Ananda Rajan Rajan
[2022] MLRHU 80 v. Lim Yee Yen pg 1
ANANDA RAJAN RAJAN
v.
LIM YEE YEN
High Court Malaya, Johor Bahru
Evrol Mariette Peters JC
[Civil Appeal No: JA-12B-72-10/2020]
23 January 2022
Case(s) referred to:
Aida Mawami Shahimi v. Zulkifli Mohd Noor [2018] MLRHU 77 (dirujuk)
Bong Nyi Moi v. Narayanasamy & Anor [1973] 1 MLRA 620; [1973] 1 MLJ 250
(dirujuk)
Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend,
Mohd Helmi bin Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 1 MLRA 647;
[2016] 2 MLJ 1; [2016] 2 CLJ 885; [2016] 2 AMR 217; [2016] 1 PIR 16 (refd)
Joo Chin Kia v. Loh Seng Tek [1986] 1 MLRH 550; [1987] CLJ 662 (refd)
Maimunah bte Hassan (sebagai wakil harta pusaka Rozita bte Khamis) & satu lagi
lwn. Marimuthu s/o Samanathan & Satu lagi [1992] 3 MLRH 24; [1993] 1 CLJ
119 (refd)
Malaysia National Insurance Sdn Bhd v. Abdul Aziz bin Mohamed Daud [1978] 1
MLRA 59 ; [1979] 2 MLJ 29 (refd)
Menah Sulong v. Lim Soo [1970] 1 MLRA 1; [1983] CLJ (Rep) 263 (refd)
Miller v. Minister of Pensions [1947] 2 All ER 372 (refd)
Mohd Hafizul Mokhtar & Anor Iwn Mohd Zaki Kamarudin [2007] 5 MLRH 784
(refd)
Re B [2008] UKHL 35 (refd)
Siti Rohani bte Mohd Shah & Ors v. Haji Zainal bin Saifiee & Anor [2000] 3
MLRH 704; [2001] 5 MLJ 8; [2001] 1 CLJ 498 (refd)
Sivalingam a/l Periasamy v. Periasamy & Anor [1995] 2 MLRA 432; [1995] 3
MLJ 395; [1996] 4 CLJ 545; [1996] 3 AMR 3506 (refd)
Toh Ming Jee v. Lau Yiik Ling [1994] 1 MLRH 701; [1994] 3 CLJ 391 (refd)
Toh Seak Keng v. Lim Huang Cheow & Ors [1992] 2 MLRH 581; [1992] 2 MLJ
298; [1992] 3 CLJ 721 (refd)
Unsung Rasad v. PP [2020] 1 SSLR 85 (refd)
Watt (or Thomas) v. Thomas [1947] AC 487 (refd)
Wong Thin Yit v. Mohamed Ali [1971] 1 MLRA 483; [1971] 2 MLJ 175 (refd)
Yahaya bin Mohamed v. Chin Tuan Nam [1975] 1 MLRA 322; [1975] 2 MLJ 117
(refd)
Legislation referred to:
Evidence Act 1950, s 101
Road Transport Act 1987, s 26(1)
Counsel:
For the appellant/ plaintiff: M Saralathevi; M/s Teo & Associates
Ananda Rajan Rajan
pg 2 v. Lim Yee Yen [2022] MLRHU 80
For the respondent/ defendant: CY Ong; M/s CY Ong & Co
[Dismissed the appeal with costs.]
JUDGMENT
Evrol Mariette Peters JC:
Introduction
[1] This was an appeal ("this Appeal") against the decision of the learned
Sessions Court Judge ("SCJ") on the issue of liability only. For ease of
reference, the Appellant and Respondent will be referred to respectively as the
Plaintiff and Defendant.
The Factual Background
[2] This Appeal arose from proceedings in the Sessions Court pursuant to an
accident that occurred on 6 May 2017, involving a motorcycle ridden by the
Plaintiff, and a motorcar driven by the Defendant from the opposite direction.
[3] The learned SCJ had found the Plaintiff to be 100% negligent in the
accident. The Plaintiff appealed against the issue of liability. This Appeal was
dismissed for the following reasons.
Contentions, Evaluation, And Findings
Whether Non-Possession Of Licence Had Affected The Plaintiff's Right To
Claim
[4] One of the issues raised in this Appeal was that the learned SCJ, in
dismissing the Plaintiff's claim, had supposedly taken into account the fact that
the Plaintiff did not possess a valid riding licence when the accident had taken
place.
