Yeow Guang Cheng V Tang Lee Hiok & Ors (2020) 1 LNS 1696

[2020] 1 LNS 1696 Legal Network Series
IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA
[SIVIL SUIT NO: BA-22NCVC-423-07/2017]
BETWEEN
YEOW GUANG CHENG

(NRIC No.: 701114-05-5141) … PLAINTIFF
AND
1. TANG LEE HIOK (NRIC No.: 660510-10-6248)
2. LIM BOON KEONG (NRIC No.: 580711-10-5647)
3. TAN MEE LIAN (NRIC No.: 630211-10-6902)
4. LIM HIANG (NRIC No.: 630807-10-7172)
5. TAN KAH CHEN (BC/T/863) … DEFENDANTS
JUDGMENT
(After trial)
A. Introduction
[1] This judgment essentially concerns whether -
(1) a sale of the plaintiff’s (Plaintiff) property in a piece of

land (Land) [on which three units of three-storey terrace
house (Property) are erected] to the first to fourth
defendants (“1 st Defendant” to “4 th Defendant”); and
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(2) the subsequent registration of the transfer of the Land from

the Plaintiff to the 1 st to 4 th Defendants (Transfer) under
the National Land Code (NLC)
- is genuine or an unlicensed moneylending business which

is prohibited by s. 5(1) of the Moneylenders Act 1951
(MA). The Plaintiff has alleged in this case that the fifth
defendant (5 th Defendant), a practising Advocate and
Solicitor (A&S), abetted the 1 st to 4 th Defendants in the
commission of an unlicensed moneylending business by
disguising it as a sale of the Property.
B. Proceedings
[2] The Plaintiff has instituted this action (Original Action) against
the 1 st to 5 th Defendants for the following relief, among others:
(1) a declaration that the following documents are null and

void for contravening MA -
(a) a Sale and Purchase Agreement dated 15.12.2015

(SPA) whereby the Plaintiff purportedly sold the
Property to the 1 st to 4 th Defendants at a price of
RM900,000.00 (Price);
(b) an instrument under NLC to transfer the Land from

the Plaintiff to the 1 st to 4 th Defendants (Form 14A);
and
(c) a power of attorney regarding the Land executed by

the Plaintiff in favour of the 1 st to 4 th Defendants
(PA);
(2) a declaration that the Transfer is invalid;
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(3) a declaration that the 1 st to 4 th Defendants are registered as

co-owners of the Land under the NLC and own the Land as
constructive trustees for the benefit of the Plaintiff;
(4) a perpetual mandatory injunction to compel the 1 st to 4 th

Defendants to -
(a) execute all the required documents to re-transfer the

Land to the Plaintiff; and
(b) deliver the “Issue Document of Title” of the Land

(IDT) to the Plaintiff;
(5) an order for the 1 st to 4 th Defendants to refund all the

money paid by the Plaintiff to the 1 st to 4 th Defendants;
and
(6) an order for the 1 st to 5 th Defendants (collectively referred

to as the “Defendants”) to pay damages to the Plaintiff
(which will be assessed by the court).
[3] In this case the 1 st to 4 th Defendants are represented by the same

learned counsel while the 5 th Defendant has a separate legal
representation.
[4] The 1 st to 4 th Defendants have filed a counterclaim in this case

for the following relief against the Plaintiff, among others
[Counterclaim (1 st to 4 th Defendants)]:
(1) a perpetual mandatory injunction to compel the Plaintiff to

deliver vacant possession of the Property to the 1 st to 4 th
Defendants; and
(2) an order for the Plaintiff to pay to the 1 st to 4 th Defendants

-
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(a) damages for unlawfully occupying the Property

(which will be assessed by the court); and
(b) rent for the ground floor of two units of the Property
which have been let out by the Plaintiff.
[5] The 5 th Defendant’s Amended Defence pleaded in essence that,

among others, the SPA, Form 14A and Transfer were genuine.
[6] By consent of all the parties, the Original Action and

Counterclaim (1 st to 4 th Defendants) are tried together.
C. Evidence
C(1). Admissibility of extrinsic evidence to contradict SPA
[7] It is not disputed that as a general rule, by reason of ss. 91 and

92 of the Evidence Act 1950 (EA), extrinsic evidence cannot be
adduced by parties to the SPA to contradict, vary, add to or
subtract from the contents of the SPA (General Rule) - please
refer to the judgment of Chang Min Tat FJ in the Federal Court
case of Tindok Besar Estate Sdn Bhd v. Tinjar Co [1979] 2 MLJ
229, at 232-233.
[8] Mr. Lui Kar Yee, the 5 th Defendant’s learned counsel, has
contended that the Plaintiff and 1 st to 4 th Defendants are “bound
by the four corners of the [SPA] which they put pen to ”. I am
not able to accept this argument for the following reasons:
(1) one of the exceptions to the General Rule is proviso (a) to

s. 92 EA which allows oral and documentary evidence to
be admitted to contradict a contract on the ground of
illegality - please see the Supreme Court’s judgment
delivered by Peh Swee Chin SCJ in Lim Kar Bee v.
4
Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281, at

289; and
(2) the court has a discretionary power to decide whether a

certain contract, document or transaction is a sham or
otherwise. It is decided in Jemix Co Ltd & Anor v. Jemix
Heat Treatment (M) Sdn Bhd & Ors [2019] 2 MLRH 276,
at [29(2)(c)], as follows -
“[29(2)(c)] … In the English Court of Appeal case of

Snook v. London and West Riding Investments Ltd
[1967] 1 All ER 518, at 528, Diplock LJ (as he then
was) decided in the majority judgment that any
agreement, document or transaction executed by a
person is a “sham” if it is intended to give to third
parties or to the Court an appearance of creating
between the parties legal rights and obligations
which are different from the actual legal rights and
obligations which the parties intend to create. This
meaning of a “sham” contract, document or
transaction in Snook has been accepted by Gopal
Sri Ram JCA (as he then was) in the Court of
Appeal in Sri Kelangkota-Rakan Engineering JV Sdn
Bhd & Ors v. Arab-Malaysian Prima Realty Sdn Bhd
& Ors [2001] 1 CLJ 779, at 788-789.”
(emphasis added).
The above decision in Jemix has been affirmed on appeal by

Kamaludin Mohd. Said JCA in the Court of Appeal in Ikumi
Terada v. Jemix Co Ltd and another appeal [2019] MLJU 561.
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[9] Based on the aforesaid reasons, I admit oral and documentary

evidence in this case so as to ascertain whether the SPA, Form
14A, PA and Transfer had contravened s. 5(1) MA.
C(2). Plaintiff’s case
[10] Only the Plaintiff testified in support of the Original Action.

According to the Plaintiff, among others:
(1) on or about 15.8.2015, the Plaintiff borrowed

RM600,000.00 (1 st Loan) from CML Realty Snd. Bhd.
(CML). Regarding the 1 st Loan -
(a) the 1 st Loan was an unlicensed moneylending

business for which -
(i) the Plaintiff handed the IDT to CML’s

solicitors, Messrs Khor & Rafidah (Messrs
KR), as collateral for the 1 st Loan;
(ii) the Plaintiff and CML signed a Sale and

Purchase Agreement dated 21.7.2015 [SPA
(CML)] which was prepared by Messrs KR.
According to the SPA (CML), among others,
the Plaintiff purportedly sold the Property to
CML for RM600,000.00 [Price (CML)]; and
(iii) the Plaintiff paid monthly interest for the 1 st

Loan to CML [Monthly Interest (1 st Loan)];
and
(b) the Plaintiff could not subsequently pay the Monthly

Interest (1 st Loan) to CML. At the material time, the
Plaintiff owed a total sum of RM780,000.00 to CML
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[Plaintiff’s Debt (CML)]. Hence, to avoid the Land

from being transferred to CML, the Plaintiff had to
find another unlicensed moneylender to repay the
Plaintiff’s Debt (CML);
(2) the 1 st to 4 th Defendants were unlicensed moneylenders

who offered a loan to the Plaintiff on the following terms
and conditions (2 nd Loan) -
(a) the 2 nd Loan was for a sum of RM900,000.00;
(b) the 1 st to 4 th Defendants would pay the Plaintiff’s

Debt (CML) to CML and the balance of
RM120,000.00 would then be given by the 1 st to 4 th
Defendants to the Plaintiff;
(c) the Plaintiff would pay interest for the 2 nd Loan to

the 1 st to 4 th Defendants at the rate of 12.5% per
month [Monthly Interest (2 nd Loan)]; and
(d) the Plaintiff was required to execute the SPA, Form

14A and PA as a form of “security” for the 2 nd Loan.
The SPA, Form 14A and PA were prepared by the 5 th
Defendant, a partner in Messrs SR Tan, Cheng, Lim
& Tee (Messrs SRT);
(3) the Plaintiff accepted the 2 nd Loan on the terms and

conditions as stated in the above sub-paragraph (2). Hence,
the Plaintiff signed the SPA, Form 14A and PA.
Thereafter, the 1 st to 4 th Defendants handed RM120,000.00
in cash to the Plaintiff;
(4) from March to September 2016, the Plaintiff had paid to

the 1 st to 4 th Defendants a total of RM328,400.00 as
Monthly Interest (2 nd Loan). During cross-examination by
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Ms. Khoo Ai Teng, learned counsel for the 1 st to 4 th

Defendants, the Plaintiff admitted that the interest rate
charged by the 1 st to 4 th Defendants for the 2 nd Loan was
not 12.5% per month; and
(5) subsequently, the Plaintiff was unable to pay Monthly

Interest (2 nd Loan) and the following matters arose -
(a) the 4 th Defendant sent “WeChat” messages and voice

mails which threatened the Plaintiff that if the
Plaintiff failed to pay Monthly Interest (2 nd Loan),
the Land would be transferred to the 1 st to 4 th
Defendants (4 th Defendant’s Threats );
(b) the Transfer was registered without the Plaintiff’s

knowledge. The Plaintiff only knew about the
Transfer when the Plaintiff did a land search in
April, 2017;
(c) Plaintiff’s then solicitors, Messrs Veera & Co.

