1. Sit Chee Keong v 1. Goh Han Hong (BA-12BNCvC-67-09/2017)

SIT CHEE KEONG (NRIC No.: 771019-14-5337)

APEX TYRE & CAR CARE SDN. BHD. (Co. No.: 75342-D) … APPELLANTS

GOH HAN HONG (NRIC No.: 840510-04-5367)

GOH TEONG TONG (NRIC No.: 530822-01-5411)

PACIFIC & ORIENT INSURANCE CO. BHD. (Co. No.: 12557-W) … RESPONDENTS JUDGMENT (Appeal to High Court against Sessions Court’s decision after trial) A. Novel issue

This appeal from the Sessions Court (SC) raises a novel question of whether a trial court has the power to exclude a video recording on the following grounds - 2

the defendants in this case (Defendants) did not deliver a copy of the video recording to the plaintiffs (Plaintiffs) during pre-trial case management (PTCM);

the Defendants had only adduced the video recording at trial and that also, during the defence case. Hence, the Defendants had been guilty of inordinate delay in tendering the video recording; and

the Defendants’ late production of the video recording had breached PTCM orders and/or directions given by the trial court (PTCM Orders/Directions). B. Background

I will refer to the parties as they are in the SC.

At about 12.30 pm, 14.2.2009, the first plaintiff (1st Plaintiff) sent a Mercedes Benz car [C230-W024 (A) Model] with the no. JKG 88 (Car) to a car workshop (Workshop) owned by the second defendant company (2nd Defendant). The Car was sent to the Workshop for repair and wheel alignment.

The second plaintiff (2nd Plaintiff) is the 1st Plaintiff’s father and owns the Car.

The first defendant (1st Defendant) is a director of the 2nd Defendant.

At about 4.30 pm, 14.2.2009, a Chinese man (Robber) forcibly stole the Car from the Workshop (Robbery). 3

The Car was insured by the third plaintiff company (3rd Plaintiff). As a result of the Robbery, the 3rd Plaintiff paid RM275,000.00 to the 2nd Plaintiff as compensation for the Car. The 2nd Plaintiff had therefore subrogated his rights in the Car to the 3rd Plaintiff.

The Plaintiffs filed this suit in the SC against the Defendants and claim for the loss of the Car based on the tort of negligence (This Suit). C. This Suit

During the trial, the Defendants’ learned counsel applied to tender a video clip of the Robbery (Video Recording) recorded by a defence witness, Ms. Sit Sok Fong (SD3). SD3 is the 1st Defendant’s sister and has signed a certificate under s 90A of the Evidence Act 1950 (EA) regarding the Video Recording (SD3’s Certificate). The Plaintiffs’ learned counsel objected to the admissibility of SD3’s Certificate and Video Recording on the following grounds (Plaintiffs’ Objection) -

the Video Recording and SD3’s Certificate were not given to the Plaintiffs during PTCM;

there was an inordinate delay by the Defendants in tendering the Video Recording and SD3’s Certificate; and

the Plaintiffs were caught by surprise by the Video Recording and SD3’s Certificate.

The learned Sessions Court Judge (SCJ) upheld the Plaintiffs’ Objection and marked the Video Recording and SD3’s Certificate as ID4 and ID5 respectively (SCJ’s Ruling). 4

The learned SCJ allowed This Suit with costs (SC’s Decision). According to the learned SCJ’s grounds of judgment (GOJ), among others (in the order of presentation in the GOJ) -

there was a bailment of the Car where the Plaintiffs were the bailors and the Defendants were the bailees of the Car [sub-paragraph 19(1) GOJ);

the Defendants had breached their duty as bailees of the Car to take all safety precautions to prevent the Robbery [sub-paragraphs 19(2) and (3) GOJ];

the 1st Defendant’s evidence that he had struggled with the Robber had not been proven because the Video Recording did not show as such [sub-paragraphs 19(3) and (4) GOJ];

the SC did not believe SD3’s evidence [sub-paragraph 19(6) GOJ];

the learned SCJ doubted the authenticity of the Video Recording because the Video Recording did not have a date and time [sub-paragraph 19(8) GOJ];

the Defendants had failed to prove that SD3 was the maker of the Video Recording [sub-paragraph 19(9) GOJ]; and

the SC decided that the Plaintiffs had succeeded to prove their claim against the Defendants on a balance of probabilities (paragraph 20 GOJ). 5

The Defendants have appealed to the High Court against SC’s Decision (This Appeal). D. This Appeal

Before This Appeal was heard, the Defendants applied for leave of court to file and serve an additional record of appeal (RA) to include the Video Recording (Enc. 14).