[5] First and foremost, it was clear from a perusal of the grounds of judgment
of the learned SCJ that the issue of the non-possession of a licence was not the
sole reason for dismissing the Plaintiff's claim. In fact, the learned SCJ had
considered the evidence in totality, including the negligence and credibility of
the Plaintiff, as well as the evidence from independent witnesses. This would
effectively mean that the point of contention ends there. However, since both
Counsel had submitted at length on this issue, in the interest of completeness,
it was addressed.
[6] In support of his argument, the Plaintiff had relied on several authorities
and my attention was brought to the cases of Malaysia National Insurance Sdn
Bhd v. Abdul Aziz bin Mohamed Daud [1978] 1 MLRA 59 ; [1979] 2 MLJ 29,
Toh Seak Keng v. Lim Huang Cheow & Ors [1992] 2 MLRH 581; [1992] 2 MLJ
298; [1992] 3 CLJ 721, Maimunah bte Hassan (sebagai wakil harta pusaka Rozita
bte Khamis) & satu lagi lwn. Marimuthu s/o Samanathan & Satu lagi [1992] 3
Ananda Rajan Rajan
[2022] MLRHU 80 v. Lim Yee Yen pg 3
MLRH 24; [1993] 1 CLJ 119, and Siti Rohani bte Mohd Shah & Ors v. Haji
Zainal bin Saifiee & Anor [2000] 3 MLRH 704; [2001] 5 MLJ 8; [2001] 1 CLJ
498.
[7] Although I am mindful that there is generally no correlation between
negligence and riding or driving without a valid riding/ driving licence, each
case must be scrutinised on its own facts. In the present case, the Plaintiff had
been riding without a licence for the past nine years. This was indicative of the
Plaintiff's disregard for the law, in particular s 26 of the Road Transport Act
1987, which reads:
Section 26 - Driving licences
(1) Except as otherwise provided in this Act, no person shall drive a
motor vehicle of any class or description, on a road unless he is the
holder of a driving licence authorising him to drive a motor vehicle of
that class or description, and no person shall employ or permit another
person to drive a motor vehicle on the road unless the person so
employed or permitted to drive is the holder of such a driving licence.
(2) Any person who contravenes subsection (1) shall be guilty of an
offence and shall on conviction be liable to a fine of not less than three
hundred ringgit and not more than two thousand ringgit or to
imprisonment for a term not exceeding three months or to both such
fine and imprisonment.
(3) For the purposes of this section, the expression "holder of a driving
licence" includes a person in possession of and driving a motor vehicle
in accordance with a licence duly issued by or on behalf of the proper
authority authorising such person in the course of his duties as a
member of the Forces to drive a motor vehicle of the class or
description specified in such licence and being a vehicle which is the
property of the Government or of any Government whose forces are
lawfully in Malaysia under the provisions of any law for the time
being in force regulating visiting forces lawfully present in Malaysia.
[8] I would have to agree with the Defendant that in this case, ignoring the
Plaintiff's blatant disregard for the law would amount to condoning the illegal
and dangerous activity of riding without a valid licence. Although every
litigant is entitled to the full protection of the law regardless of his conduct or
activity, the Court should not be hasty in sympathising with such litigant,
especially if the illegal activity was rendered contumelious or egregious by the
litigant's conduct, as in the present case. At this juncture, I felt it apt to refer to
Mohd Hafizul Mokhtar & Anor Iwn Mohd Zaki Kamarudin [2007] 5 MLRH
784, where it was stated by Mohtarudin bin Baki J (as he then was) in the
following passage:
Keputusan mahkamah perlu konsisten dengan polisi kerajaan iaitu
tidak membenarkan pemandu/penunggang kenderaan atas jalanraya
tanpa lesen demi menjaga kepentingan awam. Peraturan ketat telah
Ananda Rajan Rajan
pg 4 v. Lim Yee Yen [2022] MLRHU 80
ditetapkan sebelum seseorang itu diberi lesen perlu lulus ujian undang-
undang jalanraya dan ujian praktikal.
Perbuatan plaintif/responden seolah-olah "ini laluan saya. Ianya hak
saya. Saya tidak akan mengalah (bagi mengelakkan kemalangan)".
