私人无牌放贷, 收高利息, 本金拿不回[2023] FC

案情人物与纠纷

1. 原告是一间从事普通贸易、石油产品供应、建筑工程及资讯科技业务的公司，但原告并没有合法放贷执照。第一被告是一间家族经营的公司，第二及第三被告则是第一被告的董事。第二被告同时是第三被告及另一名相关女子的母亲。第二被告与该名女子共同拥有两片土地，而该女子并没有参与第一被告向原告借钱的交易。
2. 第一被告因为公司生意需要资金，主动向原告借取RM800,000。原告同意借钱，但条件是第一被告必须在30天内归还RM800,000本金，并另外支付RM800,000作为所谓的“约定利润”。换句话说，第一被告借RM800,000，一个月后却必须偿还6 million，额外支付的金额与本金完全一样。
3. 双方签署借款协议后，第一被告交给原告四张没有填写日期的支票，每张支票为RM400,000，总额6 million。第二及第三被告也签署个人担保，保证第一被告会偿还借款。除此之外，两片土地的地契也被交给原告作为担保，但其中一名土地共有人并没有参与借款，也没有同意将土地抵押给原告。

原告的索偿

4. 第一被告没有依约还钱后，原告向高庭起诉第一至第三被告，并把无关的土地共有人一起列为被告。原告要求法院命令两片土地转名给原告；如果法院不批准转名，原告则要求被告支付6 million，包括RM800,000本金及RM800,000“约定利润”，并要求法院拍卖土地来偿还有关款项。
5. 原告认为，这是双方自愿签署的商业借款协议。第一被告当时急需资金，是第一被告主动前来借钱，而不是原告主动招揽客户。原告也没有刊登放贷广告，没有公开声称自己经营放贷生意，而且只有这一宗借款交易。因此，原告主张自己不是非法放贷者，被告应该按照书面协议偿还全部6 million。

被告的抗辩

6. 被告否认曾经真正同意支付RM800,000的“约定利润”，并主张整宗交易其实是非法放贷。被告认为，所谓“约定利润”只是用另一个名称包装的利息，而且是30天内高达100%的利息。被告也指原告对第二及第三被告施加不当影响，导致他们签署个人担保，并强调无关的土地共有人从未同意以土地担保借款。

高庭和上诉庭的判决

7. 高庭接受原告的大部分主张，认为没有足够证据证明原告经营放贷生意。高庭特别重视原告没有登广告、没有公开招揽借款人，而且只有一次借款交易。因此，高庭命令第一至第三被告支付6 million及判决利息，但拒绝命令土地转名或拍卖，因为其中一名土地共有人没有参与借款交易。
8. 被告不服高庭判决而提出上诉。上诉庭认为，这宗交易属于一次性的“友好借款”，原告可以追回RM800,000本金，但不能取得额外RM800,000“约定利润”。上诉庭因此把被告的责任减至RM800,000，并命令从高庭判决日期起支付4%利息，同时命令原告归还两片土地的地契。

联邦法院审理的核心问题

9. 被告进一步上诉到联邦法院，并主张他们连RM800,000本金也不必偿还。联邦法院需要决定：一个没有放贷执照的人，可否提供30天100%利息的借款；所谓“约定利润”是否属于利息；一宗借款是否足以推定原告经营放贷；以及非法借款协议下的本金是否仍可通过法院追回。
10. 联邦法院认为，法律不会只看协议采用什么名称，而会看付款的真正性质。只要借款人必须支付超过本金的额外金额，而该金额是为了取得贷款而支付，不论被称为“利润”、“费用”或其他名称，都可能属于利息。本案的RM800,000“约定利润”，正是借RM800,000所必须支付的额外代价，因此在法律上就是100%的利息。
11. 联邦法院指出，只要诉讼中已经指称某人是放贷者，并证明该人作出一宗有利息的借款，法律便会推定该人正在经营放贷生意，除非该人提出证据推翻有关推定。举证责任并不在被告身上，而是在原告身上。原告必须证明自己并非从事有利息的放贷活动。
12. 联邦法院发现，原告没有提出任何证据证明RM800,000借款并没有附带利息。相反，书面协议清楚规定，被告必须在30天内偿还6 million。原告从事资讯科技或普通贸易，并不能自动证明这宗借款不是放贷活动。只有一次交易，也不能在有关法律推定已经启动后，自动免除原告的举证责任。
13. 联邦法院认为，这项100%利息的借款违反放贷法律，而RM800,000“约定利润”属于违法的合约对价。如果一项合约的目的或对价被法律禁止、会破坏法律的执行，或违反公共政策，该合约便属无效。本案借款协议从签署开始便因违法而无效，法院不应该协助任何一方执行该违法协议。
14. 联邦法院不同意上诉庭让原告追回本金的处理方式。法院认为，如果非法放贷者即使违法也能够保证通过诉讼取回本金，那么他们便没有真正风险，最多只是拿不到高额利息。这会鼓励更多没有执照的人进行高利贷活动。因此，当协议从一开始便因非法放贷而无效，原告不能要求法院协助追回RM800,000本金。

