SIAH KOK PENG v 1. ) S'ng Lee Kiang (JA-12BNCvC-14-04/2021)

NG CHUN HWA [NO. K/P: 740527-71-5023] 25 [Didakwa sebagai rakan-rakan kongsi di dalam Firma perkongsian WS DEVELOPMENT (NO. BERDAFTAR: JM0769464-U)] …RESPONDEN-RESPONDEN 30 [Dalam Mahkamah Sesyen Di Johor Bahru Dalam Negeri Johor Darul Takzim, Malaysia Guman No: JA-A52NCVC-3-01/2019 35 Antara 40 Siah Kok Peng [Berniaga di atas nama dan gaya sebagai S & S TEGUH PADU ENTERPRISE (No. Berdaftar: JM 0441739-A)] …Plaintif 45 14/03/2023 15:02:45 JA-12BNCvC-14-04/2021 Kand. 59 S/N cRgc5CqmqkCovnaLm4TICg

S’NG LEE KIANG [No. K/P: 761229-01-5654] 5

NG CHUN HWA [No. K/P: 740527-71-5023] [Didakwa sebagai rakan-rakan kongsi di dalam Firma perkongsian WS DEVELOPMENT 10 (No. Berdaftar: JM0769464-U)] …Defendan-Defendan] 15 GROUNDS OF DECISION [1] This was an appeal from the decision of the Sessions Court judge 20 in dismissing the appellant’s claim and allowing the respondents’ counter claim. After hearing counsel, I decided to set aside the decision of the Sessions Court judge due to it being a non speaking judgment and remitted the matter back to the court below to be reheard before a different judge. My reasoning now follows. 25 [2] The facts of this case as can be gleaned from the submissions of the respondents are as follows: “4. Plaintiff’s case.

4.1. Plaintiff’s claim for RM286,972.42, interest and costs on an alleged services rendered in the construction and renovation works at a homestay known as Inap Bayu Damai and foundation works for shop lot at Pengerang Johor. 35 S/N cRgc5CqmqkCovnaLm4TICg Page 3 of 16 MTJB-JA-12BNCVC-14-04/2021/skp/slk/az/s.0323/r78/4305 5. Defendant’s case.

5.1. Defendants appointed the plaintiff for design and built of 36 unit homestay consisting of 3 blocks (A, B & C) and shop lot at the consideration price of RM430,863.50 for homestay inclusive of variation 5 order and the consideration for the shop lot is RM181,665.37 for foundation works.

5.2. The parties herein have agreed that vacant possession of the homestay would be delivered within 5-6 months from October 2016 i.e. in March 10 2017 to April 2017.

5.3. Plaintiff delivered vacant possession on or around March 2017 while the foundation works on the shop lot was ordered to stop at the foundation stage (building foundation).

5.4. At the time of delivery of the shop lot in August 2017, only the building foundation was done.

5.5. The defect liability period given by the plaintiff was 12 months from the 20 date of delivery of vacant possession of 36 units of homestay and stop work order was given to the shop lot as the defendants were doubtful of the plaintiff’s works.

5.6. The defendants discovered massive cracks in the majority of the 36 units 25 and construction problem and the list of defects were given to the plaintiff to rectify the problems within the agreed defect liability period. Among the defects are: a) Massive vertical cracks; 30 b) Leaking from outside the unit into majority of the rooms in which the plaintiff failed to comply with the basic requirements and specifications of constructions; S/N cRgc5CqmqkCovnaLm4TICg Page 4 of 16 c) The no water proofing and caused serious leaking and did not comply to the constructions requirements and specifications; d) Water found in electric socket causing short circuit and life threatening; 5 e) Top beam did not comply to specification and serious crack in several areas in the beam which cause the structure unstable; f) Crack at footway, drainage crack; 10 g) Serious crack at the building foundation, collected water and the foundation are not level properly and concrete works did not comply with standard constructions requirements and specifications.

5.7. Plaintiff made 5 attempts to rectify the defects by plastering the cracked wall causing thickness to the wall and the defendant complained that the repeated plastering has changed the look of the wall due the thickness of the plastering.

5.8. In a meeting in September, 2017 between the plaintiff and the 1st Defendant, the plaintiff admitted that the defects are irreparable and the homestay have to be demolished thus established the facts that the plaintiff is aware that the defects could not be rectified although it was 25 only 2 and 3 month after delivery of vacant possession.

5.9. At all material time, the Plaintiff confirmed it was confined again in the meeting that the homestay should be able to stand for 20 years and this representation was communicated to defendants’ investors.

