[2001] 6 MLRH Approfit Sdn Bhd v.

Kent Sing Construction Sdn Bhd & Ors 749

APPROFIT SDN BHD

v.
KENT SING CONSTRUCTION SDN BHD & ORS

High Court Malaya, Sandakan

Richard Malanjum J
[Suit No: S22-49 Of 1998]
4 October 2001

JUDGMENT
A. Introduction:-
1. In this action the Plaintiffs are claiming payment for the price of goods allegedly
sold and delivered to the Defendants. The hearing of this case was fixed after
learned counsel for the parties indicated to the Court that they were ready for the
trial. As such, any comments by them made subsequently in that they were
hard-pressed for time contradicted their earlier stand.
2. Most of the problems during the trial were centered on the admissibility of
several documents of the Plaintiffs. These could have been avoided if counsel had
sat down together to settle the issue. Unfortunately despite their seniority at the
Bar they could not even agree to any documents or facts. That resulted in several
arguments on the admissibility of the documents tendered. As such in this
Judgment I have to deal first on the admissibility of several documents in which
their admissibility were objected to by learned counsel for the Defendants. There
was also a closing remark by learned counsel for the Defendants indicating that he
would check whether or not the case of Tempil Perkakas Sdn. Bhd. v. Foo Sex Hong
[1996] 4 MLRH 716 ; [1996] 5 MLJ 543, a case that was heavily relied on the issue
of admissibility of documents, had been overturned and to inform the Court and all
parties. It has been confirmed that the appeal did not materialise and hence the
decision in that case stands.
B. The Plaintiffs' Claim:-
The Plaintiffs initially seek for the following relief, namely:-
"(1) the said sum of RM710,339.80;
(2) agreed interest on the principal sum of RM662,676.20 at the rate of 1.5%
per month from the 1st July 1998 to the date of full payment;
(3) costs; and
(4) such other relief or remedy as this Honourable Court may deem fit."
750 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

3. And it is the contention of learned counsel for the Plaintiffs that the substantive
evidence that are being relied upon to succeed in this case are as follows:-
(a) the invoices;
(b) the delivery orders;
(c) the implied admission as per Exh. P5.

C. The Defence:-
4. Basically the Defendants are denying the claim of the Plaintiffs and averring that
the claim is premature.
5. It is also the contention of learned counsel for the Defendants that the Plaintiffs
have failed to prove their case as required by the law.
6. In respect of the claim against the 2nd Defendant it is contended that he never
signed the alleged Letter of Guarantee and the signature therein is a forgery.
D. The Issues:-
7. The parties hereto have submitted that the issues to be determined in this action
are thus:-
(i) the denial by the Defendants that they owed the sum claimed as at
30.06.1998;
(ii) whether the action of the Plaintiffs is premature;
(iii) whether the interest charged at the rate of 1.5% per month is justified;
(iv) whether the 2nd and 3rd Defendants executed the Letter of Guarantee;
and
(v) whether the subsequent dating and the stamping of the Letter of Guarantee
resulted in the said document being tainted with illegality.

8. However, before I proceed to consider each of the issues I should first make my
ruling on the admissibility of the documents that were attempted to be tendered as
exhibits during the trial but were objected to by learned counsel for the Defendants.
They were marked for identification at that stage pending the submissions of
learned counsel. That has been done and thus I should make the necessary ruling
first as it will have a bearing on the determination of the issues herein. There is no
agreed bundle of documents as such. But the Plaintiffs' bundle of documents from
which the disputed documents are found has been marked as Enclosure 95. It is
also to be noted that any reference to "Defendants" in this Judgment means the 1st
Defendants unless stated otherwise.
E. Admissibility:-
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 751

9. The documents of which the admissibility is objected to are as follows:-

(a) a statement of account prepared by the Plaintiffs identified as ID-7;
(b) letters of demand to the 2nd and 3rd Defendants identified as ID-10 and
ID-11;
(c) carbon copy of unsigned invoice prepared by the Plaintiffs identified as ID-
15;
(d) carbon copies of invoices prepared by the Plaintiffs identified as ID-16 and
ID-17;
(e) carbon copies of delivery orders identified as ID-30 and ID-31 to ID-104;
(f) carbon copies of delivery orders identified as ID-105 to ID-108;
(g) a debit note SDN 26/6/98 identified as ID-169; and
(h) carbon copies of delivery orders identified as ID-171 to ID-175;

