PUBLIC BANK BHD v 1. ) SEE SWEE KEAT 2. ) HENG SAU WAH

Case Significance

Reinforces that a depositor asserting that banked or fixed-deposit monies remain unpaid bears the burden of proof, and that withholding account records within one's own control invites an adverse inference under section 114(g) of the Evidence Act 1950.

This decision of the High Court of Malaya at Kuala Lumpur concerns a bank's appeal against a Sessions Court judgment that had found in favour of two depositors — a mother and daughter — in a dispute over fixed deposit monies, together with the depositors' cross-appeal on the date from which interest should run. In the Sessions Court the depositors, as plaintiffs, had obtained judgment against the bank, Public Bank Bhd, for RM111,018.46 with interest from the date of the writ and costs, on their contention that the sums represented by certain fixed deposit receipts remained outstanding and had not been paid out. The bank appealed against liability, and the depositors cross-appealed only to alter the accrual date of the interest.

The appeal turned on where the burden of proof lay and whether the depositors had discharged it. The court held that it was for the depositors to prove, on the balance of probabilities, that the amount reflected in the relevant document — which was not itself a subsisting fixed deposit receipt — had not been withdrawn, and that on the evidence as a whole they had failed to do so. Significantly, the depositors had failed or refused to produce the passbook or statements for the second plaintiff's personal current account, documents within their own possession and control, without offering any valid reason; the court drew an adverse inference under section 114(g) of the Evidence Act 1950 that they were withholding evidence unfavourable to their case. Having concluded that the depositors had not made out their claim, the court allowed the bank's appeal and, as a necessary consequence, dismissed the cross-appeal on interest, with costs. The judgment is a useful reminder that a depositor asserting that banked monies remain unpaid bears the burden of proof and cannot withhold the very records that would settle the point.