Low Hop Bing J:

Plaintiff's Claim

[1] This is the plaintiff 's claim against the first Defendant as the principal debtor and the second Defendant as a guarantor for the sum of RM1,182,970.20 being the price of goods sold and delivered by the plaintiff to the first Defendant upon an oral guarantee allegedly given by the second Defendant to the plaintiff on or about 17 October 2002 and later reduced to writing in the form of the letter dated 4 April 2003 (exh P3) ("the written guarantee").

[2] The second Defendant denied that he was a guarantor and pleaded in his defence that he was acting under coercion and was forced by the plaintiff 's director and shareholder to sign the written guarantee, for which he had lodged two police reports, one on the date of the written guarantee ie, 4 April 2003 and another on 13 April 2003 ("the two police reports").

[3] Judgment in default has been entered against the first Defendant.

Evaluation Of Evidence

[4] After a full trial, I have evaluated the evidence as follows:

[5] Plaintiff's sole witness SP1, Haidi bin Rahmat, is a director of the plaintiff. The second Defendant who was SP1's close friend and former colleague had on 17 October 2002 at the plaintiff 's office tried to persuade him to supply cables to the first Defendant. SP1 initially declined to supply but was, after a lengthy discussion, persuaded to do so, on the basis of the alleged oral guarantee by the second Defendant to be 100% responsible for the payment. The first Defendant had Vide two purchase orders, both dated 15 October 2002, placed orders for cables amounting to RM1,230,319.71. The second Defendant had subsequently contacted one Khor Hock Seng who was a director of the first Defendant to collect the payment for the goods. Khor promised to obtain the funds to make payment to the plaintiff. The second Defendant then advised SP1 to go to the first Defendant for payment.

[6] Upon SP1 failing to recover payment from the first Defendant, he lodged Ayer Keroh police report No: 421/3 on 5 March 2003 and prepared the written guarantee for the second Defendant to sign.

[7] Two witnesses testified for the second Defendant, the first being the second Defendant himself. He was working in a public listed Company, Central Cables Bhd, in which SP1 was his former colleague. The second Defendant had acted as a middle man and introduced Khor to the plaintiff for the sale and delivery of cables by the plaintiff to the first Defendant in Taman Desa Kuala Lumpur After the sale and delivery, apart from making some payments, the first Defendant defaulted in the balance which is now the subject matter of the plaintiff 's claim.

[8] The cables were delivered by the plaintiff to the first Defendant between 7 and 27 November 2002.

[9] Plaintiff's letters of demand dated 12 May 203 and 13 August 2003 were sent to the first Defendant only. None was sent to the second Defendant.

[10] The eye witness SD2 gave an account of the circumstances in which the written agreement was executed by the second Defendant. I shall revert to these circumstances later in my Judgment.

Oral Guarantee

[11] Plaintiff's learned counsel Mr Yau Jiok Hua contended that the second Defendant had given the oral guarantee and had undertaken to collect the payment from the first Defendant.

[12] Mr Razlan Hadri Zulkifli, second Defendant's learned counsel, submitted that:

1. The burden is on the plaintiff to prove that the second Defendant had given the oral guarantee to the plaintiff, referring to ss 101 and 102 of the Evidence Act 1950; and MBF Finance Bhd v. Sim Peng Bee & Anor; [2003] 5 MLJ 303; [2003] 1 CLJ 690 HC;

2. The conflict of the parties' evidence must be resolved by reference to documentary evidence ie, SP1's police report, relying on Tindok Besar Estate Sdn Bhd v. Tinjar Co, [1979] 2 MLJ 229 FC; Industrial Concrete Products Bhd v. Concrete Engineering Products Bhd; [2001] 2 MLJ 332; [2001] 8 CLJ 262 HC; [2001] 2 AMR 2151; Mohd Tajuddin Salleh v. Mokhari Murgis & Anor; [199