Tang Ah Lik @ Tan Teik Young v Tan Ah Ba (P-02(NCvC)(W)-631-04/2023)

TANG AH LIK @ TAN TEIK YONG

TAN AH LEK @ TAN TEIK HOO

TAN TEIK LIANG

TAN TEK LENG

TAN TEIK CHIANG

TAN POH HENG (NRIC NO.: 621024-02-5221 …APPELLANTS AND TAN AH BA (NRIC NO.: 480902-09-5009) …RESPONDENT

Tang Ah Lik @ Tan Teik Yong

Tan Ah Lek @ Tan Teik Hoo (NRIC NO.: 500913-07-5375) 22/11/2024 10:31:10

Tan Teik Liang

Tan Tek Leng

Tan Teik Chiang

Tan Poh Heng (NRIC NO.: 621024-02-5221 …Plaintiffs And Tan Ah Ba (NRIC NO.: 480902-09-5009) … Defendant CORAM SUPANG LIAN, JCA. LIM CHONG FONG, JCA. AHMAD FAIRUZ BIN ZAINOL ABIDIN, HCJ. GROUNDS OF JUDGMENT [1] This is an appeal on a sibling dispute pertaining to the transfer of properties by the father to a son contrary to intent in the will of the father that also benefitted the other sons. [2] The parties are all sons of the late Tan Kim Khay @ Tan Kim Kmay (“TKK”). [3] We heard this appeal on 5th August 2024 and thereafter adjourned our decision to deliberate on the arguments presented by the parties. [4] After having duly considered them, we hereinbelow unanimously give our decision with our supporting grounds thereto. [5] For purposes here, we will address the parties as Plaintiffs and Defendant in the High Court. BACKGROUND [6] The late TKK owned four properties, to wit, Lot 3755, Lot 3756, a portion of Lot 3745 and a portion of Lot 3752 subdivided from master title Pegangan No. 45(1), Mukim 12, Daerah Seberang Perai Utara, Pulau Pinang (“Properties”) purchased from the late Ahmad bin Haji Ismail [7] According to the Plaintiffs, TKK intimated orally to them that his assets would be distributed amongst all his sons equally and this is reflected in TKK’s will executed on 13th May 2003 (“Will”). The Will is reproduced below: [This space is intentionally left blank] [8] TKK passed away in October 2005. [9] There was however no distribution of the Properties by the Defendant who is the named executor in the Will by reason that the sub-division of the Properties was then still on-going according to him. [10] Furthermore, after the sub-division was completed, the Properties were never distributed to the Plaintiffs by reason that TKK had subsequent to the making of the Will transferred the beneficial interest in the Properties to the Defendant via an agreement dated 28th June 2003 made between TKK and the Defendant (“Agreement”). The Agreement is also reproduced below: [This space is intentionally left blank] [11] Consequently, the administrators of the estate of the late Ahmad bin Haji Ismail on 19th December 2005 transferred Lot 3755 and 3756 of the Properties to the Defendant whereas the parts of Lot 3745 and Lot 3752 of the Properties were later transferred to the Defendant via a vesting order of the High Court. [12] The Defendant thereafter in 2014 sold and transferred Lot 3755 of the Properties to Ng Boon Seng and Lot 3756 of the Properties to Tong Chin Nam respectively. As for Lot 3756 of the Properties, Tong Chin Nam thereafter sold and transferred it to Goh Siew Leng and Tay Chong Koon. [13] Upon becoming aware of the existence of the Agreement, the Plaintiffs in 2013 and 2014 lodged police reports based on their claim that the Agreement and TKK’s affidavit dated 16th March 2005 (“Affidavit”) made for the purpose of vesting the Properties on the Defendant are forgeries. [14] Hence, the Plaintiffs on 15th April 2019 commenced legal action in the High Court (“Suit”) claiming that the Defendant committed equitable fraud by having transferred all the Properties to himself in breach of his duty as trustee/executor under the probate action of TKK. [This space is intentionally left blank] IN THE HIGH COURT [15] The Plaintiffs claimed for the following in the Suit in Bahasa Malaysia: [16] However, after trial, the learned Judge dismissed the claim with costs (“Judgment”). In the grounds of judgment (“GOJ”), the learned Judge held as follows in support of the Judgment in Bahasa Malaysia: “[8] PW1 menjalankan pemeriksaan ke atas perjanjian 2003 dan 5 spesimen lane tetapi tidak menganalisakan tandatangan simati dalam wasiatnya yang bertarikh 13.5.2003 yang dibuat lebih kurang sebulan sebelum simati menandatangani Perjanjian 2003. Fakta bahawa tiada tandatangan seseorang boleh didapati serupa dari semua segi tidak boleh saya kira dipertikaikan. Dan kes-kes banyak diputuskan jika ada keterangan daripada seseorang yang boleh dipercayai melihat seseorang itu menandatangani sesuatu dokumen maka keterangan orang itu boleh diterima mengatasi keterangan pakar. Lihat Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19. DW1 