Poyser FMS CJ:

The facts and arguments sufficient appear from the judgments.

The only question to be determined in this case was one of fact; viz: was the plaintiff the natural or adopted son of Lim Ho Swa alias Lim Soo Chua who died in intestate in China about August 1915. The trial Judge found as a fact that the plaintiff was a natural son of the above deceased.

I am fully aware of the principles which should guide an appellate Court in hearing an appeal from the decision of a Judge sitting without a jury where the matter in question is one of fact. Such principles are fully enunciated in the case of Powell & wife v. Streatham Manor Nursing Home [1935] AC 243. In this case, however, the trial Judge did not base his conclusions on the demeanour of the witnesses in the witness-box - he specifically stated in his judgment that he did not do so, and added that in his opinion "it is almost impossible for a European to derive much assistance on that ground from watching the face of an oriental unless there is something more than usual upsetting in the whole case".

As the trial Judge, therefore, based his decision on the probabilities of the truth of the story told by the plaintiff, which probabilities, he considered, were definitely in favour of the plaintiff, this Court is in as good a position as the trial Judge to Judge of the matter - (see Govind Prasad & Ors v. Kunwarani Bala Kunwar & Ors AIR 1934 (PC) 12). In my opinion, all the probabilities in the case point to the plaintiff's claim being a false one.

I would refer to the following evidence, Exh. '3', a statement made by Lim See How, a brother of the plaintiff, to the police in consequence of a complaint laid by the defendant. In this statement Lim See How admitted going to the defendant's house in consequence of a dispute in connection with some shares, but stated more than once that the complainant (the defendant) 'is a brother of my adopted father'.

Leslie Blakesley, a police Inspector, proved the making of this statement, and that the words 'adopted father' were used. Eng Yong Khoon, a detective interpreter, gave similar evidence; he interpreted Lim See How's statement from Tiochiu to Malay. There was not the slightest attempt to suggest in crossexamination that the evidence of Blakesley or Yong Khoon was prejudiced, or that there was any reason for their giving false evidence, but the trial Judge was suspicious of their evidence, and in the course of his judgment stated:

I think then that possibly the thing in this case that makes me most suspicious of the defendant's bona fides is the report produced by Inspector Blakesley. I feel quite certain in my own mind that what is recorded there is not what the deponent said. He would have been an absolute fool if, in all the circumstances of the case, he had said what he is represented as saying.

I do not consider that it is improbable that Lim See How would state that he was an adopted son. He was telling the police how the quarrel arose between himself and the defendant, and it seems to me highly probable that he would inform the police of his status. Further, it is highly improbable, in my opinion, that Yong Khoon the detective, who is in no way connected with the parties, should for no apparent reason give false evidence.

I also think the trial Judge misdirected himself in holding that Lee Wee Nam's evidence took the case no further. This witness admittedly occupies a prominent position in the Chinese community, is the managing director of the Sze Hai Tong Bank, and a disinterested witness. He comes from the same village in China as Lim Ho Swa, applied for Letters of Administration to his estate at the request of his widow Lee Sai Choo, and was granted a power of attorney for that purpose. He stated that he specifically asked Lee Sai Choo if she had any children, and she told him she had not.

The trial Judge considered that this statement of Lee Sai Choo, if it had been made under 'neutral' circumstance