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Malayan Law Journal Unreported/2015/Volume/ TJM Sdn Bhd v Cheng Kok Soon - [2015] MLJU 348 - 10
July 2015

[2015] MLJU 348

TJM Sdn Bhd v Cheng Kok Soon

HIGH COURT (KUALA LUMPUR)
HASNAH BINTI DATO' MOHAMMED HASHIM J
CIVIL APPEAL NO 12BNCC-64-12/2014
10 July 2015

Choo Shi Jin (Hafarizam Wan & Aisha Mubarak ) for the appellant.

Sin Kok Yew (Mohd Khairi with him) (KY Sim & Co) for the respondent.

Hasnah Binti Dato' Mohammed Hashim J

JUDGMENT

[1] Enclosure 7 is an application by the Appellant pursuant to Order 55 Rule 7 of the Rules of Court
2012(ROC) for the following orders:

1) Keterangan-keterangan baru ("fresh evidence") yang dikemukakan oleh Perayu diterima oleh
Mahkamah Yang mulia ini;
1) Kos permohonan ini menjadi kos di dalam kausa; dan
1) Lain-lain relief yang difikirkan adil dan suaimanfaat oleh Mahkamah yang Mulia ini.

[2] The documents referred:

1i) Appeal Record Volume 1 Part A;

1ii) Appeal Record Volume 1 Part B and C;
1iii) Supplementary Appeal Record;
1iv) Appellant's Notice of Application dated 27.1.2015;
1v) Supporting Affidavit deposed by Mohamed Nazari Bin Noordin on 27.1.2015;
1vi) Affidavit-in-Reply deposed by Cheng Kok Soon on 13.2.2015; and
1vii) Affidavit-in-Reply deposed by Mohamed Nazari Bin Noordin on 26.6.2015.

BACKGROUND FACT
[3] The Respondent's claim against the Appellant is for specific performance for failure to deliver a vehicle
after the completion of the trial in the Sessions Court. The Learned Sessions Judge on 2.12.2014 allowed the
Respondent's claim as follows:

2) Tuntutan Perlaksanaan Spesifik oleh Plaintif dibenarkan seperti berikut

1. Defendan Pertama menyelesaikan dan/atau menyem-purnakan pendaftaran hakmilik
Porsche Cayenne 2012 dengan Casis No. WP1ZZZ92ZCLA49979,Enjin No. M4802C10768
("Kenderaan tersebut") ke atas nama Plaintif serta mematuhi dan memenuhi kehendak
peruntukan statutori terutamanya dalam penyerahan Porsche Cayenne 2012 tersebut; dan
1. Defendan Pertama menghantarserah Porsche Cayenne 2012 dengan Casis No.
WP1ZZZ92ZCLA49979, Enjin No. M4802C10768 ("Kenderaan tersebut") yang berada dalam
keadaan yang sempurna untuk digunapakai ("good road worthy condition") yang telah
didaftarkan ke atas nama Plaintif dengan Plaintif dikehendaki membayar RM209,299.60
untuk baki harga belian dalam tempoh empat belas (14) hari daripada tarikh perintah ini dan
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Defendan Pertama untuk menyerahkan kenderaan tersebut dalam tempoh empat belas (14)
hari daripada tarikh penerimaan pembayaran baki belian oleh Plaintif.

2) Defendan Kedua dan Defendan Ketiga adalah agen kepada Defendan Pertama. Untuk tujuan
Perlaksanaan Spesifik tiada perintah terhadap Defendan Kedua dan Defendan Ketiga;
2) Pembelaan Penolakan (Set Off) oleh Defendan Pertama ditolak;
1) Kos tindakan sebanyak RM5,000.00 ditanggung oleh Defendan Pertama; dan
1) Faedah pada kadar 5% setahun ke atas kos RM5,000.00 bermula dari tarikh penghakiman
sehingga tarikh penyelesaian.

THE APPELLANT'S SUBMISSION

[4] It was contended by the Appellant that the Sessions Court Judge erred when she allowed the
Respondent/Plaintiffs claim and decided that the Second and Third Defendants are agents of the Appellant.
[5] The Learned Counsel for the Appellant submitted that the Appellant procured the information from other
parties after the Sessions Court's decision. The fresh evidence sought to be adduced are several police
reports lodged against the Second and Third Defendants for fraud (re: Exhibit MNN-1, MNN-2, MNN-4).
[6] It is further submitted that it is impossible for the Appellant to get those police reports at that material time.
The police reports were only made known to the Appellant after the proceedings before the Sessions Court
completed.