(i) Document (a):-

10. It is the contention of learned counsel for the Defendants that this statement of
account (ID-7) should not be admitted as an exhibit as it was prepared by the
assistant of PW.9 who was not called as a witness. In addition learned counsel says
that it is not the original copy.
11. In reply learned counsel for the Plaintiffs submits that the purpose of tendering
the document is only to show to the Court how the sum claimed is derived and not
to prove the claim. Section 73A (5) of the Evidence Act 1950 (the Act) is cited. It is
also contended that due to time constraint it was not possible to call each and every
witness.
12. Having considered the arguments advanced by the respective counsel I am of
the view that section 73A (5) of the Act should not be invoked as the Plaintiffs
have failed to adduced any evidence to satisfy this Court that the pre-requisite of
that section has been met.
13. Further, the Plaintiffs have indicated the purpose of tendering it. Hence I do
not think it has much value to their case. As such I refuse to admit ID-7 as an
exhibit.
(ii) Documents (b):-
14. These are the copies of the letters of demand. It is the stand of learned counsel
for the Defendants that since the maker of the same was not called as a witness
they should not therefore be admitted as exhibits.
15. Learned counsel for the Plaintiffs submits that in the defence filed it is not
disputed that there was demand made. Further, he says that the 2nd Defendant did
752 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

refer to ID-10 in his witness's statement. Hence, there is an admission of the

existence of such document. As such it is the stand of learned counsel for the
Plaintiffs that there is no necessity to have these documents admitted as exhibits.
16. Again in view of the approach taken by learned counsel for the Plaintiffs I am
of the view that there was no serious attempt to have the documents (ID-10 and
ID-11) admitted. In any event I am inclined to agree that the existence of these
documents has not been challenged and hence I should admit and mark them as
Exh. P.10 and Exh. P.11 respectively.
(iii) Documents (c):-
17. This document (ID-15) is unsigned. Learned counsel for the Defendants
submits that no evidence was tendered to show that the original was sent to any
party.
18. Learned counsel for the Plaintiffs submits that it should be admitted on the
same basis that the invoices comprised in P.3 have been admitted in evidence in
Court'. It is further submitted that the document is a computer generated and thus
it should be taken as primary document pursuant to section 62 of the Act. Section
90A (1) of the Act has also been referred to as the basis for the admission of the
said document. As such it is submitted that the absence of signature in the said
document should not render it inadmissible. Learned counsel refers to the case of
Gnanasegaran a/l Pararajasingam v. Public Prosecutor [1995] 2 MLRA 555; [1997] 4
CLJ 6 ; [1997] 3 MLJ 1.
19. On perusal of the said document I am of the view that it may have been printed
using a computer. But I do not think it is in the same category as a computer
generated document as ordinarily understood. ID-15 is nothing but an invoice that
can also be printed by other means. It differs from the document discussed in
Gnanasegaran's case in that there it was a statement of accounts. Obviously the
contents were generated from the data stored in the computer and that the print
was produced in the ordinary use of the said computer. That in my view is the
intention of section 90A of the Act. Otherwise it could mean that any document
would be admitted regardless of it authenticity or contents if it could be shown that
it was printed by a computer. In other words, a document printed by a computer
vide a word-processing software would be included. With respect, I do not think
section 90A should be extended that far.
20. Hence in the case of ID-15 there is no indication of who issued it due to the
absence of any signature therein. And although it was asserted that the document
was prepared by PW.5 she was never asked to explain for the absence of her
signature in the said document. Thus I refuse to admit ID-15 as an exhibit in this
case.
(iv) Document (d):-
21. The difference between these two documents and that of ID-15 is that they are
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 753

signed whereas the latter is not. ID-16 was signed by PW.9 - Thien Suk Fong @
Marie Thien while ID-17 was signed but the maker was not called despite the
earlier indication by learned counsel for the Plaintiffs to do so. In so far as ID-16 is
concerned I think the maker has been identified and hence I should admit it as an
exhibit. I therefore admit and mark it as 'Exh. P.16'.
22. As for ID-17 I do not think I should admit it as the maker and signatory was
not called as a witness.
(v) Document (e):-
23. These are the carbon copies of the delivery orders issued by the owner and the
son of the transportation company engaged by the Plaintiffs to do the delivery of
the goods to the Defendants. ID-30 to ID-104 with the exception of two documents
amongst them were signed by PW.6 - Tong Leung Kwong the owner of the
transportation company. This witness said that four copies of the delivery orders
were prepared for each delivery and the originals were given to the Defendants
whose receipts of the goods were indicated by the stamp of the Defendants affixed
on the respective delivery orders. Learned counsel for the Defendants submits that
these documents were only carbon copies with no evidence to show that the
originals were with the Defendants. And he also argues that the contents are
hearsay evidence as PW.6 was not the person who tallied the quantity nor was he
present when the goods were allegedly delivered.
24. For the Plaintiffs it is submitted that the documents were made by uniform
process and thus each of the copy should be taken as original.
25. Having considered the evidence and the arguments I am inclined to agree that
these documents were indeed made by one uniform process. Thus they should be
taken as primary evidence since the requirements of section 62 of the Act have
been satisfied. Further there was no dispute that the signatures found on them were
that of PW.6. In addition the stamp of the Defendants are on them. Hence I do not
think the authenticity should be doubted. As for the contents that should go to the
weight and to be considered in the light of the other evidence adduced.
26. Accordingly I admit these documents, namely, ID-30 to ID-104 and mark
them as Exh. P.30 to Exh. P.104 respectively except ID-62 and ID-page 228 of
Enclosure 95. For these two documents PW.6 said that they were signed by his
worker, a Filipino who was not called as a witness. Meanwhile I do not think the
Plaintiffs have met the required condition of section 32 (b) of the Act in respect of
those documents. Thus I should not admit them as exhibits.
(vi) Documents (f):-
27. These are ID-105 to ID-108. They are also carbon copies of delivery orders
signed by PW.7 - Tong Tshun Vun, the son of PW.6. It was the evidence of PW.7
that he signed the delivery orders when his father was not available.
28. There are also the stamp of the Defendants on these documents. As such I
754 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

