HOCK SENG CONSTRUCTION SDN BHD & ANOR v. YEOH POH OWI & ANOR

HOCK SENG CONSTRUCTION SDN BHD & ANOR v. YEOH POH OWI & ANOR
COURT OF APPEAL, KUALA LUMPUR
SHAIK DAUD ISMAIL, JCA; ABDUL HAMID MOHAMAD, JCA; ABDUL KADIR SULAIMAN, JCA
CIVIL APPEAL NO: A-02-610-2000
22 MAY 2001
[2001] 4 CLJ 1

CIVIL PROCEDURE: Appeal – Record of appeal – Supplementary record of appeal – Application for extension of time to file – No explanation for delay – Whether fatal – Whether a grave injustice to dismiss appeal without hearing merits

The appellants filed a notice of motion requesting an extension of time to file a supplementary record of appeal to include certain evidence of the first respondent which had been inadvertently omitted in the original record of appeal. Counsel for the respondents objected on the grounds that there was inordinate delay in applying for the extension, that there was no plausible explanation proffered by the appellants for the delay, and that there was insufficient material before the court to warrant an extension of time. The learned judge ruled in the respondents’ favour and the appellants appealed.
Held:
Per Abdul Hamid Mohamad JCA (dissenting)
[1] The paramount function of the court is not the mere disposal of cases but the dispensation of justice. The appellants’ counsel was to be blamed for the error but that did not warrant or justify the dismissal of the motion and the subsequent dismissal of the appeal itself without the benefit of a hearing of arguments on the merits.
[Bahasa Malaysia Translation Of Headnotes]
Perayu-perayu telah memfailkan suatu notis usul memohon penambahan masa untuk memfailkan rekod tambahan perayu untuk mengambil kira keterangan responden pertama yang telah dilangkaukan dengan lalai dalam rekod rayuan asal. Peguam bagi pihak responden-responden telah membantah berdasarkan kelewatan terlampau untuk memohon memanjangkan masa dan kerana tidak ada penjelasan munasabah dikemukakan oleh perayu-perayu untuk kelewatan tersebut dan selanjutnya menghujah bahawa tidak ada cukup material dihadapan mahkamah untuk pemanjangan masa. Hakim Mahkamah Tinggi menyokong permohonan responden-responden dan perayu-perayu merayu.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR (menentang)
[1] Tugas terpenting mahkamah bukanlah hanya penyelesaian kes-kes akan tetapi memberikan keadilan. Meskipun peguam perayu-perayu disalahkan untuk kesilapan tersebut akan tetapi ianya tidak mewajarkan penolakkan usul serta rayuan perayu tanpa perbicaraan hujahan-hujahan atas merit.
[Rayuan ditolak dengan kos.]
Reported by K Ganesh

Case(s) referred to:
Gan Hay Chong v. Siow Kian Yuh & Anor [1975] 1 LNS 42; [1975] 2 MLJ 129 (refd)
Lee Guat Eng v. Tan Lian Kim [1985] 1 LNS 26; [1985] 2 MLJ 196 (refd)
Sinnathamby & Anor v. Lee Chooi Ying [1987] 1 CLJ 157; [1987] CLJ (Rep) 336 (refd)
Soh Keng Hian v. American International Assurance Co Ltd [1996] 2 CLJ 449 (refd)
Tan Chwee Geok & Anor v. Khaw Yen-Yen & Anor [1975] 1 LNS 178; [1975] 2 MLJ 188 (refd)
Tan Siew Peng v. OCBC Bank (M) Bhd [1998] 2 CLJ 684 (refd)

Legislation referred to:
Rules of the Court of Appeal 1994, rr. 18(4); 102; 103
Rules of the High Court 1980, O. 2
Counsel:
For the appellants – Leong Choo Kong (Leong Sai Hwa & Thomas Su); M/s CK Leong & Co
For the respondents – Gurbachan Singh; M/s Bachan & Kartar
[Appeal from High Court, Ipoh; Civil Suit No: 22-98-94]