(Messrs VC), sent a demand dated 21.4.2017 to the
5 th Defendant and Messrs SRT (Messrs VC’s
Demand). Messrs VC’s Demand stated, among
others, that the SPA was a sham to conceal the
unlicensed moneylending business between the 1 st to
4 th Defendants on the one part and the Plaintiff on
the other part;
(d) Messrs VC sent a letter dated 22.5.2017 to Messrs

SRT [Messrs VC’s Letter (22.5.2017)] which,
among others, requested from Messrs SRT on an
urgent basis for all documents, letters,
correspondence and receipts of payments; and
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(e) the 1 st to 4 th Defendants prevented the Plaintiff from

having access to the Property. Consequently, the
Plaintiff suffered loss as follows -
(i) the Plaintiff had to stop his bird’s nest business

which was carried on in the upper floors of the
Property; and
(ii) the Plaintiff could not rent out rooms in the

first floor of the Property to his tenants.
C(3). Evidence adduced by Defendants
[11] The 1 st and 3 rd to 5 th Defendants testified in this case.
[12] The 1 st , 3 rd and 4 th Defendants gave the following evidence,

among others:
(1) the 1 st , 3 rd and 4 th Defendants denied that they were

unlicensed moneylenders who had made the 2 nd Loan to the
Plaintiff;
(2) the SPA, Form 14A, PA and Transfer were genuine as the
1 st to 4 th Defendants had paid the Price for the Land; and
(3) the 1 st to 4 th Defendants had appointed the 5 th Defendant to

prepare the SPA, Form 14A and PA.
[13] The above evidence of the 1 st , 3 rd and 4 th Defendants was

corroborated by the 5 th Defendant. Additionally, the 5 t h
Defendant testified as follows, among others:
(1) the 5 th Defendant acted only for the 1 st to 4 th Defendants

(not the Plaintiff) in respect of the SPA, Form 14A and
PA;
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(2) by way of a letter dated 4.12.2015 from Messrs KR to

Messrs SRT [Messrs KR’s Letter (4.12.2015)], Messrs
KR informed Messrs SRT as follows, among others -
(a) CML was “willing” to terminate SPA (CML) subject

to a “compensation sum” of RM780,000.00 to be paid
by the Plaintiff on or before 15.12.2015; and
(b) upon receipt of RM780,000, Messrs KR undertook to

forward the IDT to Messrs SRT;
(3) the Plaintiff signed, among others, the following

documents which were handed to Messrs SRT -
(a) an “Acknowledgement” dated 8.12.2015 [Plaintiff’s

Acknowledgement (8.12.2015)] which stated, among
others -
(i) the Plaintiff had elected not to be legally

represented in respect of the SPA; and
(ii) in consideration of Messrs SRT’s consent to

attend to the execution of the SPA by the
Plaintiff, the Plaintiff “expressly state that [the
Plaintiff] will not make any allegation against
[Messrs SRT] nor make any complaints or
claims against [Messrs SRT] in any Court of
law … whatsoever pertaining to the transaction
herein”; and
(b) the Plaintiff’s letter dated 9.12.2015 to Messrs SRT

[Plaintiff’s Letter (9.12.2015)] which stated that,
among others, the Plaintiff “shall” not hold Messrs
SRT liable for whatever losses in relation to the
Plaintiff’s authorization for Messrs SRT to release a
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payment of RM780,000.00 (from the Price) to Messrs

KR (on behalf of CML);
(4) the 1 st to 4 th Defendants deposited a total of RM780,000.00

with Messrs SRT which was then paid to Messrs KR (on
behalf of CML). Consequently -
(a) CML and the Plaintiff entered into a “Deed of

Revocation” dated 4.1.2016 (Revocation Deed)
which, among others, revoked SPA (CML); and
(b) Messrs KR handed, among others, the IDT to Messrs

SRT;
(5) the 5 th Defendant had prepared “Form 19B” under NLC

(Form 19B) dated 22.12.2015 for the 1 st to 4 th Defendants
to enter a private caveat over the Land [Caveat (1 st to 4 th
Defendants)]. The Caveat (1 st to 4 th Defendants) was
signed by the 1 st to 4 th Defendants and was supported by a
statutory declaration affirmed by the 1 st to 4 th Defendants
before a Commissioner for Oath (CO) on 22.12.2015 [SD
(1 st to 4 th Defendants)];
(6) the Land is subject to a “restriction in interest”, namely

the Land cannot be, among others, transferred by the
Plaintiff without the consent of the State Authority (SA’s
Consent). Hence, on behalf of the 1 st to 4 th Defendants, the
5 th Defendant applied for SA’s Consent for the Transfer.
SA’s Consent was obtained by way of a letter dated
13.1.2016 [LA’s Letter (13.1.2016)] from the Land
Administrator (LA). According to LA’s Letter (13.1.2016),
SA’s Consent was only effective for three years from the
date of LA’s Letter (13.1.2016);
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(7) Messrs SRT sent a letter dated 27.3.2017 to the 1 st to 4 th

Defendants [Messrs SRT’s Letter (27.3.2017) ] which,
among others, confirmed the instruction of the 1 st to 4 th
Defendants that the 1 st to 4 th Defendants would present
Form 14A to the Land Office for registration under NLC.
All the relevant documents, including IDT and Form 14A,
were delivered to the 1 st to 4 th Defendants under the cover
of Messrs SRT’s Letter (27.3.2017);
(8) Form 14A was presented to the Land Office by the

solicitors of the 1 st to 4 th Defendants in this case.
Consequently, the Transfer was registered on 6.4.2017;
and
(9) by way of a letter dated 12.5.2017 [Messrs SRT’s Letter

(12.5.2017)], Messrs SRT had denied all the allegations
raised in Messrs VC’s Demand.
D. Issues
[14] The following questions arise in this case:
(1) as against the 5 th Defendant, whether the Amended

Statement of Claim (ASOC) has -
(a) disclosed a reasonable cause of action against the 5 th

Defendant; and
(b) breached O. 18 r. 15(1) of the Rules of Court 2012

(RC) when no relief against the 5 th Defendant has
been specifically prayed for in the ASOC;
(2) did the Plaintiff pay Monthly Interest (2 n d Loan) to the 1 st

to 4 th Defendants which would invoke a rebuttable
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presumption under s. 10OA MA that the 1 st to 4 th

Defendants had carried on a business of “moneylending”
by giving the 2 nd Loan to the Plaintiff without a
moneylender’s license granted by the “Registrar of
Moneylenders” under s. 5B(1) MA?;
(3) if a rebuttable presumption arises under s. 10OA MA,

whether the 1 st to 4 th Defendants have adduced sufficient
evidence on a balance of probabilities to rebut this
presumption;
(4) independent of s. 10OA MA, has the Plaintiff discharged

the legal and evidential burden to prove on a balance of
probabilities that the 1 st to 4 th Defendants had carried on
an unlicensed moneylending business which was disguised
by way of the SPA, Form 14A and PA? In this regard, does
s. 17A MA apply in this case?;
(5) if the 1 st to 4 th Defendants had carried on an unlicensed

moneylending business in this case -
(a) whether the 2 nd Loan and SPA are void under s. 15

MA read with s. 24(a) and/or (b) of the Contracts Act
1950 (CA);
(b) is the registered title of the Land in favour of the 1 st

to 4 th Defendants [Registered Title (1 st to 4 th
Defendants)] defeasible under s. 340(2)(b) NLC on
the ground that the registration of the Transfer has
been obtained by way of a void Form 14A?;
(c) are the PA, Plaintiff’s Acknowledgement (8.12.2015)

and Plaintiff’s Letter (9.12.2015) enforceable?; and
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(d) whether the Plaintiff is barred by the doctrine of ex

turpi causa non oritur actio and/or by public policy
from seeking any relief from this court. This novel
issue discusses whether ss. 5(1), 15 MA, s. 24(a), (b)
CA and s. 340(2)(b) NLC should prevail over the
case law doctrine of ex turpi causa non oritur actio
in respect of unlicensed moneylending business;
(6) if the 2 nd Loan is void, whether the 1 st to 4 th Defendants

can recover the 2 nd Loan from the Plaintiff pursuant to -
(a) ss. 66 or 71 CA; and/or
(b) the doctrine of unjust enrichment; and
(7) had the Defendants committed a tort of conspiracy to

injure the Plaintiff by unlawful means [by way of a
contravention of s. 5(1) MA]? This issue concerns the
following matters -
(a) can the Plaintiff claim for a tort when the tort arises
from the Plaintiff’s own unlawful act in accepting the
2 nd Loan?; and
(b) whether the Defendants can rely on the defence of

volenti non fit injuria because the Plaintiff had
consented to the 2 nd Loan.
I am not able to find a previous Malaysian case which has

decided this question.
E. Credibility of witnesses
[15] In deciding the Plaintiff’s credibility as a witness, I am mindful

of the following material matters:
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(1) the 1 st to 4 th Defendants had paid a total of RM900,000.00

(RM780,000.00 to CML and RM120,000.00 to the
Plaintiff);
(2) if the Original Action is allowed and the Counterclaim (1 st

to 4 th Defendants) is dismissed, the Plaintiff would be
unjustly enriched as follows -
(a) the Plaintiff would be restored as the registered

owner of the Land; and
(b) the Plaintiff would evade repayment of the 2 nd Loan.
It is clear from the above sub-paragraphs (a) and (b) that

the Plaintiff had a self-serving motive to file the Original
Action and to testify in the manner he did in this case; and
(3) there were occasions during the Plaintiff’s cross-

examination by Ms. Khoo that the Plaintiff was not
consistent in his testimony, eg. the Plaintiff’s evidence
regarding the rate and amount of Monthly Interest (2 nd
Loan).
[16] I have considered all the matters elaborated in the above

paragraph 15 and yet, I find as a fact that the Plaintiff’s
testimony regarding the 1 st and 2 nd Loans to be true. This factual
finding is based on the following evidence and reasons:
(1) CML purportedly purchased the Land from the Plaintiff by

way of SPA (CML) for a price of RM600,000.00 but CML
claimed for an amount of RM780,000.00 as
“compensation” for the Plaintiff’s purported “revocation”
of SPA (CML). It is clear that CML had enjoyed a “profit”
of RM180,000.00 by giving the 1 st Loan, an unlicensed
moneylending business, to the Plaintiff. It is not probable
15
for any genuine purchaser of landed property to make a

profit of 30% (RM180,000/RM600,000 X 100%) within an
extremely short period of less than 5 months [from
21.7.2015, the date of SPA (CML) until 10.12.2015 (when
Messrs SRT sent a cheque of RM780,000.00 to Messrs
KR)];
(2) recital (A) to the Revocation Deed (drafted by Messrs KR)

referred to a “Sale and Purchase Agreement dated 14 th
August 2015” whereas SPA (CML) (also drafted by Messrs
KR) dated 21.7.2015. This contradiction in the dates of the
same SPA (CML), clearly showed that both SPA (CML)
and the Revocation Deed were contrived to camouflage the
1 st Loan as a sale of the Property;
(3) the SPA, PA, Form 14A and Transfer could not be genuine
because there was undisputed documentary evidence that
the Plaintiff had paid Monthly Interest (2 nd Loan) as
follows -
(a) the Plaintiff had issued a personal cheque dated

28.3.2016 for an amount of RM46,800.00 in favour
of the 3 rd Defendant. During cross-examination by
the Plaintiff’s learned counsel, Mr. Alex Gan Yi
Yang, the 3 rd Defendant admitted that the sum of
RM46,800.00 had been credited to the 3 rd
Defendant’s bank account. However, the 3 rd
Defendant alleged that Plaintiff had borrowed a sum
of RM53,000.00 from her and after the Plaintiff’s
repayment of RM46,800.00, the Plaintiff still owed
money to the 3 rd Defendant [Alleged Plaintiff’s Debt
(3 rd Defendant)].
I cannot accept the existence of the Alleged
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Plaintiff’s Debt (3 rd Defendant) because the 3 r d

Defendant had not demanded at any time for the
Plaintiff to pay the Alleged Plaintiff’s Debt (3 rd
Defendant). Furthermore, the Counterclaim (1 st to 4 th
Defendants) did not pray for the payment of any
outstanding debt due from the Plaintiff to the 3 rd
Defendant;
(b) the Plaintiff had issued a personal cheque dated

22.3.2016 for a sum of RM36,000.00 to the 4 t h
Defendant. The 4 th Defendant admitted during cross-
examination by Mr. Gan that the sum of
RM36,000.00 had been banked into 4 th Defendant’s
bank account.
The Plaintiff had adduced his bank statements

