client who had through his employer one Dato’ Wong Yeon
Chai opened trading account No 273077 with the plaintiff (‘the account’) in
F which the defendant had placed a sum of RM2m for the purpose of trading
in shares and securities (collectively ‘the shares’).

[9] The defendant’s employer is not an appellant herein. The trading of the
shares pursuant to the account is subject to the terms and conditions
G contained in the agreement which was brought into existence (‘the
agreement’) vide the defendant’s application for the account. It is also subject
to the rules and regulations of the KLSE.

[10] The material terms and conditions thereof, inter alia, are to the
H
following effect:
(a) the defendant undertakes to make immediate payment for delivery of
the shares purchased on his behalf (cl 6);

I (b) the defendant authorises the plaintiff to sell or buy shares and
undertakes to indemnify the plaintiff against all losses in such events
(cl 9);
(c) the defendant agrees to pay all charges and interest rates imposed by the
plaintiff at the plaintiff ’s discretion (cl 11);
94 Malayan Law Journal [2010] 1 MLJ

(d) the defendant authorises the plaintiff to debit the account for the A
purchase of shares (cl 15); and
(e) all orders made through the phone shall not be revoked or withdrawn
and shall be confirmed by the defendant.
B
[11] It is the plaintiff ’s practice to record the client’s instructions to
purchase shares on a manual ‘business done’ slip which is then passed on to
the plaintiff ’s back room staff who would then key into the system the
confirmation of the instructions.
C
[12] The plaintiff had, on 19 November 1997, purchased 602,000 shares
for the defendant under the account pursuant to the instructions given by the
defendant’s employer on the defendant’s behalf to the plaintiff ’s remisier
(‘PW2’). D

[13] When the defendant received the contract notes and contra statements
sent by the plaintiff to the defendant’s home address provided by the
defendant in his application for the opening of the account, in relation to the
aforesaid purchase of shares, the defendant had not raised any protest or E
query with the plaintiff. He had not complained to the plaintiff that he had
never allowed his employer to utilise the account.

[14] At all material time prior to the plaintiff ’s commencement of the

action against him in the High Court, the defendant had chosen to remain F
silent in relation to the contract notes and contra statements which were sent
to him. He had never asserted that the purchase was not his transaction, nor
had he responded to the plaintiff ’s letter of demand dated 28 November 1997
which was also sent to him at his home address.
G
[15] At the close of plaintiff ’s case, the defendant submitted that the he had
no case to answer, and elected not to adduce any evidence.

SHARE PURCHASE
H

[16] The defendant’s contention is that the defendant had never instructed
the plaintiff, the plaintiff ’s remisier or any third party to purchase the shares
pursuant to the defendant’s account, and so the plaintiff has failed to prove
its claim against the defendant and that the defendant has in turn established I
the counterclaim against the plaintiff.

[17] The plaintiff argued that the defendants’ pleaded position was one of
unsubstantiated denial.
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Low Hop Bing JCA) 95

A [18] In our judgment, the terms and conditions, contained in the

agreement which the defendant and the plaintiff had brought into existence
consequent upon the defendant’s application to the plaintiff to open the
account with the deposit of RM2m to enable him to trade in shares listed on
the KLSE, are legally binding on the parties vis the defendant and the
B plaintiff herein: Sarawak Securities Sdn Bhd v Andy Chan Chiaw Guan; Fabian
Eh Ng (third party) [2000] 7 CLJ 364 (HC).

[19] While it is true that there was no evidence of the defendant personally
C
instructing the plaintiff ’s remisier to trade in the shares, there was indeed
undisputed evidence that the defendant’s employer had on behalf of the
defendant instructed the plaintiff ’s remisier (‘PW2’) to purchase the shares
pursuant to the account. The purchase of the shares had been transacted by
the defendant’s employer on behalf of the defendant. This would attract the
D application of cl 6 of the agreement.

