Anyoli Sdn. Bhd. v Aci Industries Ltd (12BNCC-44-12/2018)

This is an appeal against the decision of the Learned Sessions Court’s Judge (“LSCJ”) dated 30.11.2018 which after a full trial, allowed the claim filed by the Respondent (the Plaintiff in the Sessions Court) and dismissed the counter-claim filed by the Appellant (the Defendant in the Sessions Court). 2

This Court allowed the appeal and reversed the finding of the Sessions Court with costs of RM5,000.00. The following are the Grounds of Decision of this Court.

This Court will refer to the parties in this appeal as they were in the Sessions Court.

The Defendants in this appeal focused only on two issues namely : i. Issue 2: Whether the Material delivered by the Defendant in two (2) containers, namely TGHU393757- 4 and TRHU136459-9 contained radioavtive material and therefore in breach of the Contract. ii. Issue 3: Whether the Plaintiff has incurred losses in the sum of EUR62,945.56 as a result of the radioactive material which was shipped and delivered by the Defendant in the said two (2) containers and whether the Defendant is liable to pay the losses to the Plaintiff.

The Plaintiff and Defendant entered into a contract dated 2.3.2017 whereby the Plaintiff purchased 125 metric tons of Copper Dross from the Defendant for the purpose of reselling it to Aurubis AG (“Aurubis”), an entity based in Germany. It was intended by the Plaintiff for the material to be delivered to Port of Rotterdam, in the Netherlands and thereafter for onward transportation to Germany. 3 [6]

containers, namely TGHU393757-4 and TRHU136459-9 contained radioactive material and therefore in breach of the Contract

The email dated 4.4.2017 issued by ANVS Inspector at the Port of Rotterdam states that the two (2) containers namely TGHU393757-4 and TRHU136459-9 contains radioactive material. It was further confirmed by the Dutch Authority for Nuclear and Radiation Protection, a public agency/authority in Netherlands via a letter dated 14.09.2017 that the said containers contain the radioactivity material.

SD1 acknowledged that the Defendant had shipped those Material in the five (5) containers including the two (2) found to have radioactivity. It is in evidence that the loading of the Material was done by the Defendant themselves. The containers were not opened anywhere in between until it reached at the Port of Rotterdam where the ANVS ie the Port Authority at Port of Rotterdam who had discovered that the two (2) containers contained radioactivity materials.

The Defendant had never challenged nor disputed that the two (2) containers were indeed contained the radioactive materials. Nor the Defendant had any time prior to the trial had disputed about the findings of GHS reports nor during the trial had crosses the Plaintiff’s witness about 8 the two (2) containers containing the radioactive materials. This Court refers to the case of Aik Ming (M) Sdn Bhd v Chang Ching Chuen & Anors [1995] 2 MLJ 770 where the Court of Appeal had held as follow : “The content of the second rule may be stated thus. It is essential that a party's case be expressly put to his opponent's material witnesses when they are under cross-examination. A failure in this respect may be treated as an abandonment of the pleaded case and if a party, in the absence of valid reasons, refrains from doing so, then he may be barred from raising it in argument. It is quite wrong to think that this rule is confined to the trial of criminal causes. It applies with equal force in the trial of civil causes as well”.

I also refer to the case of Kong Ming Trading Sdn Bhd v MTS Construction and Trading Sdn Bhd [2016] 1 LNS 1343, where the Court of Appeal had held : “Of no less significance in the whole scheme of things is the fact that there was no challenge at all to the evidence of the relevant respondents' witnesses who testified that the losses suffered by the respondents were a direct result of the defective wallstones. Vouchers, receipts and documents showing the cost and expenses incurred by the respondents had been tendered as evidence by the respondents. The law is settled that such failure to challenge would amount to acceptance of the evidence”. 9

There is no evidence from the Defendant on disputing those two (2) containers loaded and shipped by the Defendant was found to have radioactivity material.

