DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W ANTARA

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1 DALAM MAHKAMAH RAYUAN MALAYSIA DI PUTRAJAYA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W ANTARA DATO HAMZAH BIN ABDUL MAJID (NRIC No.: PERAYU DAN OMEGA SECURITIES SDN BHD (No. Syarikat: U) (Dalam Likuidasi)... RESPONDEN [Dalam Perkara mengenai Guaman No. D Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Antara Omega Securities Sdn Bhd (No. Syarikat: U) (Dalam Likuidasi) Plaintif Dan Dato Hamzah Bin Abdul Majid (No. K/P: )... Defendan] CORAM: ABDUL WAHAB PATAIL, JCA CLEMENT ALLAN SKINNER, JCA MOHAMAD ARIFF MD YUSOF, JCA

2 GROUNDS OF DECISION INTRODUCTION AND BACKGROUND FACTS [1] The appellant in this appeal was the defendant in the court below. The respondent/plaintiff was a stock broking company which brought a claim against him for recovery of a fairly large sum of monies due (RM12,658, as at ) together with interest thereon from (at the rate of 13.75% per annum on daily rests). At the time the action was filed in the High Court in 2007, the respondent had been wound up, and therefore the action was brought by the provisional liquidator as part of the recovery process in liquidation. The respondent claimed this sum as monies owing and unpaid under a Margin Facility Agreement ( MFA ) granted by it to the appellant. The MFA provided a margin trading facility to the appellant to trade in shares up to an approved limit of RM10 million. This was to finance the purchase of shares listed on the then Kuala Lumpur Stock Exchange ( KLSE ) by the appellant. This margin trading facility was granted in September It was secured by shares pledged by the appellant the collateral to support the margin trading financed by the respondent. The collateral consisted of 15,939,000 Wembley Industries Holdings Bhd ( Wembley ) shares. The appellant was then the Chairman of Wembley, then a listed company on the KLSE. Wembley was delisted sometime in [2] The respondent made the claim on the basis that these sums were incurred as contra losses, for which there was ample evidence to show trading on the margin account by the appellant. The appellant alleged that what was granted was a loan, and it was barred by limitation since the 2

3 default occurred in 1999, well in excess of the six years limitation period under s. 6(1)(a) of the Limitation Act The date of the first demand by the respondent was The margin facility was recalled on The respondent claimed the contra losses, the accumulated fees and interests which then amounted to RM12,658, as of that date. OUR DECISION [3] The case proceeded to full trial where 2 witnesses were called for the plaintiff/respondent, with one witness (the defendant/appellant himself) for the defendant/appellant. The learned High Court allowed the plaintiff s claim. We agreed with the decision of the High Court and therefore unanimously dismissed the appeal with costs of RM20, to be paid by the appellant, with the deposit ordered to be refunded to the appellant. After considering the evidence and the law in totality, and bearing in mind the comprehensive decision of the High Court, we found no ground to interfere with the findings and decision of the High Court. THE APPELLANT S GROUND OF APPEAL [4] The appellant raised 27 grounds of appeal in his amended memorandum of appeal. It is not necessary to repeat them here, except to observe that ultimately these 27 grounds were reduced in the course of submission to the following issues: (a) The learned trial judge failed to evaluate the case on the totality of the evidence. 3

4 (b) The respondent s claim was for contra losses but there was no proof by primary evidence. (c) The relationship between the appellant and the respondent was that of lender and borrower, and the whole transaction was in truth and in fact a loan transaction. (d) The purpose of the loan was to allow the appellant to obtain funds to undertake his business. (e) A sum of RM7,953, was credited into the account of Cempaka Holdings, a company controlled by the appellant for this purpose. (f) The respondent s own witness (PW1) agreed that this sum was released to Cempaka Holdings, and the learned judge should have accepted his evidence and hold that the transaction was a loan, not margin financing. (g) To this extent there was misdirection by the judge. (h) The judge also misdirected himself by placing the burden of proving the fact of the loan on the appellant, whereas the burden of proof lay on the respondent. (i) Since the transaction was a loan, the whole case of the respondent collapsed since the claim was barred by limitation. 4

