This was an action for damages against the respondent for assault and battery. The learned magistrate after a lull hearing dismissed the plaintiff's claim with costs. The appellant is dissatisfied with his decision, hence this appeal.

Briefly the facts are as follows. The appellant ("the plaintiff) was a businessman who ran a coffee shop under the style and name of "Kedai Kopi New Wah Hong" at U0091, Jalan Orang Kaya Kaya Awang Besar, W.P. Labuan. The respondent ("the defendant") was a taxi driver. On 3.5.2005 at about 12.30 p.m. the plaintiff discovered that the tyre of his car which was parked behind his shop was punctured. The space where he parked his car was meant for taxis only but since he worked at the coffee shop he parked his car there. He asked his workers who punctured the tyre. Before his workers could answer the defendant walked towards him and shouted "you talking about me?!" in Mandarin. Apparently the defendant had taken offence to the question. Before the plaintiff could even react the defendant gave him a solid punch in the right eye causing him to fall to the ground. After he fell down the defendant continued to punch and kick him all over his body including his face and head. To a question what the defendant used to beat him up the complainant's answer was:

"For sure his hand, his fist and his legs. He was wearing shoes. He used the shoes to kick me. I saw him holding a stick when I got up. Apart from the stick, did not see anything else he was holding."

According to the plaintiff on seeing that he was being beaten up by the defendant his wife came over and separated them. He said the beating was very painful and he thought his right eye ball had burst and had become blind. His wife rushed him to the police station which was 10 minutes away from the scene. He wanted to make a police report but was told by the police to go to the hospital first as his eye was bleeding. He was given a slip of paper to be handed to the hospital. His wife then took him to the Labuan hospital where he was admitted for two days. His police report was taken at the hospital. Photos were also taken of the injuries he sustained. According to the plaintiff his business was disrupted as he could not sell bakuteh for 3 days as a result of the injuries. He said his income from selling bakuteh was RM500.00 per day and after deducting expenses his net income was RM300.00 per day on average. He said only he knew the secret recipe of his bakuteh.

In cross examination the plaintiff admitted that he had parked his car at the taxi stand illegally. Asked if he knew who punctured the tyre of his car he said he had no idea. He testified that the stick the defendant was holding was a broom stick. He added that when he asked who punctured the tyre he was not directing the question to anyone in particular. Medical evidence was adduced through Dr. Khalid Hussain Akhtar (PW2). He testified that in May 2005 he was attached to the Labuan Hospital and did examine the plaintiff at the emergency department on 3.5.2005 at 3.00 p.m. He said the plaintiff was in pain, his right eye swelling and red and he could not see with that eye. PW2 added that the right eye vision was lost at that time and was considered a serious injury. He said by using the light-reaction test there was no reaction in the case of the plaintiff's right eye. His diagnosis was that there was blunt trauma to the face and dried right eye, bruises on parts of the body and lacerative wound on the left cheek. Asked what was the most probable cause of the trauma he said the likely cause was hand/fists. In re examination he reaffirmed that the injuries were likely to have been caused by a blow from a fist. He added that the injuries were consistent with the plaintiff's complaint. Awang Besar bin Hussin (PW5) was the medical assistant who attended to the plaintiff after he was referred to him by PW2. He described the condition of the plaintiff's right eye as follows:

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