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[2000] Part 1 Case 7 [HCM] |
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www.ipsofactoJ.com/highcourt/index.htm
[2000] Part 1 Case 7 [HCM] |
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HIGH COURT OF MALAYA |
Abdullah Hishan
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vs -
Sharma Kumari
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Coram KAMALANATHAN RATNAM J |
30 SEPTEMBER 1999 |
Judgment
Kamalanathan
Ratnam J
CASE
FOR THE PLAINTIFF
The statement of claim of the plaintiff disclosed a straight forward set of facts. It was the plaintiffs case that he loaned the defendant a sum of RM262,350 to enable her to purchase a total of 165,000 shares in Insas Sdn Bhd (Insas). The defendant, as an employee of Insas, was offered, pursuant to the Employees Share Option Scheme (the Scheme) the right to purchase, based on her position and tenure of office, the 165,000 shares which said option to purchase, she could exercise within a period of five years.
The
consideration moving from the defendant was that she would convert to Islam
and marry the defendant. It was also a condition that the defendant would
transfer 50% of the said shares to the plaintiff. The remaining 50% was to
be held by the defendant in her name and to be used by her for her own use
in the event of the plaintiff pre-deceasing her. In the event the defendant
failed to go through with the agreement to convert and marry the plaintiff,
the defendant was to return the said shares to the plaintiff. The defendant
had indeed transferred 82,000 shares in Insas to the plaintiff.
CASE
FOR THE DEFENDANT
The defendant's case was that she was happily working in Insas when the plaintiff persuaded her to do some free lance work for his company, Glamoir World of Sports Sdn Bhd (GWS), from February 1995 to July 1996, namely in respect of the Merdeka Soccer Tournament in 1995, the visit of the Manchester United Team in 1995, and the Award Ceremony of the Sports Writers Association of Malaysia in 1996. The defendant alleged that whilst she was promised payment for these free lance work, the plaintiff had failed to pay her.
Instead
the plaintiff had agreed that he would first advance payment of the sum of
RM262,350 for the purchase of the 165,000 shares and that instead of the
plaintiff settling the sum of RM131,140 which the defendant contended was
the sum due to her as payment for the free lance work she had done, she
could retain the 83,000 Insas shares. Coincidentally she also said that this
figure of RM131,140 was the exact price of the 83,000 shares that were
retained by her. She therefore contended that the plaintiff was not entitled
to the return of the 83,000 shares or its value in money on account of the
set off that she was claiming. The defendant therefore prayed for the case
to be dismissed with costs.
THE
CLAIM
The
plaintiff claimed the following:
A
declaration that he was the beneficial owner of the 83,000 shares in
Insas in the name of the defendant.
The
sum of RM131,140 being the price of the 83,000 shares, when the
plaintiff purchased the same in August 1996.
The
sum of RM19,900 being the profit made by the defendant by selling 20,000
of the 83,000 shares in her possession.
Exemplary
and aggravated damages for deception and fraud in misleading the
plaintiff into believing that the defendant would convert to Islam and
marry him.
Interest
to be set at the discretion of the court.
Costs.
A
permanent injunction to restrain the defendant from dealing with the
shares in any manner whatsoever.
FINDINGS
OF THE COURT
This case went on for 25 days. The plaintiffs case is based purely on a loan with consideration moving from the defendant that she would convert to the personal law of the plaintiff, and marry him. Ensconced in this belief and blinded by the love-tinged arrow of Cupid the plaintiff was so infatuated with the defendant that on his own admission, he would do whatever the defendant wanted him to do. On hearing the evidence presented in court, I am satisfied that whilst the defendant was employed at Insas and earning RM6,000 the plaintiff offered the defendant an executive's post in his company GWS at a salary of RM10,000 a month, tax free and with many other fringe benefits.
The
plaintiff testified that whilst he had offered the defendant such an
employment and on such liberal terms, the said offer was made upon the
suggestion of the defendant so that she could be with him all the time and
that she could give an explanation to her husband and her family for her
continuous absence from her matrimonial home.
The plaintiff testified that although many a time he had found the defendant's presence at meetings more of a nuisance than a help, he went along with the defendant's suggestion because on his meeting with the defendant on January 5, 1995 when the "Malam Aungerah Bola Sepak Negara 1995" was held at Hotel Hilton, Kuala Lumpur, the defendant on her own volition insisted on accompanying him to his Presidential Suite at the Hilton Hotel where she changed into the bath robe provided by the hotel. She kissed him and one thing leading to the other they ended up having sex.