最终判决与法律意义

15. 联邦法院批准被告上诉，撤销上诉庭命令被告偿还RM800,000本金的决定，并判给被告RM60,000堂费。此案说明，商业文件写上“约定利润”并不能掩盖高额利息的真正性质。无执照放贷者不能依靠漂亮的合约字眼、支票、个人担保或地契，要求法院协助执行一项从开始便违法的放贷交易。
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The Parties and the Dispute

1. The Plaintiff was a company involved in general trading, petroleum product supplies, construction works and information technology, but it did not hold a valid moneylending licence. The First Defendant was a family-owned company, while the Second and Third Defendants were its directors. The Second Defendant was also the mother of the Third Defendant and another related woman. The Second Defendant and that woman jointly owned two parcels of land, although the woman had not participated in the borrowing transaction.
2. The First Defendant required funds for its business and approached the Plaintiff for a loan of RM800,000. The Plaintiff agreed to provide the money on the condition that the First Defendant repaid the RM800,000 principal within 30 days and paid another RM800,000 described as an “agreed profit”. In practical terms, the First Defendant borrowed RM800,000 but was required to repay RM1.6 million after only one month.
3. Upon signing the loan agreement, the First Defendant delivered four undated cheques to the Plaintiff. Each cheque was for RM400,000, giving a total value of RM1.6 million. The Second and Third Defendants also signed personal guarantees for repayment. The title deeds to two parcels of land were deposited as security, although one of the registered co-owners had neither participated in the loan nor agreed to charge her interest in the lands.

The Plaintiff’s Claims

4. When the First Defendant failed to repay the money, the Plaintiff commenced High Court proceedings against the First to Third Defendants and the uninvolved land co-owner. The Plaintiff sought an order transferring the two parcels of land to it. Alternatively, it claimed RM1.6 million, comprising the RM800,000 principal and RM800,000 “agreed profit”, and sought an order that the lands be auctioned to satisfy the alleged debt.
5. The Plaintiff maintained that the parties had voluntarily entered into a commercial loan agreement. It was the First Defendant that urgently approached the Plaintiff for financial assistance, and not the Plaintiff that solicited the First Defendant. The Plaintiff had not advertised moneylending services, publicly represented itself as a moneylender or entered into repeated loan transactions. It therefore argued that it was not an illegal moneylender and was entitled to enforce the written agreement.

The Defendants’ Defence

6. The Defendants denied that they had genuinely consented to the RM800,000 “agreed profit” and pleaded that the entire arrangement was an illegal moneylending transaction. They argued that the “agreed profit” was merely interest under a different label and represented interest of 100% over 30 days. They also alleged undue influence in relation to the personal guarantees and stressed that the uninvolved co-owner had never agreed to provide the lands as security.

The High Court and Court of Appeal’s Decision

7. The High Court accepted most of the Plaintiff’s case and held that there was insufficient evidence that the Plaintiff was carrying on a moneylending business. The court placed considerable weight on the absence of advertising, public solicitation and repeated transactions. It ordered the First to Third Defendants to pay RM1.6 million with judgment interest, but refused to order the transfer or auction of the lands because one co-owner was not involved in the loan.
8. The Defendants appealed against the High Court’s decision. The Court of Appeal treated the transaction as a one-off “friendly loan” and held that the Plaintiff could recover the RM800,000 principal, but not the additional RM800,000 “agreed profit”. It therefore reduced the Defendants’ liability to RM800,000 with interest at 4% from the date of the High Court judgment and ordered the Plaintiff to return the title deeds.