THE RESPONDENT'S SUBMISSION

[7] It is the submission of the Counsel of the Respondent that the reports were made by third parties against
the Second and Third Defendants for transactions not related to the Appellant nor to the claim.
[8] The documents are independent police reports lodged by individuals against the Second and Third
Defendants, who are not the Appellant/First Defendant's employee.

DECISION AND REASONS

[9] Order 55 Rule 7 of the Rules of Court 2012states as follows:

7. Restriction on fresh evidence ( O 55 r 7) At the hearing of any appeal, fresh evidence shall not be admitted
unless the Judge is satisfied that-

1a) at the hearing in Subordinate Court, the evidence was not available to the party seeking to use it
or that reasonable diligence would not have made it so available; and
1b) the fresh evidence, if true, would have had or would have been likely to have a determining
influence upon the decision of the Subordinate Court.

[10] In order to justify fresh evidence the conditions as provided by O 55 r 7 ROCmust be fulfilled:-

2i) the evidence was not available to the party seeking to use it; and
2ii) the fresh evidence adduced, if true, would have the likelihood of deterring influence
upon the decision of the Sessions Court.
[11] Lord Denning, CJ in the case of Ladd v Marshall [1954] All ER 745 sets out the conditions that must be
fulfilled:-

In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown
that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence
must be such that, if given, it would probably have an important influence on the result of the case, although it need not
be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently
credible, although it need not be incontrovertible.

[12] The Federal Court in Lau Foo Sun v Government of Malaysia [1970] 1 LNS 56; [1970] 2 MLJ 70 had
applied the test laid down in Ladd v Marshall where his Lordship Suffian, FJ. reiterated as follows:
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To justify the reception of this evidence "three conditions must be fulfilled:

First, it must be shown that the evidence could not have been obtained with reasonable diligence for
use at the trial;
Second, the evidence must be such that, if given, it would probably have an important influence on the
result of the case, although it need not be decisive;
Third, the evidence must be such as is presumably to be believed, or in other words, it must be
apparently credible, though it need not be incontrovertible.

[13] In Leng Lan v SM Yesudian [1937] 1 LNS 32; [1939] MLJ Rep 222, Aitken J remarked that "the courts
are very unwilling to allow (a completed case) to be reopened for the purpose of hearing new evidence
except for good and substantial cause.
[14] It is settled principle that the discretion to allow additional evidence should be exercised sparingly and
only in exceptional circumstances. The Federal Court in the case of Lo Fat Thjan & Ors v Public Prosecutor
[1968] 1 LNS 74 in its judgment observed,

We should deprecate generally the admission of additional evidence on appeal except in clearly exceptional
circumstances. The adversary system in our trials is hardly compatible with allowing lacunae in the case of any party to
be filled in by afterthoughts or countenancing reconstruction of any case after it has failed at the trial.

[15] It is trite that before fresh evidence may be allowed the Applicant must also fulfill the requirement of the
law of evidence i.e. relevancy and admissibility. In the instant application the fresh evidence sought to be
adduced are police reports lodged by third parties against the Third Defendant for fraud. The transactions in
the said police reports are not in any way related to the transactions involving the Appellant nor the
Respondent. The fresh evidence sought to be adduced are not relevant to the claim filed by the Respondent
against the Appellant.
[16] The Appellant had not satisfied this Court that the fresh evidence sought to be introduced in this appeal
was not available at the hearing in the Sessions Court or that reasonable diligence would have made it so
available.
[17] Furthermore, this Court is of the considered view that the said police reports would not have determining
influence upon the decision of the Sessions Court. The police reports sought to be adduced are with regard
to non-related transaction and would not change the finding of facts by the Learned Sessions Court Judge.
[18] Based on the reasons mentioned above and the established principle that introduction of fresh evidence
at the appeal stage will only be allowed in exceptional circumstances, leave to adduce fresh evidence ought
to be refused. Accordingly, Enclosure 7 is dismissed with costs.