[20] After having received the contract notes and contra statements from
the plaintiff, the defendant had never protested nor queried the plaintiff
thereon. There was also no complaint by the defendant that he had not
E allowed his employer to utilise the account. He was completely oblivious to
the plaintiff ’s letter of demand. The defendant’s conduct or absence of
response speaks volumes against the defendant. The silence, indeed the
omission, by the defendant in this regard is deafening.
F
[21] In our judgment, if the defendant had really nothing to do with the
account or the trading of the shares by his employer through the account,
which is flushed with an enormous amount of RM2m, the defendant as a
reasonable man would no doubt have at the earliest opportunity raised a
G complaint, protest or query with the plaintiff in relation to the contract notes,
contra statements and letter of demand sent to his home address. He had not
done so. It is now too late in the day to deny liability after the
commencement of the suit, a fortiori, in this appeal. The defendant’s conduct
certainly calls for the application of the doctrine of estoppel.
H
[22] In Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701
(CA), the wife who had helped her husband to trade in shares vide the
husband’s contract with Seremban Securities Sdn Bhd, despite the Mareva
injunction against the husband, by signing all the cheques in her cheque
I book, had her defence and counterclaim struck out. The Court of Appeal
through the judgment of Gopal Sri Ram, held, inter alia, that the wife by her
actings, would have led a reasonable man to believe that she had given her
husband a carte blanche to act on her behalf. His Lordship applied the
doctrine of estoppel which is a flexible doctrine by which courts seek to do
96 Malayan Law Journal [2010] 1 MLJ

essential justice between litigating parties: see Boustead Trading (1985) Sdn A
Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 (FC).

[23] In RHB-Cathay Securities Pte Ltd v Ibrahim Khan & other actions
[1999] 3 SLR 464, the defendants maintained share trading accounts with
the plaintiff ’s dealer. The defendant had traded in their accounts through the B
dealer and incurred substantial contra trading losses. The defendants claimed
that the trades in the accounts were unauthorised and were transacted by the
dealer without their knowledge. The defendants were sent, inter alia,
numerous contract notes and contra statements. The defendants did not
dispute any of these trades until proceedings were commenced against them. C
The plaintiff averred that the defendants had full knowledge of all the trades
and were estopped from denying them. Chan Seng Onn JC of the Singapore
High Court allowed the plaintiff ’s claim, on the grounds, inter alia, that the
defendants’ stunning silence after receiving the contract notes and contra
statements would constitute an estoppel at law which precluded their denial D
of the trades.

CONCLUSION

E
[24] On the foregoing grounds, we are of the unanimous view that the
learned trial judge had arrived at a correct finding of facts and had rightly
applied the law. We therefore dismissed the defendant’s appeal with costs. We
affirmed the entire judgment of the court below. Deposit to the
plaintiff-respondent on account of taxed costs.
F
[25] My learned sister, Heliliah bte Mohd Yusof JCA has read this
judgment in draft and has expressed her concurrence with it. My learned
brother Abdul Malik bin Hj Ishak JCA has also agreed with my judgment in
draft and has further indicated that His Lordship would write a separate G
supporting judgment.

Abdul Malik Ishak JCA:

INTRODUCTION
H

[26] I have read the judgment in draft of my learned brother Low Hop
Bing JCA and I would like to add my own reasons for dismissing this appeal
with costs and thereby affirming the entire judgment of the High Court.
I
[27] For convenience, I shall refer the parties in the same manner as they
were referred to in the High Court. Thus, the appellant by the name of Yoong
Sze Fatt will be referred to as the first defendant. While the respondent by the
name of Pengkalen Securities Sdn Bhd will be referred to as the plaintiff. The
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 97

A second defendant by the name of Dato’ Wong Yeon Chai was not a party in
this appeal.

TO THE HEART OF THE MATTER

B [28] Essentially the plaintiff ’s claim was for the sum of RM2,927,621.70
calculated as at 28 February 1999 being contra losses and accrued interest
that arose from share trading activities conducted by or on behalf of the first
defendant by way of an individual account No 273077 (‘trading account’)
that was opened by the second defendant in favour of the first defendant.
C
[29] The plaintiff as a stockbroking company and as a member of the Kuala
Lumpur Stock Exchange carried on the business of stockbroking. The first
defendant was the client of the plaintiff and had a trading account with the
D plaintiff.

