Langkawi Yacht Club Bhd v SUZANNAH HELEN HARVEY (W-02(ADM)(W)-443-03/2022)

DAN SUZANNAH HELEN HARVEY [Passport No.: 538972343]

RONAN FRANCIS HARVEY [Passport No.: 511424712] … RESPONDEN-RESPONDEN [Dalam Mahkamah Tinggi Malaya di Kuala Lumpur (Bahagian Dagang)

Suzannah Helen Harvey (No. Pasport United Kingdom: 538972343)

Ronan Francis Harvey (No. Pasport United Kingdom: 511424712) … Plaintif-Plaintif Dan S/N yd6uoVy8n0qSSl0ZTycM6A Langkawi Yacht Club Bhd (No. Syarikat: 344822-X) …Defendan Yang diputuskan oleh Pesuruhjaya Kehakiman Atan Mustaffa Yussof Ahmad di Mahkamah Tinggi Kuala Lumpur pada 9 haribulan Februari 2022] CORAM: YA DATUK AZIMAH BINTI OMAR, FCJ YA DATUK WONG KIAN KHEONG, JCA YA DATUK ISMAIL BIN BRAHIM, JCA GROUNDS OF JUDGMENT A. INTRODUCTION [1] The Appeal before us is an appeal by the Appellant against the decision of the Kuala Lumpur High Court dated 9.2.2022, allowing the

Respondents’ claim for damages as follows: (i) Damages USD

959.19 for all loss, expense and damage suffered by the Respondents as a result of the use of allegedly contaminated fuel supplied by the Appellant; (ii) Damages of USD24,000.00 for loss of use of the vessel, “SV Binary Star”; (iii) Damages of RM10,000.00 for assault on feelings, mental distress and anxiety, discomfort and convenience. In addition to the award of damages, the High Court had also ordered the Appellant to pay costs of RM100,000.00 to the Respondents which subject to allocator fee. S/N yd6uoVy8n0qSSl0ZTycM6A [2] Essentially, the High Court had allowed the Respondents’ action against the Appellant for allegedly supplying contaminated fuel for the Respondents’ use of their sea vessel. [3] The nature of contamination of which kept ‘evolving’ and ‘floating’ between the scientific theory of SALTWATER contamination and ‘SODIUM/SALT’ contamination (the latter being an ‘alternative’ scientific theory that the Respondents were trying to pivot onto without tendering any expert to testify on this ‘scientific’ afterthought). [4] The Respondents initially landed on the saltwater contamination theory and later pivoted onto the salt contamination (through alleged pinhole leakages along the Appellant’s supply line) theory as and when it became gradually clear (during trial) that the Respondents’ own evidence and self-contradictions could not corroborate the saltwater contamination theory. [5] From the outset we have identified that apart from errors of judicial appreciation of evidence, the Learned High Court Judge (“the Learned HJC”) had misconstrued the fundamental, rudimentary, and well settled principles as to legal burden of proof (which does not shift) and evidential burden of proof. Despite clearly finding that the Respondents had failed to tender direct and objective evidence to prove their claims, the Learned HCJ still wrongfully allowed the Respondents’ claims on the misguided ‘reversed imposition’ of legal burden of proof against the Appellant (for allegedly failing to prove ‘alternative’ causa causans to the damage – of which the Appellant had definitely proven alternative probable causa causans of the Damages suffered by the Respondents). S/N yd6uoVy8n0qSSl0ZTycM6A [6] In any case, it is only apt for us to first appreciate and lay down the factual matrix that had culminated the Appeal before us. B. FACTUAL BACKGROUND [7] Langkawi Yacht Club Berhad (“LYCB / the Appellant”) is the operator of the Royal Langkawi Yacht Club (“RLYC”). Suzannah Helen Harvey (“Suzannah / R1”) is the registered owner of the subject yacht/vessel known as SV Binary Star (“the Vessel”) and is also the daughter of Ronan Francis Harvey (“Ronan / R2”) (collectively “the Respondents”). Ronan was the person who sailed the Vessel in numerous voyages relevant to the Appeal before us. [8] The main crux of the Appeal was the Respondents’ allegation that the batch of fuel supplied by the Appellant onto the Vessel was contaminated. Thus, clear and specific evidence and record of the ins and outs (bunkering and uplifting) of fuel onto the Vessel’s three storage tanks (the Centre, the Port, and Starboard Tanks) (collectively, “the Storage Tanks”) was indubitably critical and material. For onwards combustion or use of the fuel, fuel would be uplifted from any of the Storage Tanks to the 4th Day Tank (from which the fuel from the Day Tank will accordingly supply fuel to power the Vessel’s main engine and generator). Over the course of a voyage, fuel would be repeatedly uplifted from any of the Storage Tanks into the Day Tank as and when the Vessel burns out the fuel contained in the Day Tank. [9] Thus, it was critical and indubitably material for the Respondents to keep contemporaneous record as to the location (exact Storage Tank) in which any batch of fuel was bunkered from any vendor so as to enable the Respondents to have a clear, identifiable, and objective record and S/N yd6uoVy8n0qSSl0ZTycM6A evidence of the exact origin of any fuel batch that was bunkered into any given Storage Tank (either Centre, Port, or Starboard) that was subsequently uplifted to the Day Tank to be burnt for power. This was exactly the objective procedures and contemporaneous records that the Respondents have admitted to NOT HAVE or HAVE NOT PRACTICED when bunkering the fuel supplied by the Appellant at RLYC and when bunkering fuel supplied by two other vendors prior. [10] Not practicing these objective procedures (as admitted and highlighted by the Respondents’ own Expert Witness, Domnic Alexander (“PW2”)) was exceedingly problematic as the Respondents would not have any objective and contemporaneous record as to the true contents of any given Storage Tank at any given time. Thus, the Respondents would not be able to objectively prove via direct and contemporaneous evidence that the fuel supplied by the Appellant was not mixed with any other fuel that was sourced from any other vendor prior (see illustration 1 below): Day Tank For combustion to power the Main Engine & Generator Starboard Storage Tank Unidentifiable % of purity of LYCB fuel (mixed with prior existing fuel?) Centre Storage Tank Unidentifiable % of purity of LYCB fuel (mixed with prior existing fuel?) Port Storage Tank Unidentifiable % of purity of LYCB fuel (mixed with prior existing fuel?) S/N yd6uoVy8n0qSSl0ZTycM6A [11] With the context of the machination of bunkering and uplifting of fuel above, we have prepared Table A below for a swift and easy appreciation of the underlying facts: TABLE A

25.

10.2017 The Vessel was berthed at Langkawi Northern Shipyard for annual maintenance. The Vessel was up slipped and dry docked for 7 months.

21.5.2018 • 2 out of 4 of the Vessel’s tanks were drained and cleaned by Northern Shipyard Sdn Bhd. However, Northern Shipyard Sdn Bhd’s undated letter and invoice DID NOT SPECIFY WHICH 2 OF THE 4 TANKS WERE DRAINED & CLEANED. Thus, there was already no direct, contemporaneous, and objective evidence of the true contents of any given tanks of the Vessel at this early juncture. • Ronan purchased 1000Litres of diesel from Northern Shipyard Sdn Bhd (“NS Diesel”). Again, since there was no proper bunkering procedure in place, Ronan did not have any contemporaneous evidence at the material time of supply as to the specific Storage Tank that the NS Diesel was bunkered into.