The Plaintiffs objected to Enc. 14. After hearing both the Plaintiffs and Defendants, I allowed Enc. 14 with costs of Enc. 14 to follow the event of This Appeal [Decision (Enc. 14)]. The Plaintiffs did not appeal to the Court of Appeal against the Decision (Enc. 14).

The grounds for the Decision (Enc. 14) are as follows:

O 55 r 9 of the Rules of Court 2012 (RC) provides as follows - “Amendments O 55 r 9 The High Court may at any time allow amendment of the memorandum of appeal or notice of cross appeal or other part of the record of appeal on such terms as it thinks fit.” (emphasis added). According to s 2(1)(e) of the Interpretation Acts 1948 and 1967 (IA), Part 1 of IA applies to RC because RC have been made after 31.12.1968 under the Courts of Judicature Act 1964 (which has been revised under the Revision of Laws Act 1968). 6 Section 3 IA (in Part 1 of IA) has defined the term “amend” to include “add to”. As such, the High Court has a discretionary power under O 55 r 9 RC to allow any party “amend” any RA by adding another RA; and

I exercise my discretion under O 55 r 9 RC to allow the Defendants to add another RA (which includes the Video Recording) because -

O 55 r 9 RC should be interpreted together with O 1A and O 2 r 1(2) RC. O 1A and O 2 r 1(2) RC read as follows - “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. O 2 r 1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective.” (emphasis added);

in paragraphs 3, 5 and 6 of the Memorandum of Appeal, the Defendants have contended that the learned SCJ had erred in not admitting the Video Recording as evidence in This Suit. It is thus clear that the question regarding the admissibility of the Video Recording is a live issue in This Appeal;

in This Appeal, the High Court may decide that the learned SCJ has erred in excluding the Video Recording as evidence in this 7 case. In such an event, the High Court should admit the Video Recording and consider its contents in deciding the merits of This Appeal. Without the additional RA (which contains the Video Recording), if I have admitted the Video Recording as evidence in this case, I will not be in a position to decide This Appeal for the simple reason that the Video Recording is not before the High Court. Accordingly, the court should exercise its discretion under O 55 r 9 read with O 1A and O 2 r 1(2) RC to allow Enc. 14; and

in allowing Enc. 14, there is no prejudice to the Plaintiffs. This is because the Plaintiffs are still entitled to submit in This Appeal that SC’s Ruling is right and the Video Recording should not be admitted as evidence in this case. On the contrary, a dismissal of Enc. 14 will irreparably prejudice the Defendants if this court reverses SC’s Ruling. The Decision (Enc. 14) is supported by the Court of Appeal’s decision delivered by Hamid Sultan JCA in Dato’ Haji Husam bin Hj Musa v Mohd Faisal bin Robhan Ahmad [2015] 2 AMR 296, at [13], as follows - “[13] It is also a must in the event the exhibit is marked as ID only or if the evidence is by way of statement or oral evidence, it must form part of the appeal record as of right as s 167 of the EA 1950 as well as s 69 of the CJA makes it mandatory for the appellate court to revisit the issue if necessary.” (emphasis added). 8 E. Whether SC could exclude Video Recording as evidence

Section 90A EA provides as follows: “Admissibility of documents produced by computers, and of statements contained therein s 90A(1) In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement.

For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

(3)(a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it.

A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.

Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. 9

A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention.

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was -

responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.” (emphasis added).

SD3 gave the following evidence at the trial of This Suit, among others:

SD3 made the Video Recording in her “iPad”; and 10

SD3’s Certificate was made on 4.4.2017 and certified that the Video Recording was produced by a computer in its “normal condition”.

In the Federal Court case of Public Prosecutor v Azilah bin Hadri & Anor [2015] 1 MLJ 617, at [60]-[62], Suriyadi Halim Omar FCJ decided as follows: “[60] Section 90A(2) [EA] demands certain conditions to be complied with, to enable the documents produced by a computer and of statements contained therein, to be admissible. … [61] In Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1, the Court of Appeal held as follows: Section 90A [EA] makes computerised records made in the course of its ordinary use admissible if the following is proven, ie that: (i) the documents were produced by a computer; and (ii) the computer records are produced in the course of its ordinary use. Proof can either be by a certificate signed by someone solely in charge of the computer which produced the printout as required by s 90A(2), or by an officer of the bank. In this case, Zainal was able to testify with regard to the documents because he was in charge of the operations of current accounts. That decision was followed by the Federal Court in Ahmad Najib bin Aris v Public Prosecutor [2009] 2 MLJ 613. [62] In this case, the call logs were produced by computers in the course of their ordinary use by the very makers, namely PW61, PW62 and PW63 hence dispensing with the requirements of 11 tendering to the court signed certificates that they were responsible for the management of the operation of the computers, or for the conduct of the activities for which those computers were used for. The need to adduce the certificates as required by s 90A(2) [EA] had thus become redundant.” (emphasis added).

