The appellate court highlighted the significance of agreed facts and admissions in determining cases, emphasizing the burden of proof rests on the party asserting the claim.

JUDGMENT

Evrol Mariette Peters JC:

Introduction

[1] The Appellant appealed ("the Appeal") and the Respondent cross-appealed ("the Cross-appeal") against the decision of the learned Magistrate. For ease of reference, the Appellant and Respondent will be referred to respectively as the Plaintiff and Defendant.

The Background Facts

[2] The Plaintiff's claim ("this Claim") was for an amount of MYR84,345 which the Plaintiff averred was owed by the Defendant for skincare products and treatment that he had obtained from the Plaintiff.

[3] Since no payment was forthcoming, the Plaintiff filed this Claim at the Magistrates Court, whilst the Defendant filed a counterclaim for damages for defamation ("the Counterclaim"). The Magistrate dismissed both the Claim and Counterclaim. As a result thereof, the Plaintiff appealed, and Defendant cross-appealed, which was allowed and dismissed respectively, for the following reasons.

The Applicable Law

[4] The starting point for an appellate Court is the presumption that any decision appealed against is correct in every respect. Therefore, to succeed in an appeal, the Plaintiff and Defendant in this case, must convince this Court that the decision appealed against is wrong; and if this Court is not so convinced, the appeal fails.

[5] This is because 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 MarsdenLR 383 . An appellate Court, therefore, should be cautious in overruling the findings of the trial judge.

[6] However, having said that, this does not mean that the hands of the appellate Court are tied. The exception to the general rule mentioned above is when the findings are clearly wrong: China Airlines Ltd v. Maltan Air Corp Sdn Bhd , 1996 MarsdenLR 1330 ; or where crucial evidence has been misconstrued, or disregarded: Multar Masngud v. Lim Kim Chet & Anor; 1982 MarsdenLR 68 ; [1982] CLJ Rep 237; or if the trial judge is shown to have misdirected himself on the evidence, or to have rejected evidence for a wrong reason, or to have drawn an inference from evidence which was equally capable of supporting a different inference, it then may be the duty of an appellate Court to interfere: Woon Ngee Yew and Others v. Ng Yoon Thai and Others; [1941] 10 MLJ 37.

[7] Guidance may also be obtained from the case of Paya Terubong Estates Sdn Bhd v. Pusaka Warisan Sdn Bhd , 1998 MarsdenLR 1782 , in the words of Gopal Sri Ram JCA (as he then was):

One can, of course, quite well appreciate an appellate Court's reluctance to disturb the primary exercise of discretion. This is because a Court of appeal in a matter such as the present does not possess an original discretion, its initial function being one of review only. However, where, as in the present instance, it is amply demonstrated that the judge in whom the primary discretion is vested has failed to take into account relevant considerations it is the duty of this Court to say so and to intervene and set matters right by an exercise of its own discretion.

[Emphasis added]

Contentions, Evaluation, And Findings

Whether The Agreed Facts Should Have Been Revisited

[8] The Defendant contended that he had gone to the Plaintiff to obtain a skincare treatment and products package in 2014 and because he had not used it, the Plaintiff had converted it to a 2017 package.

[9] The learned Magistrate concluded that there was a doubt as to which package the Plaintiff was referring to, and as a result thereof, there were several gaps in the Plaintiff's case, resulting in the failure of the Plaintiff to reach its threshold of proof.

[10] In my view, the Magistrate had failed to consider that pursuant to the Statement of Agreed Facts found on p 3 of the Record of Appeal, the relationship between the Plaintiff and Defendant had begun only in 2017, and that the Defendant had in fact requested for and received the skin care products and services from the Plaintiff.

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