JUDGMENT

Abdul Malik Ishak J:

Introduction

This was an appeal in encl. 80 against the decision of the senior assistant registrar ("SAR") dismissing the second defendant's (New Century Development (M) Sdn Bhd [Company No: 223293-V]'s) application in encl. 64 to strike out the plaintiff's case under O. 18 r. 19 of the Rules of the High Court 1980 ("RHC"). Enclosure 64 was supported by an affidavit of the second defendant affirmed by Ng Eng Leng, a Singaporean, on 12 August 1998 and filed on 4 September 1998 as reflected in encl. 63. The reply to encl. 63 would be encl. 73 which was the affidavit in reply of Hsueh Yong You, a manager of the plaintiff's company, that was affirmed on 15 October 1998. Hsueh Yong You too affirmed an affidavit in reply on 22 September 1998 which was filed on the same date as seen in encl. 68. The second defendant also relied on the affidavits in encl. 27 (affirmed by Ng Eng Leng, a director of the second defendant, on 28 July 1998 and filed on the next date) and encl. 28 (affirmed by Ng Eng Leng on 28 July 1998 and filed on 29 July 1998). The plaintiff, on the other end of the scale, relied heavily on the affidavit in support in encl. 4 that was affirmed by Hsueh Yong You on 26 June 1998 which was filed on 30 June 1998. The plaintiff also relied on the second affidavit of Hsueh Yong You that was affirmed on 18 August 1998 and filed on the next day as reflected in encl. 53.

The Salient Facts

The facts, in its correct perspective, may be stated as follows:

It is said that the plaintiff is a company incorporated in Malaysia and governed by Malaysian law and has its place of business at PLO 69, Kawasan Perindustrian Senai III, 81400 Senai, Johor. The story unfolded when the plaintiff sometime in 1997, to be precise 3 July 1997, entered into a contract of employment with the first defendant (Tay Young Huat also known as Eugene Tay Yong Huat). It is pertinent to note that the first defendant had been appointed to the position of finance and accounts manager in the plaintiff's company. The first defendant while in the plaintiff's employment committed fraud and embezzlement and, in fact, embezzled the plaintiff company's bank account with the Hongkong Bank Malaysia Berhad, Johor Bahru branch ("bank") to the tune of RM8.25 million. A colossal sum. Fraud was pleaded in the statement of claim and its particulars were particularised therein. It seemed that the first defendant had committed the fraud by faxing to the bank requests to issue bankers drafts in favour of the second to the sixth defendants.

But these requests were not issued by the authorised signatories to the plaintiff's account with the bank. It must be presumed that the fraud was committed by erasing the names of the recipients, the dates and amounts on previous requests made by the duly authorised agents of the plaintiff's company by substituting the details of the second to the sixth defendants and therein faxing these details to the bank. It was a modus operandi designed to hoodwink the bank thereby causing massive losses to the plaintiff's company. The first defendant himself would collect the bankers drafts from the bank and then he would send them to the second, third, fourth, fifth and sixth defendants. What the first defendant did with the bankers drafts were not within the knowledge of the plaintiff. But from the records available from the bank, the bankers drafts were presented for payment at the following bank accounts of the defendants:

Defendants Amounts Credited Accounts

(1) Second defendant RM4,500,000.00 Malayan Banking [New Century Berhad, Taman Sri Development (M) Bahagia, Tampoi, Sdn Bhd (Company Account No: No:223293-V)] 001011316200

(2) Third defendant RM2,250,000.00 Malayan Banking [Rising Portfolio Berhad, Jalan Tebrau, Sdn Bhd (Company Johor Bahru, Account No: 446959-X)] No: 001020410607

(3) Fourth defendant RM1,000,000.00 Southern Bank Berhad, [Star Cruise Jalan Cungah, Port Administrative Klang, Account No: Services