[30] The first defendant had placed in his trading account a sum of RM2m
so as to enable him to trade in shares and securities. It was this sum of RM2m
that formed the counterclaim of the first defendant.
E
[31] The plaintiff succeeded in establishing its entitlement to its claim by
proving the following set of facts:
(a) that the trading account was opened by the first defendant upon the
F terms as set out in the individual account opening form (‘agreement’);
(b) that trades were conducted on the trading account of the first defendant
which had resulted in losses; and
(c) that the first defendant stood liable for the losses incurred on his trading
G account by virtue of those terms as set out in the agreement as well as
his knowledge and consent pertaining to the trades conducted on his
trading account.

[32] The terms and conditions relating to the trading account were binding
H on the first defendant because he agreed to be bound by it (Chai Then Song
v Malayan United Finance Bhd [1993] MLJU 128; [1993] 2 CLJ 640; and
Sarawak Securities Sdn Bhd v Andy Chan Chiaw Guan; Fabian Eh Ng (third
party) [2000] 7 CLJ 364). Inter alia, the material terms and conditions that
have been agreed to by the first defendant upon signing the agreement may
I be stated as follows (see p 256 of the appeal record):
(a) by cl 6 of the agreement, the first defendant undertook to make
immediate payment for delivery of securities purchased on his behalf;
(b) by cl 9 of the agreement, the first defendant authorised the plaintiff to
98 Malayan Law Journal [2010] 1 MLJ

sell out or buy in securities as may be required to clear the first A

defendant’s position and, once again, the first defendant undertook to
indemnify the plaintiff against all losses; and
(c) by cl 11 of the agreement, the first defendant agreed to pay all charges
and interest rates imposed by the plaintiff at the plaintiff ’s discretion. B

[33] Evidence was led to show that transactions were conducted on the
trading account which led to an overall loss on the said account. This fact was
established through the evidence of Chua Yew Leong (‘PW1’) and the
contract notes that were tendered showed that trades were indeed conducted. C
It must be borne in mind that this piece of evidence went unchallenged
because there was no cross-examination of Chua Yew Leong (‘PW1’) and,
consequently, it must be taken to be admitted by the first defendant
(Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 at p 400).
D
[34] The first defendant’s answer to the plaintiff ’s claim was rather simple.
That he was not the one who instructed those trades that resulted in the losses
and that the second defendant, who was not a party in this appeal, was said
not to have been authorised by the first defendant to trade on his (first
defendant’s) behalf. E

[35] Unfortunately, the first defendant elected not to testify and neither has
he led any evidence to support his wild assertions.

[36] There was evidence emanating from Leong Bik Ngan (‘PW2’) to show F
that the first defendant knew or ought to have known that his trading
account was being traded upon. That evidence would be as follows:
(a) the contract notes and the contra statements were sent to the first
defendant’s home address; G
(b) the first defendant remained silent and did not complain to the plaintiff
that his trading account was being utilised for trades or that the contract
notes which were sent to him were not his transaction; and
(c) the letter of demand dated 28 November 1997 was sent to the first H
defendant at his home address, yet the first defendant did not contact
the plaintiff to dispute the plaintiff ’s letter of demand.

[37] Having failed to protest to the transactions or usage of his trading

account, the first defendant must now be estopped from denying the losses I
arising from the trades conducted on his trading account. According to the
case of Peyman v Lanjani & Ors [1985] 1 Ch 457; [1984] 3 All ER 703 (CA),
a party will not be held to be estopped unless his conduct is unequivocal.
Thus, in Herman v Royal Exchange Shipping Co and Patton, Jr & Co (1884)
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 99