From
then on their feelings blossomed and he met her almost everyday from 5.30
p.m. to 8.00 or 9.00 p.m. except on Saturdays and Sundays when she stayed at
home. Their relationship escalated. It is in evidence that the plaintiff
realised that the matter was getting too serious for comfort. One night at
about 2.00 a.m. and outside the Kentucky Fried Chicken outlet at Bangsar
Baru he advised the defendant to return to her husband. She was aghast at
this suggestion. She even threatened to commit suicide if the plaintiff
decided to leave her. She then informed him that her husband was
irresponsible, was most of the time drunk and had even assaulted her. They
continued to have sex on innumerable occasions. He took her on a train trip
to Taiping. Evidence was led that she spent the night with him in his
private coach. The occasion was his way of treating officials of the Taiping
Football Association for his birthday. They all checked into a hotel and he
spent his birthday dancing away the wee hours of the night after cutting his
birthday cake which she helped to cut. Numerous photographs showing both the
plaintiff and defendant in compromising positions were tendered as exhibits.
CASE
MANAGEMENT
Whilst on the exhibits, it is necessary for me to state a few words on my case management procedures. At the outset I had taken this case through monthly pre-trial case managements. At one such case management I had directed parties to file all documents into bundles called common agreed bundles of documents (CABD) and had directed that if any party wished to challenge any document in the said CABD, the challenger had to write to the other side requesting that the contents of the document in question be proved.
I
had explicitly stated that any document not challenged would be deemed
agreed and admitted of its contents. When all these photographs were put in
by the plaintiff into the various CABDs, the defendant's previous solicitors
had not objected to any of the documents. The documents and photographs
therefore stood as agreed and admitted of their contents. During the course
of the trial Mr. Gurbachan Singh, the third firm of solicitors representing
the defendant, possibly being unaware of the court's directions, objected to
the admissibility of the said photographs. I had to overrule his objections.
EVIDENCE
OF THE PLAINTIFF
The
defendant stayed with the plaintiff in the same room in the Radisson Hotel
at Langkawi and in the Churchill Inter-Continental in London and toured
Europe alone with the plaintiff. The defendant also underwent an abortion in
London and the plaintiff paid for the cost of the said abortion because he
said the foetus was his. The defendant's case was that the foetus was that
of her husband although it was admitted that the plaintiff paid for the cost
of the abortion. Taking all these factors cumulatively, I have no hesitation
in holding that the defendant did indeed carry on an intimate sexual
relationship with the plaintiff.
THE
PLEADINGS
The statement of claim contained merely a claim based on a loan transaction and the only reference to any sexual encounters in the statement of claim was a statement by the plaintiff that the defendant had requested him to refrain from having sex with anyone else other than herself. The defence however starts off by the defendant denying in paragraph I that she is the person described as the defendant in the writ. Now, this makes no sense in the light of the admitted hotel bills, abortion bill and the multitude of photographs tendered.
The defendant contended that she did free lance work for the plaintiff in respect of the Merdeka Tournament, the visit of the Manchester United Team and the Award Ceremony of the Sports Writers Association of Malaysia, and that she was entitled to payments for such work. The defendant contended that being a devout Hindu she would never leave her religion and denied promising to marry the plaintiff.
The
defendant also argued that the plaintiffs claim ought to fail as being
contrary to public policy and on grounds of immorality. I had considered s
24 of the Contracts Act 1950 in full when I dismissed the defendant's
application to strike out the writ (see reported judgment in [1999] 2 AMR
1745). The defendant also alleged that the plaintiff was involved in certain
share investment schemes whereby he would collect large sums of money from
several people with a promise to refund the same together with a substantial
amount as profit. It is interesting to note that no evidence was at all
adduced in respect of this allegation.
The
defence therefore elicited an electrifying reply that caused constant sparks
throughout the trial. The plaintiff pleaded that he would show through the
defendant's credit cards and other documents that her name was indeed as
pleaded and that she had, by denying that she was the defendant, attempted
to cheat, lie and mislead this court and the general public.
As
for the shares, the plaintiff in his reply contended that he would adduce
evidence to show that the defendant purely held the shares on the basis of
his pleadings and that they did not beneficially belong to the defendant.
FAILURE
OF THE DEFENDANT TO TESTIFY
Both counsel concede that their research confirms that there is no local precedent where a party, not a witness to a case, has refused to testify. It is my view that having given every indication that the claim would be resisted to the hilt, and having denied in the defence that she had agreed to convert to Islam and marry the plaintiff in return for the promised loan of RM262,350, the defendant would have been the first witness for the defence.
I had earlier made a ruling that the defendant ought not to be allowed to call other witnesses first. The said ruling is based on simple logic. The defendant, the main proponent to the litigation, must herself rebut the plaintiffs allegations. Other evidence can corroborate her testimony. Further if the defendant is allowed to sit in and listen to the evidence of other witnesses, there can always arise the insinuation when the defendant decides to testify, that she is tailoring her evidence to suit the evidence already given, since she was present in court to hear the evidence.
But in this case that was not what happened; the defendant elected not to testify and instead called other witnesses. Mr. Karpal Singh for the plaintiff urged me to invoke s 114 of the Evidence Act 1950 against the defendant. In relation to s 114 Sarkar states in his Law of Evidence (1998 Edn) at p 1686 that
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presumptions are necessarily made against parties who have knowledge of the facts in dispute [and] will not subject themselves to examination when a prima facie case is made against them, and when by their own evidence, they might have answered it. |
It is my judgment that since all these material facts have been alleged against the defendant and which facts are personal to, and within the knowledge of the defendant, and when the defendant as in this case refuses to take the witness stand without any plausible reason, an adverse inference must be drawn against her.
Mr. Gurbachan Singh argued that she has a right in law not to testify. Whilst I agree that there is no compulsion, I must hasten to add that the defendant must be prepared to face the consequences of an adverse inference being drawn against her for her failure to testify. To my mind it is the bounden duty of the defendant, acquainted thoroughly with the facts of the case, as she is, to testify on her own behalf and failure to do so would clearly go to discredit the truth of her case and to establish the truth of the plaintiff s case. Whilst there is no rule of law that the defendant must let herself be examined as a witness in order to establish her case, this court will be perfectly justified in rejecting the averments in her defence unless there is other persuasive evidence in support of her case.
In
so far as the defendant was concerned she let her husband testify on her
behalf. His evidence, particularly relating to matters in issue, were so
peppered with hearsay evidence that almost all such evidence relating to
matters in issue had to be rejected. He was never present during any of the
conversations between the plaintiff and the defendant and what he told the
court was what was told to him by his wife, the defendant, and by her
deliberate act of refusing to testify, such evidence is pure hearsay.
The
defendant in my view attempted to avoid the crucial test of the law and
practice relating to justice, that is, to subject herself to the acid test
of cross-examination. Forged on the anvil of truth, the evidence that thus
emanates is sheathed with the respectability that only cross-examination can
bestow. The defendant failed to go through the ritualistic baptism of fire
to emerge pure and serene. To my mind, like the fact that lay before her she
sullied herself by her dismal failure to stand the test of
cross-examination.
HUSBAND
TO THE RESCUE
Whilst
the court might be moved to sympathise with the husband for having to
testify on his wife's behalf, I cannot but let sympathy get the better of my
reason. This attempt to lead the husband as the sacrificial lamb and subject
him to ignominious ridicule with a barrage of attacks both personal and
relating to the marriage, whilst suggestive of a clever manoeuvre to avoid
calling the defendant, is in my view a degrading practice totally to be
abhorred and rejected, in the absence of the evidence of the defendant
herself.
CONSPIRACY
THEORY
The plaintiff had testified that whenever he went to pick up the defendant at her house on their trip to Taiping or lpoh, the husband would in fact carry his wife's bag and put it in his car. Undisputed evidence was led that the defendant accompanied the plaintiff for days to Thailand, Taiping, Langkawi, London and Europe. Surely the defendant's husband ought to have known where his wife stayed. The husband's evidence that he totally trusted his wife and that he never doubted her must be considered in the light of the plaintiffs evidence which was that the defendant had confided in him that the husband was good for nothing, a drunkard and that the wife had treated him with so much disdain that even when the plaintiff was present she would scold him for making capatis with ghee since the plaintiff does not take ghee.