The Main Issues Before the Federal Court

9. The Defendants appealed further and argued that they were not liable to repay even the RM800,000 principal. The Federal Court had to determine whether an unlicensed person could lawfully make a 30-day loan carrying 100% interest, whether the “agreed profit” was legally interest, whether a single loan could trigger the statutory presumption of moneylending, and whether the principal remained recoverable under an illegal agreement.
10. The Federal Court held that the law looks at the true nature of a payment rather than the label chosen by the parties. Any amount payable in excess of the principal as consideration for or in connection with a loan may constitute interest, regardless of whether it is called profit, a fee or something else. The RM800,000 “agreed profit” was therefore legally interest at the extraordinary rate of 100%.
11. The Federal Court explained that where a person is alleged in legal proceedings to be a moneylender and a single loan at interest is proved, the law presumes that the person is carrying on the business of moneylending unless the contrary is proved. The burden was not on the Defendants to prove repeated lending. It was for the Plaintiff to establish that it had not engaged in moneylending at interest.

Failure to Rebut the Presumption

12. The Federal Court found that the Plaintiff had produced no evidence showing that the RM800,000 was lent without interest. The written agreement instead required repayment of RM1.6 million within 30 days. The fact that the Plaintiff ordinarily conducted information technology or trading activities did not prove that this transaction was not moneylending. Nor did the existence of only one transaction automatically discharge the Plaintiff’s legal burden.

The Loan Agreement Was Illegal and Void

13. The Federal Court concluded that the transaction contravened the law governing moneylending and that the RM800,000 “agreed profit” amounted to unlawful contractual consideration. Where the object or consideration of an agreement is prohibited by law, defeats the operation of the law or is contrary to public policy, the agreement is void. This loan agreement was illegal and void from the beginning.

Whether the Principal Could Be Recovered

14. The Federal Court rejected the Court of Appeal’s approach of allowing the Plaintiff to recover the principal. If an illegal moneylender were always assured of recovering the principal through court proceedings, illegal lending would carry little genuine risk. The lender would lose only the excessive interest. Such an approach would encourage unlicensed high-interest lending. The court therefore refused to assist the Plaintiff in recovering the RM800,000 principal.

Final Decision and Legal Significance

15. The Federal Court allowed the Defendants’ appeal, set aside the order requiring repayment of the RM800,000 principal and awarded costs of RM60,000 to the Defendants. The decision confirms that describing interest as an “agreed profit” does not alter its legal character. An unlicensed lender cannot rely on cleverly drafted documents, cheques, personal guarantees or land titles to obtain judicial enforcement of an illegal moneylending transaction.
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Detailed English Version

