Chapter 32 - Trial

Question 1

TRIAL

Overview

Answer 1

1) General principles
2) Absence of parties at trial
3) Adjournment of a trial
4) Course of trial
5) Trials & enquiries before Registrar
6) Assessment of damages

Question 2

GENERAL PRINCIPLES ON TRIAL

Overview

Answer 2

1) Role of judge

2) Disqualification of judge

Question 3

GENERAL PRINCIPLES ON TRIAL

Role of judge

Answer 3

Hock Hua Bank (Sabah) v Yong Liuk Thin:

• Before deciding any matter, a Judge is bound by two rules of essential justice.
• He must confine himself to the points raised by Counsel before him and nothing else;
• He must decide the question in the light of the objective facts and in accordance with settled principles.

Question 4

GENERAL PRINCIPLES ON TRIAL

Disqualification of judge

Answer 4

Hock Hua Bank (Sabah) v Yong Liuk Thin:

• Unless a Judge has a direct pecuniary or proprietary interest in the subject matter of a proceeding, the law will not assume bias on the part of the Judge.
• To allege bias, there must be circumstances upon which suspicion could be grounded that the Judge would appear to be bias.

Question 5

GENERAL PRINCIPLES ON TRIAL

Test for disqualification of judge

Answer 5

1) Real danger of bias test -Metropolitan Properties Co v Lennon:

• the court does not look at the mind of the judge himself;
• the court looks at the impression which would be given to other people;
• even if he was impartial as he could be, if right minded persons would think that in the circumstances there was a ‘real likelihood’ of bias on his part, then he should not sit.
  If he does sit, his decision cannot stand.

2) Reasonable & fair-minded - Hock Hua Bank (Sabah) Yong Liuk Thin:

• The proper test is whether a reasonable and fair-minded person sitting in Court and knowing all the relevant facts would have ground to suspect that a fair trial would not be possible.
• Just because the Judge had commented adversely on the credibility of the evidence before him in an interlocutory proceeding does not mean that he will not decide the case on the evidence adduced before him at the trial.

Question 6

ABSENCE OF PARTIES AT TRIAL

Overview

Answer 6

1) Absence of both parties
2) Absence of defendant
3) Absence of plaintiff

Question 7

ABSENCE OF PARTIES AT TRIAL

Absence of both parties

Answer 7

O.35, r.1(1):

• Dismiss the action; or
• Make any other order as it thinks fit.

Question 8

ABSENCE OF PARTIES AT TRIAL

Absence of defendant - effect

Answer 8

1) At trial - O.35, r.1(2):

• give judgment; or
• make any other order.

2) At appeal - Asia Commercial Finance (M) Bhd v Pasadena Properties Development Sdn Bhd:

• When D is absent at its own appeal, court proceed to hear the appeal & dismissed the appeal;
• i.e. the court hears the appeal in the absence of D;
• The proper recourse for D in such a situation is not to re-instate the appeal;
• But to appeal against the dismissal;
• Re-instatement of appeal is only proper if the appeal is struck out;
• i.e. the court has not heard the appeal.

Question 9

ABSENCE OF PARTIES AT TRIAL

granting judgment for P in absence of D

Answer 9

1) Gundarajoo A/L Vegadason v Satgunasingam A/L Balasingam:
- Court has the discretion to proceed with trial in D’s absence or to grant judgment to P without trial.

Ref. Anne Lim Keng Seng (trading as Golden Kintex-sole-proprietorship) v Malayan Banking Bhd:

• The testimony of all the witnesses present must be heard before a decision is pronounced.

Ref. Takako Sakao (f) v Ng Pek Yuen (f) & Anor:

• Unless the evidence is inherently implausible, the court will have to accept such evidence presented as true since no evidence to the contrary has been adduced.

Question 10

ABSENCE OF PARTIES AT TRIAL

setting-aside judgment granted in absence of D

Answer 10

O.35, r.2:

• may be set aside by the court or upon application;
• application to be made within 14 days.

Question 11

ABSENCE OF PARTIES AT TRIAL

distinction between setting-aside two types of judgment

Answer 11

Felda & Anor v Awang Soh Mamat & 353 Yang lain (CA):

(i) where a judgment is obtained without a trial having proceeded:

• covers default due to a failure to file an appearance after the writ was served or default of defence;
• the principle is found in Evans v Bartlam.
• i.e. court will look at whether there is a defence on merit.