22.5.2018 In addition to the NS Diesel, Ronan purchased a further 2,256Litres of Diesel from a Fuel Barge (a barge specialised for supplying or bunkering fuel) operated S/N yd6uoVy8n0qSSl0ZTycM6A by CB Trading Sdn Bhd (“CB Diesel”). Ronan insisted that 2,600Litres of CB Diesel was instead purchased contrary to clear, independent, and contemporaneous invoice issued by CB Trading Sdn Bhd. Similarly, since there was no proper bunkering procedure in place, Ronan did not have any contemporaneous evidence at the material time of supply as to the specific Storage Tank that the CB Diesel was bunkered into.

26.5.2018 Ronan sailed the Vessel for a voyage to Phuket and berthed the Vessel at Yacht Haven Marina in Thailand. The vessel remained berthed in Thailand for 1 month.

27.6.2018 The Vessel left Phuket and was en route to RLYC.

28.6.2018 The Vessel arrived and berthed at RLYC from 28.6.2018 to 4.7.2018.

4.7.2018 • Ronan purchased 1615.85Litres of diesel from the Appellant (“LYCB Diesel”) • Again, since there was no proper bunkering procedure in place, Ronan did not have any contemporaneous evidence at the material time of supply as to the specific Storage Tank that the LYCB Diesel was bunkered into. • Upon bunkering the LYCB Diesel, Ronan testified that the Vessel was carrying a total of 4490Litres of Diesel. Which means that the Vessel was carrying 2,874Litres S/N yd6uoVy8n0qSSl0ZTycM6A (64% pre-existing diesel) and only 1616.85Litres (36% LYCB Diesel). Thus, A LARGE MAJORITY OF FUEL BUNKERED ABOARD THE VESSEL WAS NOT THE APPELLANT-SUPPLIED FUEL. Since Ronan did not undertake proper procedures and records, there was no direct and objective evidence to show the manner in which the variety of fuel sources were bunkered in to any given Storage Tank of the Vessel. • Upon bunkering the numerous varieties of fuel, Ronan sailed the Vessel for the voyage to Male, Maldives.

16.7.2018 • The Vessel arrived in Male; • The Respondents complained that there were incidents of smoke and dramatic engine overspeed which had forced Ronan to repeatedly shut down the Vessel’s engine while en route to Male; • Ronan testified that at least 60Litres of fuel was drained on 13.7.2018 after smoke was observed from the exhaust; • Upon arrival in Male, Ronan testified that a further 950Litres of fuel was also drained by Greenizon Private Limited; • UNACCOUNTED EXCESS FUEL: Ronan testified that apart from the 1010Litres of drained fuel, the voyage from RLYC to Male burnt a total of 4,087.5Litres of S/N yd6uoVy8n0qSSl0ZTycM6A diesel. Thus, by Ronan’s own ‘detailed’ and ‘meticulous’ calculations, The RLYC – Male Voyage HAD EXPENDED A TOTAL OF 5,097.5Litres OF FUEL. Thus, contrasting this final number of expended fuel with Ronan’s testimony of the total fuel storage at RLYC (being 4,490Litres), THERE WAS AN UNEXPLAINED AND UNACCOUNTED EXCESS OF 607.5 Litres OF FUEL (5097.5L expended plus drained fuel – 4490L initial fuel = 607.6L unaccounted fuel) (“Phantom Diesel”) • Despite the inexplicable excess fuel, the total absence of objective record and evidence of the true contents of any given tank on the Vessel, the Respondents alleged that the damage suffered by the Vessel was somehow caused by the LYCB Diesel (that was allegedly contaminated with saltwater).