5.10. The defendants had paid RM240,000.00 for homestay and RM110,000.00 for shop lot and the amount paid was not disputed (RM430,965.50 + RM181,665.37 = RM612,530.87). S/N cRgc5CqmqkCovnaLm4TICg Page 5 of 16 MTJB-JA-12BNCVC-14-04/2021/skp/slk/az/s.0323/r78/4305 5.11. The balance to be paid, if any, would be RM286,972.47.

5.12. The defects continued to exist even though rectification works were done dissatisfied with the Plaintiff’s in an action and the Defendants issued two notices on 6.2.2018 and 8.3.2018.

5.13. Plaintiff denied vide a letter dated 11.6.2018, all the complaint made by the defendants in the said 2 notices.

5.14. The defendants had indicated to the plaintiff that the plaintiff would have 10 to bear the costs to make good all the defects in the sum of RM974,820.01 based in the quotation by TOP Base Method (M) Sdn Bhd.

5.15. Defendants therefore counter-claim for the said amount of 15 RM974,820.01.” [3] It is most unfortunate that the learned Sessions Court judge only produced a four page judgment as to why she dismissed the plaintiff’s claim and allowed the defendants’ counter claim. (See enclosure 16 rekod 20 rayuan tambahan). In my considered view taken under advisement, the judgment is not a speaking or reasoned judgment especially after a full trial. I had no alternative but to set aside her judgment and send the matter back to the Sessions Court for a retrial before a different Sessions Court judge. 25 [4] In the case of ADZHAAR BIN AHMAD & ANOR v PUBLIC PROSECUTOR [1996] 4 MLJ 85 HC, the court held: “On the last ground of appeal, it was submitted by counsel for the 30 appellants that the judgment by the learned sessions judge was not a S/N cRgc5CqmqkCovnaLm4TICg Page 6 of 16 reasoned or speaking judgment. The learned sessions judge had completely failed to evaluate the evidence of the defence. This view was shared by the learned deputy public prosecutor as evident from his reply to learned counsel's submission. As for me, after having painstakingly perused the judgment of the learned sessions judge, I find that I am in 5 entire agreement with learned counsel and the deputy public prosecutor. All that the learned sessions judge had to say before finding the appellants guilty and convicting them was this (see p 226 of the appeal record): 10 “Selepas meneliti semua keterangan, mahkamah memutuskan bahawa pendakwa telah berjaya membuktikan kes tanpa keraguan yang munasabah. Pembela tidak berjaya menimbulkan keraguan terhadap 15 kes pendakwa. Oleh itu mahkamah mendapati kedua-dua orang kena tuduh bersalah atas tuduhan pertama.” 20 With the greatest of respect to the learned sessions judge, I am compelled to say that his judgment is most inadequate and far from being a speaking judgment. He had failed to discuss the evidence and the probabilities arising from the circumstances of the case. He had failed to state the reasons for his findings. At times, he made no finding 25 of facts in respect of the evidence of witnesses. In his judgment, he had failed to indicate that he had in fact applied his mind to the evidence produced.” 30 [5] In BALASINGHAM v PP [1959] MLJ 193 HC, it was held that an appeal is merely a continuation of proceedings by way of rehearing and litigants as well as the appellate court are entitled to know the reasons for S/N cRgc5CqmqkCovnaLm4TICg Page 7 of 16 the finding. The trial court is under a statutory duty under s 308 of the Criminal Procedure Code (FMS Cap 6) to transmit to the appellate court the grounds of decision which convey a reasoned judgment on the facts and the law not merely the conclusion arrived at. The absence of reasons indicates the possibility that such vital consideration as the weight of 5 evidence and the probabilities of the case may not have influenced the mental process of the trial judge in arriving at the ultimate finding. [6] In MOHAMED MOKHTAR v PUBLIC PROSECUTOR [1972] 1 MLJ 122 HC, the learned judge said: 10 “It has been said there are no findings of fact and that the learned president has not given his reasons. It is undoubtedly desirable that the learned magistrates and the learned presidents should when writing their grounds of decision give their findings and the reasons for those findings. 15 It has been suggested that it is mandatory on the part of the learned magistrates and the learned presidents to give such reasons.” [7] It is apropos and apposite to refer to the observation of VK Rajah JA in the Singapore Court of Appeal case of THONG AH FAT v PUBLIC 20 PROSECUTOR [2011] SGCA 65 on the judicial duty to give reasons. It states: “About two centuries ago, Lord Mansfield reportedly gave to a general who had to sit as a judge the following advice: Never give your reasons; 25 for your judgment will probably be right, but your reasons will certainly be wrong: see Lord Campbell, The lives of the Chief Justices of England vol 3 (James Cockroft & Co, 1874) at p 481. Today, such advice even from a jurist as eminent as Lord Mansfield, would be regarded as judicial heresy and inimical to sound judicial practice. Judicial decisions 30 that are bereft of reasoning are, of course, impervious to scrutiny and S/N cRgc5CqmqkCovnaLm4TICg Page 8 of 16 challenge, effectively making judges unaccountable for their decisions. This is plainly unacceptable in any modern society. We note that historically, as the role of juries in fact-finding declined, it has been acknowledged in all mature common law jurisdictions as an elementary principle of fairness that parties are not only to be given a fair opportunity 5 to be heard, but also apprised of how and why a judge has reached his decision.” [8] Although all the above cases are criminal cases, the principle in the cases quoted applies equally to civil trials as well in that the trial court 10 must give cogent reasons as to why it came to its decision. The winning party and more so the losing party as well as the appellate court must be informed via a reasoned judgment why the trial court came to such a conclusion. 15 [9] In TAN KIM LENG & ANOR v. CHONG BOON ENG & ANOR [1974] 1 LNS 167; [1974] 2 MLJ 151, Raja Azlan Shah FJ (as His Royal Highness then was) emphasised the importance of a reasoned judgment as follows: 20 ‘In reaching a conclusion the learned judge had to consider the probabilities and the circumstances of the whole case. It was essentially a case in which there should have been a full record of the reasons which persuaded him to reach the conclusion he did. A mere finding of no negligence against both the respondents and that the accident 25 occurred because of the sudden brake failure on account of some latent defect in the braking system, not supported by reasons, is not a judgment according to law. A judicial determination of a dispute where substantial questions of 30 mixed fact and law arise is satisfactorily reached only if it be supported S/N cRgc5CqmqkCovnaLm4TICg Page 9 of 16 by the most cogent reasons that commend themselves to the learned judge. Recording of reasons in support of a decision of a dispute serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy. 'It is of course true', said Sir Alfred Denning (as he then was), 'that his decision may be correct even though he 5 should give no reason for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reason; and that can only be seen, if the judge himself states his reasons.' see The Road to Justice, page 29. 10 A party to the dispute is ordinarily entitled to know the grounds on which the learned judge has decided against him, and more so, when the judgment is subject to appeal. An appellate court will then have adequate material on which it may determine whether the facts are properly 15 ascertained, the law has been correctly applied and the resultant decision is just.” Is the order to send the matter back to the court below a ‘decision’ 20 [10] In the COURTS OF JUDICATURE ACT 1964 (ACT 91) it is stated: “Section 3 – “decision” means judgment, sentence or order, but does not 25 include any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties;” [11] Ergo my ruling to send the matter back to the