Appellate Intervention: When Can The Appeal Courts Step In? - Malaysia

Statistics reveal that a whopping 85% of cases from the court of first instance (i.e. the Magistrates’ Court, Sessions Court and High Court) are appealed by parties.

OK.

That statistic was made up, but there is indeed no denying that appeals are part and parcel of a litigator’s life. Are there guidelines for when an Appellate Court can reverse the finding of a lower court?

Courts and Hierarchy

There are two categories of Courts in Malaysia, the Court of First Instance i.e. where civil suits are first initiated and Appellate Courts i.e. courts that hear matters that have been appealed from the courts of first instance.

The Magistrate’s Court and Sessions Court are purely courts of first instance and do not hear any appeal whatsoever. The High Court plays both these roles as it hears appeals from the Magistrates’ and Sessions Court as well as being the court of first instance for claims above RM1 million (amongst others). The Court of Appeal and Federal Court only entertain appeals and exercise revision powers in other instances.

Interlocutory Appeals

An interlocutory appeal is an appeal of a ruling made by a Court prior to trial itself. Some examples would include an appeal for applications such as Summary Judgment, Striking Out or Security for Costs. The procedures for an interlocutory appeal are provided for in Order 55 rule 5(1) of the Rules of Court 2012 and is heard before a Judge in chambers as opposed to open court.

It is trite law that an appeal of an interlocutory matter is by way of rehearing.

In Wong Cheng Yong (T/A Chengy Enterprise) & Anor v COnfast Hardware & Fasterners Sdn Bhd [2018] 1 LNS 1285 (HC), the High Court held as follows:

[23] Moving on to the substantive contentions, this appeal is basically a re-hearing as provided in s. 29 of the Courts of Judicature Act 1964. In Rulsan Baharin Industries Sdn Bhd & Ors v. Kerajaan Malaysia [2010] 7 CLJ 713, Suriyadi Halim Omar JCA (later FCJ) held as follows: “[21] In United Malayan Banking Corporation Berhad v. Pembinaan KSY Sdn Bhd & 2 Ors [1993] 3 CLJ 612 likewise the Supreme Court had occasion to discuss the principles of interference by an appellate court in an O. 14 appeal. Mohamed Dzaiddin, SCJ in dismissing the appeal had held: The approach to be taken by an appellate court in an Order 14 appeal has been settled. The appellate court should not regard the appeal as reviewing the exercise of the judge’s discretion but approach the appeal as a rehearing. This principle was accepted by this court in Koh Siak Poo v. Perkayuan OKS Sdn Bhd & Ors [1989] 2 CLJ 1 (Rep); [1989] 1 CLJ 30; [1989] 3 MLJ 164, following Malayan Insurance (M) Sdn Bhd v. Asia Hotel Sdn Bhd [1987] CLJ Rep 182; [1987] 1 CLJ 246; [1984] 2 MLJ 300 and European Asia Bank v. Punjab & Sind Bank (No 2) (CA) [1983] 1 WLR 643; [1983] 2 All ER 508, 516.”

Put simply, the summary judgment application is in effect re-heard afresh.

Similarly, in Loh Chow Sang v Loh Chow Tet [2018] 1 LNS 1332 (HC), Justice Nazlan Mohd Ghazali held as follows:

I am also mindful of Section 29 of the Courts of Judicature Act 1964 which provides for all civil appeals to be done by way of a rehearing, noting that the decision being appealed against in the instant case concerns a dismissal of a setting aside of the JID and not as a result of a full trial proceeding.

Appeals After Full Trial

When it comes to appeals after full trial an Appellate 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 duty of evaluation of the evidence. See Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453 (FC)

Nallini Pathmanathan JCA in MMC Oil & Gas Engineering Sdn Bhd v Tan Bock Kwee & Sons Sdn Bhd [2016] 4 CLJ 665 (COA), succinctly lays down the philosophy of Appellate Intervention in presiding over matters after full trial:

As this matter comes before this court on appeal after a full trial, this court is bound to have regard to the limited power of an appellate court to reverse findings of fact of the judge who has heard the evidence. It is a long settled principle, stated and restated both domestically and in wider common law jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that he was plainly wrong.

Nallini Pathmanathan JCA further explains the high threshold that the “plainly wrong” test entails:

[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.

Harmindar Singh Dhaliwal JCA in Nor Azlina Abdul Aziz v Expert Project Management Sdn Bhd [2017] 5 CLJ 58 (COA), lays out a non-exhaustive list of instances when an appellate court can intervene in a finding of facts:

[20] Nevertheless there are occasions when appellate interference is warranted and these occasions have been well set out in numerous cases. Some of these occasions are: 1. where the trial judge took into account irrelevant considerations and failed to give due weight to relevant considerations (see Director of Forestry, Sabah & Anor v. Mau Kam Tong & Ors And Another Appeal [2010] 3 CLJ 377; [2010] 3 MLJ 509); 2. where there was no proper evaluation of the evidence by the trial judge (see Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1) 3. where the decision arrived at by the trial court was without judicial appreciation of the evidence (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors [2004] 4 CLJ 309; [2005] 2 MLJ 1); 4. where a trial court has so fundamentally misdirected itself, that no reasonable court which had properly directed itself and asked the correct questions, would have arrived at the same conclusion (see Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 CLJ 284; [2008] 2 MLJ 87); 5. where the trial judge was plainly wrong in arriving at his decision (see Lee Ing Chin & Ors v. Gan Yook Chin & Anor [2003] 2 CLJ 19; [2003] 2 MLJ 97); 6. where a trial judge had so manifestly failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial, and in reaching his conclusion, has not properly analysed the entirety of the evidence which was given before him (see First Count Sdn Bhd v. Wang Yew Logging & Plantation Sdn Bhd [2013] 1 LNS 625; [2013] 4 MLJ 693 which followed the Privy Council case of Choo Kok Beng v. Choo Kok Hoe & Ors [1984] 1 LNS 40; [1984] 2 MLJ 165); and 7. where the judgment is based upon a wrong premise of fact or of law (see Perembun (M) Sdn Bhd v. Conlay Construction Sdn Bhd [2012] 1 LNS 1416; [2012] 4 MLJ

Conclusion

Appeals can be intricate and it is vital that you are well versed with the established principles of appellate intervention in order to do well in them.