dan DW 2 telah disoal balas dan keterangan mereka tidak dicurigai. Plaintif-plantif tidak dapat mengemukakan apa-apa keterangan yang boleh menyebabkan keterangan mereka terutamanya DW2 tidak boleh diterima. [9] Wasiat simati dibuat lebih kurang dua tahun sebelum dia meninggal dunia. Dalam wasiat tersebut tidak menyenaraikan harta-harta. Perjanjian 2003 ditandatangan pada 28.6.2003 lebih kurang sebulan selepas simati menulis wasiatnya. Dalam Perjanjian 2003 simati memberikan keempat-empat lot tersebut kepada defendan. Dalam wasiatnya simati menyatakan wasinya iaitu defendant hendaklah menlangsaikan semua perbelanjaan pengkebumian dan hutang-hutangnya dan lebihan atau baki harta hendaklah dibahagikan sama rata kepada plaintif-plaintif dan defendan yang merupakan anak-anaknya. Wasiat ini tidak disediaan oleh DW2 tetapi peguam lain. Pada pengamatan saya fakta bahawa simati tidak menyenaraikan keempat-empat lot di dalam wasiatnya menyokong fakta bahawa sememangnya simati berhasrat dan memberi keempat-empat lot tersebut kepada defendan. Simati merupakan pengarah syarikat dan bukannya orang yang tidak berpengetahuan. Tambahan lagi wasiatnya disediakan oleh seorang peguam. [10] Kes plaintif-plaintif berpaksikan Perjanjian 2003 yang dikatakan mengandungi tandatangan simati yang dipalsukan. Bagi saya beban terletak keatas plaintif-plaintif untuk mengemukakan bukti bahawa Perjanjian 2003 tersebut palsu. Peliknya mereka tidak memanggil kedua-dua pentadbir pesaka Ahmad sebagai saksi sedangkan defendan telah memanggil DW2 dan defendan sendiri yang menandatangani Perjanjian 2003 itu. Plaintif-plaintif bergantung kepada PW1 tetapi sebagaimana yang saya menyatakan sebelum ini saya tidak dapat menerima keterangannya atas alasan-alasan yang saya nyatakan. Oleh yang demikian, plaintfi-plaintif tidak berupaya menunjukkan kepalsuan Perjanjian 2003 tersebut. [11] Selain itu plaintif-plaintif gagal menamakan pemilik-pemilik Lot-Lot 3755 dan 3756 dalam tindakan ini. Makkamah tidak boleh dalam apa keadaan pun memberi penghakiman kepada plaintif-plaintif kerana pemilik-pemilik ini tidak diberi peluang untuk didengari.Mahkamah tidak boleh memberi apa-apa dekarasi atau perintah yang boleh menjejaskan hak dan kepentingan mereka tanapa mereka dijadikan pihak – Kheng Chwee Lian (f) v. Wong Tak Thong [1983] 2 CLJ 1” [17] The Plaintiffs are dissatisfied with the Judgment and have on 12th April 2023 lodged their appeal to the Court of Appeal. FINDINGS OF THIS COURT [18] The Plaintiffs basically contended here that the learned Judge made serious erroneous findings of fact and law in concluding that the Agreement was executed by TKK on the totality of the evidence adduced below in the High Court. [19] This is of course vehemently denied by the Defendant who counter-contended that the findings and hence the Judgment of the learned Judge are impeccable. [20] Our function here is that of review based on the record of appeal. Since this is an appeal after a trial, we are guided by the case of Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416 (CA) where Abdul Wahab Patail JCA held as follows with emphasis added by us: “[4] Both parties began their submissions with the clear understanding that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this court in Sivalingam Periasamy v. Periasamy & Anor [1996] 4 CLJ 545 CA; [1995] 3 MLJ 395 CA. This general principle was adopted by this court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate court will intervene to correct an injustice when it is shown to have occurred in the trial court, but it would be an interference otherwise. … [7] There is almost no limit to the range within which cases in court may vary. At one end there are cases that involve solely questions of law, and no facts are disputed. On the other there are cases that involve no law but all the facts are disputed. Within these cases there may be cases with disputed facts that involve solely interpretation and inferences leading to a conclusion on a finding on the disputed fact, and there may be other cases with disputed facts that involve solely oral evidence and the finding depends entirely upon an assessment of the credibility of witnesses who testified and were tested before the trial judge. [8] Hence, the proper approach is that if (a) it is shown that the judgment cannot be explained or justified by the special advantage enjoyed by the trial judge by reason of having seen and heard the witnesses testify and being tested before him, and (b) an injustice is demonstrated to have been occasioned by any error by the trial judge, for example:

the judgment is based upon a wrong premise of fact or of law;

there was insufficient judicial appreciation by the trial judge of the evidence of circumstances placed before him;

the trial judge has completely overlooked the inherent probabilities of the case;

that the course or events affirmed by the trial judge could not have occurred;

the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts; or

the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion; an appellate court will intervene to rectify that error so that injustice is not occasioned.” [21] Additionally, we noted that in the case of Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1 (FC), Zaleha Yusof FCJ held as follows with emphasis added by us: “[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 (supra) separated the four non-exhaustive identifiable errors of a trial judge from the plainly wrong test:

a material error of law;

(ii) a critical finding of fact which has no basis in the evidence;

(iii) demonstrable misunderstanding of relevant evidence; and

(iv) a demonstrable failure to consider relevant evidence. (all of which justifies appellate intervention of a trial judge's decision), this court in Gan Yook Chin (supra) effectively included them under what amount to the trial judge as being "plainly wrong". [72] The phrase "lack of judicial appreciation of evidence" used in Gan Yook Chin (supra) could very well encompass three out of four errors of a trial judge (other than the "material error of law") said to be identifiable by Lord Reed in Henderson (supra), namely:

critical factual finding which has no basis in evidence;

(ii) demonstrable misunderstanding of relevant evidence; and

(iii) demonstrable failure to consider relevant evidence. [73] Given that the issue at present is about identifying situations where the findings of fact by a trial court justify appellate intervention, the other identifiable error of "material error of law" listed by Lord Reed in Henderson (supra) can occur when a trial judge erroneously apply legal principles (eg rules of evidence) in the course of making a finding of fact, thus resulting in a lack of judicial appreciation of evidence. For example, when a trial judge erroneously placed a burden of proof on a party, that will lead the judge to misdirect himself when he attempts to interpret the factual matrix before him. The commission of material error of law by the trial judge in arriving at his conclusions (eg, the requirement of proof of intention in constructive trust as opposed to express trust), also justifies an appellate court reversing such conclusions. [74] Thus, whilst there is a slight difference in approach of appellate intervention, both the UK Supreme Court and our Federal Court effectively shares a common thread where it has been held that appellate intervention is justified where there is lack of judicial appreciation of evidence. [75] The Court of Appeal in Singapore applies the plainly wrong test which is similar to our Federal Court, as illustrated in Damu Jadhao v. Paras Nath Singh [1965] CLJU 30; [1965] 1 LNS 30; [1976] 1 MLJ 151, when it held: The principles under which an appellate court acts when an appellant seeks to displace the conclusion arrived at by a trial judge on questions of fact have been very recently restated by the Privy Council in the case of Tay Kheng Hong v. Heap Moh Steamship Co Ltd [1964] CLJU 202; [1964] 1 LNS 202; [1964] MLJ 92 and [1965] 2 MLJ 151 at 153 need only refer to a passage of the judgment of Lord Guest when dealing with the matter, where he states: Before the Court of Appeal in Singapore was entitled to reject the trial judge's estimate of the credibility of the appellant and Goh Leh they would have to be satisfied that the trial judge's view was plainly wrong and that any advantage which he enjoyed by having seen and heard the witnesses was not sufficient to explain his conclusion. This case seems to me to be completely dependent on the trial judge's estimate of the credibility of the appellant and his witnesses and nothing that counsel for the appellant has put forward in his arguments before me has persuaded me that the trial judge's view of the credibility of the witnesses before him was in any way plainly wrong. [76] What is pertinent is that, the "plainly wrong" test is not intended to be used by an appellate court as a mean to substitute its own decision for that of the trial court on the facts. [77] It is to be observed that this court in Tengku Dato' Ibrahim Petra Tengku Indra Petra (supra) had referred to McGraddie (supra) and Henderson (supra ) and has adopted the Henderson (supra ) approach of the "plainly wrong" test in determining whether the trial court's findings of fact is reversible upon appeal: Recently in Henderson v. Foxworth Investments Ltd and Another [2014] 1 WLR 2600, the United Kingdom Supreme Court held that in the absence of some other identifiable error, such as a material error of law or the making of a critical factual finding which had not interfered with the factual finding which had no basis in the evidence, an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was "plainly wrong" in the sense that it could not reasonably be explained or justified and so was one which no reasonable judge could have reached, and that if the appellate court was not satisfied that the decision came within that category it was irrelevant that, with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge. [78] Hence following this court's ruling in Tengku Dato' Ibrahim Petra Tengku Indra Petra (supra) an appellate court should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of the trial judge was "plainly wrong" where in arriving at the decision it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. If the decision did not fall within any of the aforesaid category, it is irrelevant, even if the appellate court thinks that with whatever degree of certainty, it considered that it would have reached a different conclusion from the trial judge. [79] The outcome of the present appeal would therefore turn upon whether the findings of the learned trial judge were reasonably made. ... [148] Given the aforesaid, we form the view that rather than adopting a rigid set of rules to demarcate the boundaries of appellate intervention insofar as findings of fact are concerned, the "plainly wrong" test as espoused in decisions of this court should be retained as a flexible guide for appellate courts. As long as the trial judge's conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts.” [22] The central issue here is on the genuineness of the Agreement. [23] Generally, the burden of proof is on the person proving the fact. This burden of proof involves the legal burden of proof which is set out in s. 101 of the Evidence Act 1950 as well as the evidential burden or onus of proof which is indirectly set out in ss. 102 and 103 of the Evidence Act

