JUDGMENT

Edgar Joseph Jr J:

At the conclusion of the arguments last Saturday I allowed this appeal and indicated that I would give my reasons later which I hereby do.

In the Sessions Court at Ipoh, the appellant a retired Deputy Superintendent of Police sued the respondent, a businessman, for the return of a sum of RM6,000 which he claimed he had paid the respondent as a deposit under a Sale and Purchase agreement dated 3 January 1979 (the agreement), for the purchase of a terrace house, being No. 43, Jalan Hassan, Lim Garden, Ipoh, Perak (the property), the total purchase price being RM25,000. The appellant alleged that in breach of the agreement the respondent had transferred the property to one Chung Ah King.

By his defence, the respondent denied both the execution of the agreement and the receipt of the deposit. The respondent further contended that he was absent from Malaysia from 17 November 1978 until 22 January 1979 and could not therefore have entered into the transaction concerned with the appellant in Ipoh on 3 January 1979. He, however, admitted that he had sold the property to Mr. Chung Ah King.

I have an observation to make regarding the respondent's defence. On the face of his pleading, fraud on the part of the appellant may or may not have been implied but it became clear at the trial both from the cross-examination of the appellant and his witnesses and from the submissions of Counsel for the respondent that what was alleged was not fraud on the part of the appellant but fraud on the part of an unknown third party who had impersonated the respondent and entered into the transaction concerned with the appellant. In other words, the defence raised the ever recurring question: which of two innocent parties is to suffer by the fraud of a third? The issue in the Court below was thus clear: was there or was there not any such impersonation as alleged by the respondent? Upon this question, once prima facie evidence was adduced by the appellant that it was the respondent who executed the agreement and received the deposit of RM6,000 the onus shifted to the respondent to prove his allegation of impersonation. In my view, for reasons which will become apparent later in this judgment, the respondent had failed to discharge this onus.

In my approach to this appeal I have kept in the forefront of my mind on the one hand the principle that the graver the issues involved, and especially where allegations of fraud or criminality are expressed or implied, the greater the duty of the appellate Court to ensure that the conclusions of fact arrived at by the Court of Trial are, for all practical purposes, unimpeachable, and on the other, the following principles enunciated by Lord Thankerton in the celebrated case of Watt v. Thomas [1947] AC 484 @ pp. 487 to 488:

... I. 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; II. 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; III. 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.

(Emphasis is mine).

And then Lord Thankerton added, what I consider to be of special relevance to this appeal, namely:

... It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class