1. Introduction and the Parties. This appeal arose from a loan transaction under which RM800,000 was advanced for a period of 30 days, with the borrower being required to repay a total of RM1.6 million. The lender described the additional RM800,000 as an “agreed profit”. The Federal Court was required to determine whether that description could prevent the additional payment from being treated as interest and whether an unlicensed lender could recover either the additional sum or the original principal.
2. The Plaintiff. The Plaintiff in the High Court proceedings was a company engaged in general trading, the supply of petroleum products, construction works and information technology. It was not licensed to carry on the business of moneylending. Although its ordinary business activities were not moneylending activities, that fact did not by itself determine the legal character of the particular RM800,000 loan transaction.
3. The Defendants. The First Defendant was a family-owned company requiring funds for its business. The Second and Third Defendants were directors of the First Defendant. The Second Defendant was the mother of the Third Defendant and another woman who was sued as the Fourth Defendant in the High Court. The Second Defendant and the Fourth Defendant jointly owned two parcels of land that later became part of the security dispute.
4. Factual Background. The First Defendant approached the Plaintiff for a loan of RM800,000. The Plaintiff agreed to advance the money provided that the principal was repaid within 30 days together with a further RM800,000 as “agreed profit”. The loan period ran from 23 September 2016 to 22 October 2016. Under the written agreement, the total repayment amount due by the end of that period was RM1.6 million.
5. Documents and Security. The principal documentary evidence consisted of the written loan agreement, personal guarantees signed by the Second and Third Defendants, title deeds relating to two parcels of land, and four undated cheques drawn from the First Defendant’s current account. Each cheque was for RM400,000, producing a total cheque value of RM1.6 million. These documents were relied upon by the Plaintiff as evidence of the Defendants’ contractual obligations.
6. The Plaintiff’s Claims. Following the First Defendant’s failure to make repayment, the Plaintiff sought an order that the two parcels of land be transferred to it. In the alternative, it claimed RM1.6 million, comprising RM800,000 as the principal loan and RM800,000 as the “agreed profit”, together with legal costs. If the monetary claim were allowed, the Plaintiff also sought an order that the two parcels of land be auctioned to satisfy the judgment debt.
7. The Defendants’ Defence and Counter-Claim. The Defendants pleaded that they had not consented to the alleged RM800,000 profit, that the transaction was an illegal moneylending arrangement and that the Plaintiff had exercised undue influence over the Second and Third Defendants in procuring the personal guarantees. They also pleaded that the Fourth Defendant had no involvement in the agreement and had never pledged the lands. No separate substantive counter-claim was recorded in the Federal Court judgment.
8. The Plaintiff’s Case on the Evidence. The Plaintiff relied principally on the written terms of the loan agreement and the security documents. Clause 1 described the additional RM800,000 as the “Agreed Profit”. Clause 3 fixed a 30-day loan period. Clause 4 required repayment of RM1.6 million and the deposit of the lands and four cheques as security. The Plaintiff also relied on the fact that the First Defendant had approached it while in financial difficulty.
9. The Plaintiff’s Factual Arguments. The Plaintiff’s position was that the transaction was a one-off business accommodation rather than the operation of a moneylending enterprise. Its representative’s evidence was that the Plaintiff ordinarily conducted an information technology and general trading business. There was no evidence of prior loans to other borrowers, no advertisement of moneylending services, and no public announcement that the Plaintiff was carrying on a moneylending business.
10. The Plaintiff’s Legal Argument. The courts below placed considerable reliance on Ngui Mui Khin & Anor v Gillespie Bros & Co Ltd [1980] 2 MLJ 9; [1979] 1 LNS 60, Federal Court. That decision stated that the former moneylending legislation did not render every loan transaction illegal. A creditor was a moneylender only where the creditor’s business was moneylending, and proof of such a business ordinarily required continuity, system or repetition of similar transactions.
11. The Significance of Gillespie Bros. On the Plaintiff’s approach, a solitary transaction did not amount to the business of moneylending. The High Court accepted that reasoning and observed that “one swallow does not make a summer”. It regarded the title deeds, cheques and guarantees as security given to accommodate the borrower’s urgent financial needs, rather than evidence that the Plaintiff had entered the moneylending business.
12. The High Court’s Decision. The High Court ordered the First to Third Defendants to pay RM1.6 million with interest at 4% from the date of judgment until full settlement. It concluded that the transaction was not illegal because there was no evidence that the Plaintiff advertised, announced or held itself out as a moneylender. However, the court refused to transfer or auction the two parcels of land because the Fourth Defendant had not participated in the transaction.
13. The Defendants’ Case on Appeal. The Defendants argued that the High Court had concentrated too heavily on the definition of “moneylender” and had failed to consider the statutory meanings of “moneylending” and “interest”. They submitted that the additional RM800,000 was the consideration for the loan and therefore constituted interest, irrespective of the contractual expression “agreed profit”.
14. The Defendants’ Argument on the Statutory Presumption. The Defendants relied on section 10OA of the Moneylenders Act 1951, which provides that where a person is alleged to be a moneylender, proof of a single loan at interest raises a presumption that the person is carrying on the business of moneylending until the contrary is proved. They argued that the Plaintiff had not produced evidence capable of rebutting that presumption.
15. The Defendants’ Argument on Illegality. The Defendants further contended that because the Plaintiff was unlicensed, the agreement was prohibited by sections 5 and 15 of the Moneylenders Act 1951. They also relied on section 24 of the Contracts Act 1950, under which an agreement is void where its object or consideration is forbidden by law, would defeat the operation of any law, or is regarded as immoral or opposed to public policy.