In the former, it is the burden of establishing the case and rests throughout the trial on the party who asserts the affirmativeness of the case. As to the latter, it is the responsibility of adducing evidence to establish a relevant fact. This onus of proof is not fixed but constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates; see Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418 (FC). In that case, it is worthwhile noting that Jeffery Tan FCJ held as follows with emphasis added by us: “[60] It would pan out that the respondent, who was the plaintiff, had both the "burden of proof" to make out a prima facie case as well as the initial onus of proof to adduce evidence to prove the claim. The onus of proof would only shift to the appellants if the respondent had made out a prima facie case. That remained so even though forgery was pleaded. "Now, there is a great distinction between a civil and criminal case, where a question of forgery arises. In a civil case, the onus of proving the genuineness of a deed is cast upon the party who produces it and asserts its validity. If there be conflicting evidence as to the genuineness, either by reason of alleged forgery or otherwise, the party asserting the deed must satisfy the jury that it is genuine (emphasis added). The jury must weigh the conflicting evidence, consider all the probabilities of the case, not excluding the ordinary presumption of innocence, and must determine the question according to the balance of probabilities...” [24] In this case, the Plaintiffs bear the legal burden of proof to establish the causes of action relied on by them. The establishment or otherwise of the causes of action pivotally hinges on the issue of genuineness of the Agreement. It is the Plaintiffs who contended the Properties belong to them pursuant to the Will but it is the Defendant who in defence relied on the Agreement because the Will has been superseded by the Agreement. Hence, it is plain to us that the onus of proof of the genuineness of the Agreement rests on the Defendant. [25] Nonetheless, the learned Judge in paragraph [8] of the GOJ seem to have placed both the legal burden and evidential burden of proof of the genuineness of the Agreement on the Plaintiffs. In this regard, we are of the view that the learned Judge erred by having wrongly placed the responsibility of proof on the Plaintiffs pertaining to the genuineness of the Agreement. [26] Be that as it may and even if the onus of proof of the genuineness of the Agreement is shifted to the Plaintiffs after the Defendant has sufficiently led evidence to demonstrate otherwise, we find the learned Judge decisively found in favour of the Defendant principally based on the testimony of DW2, the lawyer who attested to TKK’s signature on the Agreement in preference over the expert testimony of PW1, a handwriting expert who found the signature of TKK in the Agreement is a forged signature. PW1 in so concluding conducted a handwriting analysis comparing TKK’s signature in the Agreement against five specimen TKK’s signature on an agreement in 1967, official receipts in 1989, a circular resolution in 2002 and a director’s statement on 15th August 2003. He did not however compare it against the Will. [27] We find the learned Judge simply relied on the proposition in the Court of Appeal case of Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 that if there is an attestor to the signing of a document, then the evidence of the attestor overrides the evidence of the expert witness. The learned Judge reasoned that both DW1 and DW2 who attested to TKK’s signing the Affidavit and Agreement respectively are not shaken in cross examination and there is no other evidence that questions the acceptability of their testimony. Moreover, he alluded to PW1 not having analysed TKK’s signature in the Will. [28] Upon our review, we however firstly find that the learned Judge’s relying heavily on the attestation of DW1 and DW2 to the Agreement and Affidavit per se is unsafe. It seems undisputed that DW2 is the lawyer who crafted the Agreement and the Affidavit as well. More pertinently, the learned Judge overlooked the fact that the Defendant initially appointed DW2 as his solicitor and counsel to defend the Suit. DW2 is thus an interested witness in breach of Rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1987. This is evidenced by DW2’s subsequent withdrawal from acting for the Defendant on the eve of trial of the Suit. We also noted that DW2 testified favourably on behalf of the Defendant in the trial of the Suit as follows with emphasis added: “Q: What do you have to say of this Civil Suit? A: This is another attempt by the Plaintiffs to claim back Lot 3745, Lot 3752, Lot 3755 and Lot 3756 after the failure of their Civil Suit no. 254 and after all private caveats and registrar caveats be removed. The Plaintiffs simply have no legal basis