Therefore, it is this Court’s finding that the Defendant had breached their Contract when contrary to the terms of the Contract the Materials supplied were not free of radioactive material. The express term of the Contract clearly stipulated as follows : “material supplied must “be free of deleterious or radioactive metals”. [25] With respect, this Court is of the firm view that without more, the LSCJ was relying on an email which was forwarded to the Plaintiff by Aurubis. It was a communication between Aurubis with ANVS, the Dutch authorities at the port. Similarly, the confirmation of radiation by the Dutch Authority for Neuclear and Radiation Protection via a letter dated 14.9.2018 was a communication between the said public authority with Aurubis. It was never communicated directly to the Plaintiff. This Court is of the opinion that the LSCJ relied on documentary hearsay when she accepted the two documents in determining Issue 2. [26] In Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175, at 180, Ali FJ in the majority decision of the Federal Court, in quoting Phipson “Phipson on Evidence”, 10th Edition (1963), at p. 280 accpted the definiiton of hearsay as : 10 “The rule against hearsay excludes, in general, all statements oral or written, the probative force of which depends either wholly or in part on the credit of an unexamined person notwithstanding that such statements may possess an independent evidentiary value derived from the circumstances under which they were made and notwithstanding that no better evidence of the facts stated is to be obtained.” (Emphasis added). [27] It is clear that the written report of the ANVS Inspector was being relied upon by LSCJ. The probative force of the report depends on the credit of the unexamined person (the Inspector). The email and the reference to the contents of his findings are therefore documentary hearsay. Similarly, the letter dated 14.9.2018 sought to be relied upon by the Plaintiff was another attempt to confirm the said inspector’s findings of the contents of the two containers. [28] It is trite that in law not all hearsay evidence is inadmissible. It all depends on the object of the introduction of the evidence. This was explained by the Privy Council in the celebrated case of Subramaniam v. Public Prosecutor [1956] MLJ 220; 1 LNS 115 in the following manner: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” 11 [29] In the current case, it is as clear that the Plaintiff’s object in introducing the email from the ANVS Inspector and the confirmation from the ANVS was to establish the truth of the content of the email and letter. The Exhibit P24 was the document relied upon by the Plaintiff. This was the translation of a series of letters obtained from ANVS confirming the findings of the ANVS Inspector. It included a letter form the solicitors for Aurubis seeking ANVS to confirm that the two containers were certified to contain radioactive material as certified by the ANVS Inspector. In short, it was a confirmation of the email dated 4.4.2017. It is the view of this Court that P24 was pure documentary hearsay which carries very little or no evidential value. [30] Reference is made to Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the 'Borcos Takdir' [2012] 5 MLJ 515. The issue was whether the court could rely on a report made by a witness based upon the findings of the master of a ship involved in an incident that led to the litigation. Nalini J (as she then was) held as follows: “The evidence that is available to this court is entirely from testimony of witnesses who subsequently queried or spoke to the master and other crew members. This evidence, emanating from; for example, PW1, PW2 and others, comprises hearsay. It is an account of the events relating to the incident which were recounted to these witnesses. It is trite that any such evidence cannot comprise admissible evidence to be utilised for the purposes of ascertaining the truth of the events which occurred on 28–29 July 2004. It comprises admissible evidence of the 12 fact that these witnesses were actually appraised of these facts by the primary witnesses, no more. It follows that the fact that the reports prepared by witnesses such as PW1, as well as the authors of all the other incident reports equally amounts to documentary hearsay. The fact that they set out in writing the content of their interviews with the master and other crew members in no way alters the nature and evidential value of those reports. They cannot comprise evidence of the truth of the events which occurred at the time of the incident for the purposes of ascertaining the precise cause of the incident. … In adjudicating as aforesaid, I have considered the submissions of learned counsel for the defendant who has stated that the evidence on how the incident occurred is before the court by way of the various reports from Shell, Borcos, Kasi and the statements of the master and crew. However as pointed out above, these investigation reports as well as the testimony of witnesses such as PW1 and PW2 comprise documentary and oral hearsay respectively. The use of these reports to prove the truth of facts pertaining to the precise cause of the incident is therefore not tenable.” (Emphasis added) [31] This Court is of the considered view that the fact that the LSCJ had accepted that Issue 2 had been establised and proven by the Plaintiff meant that it had relied on evidence which was generally inadmissible. It was contrary to the established hearsay rules. Issue 2 being a fundamental issue to be determined, must be proven by admissible evidence. 