5 [5] The arguments advanced by the appellant centred essentially on two basic points (i) the transaction was a loan, and (ii) the respondent s claim was barred by limitation. If it was actually a loan in fact and in law, the respondent s claim could not succeed since the transaction would have been illegal for breach of KLSE Rules, the Banking and Financial Institutions Act 1989 ( BAFIA ) and the Securities Industry Act 1983 ( SIA ). A stock broking company, not being a licensed bank or financial institution under BAFIA, could not have granted a loan to the appellant. [6] The appellant took to task the shortcomings in the documentation. The MFA was undated and unstamped; likewise, the Power of Attorney granted by the appellant to the respondent, which supplemented the MFA, was additionally not registered in the High Court as required by law. THE RESPONDENT S GROUNDS [7] The respondent, on the other hand, denied it was a loan. It was a margin trading facility collateralised by the Wembley shares as security. There was ample documentary evidence to prove the transaction as a margin trading facility. Further, the issue that the transaction was a loan was not even pleaded, although raised at the trial. No issue on limitation really arose, since section 21(1) of the Limitation Act applied. It was a case of a recovery of a principal sum of money secured by personal property for which the limitation period was 12 years from the date the right to receive the money accrued. Issue of Limitation and the Earlier Application to Set Aside [8] The issue on limitation was the very subject matter of an earlier application by the appellant to strike out the respondent s suit which was 5

6 dismissed on by a different judge of the High Court. The appeal to the Court of Appeal on the striking out application was also dismissed by the Court of Appeal on The High Court had categorically held that s.21(1) applied. See the following excerpt from the judgment of the High Court in this setting aside application: an important fact which requires to be kept in mind is that Wembley shares were pledged by the Defendant pursuant to Clause 9(a) of the Margin Facility Agreement. That said, I would now refer to section 21(1) of the Act which is clear in its terms. In so far as it is relevant to the present case, it says that no action shall be brought to recover any principal sum of money secured by personal property after the expiration of 12 years. To add to this is the proviso of section 6(a)(b) which clearly says that nothing in section 6 should apply to any action to recover money secured by personal property. This proviso provides that an action to recover a principal sum secured by a charge on personal property is barred after the expiration of 12 years. (paragraphs [3] and [4] of the Grounds of Judgment) The judgment of the High Court was affirmed by the Court of Appeal in Rayuan Sivil No. W [9] In view of the decision of the High Court and the Court of Appeal in the striking out application, the position in relation to the issue of limitation must be regarded as settled. What remained was the issue on whether the transaction was a loan. 6

7 The Allegation of a Loan Transaction as an Unpleaded Issue [10] We noted that this issue never surfaced during the earlier striking out proceedings. It was also not part of the appellant s pleaded case. We were mindful that the learned Judicial Commissioner allowed the issue of the alleged loan to be raised in the course of the trial although it was unpleaded, but this stance of the High Court was appropriately qualified. The learned Judicial Commissioner said in this context: Counsel for the Plaintiff however, did not object to questions relating to the alleged loan by Counsel for the Defendant during the cross-examination of PW1. When asked by the Court on whether he was raising any objection to the defence of a loan which had not been pleaded in the Defence, Counsel for the Plaintiff informed the Court that he would do so in his submission. As the Counsel for the Plaintiff did not take the opportunity to raise his objection at that stage of the proceedings, I allowed Counsel for the Defendant to proceed to cross-examine PW1 on the alleged loan. Counsel for the Plaintiff chose not to raise the objection not because he did not know the law or had overlooked the matter but elected to do so in his submission. (At page [12] of the Judgment.) [11] This was therefore not a proper case to apply the principle that if the opposing party elected not to object then and there at the point of time when such evidence emerges (Superintendant of Lands and Mines, 4 th Division and Anor v Hamit bin Matusin and 6 Ors [1994] 3 MLJ 185), then he would be precluded from raising the objection later since it would be too late. In our opinion, the right to object was specifically reserved to be made in submissions. It is, with respect, unnecessary to dwell at length on the law in this regard since the position is trite. 7