(ii) one which is obtained with a trial, but on absence of a party:

• when a judgment is entered after a trial has proceeded a different set of rules in Shocked v Goldschmidt will apply.
• i.e. court will look at the reason for the absence of the party & whether there is an explanation for the absence.

Question 12

ABSENCE OF PARTIES AT TRIAL

real doubt as to absence

Answer 12

Hup San Timber Trading v Tan Ah Lan (SC):

• When there is doubt as to the real reason behind a party’s absence, an adjournment should have been allowed;
• any delay occasioned thereby could be compensated by an award of appropriate costs.

Question 13

ABSENCE OF PARTIES AT TRIAL

Absence of plaintiff - effect

Answer 13

O.35, r.1(2):

• dismiss the action; or
• make any other order

Question 14

ABSENCE OF PARTIES AT TRIAL

Recourse for P

Answer 14

1) Re-instatement or appeal - Karam Singh v New India Assurance:

• P was entitled to elect between to appeal against the order or re-file a fresh action;
• Res judicata did not apply as the matter substantially in issue has not been heard & finally determined.

2) Re-instatement - Gan Kim Kiat & Bros Realty Sdn Bhd v Leang Ah Kan

• A court must excuse the absence of a client in civil cases;
• Re-instatement should be allowed in the event of claims being dismissed.

Question 15

ABSENCE OF PARTIES AT TRIAL

Res judicata - whether judge is functus offio

Answer 15

New India Assurance v Karam Singh:

• A judge did not become functus officio since the real dispute between the parties which he never tried;
• it was open to [P] to bring [his] second action in respect of the same subject matter as in the first action so long as res judicata did not apply;
• When a suit is dismissed for absence of a party, it is common ground that the matter substantially in issue between the parties in the earlier action had not been heard and finally determined by the Judge.

Question 16

ADJOURNMENT OF TRIAL

Overview

Answer 16

1) Law on adjournment
2) Discretion to grant adjournment
3) Guiding principles to grant adjournment
4) Test to grant adjournment
5) Appeal against adjournment order
6) Interfering with exercise of discretion

Question 17

ADJOURNMENT OF TRIAL

Law on adjournment

Answer 17

O.35, r.3:

• may be granted for such a time & upon such terms court thinks just.

Question 18

ADJOURNMENT OF TRIAL

Discretion to grant adjournment

Answer 18

1) Lee Ah Tee v Ong Tiow Phen:

• Granting adjournment is wholly on the discretion of the court;
• The discretion is prima facie unfettered.

2) Syarikat Pasir Perdana v Go Pak Hoong Tractor & Building Construction:

• The granting of an adjournment is in the absolute discretion of the court depending on the facts of each case.
• Unless it can be shown that the discretion was improperly exercised it should not be disturbed.

Question 19

ADJOURNMENT OF TRIAL

Guiding principles to grant adjournment

Answer 19

Syarikat Pasir Perdana v Go Pak Hoong Tractor & Building Construction:

• Principles to exercise discretion to grant adjournment are that:

i) Both parties should be given an opportunity to be heard;
ii) Any delay occasioned by the adjournment could be compensated by an award of appropriate costs.

Question 20

ADJOURNMENT OF TRIAL

Test to grant adjournment

Answer 20

1) The test - Lee Ah Tee v Ong Tiow Phen:
- Whether on the facts of the case, there are adequate or sufficient reasons for the judge to refuse the adjournment.
2) Example - Hup San Timber Trading Co Sdn Bhd v Tan Ah Lan:
- When the judge was in some doubt as to the real reason behind the party’s absence, an adjournment should have been allowed and any delay occasioned thereby could be compensated by an award of appropriate costs.

Question 21

ADJOURNMENT OF TRIAL

Appeal or setting aside against adjournment order

Answer 21

1) Syarikat Pasir Perdana v Go Pak Hoong Tractor & Building Construction:
- It was open for parties to apply to the court to set aside the adjournment order upon giving valid reasons.
2) cf. Insas Berhad & Anor v Ayer Molek Rubber Company Berhad (FC):

• An order of a Judge to adjourn the hearing of a matter before him is not a proper subject for appeal.
• There was no authority to indicate that such order is subject to appeal and to allow it now would only open a floodgate for appeals against adjournments.
• Therefore, an appeal cannot be based solely on adjournment per se;
• This is so although a court in dealing with appeal proper can consider the issue of adjournment and injustice and make suitable order for rehearing as the justice of the case may demand.