13 [32] In Kong Ming Trading Sdn Bhd [2016] 1 LNS 1343 it was held that the law is trite that inadmissible evidence remains inadmissible irrespective of whether any objection was raised to its admission. Whether the Plaintiff has discharged the requisite burden [33] It is also trite law that unless and until the Plaintiff has discharged its evidential burden of establishing a prima facie case, there is no burden on the Defendant to prove its defence, no matter how weak or unbelievable his defence might have been (see: Johara Bi binti Abdul Kadir Merican v Lawrence Lam Kwok Fon [1981] 1 MLJ 39). [34] The Court of Appeal in Mohd Shukri Bin Mat (Administrator to The Estate Of Wan Mek Bt Wan Abdullah @ Wan Eshah Bin Wan Abdullah) V Wan Rahmah Bt Wan Abdullah (Administrator To The Estate Of Wan Abdullah Bin Wan Ahmad) [2018] 3 MLJ 89, Yeoh Wee Siam JCA in holding that there was a fatal error conducted by the trial judge on the burden of proof of a plaintiff in proving its case, held as follows: “We further observed that the learned JC also misdirected himself on the law regarding the burden of proof of a defendant in a civil case. He had in finding in favour of the Plaintiff held that the Defendant had completely failed to prove his defence which he found to be nothing more than a bare denial and an afterthought. Now as previously discussed, the law is trite that until and unless the Plaintiff had discharged the onus on her to prove her case on a balance of probabilities, the burden did not shift to the Defendant to prove his defence and no matter if the Defendant's case was completely 14 unbelievable, the claim against him must be dismissed (see: Johara Bi bte Abdul Kadir Marican v Lawrence Lam Kwok Fon & Anor (supra) and UN Pandey v Hotel Marco Polo Pte Ltd [1980] 1 MLJ 4).” [35] The Court of Appeal went on to highlight UN Pandey v Hotel Marco Polo [1978] 1 LNS 223 whereby Sinnathury J in dismissing the plaintiff's case held at page 4: “It is not often realized that in civil cases, as much as in criminal cases, a party must prove his case before the burden of proof shifts to the other side. In a criminal case the prosecution's burden is a heavy one. In a civil case, it is on a balance of probabilities. But the proof is that the balance must be tilted by the plaintiff before the defendant makes his case.” [36] In concluding, her Ladyship held as follows: “We were entirely in agreement with learned counsel for the Defendant that the Plaintiff in the instant case had failed to discharge her evidential burden of establishing a prima facie case against the Defendant on a balance of probabilities. Consequently, there was simply no case for the Defendant to answer or rebut.” (Emphasis added) [37] The Federal Court in the case of UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785 reaffirmed the principle in Allied Bank (Malaysia) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33 and held: “[36] It is fundamental that it is the requirement of the best evidence rule that the maker of a document must be called to prove it. (Allied Bank 15 (Malaysia) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33). Further s. 73A of the Evidence Act states that in civil proceedings, the maker must be called as a witness in order to render it admissible in evidence. (Ooi Yoke In (f) & Anor v. Public Finance Berhad [1993] 2 CLJ 464). And a document cannot be admitted into evidence and marked as such until properly proven. (Chong Khee Sang v. Phang Ah Chee [1983] 1 LNS 57). In the instant case, it is clear that both the subcontract and the fax were not properly proven and should have been disregarded. Thus, the Court of Appeal, by relying on those documents in reversing the findings of facts of the trial judge was clearly in error on evidential issues.” [38] In the case of Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd [2015] 9 CLJ 902, the Court of Appeal held: “(2) The plaintiff's claim was hinged primarily by exhs. P4 and P6 to arrive at the outstanding sum of RM340,002.72. However, the maker of P4, and Puan Sarojini, who prepared the figures in P6 were not called. The mere fact that a document is marked as an exhibit does not render the documents admissible until the content is properly proven. The failure of the plaintiff to call the makers of the documents rendered them inadmissible as they had not fulfilled the best evidence rule required under s. 73A of the Evidence Act 1950 ('EA'). The plaintiff had also failed to adduce any evidence to show that the maker of P6 and Puan Sarojini were dead, unfit by reason of their bodily or mental condition, were overseas or that all efforts to find them had been made without success in order to absolve them from the strict requirements of s. 73A of the EA. Exhibits P6 and P4 were therefore clearly inadmissible. (paras 53, 60-64, 68 & 69)