JUDGMENT
Abdul Hamid Mohamad JCA:
This appeal was fixed for hearing during the week beginning on Monday 12 March 2001. On that day, when the court was fixing the appeals for the week this appeal was called up. At that stage Mr. Gurbachan Singh, learned counsel for the respondent informed the court that he had drawn to the attention of Mr. Leong, learned counsel for the appellant, that a copy of the witness statement of the first respondent was not included in the appeal record. He then asked for the appeal to be heard on 14 March 2001 (ie, two days later) to enable Mr. Leong to file a notice of motion for leave to file a supplementary record of appeal. Mr. Leong agreed. The court adjourned the hearing of the appeal to 14 March 2001, as requested by Mr. Gurbachan Singh.
On the next day, 13 March 2001, Mr. Leong filed the notice of motion. On 14 March 2001, as scheduled, the court first heard the motion before hearing the appeal.
Mr. Gurbachan Singh said he was objecting the motion. Mr. Leong appeared surprised. Mr. Gurbachan Singh said that he was only giving an opportunity to Mr. Leong to file the notice of motion and that he did not say that he would not object to it. That is true, but that was not the impression I got. Anyway, that is quite irrelevant.
The court heard both their arguments. The court, by a majority agreed with Mr. Gurbachan Singh’s argument and dismissed the motion. I dissented. The court then, again by the same majority, dismissed the appeal on the ground that there was no proper appeal before the court.
I now give my reasons.
In this case, the notice of appeal was filed on 7 September 2000 and the record of appeal was filed on 1 December 2000. It was not disputed that both were filed within the stipulated time. However, the record of appeal did not include the witness statement of the first respondent, even though the notes of evidence containing the cross-examination and the re-examination of the same witness was included. What had happened was that, in accordance with the recently introduced practice, a typewritten witness statement of the first respondent was tendered in court. That witness statement, as usual, contains the evidence-in-chief of the witness. Again, as usual, the learned judge did not copy it in his notes of evidence. He need not do so as the whole purpose of the introduction of the practice is to save the judge’s time of having to record all the evidence of every witness. The witness was cross-examined and re-examined, as usual. The learned judge, of course, recorded the evidence given during the cross-examination and re-examination. The learned counsel for the appellant wrote to the High Court to ask for the notes of evidence and the grounds of judgment to enable him to prepare the record of appeal. He received both the grounds of judgment and the notes of evidence. He filed the record of appeal.
What he did not realise was that the notes of evidence did not contain the witness statement of the evidence-in-chief of the first respondent.
We cannot blame the judge’s secretary for not typing the witness statement in the notes of evidence, as she typed what the learned judge had recorded in his note book. I agree that Mr. Leong is not totally blameless. He should have checked whether the first respondent’s witness statement was included in the appeal record before filing it.
In the affidavit in support of the motion, the appellant said that his counsel had inadvertently missed out (“tertinggal”) the said witness statement when preparing the appeal record. The statement, which is barely two and a half pages in length was attached.
Mr. Gurbachan Singh argued that no reason was given for the failure to include the witness statement in the record of appeal. But, in the circumstances of this case, what else can be said? The question is, in the circumstances of this case, should such a mistake justify this court to dismiss the motion and, consequently the appeal, without hearing the appeal on merits?
The former Federal Court had been very strict in granting extension of time to file the notice of appeal under the old Federal Court (Civil Appeals) (Transitional) Rules 1963. That is understandable as the rule required special leave to be obtained. Such cases cannot be relied on in this present application.
Cases concerning application for extension of time to file the memorandum of appeal are more relevant. In Gan Hay Chong v. Siow Kian Yuh & Anor[1975] 1 LNS 42; [1975] 2 MLJ 129 (FC) an application for extension of time to file the memorandum of appeal and to serve it on the respondent out of time was dismissed.
In Lee Guat Eng v. Tan Lian Kim[1985] 1 LNS 26; [1985] 2 MLJ 196 (SC) the memorandum of appeal was filed within time but not served within time. The application for extension of time to serve the memorandum of appeal was granted. Hashim Yeop A. Sani SCJ (as he then was, delivering the judgment of the court, said “The court has in fact a wide discretion in granting or refusing extension of time under O. 55 r. 4(3) provided the discretion is properly exercised.”