(Plaintiff’s Bank Statements) which showed that the
Plaintiff had transferred the following sums of
money to the 4 th Defendant’s bank account -
(i) a sum of RM15,000.00 on 31.3.2016;
(ii) an amount of RM10,000.00 on 1.4.2016;
(iii) a sum of RM5,000.00 on 3.4.2016;
(iv) an amount of RM20,000.00 on 4.4.2014;

and
(v) a sum of RM1,000.00 each on 11.4.2016

and 21.7.2016.
The 4 th Defendant had admitted during cross-

examination by Mr. Gan that the above sums of
money had been transferred to the 4 th Defendant’s
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bank account.
The 4 th Defendant’s witness statement in answer to

question no. 5 stated that Plaintiff had borrowed
money from 4 th Defendant but during cross-
examination by Mr. Gan, the 4 th Defendant testified
that the 4 th Defendant’s husband, Mr. Chia Ngak
Keng (4 th Defendant’s Husband), had lent money to
the Plaintiff [Alleged Plaintiff’s Debt (4 th
Defendant’s Husband)] and all the above amounts
of money constituted the Plaintiff’s repayment of the
Alleged Plaintiff’s Debt (4 th Defendant’s Husband).
I have no hesitation to reject the 4 th Defendant’s

testimony regarding the Alleged Plaintiff’s Debt (4 th
Defendant’s Husband) because -
(ba) as explained in sub-paragraph (5) below, the

Alleged Plaintiff’s Debt (4 th Defendant’s
Husband) is inconsistent with the contents of
WeChat messages between the Plaintiff and 4 th
Defendant (WeChat Messages). When there is
a conflict between oral evidence and
contemporaneous records, the court should
accept the latter - please refer to the judgment
of Siti Norma Yaakob JCA (as she then was) in
the Court of Appeal case of Guan Teik Sdn Bhd
v. Hj Mohd Noor Hj Yakob & Ors [2000] 4 CLJ
324, at 330;
(bb) there was no demand at any time by the 4 th

Defendant’s Husband for the Plaintiff’s
repayment of the Alleged Plaintiff’s Debt (4 th
Defendant’s Husband);
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(bc) if the Alleged Plaintiff’s Debt (4 th Defendant’s

Husband) were true, the Plaintiff could had
issued a cheque to the 4 th Defendant’s Husband
(not to the 4 th Defendant) and/or transferred
money to the bank account of the 4 th
Defendant’s Husband; and
(bd) the 4 th Defendant’s Husband was not called as a

witness by the 4 th Defendant to prove the
Husband). No evidence had been adduced by
the 4 th Defendant on why the 4 th Defendant’s
Husband could not be compelled by a court
subpoena to testify in this case regarding the
Husband). Accordingly, this court draws an
adverse inference under s. 114(g) EA against
the 4 th Defendant for suppressing material
evidence of the 4 th Defendant’s Husband with
respect to the Alleged Plaintiff’s Debt (4 th
Defendant’s Husband) - please see the Supreme
Court’s judgment delivered by Mohd. Azmi
SCJ in Munusamy v. Public Prosecutor [1987]
1 MLJ 492, at 494. It is to be borne in mind
that in civil cases, an adverse inference under s.
114(g) EA may be made by the court against a
defendant - please refer to the decision of
Hashim Yeop Sani CJ (Malaya) in the Supreme
Court case of Guthrie Sdn Bhd v. Trans-
Malaysian Leasing Corp Bhd [1991] 1 MLJ 33,
at 34-35; and
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(c) the Plaintiff had issued a personal cheque dated

1.4.2016 for an amount of RM6,000.00 to Mr. Chong
Kim Fui, the 1 st Defendant’s husband (1 st
Defendant’s Husband).
During cross-examination by Mr. Gan, the 1 st

Defendant alleged that the Plaintiff owed the above
sum of RM6,000.00 to the 1 st Defendant’s Husband
[Alleged Plaintiff’s Debt (1 st Defendant’s
Husband)] and the Plaintiff’s cheque constituted a
repayment of the Alleged Plaintiff’s Debt (1 st
Defendant’s Husband).
I am not able to accept the 1 st Defendant’s evidence

with regard to the Alleged Plaintiff’s Debt (1 st
Defendant’s Husband). This is because firstly, the 1 st
Defendant’s Husband did not make any demand at
any time for the Plaintiff to repay the Alleged
Plaintiff’s Debt (1 st Defendant’s Husband). Secondly,
the failure of the 1 st Defendant to call the 1 st
Defendant’s Husband to testify with respect to the
Alleged Plaintiff’s Debt (1 st Defendant’s Husband)
attracts an adverse inference pursuant to s. 114(g)
EA against the 1 st Defendant;
(4) if the SPA, Form 14A, PA and Transfer were genuine,

there was no reason why the Plaintiff who had sold the
Property for RM900,000.00, would still need to borrow
money from the 1 st Defendant’s Husband, 3 rd Defendant
and 4 th Defendant’s Husband;
(5) before I allude to the WeChat Messages, the following

matters are pertinent -
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(a) the WeChat Messages are made in Mandarin but a

Malay translation of the WeChat Messages has been
adduced as evidence in this case;
(b) the solicitors for the 1 st to 4 th Defendants have

classified the WeChat Messages as “Part B”
documents pursuant to O. 34 r. 2(2)(e)(i) RC, namely
the 1 st to 4 th Defendants have agreed only to the
authenticity of the WeChat Messages but dispute the
interpretation and weight of their contents - please
refer to KTL Sdn Bhd & Anor v. Leong Oow Lai and
2 other cases [2014] 1 LNS 427, at [32(b)]; and
(c) on 9.8.2019, when Mr. Gan cross-examined the 4 th

Defendant regarding the WeChat Messages, Ms.
Khoo stood up and informed the court that she did
not have the complete record of the WeChat
Messages. I stood the case down for Ms. Khoo to get
instruction from the 4 th Defendant on whether the 4 th
Defendant would wish to apply to court for an order
to compel the Plaintiff to hand over to Ms. Khoo the
complete record of the WeChat Messages. After this
case was recalled, Ms. Khoo informed the court that
the 4 th Defendant did not wish to make an application
for the complete record of the WeChat Messages.
During cross-examination by Mr. Gan, the 4 th Defendant

admitted as follows, among others -
(i) the 4 th Defendant had “typed” herself the WeChat

Messages to the Plaintiff; and
(ii) the 4 th Defendant gave the number of her bank

account in Hong Leong Bank Bhd (HLB) in WeChat
21
Message dated 31.3.2016 to the Plaintiff. The number

of the 3 rd Defendant’s HLB bank account was also
given by the 4 th Defendant to the Plaintiff in WeChat
Message dated 28.6.2016.
The following WeChat Messages (in chronology) are most

telling -
(ca) on 20.3.2016, the Plaintiff informed the 4 th

Defendant -
“Kak Lim [4 th Defendant], hari Selasa ambil yang

36 ribu itu pergi masuk! tq”
(emphasis added);
(cb) the 4 th Defendant told the Plaintiff at 19:40 hours,

3.4.2016 -
“Bagitahu saya lepas kirim, kerana esok saya kena

keluarkan untuk kembalikan kepada bos?”
(emphasis added);
(cc) the 4 th Defendant sent the following message to the

Plaintiff at 19:44 hours, 3.4.2016 -
“Esok jangan lambat sangat, kerana terlepas tiga

minggu, lagipun mereka bising semasa saya tolong
kamu merayu untuk dapat potongan? ”
(emphasis added); and
(cd) on 17.3.2017, the 4 th Defendant informed the

Plaintiff as follows -
“Pada hari Isnin, jika anda tidak boleh
22
mendapatkan modal asal, anda perlu mendapatkan

sekurang-kurangnya 2,000 baru dapat terangkan
kepada bos?”
(emphasis added);
The 4 th Defendant had incredulously claimed that the

“boss” in the above WeChat Messages was the 4 th
Defendant’s Husband. As explained in the above sub-
paragraphs 16(3)(ba) to (bd), I cannot accept such
evidence.
The WeChat Messages corroborated the Plaintiff’s oral and

documentary evidence (Plaintiff’s cheques and Plaintiff’s
Bank Statements) regarding the Plaintiff’s payment of
Monthly Interest (2 nd Loan);
(6) the following provisions in the SPA show that the SPA is a
sham -
(a) clause 1.1 SPA (Clause 1.1) stated that, among

others, a deposit of RM120,000 had already been
paid by the 1 st to 4 th Defendants to the Plaintiff.
Clause 2.1 SPA (Clause 2.1) provided that the
balance of the Price in a sum of RM780,000.00
(Balance Purchase Price) “shall” be paid by the 1 st
to 4 th Defendants to the Plaintiff on or before the
date stipulated in Part 12 of the First Schedule to the
SPA (1 st Schedule), namely 12 months from the date
of the SPA. Clauses 1.1 and 2.1 were mandatory
provisions because the parties to the SPA had used
an imperative term, “shall”.
Clauses 1.1 and 2.1 were not true because the 1 st to
23
4 th Defendants had paid in full the purported Price

even before the date of the SPA (15.12.2015);
(b) according to clause 9.1 SPA (Clause 9.1), the 1 st to

4 th Defendants “shall be entitled to receive the rents
and profits accruing therefrom as from the date ” of
the full payment of the Balance Purchase Price.
Notwithstanding that the purported Price had been
paid in full even before the SPA, the 1 st to 4 th
Defendants did not claim from the Plaintiff at any
time pursuant to Clause 9.1 the rent of the first floors
of the Property (Rent) and profit from the bird’s nest
business carried on at the Property [Profit (Bird’s
Nest Business)] which had been obtained by the
Plaintiff. It is clear that the mandatory Clause 9.1
was a mere façade;
(c) clause 9.6 SPA had defined “vacant possession”

(VP). Clause 1.1 SPA stipulated that the Property
was sold by the Plaintiff to the 1 st to 4 th Defendants
with VP. According to clause 9.2 SPA (Clause 9.2),
the Plaintiff “shall” deliver VP of the Property to the
1 st to 4 th Defendants within 7 days from the date of
receipt of the Balance Purchase Price in full by
Messrs SRT (as stated in Part 15 of the 1 st Schedule).
The purported “Price” of the SPA had been paid in
full before the execution of the SPA on 15.12.2015.
If Clause 9.2 were genuine, the 1 st to 4 th Defendants
“shall” be entitled to VP of the Property on
15.12.2015 and if the Plaintiff refused to hand over
VP of the Property, the 1 st to 4 th Defendants should
have filed a suit against the Plaintiff and applied for
an order of specific performance of the SPA; and
24
(d) clause 14 SPA (Clause 14) had provided that, among

others, quit rent, assessments, water, electricity and
sewerage charges (Outgoings) “shall” be
apportioned on the “Delivery Date” (defined in
Clause 9.2 as the date of delivery of VP of the
Property by the Plaintiff to the 1 st to 4 th Defendants)
between the parties. The 5 th Defendant admitted
during cross-examination by Mr. Gan that no
apportionment of the Outgoings had been carried out
as stipulated in Clause 14. It is therefore clear that
Clause 14 is a mere “window dressing”; and
(7) on 29.4.2017, the Plaintiff had lodged a police report

regarding the 1 st and 2 nd Loans.
[17] I acknowledge that the evidence of the 1 st and 3 rd to 5 th

Defendants mutually corroborate each other’s testimony. Having
said that, I find as a fact that the 1 st and 3 rd to 5 th Defendants are
not credible witnesses.
[18] This court’s finding of fact that the 1 st , 3 rd and 4 th Defendants

are not honest witnesses is premised on the following evidence
and reasons:
(1) the SD (1 st to 4 th Defendants) stated as follows -
“1. Saya/Kami telah membayar wang cengk eram

sebanyak [RM120,000.00] sahaja kepada [Plaintiff]
untuk membeli hartanahnya [details of Land and
Property].
2. Saya/Kami ingin memasukkan suatu Kaveat

Persendirian ke atas [sic] daftar hakmilik untuk
menjamin dan melindungi kepentingan kami.”
25
(emphasis added).
On 22.12.2015 [the date of the affirmation of the SD (1 st to