Question 22

ADJOURNMENT OF TRIAL

Appellate interference on exercise of discretion in adjournment of trial

Answer 22

1) Syarikat Pasir Perdana v Go Pak Hoong Tractor & Building Construction:

• The granting of an adjournment is in the absolute discretion of the court depending on the facts of each case.
• Unless it can be shown that the discretion was improperly exercised it should not be disturbed.

2) Lee Ah Tee v Ong Tiow Phen:

• An appellate Court should refrain from interfering with the trial judge’s exercise of discretion in regard to the granting of an adjournment;
• This is so unless:

i) it appears that such discretion has been exercised in a way that all necessary matters were not taken into consideration; or
ii) the decision was otherwise arbitrarily made; or
iii) it appears that the result of the order made below would be to defeat the rights of the parties altogether; or
iv) that there would be an injustice to one or the other of the parties.

3) MGG Pillai v Vincent Tan (CA):
- An appellate court would not interfere “unless it can be demonstrated to a conviction that the refusal resulted in the deprivation of essential justice” to a party.

Question 23

COURSE OF TRIAL

Overview

Answer 23

1) The law
2) Who should begin - general rule
3) Who should begin - exceptions
4) Submissions
5) Witnesses
6) Documentary evidence
7) Inadmissible documents
8) Submission of no case to answer
9) Application to re-open case

Question 24

COURSE OF TRIAL

The law

Answer 24

O.35, r.4

Question 25

COURSE OF TRIAL

Who should begin - general rule

Answer 25

O.35, r.4(2):

• Plaintiff shall begin by opening his case.

Question 26

COURSE OF TRIAL

Who should begin - exception 1

Answer 26

1) The law - O.35, r.4(1):

• Court orders otherwise;
  e. g. P applies to have D start first.

2) Example - Grunther Industrial Developments Ltd v Federated Employers Insurance Association Ltd:

• For the determination of obligation of whom opening the case, it is necessary to look at the pleadings;
• OTF, the statement of claim alleges a loss under a consequential loss policy of fire insurance.
• The defence first of all requires the production of that policy as a condition precedent to its admission; and, secondly, puts in issue the loss.
• Therefore before there can be any question of the issue of fraud arising here, the plaintiffs must first of all produce the original policy, because otherwise, without its production, the claim fails in limine; and,
• Secondly, the plaintiffs must prove some loss even though it is agreed that liability only is to be determined at the trial;
  Because without proof of some loss there could be no cause of action.
• Application to have D begins first failed.

3) Recent - allegation of fraud - Letchumanan Chettiar v Secure Plantations Sdn Bhd (FC, 2017):
- Ref. above case and held: A plaintiff has the onus to begin the case, even if the defence pleads fraud.

Question 27

COURSE OF TRIAL

Who should begin - exception 2

Answer 27

1) O.35, r.4(6):
- Burden of proof on all issues lay on D.
2) Scope of O.35, r.4(6) - Chong Chee Yan v Germila Sdn Bhd & Anor:

• the court may give its directions under O.35, r.4(1) whether an action came within the provisions of O.35, r.4(6) or otherwise.
• If the facts of the case clearly attracted the application of O.35, r. 4(6), then the court shall give the necessary directions on the application of either party to the case under O. 35 r. 4(1).

3) Example - Lo Khi On v Tanjong Aru Hotel Sdn Bhd:
- in a situation where the defendants were making all the positive assertions which they had to prove whereas the plaintiff only had to prove the issue of damages, the court would have allowed the defendants to commence their case first by exercising the discretion conferred under Order 35 Rule 4(1) had the defendants made such an application.

Question 28

COURSE OF TRIAL

Submission

Answer 28

Fresh point of law raised - O.35, r.4(7):

• When a fresh point of law is raised during submission, opposite party may make a further submission in reply.
• Further submission must only be in relation to that point of law.