To
my mind there is clear prime facie evidence deposed to by the
plaintiff to show that the husband was well and truly aware of his wife's
goings-on. And yet he did nothing. I am therefore inclined to accept the
plaintiffs suggestion of a conspiracy by the defendant and her husband to
allow the defendant to be used by the plaintiff for the husband's and wife's
mutual benefit. I am further moved to accept the conspiracy theory because
the husband himself had written three letters to the Attorney-General, the
Islamic Religious Department Selangor and Wilayah complaining that the
plaintiff had admitted having sexual intercourse with his wife. The casual
and carefree manner of these complaints are a far cry from the reactions of
any normally wounded husband.
PLAINTIFF'S
EXPLANATION REASONABLE
I
accept the plaintiffs evidence that he gave a loan to the defendant to
purchase the shares and that she was to hold 83,000 for herself, after
transferring 82,000 to the plaintiff, and that he had given his loan upon
the defendant's promise to convert and to marry him. I accept the evidence
of Mohd Som, the remiser, who testified that the plaintiff had told him the
entire arrangement in the defendant's presence. This witness was unshaken
under cross-examination on this vital issue. The only way such evidence
could have been negated was by calling the defendant; but she chose not to
testify.
DECEIT
I
accept the plaintiff s submission that there is deceit in the whole conduct
of the defendant. I find that clearly she had no intention whatsoever of
converting to Islam and to marry the plaintiff. Her intention no doubt was
to obtain as much benefit as possible from the plaintiff. The defendant very
clearly suggested to PW5, Abdullah Hussein, the plaintiffs limousine driver,
in Singapore, that soon he would have to address her as Datin. In the
absence of any challenge by the defendant testifying against such evidence,
this evidence stands unrebutted. Then again Mohd Fudzi, PW3, the Editor of
"The Malay Mail", testified that at one official function that he
attended, the defendant introduced herself as Mrs. Abdullah. Again this
evidence stands unrebutted, for the same reason.
From
the fact that the defendant has refused to testify I cannot reject the
submission of Tuan Haji Sulaiman Abdullah, counsel for the plaintiff, that
the game plan of the defendant and her husband was that by filing such a
defence, the plaintiff would be put off from defending and that he would not
have the guts to do so. Unfortunately for the defendant, the nature of such
pleadings had forced the plaintiff to reply in detail and in my judgment,
forced him to reveal sordid details of the sexual encounters and exploits
with details of abortion. The submission of Mr. Gurbachan Singh that the
plaintiff himself was shameless, indecent and immoral and was clearly not
out to seek justice for himself but to embarrass and humiliate the defendant
and to cause her maximum shame, is not borne out by any evidence. I call to
mind the words of William Congreves in "The Morning Bride" (III,
viii (1697)):
Heav'n
has no rage, like love to hatred turn'd,
Nor
Hell a fury, like a woman scorn'd.
Whilst
we have often heard of this when coined in prose to read, "hell hath no
fury like a woman scorned", it cannot be gainsaid that equally, a woman
might have to, at times, face the consequences of unrequited love. The
plaintiff was so infatuated with his affection for the defendant that he
even admitted that he would do whatever she wanted him to do. To my mind, it
is this knowledge that he has been made use of that had led the plaintiff to
erupt like an exploding volcano spewing details of intimacy that once were
cloistered within his heart. It is obvious from the manner he gave his
evidence and his condemnation of the defendant and her husband and his
description of them in words far from pleasant, that these were the
outpourings of a man described by his own counsel as being bereft of his
shares and of the woman of his desire.
DEFENDANT'S
LACK OF EVIDENCE
To
the submission of the defendant that the value of the 83,000 shares held by
the defendant amounting to RM131,140 was in fact the actual sum due to the
defendant from the plaintiff for the free lance work she had done prior to
joining GWS, I asked Mr. Gurbachan Singh if there was anything pleaded to
show how the defendant had calculated the working hours and the rate at
which the calculations were worked out for the defendant to coincidentally
arrive at the same amount of RM131,140 as the amount due to her, counsel in
his usual candid manner conceded there was none. Again when I enquired if
any evidence was led to that effect, so that an application to amend could
be made, Mr. Gurbachan Singh readily admitted there was no such evidence
led. In any case the only person who could give any credible evidence on
this aspect would be the defendant and she chose not to testify. Counsel
urged me to rely on the evidence of "Pardeep for whatever it is
worth". That is precisely the point. Pardeep's evidence on this is
worthless and does not support the defendant's contention as whatever was
said by him relating to this aspect was clearly hearsay.