should accept them as exhibits for the same reason that I accepted the documents
signed by PW.6. I therefore mark these as Exh. P.105 to Exh. P.108 respectively.
(vii) Document (g):-
29. This is a carbon copy of a debit note SDN 26/6/98 signed by PW.9 although it
was prepared by her assistant. I do not think it should be doubted that PW.9 was
the maker of ID-169. And there was also hardly any challenge that this document
was made by one uniform process and hence section 62 of the Act is relevant.
Learned counsel for the Defendants submits that there is no evidence that the same
was ever received by his client.
That I think should not be a basis to refuse its admission as an exhibit.
30. Accordingly I admit ID-169 and mark it as Exh. P.169.
(viii) Documents (h):-
31. These are also carbon copies of delivery orders tendered through DW.1 - Choy
Kong Keong.
32. Learned counsel for the Defendants submits that they should have been
tendered through the maker.
33. Learned counsel for the Plaintiffs replies that there was no necessity to call the
maker as DW.1 admitted the present of the stamp of the Defendants on them.
34. Having perused these documents and having considered the contentions of
respective counsel I am of the view that since the stamp of the Defendants are
found on these documents as admitted by DW.1 I have no reason not to admit
them as exhibits. I do not think it is necessary to call the maker in this case as
DW.1 had identified the stamp of the Defendants on them. During
cross-examination he also identified on the documents the signature of a staff of
the Defendants. And although he seemed to have waived during the
re-examination I think his doing so is understandable. As such I should admit
these documents and mark them as Exh. P.171 to Exh. P.175 respectively.
35. Learned counsel for the Defendants has also challenged the admission of Exh.
P.3, P.18 to P.29 and P.109 to P.168.
36. Exh. P.3 consists of several documents, namely copies of invoices tendered
through PW.1 - Andrew Hiew Hien Vui. Only copies of the documents were
produced and there was no objection from learned counsel for the Defendants. But
according to learned counsel for the Defendants no objection was made as he was
made to believe that the copies in the possession of the Plaintiffs were original
copies. But having heard subsequently that the copies were only the duplicates he
sought therefore to have the admission revoked.
37. Learned counsel for the Plaintiffs submits that the documents are computer
generated. He further says that when they were tendered there was no objection
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 755

from the Defendants.

38. On perusal of the Notes of Proceeding I found that there was either a
misleading question posed to the witness PW.1 or that it was a sheer
misunderstanding of the nature of the documents, (see: page 4 - lines 20 to 24 of
the Notes of Proceeding).
39. Notwithstanding such a fact I think the admission of those documents as
exhibits is in order. PW.1 testified that he signed on them. He was in fact the
maker of those documents.
40. And as to the absence of the original copies I would have thought that learned
counsel for the Defendants should have realized that they could not have been with
the Plaintiffs. Otherwise the claim would have been a non-starter.
41. I refuse to accede to the request by learned counsel for the Defendants that the
admission of Exh. P.3 should be revoked.
42. In respect of Exh. P.18 to 29 and Exh. P.109 to 168 I have given my reasons
for admitting them and as such that order should stay.
F. The Issues:-
(i) The denial by the Defendants of the sum claimed:-
43. The thrust of the Defendants' assertion on this issue is that the Plaintiffs have
failed to prove their case. Learned counsel for the Defendants has doubted the
quality of the evidence which are represented by the documents such as the
invoices and delivery orders tendered to prove the claim.
44. It is also his submission that the Plaintiffs should have proceeded to adduce
evidence for each and every purchase order. According to him there was no clear
proof that the originals of the invoices were sent to and received by the Defendants
as no witness was called to establish such a fact.
45. According to learned counsel the delivery orders do not indicate that the goods
had been actually received by the Defendants as none of the lorry drivers was
called as a witness.
46. In respect of Exh. P.5 it is contended that it was only in relation to one invoice
at that point in time. Hence it is submitted that there was no admission as such.
47. It is also argued that the limit of the credit facility of the Defendants with the
Plaintiffs was RM100,000.00. And as there was a payment of RM73,830.40 in
May 1998 the Defendants had not exceeded the limit and the credit period of 60
days.
48. It is also asserted that since the goods were not received from the Plaintiffs that
resulted in the Defendants having to order goods from other suppliers.
49. Learned counsel for the Plaintiffs in reply submits that the claim of the
756 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

Plaintiffs have been established by the following documents, namely:-

(i) the invoices tendered and marked as exhibits;
(ii) the delivery orders tendered and marked as exhibits; and
(iii) the implied admission - Exh. P.5 dated 23rd June 1998.

