Technolite Malaysia Sdn Bhd v Alfallah Cleantech (M) Sdn. Bhd. (WA-12BNCC-5-02/2022)

This appeal by the Appellant emanated from the decision of the learned Sessions Court Judge (“LSCJ”) dated 11.2.2022 in allowing the Respondent’s claim against the Appellant with costs after a full trial.

In this judgment, the parties will be referred to as they were in the Sessions Court. In the court below, the Appellant herein was the Defendant, whilst the Respondent was the Plaintiff.

On 3.1.2023, I allowed the Defendant’s appeal with costs. These are the reasons as to why.

The background facts are agreed facts:

4.1 In October 2017, the Plaintiff approached the Defendant to purchase light emitting diodes (“LED”) from the Defendant;

4.2 The purchase of the LED lights by the Plaintiff was for the purpose of installing them on the façade of an office tower in Putrajaya (the “Project”);

4.3 Enquiries were made about a specific LED light, namely the VarioLED Flex Amor 827 SV IP67 lights (“VarioLED”), which the Defendant sells;

4.4 The Defendant provided a copy of the catalogue of the VarioLED to the Plaintiff (“catalogue”);

4.5 It was specified in the catalogue, amongst others, that:

the maximum ambient temperature of the VarioLED is 50°C; and

the VarioLED have high resistance to salt water and is UV resistance.

4.6 On 5.4.2018, the Defendant sent the Plaintiff a quotation for the VarioLED;

4.7 The Plaintiff then placed a purchase order based on the quotation;

4.8 The details of the purchase order are as follows: No. Quotation Date Purchase

Date Price (RM) Purchase Order Number

First quotation 5.4.2018 First Purchase Order 10.4.2018 568,684.70 ACT-PO- 118

4.9 The contract between the Plaintiff and Defendant was formed when the Plaintiff placed the first purchase order based on the first quotation provided by the Defendant;

4.10 The express terms of the contract are as follows:

the Defendant shall supply the Plaintiff the VarioLED;

the Plaintiff shall pay the Defendant for the VarioLED supplied; and

the VarioLED supplied will be according to the description and specifications stated in the catalogue.

4.11 The Plaintiff paid the Defendant for the VarioLED for the first purchase order as follows: Purchase Order Date of payment Amount (RM) Payment method 1. First purchase order: a. First 50% of the total purchase price. b. Second 50% of the total purchase price.

17.4.2018

22.6.2018 284,342.35 269,897.50 Cheque dated 12.4.2018 Cheque dated 21.6.2018

4.12 The VarioLED purchased by the Plaintiff pursuant to the first purchase order was delivered to the Plaintiff on 27.8.2018;

4.13 In August 2018, the Plaintiff began installing the VarioLED it purchased from the Defendant on the façade of the building for the Project;

4.14 Sometime in August 2018, the Plaintiff informed the Defendant that some of the VarioLED could not light up;

4.15 Upon the Plaintiff ’s request, the Defendant sent a second and third quotation;

4.16 The Plaintiff then issued a second and third purchase order based on the two new quotations;

4.17 The details of the two new quotations and the second purchase order and the third purchase order are as follows: No. Quotation Date Purchase Order Date Price (RM) Purchase Order Number 1. Second quotation 18.9.2018 Second purchase order 22.9.2018 64,976.00 ACT-PO- 149 2. Third quotation 7.9.2018 Third purchase order 22.9.2018 12,170.00 ACT-PO- 150

4.18 The contract for the second purchase order and third purchase order was formed when the Plaintiff placed the second purchase order and third purchase order based on the two new quotations provided by the Defendant;

4.19 The details of the payment made by the Plaintiff to the Defendant for the second purchase order and third purchase order are as follows: Purchase Order Date of payment Amount (RM) Payment method 1. Second purchase order and third purchase order 31.10.2018 77,146.00 Cheque dated 26.10.2018

4.20 The VarioLED purchased by the Plaintiff pursuant to the second purchase order and third purchase order were delivered to the Plaintiff on 29.10.2018;

4.21 Installation of the VarioLED on the façade of an office tower for the Project was completed in December 2018;

4.22 In November 2018, the Plaintiff discovered that a large part of the VarioLED installed on the façade of the tower in Putrajaya, for the Project would not light up. So, it informed the Defendant of this;

4.23 Samples of the VarioLED were returned to the Defendant for their inspection. Plaintiff’s case [5] The Plaintiff filed a claim at the Sessions Court on 8.5.2020 based on breach of contract for losses suffered in the sum RM634,845.85 made up of the sum of RM605,017.85 paid to the Defendant for the VarioLED and a further sum of RM 29,828.00 being costs of installation and removal of the VarioLED. In summary, the Plaintiff alleged that:

5.1 The VarioLED lights would be suitable for the Putrajaya Project (the “representation”);

5.2 There is an implied term of contract that the VarioLED supplied would be suitable for the intended purpose;

5.3 The Defendant supplied VarioLED lights that only have the maximum ambient temperature of 45 degree Celsius and not 50 degrees Celsius as stated in the catalogue;

5.4 The VarioLED lights supplied were defective and did not light up. The Plaintiff had to replace the VarioLED lights with Acolyte Static White Series Ribbonlyte 3.0 lights (“Acolyte lights”). These Acolyte lights installed using the aluminium shims worked. [6] The Defendant in its Defence in summary:

6.1 denied that it made any representation regarding the suitability of the VarioLED lights for the Project;

6.2 denied that the VarioLED supplied was not in accordance with description and specification stated in the catalogue;

6.3 further contended that:

6.3.1 the sale of the VarioLed was a sale by description; there is no implied warranty on suitability and fitness for purpose;

6.3.2 the failure of the VarioLED to light up was due to:

excessive force during the mounting of the VarioLED by the usage of small pieces of aluminium shims which caused damage to the inner components and the encapsulation material; and

(ii) the Respondent’s improper or wrong installation method. Decision of The Sessions Court [7] The learned SCJ (“LSCJ”) held that she need only consider one issue whether the Defendant has supplied the lights in accordance with contract – para 14 of her Grounds of Judgment (“SCGOJ”). The LSCJ found that:

7.1 there is an implied term as to fitness for purpose and that the Defendant had breached the same - at [15], SCGOJ;

7.2 in a sale by description, the Defendant has a responsibility to ensure that the lights ordered by the Plaintiff based on description given by the Plaintiff should be delivered according to the catalogue and the representation provided by the Plaintiff and relied on Clariant Masterbatches (M) Sdn Bhd v Prestige Dynamics Industries Sdn Bhd [2019] 3 MLJ 701 - at [20], [21] SCGOJ.

7.3 The Plaintiff ordered lights with a maximum ambient temperature of 50 degree Celsius. SD-2 (Yap) admitted in evidence that the lights supplied and paid for were not according to specification; he further admitted that the Defendant supplied the lights with a maximum ambient temperature of 45 degree Celsius and not as depicted and stated in the catalogues given by the Defendant to the Plaintiff - at [22] SCGOJ;

7.4 There was a representation made by the Defendant and that the Plaintiff had relied on the Representation to purchase the VarioLED; It was the Defendant who first recommended the use of specific VarioLED lights for the Putrajaya Project. So, the VarioLED lights must be suitable for the Putrajaya Project – at [23] SCGOJ;

7.5 The lights supplied being not in accordance with specifications, amounts to a breach of s. 59 of the Sale of Goods Act 1957 (“SOSA 1957’) – at [24] SCGOJ. [8] The LSCJ in rejecting the defence that the VarioLED failed to light up was due to the Plaintiff’s improper or wrong installation method further found that the two reports prepared by the manufacturer - LED Linear and SIRIM adduced by the Defendant to show that the VarioLED lights supplied by Defendant to Plaintiff are not defective and complied with specifications were irrelevant because there was no evidence produced by the Defendant to show that: i. The reports were prepared based on the same samples of VarioLED lights delivered to Plaintiff. ii. The test of the VarioLED lights was carried out at the Putrajaya Project site – at [16], [19] SCGOJ; [9] The LSCJ as such found for the Plaintiff and entered judgment for the Plaintiff. Law on Appellate Intervention [10] In Al Sharhan Sdn Bhd & Anor v Edipro Construction & Engineering 2021] 10 MLJ 585; [2020] 1 LNS 1046, I have discussed the fundamental principles pivotal to be borne in mind by an appellate court in hearing an appeal from a judgment of the trial court: “[7] In hearing this appeal, this Court as an appellate court is reminded that it should be slow to interfere with the findings of fact of a trial judge. Reference is made to China Airlines Ltd-v-Maltra Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and another appeal [1996] 3 CLJ 163 where the Federal Court at page 175 said: It is a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the findings of the court below should be disturbed by a court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusion reached must to a large extent depend on the credibility of the witnesses and the impression formed by a court which has seen them and can judge their honesty and accuracy. [8] In Lee Chee Keong v Fadason Holdings Sdn Bhd [2017] MLJ 728, the Court of Appeal citing the judgment of Nallini Pathmanathan JCA (now FCJ) in MMC Oil & Gas Engineering Sdn Bhd v Tan Boon Kwee & Sons Sdn Bhd [2016] 2 MLJ 428 held that appellate interference is only warranted where no reasonable Judge could have reached the same conclusion of the trial judge: [15] This is a point of some importance because it underscores the rationale that the appellate court is not at liberty to reverse or interfere in the finding of a trial judge even if the appellate court is clearly of the view that it would not have reached the conclusion the trial judge did on the evidence on record before it. It requires something more. The requisite or correct standard to be applied is that no reasonable judge, on the evidence on record, could have reached the conclusion of the trial judge. In other words, so long as the findings of the trial judge are plausible on the evidence on record, there is no room for interference merely on the grounds that the appellate court forms a different opinion on the same evidence. [9] The Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857 at pages 873 to 875 had this to say: [41] Before we leave this subject and move on to the next two questions, we feel a need to remind that a trial judge has the advantage over an appellate court in hearing the witness and observing his demeanour. Thus, unless the trial judge is plainly wrong in his finding, the appellate court should not reverse a finding of fact by the trial judge. This “plainly wrong” test has been long established and can be observed in the Judicial Committee of the Privy Council pronouncement in Chow Yee Wah & Anor v. Choo Ah Pat [1978] 1 LNS 32 where Lord Fraser said: In the face of that finding by the trial judge on the question of fact the Federal Court were only entitled to displace his conclusion if they were satisfied that his view was plainly wrong and that any advantage which he enjoyed by having seen and heard the witness was not sufficient to explain his conclusion, as the authorities already quoted show. [42] Before stating this, Lord Fraser cited two cases in support which we find appropriate to repeat as a reminder to all appellate courts of their role in dealing with a finding of fact by a trial judge. [43] The first is Lord Tankerton in Watt or Thomas v. Thomas [1947] AC 487:

Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself as a judge, an appellate court which is disposed to come to a different conclusion on printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.

The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen or heard the witnesses, and the matter will then become at large for the appellate court. [44] The second is from Viscount Sankey LC in Streatham Manor Nursing Home [1935] AC 36, 36 who said: …it is perfectly true that an appeal is by way of rehearing, but it must not be forgotten that the Court of Appeal does not rehear the witnesses. It only reads the evidence and rehears the counsel. Neither is it reseeing the court. There are different meanings to be attached to the word ‘rehearing’. For example, the rehearing at the Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appearing, the complainant starts again and has to make out his case and call his witnesses. The matter is rather different in the case of an appeal to the Court of Appeal. There the onus is upon the appellant to satisfy the court that his appeal should be allowed. There have been a very large number of cases in which the law on this subject has been canvassed and laid down. There is a difference between the manner in which the Court of Appeal deals with a judgment after trial before a judge alone, the Court of Appeal will not set aside the judgment unless the appellant satisfies the court that the judge was wrong and that his decision ought to have been the other way. Where there has been a conflict of evidence the Court of Appeal will have special regard to the fact that the trial judge saw the witnesses: see Clarke v. Edinburgh Tramways Co: per Lord Shaw, 1919 S.C. (HC) 35,36, where he says: When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observation with regard to creditability or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In the courts of justice in the ordinary case things are much more evenly divided; witness without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in their nuance, of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed pages. What in such circumstances, thus psychologically put, is the duty of the appellate court? In my opinion, the duty of the appellate court in those circumstances is for each judge of it to put himself, as I now do in this case, the question: Am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment. [45] The above principle is reiterated by this Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309. (Emphasis added) [10] The Court of Appeal has also in the case of Sivalingam a/l Periasamy v. Periasamy & Anor [1995] 3 MLJ 395 clearly stated that: It is trite law that this court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. [11] It is also trite that apart from a wrong application of the law, insufficient judicial evaluation of the evidence also justifies appellate intervention - Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19 where the Court of Appeal speaking through Gopal Sri Ram JCA (as he then was), stated the need to assess the evidence and to weigh them and for good reasons accept or reject them accordingly, as follows: - Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judicial appreciation of the evidence. It is, we think appropriate that we say what judicial appreciation of evidence involves. A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. If there are contemporary documents, then he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. A trier of fact who makes findings based purely upon the demeanour of a witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. It does not matter whether the issue for decision is one that arises in a civil or criminal case: the approach to judicial appreciation of evidence is the same. (Emphasis added) [12] The above statement of law on the need to assess, weigh and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before the Court was affirmed by the Federal Court in Gan Yook Chin & Anor v. Lee Ing Chin & Ors (supra) where the Federal Court said: 14 In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial court. Clearly, the phrase ‘insufficient judicial appreciation of evidence’ merely related to such a process. This is reflected in the Court of Appeal’s restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, i.e. that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test.” [11] In Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67; [2020] 1 LNS 1060 FC, Zabariah Mohd Yusof FCJ held at [152] that to justify interference with the trial judge’s findings of fact, the appellate court has to undertake the appropriate review exercise and make the appropriate determination that the trial judge had gone plainly wrong in his decision, in the sense that it could not reasonably be explained or justified and so was one which no reasonable judge could have reached. Decision of this Court [12] I deal with the main grounds of appeal which in my view will resolve the appeal. SIRIM and LED Linear (the Manufacturer)’s reports disregarded [13] SIRIM and LED Linear (interchangeably “the Manufacturer”)’s reports which respectively showed VarioLED operated beyond ambient temp of 50 degree Celsius and the cause of damage were disregarded by the LSCJ in para 19 of the SCGOJ on the ground that they were irrelevant as there is no evidence to show the samples tested by SIRIM or the Manufacturer were the same as those supplied to the Plaintiff. The Plaintiff, in attempting to cling on to this finding, postulated three times in arguing this appeal in its submissions in enc 12, enc. 19, and at enc. 24 that there is no evidence to show the samples tested by SIRIM or the Manufacturer were the same as those supplied to the Plaintiff but these postulations do not resonate with this Court as, the hard reality is, such postulations and the LSCJ’s dismissal of the 2 reports based on this postulations are clearly indefensible, when in fact there is evidence that the samples tested by SIRIM or the Manufacturer were the same as those supplied to the Plaintiff:

In evidence in chief at Q&A 16, SD2 testified that he sent some of the lights that did not light up to the Manufacturer for testing on 5.9.2018. The investigation result was made known as early as 22.11.18;

(ii) SD2’s Witness Statement Q&A 24 where he testified – 2 samples were taken from those VarioLED which the Plaintiff purchased and were sent to SIRIM; and

(iii) SD2 repeated the above again at Q&A 29. [14] In cross-examination, the Plaintiff did not challenge SD2 whether the samples were obtained from the Site but rather was on whether all the lights were given to the Manufacturer: Notes of Proceedings 17.11.2021, page 287 Record of Appeal Bahagian B Jilid 2 “CAR: Ok, you only gave a sample, the sample and not all the lights, correct? The sample of which, the product? CAR: Yes, the sample of the product, the VarioLED Lights. The sample was retrieved from the site. CAR: Correct, but only a sample was given, not all the lights, correct? Yes, a sample was given them.” [15] Thus, SD2 Yap’s unchallenged evidence that samples of the lights which purportedly failed were given to the Manufacturer and SIRIM ought to be accepted - see Soon Peng Yam & Anor v. Bank of Tokyo - Mitsubishi (Malaysia) Bhd [2004] 1 CLJ 532 and Ayoromi Helen v. PP [2005] 1 CLJ 1, where in the latter case, the Court of Appeal held that “Failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’s testimony.” It should not matter that SD1 who was handed the lights by SD2 did not go physically to the site to retrieve samples for testing. [16] Insufficient judicial appreciation of the evidence undermined the integrity of the decision-making process and justifies appellate intervention. The case of Gabungan Sumber Tenaga Sdn Bhd v Alliance General Insurance Company (Malaysia) Bhd [2022] MLJU 11, cited by the Plaintiff, decided by me and affirmed by the Court of Appeal, is to be distinguished as there, the evidence led, show that the battery produced to the alleged expert came from a third party. Here, SIRIM in fact did the endurance and thermal test pg. 507 to 521 jilid 2A of Appeal Record on actual sample taken from those which the Plaintiff purchased which in fact revealed the VarioLED can withstand maximum ambient temperature of 55 degree Celsius. [17] The Plaintiff pressed the argument that the testing of the VarioLed was not carried out by LED Linear and SIRIM at the Putrajaya project site, under actual conditions, which found favour with the LSCJ. But such assertion when weighed against the Plaintiff’s own failure to conduct any third party and/or independent testing to counter the reports from LED Linear and SIRIM, OR show that the non-testing on site will have an effect or bearing on the outcome of the 2 reports, there is plainly no scientific or other sound basis for the Plaintiff to suggest VarioLED lights must be tested at the project site. This argument also does not assist the Plaintiff’s case for reasons as follows:

The Plaintiff did not challenge the procedure in conducting the SIRIM test found in SD-1 Mohd Azmeer bin Ahmad’s witness statement Q&A 14 – 25;

(ii) SP-1 admitted that the damage was due to the insertion of aluminium shims and that the Plaintiff did not challenge the Manufacturer’s reports which must be reiterated, was given to the Plaintiff as long ago in November 2018;