8 [12] This was a case where the appellant consciously chose not to plead the most fundamental basis of his defence in his statement of defence, did not bother to apply for amendment when he had ample time to do so, and chose to completely avoid any mention of the transaction as a loan during the entire course of the earlier interlocutory application to strike out, and on the earlier appeal. This was clearly an afterthought, and this was the express finding of the trial court. We were in full agreement with this finding. THE HIGH COURT DECISION AND FINDINGS [13] The trial judge went further than just to dismiss the defence of the transaction being a loan as an unpleaded issue. The High Court carefully examined the totality of the documentary evidence, assessed the credibility of the witnesses (particularly the appellant himself) and came to definite findings on the evidence to dismiss the appellant s contentions, and allowed the claim of the respondent. The trial judge was especially critical of the appellant s evidence, questioning why he failed to lead evidence on the terms and conditions of the alleged loan, and the person with whom he negotiated for the loan. He did not even bother to ask for information on the status of the repayment of the loan, and exhibited what the court described as a total lack of interest and lackadaisical attitude. The trial judge took note of a correspondence dated when the respondent wrote to the appellant requesting him to give a proposal in writing as to how he proposed to settle the amount outstanding in his margin account. There was in fact a meeting thereafter between the appellant, his wife and Jimmy Ng (the respondent s representative) on the status of this very same margin account. The trial judge noted how when he was cross-examined on this, the appellant merely replied lamely that 8

9 he could not remember the meeting. See pages of the Judgment of the High Court. [14] The respondent produced in the course of the trial numerous trading documents produced by it as a stock broking company engaged in margin trading. The appellant surprisingly did not deny the trading. The margin trading account was operated to first purchase and then sell, only Wembley shares. The Documentary Evidence of Trading [15] The documentary trail came in the form of the following documentary evidence: (a) (b) (c) (d) (e) (f) (g) (h) Contract notes; Contra statements; Account stock detail inquiry/ ordinary inward transfer inquiry; Margin financing inquiry; M share history transactions; Margin financing reports; Statements of account; and Client history transaction. [16] See the voluminous documents on the margin trading in the Appeal Record, Vol. 2(2) pages 361 to 407. [17] As against these documents, the appellant did not adduce any credible evidence to substantiate his defence that the entire transaction was a loan in breach of the exchange rules and the law. The two items of 9

10 evidence which had the probability to substantiate his case were the shoddy documentation (incompletely signed, undated and unstamped) in relation to the opening and granting of the margin trading facility, and the fact that the sum of RM7,953, was credited into the account of Cempaka Holdings in which the appellant was director and shareholder. On the evidence, it was a fact that this sum was credited into Cempaka Holding s account. It did not, however, prove that the amount was a loan drawdown. It did not escape our notice that the sum of RM7,953, was a sum reflected in the Buy Contract Note dated for the total amount of RM8,054,250.00, being the cost of the securities and brokerage and clearing fees. See page 363 of Appeal Record, Vol. 2(2), page 363. In the same volume of the Appeal Record, page 353, there is a Letter of Authority signed by the appellant on under the letterhead of Cempaka Holdings authorising the respondent to remit the proceeds of RM8 million (less brokerage/charges) standing to the credit of my margin account with you to the account of Cempaka Holdings Sdn Bhd with Public Bank, Damansara Branch, Plaza Damansara, Kuala Lumpur (Account No ). This letter of instruction ended by stating: I hereby agree to indemnify and keep you indemnified against any losses, claims, liabilities and costs incurred by you arising from and as a result of your acting on my authority. [18] It seemed obvious that the language adopted by the appellant was not that of a disbursement of a loan. On its face, it contradicted the insistent assertion of the appellant that it was a loan transaction and not a margin facility. The letter spoke of a margin account, not a loan account! 10