It is to be noted that s 90A EA is sui generis and there is no corresponding legislation in other countries. Accordingly, cases from other countries regarding the admissibility or exclusion of documents produced by computers, should be read with caution.

It is clear that iPad is a “computer” which is widely defined in s 3 EA as follows: “ “computer” means an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include an automated typewriter or typesetter, or a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage facility;”.

The Video Recording falls within the wide meaning of “document” in s 3 EA. Section 3 EA defines a “document” as follows: “ “document” means any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including 12 any matter embodied in a disc, tape, film, sound-track or other device whatsoever, by means of -

letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever;

any visual recording (whether of still or moving images);

any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter; ILLUSTRATION … A photographic or other visual recording, including a recording of a photographic or other visual transmission over a distance, is a document. …” (emphasis added).

As a matter of stare decisis, the Federal Court’s judgment in Azilah bin Hadri is binding on all courts in this country (other than the Federal Court). Unfortunately, Azilah bin Hadri was not referred by learned counsel to the SC in This Suit. Nor was Azilah bin Hadri cited by learned counsel in This Appeal. 13

Based on Azilah bin Hadri, the Video Recording is admissible as evidence under s 90A(1) EA due to the following reasons:

the Video Recording is a “document” (within the meaning of s 3 EA) which is produced by an iPad (which is a “computer” according to the definition in s 3 EA);

the Video Recording is produced by the iPad in the course of the ordinary use of the iPad by SD3; and

as SD3 was the maker of the Video Recording, there was no requirement for SD3’s Certificate to be tendered by the Defendants.

As explained in the above paragraph 23, the learned SCJ should have admitted the Video Recording as evidence in This Suit. The question of admissibility or exclusion of evidence is one of law and not of fact. As such, in making the SC’s Ruling, the learned SCJ has committed an error of law (Legal Error).

If s 90A(1) EA is complied with, a document produced by a computer “shall be admissible as evidence”. Hence, once s 90A(1) EA is fulfilled in this case, the learned SCJ has no power or discretion to exclude the Video Recording as evidence on any one of the following grounds:

the Defendants did not deliver a copy of the Video Recording to the Plaintiffs during PTCM;

the inordinate delay of the Defendants in adducing the Video Recording through SD3 (during the defence case); and 14

the Defendants’ late production of the Video Recording had breached PTCM Orders/Directions given by the learned SCJ. F. Whether court can exclude relevant evidence due to delay or non-compliance with PTCM Orders/Directions

I should take this opportunity to discuss civil cases where -

s 90A EA does not apply;

a certain piece of evidence is relevant under s 5 EA, namely relevant under any one of the provisions in ss 6 to 55 EA (Relevant Evidence);

a party (X) wishes to tender the Relevant Evidence but has not given the Relevant Evidence to the opposing party (Y) during PTCM;

X has adduced the Relevant Evidence at a late stage, namely after the commencement of trial (Delay); and/or

X’s late production of the Relevant Evidence has not complied with PTCM Orders/Directions regarding the filing of bundles of documents to be used at the trial [please see O 34 r 2(2)(c) to (g) and (i) RC].

Firstly, I am of the view that in civil cases, Delay cannot be a bar to the admissibility of Relevant Evidence. This view is premised on the following reasons:

there is nothing in the EA which empowers the court to exclude the Relevant Evidence on the ground of Delay; 15

if the court refuses to admit Relevant Evidence merely because of the Delay, this will cause an injustice to X;

the following statutory provisions have provided stringent conditions for an appellate court to admit new evidence for the purpose of deciding an appeal -

s 69(3) of the Courts of Judicature Act 1964;

r 7(3), (3A)(a) and (b) of the Rules of the Court of Appeal 1994; and

O 56 r 1(3A) RC. If fresh evidence may be adduced at the appellate stage (after the fulfillment of certain strict conditions), parties should be at liberty to adduce Relevant Evidence at a trial despite the Delay; and

if Y is caught by surprise regarding the Relevant Evidence, Y’s learned counsel may apply to court for a short adjournment to seek instruction from Y and to prepare Y’s case in respect of the Relevant Evidence (Adjournment). The “costs thrown away” [as explained in O 59 r 1(3) RC] for the Adjournment should be borne by X because the Delay is caused by X.