Perlu ditekankan tiada sesiapa boleh menuntut hak tersebut, semua
pengguna jalanraya perlu patuh etika 'Highway Code1.
Satu mesej perlu diberi kepada pengguna jalanraya
(penunggang/pemandu kenderaan) bahawa mahkamah tidak akan
bersimpati dengan kecederaan yang dialami. Mahkamah perlu
membuat keputusan 'without fear or favour' berlandaskan fakta dan
undang-undang dengan harapan sikap berleluasa "blatant disregard of
rule and law by motorcyclist especially could be stopped".
[9] As such, the learned SCJ had not erred in taking into account the fact that
the Plaintiff was not in possession of a valid driving/ riding licence when the
accident occurred, and this was not the sole basis for dismissing the Plaintiff's
claim.
Whether The Learned SCJ Had Failed To Consider How The Accident Had
Happened
[10] The Plaintiff contended that the learned SCJ had erred in failing to
consider how the accident had actually happened. The Plaintiff claimed that it
was the Defendant who, in the course of overtaking another vehicle in front of
her, had encroached into the Plaintiff's path, and that this was indicated by the
fragments that was allegedly concentrated in the Plaintiff's path, and that the
front tyre of the Defendant's motorcar was oblique to the right entering the
Plaintiff's path.
[11] Since the parties provided conflicting versions, the learned SCJ had to rely
on the evidence holistically. The fragments in the Plaintiff's path were not
conclusive that the Defendant had encroached into the Plaintiff's path, as it
was explained by the Investigating Officer ("SP2") that half an hour had passed
before he had arrived and that things could have changed during that time.
[12] At this juncture, it must be borne in mind that it was the Plaintiff who had
the legal burden of proof, as prescribed by s 101 of the Evidence Act 1950
which reads:
Section 101 - Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must
prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.
Ananda Rajan Rajan
[2022] MLRHU 80 v. Lim Yee Yen pg 5
[13] This reminder was also administered by the Federal Court in Wong Thin
Yit v. Mohamed Ali [1971] 1 MLRA 483; [1971] 2 MLJ 175 in the words of
Ong CJ:
In a negligence action the onus of proof rests wholly on the plaintiff,
whether or not the defendant gives evidence. The plaintiff cannot
succeed without proof of the defendant's negligence. Evidence is the
foundation of proof, with which it must not be confounded. Proof is
that which leads to a conclusion as to the truth or falsity of alleged
facts which are the subject of inquiry. Evidence, if accepted and
believed, may result in proof, but it is not necessarily proof of itself.
[14] The standard of proof on the Plaintiff to prove his claim was on a balance
of probabilities. The term 'balance of probabilities' was described in Miller v.
Minister of Pensions [1947] 2 All ER 372 by Denning J (as he then was) as
'more probable than not' and which is 'not so high as required in a criminal
case...but if the probabilities are equal, it is not discharged'. The standard,
therefore, does not allow for any guesswork, speculation, surmise or
conjecture. Miller v. Minister of Pensions has been assimilated into Malaysian
jurisprudence through several cases including Inas Faiqah bt Mohd Helmi (an
infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v.
Kerajaan Malaysia & Ors [2016] 1 MLRA 647; [2016] 2 MLJ 1; [2016] 2 CLJ
885; [2016] 2 AMR 217; [2016] 1 PIR 16.
[15] I found instructive also the case of Unsung Rasad v. PP [2020] 1 SSLR 85,
where the concept of balance of probabilities was explained by Abang
Iskandar Abang Hashim JCA (now CJSS), adopting the English case of Re B
[2008] UKHL 35:
In the celebrated case of Miller v. Minister of Pensions [1947] 2 All ER
372, Denning J (as he then was) said:
If the evidence is such that the tribunal can say 'we think it
more probable than not' the burden is discharged, but if the
probabilities are equal, it is not.
[17] That would invariably require that party involved having to lead
or adduce affirmative evidence to prove his case, as the court shall
presume the absence of those circumstances, to reach a level of proof
of at least 51% probability against his adverse party. We would cite the
English case of Re B [2008] UKHL 35, where Lord Hoffman had used
a mathematical analogy to illustrate what needed to be proven by a
party desirous of having judgment entered in his favour, like so:
If a legal rule requires a fact to be proved (a 'fact in issue'), a
judge or jury must decide whether or not it happened. There is
no room for a finding that it might have happened. The law
operates a binary system in which the only values are 0 and 1.
