Tseu Fui Loong v Optimax Healthcare Services Sdn Bhd & Anor

Appellant(s): Tseu Fui Loong

Respondent(s):

• Optimax Healthcare Services Sdn Bhd
• Tan Boon Hock

• YA Datuk Wong Kian Kheong
• YA Dato' Dr Alwi Bin Abdul Wahab
• YA Datin Paduka Evrol Mariette Peters

• The appellant, a majority shareholder in a Solomon Islands timber company, entered into an investment agreement with the second respondent (a friend and business associate) and two others under which each would acquire shares in that company.
• After the investment failed, the parties allegedly reached a "gentlemen's agreement" for the appellant to refund 50% of each investor's contribution; since the second respondent had not paid his share, the appellant instead directed him to pay MYR500,000 directly to a co-investor in settlement of the second respondent's own debt.
• The respondents later claimed this MYR500,000 payment was a loan to the appellant, and the Sessions Court and High Court both found in the respondents' favour, ordering repayment.

• Whether the courts below erred in treating the investment agreement as a non-binding memorandum of understanding despite evidence of the parties acting on it (share allocation, proxy forms, profit distributions).
• Whether the lower courts erred in preferring oral testimony and isolated pieces of evidence (a WhatsApp message, a BlackBerry message) over unchallenged contemporaneous documentary evidence, and whether unchallenged evidence in cross-examination must be deemed accepted.
• Whether there was a breach of natural justice where the High Court judge admitted at the start of the hearing that he had not read the written submissions but proceeded to hear oral submissions and decide the appeal.

• The Court held there was no breach of natural justice, as the appellant was given a full and fair opportunity to be heard orally, and the mere fact the judge had not pre-read written submissions did not deprive him of that right.
• The Court found that both lower courts erred in law and fact by disregarding contemporaneous documentary evidence (the investment agreement, authorisation letter, minutes of meeting, proxy forms, and email correspondence) and by relying on decontextualised oral testimony and messages, including failing to treat the appellant's unchallenged cross-examination evidence as accepted.
• The appeal was allowed against both respondents, the decisions of the High Court and Sessions Court were set aside, and costs of MYR50,000 were awarded to the appellant; the claim against the first respondent additionally failed as it was not a party to the gentlemen's agreement and its accounts did not support its claim to be a lender.