The evidence of SP1 and SP3, who testified for the plaintiff, were merely hearsay as the veracity of the documents, which SP1 and SP3 were seeking to establish, could not be ascertained 16 without the makers being cross-examined. The amount of RM340,002.72 was not reflected in P4 and, aside from explanation of SP1, there was no evidence adduced to show the basis of calculations and how the sum was arrived at. The plaintiff had thus failed on a balance of probabilities to discharge its burden of proving its claim. Hence, the trial judge was plainly wrong in accepting the RM340,002.72 as the correct calculation when there was no evidence in support of the finding. (paras 69-72 & 74)”. See also Koh Thong Kien v. Kuan Peng Chin @ Kuan Peng Soon [2011] 1 LNS 1199; Gurmit Kaur Jaswant Singh v. Tung Shin Hospital & Anor [2013] 1 CLJ 699. [39] The non-challenging of the Plaintiff witness PW1 was largely due to the representation made by the Plaintiff that it was calling other witnesses to prove its case. Its failure to do so can only mean that it has failed to prove its case by calling the relevant witnesses. Certainly, PW1, who is a representative of the Plaintiff, cannot go beyond what was communicated to him by third parties. [40] This Court poured through the exhibits that were tendered into Court. The focus of this Court was on the reference to documents which were in the German language. In particular ID 17. This was the document that purportedly was commissioned by Aurubis and signed by one Dr. Torsten Pabvob. It outlines the initial part how and why GHS were involved in the two containers which were found to contain radioactive material. It purportedly gave a full report of what the radiation was when it arrived in Rotterdam. 17 [41] The Plaintiff took pains to produce a translation of all the documents which were originally in the German language. With respect, the translated documents do not automatically convert documents including the report which was not produced by the maker into admissible evidence. [42] A document not proven by calling its maker cannot bypass the hearsay rule based on the priciples laid down in Sabah Shell (supra). If the said person who prepared the GWS report was called, it will allow the Court to ascertain whether Issue 2 had been proven. Admission by SD1 [43] It was heavily contended by the Plaintiff that SD1 admitted during the course of the trial, that the containers contained radioactive material. Cousel argued that the admission alone was sufficient for the Plaintioff to succed in its claim. Sevreal authorities were relied upon by the Plaintiff. [44] With respect, this Court is unable to agree with the Plaintiff. In Allianz General Insurance Malaysia v. KL Chan & Associates