(iii) The Plaintiff further, did not challenge the SIRIM report until trial. [18] These 2 reports ought to prevail in that the SIRIM report reveals that the difference in label and catalogue matters not, and LED Linear’s report show the cause of damage. LED Linear’s report found excessive force were used to mount the lights by using aluminium shims that damaged the components and encapsulation material. The die is cast when the Plaintiff did not challenge these reports. But both reports were not considered by the LSCJ due to her insufficient appreciation of the evidence as a basis for rejecting the 2 reports. More so, the reports are to be considered due to the technical nature of the complaint whether the maximum ambient temperature was met to assist the LSCJ in coming to a decision (see Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 FC). Although fully aware of the Defendant’s 2 reports, the Plaintiff did not produce their own in rebuttal. Whilst it is true that it is permissible in law for the Plaintiff to rebut the Defendant’s case by cross-examining the latter’s witnesses including the Defendant’s expert witness - Keruntum Sdn Bhd v The Director of Forests & Ors [2017] 3 MLJ 281; [2017] 4 CLJ 676 at [78], however, here, the Plaintiff was not able to prove that the Defendant supplied VarioLED lights that only have the maximum ambient temperature of 45 degree Celsius and not 50 degrees Celsius as stated in the catalogue. In this regard, SD1 from SIRIM who conducted the maximum ambient temperature tests, even IF as alleged by the Plaintiff that he cannot be characterized as an expert under s. 45 of the Evidence Act 1950, yet as a witness of fact, his evidence must carry significant weight for the simple reason that he has no interest in the outcome of the case, clearly has no motive to give any biased evidence and the court should treat him as an independent witness of truth with nothing to gain. His evidence is therefore entitled to great respect particularly when the Plaintiff did not adduce expert evidence of its own or any independent evidence to prove its case that the Defendant did not supply VarioLED according to a maximum ambient temperature of 50 degree Celsius or that the VarioLED supplied were defective. The approach of the Plaintiff and the LSCJ was with respect, clearly oversimplistic in attaching much weight to the label of 45 degree Celsius rather than to substance. [19] The question is what exactly had the parties bargained for in the contract and what did the Defendant supply? With utmost respect, the evidence when weighed properly, underscores substance over label. The particular complaint is that the VarioLED is supposed to meet but alleged to have failed to meet is a maximum ambient temperature of 50 degree Celsius. The Plaintiff as proof that the Defendant is in breach, tendered a photograph taken of the label on the VarioLED lights supplied by the Defendant (at page 443 of the record of appeal, part C, volume 2-A). The label of the VarioLED supplied says “suitable in ambient not exceeding 45 degree Celsius”. It was contended by the Plaintiff that SD2 had admitted that the VarioLED lights supplied only have the maximum ambient temperature of 45 degree Celsius but a close examination of the Notes of Proceedings from lines 23-37 at page 271 of the record of appeal, part B clearly stated SD2 only agreed “Label, Yes” at line 36. [20] In my utmost respectful view, the label is inconsequential, and at best of little legal significance unless there is direct evidence adduced by the Plaintiff that the VarioLED supplied was only of 45 degree Celsius. Here in the instant case, there is no such admissible evidence adduced and by failing to do so, the Plaintiff had failed to discharge its ‘burden of proof’ under ss 101 and 102 of the Evidence Act. Consequently the ‘onus of proof’ did not shift to the Defendant to dislodge the assertions made by the Plaintiff as the claimant. There is simply no reason not to look behind the label to the substance. In the sage words of Gopal Sri Ram JCA (as he then was) in the very first sentence of the judgment in Ang Beng Teik v Pan Global Textile Bhd, Penang [1996] 3 MLJ 137, His Lordship stated: “The law is filled with cases where a miscarriage of