B wishes the court to believe that at the time in question he was elsewhere. He must prove it. [43] There are three relevant decisions of our courts on the construction of sections 101 and 102 of the Evidence Act. [44] The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel Ag CJ said- "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' " [45] The Federal Court in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA said- 35) On the meaning and application of the term "burden of proof" section 101 of the Evidence Act 1950 ["the Act"] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in section 102 of the Act shifts from one side to the other according to the weight of the evidence. [46] Sections 101 and 102 both use the phrase “burden of proof”. Some judgments in order to draw a distinction between sections 101 and 102 call the burden in section 101 as “burden of proof” and the burden in section 102 as “onus of proof’. [See U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC per Zulkefli Ahmad Makinudin PCA at [36]]. [47] The “burden of proof” in section 102 is also sometimes called the “evidential burden”. [See Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA per Gopal Sri Ram JCA]. [48] On “onus of proof’ Zulkefli Ahmad Makinudin PCA said in U Television Sdn Bhd and Tan Sri Dato Seri Vincent Tan Chee Yioun v Comintel Sdn Bhd [2017] 10 CLJ 580 FC- [35] On the meaning and application of the term “burden of proof” s. 101 of the Evidence Act 1950 (“the Act”) states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The “burden of proof” in s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The “burden of proof” in s. 102 of the Act shifts from one side to the other according to the weight of the evidence. [36] In the Federal Court’s case of Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 His Lordship Jeffrey Tan, FCJ cited with approval the principle laid down in the case of Ranchhodbhai v. Babuhai AIR 1982 Guj 308 as regards the “burden of proof” to establish a case which never shift and the shifting burden to adduce evidence in the context of ss. 101 and 102 of the Indian Evidence Act which are identical to ss. 101 and 102 of our Act as follows: It is also well to bear in mind that there is an essential distinction between ‘burden of proof’ and ‘onus of proof’; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. … Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in the light of the principle as set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden, - the burden as a matter of law and pleadings - remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses. [Emphasis added] [49] On “evidential burden” this is what Gopal Sri Ram JCA said in Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance Bhd [2004] 1 CLJ 357 CA at 367- The law on the burden of proof in this case is governed by ss. and 102 of the Evidence Act 1950. In accordance with s. 101, the legal burden of establishing that there is money owing from the respondent to Chan lies on the appellant. However, in accordance with s. 102, the evidential burden may move back and forth from the appellant to the respondent and vice versa in the course of the trial. On this point, we find it sufficient to quote from Sarkar on Evidence, 15th edn, vol. 2, p. 1452: There is an essential distinction between the ‘burden of proof’ as a matter of law and pleading and as a matter of adducing evidence. The burden in the first sense is always constant but the burden in the sense of adducing evidence shifts from time to time having regard to the evidence adduced or the presumption of fact or law raised in favour of one or the other (Ajit Pd v. Nandini, A [1975] Or 184). If the prima facie case is not rebutted by cogent evidence and remains unanswered or the answer given does not create serious doubt in the mind of the court, then the burden of proof on the pleadings should be deemed to have been discharged …The true test of onus in the case of ‘shifting’ has been thus put by Lord Hanworth MR: It appears to me that there can only be sufficient evidence to shift the onus from one side to the other if the evidence is sufficient prima facie to establish the case of the party on whom the onus lies. It is not merely a question of weighing feathers on the one side or the other, and of saying that if there were two feathers on one side and one on the other that would be sufficient to shift the onus. What is meant is, that in the first instance the party on whom the onus lies must prove his case sufficiently to justify a judgment in his favour if there is no other evidence. … [Emphasis added] Application of law to facts [50] The burden of proof therefore lies on the plaintiffs to prove that the 1st to 3rd defendants had arrested the Deceased