4 th Defendants)], paragraph 1 of the SD (1 st to 4 th
Defendants) [Paragraph 1] is false because the entire
“Price” of RM900,000.00 had already been paid by the 1 st
to 4 th Defendants.
I reproduce below s. 3 of the Statutory Declarations Act

1960 (SDA), ss. 193, 199 and 200 of the Penal Code (PC)
-
“SDA
s. 3 Declarations made by virtue of the provisions

of [SDA] shall be deemed to be such declarations as
are referred to in sections 199 and 200 [PC].
PC
s. 193 Whoever intentionally gives false

evidence in any stage of a judicial proceeding, or
fabricates false evidence for the purpose of being
used in any stage of a judicial proceeding, shall be
punished with imprisonment for a term which may
extend to seven years, and shall also be liable to
fine; and whoever intentionally gives or fabricates
false evidence in any other case, shall be punished
with imprisonment for a term which may extend to
three years, and shall also be liable to fine.
s. 199 Whoever, in any declaration made or

subscribed by him, which declaration any Court, or
any public servant or other person, is bound or
authorized by law to receive as evidence of any fact,
26
makes any statement which is false, and which he

either knows or believes to be false or does not
believe to be true, touching any point material to
the object for which the declaration is made or
used, shall be punished in the same manner as if he
gave false evidence.
s. 200 Whoever corruptly uses or attempts to

use as true any such declaration knowing the same
to be false in any material point, shall be punished
in the same manner as if he gave false evidence .”
(emphasis added).
The following offences may have been committed -
(a) the LA is a “public servant” within the meaning

of s. 21(i) and/or (j) PC. As understood in s.
199 PC, for the purpose of the entry of the
Caveat (1 st to 4 th Defendants), the LA is
authorised by s. 323(2) NLC to receive the SD
(1 st to 4 th Defendants) as evidence When the 1 st
to 4 th Defendants affirmed the false Paragraph
1, they may have committed an offence under s.
3 SDA read with ss. 193 and 199 PC [1 st
Offence (1 st to 4 th Defendants)]; and
(b) the 1 st to 4 th Defendants might have corruptly

used Paragraph 1 with the knowledge that
Paragraph 1 is false. Hence, an offence under s.
200 read with s. 193 PC may have been
committed [2 nd Offence (1 st to 4 th
Defendants)];
27
(2) it is difficult to believe that the 1 st to 4 th Defendants are

genuine co-purchasers of the Property because -
(a) there was no agreement among the 1 st to 4 th

Defendants regarding their alleged co-proprietorship
of the Land. There was also no evidence that before
or after the SPA, the 1 st to 4 th Defendants had jointly
purchased other landed property. Furthermore, the 1 st
to 4 th Defendants do not have any common business
or interest to acquire the Land in equal shares. In
other words, there was no reason why the 1 st to 4 th
Defendants would agree to purchase the Land in
equal shares;
(b) a bona fide purchaser of real estate would have

appointed a valuer to value the real estate before
acquiring that real estate. No valuation of the
Property had been done by the 1 st to 4 th Defendants
before they executed the SPA;
(c) a genuine purchaser of a landed property would have

entered and inspected the property before deciding to
acquire the property. However, the 1 st and 3 r d
Defendants admitted during cross-examination by
Mr. Gan that they had not entered the Property at any
time before the execution of the SPA;
(d) Clause 9.1 had expressly allowed the 1 st to 4 th

Defendants to claim for the Rent and Profit (Bird’s
Nest Business) from the Plaintiff and yet, the 1 st to
4 th Defendants did not do so. The irresistible
inference was that the 1 st to 4 th Defendants did not
buy the Property but gave the 2 nd Loan at high
interest rate to the Plaintiff;
28
(e) according to the LA’s Letter (13.1.2016), SA’s

Consent for the Transfer had already been given. The
1 st to 4 th Defendants only presented Form 14A for
registration under NLC on 6.4.2017. There was
therefore a delay of more than 1 year 2½ months
[from the date of LA’s Letter (13.1.2016) to
6.4.2017] in the registration of the Transfer.
Our NLC embodies the Torrens system which has

two essential features as explained in Md Erpan Bin
Mairi v. Kamaruddin Bin Yacoob & Ors, Shah Alam
High Court Civil Suit No. BA-21NCVC-41-07/2017,
at [52], as follows -
“[52] It is not disputed that the NLC embodies the

Torrens system with the following two essential
features:
(1) s. 89 NLC provides for the conclusiveness of

the “register document of title” (RDT) (defined
in s. 5 NLC). Any party who proposes to enter
into a dealing regarding title or interest in
alienated land may rely on the RDT by
conducting a search of the RDT; and
(2) once an instrument of dealing regarding a title

or interest in alienated land (Land
Instrument) has been registered by the
“Registrar” (Land Registrar) (defined in s . 5
NLC), by virtue of s. 340(1) NLC, the
registered title or interest in land “shall” be
indefeasible save for certain exceptions
stipulated in s. 340(2)(a) to (c) NLC
(Indefeasibility Principle).”
29
(emphasis added).
In view of the Indefeasibility Principle, a bona fide

purchaser of land will act expeditiously to ensure that the
transfer of title to the land from the vendor to the
purchaser is registered under NLC as soon as reasonably
possible. The inordinate delay in the registration of
Transfer in this case, could only mean that the 1 st to 4 t h
Defendants were not genuine co-purchasers of the Land;
and
(f) upon payment of the purported “Price” in full, by reason

of Clause 9.2, the 1 st to 4 th Defendants were entitled to VP
of the Property as early as 15.12.2015. However, the 1 st to
4 th Defendants only assumed possession of the Property in
April 2017. Such a delay of about one year 4 months does
not support the fact that the 1 st to 4 th Defendants are
genuine co-purchasers of the Property;
(3) if the 1 st to 4 th Defendants had shared equally in the

payment of the “Price” of the Property at RM900,000.00,
each of the 1 st to 4 th Defendants would had contributed
RM225,000.00 towards the “Price”. The 1 st to 4 th
Defendants had not adduced any documentary evidence
regarding their financial capability to pay RM225,000.00
each for the Property. On the contrary, the following
evidence casts doubt on the financial ability of the 1 st to
4 th Defendants to acquire the Property -
(a) 1 st Defendant has stated during her cross-examination

by Mr. Lui that she exports and imports fresh
seafood. The 1 st Defendant however did not produce
in court any documentary evidence that her business
30
had generated sufficient profit for her to contribute

RM225,000.00 for her ¼ share of the Property;
(b) when asked by Mr. Lui, the 3 rd Defendant testified

that she had previously worked as a hawker but she
had not worked for the past two years (before she
gave evidence in this case). In such circumstances,
the court seriously doubts how the 3 rd Defendant was
able to come up with RM225,000.00 for her ¼ share
of the Property; and
(c) the 4 th Defendant was first cross-examined by Mr.

Bryan Goh Tseng Fook (who assisted Mr. Lui on
behalf of the 5 th Defendant). The 4 th Defendant
answered during her cross-examination by Mr. Goh
that she had previously worked as an employee in a
snooker centre but she is now a homemaker.
When questioned by Mr. Gan, the 5 th Defendant gave

evidence that she was only paid RM2,000.00 a month
as an employee in a snooker center. The 4 th
Defendant further admitted during cross-examination
that her husband does not provide any money to her.
The 5 th Defendant however claimed that her son and
daughter worked in the United Kingdom and gave
money to her. I cannot give any credence to such a
testimony because firstly, the 4 th Defendant did not
call her son and daughter to testify in this case.
Furthermore, the 4 th Defendant did not provide any
document to evidence the source of income of her
son and daughter; and
(4) the credibility of the 1 st , 3 rd and 4 th Defendants is severely

undermined by undisputed contemporaneous documentary
31
evidence in the form of the Plaintiff’s personal cheques,

Plaintiff’s Bank Statements and WeChat Messages.
[19] The following evidence and reasons support my factual finding

that the 5 th Defendant is not a reliable witness:
(1) the 5 th Defendant is called to the Malaysian Bar on

18.12.1999. Since then, the 5 th Defendant has been in
active conveyancing practice. Consequently, the 5 th
Defendant had nearly 16 years of active conveyancing
practice from the date of her admission to the Malaysian
Bar (18.12.1999) until SPA (15.12.2015).
If an honest and reasonably competent conveyancing

solicitor who had about 16 years of active conveyancing
practice were informed that CML had demanded a sum of
RM780,000.00 as “compensation” for the Plaintiff’s
purported “revocation” of SPA (CML), the honest and
reasonably competent conveyancer would have known that
the SPA (CML) was not genuine;
(2) the 5 th Defendant drafted the SPA herself and yet, Clauses
1.1 and 2.1 were not true. Any lawyer who -
(a) drafts a contractual provision with the knowledge

that the provision is false; and
(b) attests the execution of the contract which contains

an untrue provision
- lacks honesty;
(3) the 5 th Defendant admitted during cross-examination by

Mr. Gan that Clause 14 was not complied with in this case;
32
(4) the 5 th Defendant had prepared the SD (1 st to 4 th

Defendants)]. In fact, the 5 th Defendant attested the
execution of Form 19B by the 1 st to 4 th Defendants and
then applied to the LA (on behalf of the 1 st to 4 th
Defendants) to enter the Caveat (1 st to 4 th Defendants). As
such, the 5 th Defendant might have abetted the commission
of the 1 st Offence (1 st to 4 th Defendants) which is an
offence in itself under s. 109 PC [1 st Offence (5 th
Defendant)];
(5) Messrs SRT’s Letter (12.5.2017) replied to Messrs VC’s

Demand with the following false statements -
(a) the penultimate paragraph in the first page of Messrs

SRT’s Letter (12.5.2017) stated that, among others,
RM780,000.00 was paid by the 1 st to 4 th Defendants
to “Tan Boon Sin” and CML. The evidence adduced
in this case, namely Messrs KR’s Letter (4.12.2015)
and Revocation Deed, clearly showed that the
payment of RM780,000.00 was made to CML only;
and
(b) in the second paragraph of the second page of Messrs

SRT’s Letter (12.5.2017), the 5 th Defendant stated
that the Plaintiff handed the IDT to the 1 st to 4 th
Defendants “for their onward transmission” of the
IDT to the 5 th Defendant. This statement was not true
because the IDT was delivered by Messrs KR (not by
the Plaintiff) to Messrs SRT (not to the 1 st to 4 th
Defendants);
(6) Messrs VC’S Letter (22.5.2017) requested from Messrs

SRT on an urgent basis for all documents, letters,
correspondence and receipts of payments. Messrs SRT did
33
not provide any document to Messrs VC. Nor was there a

reply by Messrs SRT to Messrs VC’S Letter (22.5.2017).
Such a conduct of the 5 th Defendant is relevant under s.
8(2) EA and shows a lack of candour on the part of the 5 th
Defendant; and
(7) during cross-examination by Mr. Gan, the 5 th Defendant

testified that she had ceased to act for the 1 st to 4 th
Defendants in February 2017. Subsequently, by way of
Messrs SRT’s Letter (27.3.2017), all documents (including
the IDT) had been handed over by the 5 th Defendant to the
1 st to 4 th Defendants. However, these relevant facts were
concealed by the 5 th Defendant from the Plaintiff.
F. Was ASOC defective against 5 th Defendant?
[20] Mr. Lui has contended that the ASOC does not disclose any
reasonable cause of action against the 5 th Defendant.
Furthermore, according to Mr. Lui, the ASOC has breached O.
18 r. 15(1) RC when the ASOC did not plead specifically any
relief against the 5 th Defendant.
[21] O. 18 r. 15(1) RC provides as follows:
“Statement of claim
O. 18 r. 15(1) A statement of claim shall state

specifically the relief or remedy which the plaintiff
claims; but costs need not be specifically claimed.”
(emphasis added).
[22] I am of the view that paragraphs 7 to 23, 25 and 27 to 32 ASOC

have pleaded sufficient material facts regarding the Plaintiff’s
34
claim that the 1 st to 5 th Defendants had committed a tort of

conspiracy to injure the Plaintiff by unlawful means [by way of
a breach of s. 5(1) MA]. The 5 th Defendant, a practising A&S,
cannot claim to be prejudiced by any defect in the ASOC
because -
(1) prior to the filing of the 5 th Defendant’s defence against

the Original Action [Defence (5 th Defendant)], the 5 th
Defendant did not request for further and better particulars
of the Plaintiff’s pleading pursuant to O. 18 r. 12(3) RC;
(2) the Defence (5 th Defendant) was subsequently amended

with leave of court. Hence, the 5 th Defendant’s Amended
Defence [AD (5 th Defendant)] was then filed. The 5 th
Defendant was not prejudiced by ASOC in any manner
regarding the filing of AD (5 th Defendant); and
(3) the 5 th Defendant had defended herself against the Original