justice has occurred because regard is had to labels and not substance.” [21] Similarly, Mohamed Dzaiddin SCJ in Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405 SC, at p 410 said: “…The law will always look beyond the terminology of the document to the actual facts of the situation and it is no longer a question of words but substance (see Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131 and Addiscombe Garden Estates Ltd v Crabbe [1958] 1 QB 513; [1957] 3 All ER 563; [1957] 3 WLR 980).” [22] Even assuming for one moment “the label” which says the VarioLED is of maximum ambient temperature of 45 degree Celsius is sufficient evidence, in fact the Plaintiff received VarioLED lights of maximum ambient temperature of 55 degree Celsius as stated by SIRIM’s report which showed the VarioLED met and exceeded the max ambient temperature of 50 degree Celsius as stated in the catalogue. In my respectful view, this SIRIM finding puts paid, any suggestion by the Plaintiff that the VarioLED supplied was only 45 degree Celsius. The Defendant as such had proven that the difference in label from what is stated in the catalogue has no significant bearing as the VarioLEDs supplied were capable of meeting and exceeding maximum ambient temperature of 50 degree Celsius – the margin as required by the Plaintiff was in fact met. Wrong Installation? [23] The Defendant led evidence to show the Plaintiff did not install the VarioLED according to its original construction drawings; the VarioLED were inserted into aluminium capping which were too big and a different size from the drawings which says dimension of gap in aluminium capping is 4.8, 4.9 mm with a maximum of 5 mm but was in fact 6 mm and aluminium shims had to be inserted into the gap to hold the VarioLED in place. [24] SP-1 (“Liu”) the only witness called by the Plaintiff admitted that the VarioLED were not installed according to drawing: Notes of Proceedings 16.11.2021, page 184 – 189 Record of Appeal Bahagian B Jilid 2 “NCY Could you tell the Court what document is this? This is a shop drawing of aluminium cap but this is not from us. Sure. When you say shop drawing, what do you mean? It’s a drawing that described the exact dimension of the aluminium capping. Would you agree that from the drawing here, it says that the gap is between 4.8 to 4.9mm, 5mm maximum. Do you agree with that? Yes. So that is the design spec. Would you agree? Yes, but it’s not from us. Very well. I’m not saying it’s from you. I already asked you whether you installed and supplied, you said it’s not from you and it’s not in your scope. I understand. Yes. So the spec says 5mm maximum. Correct? Yes. You agree with my suggestion that when David was there on site, when the Defendant was there on site, he showed you photographs showing the gap was actually more than 5mm? Did not? Page 9 Defendant document. This is the same WhatsApp conversation, Mr Liu, from the same WhatsApp group. Yes. So what we have here is a message from David to the group showing a measurement that the internal gap is 6mm. Would you agree? Yes. You agree you received this as well. Correct? Yes. It’s in the conversation in the group. Correct? This picture was not taken at the site, the actual installation. This picture was taken at a table top. Sure, ok. Would you agree that it was taken showing the aluminium capping that was used on site? Yes. Now so it seems, Mr Liu, that the Defendant did tell you that the gap was not in accordance with the specs. Do you agree? Please repeat the question. I just showed you the document. I showed you the specs. And then I showed you David giving you a picture of the measurement. So, I’m suggesting to you that actually the Defendant did tell you that the aluminium capping was not designed to spec. Would you agree with me now? Yes.” [25] There was also the misalignment of the aluminium capping installed by a third party. [26] Instead of considering the above evidence, however, the LSCJ rather found fault that SD2 although present during installation did not inform the Plaintiff that the installation was wrong; did not stop the Plaintiff from inserting the aluminum shims in installation, nor stop the Plaintiff from purchasing more VarioLED. In so doing, overlooked that in fact:

SD2 did inform the Plaintiff that the installation was wrong – to the whatsapp group as admitted by SP1and alluded to in paragraph 24 above;

(ii) The Defendant was merely the supplier of the VarioLED and have no authority to stop the Plaintiff from inserting the aluminum shims during installation; it was Sunway Construction, the main contractor that wanted aluminium shims installed;

(iii) In any event, there is no denying that the aluminium capping was too large, not according to the drawings and it is not within the Defendant’s scope being a mere supplier, to oversee installation;

(iv) There is also uncontroverted evidence that the Defendant had advised/proposed to the Plaintiff against inserting the aluminum shims and to use soft Nitto Rubber Foam which was ignored. Sale by description of the VarioLED contained representation as to fitness for purpose [27] As for paragraph 20 of SCGOJ that a sale by description contained representations as to fitness for purpose, the finding in paragraph 15 that the transaction included an implied term as to fitness for purpose, paragraph 21 that it is the Defendant’s responsibility to ensure that the VarioLED shall be supplied according to representation, paragraph 23 that there was a representation given by the Defendant and that the Plaintiff had relied on the representation to purchase the VarioLED, it appears to me anyhow, there was no evidence to show the Defendant gave any representation. The alleged representation was imploded by SP-1’s admission: NOP @ Page 176, ROA Bahagian B Jilid 2 "NCY Insofar we are concerned, the Defendant never recommended the VarioLED to you, the Plaintiff. Agree? LIU Yes. " [28] The evidence when evaluated properly, show it is inherently improbable that representations of fitness for purpose was made by the Defendant to the Plaintiff for the simple reason that the choice of lights was made by the lighting consultant (Lightwave Lighting Design Sdn Bhd) or the Employer. The specifications for VarioLED was in the tender documents, the choice of VarioLED was made by employer/or the consultant. The Defendant here merely supplied the VarioLED and delivered it to the Plaintiff. Without more, the Defendant cannot be expected to ensure that it meets the requirement of the Employer. In this regard, where an employer has specified materials/goods to be used, there is no warranty by the contractor as to fitness for purpose of the materials or goods following Linklaters Business Services v Sir Robert Mcalpine Ltd and another [2010] EWHC 2931 (TCC). Additionally, in Global Mix Sdn Bhd v Wong Brothers Building Construction Sdn Bhd [2015] MLJU 616, paragraphs [117]-[118], a decision of Mary Lim J (now FCJ), Her Ladyship held there, that a sub-contract does not have implied warranty and fitness for purpose as workmanship and manner in which the concrete was used and placed are obligations of the main contractor. Both these cases were brought to this Court’s attention by the Defendant’s counsel. [29] The Defendant in this case was a mere subcontractor engaged by the Plaintiff to supply the lights. Added to that, the lights were sold by the Defendant as distributor to the Plaintiff under the patent name VarioLed – the proviso as to fitness for purpose under s.16(a) SOGA1957 applies. It reads “Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.” [30] I agree with the Defendant’s submission that implied fitness for purpose only arise if there is reliance on the skill and judgment e.g. in a design and built contract, which is not the case here. [31] The Defendant had adduced clear evidence to support that it had only proposed VarioLED to the Consultant (as opposed to the Plaintiff) - “… We would like to propose LED Linear Amor Flex (as attached). May I have your opinion?” (page 685 of Jilid 2B Record of Appeal – Bahagian C). [32] Ultimately, it was the Consultant/Owner who decided to use VarioLED. [33] The Sessions Court Judge is plainly wrong to find it was the Defendant who had recommended the VarioLED to the Consultant and prepared the drawing. There was also simply no evidence to conclude that it was the Defendant who had prepared the drawings. [34] As for the Plaintiff’s posit that Acolyte lights worked with the use of aluminum shims, I am of the view that this argument does not justify a conclusion that VarioLED is not suitable. And such an argument does not add to the Plaintiff’s case as the Plaintiff’s own evidence show it was the Plaintiff who had asked the Defendant on the lights to replace the VarioLED: Notes of Proceedings 17.11.2021, page 281 Jilid 2 Record of Appeal – Bahagian B) "CAR Plaintiff then asked Defendant what lights should we use to replace the VarioLED lights? YAP Yes. CAR And Defendant suggested using Acolyte lights? YAP Yes." Temperature of the Putrajaya Project is 52 degree Celsius? [35] The Plaintiff contended from a photograph that the actual ambient temperature recorded at the Putrajaya Project site on 3.11.2018, at page 441 of the record of appeal, part C, volume 2-A showing 52 degree Celsius is higher than the ambient temperature of the VarioLED lights can withstand, i.e. 45 degree Celsius. I find this contention absolutely misconceived. In this context, SD1 from SIRIM had explained ambient temperature is the air temperature that surrounds the test item; it is not the surface temperature. In fact, at pg. 665 of the Appeal Records, the temperature in Putrajaya for the whole year of 2018 per month ranged at an average minimum temperature of 23 degree Celsius and an average maximum temperature of 34 degree Celsius. In this regard, the court is also entitled to take judicial notice that if ambient temperature (as opposed to surface temperature) is 52 degree Celsius, Putrajaya would be hotter than the Sahara Desert! I therefore agree with the Defendant’s counsel that the photo taken by the Plaintiff showing an alleged ambient temperature of 52°C remains doubtful due to:

the manner in which the Plaintiff used to measure ambient temperature may not be accurate;

(ii) the photo taken was the surface temperature and not ambient temperature;

(iii) the thermometer’s calibration and accuracy are not ascertained; and

the location and time when the temperature was taken is not evident. Causation [36] Finally, assuming I am wrong on all the above, SP1 confirmed the lights were tested before delivery and they were working. He further testified the lights were installed and the Plaintiff had never rejected the lights. As such, the Plaintiff is deemed to have accepted the lights under s.42 SOGA 1957. Having accepted the lights as evidenced by the delivery orders at pg. 430, 431. 439 and 440 “in good order and condition”, the Plaintiff’s only remedy, if any, is for damages for breach of warranty - see Clariant Masterbatches (M) Sdn Bhd v Prestige Dynamics Industries Sdn Bhd [2019] 3 MLJ 701 but the Plaintiff has to prove damages and in so doing, the Plaintiff must show a causal connection between the Defendant’s breach and its loss: “Requirement of a causal connection. The important issue in remoteness of damage in the law of contract is whether a particular loss was within the reasonable contemplation of the parties, but causation must first be proved: there must be a causal connection between the defendant's breach of contract and the claimant's loss. The claimant may recover damages for a loss only where the breach of contract was the 'effective' or 'dominant' cause of that loss. The courts have avoided laying down any formal tests for causation: they have relied on common sense to guide decisions as to whether a breach of contract is a sufficiently substantial cause of the claimant's loss. The answer to whether the breach was the cause of the loss or merely the occasion for the loss must 'in the end' depend on 'the court's common sense' in interpreting the facts” - Chitty on Contracts (29th Ed) at para 26-029. [37] The Singapore Court of Appeal used the term “factual link” and “necessary link” between the breach and loss in Robertson Quay Investment Pte Lt v Steen Consultants Pte Ltd and Another [2008] SGCA