25.9.2019 The Respondents commenced their action at the High Court against the Appellant.

9.2.2022 After conclusion of Full Trial, the LEARNED HCJ wrongfully allowed the Respondents’ claim against the Appellant. C. THE APPEAL BEFORE US [12] The chronology of facts set out above was already reflective of the Respondents’ shortcomings in attempting to prove their claims against the Appellant. It was an admitted fact that there was no contemporaneous evidence as to the manner and method of which S/N yd6uoVy8n0qSSl0ZTycM6A Ronan separated or ‘isolated’ the LYCB fuel to not be mixed with either the CB Diesel, the NS Diesel, or the Phantom Diesel. Even the Respondents’ own PW2 meted out an expert recommendation for the Respondent to “review their bunkering procedures so as detailed information is available as required in this casualty” in PW2’s expert survey report. Thus, even the Respondents’ own expert witness was in admission and agreement that there were no detailed information as to the manner and placement that the LYCB Diesel was bunkered aboard the Vessel. [13] We have perused the Memorandum of Appeal, the High Court’s Ground of Judgment, the Records of Appeal and the parties’ respective written submissions and we are of the mind that the Appeal before us can be decided by determining the following two (2) issues: a. Issue 1: Whether the Learned HJC had erroneously and wrongfully reversed the rule on the Legal Burden of Proof and wrongfully placed the same against the Appellant to prove ‘an alternative’ as defence; i. Whether the Learned HCJ was correct in his preference of temporal circumstantial evidence; ii. Whether the Learned HCJ was correct in his negative finding of the Appellant’s Evidential Burden to prove its defences; and b. Issue 2: Whether the Learned HCJ was plainly wrong in his judicial appreciation of documentary evidence and viva voce testimonies which eventually led the Learned HCJ to erroneously allow the Respondents’ claim: S/N yd6uoVy8n0qSSl0ZTycM6A i. wrongfully admitting and preferring of opinions over a scientific matter by a non-expert plain witness over opinions of expert witnesses; ii. wrongful preference of self-serving and biased testimony over independent contemporaneous documents and expert testimony; and iii. Failing to identify glaring inconsistencies and self-contradictions as well as unreliability of witness. D. Issue 1: WHETHER THE LEARNED JUDGE HAD ERRONEOUSLY AND WRONGFULLY REVERSED THE RULE ON THE LEGAL BURDEN OF PROOF AND WRONGFULLY PLACED THE SAME AGAINST THE APPELLANT TO PROVE ‘AN ALTERNATIVE’ AS DEFENCE. [14] It was obvious to us that the Learned Judge had misguidedly reversed the trite and settled rule on Legal Burden of Proof (that does not shift) and instead pinned the ‘fate’ of the Respondents’ claim on the capability of the Appellant to prove its defence DESPITE THE RESPONDENTS AS PLAINTIFFS HAVE YET TO DISCHARGE THEIR LEGAL BURDEN OF PROOF. It is bad law and certainly does not lie against a Plaintiff to contend that his claim succeeds without the Plaintiff having to first prove his claim on the pretext that the Defendant had not been able to prove his defence or an alternative probability. It does not make logical, factual, or legalistic sense that a Defendant’s defence can ‘precede’ the Plaintiff’s claim. Yet the following excerpts of the Learned HCJ’s judgment had S/N yd6uoVy8n0qSSl0ZTycM6A fallen into this plain error (despite already having the correct principle of Legal Burden of Proof in mind): “[283] In Dato’ Pardip Kumar Kukreja & Anor v Vell Paari a/l Samy Vellu [2016] 4 MLJ 649 (CA), the court elucidated that the burden of proof is twofold: establishing a case and introducing evidence. The party bearing this burden must do so throughout the trial, satisfying the balance of probabilities standard. Once this party discharges their burden, the evidential burden shifts to the other party. However, if the original burden is not met, the opposing party is not obligated to adduce any evidence. … [285] … there is no direct evidence for the cause of the fuel contamination: How did the saltwater get into the fuel? The issue at hand is whether the court can determine that the damage to the vessel was proximately caused by contaminated fuel supplied by the defendant, despite the absence of direct evidence pinpointing the cause of the fuel contamination. … [303] Moreover, no alternative explanation for the contamination has been credibly presented. The plaintiffs’ assertion that the incident would not have occurred ‘but for’ the fuel uplifted at the RLYC stands strong in the absence of a plausible alternative source of contamination.” [15] It was unfortunate that para 303 of the Learned HCJ’s GOJ had to negate the Learned HCJ’s initial mindedness on the proper rule regarding the non-shifting of Legal Burden of Proof that shall always lie against the Plaintiffs (the Respondents). The entire breadth of this portion of the Learned HCJ’s GOJ (para 280 to para 305) was written under the S/N yd6uoVy8n0qSSl0ZTycM6A Heading of “WHETHER THE PLAINTIFFS HAVE SATISFIED ITS BURDEN OF PROOF ON A BALANCE OF PROBABILITIES”. Thus, the Learned HCJ was not discussing the Appellant’s Evidential Burden of Proof under this Heading. Therefore, when the Learned HCJ determined the issue on the Respondents’ discharge of its Legal Burden of Proof on the pretext of the Appellant’s supposed failure to prove its defence, the Learned HCJ had effectively put the Appellant’s Evidential Burden of Proof to prove its defence BEFORE THE RESPONDENTS DISCHARGE OF ITS LEGAL BURDEN OF PROOF (which was a glaring fundamental error in the law of evidence). [16] The Court of Appeal in recent times had restated the settled rule that a Plaintiff’s non-shifting LEGAL Burden of Proof cannot be simply discharged by relying on the supposed failure of the Defendant to discharge is EVIDENTIAL Burden of Proof to prove his defence (see Federal Court in Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697): [57] The rule is that ‘the onus of proof of any particular fact lies on the party who alleges it, NOT ON HIM WHO DENIES it; et incumbit probation qui decit, nonqui negat, actori incibit probation … The plaintiff is bound in the first instance, to show a prima facie case, and if he leaves it imperfect, the court will not assist him. Hence the maxim Potior est condition defendantis. A plaintiff cannot obviously advantage himself by the weakness of the defence. A PLAINTIFF’S CASE MUST STAND OR FALL UPON THE EVIDENCE ADDUCED BY HIM. (Emphasis added.) S/N yd6uoVy8n0qSSl0ZTycM6A [17] On this error and score alone, there was already a plain error in judicial appreciation of evidence that would warrant our appellate intervention to set aside the Learned HCJ’s decision. Nonetheless, for the sake of completion we shall endeavour to determine the correctness of the Learned HCJ’s negative finding on the Appellant’s defence, and the Learned HCJ’s preference of ‘temporal circumstantial evidence’ in lieu of the Respondents’ failure to keep and tender objective contemporaneous direct evidence. D(i) WHETHER LEARNED HCJ WAS CORRECT IN HIS PREFERENCE OF ‘TEMPORAL CIRCUMSTANTIAL EVIDENCE’ [18] It is well trite and settled that the Court is not an arena of fanciful conjectures, guesses, and baseless supposition. The biggest and most significant commodity in the courtroom is evidence (especially direct and contemporaneous evidence). Especially for matters which are utterly niche and scientific alike the merchantable quality of fossil fuel (diesel here), the law definitely would prefer direct contemporaneous evidence to carefully examine the merchantable quality of the fuel by maintaining a reasonable chain of evidence (chain of custody of evidence). [19] The Learned HCJ was too eager to gloss over the Plaintiffs’ lack of direct evidence as plain ‘unavailability’ of direct evidence. The underlying reason that direct evidence might not be available can be aplenty. The culpability of the absence is also a factor that must be considered before the Court can gloss over the absence of direct evidence and consider other circumstantial evidence. [20] A material direct evidence may be absent because of intentional refusal or concealment to tender evidence or witness (which would attract an S/N yd6uoVy8n0qSSl0ZTycM6A adverse inference). A material direct evidence may also be absent for the unavoidable fact that the direct evidence was destroyed or is no longer in existence. And a material evidence may also be absent due to the Plaintiff’s own folly and failure to keep proper objective contemporaneous records. [21] It