16. The Court of Appeal’s Decision. The Court of Appeal partly allowed the Defendants’ appeal. It held that the Plaintiff had rebutted the statutory presumption and that the transaction was a friendly loan under which interest ought not to have been charged. It therefore allowed recovery of the RM800,000 principal, disallowed the RM800,000 “agreed profit”, awarded interest at 4% from the date of the High Court judgment, and ordered the return of the land titles.
17. Issues Before the Federal Court. The Federal Court considered whether a 30-day loan carrying 100% interest was lawful, whether the court should assist the lender to recover the principal if the transaction was illegal, whether a lender escaped the statutory definition merely because it had not publicly advertised a moneylending business, and whether a person who was not otherwise a professional moneylender could charge any rate of interest.
18. Court’s Analysis of the Statutory Definitions. The Federal Court held that the expressions “moneylender”, “moneylending” and “interest” in section 2 of the Moneylenders Act 1951 had to be read together and harmoniously. “Moneylending” means lending money at interest, with or without security. “Interest” includes any amount, by whatever name called, paid or payable in excess of the principal in consideration of or otherwise in respect of a loan.
19. The True Character of the Agreed Profit. The written agreement established that the additional RM800,000 was the consideration required by the Plaintiff for advancing the RM800,000 principal. It was payable within the same 30-day loan period and was precisely equal to the amount borrowed. The Federal Court therefore held that the sum was interest at the rate of 100%, merely disguised by the expression “agreed profit”.
20. The Court’s Approach to Labels. The court emphasised that changing the contractual label did not change the legal nature of the payment. The judgment stated that just as a rose by any other name would smell as sweet, a corpse flower by any other name would smell as foul. The analogy illustrated that an oppressive interest charge did not become lawful merely because the document described it as profit.
21. Court’s Analysis of Section 10OA. The Federal Court held that section 10OA of the Moneylenders Act 1951 automatically applied because the pleadings alleged that the Plaintiff was a moneylender and the transaction involved a loan at interest. The provision imposed a legal burden on the Plaintiff to prove, on the balance of probabilities, that it was not carrying on moneylending. The burden was not on the Defendants to prove repeated transactions.
22. The Standard of Proof. The Federal Court referred to Miller v Minister of Pensions [1947] 2 All ER 372, King’s Bench Division, in which Lord Denning explained that the burden on the balance of probabilities is discharged where the tribunal considers the fact more probable than not. If the probabilities are equal, the party bearing the burden has not proved its case.
23. Failure to Rebut the Presumption. The Plaintiff produced no evidence showing that the RM800,000 was advanced without interest. Its evidence that it ordinarily conducted an information technology business and had not made previous loans did not answer the central issue. The agreement itself conclusively showed that the loan carried an additional payment of RM800,000. The statutory presumption was therefore not rebutted.
24. Why Gillespie Bros Did Not Control the Case. The Federal Court explained that Ngui Mui Khin & Anor v Gillespie Bros & Co Ltd [1980] 2 MLJ 9; [1979] 1 LNS 60, Federal Court had been decided before section 10OA came into force on 15 April 2011. The earlier court had not been required to consider a statutory presumption arising from one loan at interest. Its requirement for continuity or repetition was therefore inapplicable to the present statutory framework.
25. Court’s Analysis of Illegality and Restitution. The RM800,000 “agreed profit” was unlawful consideration under paragraphs (a), (b) and (e) of section 24 of the Contracts Act 1950. It was forbidden by law, would defeat the moneylending legislation if permitted, and was opposed to public policy. The agreement was therefore void from the outset. Section 66 of the Contracts Act 1950 did not assist the Plaintiff because it applies where an agreement is discovered to be void or later becomes void, not where it was illegal and void ab initio.
26. Authorities on Illegal Contracts. In Ideal Advantage Sdn Bhd v Perbadanan Pengurusan Palm Spring @ Damansara and another appeal [2020] 4 MLJ 93, Court of Appeal, the court affirmed that where a transaction is illegal, the loss lies where it falls and the law will not grant relief based on the illegal act. This supported the refusal to assist the Plaintiff in enforcing or unwinding its unlawful agreement.
27. Authorities on Restitution. In Dr Mansur bin Hussain & Ors v Barisan Tenaga Perancang (M) Sdn Bhd & Ors [2019] MLJU 1552, Court of Appeal, the court held that no restitution is available where an agreement is void ab initio for illegality. A court will not restore the parties to their former positions as though an inherently illegal agreement had never been made.
28. Authorities on Unlicensed Moneylending. In Yeow Guang Cheng v Tang Lee Hiok & Ors [2020] MLJU 1936; [2020] 1 LNS 1696, High Court, affirmed in Tang Lee Hiok & Ors v Yeow Guang Cheng [2022] 5 MLJ 584; [2022] 1 LNS 1510, Court of Appeal, the court held that public policy required unlicensed moneylenders to be deprived of the principal sums, interest and benefits derived from their unlawful moneylending activities.
29. Why the Principal Was Not Recoverable. The Federal Court rejected the Court of Appeal’s distinction between the illegal interest and the recoverable principal. If an unlicensed lender could always recover the principal, illegal moneylending would become a low-risk activity. The lender would lose only the anticipated excessive return while remaining assured that the courts would restore the capital. That result would encourage rather than deter illegal lending.
30. Final Decision and Orders. The Federal Court answered all five questions of law in the negative. It allowed the Defendants’ appeal, set aside the Court of Appeal’s order requiring repayment of RM800,000 and awarded the Defendants costs of RM60,000. The Plaintiff was therefore unable to recover either the RM800,000 “agreed profit” or the RM800,000 principal through the court proceedings.