50. As for the delivery of the invoices learned counsel for the Plaintiffs says that
the testimony of PW.1 showed that he normally sent them by hand to the office of
the Defendants.
51. Strong emphasis is also put on Exh. P.5. It is the contention of learned counsel
for the Plaintiffs that that document came about in response to the three letters
issued by the Plaintiffs to the Defendants pertaining to the outstanding accounts.
According to learned counsel only one item was disputed which was subsequently
rectified by the Plaintiffs.
52. Now, the claim of the Plaintiffs in this action is for the balance of the price of
goods, substantially building materials, sold and delivered to the Defendants. It is
for the Plaintiffs to prove their claim on the balance of probabilities. And it is also
not in dispute that in respect of the present claim the Defendants obtained credit
facilities from the Plaintiffs since June 1997.
53. From the overall tenor of the defence of the Defendants it is not expressly
denied that there were goods sold and delivered to them. Rather it is the stand of
the Defendants that the Plaintiffs should prove their case. And indeed the
Defendants expect the Plaintiffs to prove each and every transactions before any
liability could be attributed to them.
54. Having considered the evidence adduced by the Plaintiffs including the
testimonies and documents such as the invoices and delivery orders that are now
admitted as exhibits, I am satisfied on the balance of probabilities that indeed the
Defendants are indebted to the Plaintiffs for the price of goods sold and delivered
to them at various times. It is only the amount that I should determine. I have
admitted those documents on the grounds as stated hereinabove. And in coming to
my conclusion as to the liability of the Defendants I have taken into account
several factors including the weight that I should place on the relevant exhibits in
this case. In summary my reasons are as follows:
55. The Plaintiffs called several witnesses, inter alia , PW.1, PW.2, PW.5, PW.6,
PW.7 and PW.9 who testified on either the preparation of the documents or the
delivery of the same. And although they were cross-examined on issues such as on
the contents and the delivery of the original copies they maintained their versions.
The Defendants did not adduce any evidence to rebut such testimonies. As such I
believe the versions of these witnesses and I am satisfied on the balance of
probabilities that such must be more probable than not.
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 757

56. It was the evidence of PW.1, the Sale Manager of the Plaintiffs, that he signed
almost all the invoices that were in Enclosure 95. And that it was his responsibility
to deliver the invoices and at times the relevant delivery orders to the office of the
Defendants. There was not much challenge to this account. Of course there was no
document to indicate the receipt of the invoices by the Defendants. However
subsequent conduct of the Defendants such as making proposals, including the
issuance of several post-dated cheques (see the evidence of PW.1) and indeed
issuing a dispute (Exh. P.5) on the balance of the of the sum outstanding should go
to show that the Defendants must have in their possession the invoices that were
referred to by PW.1 and the other witnesses.
57. The evidence of PW.5 was on the preparation and handling of the invoices and
delivery orders in connection with the goods sold to the Defendants also appear to
be intact even after her cross-examination. PW.5 gave the version on the
preparation of invoices, namely, that they were made in triplicate with carbon
papers in between to provide the copies. She also said that she signed on the
delivery orders indicating her issuance of the same.
58. The testimonies of PW.6 and PW.7 relate to the delivery of the goods to the
Defendants. According to PW.6 his company was engaged by the Plaintiffs to
make the deliveries to the Defendants. And he even gave the registration numbers
of the lorries that were involved in the deliveries. PW.6 said that the Plaintiffs
would give them the list of goods to be delivered. From there his company would
know the quantity to be delivered. And this witness also testified that he too
prepared delivery orders on behalf of the Plaintiffs based on the lists of goods that
were given to him by the Plaintiffs. As for the role of PW.7 he assisted PW.6
including the signing of the delivery orders when PW.6 was not available.
59. There was no denial from the Defendants as to the meeting between PW.3 -
Kwan Huang @ Kwan Huang Cheng and one Simon Lay for the Defendants in
May 1998 pertaining to the settlement of the outstanding accounts of the
Defendants with the Plaintiffs. Hence, if indeed there was no truth in any of the
invoices then there was no reason for the Defendants to come to see PW.3. Simon
Lay was never called by the Defendants to dispute the version of PW.3.
60. There was no evidence adduced by the Defendants that they had disputed the
invoices that were sent to them by the Plaintiffs. No doubt it was the implied stand
of the Defendants that they could not be expected to protest when no invoice was
received. However such an approach was defeated by the failure of the Defendants
to rebut that one Simon Lay went to see PW.3 regarding the Defendants' accounts.
If there was no invoice received then there was no reason for the said Simon Lay to
offer proposals for the settlement of the outstanding accounts.
61. Exh. P.5 is also crucial. Learned counsel for the Defendants has tried to
narrow the implication of that document. And he also says that the evidence of
PW.1 on Exh. P.5 is hearsay. On careful reading of the same I am satisfied on the
balance of probabilities that it was issued in response to the three earlier letters of
758 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

