Malaysia Case Law: Decisions & Judgments

Topic

Burden and onus of proof

Legal area

Court

27 Dec 2024

Khor Gaik Thiam Theow Say Kow @ Teoh Kiang Seng, Henry

Citation

02(f)-26-04/2021(P) (Mahkamah Persekutuan)
Court

f
Case number

02(f)-26-04/2021(P) (Mahkamah Persekutuan)

Federal Court held appeals allowed, set aside Court of Appeal and affirmed High Court: (1) in-trial recantation does not require a rigid two-stage leave procedure nor automatic exclusion of prior or subsequent testimony; courts must scrutinise recanted testimony against contemporaneous evidence; (2) Khoon Chye Hin principle applies such that partial untruth requires careful scrutiny but not wholesale rejection; (3) the party alleging forgery bears the onus of proving it; (4) a witness being a party or sued does not ipso facto render them an interested witness whose evidence must be rejected;…
27 Dec 2024

Khor Gaik Thiam Theow Say Kow @ Teoh Kiang Seng, Henry

Citation

02(f)-24-04/2021(P) (Mahkamah Persekutuan)
Court

f
Case number

02(f)-24-04/2021(P) (Mahkamah Persekutuan)

The Federal Court allowed the consolidated appeals, set aside the Court of Appeal decisions and reinstated the High Court findings because (1) recantation at trial is not governed by a special two‑stage leave regime and is a matter of assessment by the trial judge; (2) the Khoon Chye Hin approach (scrutinise but do not automatically reject the rest of testimony) applies when a witness changes testimony; (3) the SSA was proven and valid on the balance of probabilities; (4) the onus to prove forgery rests on the party alleging it (Henry) and was not discharged; (5) the attesting solicitor’s evi…
28 Nov 2024

Zulfatah Sofi Bin Mohd Yusof ALFIAN BIN ON

Citation

BA-12B-31-03/2024 (Mahkamah Tinggi)
Court

High Court
Case number

BA-12B-31-03/2024 (Mahkamah Tinggi)

The High Court held the Sessions Court did not err in excluding medical and expert reports placed in Part B where the makers were not called to prove the contents; Section 73A(2) is discretionary and was not shown to justify admission; the appellant failed to prove liability as to quantum for general damages and certain special damages; appellate interference was unwarranted absent a plain wrong finding.
3 Sept 2024

TOE HONG CHOO PIONG CHOONG FAH

Citation

WA-22NCvC-682-10/2021 (Mahkamah Tinggi)
Court

High Court
Case number

WA-22NCvC-682-10/2021 (Mahkamah Tinggi)

Plaintiff proved on balance of probabilities she lent RM1,520,000 and the Loan Agreement containing 1.3% p.m. administration charges is genuine; defendant's pleaded sham defence and testimony denying receipt made it an abuse to later assert an alternative inconsistent defence of illegality not pleaded; statutory presumption under s10OA MA1951 was rebutted by the spousal relationship, lack of system/continuity, absence of advertising as a moneylender and non-exorbitant interest, therefore the agreement is not an unenforceable moneylending agreement under s15 MA1951 and judgment is entered for…
1 Mar 2023

1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

Citation

J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)
Court

NCvC
Case number

J-02(NCvC)(W)-2088-11/2021 (Mahkamah Rayuan)

The Court held the bank was liable for wrongfully releasing RM2,340,000 because the Power of Attorney was fraudulent and Ex D.2 was not proved to have been issued or authenticated by PGMJ; the respondent bore the burden of proving the representation and genuineness of Ex D.2 and failed to do so; the High Court misdirected in admitting Ex D.2 and in shifting the onus to appellants; appeal allowed in respect of the claims for recovery (prayers (a) and (b)) with interest and costs; the respondent’s cross-appeal against third parties was struck out as incompetent (majority).
23 Feb 2022

KEMBANG SERANTAU SDN BHD Perbadanan Putrajaya

Citation

WA-22NCvC-640-09/2019 (Mahkamah Tinggi)
Court

High Court
Case number

WA-22NCvC-640-09/2019 (Mahkamah Tinggi)

On balance of probabilities the Defendant discharged its evidential burden by contemporaneous documents and credible witness evidence showing only 82,573 trees were accepted and 13,390 were not replanted; the CMGD is prima facie but not conclusive and final entitlement is fixed by the final account/certificate process; Variation Order No.15 operated effectively to deduct sums for unperformed work and the Plaintiff failed to prove it replanted the rejected trees, therefore only RM 58,417.57 is payable and the Plaintiff's claim for RM 3,136,293.25 fails.

Malaysia Case Law

Khor Gaik Thiam Theow Say Kow @ Teoh Kiang Seng, Henry

Khor Gaik Thiam Theow Say Kow @ Teoh Kiang Seng, Henry

Zulfatah Sofi Bin Mohd Yusof ALFIAN BIN ON

TOE HONG CHOO PIONG CHOONG FAH

1. ) MASHUDAN BIN KAMAR 2. ) Kharil Bin Sulaiman (Menuntut Sebagai Pengamanah Persekutuan Guru-guru Melayu Johor, Cawangan Batu Pahat) 3. ) HAJI SANUSI BIN HAJI LAMBING 4. ) HJ ABDUL KADIR BIN HJ MUHAMMAD 5. ) ZAMILAH BINTI HAJI EKHWAN 6. )

KEMBANG SERANTAU SDN BHD Perbadanan Putrajaya