was certainly intriguing that the Learned HCJ’s forgiving ‘pivot’ to admit circumstantial evidence was in reliance of the Singaporean case of Gimpex Ltd v Unity Holdings Business Ltd and others and another appeal [2015] 2 SLR 686, CA (“Gimpex”). We have perused through the Singaporean Court of Appeal’s decision in Gimpex and have identified that the true context of which the Singaporean Court of Appeal had ‘overlooked’ the absence of direct evidence was because the court was drawing an adverse inference against the defendant for wilful concealment of a direct evidence. This was exactly the context in which the Learned HCJ had failed to appreciate and ultimately distinguish from the facts of the Appeal before us. The Court in Gimpex dealt with the claim of the supply of coal of unsatisfactory quality. Starkly distinguishable from the Appeal before us, the absence of direct evidence in Gimpex was borne out of INTENTIONAL CONCEALMENT in that the Defendant-supplier intentionally refused to allow the Plaintiff’s joint-inspection over the Defendant’s coal despite an express request was made by the Plaintiff: “[121] Again, for completeness, we ought to mention that the Judge had noted certain circumstances which suggested that the defendants had something to hide in relation to the quality of the coal loaded onto the Vessel. These included her scepticism concerning why the defendants refused Gimpex’s proposal to conduct a joint inspection of the coal, and why Unity (besides S/N yd6uoVy8n0qSSl0ZTycM6A being in breach of the Contract) disallowed SCCI to witness the sampling of the coal. We share the Judge’s concern…” … [170] It is not disputed that Gimpex proposed to the defendants that a joint inspection be conducted on the coal which arrived in Karachi, but the defendants refused. Gimpex submits that this is because the defendants knew that the coal shipped on board the Vessel was grossly off-specifications as a result of the defendants’ fraudulent acts. There was no other reason why the defendants would refuse a joint inspection as that would put to rest all doubts over the quality of the coal, and that SUCH AN INFERENCE SHOULD BE DRAWN BY THE COURT FROM THE DEFENDANTS’ REFUSAL.” (emphasis added) [22] It was obvious that the Learned HCJ had unfortunately read the judgment in Gimpex totally out of its true context. This is further telling considering the fact that over the 9 times that the case of Gimpex was referred to by the LEARNED HCJ, the LEARNED HCJ HAD NEVER REFERRED TO ANY SPECIFIC PARAGRAPH OR EXCERPT OF THE REPORTED JUDGMENT. It was exceedingly clear that the Learned HCJ had confused the true context of the Singaporean decision with his own endeavour to align Gimpex with the case before him (which unfortunately led to a gross misapprehension and misrepresentation of the true context of the case of Gimpex). [23] What the Learned HCJ had misguidedly ‘surmised’ as the Court’s ‘exploration’ into the ‘history’ of circumstantial evidence was instead the Court’s analysis into the suspicious conduct of wilful concealment of evidence before determining whether or not to draw an adverse inference against the Defendant. NOWHERE IN GIMPEX DID THE S/N yd6uoVy8n0qSSl0ZTycM6A SINGAPOREAN COURT OF APPEAL HAD DISCUSSED ON THE WORKINGS OF DIRECT OR CIRCUMSTANTIAL EVIDENCE. [24] In clear and utter contrast, the absence of direct evidence in the Appeal before us here WAS BORNE OUT OF THE PLAINTIFFS’ OWN NEGLECT AND FAULT IN FAILING TO OBSERVE A COHESIVE PROTOCOL OR PROCEDURE WHEN BUNKERING FUEL FROM ANY GIVEN VENDOR. The fact remains that out of the Respondents’ own folly, the Respondents was unable to furnish direct and contemporaneous evidence as to the very location that the LYCB Diesel was bunkered into. And as natural consequence, the Respondents would not have any direct contemporaneous evidence to prove that the LYCB Diesel had remained pure and isolated from being mixed with either the CB Diesel, NS Diesel, and the Phantom Diesel. Thus, out of the Respondents’ own shortcomings the Respondents cannot effectively prove (and discharge their Legal Burden of Proof) to prove that the LYCB Diesel alone was the causa causans of the Vessel’s damage. Here was not a case of deliberate or intentional concealment of evidence by the Appellant-Defendant. Thus, we are of the view that the Learned HCJ should not be too readily ‘forgiving’ to gloss over the irrefutable factum that the Respondents did not have any cogent direct evidence to prove their claim. [25] In any case, even if we were to follow the Learned HCJ’s ‘common sense’ and ‘temporal proximity’ approach in admitting circumstantial evidence, it was clear to us that the Learned HCJ had failed to appreciate and factor in numerous material facts and circumstances that would completely dismantle the Respondents’ narrative in toto. Although the Learned HCJ had identified that there was a time gap between the time that the NS Diesel and CB Diesel was bunkered into the Vessel and the time that the S/N yd6uoVy8n0qSSl0ZTycM6A LYCB Diesel was bunkered, the Learned HCJ failed to firstly appreciate that the reason that there was a time gap where the Vessel was seaworthy without issue after bunkering the NS Diesel and CB Diesel WAS BECAUSE THE VESSEL WAS BERTHED AT YACHT HAVEN MARINA, PHUKET FOR ONE MONTH after the Vessel set off for a ‘sea trial’ from RLYC to Phuket. During which time berthing, both the CB and NS Diesel remained unused. [26] This was further amplified by the fact that (according to Ronan’s own calculations), the total fuel bunkered aboard the Vessel stood at 4490Litres after bunkering the LYCB diesel. Thus, before bunkering the LYCB Diesel, the Vessel was already laden with at least 2,874.15 pre-existing Diesel Fuel (which was a whopping 64% majority compared to LYCB Diesel’s meagre 36%). Thus it was exceedingly obvious that before the voyage to Male, the Vessel had not embarked on any lengthy voyages to materially put the NS and CB Diesel through the wringer. Only after the Vessel embarked on the long voyage from RLYC to Male, Maldives that the Vessel was able to expend enough fuel (5,097.5Litres in total) to appropriately put all of bunkered fuel to the test (only to be obfuscated and obscured by the Respondents’ lacking bunkering and uplifting protocols). Succinctly, the period of time of ‘seaworthiness’ after the supply of the NS and CB Diesel was merely borne out of STAGNATION and was not any indication of merchantable quality of both the NS and CB Diesels. [27] Secondly, the Learned HCJ had failed to appreciate and consider the contemporaneous evidence and documents furnished by the Appellant that other vessels which were bunkered the same batch of LYCB fuel within the same proximity of time had not suffered any of the damages suffered by the Respondents (namely the vessels known as Manta Blu S/N yd6uoVy8n0qSSl0ZTycM6A and Gadis Pulao). Starkly different from the Respondents, the Appellant was able to furnish actual contemporaneous documents and independent viva voce witnesses to prove the merchantable quality of the LYCB Diesel. These were direct and tangible evidence of the merchantable quality of the LYCB Diesel of the same batch that was also bunkered aboard the Vessel (and yet the Learned HCJ unfortunately opted to ignore the same, and preferred Ronan’s biased and self-serving non-expert opinions and baseless recollections). [28] Thus, it was exceedingly clear to us that the Learned HCJ had certainly erred in his preference of ‘temporal circumstantial evidence’ in improperly glossing over the fact that the Respondents had no direct evidence to prove their claims against the Appellant. D(ii) Whether the Learned HCJ was correct in his negative finding of the Appellant’s Evidential Burden to prove its defences [29] Apart from the Learned HCJ’s plain error in determining the Respondents’ Legal Burden of Proof, we are beckoned to scrutinize the Learned HCJ’s address and analysis into the Appellant’s defence. We are of the mind that even assuming that the Evidential Burden of Proof had shifted onto the Appellant (which it had in fact NOT) the Appellant had indeed succeeded in discharging its Evidential Burden of Proof by rebutting the Respondents’ claims. It need be understood that a Defendant’s evidential burden of proof to prove a defence entails the burden to tender evidence to REBUT the Plaintiff’s claim. Thus, it should suffice for the Appellant to cross-examine to impugn the probability of (and ultimately dismantle) the Respondents’ so-called ‘circumstantial evidence’ and self-serving ‘recollections’ (apart from tendering the