A C & E 413, the court held that after accepting freight on goods shipped
under bills of lading in their printed forms, certain persons were estopped
from saying that the ship was not theirs, that the master was not their agent
and that the contract was not with them. In Gwyther v Boslymon Quarries Ltd
[1950] 2 KB 59; [1950] 1 All ER 384, a person entitled to payments from
B which the payer had wrongfully deducted tax, without objection from the
payee was estopped from demanding payment of the amount of tax
wrongfully deducted for which the payer had accounted to the Inland
Revenue. In Thomas v Brown (1875–76) 1 QBD 714 at p 722, a party was
estopped by conduct when investigating title from denying the existence of
C the contract. In Else v Barnard (1860) 28 Beav 228, a purchaser was estopped
from objecting that the sale was not by auction. InWright v John Bagnall &
Sons Ltd [1900] 2 QB 240 (CA) an employer who admitted statutory liability
to pay compensation was estopped from raising the defence that the claim
was not brought within the prescribed time. In Burgoyne & Co Ld and PB
D Burgoyne v AH Godfree & Co (1904) 22 RPC 168 (CA), the conduct of a
shipper in selling wine branded with his name prevented him from
complaining of the act of a purchaser in selling it as the shipper’s wine. In
Jackson v Knutsford Urban District Council [1914] 2 Ch 686 at p 696, after
having entered into a bargain by which they agreed not to object to part of
E a building being treated as an obstruction, the plaintiffs were estopped from
alleging that no part of the building was an obstructive building. In Yorkshire
Insurance Company Ltd & Ors v Craine [1922] 2 AC 541 (PC), insurers,
taking possession under a salvage clause in a fire insurance policy, were
estopped from relying on non-fulfilment of the requirements of an
F independent condition as to delivery of particulars of the claim. In Dunn v
Shanks [1932] NI 66 (CA), the former owner of a business who had omitted
to give notice of the transfer of the business and continued to attend to it was
estopped from denying that he was the owner. In Hopgood v Brown [1955] 1
All ER 550 at p 559; [1955] 1 WLR 213 at p 223 (CA), the successor in title
G of a landowner who permitted an adjoining owner to encroach over a
boundary with a permanent erection was estopped from claiming damages in
respect of such encroachment.

[38] The law journals are replete with authorities on estoppel by conduct.
H It must be emphasised that parties to litigation who have continued the
proceedings with knowledge of an irregularity of which they might have
availed themselves are definitely estopped from afterwards setting it up
(Oakland Metal Co Ltd v D Benaim & Co Ltd [1953] 2 QB 261; [1953] 2
All ER 650; Toronto Railway Co v Corp of the City of Toronto [1904] AC 809
I at p 815 (PC); Thomas Tyerman v Sarah Smith (1856) 6 El & Bl 719;
Fortunatus Edmund Andrews v John Elliott (1855) 5 El & Bl 502, affirmed in
(1856) 6 E & B 338, Ex Ch; Shrager v Basil Dighton Ltd & Ors [1924] 1 KB
274 (CA); and Oakland Metal Co Ltd v D Benaim & Co Ltd [1953] 2 QB
261; [1953] 2 All ER 650).
100 Malayan Law Journal [2010] 1 MLJ

[39] Now, with the failure of the first defendant to testify or to lead any A
evidence, the probability of the case falls in favour of the plaintiff. The first
defendant had either:
(a) instructed the trades; or
(b) had given authority to the second defendant to trade on his behalf; or B

(c) willingly consented to his trading account to be utilised by the second

defendant; or
(d) did not monitor his trading account and merely disputed the contract
C
notes and the contra statements that were sent to him.

[40] It must be borne in mind that the contract notes and the contra
statements which were produced before the High Court were not challenged
nor disputed by the first defendant. That being the case, it would be D
appropriate to hold that the first defendant had in fact accepted the losses
incurred on the trading account in its entirety (Sivalingam a/l Periasamy v
Periasamy & Anor).

[41] Having considered the arguments of counsel on both sides and the E
authorities cited by them, 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 F
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 G
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 H
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.
I
[42] I shall now refer to the case of Benham Ltd v Kythira Investments Ltd
& Anor [2003] EWCA Civ 1794; [2004] CP Rep 17 (CA) (Civ Div). The
facts may be stated as follows. A property company (D) retained estate agents
(C). C summarily dismissed one of their senior employees (X) on the ground
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 101