Much
was made of the fact that the central depository account opened by the
defendant did not have the word trust written on any of the forms. To my
mind nothing turns on this. It was the defendant who filled up the form and
if she chose not to use the word trust on the application form that is the
end of the matter. But the indisputable evidence of Mohd Som who was told by
the plaintiff of the arrangement in respect of the shares in the presence of
the defendant, remains unchallenged.
The defendant launched an attack on the plaintiffs credibility by pointing out that the defendant had lied when he said he had paid the defendant's November 1997 EPF contribution, when evidence led by DW5, Aminuddin Abdul Aziz, the Branch Manager KWSP Pudu, was to the effect that entry for the month of November means that payment was made for the month of October and not November 1997. With only this evidence available it was suggested that the plaintiff was a liar. The plaintiff had testified earlier that he had left all payments and administrative work to the defendant and he even testified that he was summoned by the EPF for non-payment because of the defendant's own dereliction of her duty.
After
all, whilst it was the plaintiff's view that the defendant's employment with
GWS was merely so that they could be together, yet paying a salary of
RM10,000 and tax free at that, he had expected some work from her. Mr.
Gurbachan Singh argued that she would be foolish not to pay her own EPF. But
we will not know if she had forgotten to pay whilst not being foolish in not
wanting to pay, because she failed to testify.
In
the circumstances, having read the entire evidence, I am satisfied that the
plaintiff has indeed proved his case. Mr. Gurbachan Singh again with
forthright candour conceded that if the court found for the plaintiff, then
he was entitled to the prayers sought except for the damages.
THE
EXPERT
During the course of the trial, the defendant attempted to call as an expert, Associate Professor Mohd Ridzuan bin Awang. When I questioned Mr. Gurbachan Singh pursuant to s 136 of the Evidence Act 1950 as to the relevancy of the said witness, counsel indicated that his purpose of calling the expert in Islamic law was to show that the admissions of the defendant of sexual intimacy with a married woman had infringed s 24(c), (b) and (e) of the Contracts Act 1950. Having heard arguments, I disallowed the expert from being called and immediately ruled as follows which I now record from my notes:
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Court: Having
heard the arguments as to whether Associate Professor Mohd Ridzuan
Awang ought to be allowed to testify in this case the following is
my ruling:
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I did however emphasise that in this written judgment I would elaborate on the above two cases. In respect of Ramah's case all I need by way of elaboration is to quote a passage from the judgment of Thome J at p 131. He said as follows:
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... Although I have held that the Supreme Court has jurisdiction to deal with such cases as the present, the further question emerges as to whether or not the Supreme Court is the proper tribunal for dealing with these cases, and whether it would not be more consonant with the views of those professing the Mohamedan religion that His Highness the Sultan in Council in each State should establish special courts for dealing with these cases with an appeal to His Highness the Sultan in Council in each case; of course the jurisdiction of the Supreme Court and of the Court of Appeal would properly be excluded by such Enactment |
THE
PRIVATE EYE
Again during the trial, Mr. Gurbachan Singh attempted to call as a defence witness one Louis Anton who described himself as a private investigator (P1). He was to testify that he was retained by the plaintiff to keep surveillance on the defendant. It is important to note that when the plaintiff testified it was never put to him that he had retained the services of this witness to keep tabs on the defendant. To my astonishment Mr. Karpal Singh whilst objecting, informed the court that his client, the plaintiff, denied even knowing this witness and denied engaging him. I then asked the witness if he had any written instructions from the plaintiff to act. The answer was in the negative.
I
then asked the P1 if he had sent any written report to the plaintiff. Again
the answer was in the negative. I then asked Mr. Gurbachan Singh if he had
actually warned the witness that he might be breaching his rules of ethics
by testifying on behalf of the person on whom he was to maintain
surveillance and against the party that had appointed him to cause the
surveillance, that is, assuming the plaintiff had actually appointed the
said witness. Again with forthright candour Mr. Gurbachan Singh admitted he
had not. Since in my view it was totally unfair to spring this witness upon
the plaintiff without even giving the plaintiff the right to respond in his
evidence as to whether he indeed did engage the said P1, I disallowed the
defendant from calling this witness to testify.
DAMAGES
The
plaintiff prayed for both exemplary and aggravated damages relying on the
fact that the defendant and her husband had conspired to lead the plaintiff
into believing that the defendant would convert and marry him.