Question 29

COURSE OF TRIAL

Witness - overview

Answer 29

1) Choice & order of witness
2) Re-calling & calling additional witness
3) Witness statement

Question 30

COURSE OF TRIAL

Choice & order of witness

Answer 30

Wee Kok Bin v Aseambankers Malaysia Berhad:

• The selection, choice and order of witnesses should be left to the party calling them, be it the Plaintiff or Defendant.
• It is wrong to allow an opposing party to interfere with this right, unless in very exceptional circumstances.
• However, in the course of the trial, opponent’s counsel will be free to object to the evidence on the normal grounds of relevancy, materiality and admissibility.
• It will also be up to the witnesses to satisfy this court that the subpoenas against them are an abuse of the court’s process and done for collateral and oppressive purposes, since they have no useful evidence to offer.

Question 31

COURSE OF TRIAL

Re-calling & calling additional witness

Answer 31

Ong Yoke Eng & Anor v Lim Ah Yew:

• It is in the discretion of the court of first instance to recall a witness or call further witnesses after his case is closed.
• Under ordinary circumstances, it may not be necessary or permissible to allow a witness once examined and dismissed by a party to be recalled as it is expected that the advocate will interrogate him on all material points touching his case;
• However, unforeseen situations may develop and there may be also inadvertent omissions.
  In such a case the court may at its discretion allow a witness to be recalled subjected to surprise or prejudice to the other party which should be guarded against.

Question 32

COURSE OF TRIAL

Witness statement - the law

Answer 32

• O.34: on PTCM

- O.38, r.2: on witness statement as evidence

Question 33

COURSE OF TRIAL

Principle on witness statement

Answer 33

Faridah Ariffin v Dr. Lee Hock Bee:

• Witnesses must be examined orally and in open court before the trial judge.
• The recording of evidence is a judicial function & cannot be delegated to anyone.
• There is no provision to compel a witness to give statement to a party or his solicitors before trial.
• It would be wrong for counsel or his clerk to act as the interpreter for a witness.
• It would also be wrong of the court to use the services of an interpreter engaged by a party.
• The interpreter must be engaged by the court.

Question 34

COURSE OF TRIAL

Whether witness statement is privileged

Answer 34

Faridah Ariffin v Dr Lee Hock Bee:

• Statements made by lay witnesses to litigants and their solicitors for the purpose of the litigation are privileged.
• Privilege cannot be taken away by subsidiary legislation in the form of the Rules.
• For privilege to be overridden, there must be Parliamentary legislation allowing it.

Question 35

COURSE OF TRIAL

Documentary evidence

Answer 35

1) Bundle of documents:
- O.34, r.2(2)(c) - (i)
2) Scope - Yeo Ing King v Melawangi Sdn Bhd:

• Part A: contents & truths are not disputed;
• • When a document is placed in Part A, it is deemed to be proved without any qualification.
• Part B: authenticity is not disputed, content is disputed.
• Part C: authenticity & contents are disputed.

Question 36

COURSE OF TRIAL

Part A documents

Answer 36

Tiow Weng Theong v Melawangi Sdn Bhd (CA):

• When litigating parties place their documents in bundles marked as Part A, they are expressly acknowledging and accepting that:

(i) The authenticity of the document/s in question are not in dispute, i.e. the existence of the document is accepted, not a fabricated or fictitious document;
(ii) The contents of the document/s or the truth of the contents of the document/s is not in issue either, i.e. the parties agree that whatever the content of the document, it is agreed upon and accepted.

Question 37

COURSE OF TRIAL

Inadmissible documents & documents marked as ID

Answer 37

Sri Paandi Restaurant Sdn Bhd v Saraswathy A/P Kesavan:

• To admit the ID documents as evidence, the party tendering the ID documents has to satisfy the following two conditions:

i) call the maker or rely on exceptions to rule against hearsay; and
ii) adduce either ‘primary evidence’; or ‘secondary evidence’.

• court cannot consider the contents of the ID documents and the oral evidence adduced concerning the ID documents if the conditions are not fulfilled.

Question 38

COURSE OF TRIAL

Exhibits

Answer 38

YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban Ahmad:

• Once the document is marked as exhibit, the court in deliberating the fact can give low probative value;
• but court cannot exclude and refuse to consider it.

Question 39

COURSE OF TRIAL

Submission of no case to answer - overview

Answer 39

1) Circumstances where it may arise
2) Duty of judge
3) How D can elect
4) Making ruling
5) Failure to put D to election
6) Multiple defendants

Question 40

COURSE OF TRIAL

Circumstances where it may arise

Answer 40

Yuill v Yuill:

• May be made by D either if no case has been established in law or the evidence led is unsatisfactory or unreliable that the P has not discharge his burden.

