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WEE YEE YING &
ANOR V. EMIN SADI
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
[CIVIL SUIT NO: K22-153-1995]
IAN HC CHIN J
17 JUNE 2005
JUDGMENT
Ian HC Chin J:
Introduction
The plaintiffs, Wee Yee Ying and Wee Yee Liang, were the children of a
person known variously as Tan Swee Kim, Chin Swee Kim and Swee Kim Bte Chin
Ah See (their mother) and they were by her will, made on 20 December 1986,
bequeathed a parcel of land held under Native Title No. 1705 and situated at
Kg Mambawang, Inanam ("the property"). The plaintiffs are also the
executrix/executor of the estate of their mother. The mother was at all
relevant times registered owner of the property. Sometime in December 1991,
it was discovered that somehow the 1st defendant had become the registered
owner of the property. Hence, this action commenced on 30 December 1995, to
have the transfer and its registration expunged on the ground that there was
fraud and the instrument resulting in the transfer was a forgery. The 2nd
defendant, the Assistant Collector of Land Revenue was also sued but Senior
State Counsel, Athmat Hassan, had indicated that the 2nd defendant will take
no part in the proceedings but will abide by the decision of the court.
The Plaintiffs' Case
The plaintiffs' case was that the memorandum of transfer that was used to
cause the registration of the defendant as being the owner was a forged
instrument in that the thumb-print that was affixed to that instrument and
allegedly that of the mother was not that of the mother. The impugned
instrument nor any copy of the instrument was tendered as evidence. But the
parties and their counsel elicted evidence without any objection from any
side regarding the contents of this instrument. The instrument said that the
transfer was from a mother to the son. It is common ground that the 1st
defendant was not the son of the mother. It was not till sometime in
December 1991 that the mother discovered that her land had been transferred
away on 9 July 1991. She lodged a caveat against the property alleging
forgery. She, on 24 December 1991, made a police report of the fraudulent
transfer and to report that she was still holding the original issued copy
of the title. Even now the issue copy of the title is with the plaintiffs
after it was handed over to one of them by the mother before she died in
1994. The advocate, John Kah, who had been acting for the mother since the
1970s had testified unchallenged that the mother had always signed documents
and had never use her thumb print for the purpose. Again, though the
instrument was not produced, both counsel are on common ground that a
thumb-print allegedly that of Swee Kim binti Chin Ah See was affixed to the
instrument. Before I set out the evidence of the case for the defendant, let
me apprise myself of the law on the standard of proof.
The Standard Of Proof
In Hock Hua Bank (S) Bhd v. Lam Tat Ming & Ors [1995] 1 LNS 80 ; [1995] 4
MLJ 328 I was of the view that an allegation of fraud in a civil case has to
be established beyond reasonable doubt and this view appears to be the
correct one as the Federal Court in Yong Tim v. Hoo Kok Chong & Anor [2005]
3 CLJ 229, decided that:
In our view, the Court of Appeal has obviously misdirected itself in
rejecting the proposition of law applied in Saminathan v. Pappa, supra, that
the standard of proof for fraud in civil proceedings is one of beyond
reasonable doubt which has been consistently applied by the courts in
Malaysia. We see no reason to disturb the trend
The court there also said that the decision in Adorna Properties Sdn Bhd v.
Boonsom Boonyanit @ Sun Yok Eng [2001] 2 CLJ 133 where it was held that the
standard of proof required to prove forgery in civil cases in one on a
balance of probabilities was concerned with forgery and not with fraud.
However, the present case is involved with both fraud and forgery as para. 3
of the statement of claim is in these terms:
3. The said land was fraudulently transferred to the 1st Defendant by virtue
of a forged Memorandum of Transfer dated the 5th day of July 1991 ...
So the forgery of the instrument must be proved on a balance of
probabilities while the transfer alleged to be done fraudulently must be
proved beyond reasonable doubt. The evidence adduced for the defence must be
considered together with those of the plaintiffs.
The Evidence Of The 1st Defendant
The 1st defendant said that he was present in the office of a commissioner
for oaths together with one Chinese Hokkian whom he called Ho Kian, a
Singaporean called Ah Atik and a woman called Swee Kim binti Chin Ah See. He
said he saw RM300,000 being handed over to Swee Kim binti Chin Ah See after
she had put her right thumb-print on the instrument. He explained that his
name was used as being the transferee because the commissioner for oaths had
said that the Singaporean Ah Atik cannot be registered as the owner of the
land. He also said that he saw Swee Kim binti Chin Ah See handed over the
title and her identity card to the commissioner for oaths. As for the
statement that he was the son, he said that it was put there by Swee Kim
binti Chin Ah See for the purpose of avoiding the payment of tax. Having set
out the evidence of both side, I now will produce to deal with the issues
which the parties have stated in these terms:
1. Whether the land held by Swee Kim bte Chin Ah See ("the deceased") under
Native Title No. 013017055 ("the said land") was fraudulently transferred to
the 1st Defendant by virtue of a forged Memorandum of Transfer dated
5.7.1991 and by the 1st Defendant who falsely claimed to be the son of the
deceased.