The fact either happened or it did not. If the tribunal is left in
doubt, the doubt is resolved by a rule that one party or the
Ananda Rajan Rajan
pg 6 v. Lim Yee Yen [2022] MLRHU 80
other carries the burden of proof. If the party who bears the
burden of proof fails to discharge it, a value of 0 is returned
and the fact is treated as not having happened. If he does
discharge it, a value of 1 is returned and the fact is treated as
having happened.
[Emphasis added]
[16] A perusal of the grounds of judgment of the learned SCJ indicated that he
took these facts into consideration. The fragments and the position of the tyre
had not rendered the Defendant's liability probable, as the learned SCJ in
deciding that the Plaintiff had failed to prove his case, had considered the
evidence in totality.
[17] In fact, the learned SCJ had made an observation about the Plaintiff's legs
getting caught in the gap between the tyre and the bumper of the motorcar
driven by the Defendant, which negated any suggestion that it was the
Defendant who had encroached into the Plaintiff's path, but that it had
actually given rise to a high probability that it was the Plaintiff who had
encroached into the Defendant's path. The learned SCJ had also relied on the
photographs and took note of the damage to the Defendant's motorcar in order
to ascertain if it was her motorcar that had encroached into the Plaintiff's path.
[18] The Plaintiff submitted that he had informed SP2 of such encroachment.
However, SP2 denied such fact, and claimed that he was unaware of the
Plaintiff's version of how the accident had happened. In my view, the learned
SCJ was correct in accepting the evidence of SP2, since SP2, as the
Investigating Officer was an independent witness and had no reason to conceal
facts or to testify in favour of the Defendant.
[19] In any event, it begs the question why this fact, being a material one, was
neither pleaded, nor stated in the police report. This brings to mind the
importance of pleading significant facts as emphasised in a plethora of cases
including Menah Sulong v. Lim Soo [1970] 1 MLRA 1; [1983] CLJ (Rep) 263,
Toh Ming Jee v. Lau Yiik Ling [1994] 1 MLRH 701; [1994] 3 CLJ 391, and
Joo Chin Kia v. Loh Seng Tek [1986] 1 MLRH 550; [1987] CLJ 662.
[20] The fact that the accident had been classified as "Refer to Insurance" or
"RTI" in short, only meant that SP2 could not determine conclusively the
liability of each party. However, this fact alone could not relieve the Plaintiff
from liability as the learned SCJ had considered other evidence before arriving
at his conclusion. As such, there was no error made by the learned SCJ on
how the accident had occurred.
Whether The Learned SCJ Had Erred In Failing To Consider Omission Of
Facts In Police Report
[21] The Plaintiff had also submitted that although the Defendant had lodged a
police report after the accident, the learned SCJ had erred when he ignored the
Defendant's failure to provide the following averments in such police report:
Ananda Rajan Rajan
[2022] MLRHU 80 v. Lim Yee Yen pg 7
a) That there was a passenger in her motorcar;
b) That there was an independent witness who came to her aid at the
time of the accident; and
c) That the Plaintiff's motorcycle was ridden in an 'S' or zig zag
manner.
[22] In my view, the omission to provide the above-mentioned averments was
not sufficient to overrule the learned SCJ's decision on liability as a police
report is not an all-encompassing document which must contain detailed
information pertaining to the accident. 'It is sufficient if the police report
contains all material information within the reasonable contemplation of a
reasonable man because an ordinary person is not expected to be fully aware
of all detailed information which must be stated in a police report. The main
or material information must of course be mentioned in the police report, but
the absence of any mention of specific detailed information on its own should
not be a ground to hold it against the person who lodges the police report': per
Ahmad Shahrir Mohd Salleh JC in Aida Mawami Shahimi v. Zulkifli Mohd
Noor [2018] MLRHU 77.
Whether The Learned SCJ Had Erred In His Assessment And Evaluation Of
Witnesses
[23] The Plaintiff contended that the learned SCJ had erred when he rejected
the Plaintiff's evidence. The Plaintiff further alleged that the Defendant had
given false evidence as she claimed to have been scolded by the Plaintiff when
in actual fact the Plaintiff was both audibly and orally challenged.