 Source: Triple Zest Trading & Suppliers & Ors [2023] 6 MLJ 818. . Federal Court, Putrajaya. Abdul Rahman Sebli CJ (Sabah and Sarawak), Hasnah Hashim and Nordin Hassan FCJJ.

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*Wilson Kuek律师是《法律与你同行 Law & Justice》面子书群组的创办人。《法律与你同行》是马来西亚最大的法律平台。我们的平台每天为无数的平民百姓免费解除各类的法律困扰。Wilson Kuek is the founder of the Facebook group “Law & Justice.” “Law & Justice” is Malaysia’s largest legal platform, providing free legal assistance to countless individuals daily.

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*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan.

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 1. 借RM800,000一个月竟要还6 Million，联邦法院怎么判？ 2. “约定利润”其实是100%利息？马来西亚非法放贷案解析 3. 无牌放贷者连本金都拿不回？联邦法院给出答案 4. RM80万借款变RM160万，法院拒绝帮忙追债 5. 高利贷换名叫利润，法律就会承认吗？ 6. 一个月收100%回酬，借款协议是否有效？ 7. 非法放贷被告如何用Moneylenders Act成功翻盘？ 8. 只有一宗借款，也可能被认定经营放贷生意 9. 交出地契和支票后，借款人为何仍不必还本金？ 10. “Friendly Loan”还是非法高利贷？联邦法院这样判断 11. 无牌放贷的严重后果：本金、利息可能全部拿不到 12. RM800,000 Agreed Profit被法院认定为利息 13. 借款协议写得再漂亮，违法还是违法 14. 第10OA条如何推定对方是非法放贷者？ 15. 马来西亚商业借款陷阱：30天翻倍还款 16. 私人借贷收高利息，小心整份合约无效 17. 地契、个人担保和空白支票能否保障放款人？ 18. 法院为何不让非法放贷者追回本金？ 19. 借钱收“利润”是否合法？看懂联邦法院判决 20. 100%利息贷款案：法院不会替非法交易收拾残局

1. RM800,000 loan RM1.6 million repayment Malaysia 2. 借RM80万还RM160万 agreed profit treated as interest 4. 约定利润属于利息 5. 100% interest within 30 days 6. 马来西亚100%高利贷 7. unlicensed moneylender cannot recover principal 8. 无牌放贷本金无法追回 9. Moneylenders Act 1951 section 10OA 10. 放贷法第10OA条推定 11. single loan at interest presumption 12. 一宗借款推定经营放贷 13. illegal moneylending agreement Malaysia 14. 马来西亚非法放贷合约无效 15. Contracts Act 1950 section 24 illegal consideration 16. 合约法第24条违法对价 17. section 66 restitution void ab initio 18. 地契个人担保空白支票借款 19. friendly loan versus moneylending business 20. Federal Court agreed profit illegal loan case

#illegal loan #illegal lending #非法贷款 #非法高利贷 #非法放贷 #阿窿