I am of the further view that even if X has breached PTCM Orders/Directions (X’s Breach) by tendering the Relevant Evidence, nonetheless the court has no power to exclude the Relevant Evidence based on X’s Breach. My opinion is due to the following reasons: 16

EA does not confer any power on the court to exclude Relevant Evidence on the ground of X’s Breach;

the PTCM Orders/Directions are given by the court pursuant to O 34 RC. There is nothing in O 34 RC which provides any power to the court to exclude the Relevant Evidence during trial due to X’s Breach. In fact, O 34 RC concerns only pre-trial matters (not trial and admissibility of evidence during trial) while EA governs the admissibility and relevancy of evidence to be admitted at trial;

X may suffer an injustice if the court excludes the Relevant Evidence on the ground of X’s Breach; and

regarding X’s Breach, the court may exercise its discretion under O 59 r 8(b) RC to penalize X in terms of costs - please see Dawama Sdn Bhd v Mohd Fadel bin Yusof & Ors [2015] 7 MLJ 1, at [25]. O 59 r 8(b) RC provides as follows - “Special matters to be taken into account in exercising discretion O 59 r 8 The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account - …

the conduct of all the parties, including conduct before and during the proceedings; …” (emphasis added). G. Whether there should be appellate intervention in this case 17

As a general rule, an appellate court is reluctant to set aside a trial court’s findings of fact, especially findings on the credibility of witnesses (General Rule) because the appellate court has an audio-visual disadvantage (Audio-Visual Disadvantage) of not having the benefit of -

listening to the oral evidence of witnesses given at the trial; and

assessing the demeanour of witnesses - please see the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321.

The General Rule does not apply to the Legal Error. This is because regarding issues of admissibility or exclusion of evidence, an appellate court is in the same position as the trial court and the appellate court does not suffer any Audio-Visual Disadvantage.

I am mindful that the learned SCJ has made the following findings of fact:

the learned SCJ did not believe SD3; and

the Defendants are liable in negligence to the Plaintiffs because the Defendants have breached their duty of care owed to the Plaintiffs.

There is an exception to the General Rule, namely an appellate court may intervene regarding a trial court’s findings of fact, including findings regarding credibility of witnesses, if the trial court has committed a plain error of fact or a plain omission of fact which has caused an injustice and which warrants appellate intervention - Gan Yook Chin. 18

Firstly, the learned SCJ has committed a plain error of fact by deciding that the learned SCJ did not believe SD3 (1st Plain Error of Fact) on the following ground (the GOJ is given in Malay): “19(6) Walau bagaimanapun, Mahkamah tidak mempercayai keterangan SD3 tersebut. Berdasarkan kepada minit Mahkamah, perbicaraan telah ditangguhkan beberapa kali kerana Defendan-defendan gagal memanggil pemilik rakaman CCTV tersebut hadir ke Mahkamah. Defendan-defendan juga telah membuat permohonan untuk sepina pemilik rakaman CCTV tersebut hadir ke Mahkamah untuk memberi keterangan bagi pihak Defendan-defendan. Mahkamah mendapati Defendan-defendan tidak pernah sama sekali menyatakan kepada Mahkamah bahawa rakaman CCTV adalah dari premis Defendan-defendan.” (emphasis added). The learned SCJ’s reasons for not believing SD3 concern the Defendants’ conduct in This Suit. As stated in paragraph 25, once s 90A(1) EA is satisfied by SD3, the SC has no discretion to exclude the Video Recording as evidence. Hence, the 1st Plain Error of Fact.

I have not overlooked the fact that SD3 is the 1st Defendant’s sister. The fact that SD3 may be an interested witness, in itself, does not mean that SD3 is not a credible witness. A trial court should give cogent reasons for believing a witness or otherwise. I rely on Ismail Khan J’s (as he then was) judgment in the High Court case of Balasingham v Public Prosecutor [1959] 1 MLJ 193, at 194, as follows: 19 “The advantage of a "speaking" judgment needs no emphasis. In fact in Murugiah v Public Prosecutor [1941] MLJ 17 and Public Prosecutor v Low Toh Seng [1941] MLJ 1 both Horn J. and Terrell Ag. C.J. felt that the absence of reasons indicates the possibility that such vital consideration as the weight of evidence and the possibilities of the case may not have influenced the mental process of the trial Judge in arriving at the ultimate finding. After all there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.” (emphasis added).

