Gopal Sri Ram JCA:

Introduction

[1] There are three appeals before us. The parties have agreed to go forward on only this one. That is because the result of this appeal will determine the event of the others. We will now address the facts very briefly.

[2] The appellant is the successor in title to Commercial Union Assurance (M) Sdn Bhd. In July 1989 Commercial Union Assurance (M) Sdn Bhd and a company called Provincial Insurance (M) Sdn Bhd ("Provincial") as co-insurers issued to the respondent a policy of insurance. Provincial is the appellant in one of the other appeals, W-02-29-2000. The sum insured was initially RM14.932 million. In August 1989 it was increased to RM32.431 million. According to the policy the insured subject matter was security paper which was initially stored in Kuala Lumpur and later at a warehouse in Kampong Acheh, Sitiawan. For the purposes of this appeal we will treat it as if it was the appellant who issued the policy as that is the position taken by all before us. On 11 September 1989, a fire broke out at the Kampong Acheh warehouse. The building and its contents were reduced to ashes. The respondent made a claim on the two insurance companies for the sum insured. The appellant and provincial refused to pay. So the respondent commenced a suit against them. The appellant's defence was that the claim was fraudulent. After a trial at which viva voceevidence was taken, the High Court found for the respondent. The appellant and provincial have appealed against that finding.

Appellate Approach

[3] It is common ground between Mr Mahendran of counsel for the respondent and Mr Royan of counsel for the appellant that this appeal turns solely on questions of fact. But the fact that an appeal is based on factual grounds does not absolve this court of doing its duty as an appellate court. And that duty was summed up by Lindley MR in Coghlan v. Cumberland [1898] 1 Ch 704 as follows:

Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross examined before the judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions: and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.

[4] The issue in the present appeal is whether the learned trial judge misdirected himself on the evidence and the facts. In short, whether there was judicial appreciation or evaluation of the evidence by the trial judge.

[5] Not very long ago, in Lee Ing Chin v. Gan Yook Chin [2003] 2 CLJ 19, we formulated the following test warranting appellate intervention:

Suffice to say that we re-affirm the proposition that an appellate court will not, generally speaking, intervene unless the trial court is shown to be plainly wrong in arriving at its decision. But appellate interference will take place in cases where there has been no or insufficient judi