A that he took a secret profit on a particular transaction involving D. C brought

a claim against D for commission for that transaction. D denied C’s principal
allegations. C’s claim was weakened by the facts that (i) no agency agreement
in writing for the transaction existed, and (ii) for obvious reasons, C were
unable to call X as a witness. At the close of C’s evidence, D submitted that
B there was no case to answer. The judge ruled that (a) this was an exceptional
case in which it was appropriate to rule on the submission without putting
D to elect not to call evidence, and (b) the judge acceded to D’s submission
and (c) consequently, dismissed C’s claim with costs.
C
[43] The Court of Appeal allowed C’s claim. In answering the question of
in what exceptional circumstances may or should a judge consider a
submission of no case without putting the defendant to his election? The
Court of Appeal held (a) rarely, if ever, should a judge trying a civil action
D entertain a defendant’s submission of no case to answer without requiring the
defendant to elect not to call evidence, and (b) this was not an exceptional
case because the judge was wrong to conclude that nothing in D’s evidence
would affect the view taken of C’s case because the judge should have
recognised that were their submissions were to fail, then D might (i) call
E evidence that would prove helpful to C’s case, or (ii) fail to call witnesses who
might be expected to have material evidence thereby enabling the court to
draw inferences in C’s favour (Wisniewski v Central Manchester Health
Authority [1998] Lloyd’s Rep Med 223 (CA)).

F [44] In dealing with a submission of no case to answer, what test should the
judge apply? The Court of Appeal in the Benham’s case said that the test was
whether or not on the evidence adduced by the plaintiff, the plaintiff has a
real prospect of success. However, the Court of Appeal conceded that what is
meant by that test is not as clear as it might be. Simon Brown LJ explained
G that where D’s witnesses clearly have material evidence to give on the critical
issue in the action the test of whether C has ‘a real prospect of success’ may
be reformulated as ‘have the claimants (plaintiffs) advanced a prima facie case
to answer, a scintilla of evidence in support of the inference for which they
contend, sufficient to call for an explanation from the defendant?’ His
H Lordship added that the fact that C’s case may be a weak case and unlikely
to succeed unless assisted, rather than contradicted, by D’s evidence, or by
adverse inferences to be drawn from D’s not calling any evidence, would not
allow it to be dismissed on a no case submission. The Court of Appeal
concluded that it was apparent that the judge had approached the question
I by asking whether or not C had established their case on a balance of
probabilities and in the circumstances had clearly applied the wrong test.

[45] Back home, on the subject of the submission of no case to answer we

have the classic case of Subry bin Hamid v Husaini bin Tan Sri Ikhwan & Anor
102 Malayan Law Journal [2010] 1 MLJ

[2006] 6 MLJ 229 (CA), which also made reference to the Benham’s case. My A
learned brother Low Hop Bing JCA also referred to Subry bin Hamid in his
well written judgment.

[46] Suffice for me to say that when a submission of no case to answer has
been made and coupled with the submission that no witnesses will be called, B
it gives rise to these unrebuttable implications:
(a) the outcome to the question of whether there is a case to answer would
be that all evidence led by the plaintiff must be presumed to be correct;
and C
(b) so the burden falls on the first defendant to call evidence to rebut the
plaintiff ’s case and the first defendant’s failure to do so in the absence
of reasonable explanation will trigger an adverse inference to be drawn
against the first defendant under s 114(g) of the Evidence Act 1950.
D
[47] As against the plaintiff ’s pleaded case, the first defendant’s pleaded case
was generally one of unsubstantiated denials coupled with a counterclaim for
the refund of the deposit monies to the tune of RM2m. Since the evidence
led by the plaintiff must be presumed to be true, the plaintiff has therefore
satisfied the requirements under s 101 of the Evidence Act 1950. It therefore E
falls on the first defendant to prove his defence under s 101 of the Evidence
Act 1950. The first defendant too has to introduce such evidence as is
necessary to discharge that burden under ss 102 and 103 of the Evidence Act
1950. As I said earlier, the first defendant chose a perilous course of action
and his failure to call evidence would result in an appropriate adverse F
inference to be drawn against him. Thus, the allegations by the first defendant
that there were other sets of account opening forms were nothing more than
a mere fabrication. And it must be held that the first defendant had consented
to or otherwise permitted the second defendant to utilise his trading account
to trade in securities which ultimately result in contra losses which are now G
the subject matter of the plaintiff ’s claim. It must also be held that the
relevant documents marked as exhs ‘P1’, ‘P2’ and ‘P18’ were indeed executed
by the first defendant. And that the relevant contract notes, contra statements
and statements of accounts were indeed sent by the plaintiff and received by
the first defendant and no one else. H

