KK SATU HARTANAH SDN. BHD. TENAGA NASIONAL BERHAD

WA-12BNCvC-6-01/2023 Kand. 38 17/10/2023 10:48:21 IN THE HIGH COURT AT MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR CIVIL SUIT NO.: WA-12BNCVC-6-01/2023 BETWEEN KK SATU HARTANAH SDN BHD (Company No.: 985988-U) …APPELLANT AND TENAGA NASIONAL BERHAD (Company No.: 200866-W) …RESPONDENT 1 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal Judgment Introduction [1] By Enclosure 9 prayer [i] the appellant / defendant at the Sessions Court below applies to me for leave to use a Handwriting Report dated 08-05-2023 as fresh evidence under Order 55 rule 7 Rules of Court 2012 for the appellant / defendant’s appeal against the trial judgment granted by the Sessions Court. [2] By Enclosure 9 prayer [ii] the defendant also prayed that the trial judgment granted by the Sessions Court be set aside. [3] I dismissed Enclosure 9 on 05-09-2023. The defendant has filed an appeal to the Court of Appeal. [4] These are my Grounds of Decision. I shall refer to the appellant / defendant as the appellant. I start with Enclosure 9 prayer [ii]. Enclosure 9 prayer [ii] [5] Enclosure 9 prayer [ii] is misconceived. One can’t set aside a judgment of the Subordinate Court by way of an application to the High Court. This is elementary, as Sherlock Holmes would admonish his sidekick Dr Watson. [6] Enclosure 9 prayer [ii] is stillborn and can be dismissed without further ado. 2 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal [7] I now move to Enclosure 9 prayer [i]. Enclosure 9 prayer [i] The law on adducing fresh evidence at the hearing of an appeal [8] Order 55 rule 7 Rules of Court 2012 provides as follows : “7. At the hearing of any appeal, fresh evidence shall not be admitted unless the Judge is satisfied that – (a) at the hearing in the Subordinate Court, the new evidence was not available to the party seeking to use it or that reasonable diligence would not have made it so available; and (b) the fresh evidence, if true, would have had or would have been likely to have a determining influence upon the decision of the Subordinate Court.” [Emphasis added] [9] The law on adducing fresh evidence at the hearing of an appeal is well settled. I need not add to the literature. Anyone interested can refer to Suffian FJ's decision in the Federal Court case of Lau Foo Sun v Government of Malaysia [1970] 1 LNS 56 and [1970] 2 MLJ 70 and Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 3 CLJ 238 CA at page 243. [10] For the purposes of my decision, it suffices for me to set out a recent 2020 Court of Appeal decision that reiterated the law and reviewed 3 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal both Lau Foo Sun v Government of Malaysia and Maxisegar Sdn Bhd v Silver Concept Sdn Bhd. [11] This is what the Court of Appeal via Suraya Othman JCA said in Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi A/P Alau Malay @ Anna Malay (administratrix for the estate of Balasubramaniam A/L Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133 - [14] The law to admit fresh/new evidence is well settled/trite. It is found in s 69 of the Courts of Judicature Act 1964 (‘the CJA 1964’) and r 7 of the Rules of the Court of Appeal 1994 (‘the RCA 1994’). Section 69 provides as follows: (2) The further evidence may be given without leave on interlocutory applications, or in any case as to matter which have occurred after the date of the decision from which the appeal is brought. … [16] Rule 7(3A) of the RCA 1994 are generally known as the three conditions or tests to be met before fresh/new evidence may be allowed to be adduced. These three conditions/tests are the three conditions/tests enunciated or stipulated in the case of Ladd v Marshall [1954] 3 All ER 745 which is the landmark case on the principles of adducing fresh/new evidence. Lord Denning at p 748 held as follows: 4 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible. [17] The principles in Ladd v Marshall have been approved and applied by our Federal Court in Lau Foo Sun v Government of Malaysia [1970] 2 MLJ 70. In the case of Asiatic Development Bhd & Anor v Balachandar a/l Palanysamy [1995] 3 MLJ 445, the Court of Appeal reiterated as follows: Appellants’ counsel cited Ladd v Marshall [1954] 3 All ER 745; [1954] 1 WLR 1489. He suggested that merely because this evidence was not available at the civil trial, it should now be put in. Ladd v Marshall was applied by the Federal Court in Lau Foo Sun v Government of Malaysia [1970] 2 MLJ 70 at p 71. Suffian FJ (as he was then) said: To justify the reception of this evidence three conditions must be fulfilled: First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; 5 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal Third, the evidence must be such as it presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible. These were the tests enunciated by Denning LJ (as he then was) at p 748 in Ladd v Marshall [1954] 3 All ER 745. [18] Thus, it is trite that in order for the plaintiffs to succeed in their notices of motion, the plaintiffs must satisfy the following three pre-conditions as laid down in Ladd v Marshall before these fresh/new evidence can be admitted at the hearing of the appeals proper. The plaintiffs must show as follows: (a)these evidence could not have been obtained with reasonable diligence for use at the trial; (b)these evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (c)these evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible. [19] It must be noted that these conditions/tests in Ladd v Marshall are not alternative but are cumulative and conjunctive in effect in that all the conditions must be fulfilled before such leave to admit fresh/new