4 MLRA 615 at 622 (CA), Rohana Yusoff JCA (as she then was) ruled that an admission must be accepted by the court. In that case, there was clear admission made by the respondent that there was a breach of the insurance policy. This admission entitled the appellant to repudiate the insurance policy. This Court finds no difficulty in accepting the Court of Appeal’s ruling as the foundation 18 of the case (the existance of the insurance policy) had been established. [45] Contrast the authority with the scenerio in the current apppeal. Clearly, nothing has been shown by the Plaintiff that the radioctivity of the materials has been established. As such, even if there was admisssion on the answers given by SD1, it cannot substitute the duty of the Plaintiff to prove its case. As such, this Court finds that the reliance by the LSCJ on the admission was eroneous. Expert Witness [46] Counsel for the Defendant argued that in order to determine Issue 2, expert witnesses will be required as cases involving technical, scientific or medical issues which require specialised knowledge, an expert must be called to testify. This Court agrees with the Defendant’s argument. It involves analysis which ultimately falls on this Court to determine if the material in the two (2) containers contained radioactive material. [47] Section 45 of the Evidence Act 1950 states: “(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.

Such persons are called experts.” 19 [48] This Court agrees with counsel for the Defendant that if an expert is before this Court, it will assist this Court who is not equiped with expertise in this area. The evidence of an expert will assist the court in arriving at a correct decision (see Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor [2015] 7 CLJ 849). Applicability of sections 74 and 78 of the Evidence Act 1950 [49] The Plaintiff contended that they were entitled to admit P24 as evidence as it was not objected upon during trial. It was earlier established that inadmissible evidence will remain inadmissible even without objection (see Kong Ming Trading Sdn Bhd (supra)). [50] Section 74 of the Evidence Act 1950 is not concerned with relevancy or admissibility (see Evidence Practice and Procedure Third Edition; Augustine Paul). In Dato Yap Peng v Public Prosecutor [1993] 1 MLJ 337, Mokhtar Sidin J (as then was) held as follows: “It is to be noted that when the Learned Sessions Court Judge admitted Exhibit P75(B) she did so under section 74of the Evidence Act. With the greatest respect to her, in my view section 74 only provides the categorising of a public document and nothing more than that. Section 78 of the Evidence Act is only for the purposes of certification of a public document. The purpose of cetegorising and the certificate is to make it easier for its production without the necessity of calling the maker or the keeper of such document to give in evidence to prove the existence of such document. In my view that is the only purpose of Sections 74 and 78 of the Evidence Act 20

