Appellate courts may intervene in trial court decisions to prevent substantial injustice when errors lead to flawed judgments, necessitating a retrial.

[1] The plaintiff Conlay Construction Sdn Bhd claimed payment for construction work done under a subcontract. The defendant Perembun (M) Sdn Bhd counterclaimed. After a full trial, the High Court found in favour of the plaintiff and dismissed the defendant's counterclaim. The defendant appealed to this Court:

"... terhadap keseluruhan keputusan tersebut di mana diputuskan bahawa penghakiman dimasukkan terhadap defendan untuk jumlah sebanyak RM753,769. 61 dan RM374,000. 00 bersama-sama faedah dan kos sebanyak RM45,000.00."

[2] Having heard the parties, the defendant's appeal was allowed, the order of the High Court was set aside and costs was fixed at RM30,000 here and below.

[3] At the trial, the parties had agreed upon the issues to be determined. The issues were issues of fact. The learned judge of the High Court set out the issues at para 7 of her grounds of decision. The first question before us is, therefore, about an appellate Court's approach to findings of fact arrived at by a trial Court to which the law entrusts the primary task of evaluation of the evidence.

[4] Both parties began their submissions with the clear understanding that an appellate will be slow to interfere with the findings of facts and judicial appreciation of the facts in the trial judge. They cited this Court in Sivalingam a/l Periasamy v. Periasamy & Anor, [1995] 3 MLJ 395 CA; This general principle was adopted by this Court in Lee Ing Chin & Ors v. Gan Yook Chin & Anor; [2003] 2 CLJ 19 CA and other cases. It is clear it is a general principle and that there are exceptions when appellate intervention is necessary to ensure justice is done. In the cases regularly cited, the terms "intervene" and "interfere" are used interchangeably. A more precise use of terminology would remove much unnecessary confusion and argument. It is more precise to say that an appellate Court will intervene to correct an injustice when it is shown to have occurred in the trial Court, but it would be an interference otherwise.

[5] The following from the dissenting speech of Lord Pearce in Onnasis & Anor v. Vergottis [1968] 2 Lloyds Re p 403, 430 was quoted in Sivalingam (supra) as containing a valuable reminder:

"The function of a Court of Appeal is to set aside a judgment that should not be allowed to stand because it occasions a substantial wrong or a miscarriage of justice. That wrong or miscarriage of justice may consist of a judgment in favour of the wrong party. It may also consist of a failure in the judicial process to which both parties are entitled as of right, namely, the weighing of their respective cases and contentions. Such failure may constitute a wrong or miscarriage of justice even though it may appear that the appellant may in the end fail to secure a judgment in his favour: But the fact that the right party seems to have succeeded in the Court below will naturally make a Court of Appeal extremely reluctant to interfere, and it would only do so in the rarest cases. Such matters are questions of degree."

[6] This Court in Sivalingam (supra) quoted Lord Atkin's dissent in " The Eurymedon " [1943] 73 LLL Rep 217 where he said:

"... It is, in my opinion, a mistake to suppose that the decision of this House in the Hontestroom, [1927] AC 37, laid down as a proposition of law that an appellate tribunal must in all cases accept the findings of a trial judge where he purports to base these on his belief in the credibility of particular witnesses. No Court can so restrict its statutory jurisdiction; and in these days, where