Question 41

COURSE OF TRIAL

Duty of judge

Answer 41

Storey v Storey:

• A judge is not bound to refuse when D has elected to give submission of no case to answer;
• But he MUST put the party to an election of whether to call evidence or not.
• if the judge does not put D to his election whether to call evidence or not, D retains his right to call it if his submission fails.

Question 42

COURSE OF TRIAL

How D can elect

Answer 42

Yuill v Yuill:

1) WHAT: A judge must put D to election as to whether he wishes to call evidence for the defence;
2) WHAT: If D chose to not call any evidence for the defence, he is bound by the election.
3) WHAT IF: In case of his submission of no case to answer fail, i.e. Judge held that P has discharged his burden on the balance of probabilities, D is NOT entitled to call his witness.
4) HOW: Election may be made expressly or impliedly.

Question 43

COURSE OF TRIAL

Making ruling

Answer 43

No ruling until D has elected:

1) Laurie v Rglan Co:

• The judge should refuse to rule on the submission of no case to answer;
• Unless & until D has made it clear that he does not intend to call for evidence.

2) Jaafar Shaari & Anor v Tan Lip Eng & Anor:
- no judge should be asked for his conclusion or opinion on the evidence until such evidence is concluded.

Question 44

COURSE OF TRIAL

Failure to put D to election

Answer 44

Jaafar Shaari & Anor v Tan Lip Eng & Anor:

• If the court makes its ruling or decision on submission of no case to answer without D being asked to make an election, D would still be entitled to call evidence as if he had not made such a submission.

Question 45

COURSE OF TRIAL

Effect of submission of no case to answer

Answer 45

Teo Boon Hong v Tan Ewe Woh:

• Submission of no case to answer upheld: judgment will be entered for D, i.e. D wins.
• Submission of no case to answer failed: judgment will be entered for P, i.e. P wins.

Question 46

COURSE OF TRIAL

Multiple defendants for submission of no case to answer

Answer 46

Ng Neoh Ha & Ors v Maniam & Ors:

• A single defendant is not permitted to make submission of no case to answer unless an election is first made to call no evidence.
• The question whether or not to entertain a no case submission by one of several defendants is a matter of proper case management having regard to the interest of justice, including convenience and economy in time and money.
• It is in essence one of practice within the general discretion of the Court to regulate the conduct of the trial.
• OTF, since the 5th and 6th defendants have elected not to call evidence, they are bound by the election.
  The Court will have to hear the evidence of the other defendants and their witnesses and the full addresses before determining whether the plaintiffs have made out a case against any of the defendants.

Question 47

COURSE OF TRIAL

Application to re-open case

Answer 47

Tan Kah Khiam v Liew Chin Chuan & Anor:

• The exercise of discretion depends on where the justice of the case lies having regard to the peculiar facts and circumstances before the court.
• It is in the discretion of the court of first instance to recall a witness or call further witnesses after his case is closed;
• A trial judge must be given a wide discretion on matters relating to evidence.

Question 48

COURSE OF TRIAL

Appellate interference in exercise of discretion to re-open case

Answer 48

Tan Kah Khiam v Liew Chin Chuan & Anors:

• When the judge had given no reasons for exercising her discretion in the way in which she did, the role of appellate court was much wider than in the usual discretion case where reasons are given;
• A reasonable tribunal armed with all the relevant material that was before the trial judge would have permitted the plaintiff to reopen his case, especially so as the defendants would have suffered no real prejudice in real terms by the grant of the application.
• Time and costs would also have been saved and the trial could have been proceeded with smoothly.

Question 49

TRIAL & ENQUIRIES BEFORE REGISTRAR

The law

Answer 49

O.36, r.1 - 6

Question 50

ASSESSMENT OF DAMAGES

Overview

Answer 50

1) The law

2) Appellate interference

Question 51

ASSESSMENT OF DAMAGES

The law

Answer 51

O.37, r.1-6

Question 52

ASSESSMENT OF DAMAGES

Appellate interference on assessment of damages

Answer 52

Seruan Gemilang Makmur Sdn Bhd v Badan Perhubungan UMNO Negeri Pahang Darul Makmur:

• The High Court in hearing an appeal from a decision of the Deputy Registrar relating to assessment of damages must be slow to disturb the finding of facts and assessment of damages as the Deputy Registrar had heard the witness and observed the demeanour.