Dr. Chen Yin Khee V Dr. Teo Keng Huat

  

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W-03-IM)-222-10

 

IN THE COURT OF APPEAL, MALAYSIA (APPELLATE JURISDICTION)

 

CIVIL APPEAL NO.W-03(IM)-222-10

 

BETWEEN

 

DR. CHEN YIN KHEE … APPELLANT

 

AND

 

DR. TEO KENG HUAT … RESPONDENT

 

[IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR CIVIL SUIT NO: S7-22-463-89

 

(Consolidated with Originating Summons No: S6(4)-24-17-1991)

 

Between

 

DR. TEO KENG HUAT … PLAINTIFF

 

And

 

DR. CHEN YIN KHEE … DEFENDANT]

 

CORAM

 

RAMLY BIN HAJI ALI, JCA CLEMENT SKINNER, JCA MOHTARUDIN BIN BAKI, JCA

 

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BROAD GROUNDS OF JUDGMENT

 

[1] The brief facts leading up to this appeal are these. The appellant Dr. Chen Yin Khee and the respondent Dr. Teo Keng Huat were partners in a medical practice known as Poliklinik Kumpulan City. There were 3 clinics in the practice. The dispute between the parties concerns only the clinic at No. 17 Jalan Awan Hijau, Overseas Union Garden, 5th Mile Jalan Kelang Lama (hereafter “Clinic No. 17”). The facts show that the appellant was in charge of Clinic 17. Following a partnership dispute, the respondent commenced a suit against the appellant on 6.6.1989. One of the prayers sought in the suit was for:

 

“4.4 An inquiry as to the sums of money collected or received by the appellant and of the accounts in respect of Clinic No. 17, and upon the taking of such accounts, for an order that the appellant do pay to the respondent a one-half(^) share thereof.”

 

[2] On 4.1.2000 after a trial, the learned High Court Judge granted, inter alia, the order for enquiry and accounts as sought above.

 

[3] The respondent here (who was the plaintiff in the court below) appealed against the order of the High Court dated 4.1.2000.

 

[4] On 23.1.2007 on the appeal coming up for hearing, the Court of Appeal made, by consent, the following orders amongst others:

 

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1. Responden/Defendan mengakui kewujudan dokumen-dokumen yang ditandakan sebagai “ID-2” dan bukti formal dikecualikan. Dokumen-dokumen tersebut ditandakan sebagai Ekshibit P2”;

 

2. Suatu siasatan dijalankan oleh Pendaftar Mahkamah Tinggi untuk menentukan wang yang telah dikutip dan/atau diterima oleh responden/defendan dan akaun-akaun yang berkaitan dengan klinik yang terletak di No. 17 … dan selepas pengambilan akaun-akaun tersebut, untuk suatu perintah bahawa Responden/Defendan membayar kepada Perayu/Plaintiff syer daripadanya;

 

3. Responden/Defendan membayar kepada Perayu/Plaintiff faedah pada kadar 8% setahun ke atas semua wang terakru dan perlu dibayar kepada Perayu/Plaintiff dari 31.3.1986 sehingga penylesaian penuh”.

 

[5] Pursuant to the order made by the Court of Appeal, the learned Senior Assistant Registrar held an enquiry and on 30.12.2000 ordered that the Defendant in the court below i.e. appellant here pay to the Plaintiff in the court below i.e. respondent here:

 

1. The sum of RM296,212.25 being (half) the income of Clinic No. 17 from may 1985 till March 1986;

 

2. The sum of RM43,860.40 as the monies paid to United Malayan Banking Corporation Berhad, Taman Overseas Union Branch (“UMBC”);

 

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3. Interest at the rate of 8% per annum on the total sum of RM296,212.25 and RM43,860.40 from 31.3.1986 to the date of full settlement.

 

[6] The appellant appealed to the Judge in Chambers against the decision of the learned Senior Assistant Registrar abovementioned.

 

[7] On 28.9.2010 the learned High Court Judge affirmed the decision of the learned Senior Assistant Registrar and dismissed the appellant’s appeal. Hence the appeal to this court.

 

Appellants contentions

 

[8] The appellant raised three main issues before us. He first complained that procedurally, the Senior Assistant Registrar (hereafter “the SAR”) was required to hold an enquiry into the money collected and/or received by the appellant in respect of Clinic No. 17 but the learned SAR seemed to have assessed damages instead.

