Tan Hun Eng v Muhammad Syafiq Bin MD Jamil (11B-71-11/2015)

This is an appeal against the trial judgment of the magistrate dated 13 November 2015 (“Judgment”) dismissing the claim that arose from the collision between two motorcycles.

The Appellant is an individual and the plaintiff in the Georgetown Magistrates’ Court suit no. A73KJ-1182-12/2014 (“Suit”).

The Respondent is also an individual and the defendant in the Suit.

In the Suit, the Appellant who was the pillion rider on motorcycle bearing registration no. PBT 5891 suffered personal injury after another motorcycle allegedly bearing registration no. PGG 384 collided on to him. The accident took place on 12 February 2014 at around 12 noon on Lebuh Carnavon, Penang. The motorcycle bearing registration no. PBT 5891 was ridden by Teoh Lean Kee at the time. 3

After the trial of the Suit, the learned Magistrate dismissed the Appellant’s claim with costs. The Appellant was dissatisfied with her decision and has on 19 November 2015 appealed to the High Court.

The appeal came before me on 22 May 2017. After having read the written submissions filed by the parties, I ordered the re-trial of the Suit before another Magistrate with costs of the appeal be costs in the cause of the re-trial.

The Respondent is dissatisfied with my decision and after having obtained the leave to appeal from the Court of Appeal on 25 January 2018 filed his notice of appeal on 29 January 2018.

Consequently, I now furnish below my grounds of decision.

According to Teoh Lean Kee who made his police report on 12 February 2014, the motorcycle bearing no PGG 384 suddenly came out and collided against the left side of the motorcycle that 4 was ridden by him and the Appellant along Lebuh Carnavon at the material time. As the result, the Appellant fractured his left tibia and was treated in Hospital Pulau Pinang. The Appellant in his statement of claim in the Suit pleaded that: “Pada hari dan masa yang tersebut di atas, Plaintif sedang dalam perjalanan dari arah Lebuh Campbell menuju ke arah Lebuh Chulia melalui Lebuh Carnavon apabila motorsikal yang diboncengnya telah dilanggar oleh Defendan dan/atau penunggang yang diberi kuasa dan/atau ejen dan/atau pengkhidmat kepada Defendan yang pada ketika itu bergerak dalam arah bertentangan dan memasuki laluan Plaintif.” At the trial of the Suit, Teoh Lean Kee testified as follows: “Q: Bagaimana kemalangan? A: Di sebelah kiri Carnavon Street ada kereta parking, motosikal defendan dari atas ke bawah dan hendak masuk antara kereta yang parking, motosikal itu langgar dengan 5 kereta yang parking dan kemudian dia langgar saya dan penumpang. Penumpang dan saya tidak jatuh, hanya kaki plaintif cedera kerana motosikal defendan datang dengan laju.” The Appellant testified as follows: “Q: Macam mana kemalangan? A: Motosikal kami berhenti, motosikal satu lagi kena mereka kemudian kena saya.”

On the other side, the Respondent in his police report dated 14 January 2015 and testimony at the trial of the Suit flatly denied involvement whatsoever in the accident as claimed by the Appellant.

The Appellant contended that the learned Magistrate erred by principally finding that the Appellant failed to prove his case on the 6 balance of probabilities by reason that the version put forth by the Appellant through his testimony and statement of claim as well as Teoh Lean Kee’s testimony and his police report are contradictory.

Of course the Respondent counter-contended that the learned Magistrate was correct in the making of her decision.

I have carefully reviewed the relevant evidence that is available in the Appeal Record. Unlike many other accident cases, the silent evidence here such as the photographs and sketch plan weren’t helpful by reason of the minor nature of the accident. The testimony of the independent investigating inspector wasn’t helpful too.

Nonetheless, there was an accident as a matter of fact in which the Appellant was injured.

The decision as to who is at fault has therefore to be made based on the conflicting account of the accident by the disputant parties particularly their demeanour seen at trial. 7

Upon my review of the testimony of Teoh Lean Kee and the Appellant as well as the statements in Teoh Lean Kee’s police report and the Appellant’s statement of claim, I accept that they are not exactly identical. However more importantly, I do not find them to be contradictory as found and held by the learned Magistrate. Put simply, it is plain to me that they were hit on the left side by an incoming motorcycle travelling in the opposite direction between them and a row of cars parked by the side of the road. I noticed that the learned Magistrate did also not give any weight to the testimony of Teoh Lean Kee that he positively identified motorcycle bearing no. PGG 384 collided onto his motorcycle.