the Plaintiffs to the Defendants seeking for confirmation on the sum outstanding.
Exh. P.5 is dated 23rd June 1998. And from the evidence adduced the Plaintiffs
ceased to supply the Defendants in March 1998. Hence, the balance referred
thereto must be the balance of the outstanding accounts computed by the Plaintiffs
at that time, that is, in May and June, 1998. Indeed this attitude adopted by the
Defendants in admitting at first the balance and subsequently retracting throws
doubt to their version of the case. (see: Syarikat Pakar Kayu dan Perniagaan Sdn. Bhd.
v. Maask Sdn. Bhd. [1985] 1 MLRH 599; [1986] CLJ (Rep) 694 .
62. As to the suggestion that the evidence of PW.1 on Exh. P.5 is hearsay, with
respect I think that is quite irrelevant. The point is that there is this document
coming from the Defendants. No attempt was made to deny its existence. And as it
has been admitted as an exhibit without any objection from the learned counsel for
the Defendants any further discussion on it should relate only to the meaning of its
contents and the weight to be given thereto.
63. The Defendants through DW.1 - the 2nd Defendant - took the stand that the
goods ordered from the Plaintiffs were not received. However there was no other
evidence tendered to verify such an allegation. And I cannot wholly believe DW.1
as under cross-examination he agreed that much of the goods required by the
Defendants for their projects came from the Plaintiffs. As such it is more probable
than not that the Plaintiffs did deliver the goods as ordered by the Defendants.
64. There was no reason advanced to doubt the truth of the evidence of PW.6 and
PW.7. And these witnesses had no reason to concoct their evidence as they had no
interest in the matter. In addition to what they said the presence of the stamp of the
Defendants on the delivery orders should confirm what they asserted. It is noted
that the Defendants did not offer any rebuttal or explanation as to the presence of
their stamp on those documents.
65. Accordingly I should accept the contents of those invoices and delivery orders
admitted as exhibits in this trial as well as Exh. P.5 and I am satisfied on the
balance of probabilities that they represent the truth.
66. From the invoices that were tendered as exhibits in this case I have refused
admission to two of them, namely, ID-15 and ID-17. These represent the claim of
RM43,524.00 and RM9,900.00. And for the delivery orders I refused to admit the
delivery orders identified as ID-62 and another ID at page 288 of Enclosure 95.
Incidentally, I found no invoices related to these two delivery orders.
67. Thus from the sum of RM662,676.20 as claimed I should deduct the sums as
stated in the two invoices that were not admitted as exhibits. The sum representing
the balance outstanding should therefore be RM662,676.20 less RM43,524.00 and
RM9,900.00 which gives the balance of RM609,252.20. I am therefore satisfied on
the balance of probabilities that the balance sum of RM609,252.20 from the
original principal amount claimed should be allowed and payable to the Plaintiffs.
68. In coming to my conclusion I have considered the other contentions advanced
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 759

for the Defendants. But I must say that they did not manage to persuade me. I
found them to be nothing but to cloud the real issues at hand. The evidence as to
the steps taken by the Defendants in relation to the claim of the Plaintiffs negated
those arguments. Indeed there was no explanation from the Defendants as to why
there was no reaction to the letters of demand made to the 2nd and 3rd Defendants
although it was the evidence of DW.1 that he did give the letter to one Simon Lay.
(ii) The claim for interest:-
69. It is the contention of the Defendants that the claim for interest at the rate of
1.5% per month on the sum outstanding should not be allowed as there was no
prior agreement to charge such an interest. In respect of Exh. P.1 - the application
for credit facilities by the 1st Defendants it is argued that since no date is stated
therein it should be rendered a nugatory exhibit. Learned counsel for the Plaintiffs
submits that the rate of interest has been spelt out in the sales as well as in the
invoices. As to the submission that Exh. P.1 should be considered a nugatory
exhibit learned counsel for the Plaintiffs says that the said document was admitted
as an exhibit without any objection from learned counsel for the Defendants.
70. No doubt the first debit note pertaining to the interest charged appeared in
Exh. P.169. However, it is also clear that such a term has been expressly stated in
Exh. P.1. Now learned counsel for the Defendants says that the absence of the date
in the said document has made it nugatory. But, I find that it has not been
challenged the evidence of witnesses called by the Plaintiffs that before any credit
facilities were given to the Defendants they had to make an application as per Exh.
P.1. And according to PW.2 although there were also some forms of credit
arrangements prior to 1997 they were secured by post-dated cheques. Hence I am
satisfied on the balance of probabilities that the rate of interest charged on any
outstanding sum due from the Defendants was within their knowledge at all
material times. Accrued interest in the sum as per Exh. P.169 less the interest on
the sums deducted from the principal sum due to the exclusion of ID-15 and ID-17
should be payable to the Plaintiffs. Further interest at the rate of 1.5% per month
on the balance sum outstanding from 01.07.1998 to the date of full payment should
also be payable to the Plaintiffs.
(iii) Whether the claim was premature:-
71. This issue came about due to the assertion of the Defendants that there was an
oral agreement reached between Simon Lay and PW.3 concerning the payment of
the balance outstanding. It is the pleaded case of the Defendants that the settlement
of the balance outstanding was agreed to be tied up with the claims of the
Defendants from the developers of the projects for which the goods were supplied.
And it is further contended that a reasonable period was agreed to be given to the
Defendants to settle the accounts and since the payments from the developers were
yet to be collected the action of the Plaintiffs was therefore premature. PW.3
however denied that there was such an agreement. Simon Lay was not called to
testify. Hence I can only conclude that the version of the Defendants remains
760 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