Action by adducing evidence and two written submissions.
[23] The ASOC has not breached O. 18 r. 15(1) RC because the

Plaintiff has prayed for damages against all the Defendants,
including the 5 th Defendant, in sub-paragraphs 33(K) and (L)
ASOC.
G. Whether there was a contravention of s. 5(1) MA in this case
G(1). Relevant provisions of MA
[24] I reproduce below the Long Title, definition of “moneylender”

in s. 2 MA, ss. 5, 10OA and 15 MA:
“Long Title
35
An Act for the regulation and control of the business of

moneylending, the protection of borrowers of the monies
lent in the course of such business, and matters
connected therewith.
s. 2
“moneylender” means any person who carries on or

advertises or announces himself or holds himself out in
any way as carrying on the business of moneylending,
whether or not he carries on any other business; ”
5. Licences to be taken out by moneylender
(1) No person shall carry on or advertise or announce

himself or hold himself out in any way as carrying on the
business of moneylending unless he is licensed under this
Act.
(2) Any person who carry on or advertise or announce

himself or hold himself out in any way as carrying on the
business of moneylending without a valid licence, or who
continues to carry on such business after his licence has
expired or been suspended or revoked shall be guilty of
an offence under this Act and shall be liable to a fine of
not less than two hundred and fifty thousand ringgit but
not more than one million ringgit or to imprisonment for
a term not exceeding five years or to both, and in the case
of a second or subsequent offence shall also be liable to
whipping in addition to such punishment.
Presumption as to the business of moneylending
10OA Where in any proceedings against any person, it is

alleged that such person is a moneylender, the proof of a
36
single loan at interest made by such person shall raise a

presumption that such person is carrying on the business
of moneylending, until the contrary is proved .
Contract by unlicensed moneylender unenforceable
15. No moneylending agreement in respect of money

lent after the coming into force of [MA] by an unlicensed
moneylender shall be enforceable.”
(emphasis added).
[25] It is decided as follows in Wong Thian Choy & Anor v. Goodnite

Sdn Bhd & Anor [2019] 7 AMR 82, at [34] and [36]:
“[34] MA has been substantially amended as follows :
(1) Moneylenders (Amendment) Act 2003 (Act A1193)

has, among others -
(a) introduced a new long title to MA (Long

Title);
(b) introduced a new s. 5 MA; and
(c) amended s. 15 MA.
Act A1193 came into effect on 1.11.2003; and
(2) Moneylenders (Amendment) Act 2011 (Act A1390)

has, among others -
(a) provided a new definition of “moneylender” in

s. 2 MA;
(b) amended s. 5 MA; and
37
(c) introduced a new s. 10OA MA.
Act A1390 is enforced with effect from 15.4.2011.
[36] Firstly, I opine that cases decided regarding MA

before the enforcement of A1193 and A1390, should be
read with caution. It is decided in Barisan Tenaga
Perancang (M) Sdn Bhd v. Dr Mansur bin Hussain & Ors
[2017] 2 MLRH 177, at [48], as follows:
“[48] I am of the following view regarding MA :
(1) the title to MA and the above provisions in MA

show Parliament’s intention for MA to regulate the
business of moneylending and not to regulate all
kinds of moneylending transactions. Section 5( 1)
and (2) MA prohibit unlicensed moneylending
business and certain acts related thereto. MA does
not prohibit any moneylending transaction with
interest unless the lender has carried on an
unlicensed moneylending business;
(2) s. 10OA MA provides that in any proceedings

against any person where it is alleged that such
person is a moneylender, proof of a single loan at
interest made by such person shall raise a
rebuttable presumption that such person is carrying
on the business of moneylending. Even if a
presumption arises under s. 10OA MA against a
certain party, that party may adduce evidence to
rebut this presumption by proving that the party is
not carrying on moneylending business. A party is
38
only required to adduce evidence on a balance of

probabilities to rebut a statutory presumption -
please see the Supreme Court’s judgment delivered
by Wan Suleiman SCJ in Akin Khan bin Abdul
Rahman v. Public Prosecutor [1987] 2 MLJ 217, at
218-219; and
(3) s. 15 MA applies only to a moneylending

agreement by an unlicensed moneylender who is
carrying on business of moneylending. This is
because of the definition of “moneylender” in s . 2
MA.”
(emphasis added).
The High Court’s decision in Barisan Tenaga Perancang

has been affirmed by the Court of Appeal in a judgment
given by Abang Iskandar Abang Hashim JCA (as he then
was) in Dr Mansur bin Hussain & Ors v. Barisan Tenaga
Perancang (M) Sdn Bhd [2019] 1 LNS 661.”
(emphasis added).
G(2). Can Plaintiff rely on rebuttable presumption in s . 10OA MA?
[26] As explained in Wong Thian Choy, Parliament has introduced

s. 10OA MA by way of the Moneylenders (Amendment) Act
2011 (Act A1390). The issue that arises is whether the Plaintiff
can invoke a rebuttable presumption under s. 10OA MA that the
1 st to 4 th Defendants had carried on a moneylending business by
giving the 2 nd Loan to the Plaintiff without a moneylender’s
license granted by the Registrar of Moneylenders under s. 5B(1)
MA.
39
[27] I have no hesitation to decide in this case that a rebuttable

presumption (the 1 st to 4 th Defendants had carried on a
moneylending business by granting the 2 nd Loan to the Plaintiff
without a moneylender’s license) has arisen pursuant to s. 10OA
MA (Rebuttable Presumption). The Rebuttable Presumption
arises because there are undisputed contemporaneous documents
in the form of the Plaintiff’s personal cheques, Plaintiff’s Bank
Statements and WeChat Messages which proved that the
Plaintiff had paid Monthly Interest (2 nd Loan) to the 1 st to 4 th
Defendants. It is to be noted that s. 2 MA has given a wide
interpretation of “interest” as follows:
“ “interest” does not include any sum lawfully charged

in accordance with this Act by a moneylender for or on
account of stamp duties, fees payable by law and legal
costs but, save as aforesaid, includes any amou nt by
whatsoever name called in excess of the principal paid or
payable to a moneylender in consideration of or
otherwise in respect of a loan;”
(emphasis added).
G(3). Whether 1 st to 4 th Defendants can rebut Rebuttable

Presumption
[28] Once the Rebuttable Presumption arises under s. 10OA MA, the
1 st to 4 th Defendants have the evidential onus to rebut the
Rebuttable Presumption on a balance of probabilities - please
see Barisan Tenaga Perancang (M) Sdn Bhd v . Dr Mansur bin
Hussain & Ors [2017] 2 MLRH 177, at [48(2)].
40
[29] I find as a fact that the 1 st to 4 th Defendants had failed to rebut

the Rebuttable Presumption on a balance of probabilities. This
decision is due to the following evidence and reasons:
(1) Clauses 1.1 and 2.1 are false;
(2) as explained in the above paragraph 16, the Plaintiff’s

evidence regarding the 2 nd Loan is true;
(3) the 1 st , 3 rd and 4 th Defendants are not credible witnesses -

please refer to the above paragraphs 17 and 18; and
(4) despite serious allegations made by the Plaintiff in this

case against, among others, the 2 nd Defendant, the 2 n d
Defendant had elected not give any evidence to defend
himself. Such a failure on the 2 nd Defendant’s part attracts
the following three consequences -
(a) when there was sworn evidence adduced by the

Plaintiff in a trial against the 2 nd Defendant and there
was no evidence from the 2 n d Defendant to rebut the
Plaintiff’s testimony, the court may presume the
Plaintiff’s evidence to be true against the 2 nd
Defendant. In the Federal Court case of Takako
Sakao v. Ng Pek Yuan & Anor (No. 1) [2009] 6 MLJ
751, at [4], Gopal Sri Ram FCJ decided as follows:
“[4] In our judgment, two consequences inevitably

followed when the first respondent who was fully
conversant with the facts studiously refrained from
giving evidence. In the first place, the evidence
given by the appellant ought to have been presumed
to be true. As Elphinstone CJ said in Wasakah Singh
v. Bachan Singh [1931] 1 MC 125 at p 128:
41
If the party on whom the burden of proof lies

gives or calls evidence which, if it is believed,
is sufficient to prove his case, then the judge
is bound to call upon the other party, and has
no power to hold that the first party has failed
to prove his case merely because the judge
does not believe his evidence. At this stage, the
truth or falsity of the evidence is immaterial.
For the purpose of testing whether there is a
case to answer, all the evidence given must be
presumed to be true.”
(emphasis added);
(b) based on Takako Sakao (No. 1), at [5], the court

draws an adverse inference under s. 114(g) EA
against the 2 nd Defendant due to the 2 nd Defendant’s
failure to testify in this case; and
(c) I make an adverse inference under s. 114(g) EA

against the 1 st , 3 rd and 4 th Defendants for not calling
the 2 nd Defendant as a witness in this case. There was
no reason why the 1 st , 3 rd and 4 th Defendants could
not have applied to court to issue a subpoena which
could compel the 2 nd Defendant to give evidence in
this case.
I have not overlooked the claim by the 1 st , 3 rd and 4 th

Defendants that the 2 nd Defendant wished to “withdraw” as
a co-proprietor of the Land. Such a claim is not credible
because -
(i) if the 2 nd Defendant had genuinely purchased one-

quarter of the Property for RM225,000.00, the 2 nd
42
Defendant should not have hesitated to give evidence

to resist the Original Acton and to support the
Counterclaim (1 st to 4 th Defendants). It is clear that
the 2 nd Defendant had elected not to testify in this
case because the 2 nd Defendant was one of the
unlicensed moneylenders together with the 1 st , 3 rd
and 4 th Defendants who had jointly given the 2 nd
Loan to the Plaintiff in breach of s. 5(1) MA; and
(ii) notwithstanding the 2 nd Defendant’s “refusal” to give

evidence in this case, the 1 st , 3 rd and 4 th Defendants
could still have applied for a court subpoena to
compel the 2 nd Defendant to testify in this case.
G(4). Did 1 st to 4 th Defendants infringe s. 5(1) MA?
[30] In the event that I have erroneously invoked the Rebuttable