evidence is granted. In the Court of Appeal’s case of Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 5 MLJ 1, the court stated: 6 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal [4] The power of this court to grant leave to admit fresh evidence at the hearing of the appeal is governed by s 69(3) of the Courts of Judicature Act 1964 and r 7(3A) of the Rules Court of Appeal 1994. ‘The special grounds only referred to in Section 69(3) of the Courts of Judicature Act and the tests set out in r 7(3A) of the Rules of the Court of Appeal 1994 are generally known as the Ladd v Marshall [1954] 3 All ER 745 conditions. It is settled by various decided cases that the three conditions are cumulative and conjunctive in effect and are not disjunctive in that all the conditions must be fulfilled before such leave to admit fresh evidence be granted. (See also the Court of Appeal’s case of Hii King Hiong v Sarawak Securities Sdn Bhd [2008] 3 MLJ 18). [20] Further, as a rule, since there ought to be finality in litigation, the court is generally reluctant to admit fresh/new evidence on appeal. In the case of Mulholland and another v Mitchell (by his next friend Hazel Doreen Mitchell) [1971] 1 All ER 307, the House of Lords held: per Lord Viscount Dilhorne at p 311: It is, however, unusual for fresh evidence to be allowed to be given on the hearing of such an appeal. Special grounds have to be shown for its admission unless the evidence is of matters which have occurred after the date of trial (RSC Ord 59 r 10 (1)). per Lord Pearson at p 314: It is in general undesirable to admit fresh evidence on appeal, because there ought to be finality in litigation. 7 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal (Emphasis added.) [21] The court also disapproves of parties who file the application to introduce fresh/new evidence as a means to re-construct or to re- open their case and thus will only allow the admission of fresh/new or additional evidence on appeal in clearly exceptional circumstances. This was held by the Federal Court in Lo Fat Thjan & Ors v Public Prosecutor [1968] 1 MLJ 274 at p 277 which state as follows: We would deprecate generally the admission of additional evidence on appeal except in clearly exceptional circumstances. The adversary system in our trials is hardly compatible with allowing lacunae in the case of any party to be filled in by afterthoughts or countenancing reconstruction of any case after it has failed at the trial. (Emphasis added.) [22] In the case of Mutual Way Development & Construction Sdn Bhd v Saiseki (M) Sdn Bhd [2008] 2 CLJ 232, the Court of Appeal showed the same disapproval of parties filing the application to introduce fresh/new evidence to re-open their case which the court felt would lead to unfairness to the other party who will be confronted with new evidence for the first time and will result in the case being prolonged and thus increase in the costs of litigation. The court opined that an improper exercise to grant or accede to such application at a late stage will make the claim lose any semblance of proportionality and tantamount to an abuse of its process. 8 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal 22. In our view, to accede to this application at this stage, against the factual background of this case, would not only be an improper exercise of the Courts’ discretion, but tantamount to an abuse of its process. It would be equivalent to reopening of this case on a piece of evidence which we feel could have been made available with reasonable diligence on the part of the plaintiff. That new evidence too, at first glance, seems not to be inherently probable or credible and thus, cannot with certainty be said to meet the requirement of having a determining influence on the outcome of the case. 23. The plaintiff had waited for 12 long years to see the outcome of this litigation. Why was it that after all these long years that evidence was not available, yet in a mere 5-month period after the judgement, it suddenly surfaced? Now that the High Court had given its judgement, to allow for this case to be reopened would not, in our view, be in the interest of justice. The balance of the purchase price of the Crusher claimed by the plaintiff is only RM69,500. It would be highly unfair to the plaintiff if we were to allow it to be confronted with this new evidence for the first time at this stage. Also, taking into account the time and cost factors if this case is re-opened, we feel that this claim would lose any semblance of proportionality. 24. The words of Yong Pung How CJ in Chong Joon Wah v Tan Lye Thiang [1991] 3 MLJ 353 must serve as reminder on what we say above. We adopt what the learned Chief Justice said in this passage — 9 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal It need hardly be said that there must be finality in litigation. Even apart from the principles laid down in Ladd v Marshall, the costs of litigation require that some semblance of proportion must be maintained, and the Court of Appeal would be reluctant to order a new trial when the amount at stake is so small and the proceedings in court have already taken so long. (Emphasis added.) ISSUES TO BE DETERMINED [23] The issues are as follows: (a)whether the fresh/new evidence could not have been obtained with reasonable diligence for use at the trial; (b)whether the fresh/new evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; whether the fresh/new evidence is material, relevant or probative to the determination of the defendants’ appeals; (c)whether the fresh/new evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible; and (d)whether the delay in filing the notices in motion has been