2. Whether the 1st Defendant had paid RM300,000.00 to the deceased as
consideration for the purchase of the said land.
I will deal with them one by one and not necessarily in the sequence they
have been mentioned.
Whether Memorandum Of Transfer Was Forged
The plaintiffs' counsel contended that since the instrument was impugned it
was for the 1st defendant to prove the genuineness of the instrument. The
instrument had been impugned in the several manners which I have earlier set
out, that is by a police report being made and by the lodging of a caveat.
The 1st defendant's counsel contended that the police report was of no value
as it was not established that it was the mother who had actually made the
report and not the son who accompanied her who made the report. It was
premised on the contention that the mother did not make "an official search
of the land office" and therefore could not have not known of the transfer
to be able to make the allegation in the police report. A certified true
copy of an abstract of the police report was admitted in evidence and the
abstract said that the report was made by the mother in which she said the
land had been transferred to the name of the 1st defendant without her
consent and that she still had the original title. Unless the 1st defendant
is able to show that the abstract was incorrect in the matters of who made
the report and as to what was reported, the abstract must be taken to have
been correctly recorded by the police officer concerned under the
presumption of regularity (see s. 114(e) of the Evidence Act). The 1st
defendant cannot raise doubt by mere summation but must show by evidence
that it was not the mother who made the report when the abstract said it was
the mother who made the report. As for the report being made in English and
the mother not being able, according to the son, to speak in English, as
raising a doubt as to whether the mother really made the report, this was
never put to the son by the counsel for the 1st defendant that it was the
son who made the report and not the mother and consequently we do not have
the evidence on this point and again it is pure summation with no evidence
to support the allegation that it was not the mother who made the report
since this was an issue the recording officer could have been called to
testify or the son could have been asked in what language the mother used
when making the report. As for the contention that it was unbelievable that
the mother only came to realize the property was transferred away some five
months after the registration of the transfer, I do not see the merit of
this argument since nobody would bother to check or worry about the property
she owns when she still holds the title. The mother was only alerted when
some broker informed her that the property was in someone's else name.
In the end there is nothing much in the evidence of the 1st defendant as
compared to the fact that the property was stated to have been transferred
by a mother to a son by the name of the 1st defendant with no monetary
consideration when it was common ground that the 1st defendant was not the
son of the mother. Then there is also the fact that the identity card of the
mother that was stated in the instrument was not that of the mother but
belonged to a person by the name of Shiak Vui Ming. The 1st defendant
attempted to salvage the situation by saying that it was a Singaporean who
had paid RM300,000 for the property and had used his name to own the
property but if that really was the case, one would expect the Singaporean
to be actively involved in this case in order to salvage something out of
the money he had allegedly expended but instead we have the 1st defendant's
evidence to say that the Singaporean was nowhere to be found which makes me
conclude that the Singaporean and him making the payment was a figment of
his imagination. To my mind, there is no doubt whatsoever that the
instrument was a forgery. Given the evidence, the 1st defendant had failed
totally to support his assertion that the instrument was a genuine one. As
the law goes (see Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 3
CLJ 17) when the instrument had been disputed by the plaintiffs and there is
sufficient evidence adduced on behalf of the plaintiffs to support the
allegation that the transfer was a forgery, it is incumbent on the defendant
to prove that the instrument is genuine. Nothing is easier in this case for
the defendant to do and that is by adducing evidence of an expert who had
compared the thumb-print of the mother (which was available from the
identity card and kept by the National Registration Department) with the
thumb-print on the instrument (which was kept by the land office) to say
that the two thumb-prints are the same and therefore there was no question
of forgery. Such a simple task to discharge the onus and yet the 1st
defendant did not bother. It lends support to the conclusion which I hold
that the 1st defendant knew that the thumb-print was not that of the mother
and giving further support to my conclusion that the instrument was a
forgery. I turn to the next issue of fraud.
Whether The Transfer Was Fraudulent
When a forged instrument was used to effect a transfer to the 1st defendant,
there is absolutely no doubt in my mind that the transfer was done
fraudulently. What more when the transferee was stated to be the son when he
was not. This leaves the final issue of whether the 1st defendant made the
payment.
Whether The 1st Defendant Paid RM300,000
By the 1st defendant's own evidence, it was not him who made the payment but
a Singaporean which even that, as mentioned earlier and for the reasons
stated earlier, I find not to be true.
Conclusion
In the premise, judgment is entered for the plaintiffs in terms of the
following prayers of the statement of claim, viz:
(a) that the transfer of the property to the 1st defendant effected under
the said memorandum of transfer dated 5 July 1991 be annulled on the ground
of fraud;
(b) that the 2nd defendant expunge from the register and records the
registration of the said transfer;
(c) that the 2nd defendant cancel the certified copy of the land title for
the property that was issued under s. 120 of the Land Ordinance; and
(d) damages to be assessed by the deputy registrar and to be paid by the 1st
defendant occasioned by the fraudulent transfer and the said forged
memorandum of transfer; and
(e) costs to be paid by the 1st defendant to the plaintiff.
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