TOPIC 8: TRIAL

SUB AREA – yellow highlighted most important areas

 Mode of trial
 Preliminary questions or issues
 Absence of parties
 Adjournments
 Course of Trial
 Evidence
 Submission of no case to answer
 Agreed Bundle

INTRODUCTION

 Trial is a court process conducted in open court where the parties involved will
present their evidence through their witnesses.
 Originating process: Writ – where there is dispute of facts, SOC, SOD
 O35 ROC
 Trial must be made conducted in open court  NOT in chambers
 Documents (Writ, SOC, SOD) must relate back to facts  evidences

INTRODUCTION

 Trial has 3 stages – must be undergone by both parties

 This essentially involves:
▪ Examination-in-chief of witnesses
▪ Cross examination of witnesses
▪ Re-examination of witnesses
▪ Close > Written / Oral Submissions by the respective parties

Mode of Trial

 O 33 R 1 (1) ROC 2012 – Preliminary Objections

■ 3 mode of trial/PO:
▪ By Judge
▪ By Judge with or without assistance of assessors (See O 33 R 4 ROC 2012)
▪ By Registrar

Preliminary questions or issues

  O 33 R 2 ROC – when PO raised:
■ Court may order any question or issue to be tried.
■ Court may give directions on any question or issue raised.

 O33 R 5 ROC
■ Court may dismiss action after decision of preliminary question or issue.
■ Court may also give Order or Judgment to the preliminary question or issue.

Preliminary questions or issues

 Preliminary questions or issues are usually serious question of law that may conclude
the action.
 This would dispense with any further trial, or with the trial of some substantial issue
in the action.
 Therefore, an order for the hearing before trial of a point of law raised will be made
only when the objection raises a serious question of law.

Cases:

 Chan Kum Loong v Hui Sui Eng (1980) 1 MLJ 313

 Thye Lam v Eastern Shipping Corporation Ltd (1960) MLJ 235
 Ayer Itam Height Sdn Bhd & Ors v Chung Nyuk Sen @ Henry Chung (2003) 2 MLJ
481
 Kwang Yik Bank Bhd v Kwan Chew Holdings Sdn Bhd (2011) 2 CLJ 269
 Jayabena Sdn Bhd v Kwan Chew Holdings Sdn Bhd (1985) 1 MLJ 394
 Ooi Chew Seng v Ultratech Sdn Bhd & Ors (1997) 2 MLJ 344
 Federal Insurance Co v Nakano Singapore (Pte) [1992] 1 SLR 390
 Dominic Puthucheary v Jet Age Construction Sdn Bhd & Anor [1997] 2 MLJ 252
(CA)
 Messrs KK Lim & Associates v OCBC (Malaysia) Bhd [2023] 8 CLJ 389
 The Df raised PO during trial of the 9th Witness from Plaintiff Side (PW got 13W). If
there is any PO, it should be raised in preliminary stages ie before trial. PO cannot be
done during trial; during XE. PO was objected

Preliminary objection - Prior notice in writing:

 Jasabena Sdn Bhd v Beng Heng Poo & Anor [1985] 1 MLJ 394
 PNIW case
 Ooi Chew Seng v Ultratech Sdn Bhd & Ors [1997] 2 MLJ 344

Absence of parties
**important
a) Both parties absent
• O35 R1 (1) ROC: Both parties fail to appear/absent – when trial of action is called
and neither party appears, the J may dismiss the action/make any other order as he see
fit
• O35 R1 (2) ROC: One party absent – when trial of action is called and ONE party
does not appear, 1- the J may proceed with trial of action; or 2- any counterclaim in
absence of party; or 3- without trial give judgment; or 4- dismiss the action; or 5- make
any other order as he think fit
o See which situation to apply law – eg: If Df has no CC  can apply to
strike out claim