Presumption, I will now consider the following question
(independent of the application of s. 10OA MA) - whether the
Plaintiff has discharged the legal and evidential burden under s.
101(1), (2) and 102 EA to prove on a balance of probabilities
that the 1 st to 4 th Defendants had carried on a moneylending
business contrary to s. 5(1) MA by making the 2 nd Loan to the
Plaintiff and the 2 nd Loan was camouflaged by way of the SPA,
Form 14A and PA.
[31] This court makes a finding of fact that the Plaintiff has
succeeded to discharge the legal and evidential burden to prove
on a balance of probabilities that the 1 st to 4 th Defendants had
carried on a moneylending business contrary to s. 5(1) MA by
making the 2 nd Loan to the Plaintiff and by disguising the 2 nd
Loan by way of the SPA, Form 14A and PA. This decision is
based on the following evidence and reasons:
43
(1) the SPA is a sham as explained in the above sub-paragraph

16(6);
(2) the Plaintiff’s personal cheques, Plaintiff’s Bank

Statements and WeChat Messages constituted
contemporaneous documentary evidence to prove that as a
consequence of the 2 nd Loan, the Plaintiff had paid
Monthly Interest (2 nd Loan) to the 1 st to 4 th Defendants;
(3) the Plaintiff’s evidence regarding the 2 nd Loan is credible -

please see the above paragraph 16;
(4) based on the evidence and reasons elaborated in the above

paragraphs 17 and 18, this court cannot accept the 1 st , 3 rd
and 4 th Defendants as witnesses to the truth; and
(5) the three consequences which arise from the 2 nd

Defendant’s failure to give evidence in this case - please
refer to the above sub-paragraph 29(3).
[32] Based on the evidence and reasons stated in the above paragraph
31, the following offences might have been committed:
(1) the 1 st to 4 th Defendants might have committed an offence

under s. 5(2) MA [3 r d Offence (1 st to 4 th Defendants)];
(2) the Plaintiff had abetted in the commission of the 3 rd

Offence (1 st to 4 th Defendants), an offence which is
punishable under s. 109 PC read with s. 5(2) MA [Offence
(Plaintiff)]; and
(3) the 5 th Defendant might be liable for an offence under s.

29AA(1) MA [2 nd Offence (5 th Defendant)]. Section
29AA(1) MA provides as follows -
“Prohibition of assisting unlicensed moneylending.
44
29AA(1) Any person who assists a moneylender in

contravention of subsection 5(1) shall be guilty of
an offence under this Act and shall be liable to
imprisonment for a term not exceeding two years or
to a fine not exceeding twenty thousand ringgit or
to both.”
(emphasis added).
Section 29AA MA has been introduced by Act A1390.
G(5). Whether s. 17A MA applies in this case
[33] Mr. Lui has attempted to rely on s. 17A MA in this case. Section
17A MA states as follows:
“Interest for secured and unsecured loans
17A(1) For the purposes of this Act, the interest for a

secured loan shall not exceed twelve per centum per
annum and the interest for an unsecured loan shall not
exceed eighteen per centum per annum.
(2) Notwithstanding subsection (1), interest shall not at

any time be recoverable by a licensee of an amount in
excess of the sum then due as principal unless a Court,
having regard to all the circumstances, otherwise
decrees.
(3) Where in a moneylending agreement the interest

charged for a secured loan or an unsecured loan, as the
case may be, is more than that specified in subsection (1),
that agreement shall be void and have no effect and shall
not be enforceable.
45
(4) Any licensee who contravenes this section shall be

guilty of an offence under this Act and shall be liable to a
fine not exceeding twenty thousand ringgit or to
imprisonment for a term not exceeding eighteen m onths
or to both.”
(emphasis added).
[34] I am not able to find any Malaysian case which has interpreted
s. 17A MA.
[35] I am of the following view regarding s. 17A MA:
(1) it is clear from the Long Title to MA that the intention of

Parliament in enacting MA is to, among others, protect
borrowers in moneylending transactions [Object (MA)].
The Object (MA) is achieved by way of s. 5(1) MA - no
person can carry on a moneylending business unless the
person is licensed under MA;
(2) s. 17A(2) and (4) MA have expressly stated that these

provisions apply to a “licensee”. According to s. 2 MA, a
“licensee” means a moneylender to whom a license has
been issued under s. 5B MA; and
(3) s. 17A(1) and (3) MA do not expressly state that these

provisions only apply to licensed moneylenders. I opine
that s. 17A(1) and (3) MA can only apply to licensed
moneylenders. This opinion is premised on the following
reasons -
(a) if unlicensed moneylenders can rely on s. 17A(1) and

(3) MA, this will allow unlicensed moneylenders to
circumvent the prohibition in s. 5(1) MA. Such an
interpretation will defeat the Object (MA).
46
Accordingly, on a purposive construction of s.

17A(1) and (3) MA, these provisions can only apply
to licensed moneylenders; and
(b) MA has been revised under the Revision of Laws Act

1968. As such, by virtue of s. 2(1)(b) of the
Interpretation Acts 1948 and 1967 (IA), Part 1 of IA
applies in the construction of MA. Section 16 IA is
in Part 1 IA and states as follows -
“Notice to be taken of division into parts, chapters,

etc.
16. Where an Act or subsidiary legislation is

divided into parts or chapters or otherwise, the fact
and particulars of the division shall, without express
mention thereof in the Act or subsidiary legislation,
be taken notice of in all courts and for all purposes
whatsoever.”
(emphasis added).
Section 17A MA is in Part V of MA (Conduct of

Moneylending Business). As provided in s. 16 IA, the court
can take notice of Part V of MA. It is clear that Part V of
MA only applies to conduct of licensed moneylending
business because s. 5(1) MA has already prohibited the
carrying on of unlicensed moneylending business. Hence,
s. 17A MA (in Part V of MA) can only apply to licensed
moneylenders.
[36] As explained in the above paragraph 35, s. 17A MA has no

application in this case because the 1 st to 4 th Defendants are not
licensed moneylenders. There is a second reason why s. 17A MA
47
cannot be invoked by the Defendants. The SPA, PA and Form

14A had been contrived by the Defendants. Furthermore, the
Transfer had been registered under NLC. The Defendants are
clearly estopped by their own conduct from asserting that the
transaction between the Plaintiff on the one part and the 1 st to
4 th Defendants on the other part, is governed by s. 17A MA. The
doctrine of equitable estoppel has a wide application - please see
the judgment of Gopal Sri Ram JCA (as he then was) in the
Federal Court in Boustead Trading (1985) Sdn Bhd v. Arab-
Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294.
H. What is effect of breach of s. 5(1) MA?
[37] I reproduce below the relevant part of s. 24 CA:
“What considerations and objects are lawful, and what

not
s. 24 The consideration or object of an agreement is

lawful, unless -
(a) it is forbidden by a law;
(b) it is of such a nature that, if permitted, it would

defeat any law;
In each of the above cases, the consideration or object of

an agreement is said to be unlawful. Every agreement of
which the object or consideration is unlawful is void .”
(emphasis added).
H(1). Are 2 n d Loan and SPA valid?
48
[38] In view of the fact that the 2 nd Loan was granted by the 1 st to 4 th
Defendants in contravention of s. 5(1) MA [Breach (MA)], the
2 nd Loan is void under s. 15 MA read with -
(1) s. 24(a) CA [the 2 nd Loan is “forbidden” by s. 5(1) MA];

and/or
(2) s. 24(b) CA [the 2 nd Loan is of such a nature that, if

permitted, the 2 nd Loan would “defeat” s. 5(1) MA].
[39] It is decided in Dr HK Fong Brainbuilder Pte Ltd v. SG-Maths

Sdn Bhd & Ors [2018] 11 MLJ 701, at [41], that if a contract is
void under any paragraph in s. 24 CA, any other contract,
instrument or document which is related to the void contract
may be tainted with illegality and may also be rendered void.
[40] I have no hesitation to decide that the SPA is void for the
following reasons:
(1) as explained in the above sub-paragraph 16(6), the SPA

was a sham to conceal the Breach (MA). If the court does
not invalidate the SPA, this will allow the Defendants to
circumvent s. 5(1) MA and frustrate the Object (MA);
and/or
(2) premised on Dr HK Fong Brainbuilder, the SPA is

tainted by the Breach (MA) and is thereby rendered void.
H(2). Whether court should invalidate Transfer and Registered

Title (1 st to 4 th Defendants)
[41] The relevant part of s. 340 NLC provides as follows:
“Registration to confer indefeasible title or interest,

except in certain circumstances.
49
340(1) The title or interest of any person or body for

the time being registered as proprietor of any land, or in
whose name any lease, charge or easement is for the time
being registered, shall, subject to the following provisions
of this section, be indefeasible.
(2) The title or interest of any such person or body shall

not be indefeasible -
(b) where registration was obtained by forgery, or by

means of an insufficient or void instrument; or
…”
(emphasis added).
[42] Section 340(2)(b) NLC is similar to s. 42(iii) of the Federated

Malay States’ Land Code [LC (FMS)]. In the High Court case of
Appoo S/O Krishnan v. Ellamah D/O Ramasamy [1974] 2 MLJ
201, at 204, 205, 206 and 207, Azmi J (as he then was) set aside
a registered transfer of land under s. 42(iii) LC (FMS) on the
ground that, among others, the sale and purchase agreement in
that case was actually an unlicensed moneylending transaction.
[43] Form 14A in this case was obtained by the 1 st to 4 th Defendants

by way of the 2 nd Loan which constituted the Breach (MA).
Premised on Dr HK Fong Brainbuilder, Form 14A was tainted
by the Breach (MA). Consequently -
(1) Form 14A was a “void instrument” within the meaning of

s. 340(2)(b) NLC; and
(2) the Registered Title (1 st to 4 th Defendants) is defeasible.
50
[44] Additionally or alternatively, based on Appoo, the Transfer and

Registered Title (1 st to 4 th Defendants) should be invalidated.
H(3). Validity of PA, Plaintiff’s Acknowledgement (8.12.2015) and

Plaintiff’s Letter (9.12.2015)
[45] As explained in Dr HK Fong Brainbuilder, the PA, Plaintiff’s

Acknowledgement (8.12.2015) and Plaintiff’s Letter (9.12.2015)
were tainted with the Breach (MA). As such, the PA, Plaintiff’s
Acknowledgement (8.12.2015) and Plaintiff’s Letter (9.12.2015)
are void. It is to be noted that in Appoo, at p. 207, the High
Court had invalidated a power of attorney which was granted in
relation to an unlicensed moneylending transaction.
I. Is Plaintiff barred by ex turpi causa non oritur actio doctrine

from seeking relief in this case?
[46] Mr. Lui has raised an ingenious argument - as the Plaintiff is in

pari delicto regarding the Breach (MA), the Plaintiff is barred
by the doctrine of ex turpi causa non oritur actio and/or by
public policy from seeking any relief from the court. According
to Mr. Lui, the court should allow the “loss to lie where it falls”.
[47] I am not able to accede to the above submission for the

following reasons:
(1) case law doctrines are subject to written law. Hence, the
case law doctrine of ex turpi causa non oritur actio is
subject to ss. 5(1), 15 MA, s. 24(a), (b) CA and s.
340(2)(b) NLC. The Object (MA) is clear, especially in
view of the fact that s. 5(1) MA has been specifically
introduced by Parliament through the Moneylenders
(Amendment) Act 2003 (Act A1193). If this court has
51
applied ex turpi causa non oritur actio doctrine to refuse

any remedy to the Plaintiff, this will not only defeat the
Object (MA) as introduced by Act A1193 but this is also
contrary to s. 15(1) MA, s. 24(a), (b) CA and s. 340(2)(b)
NLC; and
(2) if I have refused to grant any relief to the Plaintiff in this

case, this will embolden unlicensed moneylenders to
contravene blatantly s. 5(1) MA without any adverse
consequence to unlicensed moneylenders. In financially
challenging times, there are “desperate” people who have
to borrow from “Ah Longs” at an exorbitant interest rate.
When these borrowers are unable to pay the illegal loans,
unlicensed moneylenders resort to despicable, if not
inhumane, methods to “recover” those loans. To deter
unlicensed moneylenders from continuing with their
nefarious business, it is in the public interest for
unlicensed moneylenders to be deprived of their illegal
“principal loan sums”, interest and whatever ill-gotten
property or benefit enjoyed from their unlawful
moneylending business.
J. What is appropriate relief to Plaintiff regarding Breach

