JUDGMENT

Lord Fraser of Tullybelton (delivering the judgement of the Board):

This is an appeal from the Federal Court of Malaysia which allowed an appeal from the judgment of the High Court in Malaya (Abdul Hamid J). It concerns a dispute as to who is entitled to a sum of $60,384.80. According to the appellants, the money was put in trust by a dying man as a provision for his widow and has been properly paid over to her; according to the respondent, it was obtained fraudulently from an unmarried man, when he was mentally incapable of understanding what he was doing, and ought now to be restored to his estate. Two main issues are raised. The first is whether the money was validly transferred by the late Loke Yaik Hoe ("the deceased") into a joint account in names of himself and the first appellant at the Pasar Road branch of the second appellants' bank, or whether the cheque purporting to make the transfer was invalid on one of the several grounds alleged by the respondent. This is a question of fact, the answer to which depends on the mental capacity of the deceased at the material time. The second question is whether, if such transfer was validly made, an effective trust was set up relating to the amount transferred. This is a question of law. Both questions were answered by Abdul Hamid J in favour of the appellants, but his decision on both points was reversed by the Federal Court.

The trial Judge's decision on first question, the question of fact, was reached after he had heard a considerable volume of evidence, some of it sharply conflicting, and had accepted the appellants' evidence, and rejected the respondent's. The principles on which an appellate Court should act in reviewing the decision of a Judge of first instance on a question of fact have been stated in many cases in the House of Lords and in this Committee, and it will be appropriate to quote from two of them. In Watt or Thomas v. Thomas [1947] AC 487 at p. 487 Lord Thankerton said this:-

(1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion.

(2) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

(3) The appellate Court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court."

That passage was quoted with approval in the judgment of this Board, delivered by Lord Guest in Tay Kheng Hong V. Heap Moh Steamship Co. Ltd. When Lord Thankerton referred in para. (1) to "the printed evidence" he was referring to a transcript of a verbatim shorthand record of the evidence, such as was available in that case. But in the instant appeal all that the Federal Court had before it was the judge's notes of the evidence, perhaps augmented in places by a transcript of shorthand notes, and it is obvious that the disadvantages under which an appellate court labours in weighing evidence are even greater when it has to rely on such an incomplete record than when it has a verbatim transcript.

The second case from which it is appropriate to quote is Powell and wife v. Streatham Manor Nursing Home [1935] AC 243, 249 where Viscount Sankey LC said this:

What then should be the attitude of the Court of Appeal towards the judgment arrived at in the Court below under such circumstances as the present? It is perfectly true that an appeal is by w