In Soh Keng Hian v. American International Assurance Co Ltd[1996] 2 CLJ 449(CA the Court of Appeal had to consider whether or not to allow (i) the appellant’s application for extension of time to serve the notice of appeal on the respondent and (ii) the respondent’s application to strike out the appeal for want of service of the notice of appeal. The application was dismissed. Gopal Sri Ram JCA, delivering the judgment of the court said at p. 453:
It is axiomatic that this court is seized of a wide discretion to extend time in proper and deserving cases. But it is not an unprincipled discretion. There must be some relevant evidential material available to us before we may exercise discretion.
In Sinnathamby & Anor v. Lee Chooi Ying[1987] 1 CLJ 157; [1987] CLJ (Rep) 336(SC), an application for extension of time to file the notice of appeal out of time was granted as leave to appeal had already been granted. Mohamed Azmi SCJ pointed out that under the Rules of the Supreme Court 1980,”special leave” was no longer required.
In Tan Siew Peng v. OCBC Bank (M) Bhd[1998] 2 CLJ 684(CA), an application for extension of time to file the record of appeal out of time was dismissed.
But, in none of these cases the issue involved an application for extension of time to file a supplementary record of appeal to include a few pages of the witness statement to the record of appeal already filed in time.
I am also aware of the practice of the appellate courts in this country to even grant leave to appeal, leave to amend the memorandum of appeal, leave to file additional record of appeal when the appeal is called up for hearing where no formal application was made, where justice so requires and then proceed to hear the appeal.
The reason is not difficult to understand: the main function of the court is to do justice not just to dispose of cases. At times it is unjust to dismiss an appeal without even hearing the arguments on merits purely on the ground, that due to the mistake of a solicitor, something that should have been done is not done.
That is why r. 102 of the Rules of the Court of Appeal 1994is provided. In fact r. 103goes further to provide that even when an application is made to set aside proceedings for irregularity, such application should not be allowed unless it is made within a reasonable time and that the applicant had not taken any fresh step after he had knowledge of the irregularity. This provision, in substance, is similar to O. 2 of the Rules of the High Court 1980(RHC 1980). Most, if not all, the irregularities envisaged by r. 102 RCA 1994and O. 2 of the RHC 1980, must necessarily be due to mistakes of solicitors.
Suffian LP in Tan Chwee Geok & Anor v. Khaw Yen-Yen & Anor[1975] 1 LNS 178; [1975] 2 MLJ 188 (FC), observed:
The Rules of the Supreme Court are intended to facilitate, not impede, the administration of civil justice.
In the bad old days in England from where we took our Rules, if you put a coma wrong you were thrown out of court, so strict were they about technicalities.
But over the years this strictness gave way to common sense, and every time the Rules were amended it was with the object of removing fussy technicalities, and making it easier for parties to get justice.
This changed attitude was reflected in the remarks of Lord Collins M.R. about 70 years ago in Re Coles and Ravenshear :(1)
Although a court cannot conduct its business without a code of procedure, the relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and the court ought not to be so far bound and tied by rules, which are after all only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.
In this case, where the appeal record was filed within time, where only two and a half pages of the evidence of the respondent’s witness which was not recorded by the trial judge (as it was tendered as a “witness statement”, a recent practice) and therefore not in the notes of evidence supplied by the court, was not included, where learned counsel for the respondent himself had asked for the appeal to be adjourned for two days to allow the learned counsel for the appellant to file this notice of motion, and the notice of motion was filed, I think this court should exercise its discretion to allow the application and then proceed to hear the appeal on merits. To dismiss it and, consequently, to dismiss the appeal on the ground that there is no proper record of appeal before the court without even hearing the arguments on merits is, to my mind, a grave injustice.
For these reasons I would have allowed the application, and would not have dismissed the appeal without hearing the arguments on merits.

98 visits