(MA)?
[48] In view of the Breach (MA) and its consequences on the 2 n d

Loan, SPA, Transfer, Registered Title (1 st to 4 th Defendants) and
PA [please see the above Parts H(1) to H(3)], I exercise my
discretion to award the following relief to the Plaintiff:
(1) a declaration is granted under s. 41 of the Specific Relief

Act 1950 (SRA) and O. 15 r. 16 RC that the SPA, Form
14A, PA and Transfer are invalid;
52
(2) a declaration is made that the 1 st to 4 th Defendants own and

hold the Land as constructive trustees for the benefit of the
Plaintiff;
(3) a perpetual injunction is given pursuant to s. 52(1) SRA to

restrain the 1 st to 4 th Defendants from transferring or
charging the Land to any party until the Land is re-
transferred to the Plaintiff (Re-Transfer);
(4) a perpetual mandatory injunction is awarded under s. 53

SRA to compel the 1 st to 4 th Defendants to -
(a) execute all the required documents for the purpose of

the Re-Transfer; and
(b) deliver the IDT to the Plaintiff;
(5) if the 1 st to 4 th Defendants fail to perform the Re-Transfer,

the court registrar shall be ordered to execute all the
required documents for the purpose of the Re-Transfer;
and
(6) the LA is ordered to register the Re-Transfer under s.

417(1) NLC. Section 417(1) NLC provides as follows -
“General authority of the Court.
417(1) The Court or a Judge may by order

direct the Registrar or any [LA] to do all such
things as may be necessary to give effect to any
judgment or order given or made in any proceedings
relating to land, and it shall be the duty of the
Registrar or [LA] to comply with the order
forthwith.”
(emphasis added).
53
K. Whether court should order P laintiff’s restitution of 2 nd

Loan in favour of 1 st to 4 th Defendants
[49] Pursuant to the court’s oral decision regarding the Breach (MA)
and its consequences, Ms. Khoo has invited this court to order
the Plaintiff to return RM900,000.00 to the 1 st to 4 th Defendants
[Restitution Prayer (1 st to 4 th Defendants)]. Ms. Khoo has
relied on the following grounds:
(1) s. 66 CA; and/or
(2) the doctrine of unjust enrichment.
In support of the Restitution Prayer (1 st to 4 th Defendants), Ms.

Khoo has cited, among others, the Court of Appeal’s judgment
delivered by Zabariah Yusof JCA (as she then was) in Paragon
Union Bhd v. Prestamewah Development & Anor and another
appeal [2018] 4 MLJ 307.
[50] Firstly, Paragon Union does not concern a breach of s. 5(1)

MLA and the Object (MA).
[51] I will take this opportunity to discuss whether s. 71 CA applies

in favour of the Restitution Prayer (1 st to 4 th Defendants).
[52] Sections 66 and 71 CA state as follows:
“Obligation of person who has received advantage under

void agreement, or contract that becomes void
s. 66. When an agreement is discovered to be void, or

when a contract becomes void, any person who has
received any advantage under the agreement or contract
is bound to restore it, or to make compensation for it, to
the person from whom he received it.
54
Obligation of person enjoying benefit of non -gratuitous

act
s. 71. Where a person lawfully does anything for another

person, or delivers anything to him, not intending to do
so gratuitously, and such other person enjoys the be nefit
thereof, the latter is bound to make compensation to the
former in respect of, or to restore, the thing so done or
delivered.”
(emphasis added)
K(1). Does s. 71 CA apply to Restitution (1 st to 4 th Defendants)?
[53] In an appeal to the Privy Council from Malaysia, Siow Wong

Fatt v. Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118, at
120, Lord Upjohn has decided that the following four conditions
must be fulfilled cumulatively by a plaintiff before the plaintiff
can rely successfully on s. 71 CA:
“It has been common ground before their Lordships that

four conditions must be satisfied to establish a claim
under section 71.
The doing of the act or the delivery of the thing referred

to in the section:
(1) must be lawful
(2) must be done for another person
(3) must not be intended to be done gratuitously
(4) must be such that the other person enjoys the

benefit of the act or the delivery.”
55
(emphasis added).
The above decision in Siow Wong Fatt has been applied by

Balia Yusuf Wahi FCJ in the Federal Court in Usima Sdn Bhd v.
Lee Hor Fong (trading under the name and style of Pembinaan
LH Fong) [2017] 5 MLJ 273, at [55] to [57].
[54] The 1 st to 4 th Defendants cannot rely on s. 71 CA because the

first condition for the application of s. 71 CA as explained in
Siow Wong Fatt has not been satisfied in this case. This is
because the 2 nd Loan is unlawful due to a breach of s. 5(1) MA.
K(2). Can 1 st to 4 th Defendants rely on s. 66 CA?
[55] It is decided in Dr HK Fong Brainbuilder, at [47] and [48], as

follows:
“[47] According to [Tan Chee Hoe & Sons Sdn Bhd v.

Code Focus Sdn Bhd [2014] 4 MLRA 1], for s . 66 CA to
apply -
(1) there must be evidence that a contracting

party has received an “advantage” in an
agreement “discovered to be void” or when the
agreement “becomes void”; and
(2) any contracting party who received an

advantage can be ordered by the court to
restore the advantage or pay compensation to
the other contracting party.
[48] I am unable to invoke s. 66 CA in this case because

the 1 st Defendant has made payments under the MLA
(2013) to Dr. Fong and the Plaintiff regarding the 1 st
56
Defendant’s right to operate BrainBuilder Business. As

such, the 1 st Defendant has not received any advantage
under the MLA (2013) to be restored to the Plaintiff
under s. 66 CA. Moreover, the Plaintiff has taken the
position in this case that MLA (2013) is valid and has not
breached FA. Hence, the Plaintiff did not plead in the
SOC and adduce any evidence regarding any advantage
received by the 1 st Defendant under a void MLA (2013).”
(emphasis added).
[56] I have decided not to allow the Restitution Prayer (1 st to 4 th

Defendants) under s. 66 CA. My reasons are as follows:
(1) the following conduct of the 1 st to 4 th Defendants does not

support the Restitution Prayer (1 st to 4 th Defendants) -
(a) the 1 st to 4 th Defendants had not only breached s.

5(1) MA but had camouflaged the Breach (MA) in
the form of the SPA, Form 14A and PA;
(b) the Caveat (1 st to 4 th Defendants) had been wrongly

entered under s. 323(1)(a) NLC because the 1 st to 4 th
Defendants were not genuine co-purchasers of the
Land. Accordingly, the 1 st to 4 th Defendants had no
“caveatable interest” in the Land within the meaning
of s. 323(1)(a) NLC so as to be entitled to enter the
Caveat (1 st to 4 th Defendants) - please see the
judgment of Gopal Sri Ram JCA (as he then was) in
the Court of Appeal case of Luggage Distributors
(M) Sdn Bhd v. Tan Hor Teng & Anor [1995] 1 MLJ
719, at 755-756;
57
(c) Paragraph 1 had been falsely affirmed by the 1 st to

4 th Defendants before the CO - please refer to the
above sub-paragraph 18(1);
(d) upon the Plaintiff’s failure to pay the Monthly

Interest (2 nd Loan), without giving any notice to the
Plaintiff, the 1 st to 4 th Defendants “enforced” the 2 nd
Loan by registering the Transfer;
(e) the 1 st to 4 th Defendants denied the Original Action.

In fact, the Counterclaim (1 st to 4 th Defendants) had
been filed without any prayer for restitution of the
2 nd Loan;
(f) the 1 st , 3 rd and 4 th Defendants have resisted the

Original Action to the hilt and this court has found
them to be less than honest (please refer to the above
paragraphs 17 and 18); and
(g) the 1 st Offence (1 st to 4 th Defendants), 2 nd Offence

(1 st to 4 th Defendants) and 3 rd Offence (1 st to 4 th
Defendants) might have been committed in this case;
(2) the 1 st to 4 th Defendants are clearly in pari delicto

regarding the Breach (MA). Accordingly, the doctrine of
ex turpi causa non oritur actio and/or by public policy bar
the Restitution Prayer (1 st to 4 th Defendants). The 1 st to 4 th
Defendants are the authors of their own “misfortune” and
this court should allow the loss of the 2 nd Loan to fall
solely on the 1 st to 4 th Defendants;
(3) if I have allowed the Restitution Prayer (1 st to 4 th

Defendants), this may undermine, if not defeat, the Object
(MA). Such a restitutionary order may send the “wrong”
58
message to unlicensed moneylenders as explained in the

above sub-paragraph 47(2); and
(4) the Plaintiff had paid Monthly Interest (2 nd Loan) to the 1 st

to 4 th Defendants. Since the 1 st to 4 th Defendants took
possession of the Property, the 1 st to 4 th Defendants had
enjoyed the Rent and Profit (Bird’s Nest Business). In
other words, the 1 st to 4 th Defendants did not suffer a total
loss of RM900,000.00.
K(3). Whether 1 st to 4 th Defendants can rely on unjust enrichment

doctrine
[57] In the Federal Court case of Dream Property Sdn Bhd v. Atlas
Housing Sdn Bhd [2015] 2 MLJ 441, at [110], [117] and [118],
Azahar Mohamed FCJ (as he then was) has decided that the
court may apply the doctrine of unjust enrichment if a plaintiff
(X) can prove all the following four conditions against a
defendant (Y):
(1) Y has been enriched;
(2) Y’s enrichment has been gained at X’s expense;
(3) Y’s retention of the benefit is unjust; and
(4) Y has no defence to extinguish or reduce Y’s liability to

make restitution to X.
[58] I have no hesitation to refuse the Restitution Prayer (1 st to 4 th

Defendants) on the ground of unjust enrichment doctrine
because -
(1) the Plaintiff’s “enrichment” in the form of the 2 nd Loan

had not been gained at the “expense” of the 1 st to 4 th
59
Defendants. The 1 st to 4 th Defendants had unlawfully

carried on a moneylending business and any money lent by
them should not be considered in law to be an “expense”
which is recoverable by the 1 st to 4 t h Defendants. Hence,
the non-fulfilment of the second condition for the
application of the doctrine of unjust enrichment in this
case; and/or
(2) the third condition for the invocation of the doctrine of

unjust enrichment has not been met here. The Plaintiff’s
retention of the 2 nd Loan is not unjust in view of the
Object (MA) and the need to send a message of deterrence
to unlicensed moneylenders that the court will not allow
unlicensed moneylenders to recover their illegal “principal
loan sums” - please see the above sub-paragraph 47(2).
L. Can court allow Plaintiff’s claim for tort of conspiracy to

injure Plaintiff?
[59] The tort of conspiracy has been explained in Muniandy a/l

Nadasan & Ors v. Dato’ Prem Krishna Sahgal & Ors [2016] 11
MLJ 38, at [18] and [21] as follows:
“[18] My understanding of case law is that there are