unproved. And I also believe the evidence of PW.3 that there was no such
arrangement.
(iv) The Signatures on the Guarantee document:
72. It is the pleaded case of the 2nd Defendant that he never signed the Letter of
Guarantee, Exh. P.2. According to him - DW.1, he was given a copy of it to sign
but he refused. The next time he heard of such document was when he received the
demand letter from the solicitors of the Plaintiffs. He gave the letter to Simon Lay
who promised to deal with the matter. But from the record nothing was done.
73. It was the evidence of PW.2 - Yap Chin Siew, the Marketing Executive of the
Plaintiffs, that he brought the application form for credit and the Letter of
Guarantee for signatures by the parties mentioned therein to the office of the
Defendants in 1997. One week later he returned to collect the same. The signatures
were there but not attested. So PW.2 said that he attested the signatures although
he did not witness the actual signing of the same by those named therein. And his
only reason for doing so was because he was the one who handled the documents.
74. There was no rebuttal from the Plaintiffs to the denial by DW.1 that he never
signed Exh. P.2. And I have no reason to doubt that that must be the case as even
PW.2 admitted that he never saw DW.1 or for that matter the other guarantor
signing on the document.
75. Learned counsel for the Plaintiffs has urged this Court to rely on section 73 of
the Act in that comparison should be made of the purported signature of the 2nd
Defendant in Exh. P.2 with his proved signature in his witness's statement -
DW.1-A.
76. It is also submitted that the surrounding circumstances should cast an inference
that the signature in Exh. P.2 must be that of the 2nd Defendant. Learned counsel
says that the failure of the 2nd Defendant in lodging a Police report if indeed his
signature was forged should draw an adverse inference against his denial. The
existence of the copy of his identity card as well as the fact that he is a director of
the 1st Defendants are, according to learned counsel for the Plaintiffs, further proof
that the signature therein must be his signature.
77. Now, section 73 of the Act is available where there is a dispute on signature,
writing or seal. Indeed I am tempted to invoke the section and proceed to make the
comparison of the signatures found in Exh. P.2 and DW.1-A. That section reads:-
"73. Comparison of signature, writing or seal with others admitted or proved.
In order to ascertain whether a signature, writing or seal is that of the person
by whom it purports to have been written or made, any signature, writing or
seal, admitted or proved to the satisfaction of the court to have been written or
made by that person, may be compared by a witness or by the court with the
one which is to be proved, although that signature, writing or seal has not
been produced or proved for any other purpose."
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 761

78. However there have been cautions made by our higher courts on the danger of
indulging into an area beyond common knowledge without the assistance of an
expert in that field.
79. In the case of Syed Abu Bakar Bin Ahmad v. Public Prosecutor [1983] 1 MLRA
318; [1984] 1 CLJ (Rep) 368 ; [1984] 2 MLJ 19 his Lordship Hamid FJ at page 23
said this:-
"Perhaps at this juncture it is proper to direct our attention to two aspects of
the law concerning (a) the function of the Judge in making conclusion of fact
on a matter normally within the province of an expert trained in the relevant
fields to give expert evidence and (b) with reference to the present case in what
circumstances must the Judge effect a critical and microscopic analysis of the
evidence of a witness."

(a) Handwriting Expert

Our law is clear in that under section 45 of our Evidence Act 1950 it is provided
that:-
"45. (1) When the court has to form an opinion upon a point of foreign law or
of science or art, or as to identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that
foreign law, science or art, or in questions as to identity or genuineness of
handwriting or finger impressions, are relevant facts." (2) Such persons are
called experts."

The scope of this section can be found in the commentary in Sarkar on Evidence
12th ed. at page 488 where, while recognising that opinion in so far as it may be
founded on legal evidence shall be the function of the tribunal whose province
alone it is to draw conclusions of law or fact:-
"There are however cases in which the Court is not in a position to form a
correct judgment without help of persons who have acquired special skill or
experience on a particular subject, e.g. when the question involved is beyond
the range of common experience or common knowledge or when special
study of a subject or special training or special experience therein is necessary.
In such cases the help of experts is required. In these cases, the rule is relaxed
and expert evidence is admitted to enable the court to come to a proper
decision."

A local case where this Court has dealt with section 45 can be found in Wong Swee
Chin v. Public Prosecutor [1980] 1 MLRA 125 ; [1981] 1 MLJ 212 where Raja Azlan
Shah, C.J. (as he then was) delivering the judgment of the Court explained who are
experts in section 45 of the Act , and then went on to say:-
762 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

"Our system of jurisprudence does not, generally speaking, remit the determination
of dispute to experts. Some questions are left to the robust good sense of a jury.
Others are resolved by the conventional wisdom of a judge sitting alone. In the
course of elucidating disputed questions, aids in the form of expert opinions are in
appropriate cases placed before juries or judges. But, except on purely scientific
issues, expert evidence is to be used by the court for the purpose of assisting rather
than compelling the formulation of the ultimate judgments. In the ultimate analysis
it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all
the evidence and determine the probabilities. It cannot transfer this task to the
expert witness, the court must come to its own opinion."