Defendant’s own evidence to prove an alternative causa causans). S/N yd6uoVy8n0qSSl0ZTycM6A [30] So what matter of impugnment and disputation that the Appellant was able to prove to discredit and rebut the Respondents’ claims? Upon our scrutiny into the documentary evidence and witness testimony tendered in this Appeal we find that the Appellant had successfully rebutted the Respondents’ claims by proving the following: a. The Appellant had successfully proven that the Appellant had no tangible and cogent contemporaneous evidence to prove that the LYCB Diesel was the causa causans of the Vessel’s damage. The Appellant was able to prove that the Respondents’ own expert witness was of the mind that the bunkering procedure and protocol practiced by the Respondents was sorely lacking and would deprive parties of critical information and records in instances of casualties; b. The Appellant had successfully proven that the Respondent had no tangible and cogent contemporaneous evidence to prove that the LYCB Diesel was not mixed with either the CB, NS, or Phantom Diesel; c. The Appellant had successfully proven that alternatively, there is an equally compelling and reasonable probability that the causa causans of the Vessel’s damage was either the CN, NS, or Phantom Diesel; d. The Appellant had successfully proven that the Respondents were unable to reasonably prove the specific Storage Tank in which the LYCB Fuel was bunkered into; S/N yd6uoVy8n0qSSl0ZTycM6A e. The Appellant had successfully proven that the Respondents were unable to explain their own calculations and account of the source of the excess Phantom Diesel that could also reasonably be the causa causans of the Vessel’s damage; f. The Appellant had successfully proven with contemporaneous evidence and independent viva voce witnesses that the same batch of LYCB Diesel had been supplied to Manta Blu and Gadis Pulao within the same time proximity without issue or complaints; and g. The Appellant had successfully proven that (during cross-examination) Ronan had outright admitted that his undated statement was NOT CONTEMPORANEOUS and was NOT AN OBJECTIVE RECOLLECTION and instead was a ‘backwards recollection’ with biased intention of retrofitting the Respondents’ end (Respondents’ afterthoughts) to the means (material time of bunkering): "OHM So Mr Harvey, you would agree with me that your report here or rather your statement at page 135 to 139 is not a contemporaneous record of what occurred? Ronan None of this was written down at the time. Everything you are seeing here was done significantly after the event …" … OHM You’re working backwards? Ronan I'm, yes, I'm sort of reversing that out to see how everything panned out and producing a small spreadsheet S/N yd6uoVy8n0qSSl0ZTycM6A to show fuel loading, fuel utilisation and to produce some averages and some errors ... " [31] Since the Appellant was able to discharge its Evidential Burden of Proof to prove its defence, the Evidential Burden of Proof appropriately shifts back to the Respondents to disprove the Appellant’s defences. Of which the Respondents have entirely failed to discharge: a. The Respondents have failed to effectively answer the proven defence that the bunkering procedure and protocol practiced by the Respondent was sorely lacking and would deprive parties of critical information and records in instances of casualties: b. The Respondents had failed to effectively dispel the proven defence that the Appellant had no tangible and cogent contemporaneous evidence to prove that the LYCB Diesel was not mixed with either the CB, NS, or Phantom Diesel; c. The Respondents had failed to effectively dispel the proven defence that alternatively, there is an equally compelling and reasonable probability that the causa causans of the Vessel’s damage was either the CN, NS, or Phantom Diesel; S/N yd6uoVy8n0qSSl0ZTycM6A d. The Respondents had failed to effectively dispel the proven defence that the Respondents were unable to reasonably prove the specific Storage Tank in which the LYCB Fuel was bunkered into; e. The Respondents had failed to effectively dispel the proven defence that the Respondents were unable to explain their own calculations and account of the source of the excess Phantom Diesel that could also reasonably the causa causans of the Vessel’s damage; f. The Respondents had successfully failed to effectively dispel the proven defence that the same batch of LYCB Diesel had been supplied to Manta Blu and Gadis Pulao within the same time proximity without issue or complaints; and g. The Respondents had failed to effectively dispel the proven defence that (during cross-examination) Ronan had outright admitted that his undated statement was NOT CONTEMPORANEOUS and was NOT AN OBJECTIVE RECOLLECTION and instead was a ‘backwards recollection’ with biased intention of retrofitting the Respondents’ end (Respondents’ afterthoughts) to the means (material time of bunkering). [32] The above considered, the Learned HCJ was not only in error in the aspect of the Respondents’ Legal Burden of Proof, the Learned HCJ was also in glaring error in appreciating the plethora of contemporaneous evidence in which the Appellant had furnished in successfully discharging its Evidential Burden of Proof to prove its defences. Thus, the Learned HCJ had certainly fallen into error in his negative finding of the Appellant’s Evidential Burden to prove its defences. S/N yd6uoVy8n0qSSl0ZTycM6A [33] We are certainly aware of the three fuel tests that were carried out by Ronan’s instruction at varying remoteness of time after the alleged incident of Vessel damage. However, as a general finding, we find that the Learned HCJ was in error to put any weight as to any of the three fuel tests simply for the fact that the initial hurdles of proving i) the isolation or separation of the LYCB Diesel from the NS, CB, and Phantom Diesel, and ii) the exact location (Storage Tank) that either the NS, CB, Phantom, or even the LYCB Diesel were bunkered into. Thus, any measure of testing would be for naught as it cannot be identified with reasonable accuracy and certainty that the samples taken for any of the three tests were indeed purely the LYCB Diesel. And the Respondents were also acutely aware of the criticality of proving the location and separation of the LYCB Diesel. The fact that the Respondents were vehemently attempting to prove emptied tanks (before bunkering fuel at RLYC) was already a clear admission that the isolation and separation of the fuel was a vastly material and critical element to prove the Respondents’ claims. [34] However, as narrated in the background facts above, the undated letter and invoice by Northern Shipyard Sdn Bhd were severely lacking any specificity as to the 2 out of the 4 Storage Tanks that were drained and cleaned while the Vessel was dry-docked at the Langkawi Northern Shipyard. Even assuming that the Respondents were able to prove that all 3 Storage Tanks and Day Tank were completely drained and cleaned, the Respondents still falls entirely short of proving their claims simply for the fact that the Respondents could not appropriately prove the location (specific Storage Tank) that was bunkered with the NS and CB Fuel subsequent to the cleaning. Therefore, the Respondents ultimately could not reasonably dispel the probability that the LYCB Fuel may have been S/N yd6uoVy8n0qSSl0ZTycM6A mixed with the NS and CB Fuel when it was bunkered aboard the Vessel at RLYC. Thus, even if it were true that the sample taken by Ronan was from the Starboard Tank (or any Storage Tank for that matter), the Respondents cannot prove with reasonable degree of probability that the sample taken was purely LYCB Diesel. [35] Furthermore, the manner and surrounding facts in which the Fuel Tests were undertaken were also dubious and far too distant from the material times of the case. For instance, Fuel Test Report No. 1 (“FTR 1”) severely lacked any specificity as to the source of the fuel sample. Aside from the baseless and non-corroborated insistence of Ronan, there was no other cogent evidence to prove that the fuel sample was even taken from the Vessel. In fact, there was a serious contradiction between Ronan’s testimony and Lisa Powell’s testimony (PW8) regarding the manner in which the sample had ‘travelled’ to the United Kingdom to later be submitted for testing by ITS Testing Services Ltd (“Intertek”). On one hand, PW8 (who was Ronan’s personal assistant) testified that the impugned fuel sample was carried in Ronan’s luggage when he flew back to the United Kingdom and was later picked up and received