Low Hop Bing JCA:

Appeal

[1] This appeal by the appellant ("the defendant") is directed against the decision of the learned High Court judge who had allowed the respondent's ("the plaintiff's") claim for the sum of RM2,927,621.70 with interest against the defendant, and dismissed the defendant's counterclaim for RM2 million, with costs (collectively "the entire judgment").

[2] On 23 January 2009, we dismissed the appeal and affirmed the entire judgment of the court below. Our grounds now follow.

Submission Of No Case To Answer

[3] The first issue, raised by plaintiff's learned counsel Mr Tharmaiden Singh (Mr Wong Guo Lun with him), is a question of law. It concerns the legal implications of the defendant's submission of no case to answer, coupled with the intention not to call witnesses. It was submitted that, in the circumstances, all evidence adduced in the plaintiff's case must be presumed to be correct, on the basis of Wasakah Singh v. Bachan Singh [1931] 1 MC 125; Jaafar Shaari & Anor (suing as administrators of the Estate of Shofiah Ahmad, deceased) v. Tan Lip Eng & Anor [1997] 4 CLJ 509 SC; and Subry bin Hamid v. Husaini bin Tan Sri Ikhwan & Anor [2006] 4 CLJ 50 CA.

[4] Defendant's learned counsel, Haji Sulaiman bin Abdullah (assisted by Mr Stanley S. Sinnappen) offered no response to the above submission.

[5] In our judgment, it is trite law that once a defendant in civil proceedings makes a submission of no case to answer and elects not to call evidence, then all the evidence led by the plaintiff must be assumed to be correct: per Gopal Sri Ram, JCA in Jaafar bin Shaari, supra, citing Wasakah Singh, supra. This principle has found similar expression in a number of judgments handed down in the motherland of common law. These cases include Alexander v. Rayson [1936] 1 KN 169; Boyce v. Wyatt Engineering [2001] EWCA Civ. 692; Miller (t/a Waterloo Plant) v. Cawley [2002] EWCA Civ. 1100; and Benham Limited v. Kythirra Investments Ltd [2003] EWCA Civ 1794.

[6] With this principle uppermost in our mind, we proceeded to consider the evidence led by the plaintiff in the court below, which culminated in the finding of facts.

Finding Of Facts

[7] After a full trial, the court below arrived at a finding of facts which may be unfolded below.

[8] The plaintiff is a stock broking company and a member of the Kuala Lumpur Stock Exchange (KLSE), now Bursa Malaysia. The defendant was the plaintiff's client who had through his employer one Dato' Wong Yeon Chai opened trading account No: 273077 with the plaintiff ("the account") in which the defendant had placed a sum of RM2 million for the purpose of trading in shares and securities (collectively "the shares").

[9] The defendant's employer is not an appellant herein. The trading of the shares pursuant to the account is subject to the terms and conditions contained in the agreement which was brought into existence ("the agreement") vide the defendant's application for the account. It is also subject to the rules and regulations of the KLSE.

[10] The material terms and conditions thereof, inter alia, are to the following effect:

(1) The defendant undertakes to make immediate payment for delivery of the shares purchased on his behalf (cl. 6);

(2) The defendant authorizes the plaintiff to sell or buy shares and undertakes to indemnify the plaintiff against all losses in such events (cl. 9);

(3) The defendant agrees to pay all charges and interest rates imposed by the plaintiff at the plaintiff's discretion (cl. 11);

(4) The defendant authorizes the plaintiff to debit the account for the purchase of shares (cl. 15); and

(5) All orders made through the phone shall not be revoked or withdrawn and shall be confirmed by the defendant.

[11] It is the plaintiff's practice to record the client's instructions to purchase shares on a manual "business done" slip which is then passed on to the plaintiff's back room staff who would then key into the system the confirmation of the instructions.

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