The court established that a defendant's failure to present a case allows the plaintiff's evidence to be presumed true, leading to liability for breach of fiduciary duties.

[1] Defendant is a former Section Manager for Plaintiff. In April 2017, Plaintiff discovered irregularities in Defendant's conduct while under employment which caused her services to be terminated. Plaintiff then filed this suit against Defendant for breach of fidelity, and alternatively for fraud.

[2] Defendant denied Plaintiff's claim and filed her defence. Defendant also made counterclaim against Plaintiff for declarations and compensation. This case was fixed for trial thereafter.

[3] Plaintiff called four witnesses to prove its claim. The trial went on for seven days. After Plaintiff closed its case, Defendant elected not to call any witnesses and submitted no case to answer.

[4] This court instructed both parties to file written submissions and fixed date for decision. After considering the evidence presented in court, this court found that Plaintiff has proven its case on the balance of probabilities. Plaintiff's claim is allowed with costs and interest for the sum of RM249,802.01 and RM50,000 for exemplary damages. Defendant's counterclaim is dismissed with costs. Aggrieved, Defendant appealed against the decision of this court.

The Consequences Of A Defendant Submitting No Case To Answer

[5] After Plaintiff closed its case, Defendant chose not to call any witnesses and submitted no case to answer. Before I proceed further on the findings made by this court, it is pertinent to analyse in law the consequences of such action.

[6] There are plethora of authorities on this issue. The consequences are two folds;

i) All evidence led by Plaintiff must be presumed to be correct.

In the Federal court case of Takako Sakso (f) v. Ng Pek Yuen (f) & Anor 2009 MarsdenLR 1642; ; 2009 MarsdenLR 4262 , in citing the case of Wasakah Singh v. Bachan Singh [1931] 1 MC at p 128, noted;

"At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true."

The Federal court further held that it is the duty of the trial judge to accept all evidence to be true and failure to do so is a serious miscarriage of justice. The exception is if the evidence inherently incredible or inherently improbable.

It is clear that the objective of the ruling laid down by the Federal court in Takako Sakao is to ensure the smooth operation of proceedings in an adversarial system. When there is a case made out against a Defendant, surely Defendant has the duty to answer it.

In the case of Solsis (M) Sdn Bhd v. Kenny Woo B'ng Tat & Anor 2019 MarsdenLR 1566; [2020] 8 MLJ 695, the High court stated:

"Even if there may be queries raised as to the legitimacy of the transactions in question, or various aspects of them, these queries alone without any evidential basis cannot operate such as to successfully rebut the plaintiff's case and the evidence led."

The High court in Solsis further held that its only need to be satisfied that the claimant has a real prospect of success. The standard is a prima facie case, which is a lower test then on the balance of probabilities.

ii) The court is entitled to draw adverse inference against Defendant

In the Federal court case of Takako Sakao, it was held that when a Defendant elected not to answer Plaintiff's case, it is a legitimate move under the adversarial system. However, the court is deprived of any positive evidence from the Defendant. Thus, the Defendant "cannot complain if the court draws from the facts which have