Since
I have found that I accept the plaintiffs version as the truth, it follows
therefore that there is a breach of promise of marriage. Whilst I agree that
this case is not either based on a breach of promise of marriage or that the
cause of action is breach of promise of marriage, I must not forget the fact
that it was this promise to convert and to marry, that induced the plaintiff
to grant the loan. When such promise is coupled with deceit, a stronger case
for damages is made out.
Is the plaintiff entitled to a claim for exemplary damages? Unfortunately neither side has assisted me satisfactorily on the issue of damages. This is not a case of defamation. However, in the interest of justice it became necessary for the court to research the law since with regard to exemplary damages, such a claim has indeed been made by the plaintiff. McGregor on Damages (16th Edn 1997) states at p 287 paragraph 430 as follows:
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The primary object of an award of damages is to compensate the plaintiff for the harm done to him; a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which are variously called exemplary damages, punitive damages, vindictive damages or even retributory damages, and comes into play whenever the defendant's conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence or the like. |
However,
in Rookes v Barnard [1964] AC 1129 the House of Lords took the
opportunity to review the principle of awarding exemplary damages and held
that, except in a few exceptional cases, it is no longer permissible to
award exemplary damages against a defendant, however outrageous his conduct.
From Rookes v Barnard it became the law that exemplary damages can
now only be made in cases where such awards were made in respect of causes
of action prior to Rookes v Barnard.
The
exceptional cases in which such award could be given as explained by the law
lords in Rookes v Barnard fell into three categories:
Oppressive,
arbitrary or unconstitutional conduct by Government servants.
Conduct
calculated to result in profit.
Express
authorisation by statute.
As I see it, the only way that the plaintiff can justify seeking an award for exemplary damages is to show that he fell into any one of these three categories. Whilst it must be conceded that the first and the third categories are not applicable in this case, to my mind the only category that can apply here is the second. In Rookes v Barnard Lord Devlin said at p 1227:
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Where a defendant ... with a cynical disregard for a plaintiffs rights has calculated that the money to be made out of his wrong doing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity. This category is not confined to money making in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object - perhaps some property which he covets - which he either could not obtain at all or not obtain except at a price greater than he wants to put down. |
The extension of the meaning given to "profit" as explained by Lord Devlin clearly envisages the desires and aspirations of the defendant to be called Datin or Mrs. Abdullah and to reap the benefits that go with such prefix. Certainly leading the plaintiff to believe in her subsequent conversion to Islam and marriage got her an all expenses paid trip to London, Naples, Milan and Rome and Bangkok where she had an expensive birthday splash and expensive gifts such as a RM25,000 ring as explained by the plaintiff. Since the object of such an award is to punish, the prevalent view is not to make excessive awards under this category.
However, McGregor on Damages advocates that the court ought to, in making this award, consider the conduct of the parties and in particular, the defendant. The plaintiff testified that the defendant promised to marry him sometime in January 1998 and that she sought time to divorce her husband. She told him that if he loved her very much, he ought to wait for her. She was quoted as having said,
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I love you very much and I want to marry you at all costs. Just be patient a bit. |
The defendant in my view led the plaintiff on by her conduct in that soon after arriving from an extensive and expensive tour of Europe, she refused to return home to her family and insisted on taking a spontaneous connecting flight to Singapore where they again stayed together for a few days to be chauffeured by PW5, Abdullah Hussein, the limousine driver. When the plaintiff led evidence that he was told by the defendant herself that she had had relationships with corporate figures and VIPs she challenged disclosure of the names for the purpose of clearing her name and honour. Yet she failed to testify.
Considering all these factors and rejecting the plaintiffs own quantification, I am of the view that a sufficient award should be made to focus on the seriousness of the whole issue which unfortunately the defendant had treated with levity and frivolity. The defendant had made wild and unsubstantiated allegations against the plaintiff. She had accused him of being a cheat in that it was pleaded that he was involved in a share investment scheme whereby he would collect large sums of money from investors with a promise to refund the same with a large profit. These allegations were hastily and wantonly flung at the plaintiff with scant regard to his reputation as a businessman. She even alleged that the plaintiff was a procurer of women for VIPs. She put to the plaintiff that his favourite drink was Chivas Regal whisky.