In the present case Sgt. Paou testified that the signed only on a blank form and he
did not write the words "tiga ratus sahaja". On the other hand, the defence
contended that Sgt. Paou wrote those words "tiga ratus sahaja" and signed. There
was therefore a dispute as to handwriting and as such it was necessary for the
learned Judge as tribunal of fact to make a finding as to the author of those words
and figure "three hundred". Since the document was not examined by any person
who has acquired a special skill or expert in the particular subject, i.e. handwriting,
the question therefore is was the learned Judge right in making the finding of fact
that he did in the absence and without the aid of expert evidence.
In our view it would have been quite proper for the learned Judge to conclude that
it was not Sgt. Paou's handwriting without going further since Sgt. Paou did say
that he only affixed his signature but for the learned Judge to proceed further and
hold as he did he was evidently indulging in a determination of a question which
was beyond the range of common knowledge. The same would equally apply to
the conclusion made by the learned Judge when he stated that they appeared to
come from the same pen used by the appellant to sign his name and to write down
the receipt number. How could one say with that degree of certainty?
Perhaps it may be appropriate to mention in passing that where there was a dispute
as to handwriting and the necessity arose for purposes of comparison, the Judge
could have invoked section 73(2) of the Evidence Act . This would enable him to
compare the words with any word proved and admitted in evidence.
It is settled principle that while it is true that a Judge who sits alone is entitled to
weigh all the evidence, to put his own magnifying glass to determine the
probabilities so to speak and form his own opinion or judgment, it would be
erroneous for him to form a conclusion on a matter which could only be properly
concluded with the aid for expert evidence.
80. And in this case there is no explanation from the Plaintiffs as to why no
attempt was made to obtain an expert opinion on the disputed signatures found in
Exh. P.2 when it is clear in the defence filed that that is the stand of the 2nd and
3rd Defendants. It is obvious that the intention of learned counsel for the Plaintiffs
is to ask the Court to assist him to mend a gaping hole in his case against the 2nd
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 763

Defendant. But I should decline to do the work for him.

81. First, it will be unsafe to make an assumption based on the circumstances as
indicated herein that the signature is that of the 2nd Defendant. In no uncertain
term DW.1 has denied that the signature in Exh. P.2 is his. To rebut the denial an
expert opinion would have been of great help.
82. Secondly, the reliance on section 73 is also unnecessary in that the Plaintiffs
could have solved the issue if only they did their homework. And it would be
ill-advised to start making comparison on the signatures by the Court as that area
should be the province of experts or at least the Court should have the benefit of
such assistance. In Chandrasekaran & Ors v. Public Prosecutor [1970] 1 MLRH 37 ;
[1971] 1 MLJ 153 his Lordship Raja Azlan Shah J. as he then was said this at page
159:-
"In my view, and I say it without any hesitation, expert opinion on
typewriting is as much a matter of science study as handwriting and
finger-print evidence. I would therefore adopt what was said in Muldowney v.
Illinois CRR Co 36 Iowa 472 thus:-
"The opinion of witnesses possessing peculiar skill is admissible whenever
the subject-matter of inquiry is such that inexperienced persons are not
likely to prove capable of forming a correct judgment upon it without
such assistance; in other words, when it so far partakes of the nature of
science, as to require a course of previous habit or study in order to the
attainment of a knowledge of it, and that the opinions of witnesses cannot
be received when the inquiry is into a subject-matter, the nature of which
is not such as to require any particular habits or study in order to qualify a
man to understand it. If the relations of facts and their probable results
can be determined without special skill or study, the facts themselves
must be given in evidence, and the conclusions or inferences must be
drawn by the jury."

83. As regards the failure of the 2nd Defendant to lodge a Police report on the
alleged forgery, I do not think that should be a main cause to find that the alleged
signature must be his. He gave an explanation as to what he did upon receipt of the
demand letter from the solicitors of the Plaintiffs. Plainly DW.1 seemed to have
relied on Simon Lay to deal with the matter. And it is also apparent that DW.1
was merely a pawn in the game that was conducted by the said Simon Lay. As
such I do not think he should be penalized for such a failure.
84. It is therefore my finding that the Plaintiffs have failed to establish on the
balance of probabilities that it is the 2nd Defendant's signature that is found in
Exh. P.2 as alleged.
85. In respect of the signature of the 3rd Defendant there is also an allegation that
764 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