by Intertek on 30.7.2018 by courier. On the other hand, Ronan testified a timeline in which RONAN WAS STILL IN MALE, MALDIVES AT THE TIME INTERTEK SUPPOSEDLY HAD RECEIVED THE IMPUGNED SAMPLE. This was not at all an ‘unfortunate inaccuracy’ simpliciter. This puts the entire FTR 1 to question and even puts the entire credibility of the Respondents’ witnesses into serious suspicion. S/N yd6uoVy8n0qSSl0ZTycM6A [36] The Fuel Test Report No. 2 (“FTR 2”) was even more intriguing. The Senior Chemist, one Nurmaudin (“PW3”) had testified during cross-examination that FTR 2 consisted of two separate sample testing. One being the sample allegedly taken from the Day Tank, and two being samples taken from the Vessel’s remainder Storage Tanks. The FTR 2 showed (and PW3 himself confirmed and admitted) that the fuel in all of the Storage Tanks WERE NOT CONTAMINATED WITH SALTWATER. Only the Day Tank’s sample was found to contain a high level of SODIUM: [37] Thus, it was in the RESPONDENTS’ OWN EVIDENCE THAT ALL OF DIESEL BUNKERED INTO STORAGE TANKS (ESPECIALLY THE LYCB DIESEL) WERE NOT CONTAMINATED WITH SALTWATER. The fact that a high trace of sodium was found in the Day Tank was more probable than not indicative of the probability of saltwater ingress from the Main Engine or Generator AFTER FUEL WAS UPLIFTED FROM THE STORAGE TANKS INTO THE DAY TANK. [38] Fuel Test No. 3 (“FTR 3”) was also not without its own controversy. Similar to the improper chain of custody of the sample in FTR 1, FTR 3’s chain of custody of the ‘sample’ was even more incredulous. Firstly, the sample in FTR 3 was taken a whopping two years after the alleged S/N yd6uoVy8n0qSSl0ZTycM6A Vessel damage while the Vessel was already berthed at another shipyard known as Boustead Langkawi Shipyard in the care and possession of one Lans-Leo (and not Ronan). Ronan was not the person who handled the sample in FTR 3. Only Lans-Leo could testify the manner and method in which the samples in FTR 3 was taken, however, the Respondents had inexplicably failed or refused to call Lans-Leo as a witness. Thus, the sample in FTR 3 was not only far too distant and remote in time and location, it was also shrouded in uncertainty as to the chain of custody and source of the sample. [39] There was a severe break in the chain of evidence (and custody of evidence) as the manner in which the impugned fuel samples were handled was severely non-cohesive and acutely questionable. In fact, FTR 2 stood to support the Appellant’s case instead in proving that the diesel bunkered into the Vessel’s Storage Tanks were not contaminated. [40] Considering the aforementioned deliberation under this Heading, we hereby answer issue 1 in the POSITIVE. The Learned HCJ indeed had erroneously misapprehended and wrongfully reversed the rule on the Legal Burden of Proof and wrongfully placed the same against the Appellant to prove ‘an alternative’ as defence. The learned HCJ had also erred in failing to find that the Appellant had exceedingly succeeded to discharge its Evidential Burden of Proof to prove its defences. E. Issue 2: WHETHER THE LEARNED HCJ WAS PLAINLY WRONG IN HIS JUDICIAL APPRECIATION OF DOCUMENTARY EVIDENCE AND VIVA VOCE TESTIMONIES WHICH EVENTUALLY LED THE LEARNED HCJ TO ERRONEOUSLY ALLOW THE RESPONDENTS’ CLAIMS S/N yd6uoVy8n0qSSl0ZTycM6A E(i) Wrongfully admitting and preferring of opinions over a scientific matter by a non-expert plain witness over opinions of expert witnesses [41] It is well settled law that only properly tendered or qualified Expert Witnesses can assist the Court with testimony in the form and nature of opinions on matters which are of scientific or niche nature. This rule had long been codified within Order 40A of the Rules of Court 2012 (“ROC 2012”). Now, an “expert” under the provision does not solely refer to the laurels, qualifications, certifications, and expertise that any given person possesses. An expert is such person who was appropriately tendered by parties in adherence of distinct MANDATORY PROCEDURES laid down under the same provision (especially the mandatory filing of the Expert Report via a sworn Affidavit as per Order 40A rule 3 of the ROC 2012). It was outright irrefutable and even admitted that Ronan was NOT TENDERED AS AN EXPERT WITNESS by the Respondents. Ronan did not prepare an expert report. Ronan merely relied upon a self-serving undated statement which he had brazenly admitted to be afterthoughts reverse engineered by ‘working backwards’ through what Ronan subjectively was able to ‘recollect’. [42] With all due respect, the fact that Ronan was an Aircraft Engineer does not automatically qualify Ronan as an Expert Witness to be able to confer opinions to assist the Court. Especially considering the base and rudimentary fact that the scientific matter (involving sea vessels and HYDROdynamics) dealt with in the case was the EXACT OPPOSITE of Ronan’s aircraft engineering expertise (involving aircrafts and AEROdynamics. The fact that the Respondents indeed had tendered their own Expert Witness (aside from Ronan) was an admission that Ronan not tendered as an Expert Witness. Even if Ronan genuinely S/N yd6uoVy8n0qSSl0ZTycM6A was a savant in the machinations of sea vessels, Ronan as a plain witness of fact still cannot confer opinions as an Expert. [43] Intriguingly, in latent realization of this grave error, the Respondents pivoted and attempted to salvage their case by contending that Ronan was somehow testifying as BOTH an expert witness and a witness of fact. This problematic and confusing manner of tendering witnesses had recently been dealt with by the Court of Appeal in the case of Yeoh Tseow Suan v Musa bin Hassan [2026] MLJU 106 whereby the Defendant had attempted to tender one singular witness as both an Expert Witness and simultaneously as a plain witness of fact (without adhering to the mandatory procedures under Order 40A of the ROC 2012). In setting aside the High Court’s decision, the Court of Appeal had decidedly found that the High Court had wrongfully admitted and referred to opinion evidence from a plain witness of fact who was not appropriately tendered as an expert in adherence of all the mandatory procedures under Order 40A of the ROC 2012: “[55] The above excerpt was a self-contradiction of the highest order. In one paragraph the LEARNED HCJ had misdirected herself in that she found that DR KZY was not an expert witness YET ALLOWED THE DEFENDANT TO REGARD AND REFER TO KZY AS AN EXPERT WITNESS. It is an acute misdirection of the law for the LEARNED HCJ to deem DR KZY as an ordinary witness of fact BUT AT THE SAME TIME ALLOW DR KZY TO TESTIFY EVIDENCE OF OPINION AS AN EXPERT WITNESS. The law of evidence since decades past had been unapologetically clear that an ordinary witness of fact can only testify only of factual matters that the plain witness had observed with his senses (of which the witness beliefs to be facts). If the plain witness had not been S/N yd6uoVy8n0qSSl0ZTycM6A tendered into Court in the manners and procedures that makes him or her an Expert Witness, the PLAIN WITNESS HAS NO BUSINESS TO ‘ENLIGHTEN’ THE COURT OF HIS OR HER OPINIONS. A plain witness is not tendered into Court in the manners and procedures which properly establishes the plain witness as an ‘expert’ of which, by law the court can rely on his or her opinion as an expert. And it is in fact wrong of the Court to ask a plain or non-expert witness of his or her opinion on matters. (see REGINA v. DAVIES [1962] 1 WLR 1111): “that while a witness could quite properly state his general impression whether or not the driver of a vehicle had taken drink, describing the facts relied on, he was not … in the expert witness category, and it was improper to ask him his opinion of the driver’s fitness or unfitness to drive, so that the opinion evidence was wrongly admitted.” [56] This fundamental and rudimentary rule was recently restated by the Court of Appeal in the case of Maheswari a/p Eliathamby & Anor v Koperasi Serbaguna Kebangsaan Bhd & Ors [2019] 1 MLJ 440: [25] We wish to reiterate that not just any witness can express his opinion in a court of law. Witnesses of facts testify only on what he has observed with his senses and relate the evidence to the court during trial. It is left to the trial judge to then make the proper inferences from the evidence adduced in making the findings of facts. This is BECAUSE IT IS TRITE THAT ONLY OPINIONS OF EXPERTS ARE ADMISSIBLE IN ANY COURT OF LAW. S/N yd6uoVy8n0qSSl0ZTycM6A [26] This Turner’s case was followed in the Singapore case of Chou Kooi Peng & Anor v Public Prosecutor [1998] 3 SLR