Case:
▪ Anne Lim Keng See (t/a Golden Kintex-Sole-proprietorship) v Malayan
Banking Bhd (2009) 9 MLJ 502 – differentiate with Shahruddin facts (W present),
while for Anne Lim W x present
Due to the plaintiff's failure to be present during the trial, despite being the only
witness in her suit, the court was entitled to order a dismissal of the action as the case
for the plaintiff remained unproven. If the parties do not attend and do not ensure that
their witnesses are present, they do so at their own peril.
- Suit on defamation/libel
- Case fixed for trial – when case was called, Pf’s lawyer, Df lawyer and Df
witness present
- O35R4 – course of trial: who begins opening speech; in any trial  Pf begins bc
BOP lies on Pf
- Pf counsel req for adjournment bc Pf who supposed to be called as PW1 was
absent
- Df counsel then refused for adjournment, asked TH to proceed with trial
- Q: can ct give adjournment – O35R3
- Pf claimed x able to contact Pf and was unavailable
- J held: cannot adjourn and req’d to proceed – Pf counsel req for matter to be
struck out
- Court x did allow striking out application, and dismissed Pf’s action with costs
- Pf lawyer appealed – court gave distinction btwn SO and dismissal
- “There was a distinction made btwn SO and dismissing an action. If the case
is struck out, then O35R2(1) can be utilized to apply for reinstatement –
within 14 days. But, when the case is dismissed, as in the instant case, then
the avenue opens to the aggrieved party to appeal. This is based on the
rationale that the case was already heard on merits.”
- Appeal by pf when case dismissed > case x heard, x heard on merits = hence Pf’s
appeal also dismissed

Reinstatement
 O 35 R2 (1) ROC
 Case: Hong Leong Finance Bhd v Robin Woon Kim Yan & Anor (1998) 4 CLJ
Supp 408
  Any request for restoration of a case struck out for non-appearance of the plaintiff
should normally be granted by the court, unless the absence of the plaintiff was either
intentional or contumacious.
 Few issues raised:
1- Grounds to be considered for SO case
2- Whether the court shld hv postponed case whr Pf x present
3- Whether aggrieved party ought to hv applied for reinstatement of case/app;y for
setting aside for striking out order
4- Whether there is sufficient grounds to allow the reinstatement

Ground 1
- O35R1(1) & (2) is relevant
- Alluded to subpara 1 as at no time I deal with the merits of case = did not
proceed with trial of action
- At no stage of session did I apply my mind to the facts or the laws surrounding
the case
- Therefore, applying the law, I may make any order I deem fit [apply subpara 5]

Ground 2
- By any large, this was merely additional evidence on pf’s lack of interest in the
case
- O35R3 provides powers to adjourn/postpone trial as he thinks fit
- Even if I had wanted to, it must be pursuant to some good reasons
- PD No. 5 1989 deals with adjournment only when needed
- In this case, the Pf’s lawyer cheekily sent a fax to the court a day before the trial
to postpone the matter without any good reason
- Even if the Df agreed to postpone, I will not allow so

Ground 3
- Refer O35R2 – merits / no merits

Ground 4
- Up to discretion of court

 O 35 R2 (2) ROC
▪ Application for reinstatement must be made within 14 days
▪ Case: Ger-Mal Sdn Bhd v Zulkifli Hassan & Anor (2001) 6 CLJ 376

 If the judge refuses to reinstate the action, the plaintiff may:

▪ Appeal to the Court of Appeal; or
▪ File afresh if the limitation period has not expired

b) Either party absent

• O35 R 1 (2) ROC
• Judge may proceed with the trial of the action or any counterclaim in the absence of
that party
• In such, the party who appears will have to prove his case on any issue on which he
bears the burden of proof.
• When Df absent – Pf can prove his case / claim judgment
Cases:

 Liew Geok Lan v John Loh (1993) 3 CLJ 158

 Df was absent
 Having satisfied that Df has been duly informed of the trial and not appearing without
any explanation, I proceeded to hear the Pf’s merits pursuant to O35R1. The Pf,
having proved her case, is entitled to such relief as she claims and in consistent with
the pleading.
 Guindarajoo a/l Vengadason v Satgunasingam a/l Balasingam (2010) 4 MLJ 842
 The position obtained when Df does not turn up at trial
 There are 2 aspects to this:
1- If one party appears and the court is ready to hear the matter on merits, the
testimony of all Ws present must be heard before decision is pronounced
2- The court will have to accept the pleadings as it is and give judgment instead
 Shaharuddin bin Abdul Rahman v Satisah Ismail Sdn Bhd (1982) 2 MLJ 79
 Pf present with PWs on trial date, Df’s counsel was present without his witnesses nor
the Defendant himself
 As Df was absent and has no witnesses, Pf requested for judgment instead – court
refused the request for standing judgment
 Re: Df counsel present, Pf x request for judgment – to proceed with trial by Pf first
 The learned judge erred in law when judgment given agsnt df where Df’s counsel is
present.
 if the Pf was absent and Df x cc, can strike out. However if Df has CC, may proceed
to obtain judgment for CC/proceed with matter

 Hup San Timber Trading v Tan Ah Lan (1979) 1 MLJ 238

 Lai Moo Nui & Ors v Muheendran VKN Pillay (2008) 3 CLJ 288
 New India Assurance v Karam Singh [1972] 2 MLJ 26 (F.C)
 Asia Commercial Finance (M) Bhd v Pasadeno Properties Development Sdn Bhd &
Ors [1991] 1 MLJ 111

Adjournment

 O35 R3 ROC
o Parties can request for adjournment and court must entertain such application
– however whether adjournment is granted is up to judge’s discretion
o The judge may, if he thinks it expedient in the interest of justice, adjourn a
trial for such time, upon such terms, if any, as he thinks fit = judge discretion
o Good reasons essential
o Not more than 3 times unless the circumstances otherwise requires.
o Judge should not make an order “as would defeat the rights of a party and
destroy them altogether unless he is satisfied that [the absent party] has been
guilty of such conduct that justice can only be properly done to the other
party.”
Cases:

 Ger-Mal Sdn Bhd v Zulkifli Hassan & Anor (2001) 6 CLJ 376
 Pf Counsels were absent, Df counsel obtained different trial date – mention on Pf
behalf to request for an adjournment and different date
 As it is Court’s discretion, court to implement guidelines to exercise discretion (7
considerations) =
1- The importance of the proceedings and their likely adverse consequences to
the party seeking the adjournment
2- The risk of the party being prejudiced in the conduct of the proceedings if the
application were refused
3- The risk of prejudice or other disadvantage to the party if the adjournment
were granted
4- The convenience of the Court
5- The interest of justice generally in the efficient dispatch of Court business
6- The disability of not delaying future litigants by adjourning early and thus
leaving the Court empty to which other cases could have been fixed to be
heard
7- The extent to which the party who applied for adjournment had been
responsible for creating the difficulty which had led to the application
 Instead of giving adjournment (as req’d by Pf solicitor)  court struck out the case
without going through merits of case: [reasons being below]
1- Pf had been informed to be present but had not done so
2- The reasons not to be present were unacceptable – Pf lawyer could not secure
a flight ticket to Kota Bahru
3- The fact that the Df was willing to mention the matter on behalf of Pf did not
attract sympathy of the Court as Court was unable to locate in the file any
documentation confirming the postponement of the Pf
4- By sending fax at the 11th hour (last minute) and eventually not being present,
the Pf was certainly being presumptuous of being successful in the application
5- In the int of justice and convenience of the Court, the case ought to be struck
out

