Salleh Abas LP:

This is another appeal which originated from Magistrate's Court.

On 8 September 1982 the appellant and his wife went to the respondent bank at Kelang to buy a Sterling bank draft for £2,200 to be sent to their son in England. They went first to the foreign exchange counter, filled in an application form and handed it to the clerk in charge who subsequently filled in the equivalent amount in Malaysian Ringgit, which was RM8,989.25. The clerk signed the form and handed it back to the appellant with instruction to give the form and pay the money to the cashier. He then went to the cashier's counter and deposited the form together with the money in the cashier's trough.

The cashier's counter is not an open counter but a closed one in which there is a transparent screen separating the cashier from the customer. Below the screen is the trough which has a lid, which can only be closed partially; either on customer's side or on the cashier's side for the purpose of handing and receiving money. According to the practice of the respondent bank the trough would be opened on the customer's side when the cashier is ready to receive the money and this side would be closed when the cashier is not ready to take it.

At the time when the appellant and his wife went to the cashier's counter, the customer's side of the trough was partially open and the cashier was engaged in counting money of the previous customer whom she had already dealt with. The appellant's wife placed the form and the money RM8,989.25 in the trough and while both were waiting to be served, a stranger came to them and directed their attention to a RM10 note lying on the floor. After the couple had bent down to pick up the RM10 note they noticed that the money which had been placed earlier in the trough had gone and the stranger disappeared.

When sued for the recovery of RM8,989.25 the respondent bank denied liability. The learned Magistrate gave judgment in favour of the appellant on the ground that the bank was negligent, but on appeal to the High Court, Harun J reversed the decision holding that the respondent bank was not liable but he gave no reason for this opinion. On leave being granted the matter came before us.

There were two issues raised in this appeal. First, whether possession of the money had already passed to the cashier and therefore to the respondent bank. Secondly, if so whether the cashier and therefore the bank was negligent.

After listening to the submissions of both Counsel, we came to two different opinions. The majority opinion (Syed Agil and Wan Hamzah SCJ) is that both the appellant and the respondent bank were guilty of negligence. The appellant's negligence consisted of putting the money in the trough when the cashier was not ready to attend to them whilst the bank's negligence was the failure of the cashier to attend to the appellant's need when the trough was at that time opened on the appellant's side, though partially. In their judgment the loss should equally be apportioned and the appeal should therefore be allowed.

With respect, I wish to differ from their opinion. In my view the case should be decided on the question whether or not possession of the money had already passed from the appellant to the cashier. If the trough was closed on the customer's side so that the appellant had to push the lid in order to put in the money there can be no doubt that possession thereof could not have passed from the appellant to the respondent bank. But, as has been disclosed in this case, the appellant put in the money when the trough was partially open on his side, i.e. customer's side. Since the trough, according to the practice of the bank must be closed if the cashier is not ready to receive the money by leaving it open, though partially, the respondent bank must be regarded as telling the customers that they are ready to receive the money and inviting them to place the same in it, and therefore the appellant is entitled to d