to challenge the Defendant’s right and entitlement to Tan Kim Khay’s interest in Lot 3745, Lot 3752, Lot 3755 and Lot 3756.” Furthermore, DW2 acted for the Defendant as solicitor and counsel in another lawsuit in 2012. [29] In such circumstances, the learned Judge ought to have been more circumspect and cautious in accepting the testimonies of DW1 and particularly DW2. It must be borne in mind the proposition in Lee Ing Chin & Ors v. Gan Yook Chin & Anor (supra) relied by the learned Judge on the preference of the evidence of an attestor over a handwriting expert presupposes that the attestor is an uninterested person; see Public Prosecutor v. Vasanta a/l Amarasekara [2024] 9 MLJ 931. [30] Secondly and as a result, we have also reviewed the findings and conclusion of PW1 who is the expert witness appointed by the Plaintiffs. We find PW1’s conclusions in his expert report cogent having seen the comparison made by him between TKK’s signature in the specimens and that in the Agreement and Affidavit. It is obvious to us even from our untrained eye that TKK’s signature in the specimen signature relied by the handwriting expert looks starkly different from the signature in the Agreement and Affidavit. The signature in the specimen looks generally similar. Additionally, the signature in both the Agreement and Affidavit looks almost identical. [31] In such an instance, it is instructive and gainful to refer to the case of Tindok Besar Estate Sdn Bhd v. Tinjar [1976] 2 MLJ 229 (FC) where Chang Min Tat FJ held as follows with emphasis added by us: “Nevertheless, the learned trial judge expressed himself to e completely satisfied with the veracity of the respondent’s witnesses and their evidence. He purported to come to certain findings of fact on the oral evidence but did not notice or consider that the respondent’s oral evidence openly clashed with its contemporaneous documentary evidence. For myself, I would with respect feel somewhat safe to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the statements in his documents and writing. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and circumstances of the case.” [32] Thirdly, we are mindful that the learned Judge also in paragraph [8] of the GOJ criticized the Plaintiffs that TKK’s signature in the Will has not been examined by the handwriting expert. We are cognisant that TKK’s signature in the Will is most cogent because the Will was made about a month and a half before the making of the Agreement. But we believe the non-examination of the original Will by the handwriting expert is probably because the Will was then deposited in court for purposes of probate. [33] That notwithstanding, we noticed that the undisputed photocopy of the Will has been produced for purposes of the trial of the Suit. Thus, the learned Judge had the opportunity to himself examine and compare TKK’s signature in the Will and the Agreement and Affidavit pursuant to s. 73(1) of the Evidence Act 1950; see Ng Yik Seng & Anor v. Perwira Habib Bank Malaysia Bhd [1980] 2 MLJ 83 (FC). But regrettably, that was not undertaken by the learned Judge. In the course of our review, we have therefore ourselves examined and compared the respective signatures and we find that TKK’s signature in the undisputed Will is starkly different from TKK’s signature in the Agreement and Affidavit. The signatory on the Will and the Agreement as well as Affidavit could not have been from the same person. [34] Fourthly and as strenuously submitted by the Plaintiffs, we have also examined the contents of the Agreement and we find there was no explicit express provision that the Defendant is the sole transferee of the Properties because he has not been specifically named as the purchaser or transferee in the annexure to the Agreement. There is also no explicit consideration provided in the Agreement for the sum of RM49,963.00 allegedly paid by the Defendant. In fact, the Defendant was only obliged to make advances for the sub-division charges in respect of the Properties to be eventually recovered from the purchaser or transferee of the Properties. Put simply, the Agreement is not the evidence of the transfer of the Properties solely to the Defendant by TKK. [35] Finally, and fifthly, the learned Judge in paragraph [9] of the GOJ found that that the Properties rightfully belonged to the Defendant because the Properties were not expressly stated in the Will to be bequeathed to the Plaintiffs. Upon our review, we have carefully construed the Will and we find that the learned Judge erred and is plainly wrong by reason that such conclusion can only be drawn if the Properties have been expressly bequeathed to the Defendant solely to the exclusion of the Plaintiffs in the Will. But there is no such provision therein. [36] In the premises, we find the learned Judge has committed several mis-directions both in fact and law that warrant appellate