[48] It must be emphasised that the first defendant produced a purported

handwriting expert’s report and tendered peculiarly through the first
defendant’s trial counsel to prove the first defendant’s contention that he did I
not sign the account opening form.
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 103

A [49] Anuar CJ Malaya in Dr Shanmuganathan v Periasamy s/o Sithambaram

Pillai [1997] 3 MLJ 61 at p 85 referred to the Supreme Court of India’s
decision in Murarilal v State of MP AIR 1980 SC 531 at p 534 which carried
the following passages:

B But, the hazard in accepting the opinion of any expert, handwriting expert or any
other kind of expert, is not because experts, in general, are unreliable witnesses ––
the equality of credibility or incredibility being one which an expert shares with all
other witnesses –– but because all human judgment is fallible and an expert may
go wrong because of some defect of observation, some error of premises or honest
mistake of conclusion. The more developed and the more perfect a science, the less
C the chance of an incorrect opinion and the converse if the science is less developed
and imperfect. The science of identification of fingerprints has attained near
perfection and the risk of an incorrect opinion is practically non-existent. On the
other hand, the science of identification of handwriting is not nearly so perfect and
the risk is, therefore, higher.
D
[50] There is an article entitled Sources of Error in Forensic Handwriting
Evaluation reported in the Journal of Forensic Sciences, Vol 40, No 1, January
1995 at p 78 which carries the following germane write ups:
E
Handwriting examination is generally considered, by friends and critics alike, to be
more subjective than the other crime laboratory specialties in that it relies more on
experienced judgment than on quantifiable data. If we accept this premise, it
would follow that it should be all the more important to adhere to agreed on
principles so as to preserve the greatest degree of objectivity and, thereby, accuracy.
F
Three particular problem areas seem to cause most of the errors in handwriting
cases, whether they involve signatures, handwritten texts, or handprinting. They
are (1) failure to properly evaluate differences; (2) failure to detect significant
movement characteristics; and (3) the use of self-serving exemplars.
G
[51] In so far as handwriting is concerned, even lay witnesses who are
familiar with the writing of the person in question may give evidence as to the
identity of the writer (Alfred Ernest Derrick (1910) 5 Cr App R 162). Of
course, evidence relating to handwriting by experts are most welcome
H although the form in which they give evidence will be different. According to
the case of The Queen v Silverlock [1894] 2 QB 766 at p 771:

... the witness who is called upon to give evidence founded on a comparison of
handwritings must be peritus; he must be skilled in doing so; but we cannot say
I that he must have become peritus in the way of his business or in any definite way.
The question is, is he peritus? Is he skilled? Has he an adequate knowledge?

[52] It is the duty of the court to satisfy itself that the expert is indeed an
expert specially qualified, armed with the necessary skill and experience and
104 Malayan Law Journal [2010] 1 MLJ

has a vast knowledge in the field of enquiry carried out by him. The court A
would also want to know the duration of time the expert has engaged himself
in his field of expertise and whether that is his only occupation and in which
court he has testified. Generally, the court is interested to know the expert’s
background. The purpose is simply to show the competency of the expert. It
is for these reasons that the expert will be asked about his general and B
technical education together with the special studies which he may have
undertaken.

[53] Competency of the expert may be shown by drawing attention to the

ways in which the expert has been recognised as an authority in his field. C
Thus, the expert may allude to the schools, associations and seminars where
he has lectured and whether he has been bestowed with special honours or
degrees by prominent universities. And publication of writings in recognised
journals is also good evidence of the extent of the expert’s competency. In
short, the expert must be a qualified person. D

[54] Lord Wilberforce in Whitehouse v Jordan & Anor [1981] 1 WLR 246
at pp 256H–257A aptly said:
While some degree of consultation between experts and legal advisers is entirely E
proper, it is necessary that expert evidence presented to the court should be, and
should be seen to be, the independent product of the expert, uninfluenced as to
form or content by the exigencies of litigation.