A second plain error of law is made when the learned SCJ doubted the authenticity of the Video Recording because the Video Recording did not have a date and time (2nd Plain Error of Fact). The Video Recording, in my view, is to be given great weight for the following reasons:

there is no evidence to prove that the Video Recording has been tampered with; and

the Video Recording is a contemporaneous record of the Robbery. The fact that the Video Recording has no date and time of its recording, does not detract from its reliability as explained above.

The learned SCJ has committed a third plain error of fact by failing to find that the 1st Defendant is a credible witness (3rd Plain Error of Fact) due to the following evidence and reasons:

the contents of the Video Recording support the following testimony of the 1st Defendant - 20

the Robber entered the Workshop and reversed the Car out of the Workshop; and

the 1st Defendant ran after the Car and tried to stop the Robber from driving the Car away from the Workshop but to no avail. In the 1st Defendant’s unsuccessful attempt to stop the Robbery, the 1st Defendant had suffered personal injuries (1st

the 1st Defendant’s testimony is supported by his police report which is lodged at 7.14 pm on the very same day of the Robbery (1st Defendant’s Police Report). I attach great weight to the 1st Defendant’s Police Report in view of s 8(2) EA and Illustration (k) to s 8 EA [Illustration (k)]. I reproduce below s 8(2) EA and Illustration

- “Motive, preparation and previous or subsequent conduct … s 8(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. … ILLUSTRATIONS …

The question is whether A was robbed. The fact that soon after the alleged robbery he made a complaint relating to the 21 offence, the circumstances under which and the terms in which the complaint was made are relevant. …” (emphasis added). An Illustration to a provision in EA can be resorted to in the construction of that provision. I rely on the judgment of the Privy Council delivered by Lord Shaw in Mahomed Syedol Ariffin v Yeoh Ooi Gark [1916] 2 AC 575, at 581 (an appeal from the Straits Settlements), as follows - “On the second point their Lordships are of opinion that in the construction of the Evidence Ordinance it is the duty of a Court of law to accept, if that can be done, the illustrations given as being both of relevance and value in the construction of the text. The illustrations should in no case be rejected because they do not square with ideas possibly derived from another system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part of the sections, been expressly furnished by the Legislature as helpful in the working and application of the statute, should not be thus impaired.” (emphasis added); and

the 1st Defendant’s Injuries is proven by an official receipt and a tax invoice issued by Sunway Medical Centre Sdn. Bhd. (Medical Bills) which stated that the 1st Defendant sought medical treatment for the 1st Defendant’s Injuries at 4.56 pm on the same day of the Robbery. 22

I am constrained to set aside the SC’s finding of fact that the Defendants are liable in negligence for the Robbery (Appellate Intervention). The Appellate Intervention is made because -

the SC has made 3 Plain Errors of Fact (please see the above paragraphs 33, 35 and 36);

the 1st Defendant is a credible witness (please see the above paragraph 36). According to the 1st Defendant -

the 1st Defendant had done the first alignment of the Car’s wheels;

the 1st Defendant then took the Car for a test drive in the vicinity of the Workshop;

after the test drive, the 1st Defendant drove the Car into an alignment bay (inside the Workshop) when the Robber suddenly pulled the 1st Defendant out of the Car by force and reversed the Car out of the Workshop; and

the 1st Defendant ran after the Car and tried to stop the Robbery. In such an attempt, the 1st Defendant fell on the road and suffered the 1st Defendant’s Injuries; and

there is no proof on a balance of probabilities that the Defendants have been negligent in respect of the Robbery in view of the following evidence - 23

it is clear from the 1st Defendant’s testimony, 1st Defendant’s Police Report, 1st Defendant’s Injury, Video Recording and Medical Bills that the loss of the Car was solely caused by the

when the Robbery occurred, the Car was inside the Workshop with the 1st Defendant inside the Car;

prior to the Robbery, there was no previous incident of theft or robbery involving any car in the Workshop;

at the time of the Robbery, the 2nd Defendant had about 8 to 10 workers at the Workshop (including the 1st Defendant). In other words, the 2nd Defendant was not understaffed during the

the investigating officer of this case, ASP Ismail bin Ahmad, had classified this case as a robbery of the Car and not as a mere theft. H. Court’s decision

Based on the above evidence and reasons, This Appeal is allowed with costs. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 22 APRIL 2019 24 Counsel for 1st Appellant: Mr. Harold Tan Kok Leng (Messrs Harold & Lam Partnership) Counsel for 2nd Appellant: Mr. Andrew Khoo Kok Tsan & Ms. Shasha d/o Kummar (Messrs Khoo & Sidhu) Counsel for Respondents: Mr. Viknesvaran s/o Kanapathippillai & Ms. Archana Devi d/o Thirumalai (Messrs Viknes Ratna & Co.)