An Idiots Introduction to Civil Forgery.
Facts
Based
on an application form signed and submitted by the Defendant, a personal
financing facility known as the Plaintiff’s Personal Financing- for the sum of RM56,000.00, was granted to the Defendant. This
facility was granted through the Plaintiff’s Offer Letter dated 16.4.2010 and
Facility Agreement dated 20.4.2010. After all the necessary documents,
paperwork and forms were processed, a sum of RM56,000.00 was credited into the
Defendant’s account on 20.4.2010.
The failure of the Defendant to pay her monthly instalments prompted the Plaintiff to issue a Letter of Demand via its solicitor dated 22.4.2011. Another Letter of Demand was issued on 1.11.2013. Receiving no feedback from the Defendant, a Summons and Statement of Claim was filed against the Defendant on 25.6.2014 for the sum of RM114,176.66. The Defendant filed in her Statement of Defence denying any knowledge of the facility, the receipt of the monies and further claimed that her signatures were forged.
The failure of the Defendant to pay her monthly instalments prompted the Plaintiff to issue a Letter of Demand via its solicitor dated 22.4.2011. Another Letter of Demand was issued on 1.11.2013. Receiving no feedback from the Defendant, a Summons and Statement of Claim was filed against the Defendant on 25.6.2014 for the sum of RM114,176.66. The Defendant filed in her Statement of Defence denying any knowledge of the facility, the receipt of the monies and further claimed that her signatures were forged.
The Law
Burden
of Proof
When
a person is bound to prove the existence or nonexistence of any fact, then it
is said that the burden of proof lies on that person. Burden of proof can be
defined as the obligation, which is imposed on a party, to adduce sufficient
evidence in support of his or her vital contention to result in overall success
by the party in his or her case.[1]
This principle was underlined by Section
101 of the Evidence Act 1950.
101. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said the burden of proof lies on that person.
This
section emphasises the general rule that a party who asserts a certain fact
must also prove them which means the duty of to prove the existence or nonexistence
of a fact asserted or denied by him lies with him.[2]
The
Courts in so many recent cases have been consistent in regards to the burden of
proof in forgery cases. It is a well-accepted principle that the burden of
proof to establish forgery and to bring forth evidence to corroborate his or
her allegation, on balance of probabilities, lies on the alleging party.
For
instance, in the High Court case of McLaren Saksama (M) Sdn Bhd v Hong Leong Bank Bhd [2014] 7 MLJ 104, the Court affirmed the following:
In the light of the above mentioned the burden of proof to establish forgery rests upon the plaintiff — s 101(1) of the Evidence Act 1950. The burden of proof on the plaintiff is twofold:
(a) the burden of establishing a case; and
(b) the burden of introducing evidence.
The burden of proof lies on the plaintiff throughout the trial. The evidential burden of proof is only shifted to the defendant once that the plaintiff has discharged his burden of proof. If the plaintiff fails to discharge the original burden of proof, then the defendant need not adduce any evidence.
Since
the allegation of forgery of signature came from the Defendant, the onus to
establish forgery and further bring forth leading cogent evidence, in the form
of additional supporting documents and expert witnesses, is on the Defendant.
The
burden would only shift to the Plaintiff once the Defendant has discharged its
burden of proof. If the Defendant fails to discharge the original burden of
proof, then the Plaintiff need not adduce any evidence. If the Defendant fails
to do so, it will not avail her to turn round and say that the Plaintiff has
not established his.[3]
Standard
of Proof
The
standard of proof required to proof forgery in civil cases is one on a balance
of probabilities.[4]
In the High Court case of Malaysia
Plastics Sdn Bhd v United Overseas Bank (Malaysia) Bhd and Anor [2012] 9 MLJ
336 the Court was quoted have said the following:
This issue is a question of fact to be determined by the court based on the evidence adduced. The burden here is on the Customer to prove that the signatures on all eight (8) Disputed Cheques were forged or unauthorized. The standard is that of a balance of probabilities. In summary, therefore the burden of proof of the forgery lies on the customer alleging the forgery, on a balance of probabilities.
Unlike
fraud, as alleged against the Third Party, where the standard of proof is
beyond reasonable doubt, the Defendant in this instance needs to proof her
allegation on a balance of probabilities. The Court is entrusted with the duty
to evaluate the probabilities based on the documentations, testimony of
witnesses and the circumstantial evidence constructed from the documents and
testimonies.