The relevancy and the admissibility of such document is governed by the provisions of other sections of the Act or other laws. In my opinion before such document could be admitted the conditions and prerequisites of the section under which it is to be used must be satisfied. The prosecution's attempt to avoid invoking section 33 is misconceived. It is manifestly clear that the only way any evidence given by a witness or witnesses can be used in a subsequent and different judicial proceeding is by way of section 33 of the Evidence Act 1950.” [51] It is apposite for this Court to refer to material of Sarkar on Evidence, Fifteenth Edition on section 74 of the Evidence Act. The comentary reads as: “Principle and Scope. – This section defines what are known as public documents. Documents other than those which come under the definition are called private documents (s 75). Public documents form an exception to the Hearsay rule and their admissibility rests on the ground that the facts contained therein are of public interest and the statements are made by authorized and competent agents of the public in the course of their official duty (ante s 35). Certified copies of public documents becomes admissible as proof of the document are to be proved before the court of law. It also defines the documents which are admissible in evidence. No document can be looked into by a court of law unless the same has been proved according to the provision of Evidence Act. A document has to proved either by the executants or the executee. An exception has been carved out from this general principal by incorporating section 74 of the Evidence Act with regard to the public document. A joint reading of sections 74 and 75 will go to show that section 74 is only an exception of the provisions of requiring proof under the Evidence Act. It illustrates certain selected documents to be called as public documents which require no formal proof as laid down by the 21 other provisions of the Evidence Act. S. 75 says that all documents other than those stated in section 74 are private documents, is not a public document and therefore it cannot be said that the modes of proof required under law can be dispensed within respect of the said declaration. Section 74 only provides for the categorizing of a public document and nothing more than that. Section 78 is only for the purpose of certification of a public document [Dato Yap Peng v. Public Prosecutor, (1993) 1 Malayan LJ 387 (Kuala Lumpur HC]. Merely because a declaration of an individual bearing a seal of a public authority will not make the said declaration/document as a public document. Manual Bawets Xavier v. Naryan Biku Naik, 1997 AIHC 959, 961.” [52] Ratanlal & Dhirajlal’s the Law of Evidence 23rd Edition had the following commentary: “There are several exceptions to the rule which requires primary evidence to be given. The most important and conspicuous exception, however, is with respect to the proof of records, and other public documents of general consent ; the objection to producing which rests on the ground of moral, not physical inconvenience. They are, comparatively speaking, not liable to correction, alteration, or misrepresentation the whole community being interested in their preservation, and, in most instances, entitled to inspect them; while private writings, on the contrary, are the objects of interest but to few, whose property they are and the inspection of them can only be obtained if at all, by application to a Court of justice. The number of persons interested in public documents also renders them much more frequently required for evidentially purposes; and if the production of the originals were insisted on, not only would great inconvenience result from their same documents being wanted in different places at the same time, but the continual change of place would expose them to be lost, and the 22 handling from frequent used would soon and sure their destruction. For these and other reasons the law deems it batter to allow their contents to be proved by derivative evidence, and to run the change, whatever that may be, of errors arising from inaccurate transcription, either intentional or casual. But, true to its great principle of exacting the best evidence that the nature of the matter affords, the law requires this derivative evidence to be of a very trustworthy kind, and has defined, with much precision, the forms of it which may be resulted to in proof of the different sorts of public writings”. [53] In Halsbury’s Laws of England, 4th Edn. Vol. 17, para 163 it is observed that : “To render such a document admissible there must have been a judicial or quasi-judicial duty to enquire, undertaken by a public officer, the matter must have been required to be ascertained for a public purpose, and the document must have been made for the purpose of the public making use of it and being able to refer to it”. “The public” in this context does not mean the whole world but all persons concerned, for instance all persons interested in a manor in the case of an entry in the books of a manor. [54] The limits within which such documents are admissible are laid in the early decision of the House of Lords in Sturla v. Freccia [1880] 5 App Cases 623. It was held that the document must be brought into existence for the purpose of its being retained indefinitely as a document of record available for inspection by the public. 23 [55] The question in Sturla v. Freccia arose as to the admissibility of a statement regarding age and place of birth of individual, contained in a report appointed by a foreign government to know the individual’s fitness to hold a post under that government, the House of Lord rejected the evidence afforded by that report. Lord Blackburn held the document was not (1) made under a duty to enquire into the circumstances recorded. (2) concerned with a public matter. (3) intended to be retained permanently, and (4) meant for public inspection. [56] Applying the principles to the current case, it is obvious that the report or certification by the ANVS inspector was not carried out as a result of any judicial or quasi judicial duty to enquire. It was carried out as a result of the ANVS inspector carrying out a routine inspection of the containers. As such, it cannot mean that the results of the inspection is a public document falling under those envisaged in section 74 of the Evidence Act. [57] Applying the test used by Lord Blakburn in Sturla v. Freccia, it is obvious that the report was not in any manner concerned for a public matter. It was purely a finding that impacted the consignee of the container load namely Aurubis. The members of the public had no interest in what the containers contained. This fails the public purpose requirement. It also fails the test of the document being retained permanently as it was not for the public at large to have an interest for it to be kept for future reference. It also fails the test of it being for public inspection. Clearly, it is private matter. It was a 24 violation of law by the consignor/consignee in a private commercial arrangement. [58] One of the most important requirement is the fact that the records cannot be subjected to correction or any form of challenge. This certainly is contrary to the scenario before this Court. The report was open to be challenged. The Defendants were demanding that the Plaintiff proof the contents of the containers. Experts can be used to challenge the findings of the ANVS inspector. In short, the report/finding was subjected to challenge. This is the clearest reason why the Plaintiff was not entitled to rely on section 74 of the Evidence Act. [59] This Court is of the considered view that the set of letters/documents relied upon by the LSCJ cannot be admitted under the exception to the hearsay rule by virtue of it purportedly being a public document. It did not qualify of being one to begin with. Merely by procuring a declaration of an individual bearing a seal of a public authority such as ANVS will not make the said declaration/document as a public document. [60] As such, this Court is of the view that section 74 and section 78 of the Evidence Act 1950 does not assist the Plaintiff in proving its case. Appellate Intervention [61] It is the considered view of this Court that the simplistic reception of the email dated 4.4.2017 and letter dated 14.9.2018 by the parties 25 rendered the findings of the LSCJ plainly wrong and it warrants appellate intervention (see: China Airlines Ltd. v. Maltran Air Corp Sdn Bhd. & Another Appeal [1996] 3 CLJ (FC); Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 (CA); Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 (FC)). [62] In the Court of Appeal’s case of Sivalingam Periasamy & Anor v. Periasamy & Anor [1996] 4 CLJ 5459, Mahadev Shankar JCA held as follows : “It is trite law that this Court will not readily interfere with the findings of fact arrived at by the Court of first instance to which the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case where, as here, the trial Court has so fundamentally misdirected itself, 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.” Conclusion [63] In the final analysis, this Court is of the view that the failure of the Plaintiff to produce the maker of the report to prove that the consignment contained radioactive material was fatal to the case of the Plaintiff. It was not open for the Plaintiff to argue that there was admission by the Defendant. 26 [64] Given the failure of the Plaintiff to prove its case, the issue of the Plaintiff proving the loss it suffered also falls. There will not be a requirement for this Court to determine Issue 3 as the substratum of the Plaintiff’s case no longer exist. [65] Premised on the above, this Court is of the considered view that there are compelling reasons for this Court to intervene in the findings of the learned trial judge. The Defendant's appeal is therefore allowed with costs of RM5,000.00. (AHMAD FAIRUZ BIN ZAINOL ABIDIN) Judicial Commissioner High Court of Malaya Kuala Lumpur Dated : 13th September 2019 27 Counsels: Harvindar Singh for the Appellant Messrs. Kirpal Singh & Partners No. 9A, Jalan Makmur 25/64 Taman Sri Muda 40400 Shah Alam Selangor Vasdev Bakshani & Arjan Pursumal for the Respondent Messrs. Vasdev Bakshani & Associates 35-5, the Boulevard, Mid Valley City