See also the case of Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 (FC). In essence what this means is that expert evidence is only admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the presiding judge. Opinions of non-experts are not admissible. In other words, witnesses of facts simpliciter, keep their opinions, whatever they may be, to themselves. [57] We also refer to the very recent decision of the High Court in Public Prosecutor v Voon Kong Yaw [2024] MLJU 3885: “[26] Generally, an ordinary witness is only entitled to give evidence of facts perceived and where the witness’s opinion is offered, THE COURT WILL NOT ACCEPT IT AS EVIDENCE. Referred: R v Davies [1962] 1 WLR 1111. Opinion evidence is generally prohibited as it is unreliable as it may be based on improper grounds or motives, and might even mislead the court, a witness cannot be prosecuted for perjury for expressing an opinion and the reception of an opinion evidence would usurp the function of a judge. Referred: “Law of Evidence - A Commentary by Srimurugan Alagan” at paragraph 45.1, page 186. [27] Unlike an ordinary witness, an expert witness is not only allowed to present evidence of facts but may express an S/N yd6uoVy8n0qSSl0ZTycM6A opinion in so far as the matter under examination relates to the expert witness specialized knowledge and field.” [44] Succinctly, a plain witness cannot be accepted or tendered as Expert Witness vide ‘backdoor’ appointment or even mutual agreement. Thus, a plain witness is limited to testify on matters as to facts. If a party so intend to have a witness testify on both evidence of fact, as well as express opinions as to niche, specialised, or scientific matters the Court requires assistance with, that witness must necessarily be tendered as an Expert Witness via strict adherence as to the procedures laid down under Order 40A of the ROC 2012. And this was exactly what the Respondents had either failed or refused to do in the Appeal before us. [45] The unfortunate fact of the matter was that the Learned HCJ had wrongfully admitted and preferred Ronan’s improper non-expert opinion as to his ‘alternative theory’ of SODIUM contamination upon gradual realization that the Respondents’ initial contention of SALTWATER contamination would not hold any water. This we believe was due to the glaring contradiction via FTR 2 which had revealed that the fuel sampled from the Storage Tanks were not contaminated with water (saltwater). Realizing this fatal flaw, Ronan pivoted to now strenuously contend that the sample in the Day Tank was contaminated by nature of a SODIUM contamination. As an aside (and obiter dicta), we are of the opinion that even this ‘plain witness theory’ was debunked by the Respondents’ own witness PW3 (a Senior Chemist at Intertek (Malaysia) who testified that the sodium (salt content) found in the Day Tank sample was sodium contained within the layer of free water WHICH WAS SEPARATE AND ISOLATED FROM THE DIESEL OIL ITSELF. Thus, even if Ronan had been tendered as an Expert Witness (in which he certainly was not), S/N yd6uoVy8n0qSSl0ZTycM6A Ronan’s theory would have been debunked by Ronan’s own witness and expert in chemistry: [46] We reiterate that even if it was proven that the Diesel itself in the Day Tank was contaminated with a high content of sodium, the presence of sodium SOLELY IN THE DAY TANK does not prove that the LYCB Diesel was contaminated. This is simply for the fact that the same report had found that the Diesel contained in the Storage Tanks were not contaminated. Thus, the contamination would have occurred only after fuel was uplifted from the Vessel’s own Storage Tanks and into the Day Tank for onwards use and combustion. This was immensely solidified considering PW3 as a senior chemist himself had admitted and testified that (glaringly contrastive to the fuel in the Storage Tanks which does NOT HAVE FREE WATER CONTENT) the fuel in the Day Tank contained a whopping 50% free water. A ‘cross contamination’ between the Storage Tanks must necessarily mean that both the Storage S/N yd6uoVy8n0qSSl0ZTycM6A Tanks and the Day Tank would have saltwater or free water content. Thus, since the saltwater or free water was only found in the Day Tank, then THE CONTAMINATION WAS ISOLATED TO THE DAY TANK (WHICH WAS CERTAINLY BEYOND THE APPELLANT’S CONTROL AND WAS CERTAINLY WITHIN THE RESPONDENTS’ (and their agents’) SOLE CONTROL) [47] In any case, it was plainly wrong for the Learned HCJ to have even admitted any of Ronan’s opinion as a plain witness as to such scientific and specialized matter as to the physics and scientific nature and behavior of sea vessel fuel. We accordingly find that the Learned HCJ had fallen into error in wrongfully admitting and preferring of opinions by a non-expert plain witness regarding a scientific matter over opinions of expert witnesses. E(ii) Wrongful preference of self-serving and biased testimony over independent contemporaneous documents and expert testimony [48] We have already endeavoured at long lengths on the Learned HCJ’s unfortunate errors in judicial appreciation of evidence. As mentioned above, the Learned HCJ had wrongfully preferred Ronan’s self-serving, biased, and non-contemporaneous ‘undated statements’ in which Ronan himself had admitted to be an ‘afterthought’ recollected far after the fact. The Learned HCJ had even preferred Ronan’s self-serving ‘opinion evidence’ over contemporaneous documents and witnesses tendered by the Appellant to prove the merchantable quality of the LYCB Diesel. The documentary evidence regarding the bunkering of the same batch of LYCB Diesel was contemporaneous to the time the LYCB Diesel was bunkered aboard Gadis Pulao and Manta Blu (which was in close time proximity with the time the same LYCB Diesel was bunkered aboard the S/N yd6uoVy8n0qSSl0ZTycM6A Vessel). Yet the Learned HCJ still wrongfully preferred Ronan’s biased afterthought fashioned as ‘recollections’. The witnesses representing Gadis Pulao and Manta Blu were entirely independent and stood to gain nothing from the suit while Ronan himself was obviously a wholly interested witness who stood to gain every grain of benefit from the suit’s success. There was no logical reason for the representatives of Gadis Pulao and Manta Blu to fabricate a narrative to support the merchantable quality of the LYCB Diesel. On the contrary, Ronan clearly would have a personal agenda to ensure his own suit to succeed. Suffice that we refer to the salutary words of the Federal Court in the landmark decision in Tengku Dato’ Ibrahim Petra Bin Tengku Indra Petra v Petra Perdana Bhd and another appeal [2018] 2 MLJ 177: “For myself, I would with respect feel somewhat safer 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 writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case. Plausibility should never be mistaken for veracity” [49] The aforementioned considered, we find that the Learned HCJ had wrongfully preferred the Respondents’ self-serving and biased testimony over independent contemporaneous documents and expert testimony of the Appellant. S/N yd6uoVy8n0qSSl0ZTycM6A E(iii) Failing to identify glaring inconsistencies and self-contradictions as well as unreliability of witness [50] It was thoroughly perplexing to us that the Learned HCJ had insisted on preferring Ronan’s non-expert opinion (which should not be admitted in limine) despite the fact that Ronan’s testimony was rife with glaring inconsistencies, self-contradictions, and total departure from independent contemporaneous documents tendered into the Court. Some of the most salient inconsistencies and self-contradictions within Ronan’s testimony (which the Learned HCJ was all too eager to overlook) were as follows: a. Despite possessing the invoice issued by CB Trading Sdn Bhd for the supply of 2,256Litres of Diesel (without any dispute or complaints), Ronan remained insistent to contradict the contemporaneous invoice in insisting that a total of 2,600Litres of Diesel was supplied by CB Trading Sdn Bhd. This was exceedingly perplexing as it defeats all commercial common sense for a vendor to UNDERVALUE the goods the vendor had supplied to a purchaser and ‘voluntarily’ suffer a loss. A conniving vendor would have penned down a higher volume of Diesel to promiscuously reap a higher amount of sale. A fair and honorable vendor would have penned down the exact amount of volume that was mutually agreed to be sold and purchased. But no reasonable man of commerce (be it honest or dishonest) would voluntarily understate his business to willingly suffer a loss. And yet, this was exactly what Ronan was vehemently insisting; b. Ronan was also fickle and ever-evolving in his testimony and ‘recollection’ of the manner in which the CB Diesel was bunkered S/N yd6uoVy8n0qSSl0ZTycM6A aboard the Vessel. In his initial Witness Statement, Ronan stated that 2600Litres of CB Diesel was bunkered into the Port Tank, Centre Tank, and with an estimated of 200Litres into the Starboard Tank. However, in Ronan’s Supplementary Witness Statement, Roman suddenly contradicted his own initial testimony by stating that 893Litres were uplifted into Starboard Tank. When the Vessel reached