 Go Pak Hoong Tractor v Sykt Pasir Perdana [1982] 1 MLJ 77

 The granting of an adjournment is in the absolute discretion of the court depending on
the facts of each case and unless it can be shown that the discretion was improperly
exercised it should not be disturbed. The facts of the present case clearly show a
lackadaisical attitude towards lawyers' duty to their clients and their duty to the
courts. As stated in the grounds of judgment of the learned judge the case had been
fixed for hearing about 5 months previously and suddenly on the date of hearing a
telegram was received stating not only that counsel was unable to obtain a seat in the
plane but also the defendant suddenly fell sick. One should also consider the difficult
position of the courts in circumstances such as the present case.
 Maxwell v Keun [1928] 1 K.B 645
 Dick v Piller [1943] 1 K.B 497
  Hup San Timber Trading v Tan Ah Lan [1979] 1 MLJ 238
 Q: whether adjournment supposedly to be granted
 Message by telegram stating Df was sick therefore req’d for adjournment
 Since the J was in some doubt as to the real reason as to the Appellant’s absence, an
adjournment should have been allowed and any delay occasion could be compensated
by an award of costs.
 The granting of an adjournment is in the absolute discretion of the Court, depending
on the facts of each case, unless it can be shown that the discretion was improperly
exercised; it should not be disturbed.
 Discretion usually depends on 1- the case; 2- the degree of case (the length of the
trial)

 MGG Pillai v Tan Sri Dato Vincent Tan [1995] 2 MLJ 493
 Lee Kong v Leong Koo [1996] 2 MLJ 229 (CA)
 Harrold Shaw v Wong Phila Mae [1990] 1 MLJ 205
 Ting Sieh Chung v Hock Peng Realty Sdn Bhd [2016] 7 CLJ 527

Practice Directions and Articles

 Practice Direction No. 2/1992

 Practice Direction 2A of 1971
 Practice Direction 5 of 1989
 Waste of Court’s Time – Solicitor to pay costs [1960] MLJ xvi
 Postponement and backlog in the courts [1970] 2 MLJ xxv

Course of Trial – Who starts first?

Whoever carries burden of proving matter starts first [Plaintiff] BUT if any oth occasion
the Court may direct parties such as Df to start matter first

 Pf introduces parties, and if Ct x ask for facts  W is called

 Course of trial – starts with EIC

EIC – Pf stage [Pemeriksaan Utama]

 Pf to prove his case – requires Witness Statement (provides evidence)
 Without witness affirming WS made by himself, the evidences/WS itself CANNOT
BE tendered as exhibit
 Witness must affirm his evidence in Bundle of Documents
 Qs limited as to facts of case; cannot be direct questions ie leading questions

XE – Pf stage [Pemeriksaan Balas]

 Df cross examines PW – no limit as to questions; can ask leading questions
 Pf Counsel x be present near PW

Re-XE [Pemeriksaan Semula]

 Pf counsel
  Df stage – same process just diff counsels

 Submission stage = Pf  DF  Pf

 Decision

 O35 R4 (1) ROC

▪ The judge may give directions as to the party to begin and the order of speech at the
trial
▪ Normally, plaintiff begins unless burden lies with defendant
 O35 R4 (2)-(4) ROC
▪ Describes sequence of opening speech, witness examination, closing speech
▪ Plaintiff has right of reply if new point of law raised by defendant

Cases:

 Seldon v Davidson [1968] 2 All ER 755

 Lo Khi On v Tg Aru Hotel S/B [1994] 3 MLJ 766
 Kulandi v Subramaniam [1983] 1 CLJ 302
 Chong Chee Yan v Germila Sdn Bhd & Anor [2001] 5 MLJ 264
 Dato' Ting Check Sii v Galaxy Grip Sdn Bhd & Ors [2007] 1 MLJ 483
 Muthurasu Pillai v Pakir Mohamed (1920) 7 FMSLR 70

Evidence

 O38 R1-2 ROC

▪ Oral evidence in court
▪ Witness statement admissible if witness attends
 O38 R3, R13, R14, O39 (Depositions), O41 (Affidavits)
 Agreed/Disputed Bundle & Statement of Agreed Facts
 Witness Statement – Faridah Ariffin v Dr Lee [2002] 1 CLJ 660