All
these allegations remain unproven. There was unrebutted evidence from the
plaintiff that because of the threatening calls made against him, his wife
and his daughter, he had to take his daughter off from the school. Live
snakes tied in gunny sacks were thrown into his garden. The caller over the
phone threatened to harm his family if he did not drop the suit. I can
imagine the anguish and harassment the plaintiff and his family has been put
to.
Finally
I must say that it must have taken great strength and courage for the
plaintiff to have decided that enough was enough and that he would put a
full stop to the scheming machinations of the defendant and her husband. In
the circumstances, under this head I award damages amounting to RM500.000.
AGGRAVATED
DAMAGES
Under this head the plaintiff is entitled to damages if he can show that the conduct of the defendant was so obnoxious as to warrant an award. The plaintiff was subjected to humiliating and insensitive questions which were never substantiated. For example it was put to the plaintiff that no human being would stoop to his level by making false, baseless and fabricated allegations of sexual relations with the defendant. When it was put to the plaintiff the court must assume that positive evidence would be led to prove the matters put. (See article by Shankar J: Putting and Suggesting on Cross-Examination [1984] 1 MLJ xi.) Again it was put "my instructions are the allegations are a total lie". It was further put "You are an incorrigible liar."
It was clear to me that whilst the defendant put the plaintiff through the indignity of being subjected to disparaging and contumelious questions she knew very well that she would escape the pain and anguish of such similar possible treatment. This strategy was calculated to cost the plaintiff, bestowed with the title of a Datukship by the Sultan of Pahang, the maximum harm with the maximum publicity since this case was covered by both, all the local, and some foreign media. Further allegations were made that the plaintiff assaulted his maid. No evidence was led to establish this notwithstanding an undertaking given that such allegations would be proven. The maid could have been subpoenaed or the allegation proven in the manner best known to the defendant.
Even
to the very end the defendant did not let up. Notwithstanding the fact that
she did not take the witness stand, she accused the plaintiff of being
shameless and indecent. By her refusal to testify the defendant ought to
have known that her case had fallen like a deck of cards.
Considering
the fact that the plaintiff was subjected to prolonged and lengthy
cross-examination for more than 14 days without let up by two experienced
counsel on matters that remained unrebutted and considering the callous
manner of such questioning and by putting suggestions which the defendant
knew she could not establish, I am more than satisfied that the plaintiff
has established a case for aggravated damages. Having considered all matters
I award the plaintiff the sum of RM500,000 as aggravated damages.
On
the question of interest the plaintiff has asked the court to exercise its
discretion and to award such interest from such period as the court thinks
fit and just. The plaintiff also prays for two sets of costs. Considering
the nature of the case and its complexity it is my judgment that the
plaintiff is entitled to two sets of costs.
I
therefore give judgment for the plaintiff as follows:
An
order that the defendant do pay to the plaintiff the sum of RM131,140
being the cost of 83,000 units of Insas shares registered in the name of
the defendant.
An
order that the defendant do pay to the plaintiff the sum of RM19,900
being the profit derived by the defendant by selling 20,000 of the
83,000 Insas shares retained by her on February 25, 1997 and on February
26, 1997.
A
permanent injunction restraining the defendant from in any way disposing
of the shares until she complies with items (1) and (2) of this order.
Exemplary
damages amounting to RM500,000.
Aggravated
damages amounting to RM500,000.
Interest
on item (2) at 6% per annum from July 1, 1996 to date of judgment.
Interest
on item (3) at 6% per annum from February 26, 1997 to date of judgment.
Two sets of costs.
Cases
Ramah Ta’at v Laton Malim Sutan 6 (1931) FMSR 128; Rookes v Bernard [1964] AC
1129; Abdullah Hishan Hj Mohd Hashim v Sharma Kumari Shukla [1999] 2 AMR 1745
Legislations
Contracts
Act 1950: s.24(b), (c), (e)
Evidence
Act 1950: s.114, s.136
Authors
and other references
McGregor
on Damages, 16th Edn 1997
Sarkar,
Law of Evidence, 1998 Edn, p 1686
Shankar
J, Putting and Suggesting on Cross-Examination [1984] 1 MLJ xi
William Congreves, The Morning Bride, III, viii (1697)
Representation
Karpal
Singh, Sulaiman Abdullah and M Manoharan (Karpal Singh & Company) for
Plaintiff
Gurbachan Singh, Kartar Singh and Gurbachan Singh Johal (Bachan & Kartar) for Defendant
Notes:-
This decision is also reported at [2000] 1 AMR 334
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