Forgery
The
crux of the Defendant’s Statement was that the signatures on the loan
documentations were forged. The issue whether a signature on a document has
been forged is a question of fact. It is eminently a matter for the trial court
to determine after considering the credibility of the witnesses it has seen and
heard and taking into account any expert evidence on the point.[5]
In
the Court of Appeal case of Formosa
Resort Properties Sdn Bhd v Bank Bumiputra Malaysia Bhd [2011] 4 MLJ 651, the
Honourable Tan Sri Datuk Suriyadi Halim JCA (as His Lordship then was),
delivering the decision of the Court of Appeal, was quoted to have said the
following:
It is trite in civil cases that he who asserts must prove, and here the appellant is the asserting party. For purposes of our appeal, as the appellant has alleged that the signatures in the 67 cheques are forgeries, the onus thus lie on it to establish that fact.The respondent is not fettered with any responsibility that it must prove that the signatures on the 67 cheques were that of Ong Ah Sim @ Ong Swee Hoe.
The
burden always lies on the party that asserts. In the discharge of that burden,
the acceptability or otherwise of the factual version proffered is dependent on
the veracity of the oral testimony of witnesses and the contemporaneous
documentary evidence adduced.
The
oral testimony should be harmonious with the documentary evidence but if they
irreconcilably conflict, normally a heavier weightage is accorded to the
documentary proof. All available evidence must be critically examined. The
ultimate acceptable factual picture should be like a completed jigsaw puzzle
correctly fitted with all its matching constituent pieces of evidence.[6]
Estoppel
Where
there is a duty to speak or act and he has failed in such a duty, the other
party led by such silence to change his position, then such silence or failure
of duty to act will operate as estoppel.[7]
It
is imperative to note that where a customer's signature is forged, it is the
duty of the customer, on discovering the forgery, to inform the bank, and if he deliberately
abstains from doing so, with the result that the bank loses its remedy against the forger, the customer is
estopped from relying on the forgery.
In
the recently reported case of Majuikan
Sdn Bhd v Barclays Bank Plc [2015] 1 MLJ 171 the Honourable
Dato’ Mohamad Ariff JCA presiding in the Court of Appeal, was quoted to have
held the following:
If a person knows that his signature has been forged and by his actions or his silence willingly leads others to believe that the forgery is his genuine signature he cannot later plead that his signature was forged. Majuikan never took any active steps to alert or inform Barclays of the forgery, and in failing to do so, had led Barclays to believe all was in order to Barclays' detriment. Majuikan had chosen to be 'willfully blind' to the forgery and therefore must be held to be precluded from setting up the forgery against them. Majuikan should be held accountable, even though there was forgery of the documents.
In
the High Court case of Kerajaan Malaysia
v RHB Insurance Bhd [2014] 11 MLJ 541 the Court was
quoted to have said the following:
The defendant, silence as it were is entirely due to the fact that it had no knowledge of the fraud at the material time. It is only silence in the face of knowledge of a wrongful act on the part of its employees or any act or representation to the effect that the document was a genuine document that would preclude the defendant from relying on the forgery to meet the plaintiffs claim. There is no such act or representation or knowing silence on the part of the defendant in the instant claim. The doctrine of estoppel in favour of the plaintiff is not therefore invoked.
The
Courts in Malaysia have been known to give considerable weightage whenever a
wronged party (in this case, the Defendant) fails to instantaneously lodge a
police report or a complaint letter upon discovering whatever wrong that she
had suffered. In the classic case of
Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283 (Page Tab G Plaintiffs Bundle of Documents), the
Honourable Datuk Seri Gopal Sri Ram JCA (as His Lordhsip then was), delivering
the decision of the Court of Appeal, was quoted to have said the following:
We entirely agree with the approach of the learned judge to the weight to be given to the failure of the appellant to timeously lodge a report with the police. Further, an examination of the conduct of the appellant after the commencement of the litigation, his failure to raise this matter at the earliest opportunity in his first affidavit, and producing it, as a conjurer does, like a rabbit out of a hat, leaves us in no doubt, as it did the learned judge, that the tale was an afterthought, the machinations of a desperate litigant trying every trick in the book to escape judgment being entered against him.
[2] Pg.617, Hamid Sultan. (2014) Janabs Key to the Law of Evidence (4th
Ed). Janab (M) Sdn Bhd
[3] Pg. 254, Selvadurai v Chinniah [1939] MLJ 253
[4] Pg. 241, Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ
241
[5] Pg.183, United Asian Bank v Tai Soon Heng Construction Sdn Bhd
[1993] 1 MLJ 182
[6] Pg. 334, Mohd Ridzwan bin Mohd Sidek & Anor v Hong Leong Bank Berhad [2014]
11 MLJ 321
[7] Pg. 672, Hamid Sultan (2014)
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