explained by the plaintiffs. [Emphasis added] 10 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal Application of law to facts Whether the fresh / new evidence could not have been obtained with reasonable diligence for use at the trial [12] The trial at the Sessions Court was on the 16-06-2022, 06-07-2022, 07-07-2022 and 19-07-2022. [13] The explanation offered by the Appellant is, I quote, from Enclosure 22 appellant’s written submissions at paragraph 19.1 – The Appellant had deposed that the Expert Report was only obtain on the 25-5-2023 and hence could not be adduce during trial at the Sessions Court on the 16-6-2022, 6-7-2022, 7-7-2022 and 19-7- 2022, making the Expert Report new evidence that was not available during the trial. [14] This is a lame excuse. The trial was conducted over a period of about one month and no explanation was given for the failure to appoint a handwriting expert much earlier and prepare the report for use at trial. [15] The explanation offered in the supporting affidavit [Enclosure 10] is lame, to say the least. The appellant said at paragraphs 17 to 20 he was waiting for TNB to call a handwriting expert to testify but TNB failed to call. To my mind, this shows the purported handwriting report cannot be fresh evidence that reasonable diligence would not have made available. 11 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal [16] It would appear that the appellant made the decision to commission for the report after he has lost the trial in order to support his appeal. The trial decision was delivered way back on 27-12-2022 and the report was commissioned much later as it is dated 08-05-2023. The appellant is clutching at straws. [17] In my view, the test in Order 55 rule 7 Rules of Court 2012 is not satisfied. The appellant failed to prove the fresh / new evidence could not have been obtained with reasonable diligence for use at the trial. Whether the fresh / new evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; Whether the fresh / new evidence is material, relevant or probative to the determination of the defendants’ appeals; [18] In my view this limb is also not satisfied by the appellant. [19] In the Handwriting Report at the Conclusion, the writer himself said for the Questioned signature QW-1 it is only a probability that the writer of the Specimen signatures did not write the Questioned signature. [See Enclosure 10 supporting affidavit pdf page 79 and Enclosure 5 record of appeal [Part A, B & C] Volume 2 page 516]. [20] For the Questioned signature QW-2 [which is the application for electricity supply] the finding was inconclusive whether the writer of the Specimen signatures did or did not write the Questioned signature. 12 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal [See Enclosure 10 supporting affidavit pdf page 79 and Enclosure 5 page 517]. Whether the delay in filing the application to adduce the fresh evidence has been explained by the applicant [21] The appellant filed its appeal on 04-01-2023. It was only 4 months later on 31-05-2023 that the appellant filed Enclosure 9 to adduce what it says is the fresh evidence. [22] In my view, the appellant has failed to explain the delay in filing the application to adduce the fresh evidence. [23] To allow the application and allow the report to be used at the appeal before me would be prejudicial to the respondent as the maker of the report has not been cross-examined. [24] The alternative, which is to remit the case back to trial for the examination and cross-examination of the maker of the report would in effect reopen the trial. This is manifestly unfair to the respondent who has won their suit against the appellant for stealing electricity. I adopt fully the reasoning of the Court of Appeal in Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi A/P Alau Malay @ Anna Malay (administratrix for the estate of Balasubramaniam A/L Perumal, deceased) & Ors and other appeals set out above. 13 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal Decision [25] I dismiss Enclosure 9 with costs of RM 5,000 subject to allocatur. …………(signed)......…… Leong Wai Hong Judicial Commissioner High Court of Malaya Kuala Lumpur (NCVC 10) Dated: 17th October 2023 COUNSEL: 1) Subramaniam Paramasivam for appellant. (Adliza Subra Siti & Partners (Kuala Lumpur)) 2) Zati Farahiyah for respondent. (Nik Saghir & Ismail (Kuala Lumpur)) CASES REFERRED TO: 1) Asiatic Development Bhd & Anor v Balachandar a/l Palanysamy [1995] 3 MLJ 445. 2) Chong Joon Wah v Tan Lye Thiang [1991] 3 MLJ 353. 3) Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi A/P Alau Malay @ Anna Malay (administratrix for the estate of 14 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal Balasubramaniam A/L Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133. 4) Hii King Hiong v Sarawak Securities Sdn Bhd [2008] 3 MLJ 18. 5) Ladd v Marshall [1954] 3 All ER 745; [1954] 1 WLR 1489. 6) Lau Foo Sun v Government of Malaysia [1970] 1 LNS 56 and [1970] 2 MLJ 70. 7) Lo Fat Thjan & Ors v Public Prosecutor [1968] 1 MLJ 274. 8) Maxisegar Sdn Bhd v Silver Concept Sdn Bhd [2005] 3 CLJ 238. 9) Mulholland and another v Mitchell (by his next friend Hazel Doreen Mitchell) [1971] 1 All ER 307. 10) Mutual Way Development & Construction Sdn Bhd v Saiseki (M) Sdn Bhd [2008] 2 CLJ 232. LEGISLATION REFERRED TO: 1) Order 55 rule 7 Rules of Court 2012. 2) Section 69 of the Courts of Judicature Act 1964. 3) Section 69(3) of the Courts of Judicature Act 1964. 4) Rule 7 of the Rules of the Court of Appeal 1994. 5) Rule 7(3A) of the Rules of the Court of Appeal 1994. 15 S/N yNmj5Sc73E6qA8ha2KoUNw **Note : Serial number will be used to verify the originality of this document via eFILING portal