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“Taking the cue from the jurisprudence propounded by the Court of Appeal in Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd [2017] CLJU 527, we should revisit the common law principle that “Leave may be refused to a plaintiff to discontinue the action, if the plaintiff is not wholly dominis litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him.” This is because the starting principle must be that it is not desirable that a plaintiff should be compelled to litigate against his will.”

“If the plaintiff wishes to discontinue his action and the court finds that the plaintiff is not wholly dominis litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him, the court should not force the plaintiff to litigate against his wishes but should allow him to discontinue but without liberty to file afresh.”

“We can now do that, ie, impose a term ‘without liberty to file afresh’, contrary to the position taken by the Indian cases, because as pointed out by the Court of Appeal in Newlake Development Sdn Bhd v. Zenith Delight Sdn Bhd, Malaysian courts can now impose terms on discontinuance as ‘under the new Rules of Court 2012, the court plays a proactive role in moving the pace for litigation. The courts no longer leave it to the litigants to decide the same.’.... this way we can avoid unnecessary wastage of precious judicial time and litigants can also save on legal fees.” - Per Leong Wai Hong JC in Lee Ngan Hoo v. Insp Sarawanan Panrengam & Ors [2025] 2 CLJ 590

“To reiterate, it was held by the Court of Appeal that recantation “involved two-staged application where leave of the court is sought to recall the witness. Sufficient and satisfactory reasons must be shown for the recall of the witness, and where satisfied, the witness is recalled and the recantation takes place.” The Court of Appeal stated further in the later part of its judgment that, “The court must never allow any witness, who has already testified under oath to tell the truth, to change their stance without credible, satisfactory explanation; otherwise, the administration of justice will be seriously undermined.”

“While it is not clear what is the exact basis for the Court of Appeal in coming to a conclusion on the two-stage application as a procedure in recantation, we observed that the Court of Appeal made such statement immediately after referring to the dictionary meaning of recantation, which was argued by Gary as an error as that definition is not a legal definition. That said, the Court of Appeal had also referred to and cited foreign authorities when dealing with the issue of recantation.”

“In this regard, we agree that recantation or retraction of evidence occurring during the trial is a matter for assessment of evidence of the alleged unreliable or untruthful witness. As both parties before us had acknowledged that there is no established rule of evidence or procedure relating to recantation in our domestic law thus far, the Court of Appeal's decision on the two-stage application procedure; and the effect of a recantation would be the total rejection of the evidence of the recanted witness, are incorrect. On the contrary, and with respect, great care and scrutiny ought to be exercised in assessing the credibility and the cogency of the evidence following a recantation.” - Per Abang Iskandar PCA in Teoh Kiang Hong v. Theow Say Kow & Other Appeals [2025] 2 CLJ 683