[24] In my view, the learned SCJ had dealt with this issue and reminded
himself to treat the evidence of the Defendant with caution, which meant that
her version of the accident required corroboration. The learned SCJ had found
the relevant corroborative evidence in SD3, one Azlan Shah bin Mohd Jahi,
an independent witness who was riding behind the motorcar driven by the
Defendant, and who supported the Defendant's version of how the accident
had happened. Hence, there was no basis to reject altogether the Defendant's
testimony.
[25] In fact, it was the Plaintiff whose credibility was compromised by his
inconsistencies in his evidence.
[26] At this juncture, it is crucial to remember that the learned SCJ had heard
and seen the witnesses in this case. He had weighed and evaluated all evidence
by the witnesses, including their credibility.
[27] Where a question of fact has been tried by a judge without a jury, and
there is no question of misdirection by the judge himself, an appellate court
which is disposed to come to a different conclusion on the printed evidence,
should not do so unless it is satisfied that any advantage enjoyed by the trial
Ananda Rajan Rajan
pg 8 v. Lim Yee Yen [2022] MLRHU 80
judge by reasons 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: per Lord Thankerton in
Watt (or Thomas) v. Thomas [1947] AC 487.
[28] The presumption is that the decision of the trial court that is appealed
against was correct in every respect. Therefore, to succeed in an appeal, the
parties in this case must convince this Court that the decision appealed against
was wrong; and if this Court was not so convinced, the Appeal should fail.
This is based on the premise that the findings of the trial judge who had the
advantage of seeing, hearing, assessing and evaluating the witnesses, must be
respected: Yahaya bin Mohamed v. Chin Tuan Nam [1975] 1 MLRA 322;
[1975] 2 MLJ 117. An appellate court, therefore, should be cautious of
upsetting the findings of the trial judge.
[29] This observation was also found in the case of Bong Nyi Moi v.
Narayanasamy & Anor [1973] 1 MLRA 620; [1973] 1 MLJ 250, where it was
stated by the Federal Court, through Ali FJ, as follows:
Here lies the difficulty in this appeal. The learned trial judge had seen
and heard the witnesses and was not satisfied with his evidence. He
gave his reason for not being so satisfied. Speaking for myself, I must
say I cannot quarrel with this reason. Indeed, I do not think I should.
[Emphasis added]
[30] Reference was made also to the Court of Appeal case of Sivalingam a/l
Periasamy v. Periasamy & Anor [1995] 2 MLRA 432; [1995] 3 MLJ 395; [1996]
4 CLJ 545; [1996] 3 AMR 3506, where it was stated that 'an appellate court
will not readily interfere with the findings of fact arrived at by the trial court to
which the law entrusts the primary task of evaluation of the evidence:' per
Gopal Sri Ram and Mahadev Shankar JJCA.
[31] The Plaintiff argued that since he was audibly and orally challenged, he
had not understood some of the questions put to him, and as a result thereof,
the clarity of his answers had been compromised.
[32] In my view, it was inequitable for the Plaintiff to argue, in this Appeal,
that allowances should be made for his lack of credibility based on his inability
to speak or hear. Counsel for the Plaintiff should have taken the opportunity to
clarify the Plaintiff's answers during reexamination, and not raise it at this
stage, for this Court's consideration.
[33] The fact of the matter was that the testimony of the Plaintiff was littered
with inconsistencies. As such, the learned SCJ's decision not to rely on the
Plaintiff's testimony was correct and did not warrant intervention. In fact, the
inconsistencies in the Plaintiff's evidence gave rise to the irresistible inference
that his testimony in Court was purely an afterthought, and as such,
unreliable.
Ananda Rajan Rajan
[2022] MLRHU 80 v. Lim Yee Yen pg 9
[34] Bearing in mind that it was the Plaintiff who had to prove his case on a
balance of probabilities, and looking at the evidence in totality, the learned
SCJ had not erred when he chose to believe the Defendant's version of how
the accident had taken place.
Conclusion
[35] In the upshot, therefore, based on the aforesaid reasons, and after careful
scrutiny and consideration of all the evidence before this Court, including the
written and oral submissions of both parties, and the grounds of judgment of
the learned SCJ, this Appeal was dismissed with costs.