[38] Causation was stressed in Popular Industries Limited v Eastern Garment Manufacturing SdnBhd [1989] 3 MLJ 360: "A word now about general principle. When a plaintiff claims damages from a defendant, he has to show that the loss in respect of which he claims damages was caused by the defendant’s wrong, and also that the damages are not too remote to be recoverable." [39] Considered as a whole, there appears no satisfactory evidence to prove the case on a balance of probabilities that the failure of the VarioLED to light up was due to defective VarioLED supplied. To recapitulate, SD2 forewarned the Plaintiff of the wrongful installation and this was fortified by the unchallenged LED Linear’s report that the Defendant caused the damage to VarioLED due to wrong installation. But this evidence was not considered by the LSCJ when on the other hand, there is simply no evidence adduced by the Plaintiff that such allegations of wrongful installation are baseless, or are irrelevant and do not have the consequences as contended by the Plaintiff. Causation was not established. [40] Given the matters above, with all due respect, I am of the view that the findings by the LSCJ based on the evidence that the Defendant has breached the contract by supplying defective VarioLED and that they did not meet the specification of a maximum ambient temperature of 50 degree Celsius is clearly erroneous, and impeachable. These findings are against the weight of the evidence of SD1 and SD2 and the 2 reports. [41] I thus agree with learned counsel for the Defendant that the LSCJ had misdirected herself in law when dealing with the evidence including the 2 reports. By deciding that the 2 reports are irrelevant had resulted in the LSCJ:

failing to properly evaluate the totality of the evidence;

completely ignoring and shutting out crucial evidence favourable to the Defendant;

failing to evaluate and judicially appreciate the evidence before her and in particular the contents of both the 2 reports and oral testimonies on the same which were favourable to the Defendant; and

arriving at findings which were against the weight of the evidence elicited from the Plaintiff’s own witness under cross-examination. [42] Central to appellate intervention, is that a decision arrived at by a trial court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the “plainly wrong” test - Gan Yook Chin

(P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1 FC. In this regard, I have also borne in mind the most recent Federal Court pronouncement on the subject in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67; [2020] 1 LNS 1060 at [148] per Zabariah Mohd Yusof FCJ that so long as the trial judge’s conclusion can be supported on a rational basis in view of the material evidence, the fact that the appellate court feels like it might have decided differently is irrelevant. In other words, a finding of fact that would not be repugnant to common sense ought not to be disturbed. The trial judge should be accorded a margin of appreciation when his treatment of the evidence is examined by the appellate courts. [43] Whilst I appreciate that the LSCJ heard the parties evidence at trial, and she had to wrestle with the minutiae of that evidence, and this Court as such, should be slow to overturn primary findings of fact made by her, I am however satisfied that the LSCJ has clearly fallen into error in her insufficient appreciation of the evidence and was plainly wrong in concluding that the Plaintiff had proven its case on a balance of probabilities against the Defendant. Her decision in allowing the Plaintiff’s claim is perverse and warrants appellate intervention. [44] It follows for the reasons given that, I would allow this appeal and set aside the order dated 11.2.2022 with costs of RM10,000 (costs here and below) to be paid by the Plaintiff/Respondent to the Defendant/Appellant. Dated: 5th March 2023 - signed - ……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Appellant/Defendant : Lee Jing Min (together with him, Kelvin Ng) Messrs Vin Carmen Cheng For the Plaintiff/ Respondent: Aw Kai Xiang (together with him, Melody Tham Cheng Yee) Messrs Raj, Ong & Yudistra CASES REFERRED: Clariant Masterbatches (M) Sdn Bhd v Prestige Dynamics Industries Sdn Bhd [2019] 3 MLJ 701 Soon Peng Yam & Anor v. Bank of Tokyo - Mitsubishi (Malaysia) Bhd [2004] 1 CLJ 532 Ayoromi Helen v. PP [2005] 1 CLJ 1 Gabungan Sumber Tenaga Sdn Bhd v Alliance General Insurance Company (Malaysia) Bhd [2022] MLJU 11 Syed Abu Bakar bin Ahmad v Public Prosecutor [1984] 2 MLJ 19 Keruntum Sdn Bhd v The Director of Forests & Ors [2017] 3 MLJ 281; [2017] 4 CLJ 676 Ang Beng Teik v Pan Global Textile Bhd, Penang [1996] 3 MLJ 137 Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405 Linklaters Business Services v Sir Robert Mcalpine Ltd and another [2010] EWHC 2931 (TCC) Global Mix Sdn Bhd v Wong Brothers Building Construction Sdn Bhd [2015] MLJU 616 Robertson Quay Investment Pte Lt v Steen Consultants Pte Ltd and Another [2008] SGCA 8 Popular Industries Limited v Eastern Garment Manufacturing SdnBhd [1989] 3 MLJ 360 STATUTE/LEGISLATION REFERRED: Section 45 of the Evidence Act 1950 Section 16 (a), 42, 59 of the Sale of Goods Act 1957