 

[9] The second issue raised by the appellant consisted of two points namely, (a) that the purpose of the enquiry was to determine what monies had been received or collected by the appellant personally in respect of Clinic No. 17 and (b) the respondent carried the burden of proving that the monies which were collected at Clinic No. 17 during the period May 1985 to March 1986 had actually been paid over or received by the appellant. The appellant contends that the respondent had failed to discharge his burden of proof as he had relied heavily on the document

 

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marked exh P2 by the Court of Appeal. According to the appellant although exh P2 was a record of the monies collected at Clinic No. 17 for the period May 1985 till March 1986 and it was not disputed by the appellant that such a document existed, yet there was no proof that the monies collected at Clinic No. 17 as recorded down in exh P2, had been paid over to the appellant. It was the appellant’s case that this was so as the recordings in exh P2 were made by the nurses on duty, namely, SP2, SP3, SP4, SP5 and SP6 and in the course of their evidence they had stated as follows in respect of exh P2:

 

SP2 said:

 

“Kertas tersebut serta duit dikutip diberi kepada doktor berkenaan. Duit dan kertas itu disimpan oleh doktor berkenaan …

 

Saya ada serah kertas yang sama kepada Dr. Teo (the plaintiff) pada tahun 1986. Saya kurang pasti kepada doktor yang mana.”

 

SP3 said:

 

“Selain daripada Dr. Chen (the defendant) saya ada menyerah catitan kepada doktor lain tetapi saya tidak ingat siapa. Kertas ini menunjukkan kutipan bagi shift itu. Saya memberi wang kutipan bersama dengan kertas kepada doktor berkenaan.

 

Saya tidak ingat siapa doktor yang menerima wang. Saya tidak ingat berapa doktor bertugas di Klinik City. Boleh dikatakan doktor-doktor lain yang bertugas diberi wang kutipan.

 

Saya setuju wang kutipan diserah kepada doktor yang bertugas sungguh pun bukan Dr. Chen.

 

Saya tidak ingat sama ada wang serah kepada Dr. Teo. Dr. Teo ada pergi ke klinik No. 17.

 

Mungkin wang kutipan ada diserah kepada Dr. Teo. Saya setuju siapa yang memiliki senarai ini semestinya menerima wang kutipan.”

 

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SP5 said:

 

“Sebelum itu, saya berkerja di Poliklinik Kumpulan City. Doktor yang bertanggungjawab ialah Dr. Teo dan Dr. Chen. Kedua-dua doktor bertugas setiap hari …

 

Semasa 1984 saya menyerah kutipan dan senarai kepada doktor, setelah shift saya tamat.

 

Kedua-dua doktor ada menerima wang dan senarai kutipan.

 

Saya serahkan kertas dan wang kepada doktor yang bertugas.

 

Sekiranya Dr. Chen tidak ada di sana saya akan menyerahkan kepada doktor yang mengambil alih”.

 

[10] According to the appellant, the effect of the evidence given by these witnesses at the main trial was that the monies recorded in exh P2 were given either to the defendant/appellant, the plaintiff/respondent, and the doctor on duty at Clinic No. 17, but not to the appellant solely.

 

[11] Accordingly the appellant contended that the findings of the learned SAR were not supported by the totality of the evidence adduced during the inquiry, especially with regard to the monies actually collected and or received by the appellant in respect of Clinic No. 17. The appellant went on to submit that the learned High Court Judge had erred in upholding the decision of the SAR.

 

[12] The third issue raised by the appellant was that the learned SAR should not have ordered the appellant to pay RM43,860.40 being (half) the sum paid to UMBC, as the order of the Court of Appeal did not cover such payment.

 

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Our decision

 

[13] We do not agree with the contentions of the appellant for the following reasons:

 

1. On the question whether the learned SAR had assessed damages instead of holding an enquiry, we are satisfied that the learned SAR had conducted a hearing to determine the matters she was required to decide on by the Court of Appeal order. There is no complaint about the fairness of that hearing or the procedure adopted thereat. That being the case, it serves no useful purpose to try to characterize the type of hearing held by the learned SAR to arrive at her decision.

 

2. With regard to the points taken in the second issue raised by the appellant, they are essentially complaints directed against the findings of fact made by the learned SAR. By ordering that the appellant make the payments mentioned in her order of 30.12.2009, the learned SAR had in effect found that the appellant had received or been paid the monies collected at Clinic No. 17 as recorded down in exh P2. In our judgment the SAR was entitled to make such a finding and was not wrong in doing so, for the following reasons.

 

What SP2, SP3 and SP5 had said about to whom the monies stated in exh P2 had been handed over to, must be considered in the totality of evidence and in the light of other evidence adduced at the trial as well as the probabilities of the case.

 

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There was evidence led that the appellant had full control and management of Clinic No. 17 including its financial matters and the bank account at UMBC Bank.