Sessions Court for a 30 retrial is not a decision which finally disposes of the rights of the parties. S/N cRgc5CqmqkCovnaLm4TICg Page 10 of 16 [12] The Malaysian Civil Procedure (White Book) 2018 edition states: “ “decision”—The definition must be given its ordinary and natural meaning: Dato’ Seri Anwar bin Ibrahim v PP [2011] 5 AMR 11 at 28, CA, per Abdul Malik Ishak JCA. The definition was applied in an action 5 under s 226(3) of the Companies Act 1965 to determine whether leave of the winding-up court is mandatory (Mechanalysis Sdn Bhd (In Liquidation) v Appraisal Property Management Sdn Bhd [2017] 3 MLRH 98, HC). 10 A decision must have the effect of finally disposing of the rights of the parties: Dato’ Seri Anwar Ibrahim v PP [1999] 1 AMR 846 at 853; [1999] 1 MLJ 321 at 326, CA, per Lamin PCA; Dato’ Seri Anwar bin Ibrahim & Anor v PP [2000] 3 AMR 2899; [2000] 3 MLJ 638, CA; Kee Yeh Maritime Co Ltd v Coastal Shipping Sdn Bhd [2000] 4 AMR 4190, HC; Richard 15 Teoh Poh Keong Sdn Bhd v Shinhan Engineering & Construction Co Ltd [2001] 2 AMR 1782; [2001] 2 MLJ 50, HC; Thong Guan Construction Sdn Bhd v Shencourt Properties Sdn Bhd [2001] 2 AMR 1515, HC; Re Abu Bakar b PC Kuaya; ex parte Navaratnam a/l Sivasamboo [2002] 2 AMR 1293; [2002] 7 MLJ 528, HC; Letchumanan a/l Suppiah v PP (and 20 Another Appeal)[2010] 1 AMR 657; [2009] 5 MLJ 597, FC; PP v Dato’ Seri Anwar bin Ibrahim (and Another Appeal) [2010] 3 AMR 1; [2010] 2 MLJ 353, CA; Dato’ Seri Anwar bin Ibrahim v PP [2010] 4 AMR 292; [2010] 6 MLJ 585, FC; Malaysia British Assurance Berhad v Chung Choi Yoke [2003] 4 AMR 124, HC; EON Bank Berhad (dahulu dikenali 25 sebagai Oriental Bank Berhad yang mana EON Bank Berhad telah mengambilalih hak dan liabiliti Oriental Bank Berhad menurut Perintah bertarikh 5.12.2000) v BH Steel Sdn Bhd (dahulunya dikenali sebagai Vest Hong Enterprise Sdn Bhd) (Guan Seng Steel Sdn Bhd– Intervener) [2005] 2 AMR 335, HC; [2005] 2 MLJ 753, HC; Chong Su 30 Kong & Ors v Sia Hiong Tee & Ors (Messrs Johari & Zalika, third party) [2013] 10 MLJ 317, HC; John Willibrod Concisom a/l Willie Brod v PP [2014] 2 MLJ 284, HC; PP v Dato’ Seri Anwar bin Ibrahim [2014] 4 S/N cRgc5CqmqkCovnaLm4TICg Page 11 of 16 MLJ 495; [2014] 4 MLRA 97, FC; Christopher ak Bandi @ Josay v Tumbung ak Nakis & Anor (Jamil bin Sindi, third party)[2015] 11 MLJ 597, HC; Hong Leong Bank Berhad v PP [2016] 5 AMR 497; [2016] 5 MLJ 450; [2017] 3 MLRA 115, CA; Norhazeni b Ahmad v PP [2017] 1 AMR 555, HC. A “decision” is said to be final if in effect it has determined 5 the principal matter before the court thereby concluding the main dispute. Consequently, it does not require further hearing or decision of the case to be made by the court on the whole of the proceedings (Tetuan J&S Holdings Sdn Bhd v A Karim bin Hasan & Anor [2001] 1 AMR 79 at 91; [2000] 6 MLJ 739 at 747, HC, per VT Singham J). For 10 example, a judgment from a striking-out application (Sitrac Corporation Sdn Bhd v Lim Siew Eng (p) [2002] 3 AMR 3748; [2002] 3 MLJ 315, HC; Samsudin bin Ismail & 4 Ors v Yeoh Oon Theam (sebagai pentadbir harta pesaka Lim Mah Ee @ Baba Mahee, simati) & 3 Ors (and Another Suit) [2003] 6 AMR 201; [2003] 6 MLJ 596, HC; PP v Utrakumaran a/l 15 Samivel [2007] 1 MLJ 529, HC) or a summary judgment application (Alexander John Shek Kwok Bun v WAB Keluarga Realty Sdn Bhd [2002] 1 MLJ 570, HC; Seabance Ge Capital Sdn Bhd v Dynabuilders Sdn Bhd dan satu lagi [2002] 5 MLJ 152, HC; Malaysia British Assurance Berhad v Chung Choi Yoke [2003] 4 AMR 124, 20 HC; MBf Factors Sdn Bhd v Keh Hua t/a Jag Trading [2004] 4 AMR 22, HC; Ahmad Hashim v Tetuan Johari, Nasri & Tan [2013] 2 MLRA 14, CA) or judicial review application (Ringgit Exoticka Sdn Bhd v Pengarah Tanah & Galian Selangor & Ors [2014] 8 MLJ 111, HC) or a decision on the reduction of a charge (PP v Tang Kheng Teong & Anor [1997] 3 MLJ 25 637, CA) or where the judge recuses himself on his own motion without giving the parties an opportunity to address him (Wong Kie Chie & Ors v Kathryn Ma Wait Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals[2017] 3 MLJ 350, CA) is a “decision” which is appealable. 