intervention by us. In short, the learned Judge did not judicially appreciate the totality of the evidence adduced as well as failed to consider the probabilities of the case concerned. It is worthwhile to be reminded here the dicta of Mary Lim Thiam Suan JCA (later FCJ) in Theow Say Kow @ Teoh Kian Seng, Henry v. Graceful Frontier Sdn Bhd & Ors [2020] CLJU 52 (CA) as follows with emphasis added by us: “[257] We are aware of the firm and trite principles of appellate intervention particularly where there has been a full trial complete with oral testimonies and where the trial judge has determined the case(s) on the strength of such testimonies, preferring one witness over another because of how those testimonies have been given and received by the Court. But, there is always this caution: there are witnesses who testify well, confidently and consistently; there are many who do not; and both are supposedly on oath and giving truthful evidence. [258] Yet, quite unfortunately, that may not be so. Or, both may be truthful but the memory is faulty, the recollection patchy or, the comprehension of the events simply personal, incorrect or inaccurate. Worse, it may have been what transpired in these appeals, with witnesses testifying that they lied, almost without remorse or consequence, without a determination if the latest effort is in itself a lie. [259] At the end of the day, the trial judge is required to evaluate, dispassionately, all that evidence against any cold hard documentary evidence, the logical chronological development of events seen now through the lens of hindsight, to determine if that eloquent evidence bears up to its weight and may be accorded any cogency; whether the evidence is credible or inherently improbable, all tested against the applicable legal principles. [260] Where the trial has taken such twists and turns and the length of time as have these cases before us, the task becomes a greater challenge; but one that needs nevertheless to be conducted. And, in these appeals, we have had to consider if the learned Judge's findings on fact have met those considerations. [261] Having carefully and anxiously considered the records of appeal, the submissions and the grounds of judgment, we find that much of the evaluation and the conclusions drawn are not what a reasonable judge, similarly circumstanced would have decided, calling therefore for this Court's intervention. The test of 'inherent probability or improbability' as established by the Federal Court in Md Zainudin Bin Raujan v. Public Prosecutor [2013] 4 CLJ 21; [2013] 3 MLJ 773 sums up the proper evaluation of evidence required of a trial judge; that discrepancies are bound to happen but what is important is to weigh any evidence against the totality of evidence, that it is not so much whether a witness was consistent or remained unshaken; rather, the "inherent probability or improbability of a fact in issue must be the prime consideration", and embellishments are sieved through and rejected without unwittingly throwing out the truth. [262] Any audio-visual advantage that a trial judge may enjoy are not present in these appeals in the light of the numerous evidence to the contrary corroborated by relevant and contemporaneous documentary evidence which the learned Judge had plainly erred in not having taken such evidence into consideration. As pronounced by the Federal Court in Tengku Dato lbrahim Petra Tengku Indra Petra v. Petra Perdana Bhd & Another Appeal [2018] 2 CLJ 641, an appellate court "should not interfere with the factual findings of a trial judge unless it was satisfied that the decision of a trial judge was 'plainly wrong' in the sense that it could not reasonably be explained or justified and so was one which no reasonable judge could have reached; and that if the appellate court was not satisfied that the decision came within that category it was irrelevant that, with whatever degree of certainty, it considered that it would have reached a different conclusion form the trial judge." While the learned Judge was perfectly entitled to weigh and evaluate the credibility of the witnesses, we have seen that that evaluation has been plainly erroneous.” CONCLUSION [37] For the foregoing reasons, we unanimously allow the appeal and set aside the Judgment. We accordingly enter judgment for the Plaintiffs in terms of prayers 21.1 to 21.4 and 21.9 to 21.10 of the statement of claim. The assessment of damages pursuant to prayer 21.9 is remitted to the High Court for assessment. Since the relevant third parties are not before us, there is no order made in respect of prayers 21.5 to 21.8 of the statement of claim which the Plaintiffs may and are given liberty to pursue by way of a separate action. [38] The Defendant shall pay the Plaintiffs costs of RM 45,000.00 here and below subject to allocator. Dated this 6th November 2024 Sgd. LIM CHONG FONG COURT OF APPEAL JUDGE