Phuket, Ronan’s self-serving undated statement insisted that 780Litres from the Starboard Tank was burnt. THIS ALL CONTRADICTED WITH RONAN’S INITIAL Witness Statement STATING THAT ONLY 200Litres WERE BUNKERED INTO THE STARBOARD TANK. It was obvious that Ronan was constantly morphing his narrative as and when the absurdity of his initial testimony was called out during cross-examination. Rather than embarking on a genuine investigative exercise with a focus for contemporaneity, Ronan was instead weaving a tall tale by working ‘backwards’. Ronan was not concerned of evidence that was close or proximate to the material times. Instead Ronan was intent on ‘retrofitting’ the final numbers so as to justify his ‘ends’ through whatever ‘means’. We can surmise that this inconsistency arose due to Ronan’s vehement insistence that a vast majority of the fuel in the Starboard Tank consisted of the LYCB Diesel (which was later uplifted into the Day Tank allegedly causing the damage). However, it dawned upon Ronan that his downplay of the amount of CB Diesel that was inside the Starboard Tank had led to an absurdity that a mere 200Litres of CB Diesel would not have been enough to make the voyage to Phuket. Thereupon, Ronan scurried to ‘work backwards’ to retrofit the final numbers to salvage his case; c. Ronan was also blowing both hot and cold as to the merchantable quality of the LYCB Diesel. His entire case lies on the fuel supplied S/N yd6uoVy8n0qSSl0ZTycM6A by the Appellant to be contaminated. Ronan testified in his Supplementary Witness Statement that 547Litres of the LYCB Diesel was bunkered into the Port Tank. Yet, when cross-examined, Ronan himself admitted that the 547Litres of LYCB Diesel that was bunkered into the Port Tank was visually good and caused no issues: "Ronan You can't physically sort of blend it even you can take a little of fuel from the centre, a little bit of fuel from the port and fill the day tank just by selecting valves. And we were doing, we were doing that to see and look visually at the quality of what was coming out AND I CAN SAY WITHOUT ANY DOUBT THAT WHAT WE WERE GETTING FROM THE CENTRE AND PORT TANKS WAS FUEL THAT WAS VISUALLY GOOD AND CERTAINLY ADEQUATE for (1 :14:34) use, and that gave us no problems for the balance of the journey." This crucial self-contradiction considered thoroughly dismantled the Respondents’ entire claim of contamination. It was more probable than not that the LYCB Diesel bunkered into the Port Tank would be of the same batch of LYCB Diesel that was also bunkered into the Starboard Tank. Thus, if Ronan was more than ready and willing to admit to the merchantable quality of the same one batch, then it was more probable than not that the entirety of the batch supplied was of the same merchantable quality. This lends more credence and probability to the Appellant’s defence that the issue might have been caused by the other fuel batches that was bunkered onto the vessel’s tanks that was inevitably mixed together with the LYCB Diesel (or saltwater ingress from the Vessel’s own Main Engine or S/N yd6uoVy8n0qSSl0ZTycM6A generator). Hence, it cannot be said with any reasonable degree of probability and certainty that LYCB’s Diesel was solely the causa causans of the Vessel’s damage. d. Against Ronan’s own claim of contamination within the contents of the Starboard Tank, Ronan himself admitted that the fuel from Starboard Tank burnt without incident for 24 hours with at least 6 uplifts. 6 uplifts of Diesel from the Storage Tank to fill up the Day Tank (with the capacity of 90Litres per uplift) would already allegedly account for 540Litres of LYCB Diesel from the Starboard Tank that was utilized without any incident. 540Litres out of the total 1615.85Litres of LYCB Diesel already accounted for 1/3 (33%) of the total amount of LYCB Diesel supplied by the Appellant. Even if we were to assume that the fuel contained within the Starboard Tank was primarily LYCB Diesel (which remains unproven), Ronan’s own calculations had ultimately admitted and acknowledged that at least 1087Litres of LYCB Diesel (540Litres of LYCB Diesel from the Starboard Tank (33%) and 547Litres of LYCB Diesel from the Port Tank (34%)) OR A RESOUNDING MAJORITY OF 67% OF THE TOTAL LYCB DIESEL SUPPLIED WAS OF MERCHANTABLE QUALITY. Thus, the balance of probability even mathematically weighs heavier in favour of the Appellant’s defence; e. For completeness, we reiterate our earlier finding on the Respondents’ inexplicable excess ‘Phantom fuel’ in which Ronan had failed to reconcile his own mathematical calculation as to the total amount of Diesel that was bunkered aboard the Vessel at the RLYC. Nor did Ronan proffer any justifiable explanation as to the source of the Phantom Diesel. Based on Ronan’s ‘detailed’ calculations, the Vessel effectively had burnt through 4087.5Litres S/N yd6uoVy8n0qSSl0ZTycM6A of fuel (while having to drain/dispose 1010Litres of fuel) for the voyage from RLYC to Male. That means Ronan testified that in the voyage from RLYC to Male, the Vessel effectively burnt through and disposed of 5097.5L of fuel. Compare this total amount with Ronan’s own admission that the vessel only had 4490L of fuel after bunkering the LYCB Diesel in RLYC, there was an unexplained excess of a whopping 607.5Litres of fuel that remained unaccounted for by the Respondents. It was by Ronan’s own admission and calculation that Ronan must have had bunkered additional fuel elsewhere during his voyage from RLYC to Male. It was profoundly beguiling that the Learned HCJ merely found that this discrepancy was still within a reasonable margin of error. The unexplained existence of the Phantom Fuel casts an indelible shadow over the entirety of the Respondents’ claim until and unless the Respondents were able to properly account for this excess Phantom Diesel (which they had ultimately failed to explain). The entire ‘mystery’ of the Phantom Diesel was not borne out of the Appellant’s legalistic or evidential acrobatics but instead was borne out of Ronan’s own voluntary sworn evidence tendered into Court. Ronan was not ‘forced’ into this grave error. It should have been obvious to the Learned HCJ that Ronan was neither a reliable nor a credible witness. An error leading to a whopping excess of 38% of the total volume of the LYCB Diesel bunkered from RLYC IS NOT A NEGLIGIBLE MARGIN OF ERROR. It was instead a compelling indicator that the Respondents’ lacking of protocol in accounting the ins and outs of the Vessel’s fuel was so severe that there was a reasonable probability of missing Fuel Uplift/Bunker Logs that were improperly unaccounted for. S/N yd6uoVy8n0qSSl0ZTycM6A [51] In view of all the deliberation under this Heading and sub-headings, we hereby answer issue 2 in the POSITIVE. The learned HCJ was certainly plainly wrong in his flawed judicial appreciation of documentary evidence and viva voce testimonies which eventually led the Learned HCJ to erroneously allow the Respondents’ claims. [52] We believe that the plethora of errors of judicial appreciation of the law and evidence elucidated above certainly proves that the Learned HCJ had been plainly wrong in his decision to allow the Respondents’ claim, which indeed warranted our appellate intervention to set aside the Learned HCJ’s decision. [53] Though we are indeed sympathetic to the Respondents’ misfortune, we must stand firm as the bastion of truth who weighs the case on the proper weightage of evidence and due conformity with curial (procedural) laws in tendering evidence. The Court shall not lend a hand to aid any claims of which the evidence was primarily afterthought ‘recollections’ utterly far after the fact especially when the exact same recollections were riddled with inconsistencies and self-contradictions that either disagrees with contemporaneous documents, or even with the claimant’s own self-serving narrative. F. OUR DECISION [54] All of the above deliberations considered, we find that, that there are merits in the Appellant’s Appeal against the Learned HCJ’s decision to allow the Respondents’ claims Thus, we hereby allow the Appellant’s appeal and accordingly set aside and reverse the Learned HCJ’s decision dated 9.2.2022. S/N yd6uoVy8n0qSSl0ZTycM6A [55] If in case the Appellant had already paid the judgment sum and/or costs (or any portion of the same) under the Order of the High Court (which we now set aside), we accordingly order that such payment(s) be returned or refunded by the Respondents within 14 days of our Judgment here (“Refund sum”). [56] We also order interests of 5% per annum on the Refund sum from the Appellant’s payment of the Refund sum to the Respondents until the date the Respondents fully pay the Refund sum to the Appellant. [57] We also accordingly order that the Respondents to pay costs of RM150,000.00 (here and below) to the Appellant, subject to allocatur. Dated 23rd February 2026 SGD -------------------- (AZIMAH BINTI OMAR) JUDGE FEDERAL COURT For the Appellant - Messrs. Ranjit Singh & Yeoh

Ranjit Singh

Prisilla Chong Mun Mun

Subbiah Thevarayan For the Respondents - Messrs Joseph & Partners

Jeremy M. Joseph

Vinodhini Benjamin Samuel S/N yd6uoVy8n0qSSl0ZTycM6A