on 02-02-2013, kidnapped and then killed the Deceased. Averments of the plaintiffs [51] The plaintiffs rely on the findings of fact that the acts were committed by the 1st to 3rd defendants on the Deceased as found in the Sessions Court’s Grounds of Judgment at paragraphs 10, 22, 30 and 31. (See Enclosure 46 Bundle B1 at PDF pages 58 – 76), and the Notes of Evidence of the Criminal Case found in the Record of Appeal of Criminal Appeal No. WA-42S(A)-(4 & 6)-10/2018 at PDF pages 30 to 388 of the Common Bundle of Documents in Enclosure 46 and pleaded in Enclosure 2 Statement of Claim at paragraph 14. [See Enclosure 84 Plaintiff’s Written Submissions paragraph 8]. [52] The plaintiffs also rely on the testimony of Mohd Zulfadli Bin Mohd Dom (I/C No. 840107-14-5907), a police officer from 15-06-2006 until 01-04- 2009 at Balai Polis Pandan Indah who had testified against the 1st to 3rd defendants in the Criminal Case as SP17. [See Enclosure 46 Bundle B1 at PDF pages 202]. [See Enclosure 84 also Plaintiff’s Written Submissions paragraphs 9 to 11]. [53] The plaintiffs further rely on the testimony of DW2 in this action who was the investigating officer for the Criminal Case and had also testified in the Criminal Case as SP20 on the 1st to 3rd defendants’ acts committed on the Deceased on the day of 02-02-2013 and how the investigation concluded leading to charges being brought against the 1st to 3rd defendants. [See Enclosure 84 Plaintiff’s Written Submissions paragraph 12]. Averments of the 4th & 5th defendants [54] The 4th & 5th defendants submit that the findings of fact of the Sessions Court cannot be relied on as the High Court had set aside the convictions of the 1st to 3rd defendants on appeals. The appeals to the Court of Appeal by the AGC were dismissed as the Notices of Appeals could not be served on the 1st to 3rd defendants according to a letter from the AGC to the plaintiffs’ solicitors dated 11-01-2021. [See Enclosure 46 Bundle B1 at page 16]. [See also Witness Statement of DW1 M. Thevarasan a/l Muniandy at Q and A 8]. Analysis of the Court [55] The Court has not been furnished by both counsel with the Broad Grounds or the Grounds of Judgment of the High Court. In the absence of such documents I don’t accept the submission of the plaintiffs’ counsel that the plaintiffs have proven that the 1st to 3rd defendants had arrested the Deceased on 02-02-2013, kidnapped and then killed the Deceased. [56] The plaintiffs are on stronger ground if they rely on the principle that when a defendant fails to defend a claim in Court, it should be assumed that the plaintiff had made out a case against the said defendant. [See Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 987; [2014] 2 MLJ 768 FC]. [57] This is what Jeffrey Tan FCJ (delivering judgment of the Federal Court) said in Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 987; [2014] 2 MLJ 768 FC]: [9] By that, the trial court clearly held that fraud had been made out against the first to fourth respondents and so needed not to be proved. Indeed, when the first to fourth respondents failed to defend the claim, it should be assumed that the appellants had made out fraud against the first to fourth respondents. It would be against all good sense and logic, quixotic in fact, to hold that an allegation, although unanswered, must yet be proved. In Datuk Patinggi Abdul Rahman Ya’kub v Abang Mohammad bin Abang Anding [1979] 2 MLJ 185, where the plaintiff, who had obtained interlocutory judgment in default, applied for assessment of damages, Seah J, as he then was, duly assumed that all allegations in the statement of claim were deemed as proved: In assessing damages in this case, the court is placed in a predicament in that no evidence was given either by the plaintiff or the defendant. It follows that damages should therefore be assessed on the basis of the pleadings contained in the statement of claim. For the purpose of assessing damages in this case I would assume that all the allegations in the statement of claim are deemed to have been proved. [10] When an allegation is unanswered, it must be assumed as proved, even if the party only swears to the best of his knowledge and belief (see Williamson v. Ah On [1926] 39 CLR 95 HC, where the High Court of Australia cited Stokes v. Grissell 14 CB, at pp. 689-690, where Williams J, said of chambers applications ‘Where the party swears to the best of his knowledge and belief as to a matter upon which from its nature he cannot swear positively if the affidavit is unanswered by the other side, I assume the fact to be proved’). [Emphasis added] [58] In the case before me the 1st to 3rd defendants did not enter an Appearance and did not attend Court to defend the claim against them. [59] Relying on Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 1 CLJ 987; [2014] 2 MLJ 768 FC I hold that issue 2 is answered in favour of the plaintiffs and that the 1st to 3rd defendants arrested the Deceased on 2-2-13, kidnapped and then killed the Deceased. [60] I now move to issue [3]. Issue 3 - Whether the 4th & 5th defendants are vicariously liable for the torts committed by the 1st to 3rd defendants if the torts were indeed committed by the 1st to 3rd defendants? [61] I begin with the law. [62] The law on vicarious liability holds that in certain circumstances an employer can be held liable for an act of negligence or an intentional wrong committed by his employee where no fault can be attributed to the employer. [63] The jurisprudence behind this strict liability is that some relationships by their very nature require the person who engages others to accept responsibility for the wrongdoing of those others. [64] The test for vicarious liability has vexed the courts for years. It has resulted in the formulations of various tests over the years. [65] The leading authority in Malaysia on vicarious liability is GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC, in particular the leading judgment of Harmindar Singh Dhaliwal FCJ who relied and expanded on his earlier High Court decision on vicarious liability in Lee Woon Jeng v Excel Champ Automobile Sdn Bhd [2015] 5 CLJ 979. [66] The tests that have been formulated over the years, as the courts sought to find a fair test that can be applied are-i. “on a frolic of his own” test - vicarious liability cannot be imposed if the employee had acted on a frolic of his own as his actions were outside the scope of his duties and were not authorised by his employer. [See Samin Hassan v Government of Malaysia [1976] 1 LNS 139; [1976] 2 MLJ 211 and Keppel Bus Co Ltd v Sa’ad Ahmad [1974] 1 MLJ 191]. ii. “in the course of employment” test or sometimes referred to as “scope of employment” test - the “frolic of his own” test was criticised as vague and unhelpful as it does not provide a sufficient basis for determining the existence or limits of vicarious liability. It begs the question. To call an action a ‘frolic’ is not to give a reason why it is outside the course of employment. It only expresses a decision already made that it is outside. The test was therefore rephrased as - An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. [See Diplock LJ in Morris v C W Martin & Sons Ltd [1966] 1 QB 716 at page 733]. iii. The “Salmond test” from the first edition of Salmond on Torts way back in 1907 – This test required that before vicarious liability can be inferred, there must exist a relationship of ‘master and servant between the defendant and the person committing the wrong. The servant, in committing the wrong, must have been acting in the course of his employment. A servant is deemed to be acting in the course of his employment if his act is either (i) a wrongful act authorised by the master; or (ii) a wrongful and unauthorised mode of doing some act authorised by the master. iv. The “refined Salmond test” from a later edition of Salmond on Torts - an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act. v. the ‘close connection’ test - the Salmond test did not actually work well in cases of intentional wrongdoing. Therefore, the House of Lords in 2002 adopted a different test, that is, an employee will be held to have acted in the course of his employment when he committed a tort if that tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable for that tort. [See Lister v Hesley Hall Ltd [2002] AC 215]. vi. the ‘close connection’ test was later restated in 2014 as a two-stage test of vicarious liability. The first stage involves a consideration of the relationship between the primary wrongdoer and the person alleged to be liable and whether that relationship is capable of giving rise to vicarious liability. The second stage relates to whether there is a sufficiently close connection between the wrongdoing and the employment so that it would be fair and just to hold the employers vicariously liable. [See Mohamud v WM Morrison Supermarkets Plc [2014] 2 All ER 990 UK CA and on appeal reported as [2016] UKSC 11; [2016] AC 677 UK Supreme Court & Lee Woon Jeng v Excel Champ Automobile Sdn Bhd [2015] 5 CLJ 979 per Harmindar Singh Dhaliwal J]. [See also GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC at [26 - 37] per Harmindar Singh Dhaliwal FCJ]. [67] In GMP Kaisar Security (M) Sdn Bhd v Mohamad Amirul Amin Mohamed Amir [2022] 10 CLJ 669 FC, the Federal Court laid down the vicarious liability test to be used in Malaysia as follows- [31] …, the scope of vicarious liability in a case where the employee committed an intentional wrong is underpinned by the following common denominators: