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2021 MarsdenLR 623
HIGH COURT MALAYA KUALA LUMPUR
WAN MUHAMMAD AMIN WAN YAHYA, JC
KUNSHAN YUANJIANGHONG TEXTILE CO LTD – Appellant
Versus
CHEOW CHEE YONG & ANOR – Respondent
[Civil Suit No: WA-22NCC-23-01-2021]
The court affirmed the validity of an affidavit notarized under Order 41 r 3 despite non-fulfillment of some procedural aspects, as long as understanding was established.
Headnote:(A) Rules of Court 2012 – Order 41 r 3 – Affidavit procedure – Application to expunge plaintiff's affidavit and set aside related court orders was dismissed; the court found that the deponent understood the affidavit adequately based on the certification of the consular officer and the provision of a Chinese translation. (Paras 16, 26, 40, 84)
(B) Affidavit Requirements – The jurisdictional requirements of verification and understanding were satisfied as the jurat indicated the presence of a court interpreter and the deponent's basic understanding of English. (Paras 41, 64)
Facts of the case: The plaintiff, a Chinese company, alleged it fell victim to a glove scam by the defendants, claiming that it paid USD 258,324 as an advance for gloves that were never delivered. (Paras 4-6)
Findings of Court: The court determined that the affidavit submitted was admissible, fulfilling the requirements of the relevant rules. (Paras 84-85)
Issues: The principal issue was whether the non-compliance with procedural rules regarding the affidavit's affirmation rendered it inadmissible. (Paras 24, 16)
Ratio Decidendi: The court concluded that as long as there was satisfaction in understanding as per the certification, non-reading of the affidavit by the interpreter was not fatal. (Paras 61, 84)
Result: Application dismissed with costs. (Para 86)
JUDGMENT
[1] This was an application by the first defendant in encl 43 ("this application") to essentially expunge from the court's records the plaintiff's affidavit in support affirmed by Chen Yuan ("deponent") on 14 January 2021 ("encl 6") and to set aside the court orders granted in respect of the interlocutory applications made by the plaintiff where encl 6 was used in support of those applications.
[2] This application was made pursuant to O 29 r 1(2B) and/or O 32 r 6 and/or O 41 r 6 and/or O 92 r 4 of the Rules of 2012 ("ROC") and the main reliefs prayed for are as follows:
(a) Bahawa Afidavit Sokongan yang telah diikrarkan oieh Chen Yuan pada 14 January 2021 adalah dibatalkan dan dikeluarkan daripada rekod Mahkamah;
(b) Selanjut daripada perenggan (a) di atas, notis-notis permohonan yang telah difailkan oleh Plaintif seperti berikut iaitu (Lampiran 3, Lampiran 4 dan Lampiran 5) adalah dibatalkan:
(i) Notis Permohonan (ex parte Penyampaian Ganti untuk Defendan Ke-2) bertarikh 15 January 2021, Lampiran 3;
(ii) Notis Permohonan (Permohonan berkenaan CIMB Berhad) bertarikh 15 January 2021, Lampiran 4;
(iii) Notis Permohonan (ex parte Injunksi Mareva dan Proprietari) bertarikh 15 January 2021, Lampiran 5.
(c) Bahawa apajua perintah-perintah yang telah diberi oleh Mahkamah Yang Mulia ini di mana Plaintif telah merujuk dan menggunapakai Afidavit Sokongan yang telah diikrarkan oleh Chen Yuen adalah diketepikan dan dibatalkan;
[Emphasis Added]
[3] As can be seen from the above reliefs, the first defendant also sought to strike out the interlocutory applications filed by the plaintiff which were supported by encl 6.
Background Facts
[4] The plaintiff is a company based in China and pleads in its amended statement of claim that it is involved in the import and export business dealing with, inter alia, medical equipment and personal protective equipment for medical personnel.
[5] The plaintiff claims that it is a victim of a glove scam perpetrated by the defendants.
[6] In its amended statement of claim, the plaintiff pleads, inter alia, that:
(i) It was desirous of purchasing powder-free nitrile gloves ("gloves") and had contacted the first defendant who claims he is the agent of the second defendant, an unknown entity.
(ii) The second defendant was introduced to the plaintiff as "Golden Ocean Enterprise".
(iii) A written agreement was subsequently prepared by the first defendant called the "purchase contract" ("agreement") for the sale and purchase of the gloves.
(iv) The agreement is between the plaintiff and the first defendant.
(v) The main terms of the agreement are as follows:
(a) the port of loading of the gloves is Port Klang;
(b) 50% of the total purchase price stated in the agreement in the amount of USD258,324 must be paid as an advance payment before the delivery of the gloves ("advance payment");
(c) the balance of 50% of total purchase price stated in the agreement in the amount of USD258,324 must be paid once the gloves are ready for delivery; and
(d) the delivery date is five days after the advance payment is paid to the first defendant.
(vi) An invoice dated 11 September 2020 was issued by the first defendant to the plaintiff ("invoice").
(vii) Based on the terms of the agreement and invoice the plaintiff was to pay the advance payment into a CIMB Bank Berhad account no 800-8094-171 under the name Rockerfella JC Enterprise ("CIMB account").
(viii) The plaintiff paid the advance payment of USD258,324 via international telegraphic transfer on 16 September 2020.
(ix) Pursuant to the terms of the agreement the gloves were to be sent five days after payment is received and that is on or before 30 September 2020.
(x) The gloves were never supplied to the plaintiff by the defendants.
[7] It is pertinent to highlight at this point that Rockerfella JC Enterprise is the business registration/sole proprietorship of which the first defendant is the owner/proprietor.
Chronology Of Proceedings
[8] Immediately upon filing its wr