F
[55] Section 51 of the Evidence Act 1950 states that whenever the opinion
of any living person is relevant, the grounds on which his opinion is based are
also relevant. The courts have said, time and again, that a bare expression of
opinion has no evidentiary value at all (Sim Ah Song & Anor v Rex [1951]
MLJ 150; Lai Yong Koon v Public Prosecutor [1962] MLJ 327; and Public
G
Prosecutor v Yiau Swee Tung [1999] 3 MLJ 353). Brown, acting CJ in Sim Ah
Song & Anor v Rex at p 151 aptly said:
The business of an expert witness is to draw upon the store of his knowledge and
experience in order to explain some matter which his experience should qualify
him to understand. He is quite entitled to express his opinion, which indeed is the H
natural corollary of his explanation. But a bare expression of his opinion has no
evidential value at all. Unless he gives an explanation which supplies the
understanding of the subject which the court lacks, the court is in no better
position than it was before to determine the question which it is its duty to
determine, and if the court acts upon a bare expression of the expert’s opinion the I
determination of the question becomes that of the expert and not of the court.

[56] So, the court must be vigilant and must satisfy itself that the expert is
indeed an expert specially qualified. Here, the expert report tendered by the
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 105

A first defendant’s trial counsel failed to comply with the simple preliminary
requirements of establishing the expert’s qualifications and for this reason, it
should be disregarded.

[57] To compound the matter further, the expert had passed away prior to
B the trial of the matter and his death had affected the admissibility of the
expert’s report sought to be relied upon by the first defendant.

[58] As an opinion evidence, the expert must come to court to give

evidence. Section 60(1)(d) of the Evidence Act 1950 states that direct oral
C evidence must be given in respect of the opinion of any person. Thus, in the
absence of such direct evidence from the expert his report cannot in law be
admissible as evidence. The lack of opportunity to cross-examine the expert
on his report is another ground to disregard the expert’s report.
D
[59] The sample or specimen signatures mentioned in the expert report are
certainly incapable of independent verification. These sample or specimen
signatures have not been admitted or proved to the satisfaction of the court
within meaning of s 73 of the Evidence Act 1950.
E
[60] The expert report suggests that the sample or specimen signatures
relied upon by the expert were provided by the first defendant’s solicitors and
this would squarely fall into the category of self-serving exemplars.

F [61] Given all these shortcomings, the High Court was not in a position to
hold that the sample or specimen signatures relied upon by the expert were in
fact that of the first defendant nor was the High Court in a position to satisfy
itself, as required by law, and based on observation that it was safe to accept
the opinion of the expert (Dr Shanmuganathan v Periasamy s/o Sithambaram
G Pillai). The High Court had correctly disregarded the expert report.

[62] The allegation that the first defendant’s signature on the agreement
was forged was not considered by the High Court. It must be borne in mind
that the allegation of forgery was not pleaded in the first defendant’s defence.
H This allegation was merely put to the plaintiff ’s witness (see pp 43 and 97 of
the appeal record). A perusal of the first defendant’s defence especially at para
4 would show that the first defendant admitted opening the subject account
but disputed utilising or authorising trades on the said account. Be that as it
may, even if the first defendant’s allegation of forgery were to be accepted, the
I first defendant still bears the burden of proving the same (see EON Bank Bhd
v Hotel Flamingo and another case [2005] 1 MLJ 712 at p 722, the decision
of my learned brother Low Hop Bing J (now JCA)). As demonstrated, the
only evidence tendered by the first defendant to prove the alleged forgery by
way of an expert report was inadmissible.
106 Malayan Law Journal [2010] 1 MLJ