it is not her signature. But the 3rd Defendant did not give evidence. And neither of
the learned counsel has submitted on the position of the 3rd Defendant as a
guarantor. But as the Plaintiffs are also claiming against her it is therefore still
incumbent upon the Plaintiffs to prove that the Letter of Guarantee (Exh. P.2) was
duly signed by the 3rd Defendant. In this case PW.2 testified that he went to the
office of the Defendants but the 2nd and the 3rd Defendants were not there. So he
handed the Letter of Guarantee to Simon Lay who is the husband of the 3rd
Defendant. PW.2 also said that he told Simon Lay that he would return to collect
the Letter of Guarantee after the two persons had signed on them.
86. From the evidence of DW.1 he said that in June 1997 the 3rd Defendant
showed him the Letter of Guarantee and requested him to sign. He refused. PW.2
in his evidence said that one week after he had given the document he returned to
collect it as he was told that it had been signed. He did see two signatures on the
document.
87. Now, from the evidence of DW.1 it is clear that the 3rd Defendant had
knowledge of Exh. P.2. And she even attempted to get the 2nd Defendant to sign
on it. Hence, I think it is more probable than not that the other signature in Exh.
P.2 is hers. I am fortified in my view by the absence of the 3rd Defendant to assert
her denial as pleaded in the defence. It should also be noted that it was her
husband who was given the document by PW.2. And he too did not testify to rebut
the assertion of the Plaintiffs. And although there is no expert opinion tendered, in
the case of the 3rd Defendant she did not come to deny the authencity of the
signature as the 2nd Defendant had done. There were also no rebuttals to the
evidence adduced by the Plaintiffs on the issue. Accordingly I am satisfied that the
Plaintiffs have proved on the balance of probabilities their assertion that the 3rd
Defendant did sign on Exh. P.2 as a guarantor. As such the Letter of Guarantee
(Exh. P.2) and its contents should be binding on the 3rd Defendant. And as a
guarantor for the 1st Defendants' liability to the Plaintiffs the 3rd Defendant is
therefore liable jointly and severally with the 1st Defendants to meet such
obligation.
88. In coming to my foregoing conclusion I am mindful of the decision in the case
of James Graham and Co. (Timber) Ltd v. Southgate-Sands and Others [1985] 2 WLR
1044 C.A. But having considered the evidence in this case and bearing in mind that
the 3rd Defendant did not come to Court to assert her pleaded case nor did she
make any allegation that she signed on the document believing that the 2nd
Defendant would sign as well, I think that case is distinguishable.
(v) Illegality of the Guarantee document:-
89. It is also the submission of learned counsel for the Defendants that the Letter of
Guarantee - Exh. P.2 - is tainted with illegality as there was a wilful move to avoid
the payment of penalty for the delay in stamping it. Section 5 of the Stamp Act
1949 is referred to in support of his submission.
[2001] 6 MLRH Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors 765

90. In answer learned counsel for the Plaintiffs argues that the failure or the delay
in stamping the document should not make it inadmissible as evidence. The case of
Malayan Banking Berhad v. Agencies Service Sdn. Bhd. [1981] 1 MLRA 152; [1982]
CLJ (Rep) 217 ; [1982] 1 MLJ 198 is cited to substantiate the preposition. Learned
counsel further says that the delay in stamping Exh. P.2 should only attract the
payment of penalty and there should be no question of it being tainted with
illegality.
91. I have considered the opposing contentions of learned counsel and the
authority cited by learned counsel for the Plaintiffs. I am of the view that the delay
in the stamping of the document should not render it inadmissible. Further I am
inclined to agree with learned counsel for the Plaintiffs that there should be no
question of illegality due to that reason. The delay in stamping the document or the
fact that it was post-dated would only result in the Plaintiffs having to pay a
penalty. And although the Defendants say that there was a wilful avoidance to pay
the penalty, there was no credible evidence adduced to that effect. Anyway, since
there was a clear admission by learned counsel for the Plaintiffs that the document
was in fact executed in June 1997 and not around the date stated therein -
November 1997, the Plaintiffs should proceed to pay for the penalty in accordance
with the rate provided in the said Stamp Act 1949 and the Rules made thereunder.
G. Conclusion:-
92. For the reasons hereinabove I am satisfied on the balance of probabilities that
the Plaintiffs have proved their claim as against the 1st Defendants subject to the
deductions as indicated above. I am also satisfied on the balance of probabilities
that the 3rd Defendant is obliged to meet her commitment as contained in Exh.
P.2, namely, as the guarantor for the outstanding sum owed by the 1st Defendants
to the Plaintiffs. And although there were originally two guarantors I did not find
the other liable. Nevertheless the 3rd Defendant is still liable as the obligation was
on the basis of joint and several.
93. Accordingly judgment is hereby entered for the Plaintiffs against the 1st and
3rd Defendants jointly and severally as follows:-
(i) the sum of RM609,252.20;
(ii) Accrued interest in the sum as stated in Exh. P.169 less the interest due to
the sums deducted;
(iii) Further interest at the rate of 1.5% per month on the said sum of
RM609,252.20 from 01.07.1998 to the date of full settlement; and
(iv) costs to the Plaintiffs to be taxed unless agreed.

94. In the event of a dispute as to the sum due under (ii) above the matter should
be referred to the Deputy Registrar, High Court Sandakan for his determination.
 766 Approfit Sdn Bhd v. Kent Sing Construction Sdn Bhd & Ors [2001] 6 MLRH

95. And as indicated herein the Plaintiffs are to pay for the penalty due to the delay
in stamping Exh. P.2 and no order is to be extracted unless proof is shown to the
Deputy Registrar, High Court Sandakan, of such payment.
96. Finally, the claim against the 2nd Defendant is hereby dismissed with costs to
be taxed unless agreed.

Powered by TCPDF (www.tcpdf.org)