Counsels for Appellants

Damien Chan

Eng Khin Hock

Ian Hannibal Pook Hu San Solicitors for Appellants MESSRS. STEPHEN & CO. Advocates & Solicitors, No.10 (2nd Floor) Lorong Teras Jaya 8, Kawasan Perniagaan Teras Jaya, 13400 Butterworth, Pulau Pinang.

Counsels for Respondent

Ang Khoon Cheong Hanis Nabila Bt Rosli Solicitors for Respondent MESSRS. C.P. ANG & COMPANY Advocates & Solicitors, No.18, Lebuh Kampung Benggali, 12000 Butterworth, Pulau Pinang. STATUTE/LEGISLATION REFERRED TO: Rule 28(a) of the Legal Profession (Practice and Etiquette) Rules 1987. CASES REFERRED TO: Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; Ng Hoo Kui & Anor v. Wendy Tan Lee Pheng, Administrator of the Estates of Tan Ewe Kwang, Deceased & Ors [2020] 10 CLJ 1; Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418; Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; Public Prosecutor v. Vasanta a/l Amarasekara [2024] 9 MLJ 931; Tindok Besar Estate Sdn Bhd v. Tinjar [1976] 2 MLJ 229; Ng Yik Seng & Anor v. Perwira Habib Bank Malaysia Bhd [1980] 2 MLJ 83; and Theow Say Kow @ Teoh Kian Seng, Henry v. Graceful Frontier Sdn Bhd & Ors [2020] CLJU 52.