The burden of proof remains with the plaintiff even when the defendant opts not to present evidence.

Introduction

[1] This is a trial of a suit for an alleged unpaid debt of RM8,580,455.495. It should be a typical run-of-the-mill trial. It is not simply because the Defendant had chosen to submit that there is 'No case to answer' and elected not to call any witnesses. Such a course is perilous "to take simply because all the evidence adduced by the plaintiff must be presumed to be correct". [See Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd , 2009 MarsdenLR 4322 CA, per Abdul Malik Ishak JCA at para 41]. I shall elaborate more on the law on this in my Grounds of Judgment below.

[2] The Plaintiff is a company incorporated in Seoul, South Korea with a business address at RM302, 2, 1-gil, Jinheung-ro, Eunpyeong-gu, Seoul, Korea. The Plaintiff is a travel agency.

[3] The Defendant is a company incorporated in Malaysia with a registered address at No 5 (1st Floor), Jalan Kijang, Taman Suntex, Batu 9, 43200 Cheras, Selangor and a business address at D-3-7, Seri Gembira Avenue, No 6, Jalan Senang Ria, Taman Gembira, 58200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. The Defendant is also a travel agency.

The Trial Process

[4] The trial took 2 days on 20 September 2022 and 26 September 2022.

[5] The Plaintiff called two witnesses. They are:

a) Ms Han Yok Cheng [PW 1] who is the General Manager of the Plaintiff. Her Witness Statement is marked as WS PW1;

b) Mr Sung Chang-Yih [PW 2] who is a director of the Plaintiff and also a shareholder of the Defendant. His Witness Statement is marked as WS PW2.

[6] After the Plaintiff closed its case on 26 September 2022, the Defendant's counsel informed this court that he had instructions to submit 'No case to answer' and that the Defendant wouldn't be calling any witnesses.

[7] Parties concurrently filed their written closing submissions followed by their written submissions in reply. In the Defendant's written closing submissions at para 3, the Defendant again confirmed that the Defendant has elected not to call any witnesses as it elected to invoke a submission of 'No case to answer'. In the Defendant's Reply written submissions at paras 1 and 2 the Defendant reiterated this election. This election is also stated in the Plaintiff's written closing submissions at para 1.

[8] Oral submissions by counsel were held before me on 6 December 2022. At the outset of the submissions, for the avoidance of doubt, I asked the counsel for the Defendant to again confirm his earlier election that the defence would not be calling any witness and he would stand or fall on his submissions. He so confirmed.

Background Facts

[9] The Plaintiff's pleaded case in its Writ and Statement of Claim dated 12 April 2022 is that the Defendant is an affiliated company of the Plaintiff. The Defendant is a middleman for the Plaintiff and its main functions are to arrange Malaysian group tours to Korea, collect the fees from these Malaysian clients on behalf of the Plaintiff, forward these fees to the Defendant after converting to USD and to send relevant documentation on these Malaysian clients to the Plaintiff. The Defendant's director Ms Wang Li Ya [also known as Jojo Wang] was the person in charge who would liaise with Ms Kang So Yeon a staff of the Plaintiff.

[10] The Plaintiff further alleged that from 2017 to 2020 the Defendant had collected fees from Malaysian clients but failed to forward all the fees to the Plaintiff. According to the records of the Plaintiff the Defendant owed t