2 kinds of tort of conspiracy to injure, namely -
(1) tort of conspiracy to injure by unlawful

means; and
(2) tort of conspiracy to injure by lawful means .
[21] Based on my understanding of the above cases -
60
(1) the 3 elements of the tort of conspiracy to injure by

unlawful means (3 Elements), are as follows:
(a) there must be proof of -
(i) an agreement; and/or
(ii) a combination of efforts
of the conspirators to injure the plaintiff. Such an

agreement or combination may be -
(ai) formal or informal; or
(aii) in writing or by word of mouth;
(b) there are acts committed to execute the

agreement or combination to injure the
plaintiff; and
(c) the plaintiff has suffered damage due to acts

done in execution of the agree ment or
combination to injure the plaintiff.
(2) the tort of conspiracy to injure by lawful means has

the 3 Elements and a fourth ingredient, namely
there is a pre-dominant purpose or intention of the
conspirators to injure the plaintiff.”
(emphasis added).
[60] I am satisfied that the Plaintiff has proven on a balance of

probabilities that all the Defendants have committed a tort of
conspiracy to injure the Plaintiff by unlawful means [Tort (1 st
to 4 th Defendants)]. The three elements of the Tort (1 st to 4 th
Defendants) are proven as follows:
61
(1) there was an agreement among all the Defendants to injure

the Plaintiff [Agreement (Conspiracy)] by -
(a) giving the 2 nd Loan to the Plaintiff which is contrary

to s. 5(1) MA;
(b) disguising the 2 nd Loan in the form of the SPA, Form

14A and PA;
(c) imposing exorbitant Monthly Interest (2 nd Loan); and
(d) entering the Caveat (1 st to 4 th Defendants);
(2) the Defendants had committed the following acts in

execution of the Agreement (Conspiracy) [Acts
(Conspiracy)] -
(a) the execution of the SPA, Form 14A and PA; and
(b) the lodgement of the Caveat (1 st to 4 th Defendants)

with the LA; and
(3) the Plaintiff had suffered damage as a result of the Acts

(Conspiracy), namely -
(a) the Plaintiff had to pay Monthly Interest (2 nd Loan);

and
(b) the Plaintiff’s title to the Land was unlawfully

transferred to the 1 st to 4 th Defendants; and
(c) the Plaintiff could not enjoy the Rent and Profit
(Bird’s Nest Business) when the 1 st to 4 th Defendants
took possession of the the Property.
[61] Despite the commission of the Tort (1 st to 4 th Defendants), I

cannot grant any relief to the Plaintiff. Firstly, the court cannot
62
award any relief to a plaintiff (Z) for any tort committed against
Z when the tort is based on Z’s own unlawful act. I cite the
following judgment of Ewbank J in the English High Court in
Ashton v. Turner [1980] 3 All ER 870, at 877:
“… The conclusion I have come to is that the law of

England may in certain circumstances not recognise the
existence of a duty of care by one participant in a crime
to another participant in the same crime, in relation to an
act done in connection with the commission of that crime.
That law is based on public policy, …”
(emphasis added).
In this case, the Plaintiff had committed the Offence (Plaintiff)

when he accepted the 2 n d Loan and the 2 n d Loan had been fully
disbursed. Hence, the doctrine of ex turpi causa non oritur actio
and/or public policy will deny the Plaintiff of any remedy
regarding the Tort (1 st to 4 th Defendants).
[62] There is another reason for disallowing the Plaintiff to claim for
any relief with regard to the Tort (1 st to 4 th Defendants). The
Plaintiff had consented to the 2 nd Loan and all the consequences
arising therefrom. The Plaintiff could not claim ignorance of the
“onerous” effect of an unlicensed loan as he had previously
accepted the 1 st Loan. The Defendants can rely on the defence of
volenti non fit injuria as explained by Lord Herschell in the
House of Lords in Smith v. Baker & Sons [1891-4] All ER 69, at
87, as follows:
“It was said that the maxim volenti non fit injuria
applied, and effectually precluded the plaintiff from
recovering. The maxim is founded on good sense and
justice. One who has invited or assented to an act being
63
done towards him cannot, when he suffers from it,

complain of it as a wrong.”
(emphasis added).
M. Outcome of Counterclaim (1 st to 4 th Defendants)
[63] As explained in the above Parts E, G(1) to G(4), H, H(1) to

H(3), I to K and K(1) to K(3), I am constrained to dismiss the
Counterclaim (1 st to 4 th Defendants).
N. Costs
[64] The court has an unfettered discretion under O. 59 rr. 2(2) and
19(1) RC to award costs after a trial.
[65] I have decided to exercise my discretion pursuant to O. 59 rr.

2(2) and 19(1) RC not to award costs for the Original Action and
Counterclaim (1 st to 4 th Defendants). This exercise of discretion
is dependent on the following reasons:
(1) despite the fact that the Plaintiff is substantially successful

in the Original Action, I did not award any costs to the
Plaintiff against the Defendants. This is because firstly,
the Plaintiff had willingly accepted the 1 st and 2 nd Loans
contrary to s. 5(1) MA. Secondly, save for the Monthly
Interest (2 nd Loan), there was no order for the Plaintiff to
repay the 2 nd Loan to the 1 st to 4 th Defendants. In other
words, the Plaintiff now enjoys the balance of the 2 nd Loan
[after deducting the Monthly Interest (2 nd Loan)]. Lastly,
the Plaintiff should be deprived of costs in view of the
possible commission of the Offence (Plaintiff);
64
(2) the 1 st to 4 th Defendants cannot claim any costs in this case

because -
(a) the 1 st to 4 th Defendants had carried on an unlicensed

moneylending business which is prohibited by s. 5(1)
MA. The court cannot award costs in light of such an
illegal conduct on the part of the 1 st to 4 th Defendants
- please refer to Dr HK Fong Brainbuilder, at [72].
Furthermore, the 1 st Offence (1 st to 4 th Defendants),
2 nd Offence (1 st to 4 th Defendants) and 3 rd Offence
(1 st to 4 th Defendants) might have been committed in
this case;
(b) the 1 st to 4 th Defendants did not resist successfully

the Original Action; and
(c) the Counterclaim (1 st to 4 th Defendants) was not

allowed; and
(3) the 5 th Defendant was not entitled to any costs because she
had abetted the 1 st to 4 th Defendants in the Breach (MA).
Worse still, the 5 th Defendant had concealed and
“securitised” the 2 nd Loan. The 5 th Defendant is a senior
A&S who is duty bound to uphold the law at all times.
Instead, the 1 st Offence (5 th Defendant) and 2 nd Offence
(5 th Defendant) might have been perpetrated.
O. Court’s decision
[66] Premised on the above evidence and reasons -
(1) the Original Action is allowed with -
(a) the orders as stated in the above paragraph 48; and
65
(b) no order of restitution and/or damages is made in

respect of the Original Action;
(2) the Counterclaim (1 st to 4 th Defendants) is dismissed; and
(3) no order as to costs is made in this case.
[67] In closing, an A&S should not abet in any unlicensed

moneylending business, let alone conceal and “securitize” it by
way of a Sale and Purchase Agreement of landed property. Any
A&S who does so, should face the full measure of the law and
the most severe disciplinary sanction of being struck off the Roll
of A&S under s. 94(2) of the Legal Profession Act 1976.
(WONG KIAN KHEONG)

Judge
High Court of Malaya
Shah Alam, Selangor Darul Ehsan
Dated: 8 NOVEMBER 2020
COUNSEL:
For the plaintiff - Alex Gan Yi Yang, Siow Kim Leong, Teo Guan Seng &
Vilasiny Gannasen; M/s Siow Kim Leong & Co
For the1st to 4th defendants - Khoo Ai Theng; M/s Ng Kee Way & Co
For the 5th defendant - Lui Kar Yee & Bryan Goh Tseng Fook; M/s Lim Kian
Leong & Co
Legislation referred to:
Evidence Act 1950, ss. 91, 92, 101(1), (2), 102
66
Moneylenders Act 1951, ss. 2, 5(1), 5B(1), 10OA, 15, 17A
Contracts Act 1950, ss. 24, 66, 71
Legal Profession Act 1976, s. 94(2)
National Land Code, s. 340(2)(b)
Rules of Court 2012, O. 18 r. 15(1), O. 59 rr. 2(2), 19(1)
67

Yeow Guang Cheng V Tang Lee Hiok & Ors (2020) 1 LNS 1696

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Yeow Guang Cheng V Tang Lee Hiok & Ors (2020) 1 LNS 1696

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[2020] 1 LNS 1696 Legal Network Series

IN THE HIGH COURT OF MALAYA AT SHAH ALAM

YEOW GUANG CHENG

1. TANG LEE HIOK (NRIC No.: 660510-10-6248)

2. LIM BOON KEONG (NRIC No.: 580711-10-5647)

3. TAN MEE LIAN (NRIC No.: 630211-10-6902)

4. LIM HIANG (NRIC No.: 630807-10-7172)

5. TAN KAH CHEN (BC/T/863) … DEFENDANTS

[1] This judgment essentially concerns whether -

(1) a sale of the plaintiff’s (Plaintiff) property in a piece of

(2) the subsequent registration of the transfer of the Land from

- is genuine or an unlicensed moneylending business which

(1) a declaration that the following documents are null and

(a) a Sale and Purchase Agreement dated 15.12.2015

(b) an instrument under NLC to transfer the Land from

(c) a power of attorney regarding the Land executed by

(2) a declaration that the Transfer is invalid;

(3) a declaration that the 1 st to 4 th Defendants are registered as

(4) a perpetual mandatory injunction to compel the 1 st to 4 th

(a) execute all the required documents to re-transfer the

(b) deliver the “Issue Document of Title” of the Land

(5) an order for the 1 st to 4 th Defendants to refund all the

(6) an order for the 1 st to 5 th Defendants (collectively referred

[3] In this case the 1 st to 4 th Defendants are represented by the same

[4] The 1 st to 4 th Defendants have filed a counterclaim in this case

(1) a perpetual mandatory injunction to compel the Plaintiff to

(2) an order for the Plaintiff to pay to the 1 st to 4 th Defendants

(a) damages for unlawfully occupying the Property

[5] The 5 th Defendant’s Amended Defence pleaded in essence that,

[6] By consent of all the parties, the Original Action and

C(1). Admissibility of extrinsic evidence to contradict SPA

[7] It is not disputed that as a general rule, by reason of ss. 91 and

(1) one of the exceptions to the General Rule is proviso (a) to

Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281, at

(2) the court has a discretionary power to decide whether a

“[29(2)(c)] … In the English Court of Appeal case of

The above decision in Jemix has been affirmed on appeal by

[9] Based on the aforesaid reasons, I admit oral and documentary

C(2). Plaintiff’s case

[10] Only the Plaintiff testified in support of the Original Action.

(1) on or about 15.8.2015, the Plaintiff borrowed

(a) the 1 st Loan was an unlicensed moneylending

(i) the Plaintiff handed the IDT to CML’s

(ii) the Plaintiff and CML signed a Sale and

(iii) the Plaintiff paid monthly interest for the 1 st

(b) the Plaintiff could not subsequently pay the Monthly

[Plaintiff’s Debt (CML)]. Hence, to avoid the Land

(2) the 1 st to 4 th Defendants were unlicensed moneylenders

(a) the 2 nd Loan was for a sum of RM900,000.00;

(b) the 1 st to 4 th Defendants would pay the Plaintiff’s

(c) the Plaintiff would pay interest for the 2 nd Loan to

(d) the Plaintiff was required to execute the SPA, Form

(3) the Plaintiff accepted the 2 nd Loan on the terms and

(4) from March to September 2016, the Plaintiff had paid to

Ms. Khoo Ai Teng, learned counsel for the 1 st to 4 th

(5) subsequently, the Plaintiff was unable to pay Monthly

(a) the 4 th Defendant sent “WeChat” messages and voice

(b) the Transfer was registered without the Plaintiff’s