 

[14] In relation to Clinic No. 17, the appellant said in his crossexamination at the trial (at pg 387 Vol IV Part C Record of Appeal) that:

 

‘Basically I was having control of No. 17 Clinic while Dr. Teo had control of Pekeliling Flats Clinic …

 

I agree that I am responsible for keeping all the books like financial data cheque butts, etc”

 

And at page 393 of the same Record of Appeal, the appellant said in cross-examination:

 

“I confirm that I had control of Clinic No. 17 Jalan Awan Hijau. This control includes appointment of nurses. It also includes management of financial matters. This includes money collected and payments made. These financial matters include banking slips, cash and cheque books”.

 

[15] With regard to the monies collected at Clinic No. 17, the appellant said in his cross-examination (at pg 384, Vol IV Part C, Record of Appeal):

 

“Collections for No. 17 clinic – money is collected on a daily basis. It is collected by the nurses on duty. At the end of the shift the nurse will hand over the money to the doctor on duty. There were 2 major doctors and a group of locum doctors. The major doctors are Dr. Chen and Dr. Chong Lee Lee. We work during the day. The groups of locums work in the night. Ours is a 24-hour clinic. The locums are not authorized to receive collections. Dr. Chong is authorized to receive the collections.”

 

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[16] And at page 390 of the same volume of the Record of Appeal, the appellant said in cross-examination:

 

“After the patient has paid the fees the nurses will write in the collection list the amounts paid. At the end of the shift they will pass

 

the collection together with the list to the doctor on duty…

 

I have an assistant doctor, Dr. Chong. I have morning and evening shifts.”

 

[17] And at page 391 of the same volume of the Record of Appeal, the appellant said in cross-examination:

 

“Most of the night collection was collected by me and some by Dr. Chong.”

 

[18] With regard to what the appellant did with the collection list which was handed to him by the duty nurse, the appellant said in crossexamination at pg 394, Vol IV Part C Record of Appeal that:

 

“On receipt of the list and collection I will check the collection against the list. Then I would ask the nurse to bank in the money. I would then keep the list.”

 

[19] Therefore, even though the nurses such as SP2, SP3 and SP5 had said that they had handed over the daily collections and the list to the duty doctor but were unsure who that doctor was, in the light of the evidence that the appellant was in full management and control over the daily collections and their banking in in respect of Clinic No. 17, including the keeping of all books on financial data and that the appellant would check the collection against the list and that only he and Dr. Chong were authorized to receive the collections at Clinic No. 17, it is our view that

 

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which ever duty doctor the nurses had handed the daily collections and list to, it is highly improbable that the money and list would not be ultimately handed over to the appellant for his management of the same including giving instructions for its banking in. In our view it is even more improbable that as the partner in charge of the daily collections of Clinic No. 17, the appellant would not make it his business to see to it that all the daily takings are accounted for and handed over to him by either the nurses or duty doctor. Further, we have not been referred to any evidence showing that Dr. Teo the respondent here, was ever a “duty doctor” at Clinic No. 17. Therefore it is highly improbable that the daily collections would have been paid over to him.

 

[20] For the reasons given above, we find the learned High Court Judge was right to uphold the findings of the learned SAR.

 

[21] With regard to the sum of RM43,860.40, being (half) the sum payable to UMBC, we find no merit in the appellants contention that order of the Court of Appeal did not cover the payment. The Order of the Court of Appeal also spoke of “dan akaun-akaun yang berkaitan dengan klinik yang terletak di No. 17 …”

 

[22] The evidence shows that as part of his overall management of Clinic No. 17 the appellant was in charge of the accounts, including banking slips, cash and cheque books, which must necessarily include the account of Clinic No. 17 at the Bank. In this case the evidence shows that Clinic No. 17 had an account at UMBC which the appellant had deliberately withheld payment from in March 1986. At pg 394, 395 and

 

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397, Vol IV Part C, Record of Appeal, the appellant admitted in crossexamination that:

 

“In march 1986 I did hold back some money … I cannot remember how much I held back..

 

I kept the cash collections temporarily as I did not want Dr. Teo to have it.”

 

[23] Clearly, monies paid or not paid into the account of Clinic No.

 

17 at UMBC are matters relating to the accounts of the clinic as mentioned in the order of the Court of Appeal. The learned SAR was accordingly correct in having made a finding in that regard, and the learned Judge was correct in upholding her finding of fact too.

 

[24] For all the reasons given above we dismissed the appellants appeal with costs.

 

DATUK CLEMENT SKINNER Judge

 

Court of Appeal Malaysia

 

Dated: 22nd February 2012

 

PARTIES

 

For Appellant:

 

For Respondent:

 

Mr. Francis Goh,

 

Messrs Francis Goh & Co Advocates & Solicitors Kuala Lumpur

 

Mr Raymond Mah,

 

Messrs Mah Weng Kwai & Associates Advocates & Solicitors Kuala Lumpur

 

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