The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. … [28] The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel Ag CJ had said- "The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [Emphasis added] The law on appellate intervention on a trial judge’s findings of fact [29] The following principles on when an Appellate Court can intervene in a trial judge’s findings of fact can be distilled from decided cases-i. The starting premise must be that as the trial judge had based his findings of fact on the evidence of the witnesses, his findings of fact should not be disturbed; ii. It is only in the rare cases where an Appellate Court, lacking the advantage of seeing and hearing the witnesses, is justified in coming to a different conclusion from the trial judge’s findings of fact. iii. It is well-settled law that an Appellate Court will not, generally speaking, intervene to reverse the trial judge’s findings of fact unless the trial judge is shown to be plainly wrong in arriving at his decision. iv. As long as the trial judge’s findings of fact 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. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the Appellate Court. [See Yahaya bin Mohamad v Chin Tuan Nam [1975] 2 MLJ 117 Privy Council, UEM Group Bhd v Genisy Integrated Engineers Pte Ltd & Anor [2018] Supp MLJ 363 FC per Rauf Sharif FCJ and Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Pentadbir Kepada Harta Pusaka Tan Ewe Kwang, Simati & Ors [2020] 12 MLJ 67 FC] Court’s Analysis [30] Having perused the submissions and evidence anxiously I am not convinced the Sessions court judge Wan Nor Aklima Bt Wan Salleh had erred in her findings of fact and in dismissing the claim. [31] She had heard the testimonies of the six witnesses on liability and held in her Grounds of Judgment [See Enclosure 7 Additional Appeal Record at pages 11 to 44] that the plaintiff had failed to prove Yap’s Car had hit the plaintiff’s Motorcycle for these reasons: i. Having heard the testimonies by the 6 witnesses on liability, including the IO SP 1, the Sessions court was of the view the claim was not proven. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraphs 6, 7, 52 to 54, 63]. ii. The alleged hit-and-run accident happened on 26-08-2015 at 6.30 pm. The plaintiff’s brother [Selvaraju a/l Marathey SP3] lodged a police report on the same day i.e. 26-08-2015 at 10.36 pm. He did not state Yap’s Car number which allegedly hit the plaintiff. [See Enclosure 4 Appeal Record Part C page 187]. He did not witness the alleged hit-and-run accident. He did not see the Car number. [See Enclosure 7 Grounds of Judgment IN Additional Appeal Record at paragraphs 28 and 29]. iii. The plaintiff’s brother [Selvaraju a/l Marathey SP3] alleged he obtained Yap’s Car number from a toll collector working at a nearby building [See Enclosure 4 Appeal Record Part C page 212 Q and A no 10] but this alleged person was not identified by name and not called as a witness by the plaintiff. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraphs 28, 29, 42, 61]. iv. The plaintiff’s brother [Selvaraju a/l Marathey SP3] did not inform the IO of this alleged toll collector and Yap’s Car no. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 43]. v. The plaintiff’s brother [Selvaraju a/l Marathey SP3] did not lodge a police report on the existence of this alleged toll collector and Yap’s Car no. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraphs 43 and 44]. vi. The plaintiff did not see the Car number of the car that hit him. [See Enclosure 4 Appeal Record Part C page 215 Witness Statement of Batumalai A/L Marathey Q and A 12]. vii. The plaintiff only revealed Yap’s Car number which allegedly hit him in his 1st police report on 30-09-2018. [See Enclosure 4 Appeal Record Part C page 186]. This is 3 years after the alleged hit-and-run accident. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 43]. viii. The plaintiff lodged his 1st police report on 30-09-2018 at 2.15 pm stating the location of the alleged hit-and-run accident as NKVE Highway. This is 3 years after the alleged accident. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 38]. The location of the alleged hit-and-run accident also differs from that stated by his brother which stated the location as DUKE Highway. [See Enclosure 4 Appeal Record Part C page 187]. ix. Subsequently, the plaintiff lodged a 2nd and corrective police report on 22-07-2020 at 12.01 pm. [See Enclosure 4 Appeal Record Part C page 188]. This report was lodged 2 years after his 1st police report and 5 years after the alleged accident] and now stated the location of the accident as DUKE Highway and not NKVE Highway. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraphs 28 and 36]. x. The IO SP1 went to the site of the accident on the day of the alleged accident i.e. 26-08-2015 at 11.30 pm but did not see any signs of any accident. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 30]. xi. The IO SP1 requested the plaintiff to bring his Motorcycle for inspection of damage but the plaintiff alleged it was lost. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 33] [See also Enclosure 4 Witness Statement of IO at Q and A 13 in Appeal Record page 207]. xii. The plaintiff also marked the location of the alleged accident as a normal lane and not the emergency lane as stated in his police report. [See Enclosure 7 Grounds of Judgment in Additional Appeal Record at paragraph 51]. Courts have dismissed a claim if it was not proven that the defendant’s vehicle was involved in the accident [32] I need only refer to two decisions where the High Court had dismissed a suit on the basis that the plaintiffs there had not discharge the burden to prove the defendant’s vehicle was involved in the accidents. [See Amir bin Khamis v Ravie a/l D Subramaniam and Ors [2011] 3 MLJ 821 HC per Suraya Othman J and Pacific & Orient Insurance Co Bhd v Tang Loon Pau (claiming for personal injury) & Ors [2021] 11 MLJ 933 HC per Faizah Jamaludin J]. [33] In Amir bin Khamis v Ravie a/l D Subramaniam and Ors [2011] 3 MLJ 821 HC per Suraya Othman J, the headnote reads as follows: The appellant/plaintiff appealed against the sessions court judge's ('SCJ') decision on issues of liability and quantum. The SCJ had decided that the plaintiff's claim be dismissed with costs. Based on the plaintiff's evidence, when he arrived at the Persiaran Kelang, … a lorry from the opposite direction suddenly turned right and entered into the plaintiff's path and collided with the plaintiff and his motorcycle. Referring to the defendant's testimony, he contended that although he was driving the lorry at that time, he was not involved in the accident along the relevant road. The SCJ found that the plaintiff did not know of the registration number of the lorry that hit him. Although he stated No WFV 5606 in his police report, the number was actually given by a member of the police, SP7, when he made the report. The SCJ decided that the plaintiff had failed to prove that the lorry No WFV 5606 was involved in the accident on the grounds, inter alia, the testimony by SP8, the investigation officer, involved obvious contradictions, testimony by SP7 which was given as to how he obtained the registration number of the lorry and loss of investigation paper was inacceptable and also there was no evidence that there were damaged to the lorry. [34] Suraya Othman J in dismissing the appeal said at Held [1]: The SCJ made a correct finding and decision as to the issue of liability in this case. The SCJ's decision to reject the plaintiff's version on the ground that the plaintiff's testimony was contradictory, apart from not being supported by the silent evidence, was a correct decision. The court was satisfied that the plaintiff had failed to show that the SCJ's decision was wrong in law and against the weight of the evidence adduced before him to warrant an interference to the finding of fact. Therefore, the SCJ's decision dismissing the plaintiff's claim here was also a correct decision… [35] In Pacific & Orient Insurance Co Bhd v Tang Loon Pau (claiming for personal injury) & Ors [2021] 11 MLJ 933 HC Faizah Jamaludin J said- [77] It is indeed curious how the learned SCJ arrived at her conclusion that that the motorcar WLD 9999 was involved in the accident with the first plaintiff’s motorcycle, in the face of the evidence before the sessions court that the first plaintiff did not know what car had collided into his motorcycle during the accident; that there was no trace of the motorcar No WLD 9999 at the site of the accident; SP3’s testimony that the damage to motorcar No WLD 9999 was inconsistent with the damage to the first plaintiff’s motorcycle; the police findings that motorcar No WLD 9999 was not involved in the accident; and the result of the inquest investigation confirmed was ‘no further action’ (NFA) was to be taken for motorcar No WLD 9999 in respect of the accident. [78] It appears to me that in arriving at her conclusion, the learned SCJ chose to ignore the oral evidence of the plaintiffs’ own witnesses, the police reports filed by the first plaintiffs, the findings of the police and the result of the inquest investigation. [79] Based on the testimonies of the plaintiffs’ own witnesses and the evidence at trial, it is patently clear that the plaintiffs had not discharged the burden of proving its pleaded case against the defendants. [Emphasis added] [36] The Court has sympathy for the injured plaintiff but I have carefully scrutinised the evidence and find no errors in the findings of fact of the Sessions Court. [37] It is not for the plaintiff to say “You Yap needs to prove that your Car was not at Raintree Club and not involved in the accident at the material time”. The Supreme Court in Selvaduray v Chinniah [1939] MLJ 253 SC per Terrel Ag CJ had said- "The burden of proof … is upon the person who would fail if no evidence at all were given on either side, and accordingly the Plaintiff must establish his case. If he fails to do so it will not avail him to turn around and say that the Defendant has not established his. The Defendant can say 'it is wholly immaterial whether I prove my case or not. You have not proved yours' (see the Judgment of the Privy Council in Raja Chandranath Roy v. Ramjai Mazumdar 6 Bengal Law Reports, page 303)." [Emphasis added]