11 [19] As for the challenge to the veracity of PW1 s evidence during crossexamination, the learned trial judge addressed the issue thus: PW1 during his cross-examination agreed with the Counsel for the defendant that the sum of RM8 million was remitted to the defendant s account on However, PW1 when recalled denied that the plaintiff had remitted the sum of RM8 million to Cempaka Holdings on as a loan to the defendant. PW1 explained that he was changing his evidence as he had made a mistake when replying to Counsel for the defendant in his earlier evidence as he was then trying to interpret the letter from Cempaka Holdings to the Plaintiff dated which was referred to him by Counsel. The Court was prepared to accept the explanation of PW1 and to hold that PW1 was not inconsistent in his evidence and that it was not the plaintiff that had remitted the said sum to Cempaka Holdings on OUR ANALYSIS [20] We considered this inconsistent statement of PW1 as well, but in our opinion, the fact remained that the sum was credited into Cempaka Holdings account, and further, the real issue to be addressed was whether it was the result of a loan transaction or an instruction given in the course of a margin trading transaction. [21] On the totality of the evidence, and on the findings of the trial judge, it was clear to us that this appeal had no merits. The case for the defence was propped up by an afterthought which belied the clear evidence. Sure enough, the primary documentation in relation to the granting and opening of the margin account was shoddy, but shoddiness could not be a ground to render the entire transaction invalid, especially when the trading 11

12 documents were made available to establish very clearly that this was a margin account which came to be in default. [22] That a margin trading facility is not a loan transaction has been the subject of determination by the Court of Appeal in TA Securities Bhd v Ling Chong Cho [2008] 5 CLJ 180. There is an element of financing, no doubt, when a stock broking company gives a line of credit to a client to trade instead of insisting on an advance cash deposit, but this mode of transaction is not a banking transaction. The line of credit will invariably require collateral, will set a margin between that collateral and the amount allowed to be traded, subject to margin calls, and there will invariably be a set maximum limit to the trading allowed. With all respect due, the line of argument adopted by the appellant appeared to stretch the limits of credulity of the court by attempting to portray the margin facility transaction as something it was obviously not. [23] As for the arguments related to the failure to stamp the documents, the trial judge very rightly dismissed it as not invalidating them, unless the non-stamping goes to the very root or validity of the document, relying on the Federal Court decision in Malayan Banking Berhad v Agencies Service Bureau Sdn Bhd & Ors [1982] CLJ (Rep) 217. This was an argument which did not advance the case for the appellant, since quite aside from not fulfilling the test of going to the very root of the document, there was ample other documentary evidence to establish the legality and existence of the margin trading facility. 12

13 CONCLUSION [24] We were of the unanimous opinion that this appeal should be dismissed with costs as being without merits, and the appellant had failed to demonstrate that the trial judge had been clearly wrong in allowing the plaintiff s case. In his well-considered and detailed judgment, the trial judge had meticulously addressed the evidence and the applicable law, assessed the credibility and veracity of the witnesses, and ultimately came to findings of facts with which we agreed with. In the circumstances, we dismissed the appeal with costs of RM20, to be paid by the appellant. We ordered the deposit to be refunded to the appellant. Dated: 21 th April 2014 Sgd. (DATO MOHAMAD ARIFF BIN MD. YUSOF) Judge Court Of Appeal Malaysia Counsels/Solicitors for the appellant: Dato Harpal Singh Grewal with him Harjinder Kaur, Fadzilah Mohd Pilus & Eric Chong Messrs Adnan Sundra & Low for the respondent: R. Vinayaga with him Patricia Ng Messrs Skrine 13

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