Fresh evidence in appeals must meet established criteria, failing which its admission will be denied.

(In respect of Enclosure 176)

Introduction

[1] The Plaintiff is the Respondent herein and the Defendant is the Appellant. For ease of reference, this Court shall in Grounds of Decision address the parties as in this action. The Defendant in their Notice of Application (Enclosure 176) dated 3 February 2015 applied for fresh evidence to be adduced in the appeal to Judge in Chambers under O 56 r 1(3A) ROC 2012. The proposed "fresh evidence" was listed in para 6 (i), (ii), (iii) and (iv) of the said Notice of Application.

[2] By the said Notice of Application dated 3 February 2015, the Defendant applied to this Court for an Order that he be allowed to adduce the following fresh evidences:-

(i) The letter from Messrs Ting & Ting Advocates to Ketua Imigresen Bahagian Sibu, Sarawak dated 14 November 2014 and its enclosures;

(ii) The letter from Messrs Ting & Ting Advocates to The Director of Immigration Department, Kuching, Sarawak dated 16 November 2014 and its enclosures;

(iii) The letter from The Director of Jabatan Imigresen Malaysia Negeri Sarawak to Messrs Ting & Ting Advocates and copy to Deputy Registrar dated 8 December 2014; and

(iv) The Witness Statement of Tam Kok Meng dated 4 November 2014;

The Defendants Case

[3] The Defendant contended inter alia as follows:-

(i) The documents sought to be adduced as fresh evidence can be classed into 2 categories. The first category consist of item (i) to (iii) of are correspondences between the Defendant and the Director of Jabatan Imigresen Malaysia Negeri Sarawak. The 2nd category is the Witness Statement of Tam Kok Meng dated 4 November 2014.

(ii) Item (i) is a letter from the Defendant to the Immigration Department (Exhibit "T5") seeking enquiry as to whether Mr Tam Kok Meng can testify by subpoena with social pass from Immigration Department. This letter is dated 14 November 2014 and was only received by Jabatan Imigresen Malaysia Negeri Sarawak, Sibu on 20 November 2014. Both these dates are after the conclusion of the hearing of assessment before the Learned Deputy Registrar.

(iii) Item (ii) is a letter from the Defendant to the Immigration Department (Exhibit "T6") seeking enquiring as to whether Mr Tam Kok Meng can testify by subpoena with social pass from Immigration Department. This letter is dated 16 November 2014 and was only received by Jabatan Imigresen Malaysia Negeri Sarawak, Kuching on 8 December 2014. Both these dates are again after the conclusion of the hearing of assessment before the Learned Deputy Registrar.

(iv) Item (iii) is a letter from the Immigration Department replying to the Defendant (Exhibit "T7") where the Immigration Department informed the Defendant that they have no objections to Mr Tam Kok Meng testifying in view that he has been subpoenaed and he has a social pass "Pas Lawatan (Social). This letter is dated 8 December 2014 and is after the conclusion of the hearing of assessment before the Learned Deputy Registrar.

[4] The Defendant also contended that if these letters were obtained and produced to the Learned Deputy Registrar before the Learned Deputy Registrars decision in disallowing Mr Tam Kok Meng to take the stand, the Learned Deputy Registrar would not have so decided.

The Plaintiffs Case

[5] The Plaintiffs case in essence is inter alia that the "fresh evidence sought to be adduced are not fresh evidence as such and thus the Defendant has failed to satisfy the requirements laid down by the case of Ladd v. Marshall [1954] 3 All ER 745.

Relevant Laws And Principles

[6] Order 56 rule 1(3A) Rules of 2012 states:

"At the hearing of the appeal fresh evidence shall not be admitted unless the judge is satisfied that -

(a) at the hearing before the Registrar the new evide