JUDGMENTBY: THOMSON CJ, SYED SHEH BARAKBAH J, AZMI J

THOMSON CJ The plaintiff in this case is a milk vendor residing near Kota Bharu in Kelantan. On the night of 7th July, 1959, he was returning home after dark when he was attacked by some person or persons armed with weapons of some sort and sustained personal injuries which, though no doubt severe, did not at any time place his life in danger.

It was the plaintiffs case that the persons who attacked him and injured him were the defendants, both of whom like himself are Sikhs, and in due course after they had been prosecuted criminally he sued them for damages. The action, of course, was for trespass to the person.

In his statement of claim the plaintiff alleged that the defendants together assaulted and beat him, the first defendant struck him with an axe and the second defendant struck him with a stick. At the trial he followed but elaborated his pleading. He said that on the night in question he was returning home on his bicycle when two Malays came out of the jungle and made to attack him. He drove them off with a stick and as they fled the two defendants came out of the jungle. The first defendant struck him two blows with an axe behind the left ear and on the forehead and as he turned to run towards a neighbouring house the second defendant struck him several times on the back with a stick, one of the blows breaking the right shoulder blade.

There was medical evidence to the effect that the plaintiff was examined at the hospital shortly after the attack on him and was found to have an incised wound over the left mastoid region and an incised wound on the forehead, both of which could have been caused by the sharp cutting edge of an axe, and a number of other injuries including a broken shoulder blade which could have been caused either by a fall or by blows with a stick. There is also evidence that some time later at a meeting of the local Sikh community there was some sort of admission of liability by both the defendants.

The defences as pleaded were in the first place non facit and in the second place, and in the alternative, that at the meeting of the Sikh community the plaintiffs claim against the defendants had been "settled" by mutual agreement. At the trial the second and alternative defence was abandoned and both defendants relied on a defence of alibi, they were not there and they did not know anything about the affair and had nothing whatsoever to do with it. They did, however, admit there had been some sort of previous trouble between them and the plaintiff.

In the event the trial judge came to the conclusion that he could not accept the plaintiffs evidence that both the defendants were present when the plaintiff was attacked though he was apparently in some doubt in the case of the second defendant. He took the view that only the anonymous Malays were present and that it was they who inflicted the injuries upon the plaintiff but that they had been employed and instigated to do so by the defendants. On that he gave judgment for the defendants but deprived them of their costs on the ground that they "are not blameless in the matter".

Against that decision the plaintiff has now appealed.

With the greatest respect I am unable to follow the trial judges course of reasoning.

In the first place I would observe there is not a scrap of evidence directly to support his conclusions. The plaintiffs story is that it was the defendants who inflicted the injuries upon him. The defendants story is that they were not there. Nobody has said a word to the effect that it was the anonymous Malays who inflicted the injuries. Indeed it is not unfair to say that the judge based himself very much on the probabilities of the case. One of the arguments he relied on was that the head injuries on the plaintiff were inflicted by an axe, that it is a matter of common knowledge that in the State of Kelantan there is a small class of professional criminals who undertake for hire

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