JUDGMENT

Richard Malanjum JCA:

Introduction

On 16 August 2004 we allowed this appeal. We reversed the judgment of the Sessions Court which was upheld by the High Court on appeal. We came to the conclusion that the respondent was liable for the collision of the two motor cycles bearing registration numbers DP 3935 and PBH 2519 respectively on 25 December 1993 along Jalan Tanjung Bunga in front of Hotel Mount Pleasure, Penang. The issue of quantum was not before us and not an issue between the parties.

Since we reversed the concurrent decisions of the courts below, it would only be appropriate that we should give our reasons. In doing so we are well aware of the principle that generally a higher appellate court does not interfere with concurrent findings of fact by an intermediate appellate court and a trial court unless there is clear justification. (See: Pekan Nenas Industries Sdn Bhd v. Chang Ching Chuen & Ors [1998] 1 CLJ 793 FC (refd)). Where the findings of fact depended upon inferences drawn from other facts an appellate court is more readily inclined to interfere with such findings and form its independent opinion as the court is in as good a position to review and evaluate the evidence of the case as the trial judge. (See:China Airlines Ltd v. Maltran Air Corp Sdn Bhd & Another Appeal [1996] 3 CLJ 163 FC (refd) [1996] 2 MLJ 517). We also bear in mind that it is the duty of an appellate tribunal to check by critical examination of the whole of the evidence a trial judge's conclusion as to the truthfulness of a particular witness. (See: Abraham Ho Ah Loke v. William Manson-Hing [1949] MLJ 37).

Background Facts

At about 2.30am on 25 December 1993 two motor cycles collided along Jalan Tanjung Bunga in front of Hotel Mount Pleasure, Penang. The rider of the motor cycle bearing registration number DP 3935 was the 1st appellant with the 2nd appellant as the pillion rider. They were coming from Bayan Baru and heading for Batu Ferringgi to meet up with some friends at Borsalino Disco.

As a result of the collision, both the appellants were injured requiring hospitalization.

There was no police report made soon after the collision. It was only made on 15 December 1994 by the 1st appellant disclosing, inter alia, PBH 2519 as the registration number of the other motor cycle involved. It was not denied that such motor cycle was registered under the name of the respondent.

It was the assertion of the appellants that the other motor cycle encroached into their rightful lane without any warning thereby causing the collision.

In response, the respondent denied being involved in any collision on that fateful morning. He asserted that he was at home sleeping. But having pleaded thus, the respondent went on to say that even if he was involved, the collision was due to the negligence of, or contributed by, the appellants.

In The Sessions Court

Having heard the evidence, the learned Sessions Court judge came to the conclusion that the appellants had failed to prove their case. Their accounts of the incident were found to be conflicting and thus not credible. The learned Sessions Court judge also disbelieved the prime witness of the appellants, namely, George Albert a/l Jacob (PW2), who testified that he witnessed the collision and did help the injured appellants. The learned Sessions Court judge went on to rule that it was for the appellants to establish their case on the balance of probabilities and not for the respondent to prove that he was not involved in the collision.

The respondent only gave evidence along the line of his main defence, namely, denial of involvement in any collision on or around the morning of 25 December 1993.

In The High Court

In dismissing the appeal, the learned High Court Judge concurred with the findings of the learned Sessions Court judge in particular on the credibility of the appellants and PW2. The findings of the Sessions Court were viewed as well-reasoned.

It was also the conclusion of the learned High Cou