Cases (Documentary Evidence)

 Henry Trading Co Ltd v Harun [1996] 2 MLJ 281

 Yap Choo Hoo v Tahir b. Yasin & Anor [1970] 2 MLJ 138
 Borneo Housing Mortgage Finance Bhd v PR of Lee Lun Wah & Anor [1994] 1 MLJ
209
 Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ 509
 Dato’ Abdullah Hihsan v Sharma Kumari Shukala (No.3) [2000] AMR 334
 Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377
 Goh Yu Tian v Tan Song Gou & Ors [1981] 2 MLJ 317
 YB Dato’ Hj Husam v Mohd Faisal Rohban Ahmad [2015] 3 MLJ 364
Submission of No Case to Answer** - under Course of Trial O35R4

 The Df does not wish to adduce/elect any witnesses to be called/be produced in Court
– No Witness during Df stage
 Df does this when find that Pf has not established case; where all PW has been
tendered as ID (Identified Documents) and not Exhibits = degree of weight of
evidence is low
 Court does not favour this 
1- The room of the Df to elect/adduce evidence is at this stage
 Alexander v Rayson [1936] 1 KB 169
 A submission of this nature is rare and it has been said that it is undesirable for a
judge, being a judge of fact, to make any ruling on the evidence until the evidence is
completed.
 Yuill v Yuill [1945] P 15
 A submission of no case to answer may be made by the defendant either if no case has
been established in law or the evidence adduced is unsatisfactory or unreliable.

 UN Pandey v Hotel Marco Polo [1980] 1 MLJ 4

 In civil cases, as much as in criminal cases, a party must prove his case before the
burden of proof shifts to the other side.
 In a criminal case, the Prosecution’s burden is a heavy one (beyond reasonable doubt)
 In a civil case, the maxim is on a balance of probabilities. But, the proof is that the
balance must be filtered by the Pf before the Df makes his case. It would only be a
desirable practice in our Courts to allow submission of no case to answer at the end of
the Pf’s case without putting the Df to his election, whether to call evidence or not if
his submission fails. Such a practice will ensure not only that there is a thorough
preparation of the case before trial, but also a careful presentation at the trial.
 Altogether, the practice will bring about a saving of costs for the parties.

 Ng Neoh Ha & Ors v Maniam & Ors [1994] 1 MLJ 434

 Tan Song Gou v Goh Ya Tian [1983] 1 MLJ 60
 Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng [1994] CLJ 509
 It will be noticed that in the instant case, the Df counsel did not say that he wished to
make submission of no case to answer for if the Defence had wished to make it, then,
the trial court would be under an obligation to put to the election of the Defence
counsel that he would not call any evidence because the same court would not rule on
such submission of no case to answer in the absence of such declared election,
otherwise the court would make its ruling/decision only after hearing the entire
evidence of the Defence, if any.
 TLDR: when Df elects not to admit any evidence, the J must give caution to Df when
such request is made. Decision is made solely on evidence Pf has adduced, merits of
Df’s case is not considered.
 = just call Ws la
 Laurie v Raglan Co [1942] 1 KB 152
 Young v Rank [1950] 2 KB 510
 Storey v Storey [1961] P 63
Additional Items

 Application to re-open case: Tan Kah Khiam v Liew Chuan Anor [2006] 4 CLJ 715
 O36 ROC: Trial before Registrar
 O37 ROC: Assessment of Damages
 Role of Judges: Jones v National Coal Board [1957] 2 QB 44, and others
 Remote Communication: O33 ROC
 Agreed Bundle:
▪ Required to file bundle with relied documents
▪ Same cases as above repeated

Final Slide

"A fair trial is one in which the rules of evidence are honored, the accused has competent
counsel, and the judge enforces the proper courtroom procedures."