[63] The first defendant’s counterclaim for the sum of RM2m was rightly A
rejected by the High Court. Since the first defendant led no positive evidence
in support of his counterclaim, he cannot deny his earlier sworn statement
made during interrogatories that he has no knowledge of the sum of RM2m
(see pp 26 and 27 of the appeal record).
B
[64] Finally, I will now say something about the finding of facts by the
High Court which has been alluded to by my learned brother Low Hop Bing
JCA. An appellate court will not readily interfere with the finding of facts
arrived at by the trial court. It is trite law that the primary task of evaluation C
of the evidence and the function of determining where the truth lies, on a
balance of probabilities, is entrusted by law to the trial court. In this appeal
to the High Court. And the appellant court is under a duty to intervene with
the finding of facts by the trial court where the trial court has so
fundamentally misdirected itself that a reasonable man may safely say that no D
reasonable court which had properly directed itself and asked the right
questions would have arrived at the same conclusion (Renal Link (KL) Sdn
Bhd v Dato’ Dr Harnam Singh [1997] 2 MLJ 373 at p 379; [1997] 3 AMR
2430 (CA) at p 2440D–E; Heller Factoring Sdn Bhd (previously known as
Matang Factoring Sdn Bhd) v Metalco Industries (M) Sdn Bhd [1995] 2 MLJ E
153; [1995] 2 AMR 1353 (CA) at pp 171H–173A; Associated Tractors Sdn
Bhd v Woo Sai Wa [1997] 5 MLJ 441 at p 450F–H; and Setapak Heights
Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 3 MLJ 131; [2006] 3
AMR 410; [2006] 2 CLJ 337 (CA) at p 417, at para 18.
F
[65] The case of Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon &
Ors and other appeals [2003] 1 MLJ 567; [2003] 2 AMR 6; [2003] 1 CLJ 585
(CA), sets out certain categories in which appellate interference may be
warranted. It would be ideal to set out, briefly, instances where the finding of
facts by the trial court was reversed by the appellate court: G
(a) non-consideration or insufficient or no judicial appreciation of material
evidence constitutes insufficient judicial appreciation of relevant evidence
(Asean Security Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 CLJ
1 (FC)); H
(b) where the audio visual advantage reserved to a trial judge had been
missed or that the findings made by the trial judge do not accord well
with the probabilities of the case (Len Min Kong v United Malayan
Banking Corp Bhd and another appeal [1998] 2 MLJ 478 at p 486C–D;
[1998] 3 AMR 2641 at p 2655; [1998] 2 CLJ 879 (CA); Maju Holdings I
Sdn Bhd v Fortune Wealth (H-K) Ltd and other appeals [2004] 4 MLJ
105; [2004] 6 AMR 319; [2004] 4 CLJ 282 (CA); and Gan Yook Chin
(P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1;
[2004] 6 AMR 781; [2004] 4 CLJ 309 (FC));
 Yoong Sze Fatt v Pengkalen Securities Sdn Bhd
[2010] 1 MLJ (Abdul Malik Ishak JCA) 107

A (c) where the facts were misapprehended and the wrong principles of law
were blindly applied by the trial judge (Lim Chor Ching & Anor v Idris
bin Abdul Karim and anor appeal [1998] 3 AMR 3182; [1998] 3 CLJ
Supp 145 at p 156 a–g);

B
(d) where there was a failure to assess the evidence with the documents at
hand and view it against the probabilities of the case (Loo Hon Kong v
Loo Kim Lim @ Loo Kim Leong [2004] 4 AMR 591; [2004] 4 CLJ 1
(CA));
(e) where there was a failure to consider the relevancy of contemporaneous
C documents (Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George
Fernandez & Anor [1989] 1 MLJ 35 (SC) at p 37); and
(f ) where the finding of facts was contrary to the documentary evidence
(Associated Tractors Sdn Bhd v Woo Sai Wa at p 451C).
D
[66] In the present appeal, I see no reason to intervene or interfere with the
finding of facts arrived at by the High Court.

[67] I am in total agreement with the views expressed by my learned

E brother Low Hop Bing JCA. For all these reasons, I now make those orders
that were made by His Lordship.

[68] I too have shown this supporting judgment in draft to my learned

brother Low Hop Bing JCA and His Lordship has kindly agreed with it.
F
Appeal dismissed with costs.

Reported by Kanesh Sundrum

G