That notwithstanding, I further find that the learned Magistrate halted her analysis after having merely decided that the Appellant’s version of the accident is contradictory without going on to further analyse the veracity of the Respondent’s version at all. It was a bare denial by the Respondent and the learned Magistrate might not have noticed that the Respondent’s police report was only made almost a year after the accident occurred. From my reading of the grounds of judgment of the learned 8 Magistrate, she made no findings on the Respondent’s defence at all particularly whether the Respondent caused the accident.

In my opinion, it is not the function of the appellate court during the appeal to make first instance primary findings of fact that ought to have been made by the trial magistrate. Hamid Sultan JCA held as follows in Elitprop Sdn Bhd v. Yeo Ping Tieng & Ors [2017] 2 MLJ 572 with emphasis added by me: “12] We will now proceed to deal with the appeals on merits. For purpose of allowing the appeal as of right based on the contention of the appellant counsel, the judgment of the High Court must be read together with this judgment to appreciate the problem in hand in the proper perspective (see Yeo Ping Ting lwn Janavista Sdn Bhd [2015] 1 LNS 923; [2015] MLJU 799). [13] We do not think it is proper exercise within our jurisprudence to allow an appeal purely on the grounds that the judgment is not a speaking judgment and one which cannot be classified as grounds of judgments, according to law. The proper thing to do in such cases is 9 to either before hearing the merits of appeal, to set aside the judgment and sent it back to the trial court for rehearing the matter before another judge. Support for the proposition is found in a number of cases. Quite recently, Nallini Pathmanathan JCA in the case of Kamdar Sdn Bhd v. Bipinchandra a/l Balvantrai & Ors [2016] 1 LNS 743; [2016] MLJU 974 with similar issues in great length, had opined: [112] In these circumstances we have no option but to reluctantly remit this case for re-hearing to the High Court. It would not be tenable for this court to undertake the task of making primary findings of fact in respect of the numerous issues that have not been addressed in the current judgment.” Furthermore Abdul Aziz Mohamad JCA (later FCJ) held as follows in the earlier Court of Appeal case of Tan Ah Tong v. Gee Boon Kee & Ors [2006] 2 MLJ 618: “[12] Where, in an appeal in a civil matter, as in this appeal, reasons for the decision appealed against are not available, and not obtainable, the appeal, onerous though this may be, should proceed on an examination and assessment of the 10 evidence to enable the appellate court to decide whether the evidence justifies the decision or otherwise. It will be as if the appellate court is sitting at first instance, except that the evidence is already before it. For reasons that are obvious or can easily be imagined, a new trial is undesirable and ought not to be ordered unless there is something crucial to a just decision in the case that can be established in the new trial but cannot be established on an assessment of the evidence. The evidence being all there already, such a thing must be very rare indeed. One that readily comes to mind is credibility in a situation where there is only the testimony of witnesses to rely on, being non-expert witnesses, and the testimony on the one side appears to be equally cogent as the conflicting testimony on the other side. In such case it may be said that a new trial is necessary so that the new trial judge will, as the appellate court will not, be able to observe the demeanour of the witnesses and credit the version of him whose demeanour is more reassuring. Even so, a correct decision may be frustrated if the opportunity to testify again gives to the witness whose testimony is not true an opportunity to improve his deportment.” 11

In the circumstances and in the interest of justice to both parties, the appropriate remedy in my view is to remit the case back to be re-tried by another magistrate.

It is for the foregoing reasons that I made the order as so ordered. Dated this 8 February 2018 t.t LIM CHONG FONG JUDGE HIGH COURT GEORGETOWN PENANG 12 COUNSEL FOR THE APPELLANT: SYAMSULADZHA BIN HASSAN SOLICITORS FOR THE APPELLANT: HANIFF & PARTNERS COUNSEL FOR THE RESPONDENT: VIDURMALAR A/P SUBRAMANIAM