Gopal Sri Ram JCA:

This is the judgment of the court.

There are two consolidated appeals before us. Their facts are not in dispute. The appellant before us is a creditor of one Chan Kim Swi ("Chan"). Chan was the second plaintiff in the court below. But he took no part at the trial. Chan had a policy of insurance with the respondent. The sum insured was RM600,000. The policy covered loss through robbery at Chan's place of business. On 10 December 1984, Chan lodged a claim with the respondent for loss that he suffered in a robbery that had occurred on 26 November 1984. On the same day the respondent appointed adjusters to investigate Chan's claim.The adjusters produced a report. It is dated 24 April 1985. It is exh. P9 in the record of proceedings in the court below. It is the single most important document in this case. It will be referred to in some detail later in this judgment.

We now resume the narrative. In August 1985, appellant obtained judgment against Chan for the sum owed to it. It then commenced garnishee proceedings against the respondent to attach the sum of RM600,000 which it said was a debt owed by the respondent to Chan. The respondent denied that any sum was owed under the policy and resisted the garnishee proceedings. On 6 July 1987, Shankar J ordered a trial of the issue between the appellant and Chan on the one side and the respondent on the other. He directed the appellant and Chan to be plaintiffs and the respondent to be defendant. He also gave directions as to the delivery and exchange of pleadings. After completion of the procedural formalities, the trial of the issues commenced on 7 June 1995 before the High Court. At the trial, the appellant sought to put in the respondent's adjusters report. The respondent took objection on the ground that the report was covered by privilege and therefore inadmissible. The learned judge overruled - in our view rightly overruled - the objection. The report was then put in and marked as exh. P9. At the conclusion of the trial, the learned judge held that there was no attachable debt in the hands of the respondent. He therefore dismissed the appellant's claim.

In his judgment, the learned judge arrived at his conclusion by the following route. Having admitted exh. P9, he upheld the respondent's argument advanced at the close of the whole case that its contents were hearsay and inadmissible. He held that the respondents were not liable to Chan under the policy for two reasons. First, because the robbery was faked: second because Chan had breached the terms of the policy. Lastly, he held that the respondent's liability to Chan under the policy of insurance was not an attachable debt.

All the issues raised before the learned judge were argued before us. The first point that we need to address is whether the contents of the adjuster's report (P9) are hearsay. It is to be noted at once that counsel for the respondent did not object to the contents of the report as being hearsay immediately upon the document being marked as an exhibit. He waited until the whole case was over and then took the point. He says that he was entitled to do so on the authority of Malaysia National Insurance Sdn Bhd v. Malaysia Rubber Development Corp [1986] CLJ 185 (Rep) [1986] 2 CLJ 285; [1986] 2 MLJ 124 where the former Federal Court held that hearsay evidence remained inadmissible even in the absence of an objection as to its admissibility. Lee Hun Hoe CJ (Borneo) when delivering the judgment of the court said:

Ground 5 is concerned mainly with hearsay evidence. The appellant submitted that the learned Judge's view that the evidence of DW1 was hearsay was clearly erroneous. What PW1 and PW2 said to DW1 could not be hearsay. To support this proposition Woodroffe and Ameer AH, 13th Edition, page 1490, Sarkar's Laws of Evidence, 11th Edition, page 179 and Stiles v. The Cardiff Steam Navigation Co33 LJ QB 310 were cited. In our view the material part of the evidence of DW1 was clearly hears