30 It is clear from the definition that it has the intention of excluding decisions in interlocutory appeals made in a pending suit. Examples would be a decision from a bail application (Dato’ Seri Anwar Ibrahim v S/N cRgc5CqmqkCovnaLm4TICg Page 12 of 16 PP [1999] 1 AMR 846, CA) or from a preliminary objection depending on the facts of the case (Tetuan J & S Holdings Sdn Bhd v A Karim bin Hasan & Anor [2001] 1 AMR 79, HC; Haris Fathillah Mohd Ibrahim v PP [2016] 3 MLRA 433, CA; c.f. Perak Hanjoong Simen Sdn Bhd v Perindustrian Tenaga Mix Sdn Bhd [2009] 3 AMR 270; [2008] 8 MLJ 5 567, HC) or from a ruling of the court (Takang Timber Sdn Bhd v Syarikat Tingan Lumber Sdn Bhd [2001] 4 AMR 4974, HC; Teo Kim Huatt v Aetna Universal Insurance Berhad (No 1) [2002] 2 AMR 2242, HC; Drilltech Oilfield Services Ltd & Anor v Witech Sdn Bhd [2003] 6 MLJ 650, HC; Dato’ Seri Anwar Ibrahim v PP [2011] 4 AMR 201, CA; Santeran a/l 10 Arumugam & Anor v PP [2015] 3 AMR 600, HC; PP v Datuk Hj Wasli bin Mohd Said [2015] 3 MLJ 35; [2014] 3 MLRA 487, CA; PP v Jarau Anak Kerukar & Ors [2015] 4 MLRA 88, CA; Tiong Kiong Choon v PP (and 2 Other Appeals) [2016] 4 AMR 858; [2016] 5 MLJ 233, CA; Pentadbir Tanah Kuala Selangor v Maybank Islamic Berhad; Menteri Besar 15 Selangor (Pemerbadanan) (Pencelah) & Lain-Lain Rayuan [2016] 1 MLRA 163, CA) or from that of an Election Judge (Yong Teck Lee v Harris Mohd Salleh & Anor) [2002] 3 AMR 2752 at 2768, CA, per Abdul Hamid Mohamad JCA; Datuk Seri Tiong King Sing v Datuk Seri Ong Tee Keat & Anor [2014] 6 AMR 179; [2015] 1 MLJ 847, CA, where Azahar 20 Mohamed JCA followed the decision in Syarikat Tingan Lumber Sdn Bhd v Takang Timber Sdn Bhd [2003] 3 AMR 13; [2003] 2 MLJ 495, CA; Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v PP [2015] 1 AMR 105; [2014] 6 MLJ 831; [2014] 6 MLRA 269, FC) or a ruling of the trial judge in refusing to recuse himself from hearing or continuing to hear the 25 trial (Dato’ Seri Anwar bin Ibrahim v PP [2011] 5 MLJ 535, CA) or an order of transmission by a Magistrate under s 41A of the Dangerous Drugs Act 1952 (Act 234) (PP v Punanesvaran a/l Kesavan (and 3 Other Cases) [2007] 5 AMR 702; [2007] 3 MLJ 203, HC) or a finding on prima facie case against a defendant at the end of the prosecution’s case 30 (Saad bin Abas & Anor v PP [1999] 1 MLJ 129, CA; Lim Hung Wang & Ors v PP [2011] 9 MLJ 752, HC; Karpal Singh a/l Ram Singh v PP [2012] 5 MLJ 293; [2012] 4 MLRA 511, FC; PP v Hii Tiong Hsia & Anor [2015] 2 AMR 673, CA) or a discharge order not amounting to an acquittal (PP S/N cRgc5CqmqkCovnaLm4TICg Page 13 of 16 v Tiong King Guan & Anor [2015] 2 AMR 742; [2015] 4 MLJ 235; [2015] 3 MLRA 180, CA) or an extension of time granted by the registrar to a bidder to offer his bid in a public auction (EON Bank Berhad (dahulu dikenali sebagai Oriental Bank Berhad yang mana EON Bank Berhad telah mengambil alih hak dan liabiliti Oriental Bank Berhad menurut 5 Perintah bertarikh 5.12.2000) v BH Steel Sdn Bhd (dahulunya dikenali sebagai Vest Hong Enterprise Sdn Bhd) (Guan Seng Steel Sdn Bhd– Intervener) [2005] 2 AMR 335; [2005] 2 MLJ 753, HC) or issuance of notice under s 61 of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (Act 613) (Azmi bin Osman v PP (and Another 10 Appeal) [2016] 2 AMR 597; [2016] 3 MLJ 98, CA) or a decision on an application to amend the Writ of Summons and Statement of Claim (Christopher ak Bandi @ Josny v Tumbung ak Nakis @ Anor (Jamil bin Sindi, third party) [2016] 4 MLJ 100, CA).” 15 [13] In the case of ASIA PACIFIC HIGHER LEARNING SDN BHD (registered owner and licensee of the higher learning institution Lincoln University College) v MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 2 MLJ 1 the Federal Court, speaking through YAA Azahar Mohamed CJM (as he then was), held as follows: 20 “The right to appeal in civil matters under s 67 of the CJA is subject to the definition of ‘decision’ as found in s 3 of the CJA. Although s 67(1) of the CJA provides that the Court of Appeal has jurisdiction to determine appeals from any ‘judgment’ or ‘order’ of any High Court in civil matters, 25 it is clear from a plain reading of s 3 of the CJA that a ‘decision’, ‘judgment’ or ‘order’ excludes a ruling made in the course of a trial or hearing that does not finally dispose of the rights of the parties. Further, the Federal Court in Kempadang’s case held that it was clear and unambiguous that the definition of ‘decision’ as per s 3 was applicable 30 to civil appeals inasmuch as it applied to criminal appeals. Hence, the uncertainty on whether s 3 applied to civil appeals in the absence of the word ‘decision’ in s 67(1) has been laid to rest in Kempadang’s case S/N cRgc5CqmqkCovnaLm4TICg Page 14 of 16 where the Federal Court held that the principles underlying the application of s 3 in criminal appeals were applicable in civil appeals. The decision is a clear authority to support the proposition that s 67(1) read with s 3 and s 68(1) of the CJA precluded a litigant’s right of appeal against a High Court decision in an amendment application made in the 5 course of trial that does not finally dispose of the rights of parties. Otherwise, it would allow parties in civil matters to circumvent the restrictions imposed by the definition of ‘decision’ in s 3 of the CJA and thereby appeal against every decision of trial court, which would indisputably delay the administration of justice. At the same time it is 10 important to realise that reading s 68 with s 3 of the CJA to limit the jurisdiction of the Court of Appeal to hear and determine civil appeals would accord with the constitutionally entrenched principle that the Court of Appeal’s jurisdiction is intended to be narrowly defined. As such, the reason for reading the additional exclusion to the jurisdiction of the Court 15 of Appeal is within the four corners of the Act in the form of the definitions of ‘decision’, ‘cause’, ‘matter’, ‘action’ and ‘proceeding’ as well as the presence of the words ‘judgment’ and ‘order’ in the definition of ‘decision’ and ss 67-68 of the Act. On the other hand, declining to read s 3 as instilling an additional exclusion of the appellate jurisdiction of the Court 20 of Appeal would offend the rule that permits additional words to be read into statutory provisions to prevent an absurdity from resulting. As such, the decision made by the High Court in the amendment application was not appealable. Since the decision of the High Court in the amendment application was not appealable, the defendants’ appeal against the 25 decision of the High Court was incompetent and not properly brought before the Court of Appeal. Therefore, the Court of Appeal had no jurisdiction to hear and determine the appeal and it committed a jurisdictional error when it heard the appeal.” 30 [14] Therefore, based on the matters discussed and adumbrated above, the first and second respondents’ appeal is misplaced and incompetent as the ruling to send back the matter to the Sessions Court is not a final S/N cRgc5CqmqkCovnaLm4TICg Page 15 of 16 decision which is appealable. The matter was merely sent back to the Sessions Court for it to be reheard on the merits before another Sessions judge due to the fact that the Sessions Court judge failed to give a reasoned and speaking judgment in coming to her decision. 5 [15] Ergo cadit quaestio. Dated 14th March, 2023 10 Signed …………………………… (ASLAM B ZAINUDDIN) Judge 15 High Court in Malaya Johor Bahru 20 25 30 35 Note: Grounds of judgment is subject to correction of typographical errors, grammatical mistakes and editorial formatting, if any. 40 S/N cRgc5CqmqkCovnaLm4TICg Page 16 of 16 COUNSEL For the Appellant: James Ding Tse Wen Messrs. C H Tay & Partners 5 Advocates & Solicitors A-2-1 CENTRIO, Pantai Hill Park No. 1 Jln Pantai Murni 59200 Kampung Kerinchi Kuala Lumpur 10 For the Respondent: Nur’aini Bt Mohammed 15 Messrs. Zulkiflee Othman & Co Advocates & Solicitors Room 5D, 5th Floor, Foh Chong Building No. 66 Jln. Ibrahim 80000 Johor Bahru 20 S/N cRgc5CqmqkCovnaLm4TICg