In that case, Zabariah Yusof FCJ adeptly elucidated the applicable principle in the following terms: [33] 'It was a long settled principle, stated and restated in domestic and wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless S/N sulzxccZ706wBcPM3sQktw satisfied that he was plainly wrong’ (the Supreme Court of United Kingdom in McGraddie v McGraddie and another [2013] 1 WLR 2477). [34] The ‘plainly wrong’ test operates on the principle that the trial court has had the advantage of seeing and hearing the witnesses on their evidence as opposed to the appellate court that acts on the printed records. The test was pioneered by the House of Lords in Clarke v Edinburgh and District Tramways Co 1919 SC (HL) 35, when it adjudicated on the ability of an appellate court to reconsider the facts of a particular case, when there is already findings of fact by the lower court. In this regard, Lord Shaw’s judgment is pertinent when His Lordship said: When a judge hears and sees witnesses and makes a conclusion or inference with regard to what is the weight on balance of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the Judge makes any observation with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the Judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a Court of justice. In Courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I-who sit here S/N sulzxccZ706wBcPM3sQktw without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case — in a position, not having those privileges, to come to clear conclusion that the Judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment. (Emphasis added.) [35] Lord Shaw’s judgment was adopted by Viscount Sankey LC in Powell v Streatham Manor Nursing Home [1935] AC 243 when His Lordship made the following observation at p 250: What then should be the attitude of the Court of Appeal towards the judgment arrived at in the Court below under such circumstances as the present? It is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not hear the witnesses. It only reads the evidence and rehears the counsel. Neither is it a reseeing Court … On an appeal against a judgment of a judge sitting alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the Court that the judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the judge saw the witnesses. (Emphasis added.) [36] Both Clarke and Powell used the ‘plainly wrong’ phrase in the context of a trial court’s assessment of the evidence of the witnesses before it. [37] In much later years, the House of Lords had the occasion to consider on the same issue in Watt (or Thomas) v Thomas [1947] AC S/N sulzxccZ706wBcPM3sQktw 484, namely, when was it appropriate for an appellate court to set aside the judgment of the court on findings of fact at first instance, and it held that: When a question of fact has been tried by a judge without a jury, and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witness, and should not disturb his judgment unless it is plainly unsound. The appellate court is however free to reverse his conclusion if the grounds given by him therefore are unsatisfactory by reason of the material inconsistencies or inaccuracies or if it appears unmistakably from the evidence in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved. (Emphasis added.) Viscount Simon at p 486 had this to say: But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. (Emphasis added.) His Lordship further added: S/N sulzxccZ706wBcPM3sQktw What I have just said reproduces in effect the view previously expressed in this House — for example by Viscount Sankey LC in Powell v Streathem Manor Nursing Home (I) and in earlier cases there quoted. [38] The Privy Council (PC) soon adopted and applied the ‘plainly wrong’ test in Tay Kheng Hong v Heap Moh Steamship Co Ltd [1964] 1 MLJ 87; [1964] 1 LNS 202 and Chow Yee Wah & Anor v Choo Ah Pat [1978] 2 MLJ 41b. … The Malaysian position [62] The Malaysian position has always been that, a decision that is arrived at, due to a lack of judicial appreciation of evidence is plainly wrong. The Federal Court case of Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors call for consideration as to what constitutes as the ‘plainly wrong’ test. [63] The appellant in Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors premised her appeal, inter alia, on the ground that the test adopted by the Court of Appeal, namely ‘insufficient judicial appreciation of the evidence’ was said to be a departure from the established ‘plainly wrong’ test. The appellant’s counsel argued that, as a result, the Court of Appeal had introduced and applied a new test of appellate intervention which was termed as ‘insufficient judicial appreciation of the evidence.’ However, the Federal Court was not persuaded and dismissed the argument by counsel for the appellant and held that the phrase ‘insufficient judicial appreciation of the evidence’ used by the Court of Appeal was merely related to the process of S/N sulzxccZ706wBcPM3sQktw evaluation of the evidence of the trial judge and thus is consistent with the ‘plainly wrong’ test. Essentially there was no new test invoked by the Court of Appeal. Consequently, the Federal Court affirmed the test of ‘insufficient judicial appreciation of evidence’ as a ground for appellate intervention as adopted by the Court of Appeal. It sets out the principle that ought to be adopted and is central to appellate intervention ie that a decision arrived at, by a trial court without judicial appreciation of the evidence might be set aside on appeal. This was consistent with the established ‘plainly wrong’ test. … … Different approach in appellate intervention [71] From the aforesaid authorities, there appears to be a difference in approach taken and applied by the UK Supreme Court and the approach taken by the Malaysian courts. Whilst Lord Reed in Henderson separated the four non exhaustive identifiable errors of a trial judge from the plainly wrong test: