YONG ING HO/YONG HIE HIE vs YONG HIE HIE (MJLR2009a22)Abu Backer,SS
Civ-App-No:12-11-2008
1
5 MALAYSIA
IN THE HIGH OF COURT OF SABAH AND SARAWAK AT SIBU
CIVIL APPEAL: 12- 11 -2008
BETWEEN
10
YONG ING HO ...1st Appellant
(BICK 1395621)
YONG HIE HIE
15 (WN.810124-13-5148)
(both residing at
13-B Jalan Cempaka, 96000 Sibu) ...2nd Appellant
AND
20
KONG CHEN NGIE
(a minor suing by his next friend
LAU SOON PING)
Engkilo, 96000 Sibu ...Respondent
25
(ln the Matter of Sibu Sessions Court Summons No. 5B-53-04-2003
BETWEEN
30 KONG CHEN NGIE
(a minor suing by his next friend
LAU SOON PING)
Engkilo, 96000 Sibu ...Plaintiff
35 AND
YONG ING HO ...1st Defendant
(BICK 1395621)
40 YONG HIE HIE
(WN.810124-13-5148)
(both residing at
13-B Jalan Cempaka
96000 Sibu) ...2nd Defendant
Civ-App-No:12-11-2008
2
BEFORE THE HONOURABLE JUDICIAL 5 COMMISSIONER
Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER
OPEN COURT
10 JUDGMENT
This is my judgment in respect of appellants’/plaintiff’s appeal No. 12-12-
2008 and the respondents / defendants’ appeal No. 12-11-2008 arising out
15 of the same motor accident.
Brief Facts
1. The plaintiff appeals on liability and quantum, where the learned
sessions judge had found liability in the ratio of 20:80 and the plaintiff
20 asserts that the defendant did not give evidence, in consequence the
liability must be 100% against the defendant. The defendants in their
appeal say that the plaintiff, who was a pedestrian, failed to exercise
proper care and in consequence the defendants are not liable or the
learned sessions judge ought to have apportioned liability on 50:50
25 basis, taking into consideration that the plaintiff who was in court at
that material time did not give evidence and only the mother of the
plaintiff gave evidence. Further, the defendants say the agreed
special damages before the trial, must also be apportioned according
to liability.
30
2. I have read both the appeal record and the submission of the parties
in detail. I do not wish to repeat the same here. I take the view that
Civ-App-No:12-11-2008
3
the plaintiff’s appeal must be dismissed 5 with costs and the
defendants’ appeal be allowed partly. My reasons are as follows:
(a) The learned sessions judge had meticulously considered the
complaints of both the appellants in the judgment. The
judgment was based on a finding of facts. It is trite that the
10 appellate court will not ordinarily disturb the finding of facts and
issue of quantum. (see Voon Jan Choo v Lee Chie Siang &
anor [2007] 9 CLJ 242; [2007] 7 MLJ 77).
(b) the plaintiff’s argument that the liability must be 100% against
the defendants as the defendants did not give evidence, is
15 misconceived. I have dealt with this area of law in (Tu Leh Ho
& Ors v Anin Anak Lengie & Lee Sing Forwarding Agencies:
Sibu Civ-App. No. 12-10-2008) and it reads as follows:
“In cases where the defendant does not give evidence and is
a material witness to the case, prima facie, the facts
20 asserted by the plaintiffs has formidable evidential value for
various reasons in law inclusive of the law, relating to
adverse presumption. In consequence the trial judge in an
accident case is duty bound to consider the issue of liability,
i.e whether the plaintiff should be wholly or partly liable as
25 the case may be taking into consideration the facts of the
case. For example if the facts shows that there was a
collision between two vehicles in opposite directions in the
absence of special circumstances there is a prima facie
presumption that both drivers are negligent and the onus
30 falls on each of them to show that the other was negligent.”
(c) the defendants’ argument that special damages must be
apportioned on the basis 20:80 has merits. (see Ng Peng Heng
v Ng Shaw Ching & Anor [2000] 1 LNS 23).
35
3. For reasons stated above, I make the following orders:
Civ-App-No:12-11-2008
4
(a) The plaintiff’s appeal be dismissed with costs 5 to the defendants.
The getting up fees shall not exceed RM10,000.00. If costs
cannot be agreed the defendants are at liberty to tax the costs.
(b) The defendants’ appeal be allowed with costs by stating that
the agreed special damages in the sum of RM45,918.68 must
10 be apportioned on the basis of 20:80. The getting up fees shall
not exceed RM5,000.00. If costs cannot be agreed the
defendants are at liberty to tax the costs.
I hereby order so.
15
SGD
(Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER)
Judicial Commissioner
High Court
20 Sibu.
Date: 9th February 2009
For the Appellants/Defendants:
Messrs. Battenberg & Talma Advocates
25 Level One, 12 & 14
Chew Geok Lin Street
96000 Sibu, Sarawak
For the Respondent/Plaintiff:
30 Messrs. Lim & Lim Advocates
7H, Lot 303, Lorong 1
Jalan Rubber, Kuching
Sarawak
1
5 MALAYSIA
IN THE HIGH OF COURT OF SABAH AND SARAWAK AT SIBU
CIVIL APPEAL: 12- 11 -2008
BETWEEN
10
YONG ING HO ...1st Appellant
(BICK 1395621)
YONG HIE HIE
15 (WN.810124-13-5148)
(both residing at
13-B Jalan Cempaka, 96000 Sibu) ...2nd Appellant
AND
20
KONG CHEN NGIE
(a minor suing by his next friend
LAU SOON PING)
Engkilo, 96000 Sibu ...Respondent
25
(ln the Matter of Sibu Sessions Court Summons No. 5B-53-04-2003
BETWEEN
30 KONG CHEN NGIE
(a minor suing by his next friend
LAU SOON PING)
Engkilo, 96000 Sibu ...Plaintiff
35 AND
YONG ING HO ...1st Defendant
(BICK 1395621)
40 YONG HIE HIE
(WN.810124-13-5148)
(both residing at
13-B Jalan Cempaka
96000 Sibu) ...2nd Defendant
Civ-App-No:12-11-2008
2
BEFORE THE HONOURABLE JUDICIAL 5 COMMISSIONER
Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER
OPEN COURT
10 JUDGMENT
This is my judgment in respect of appellants’/plaintiff’s appeal No. 12-12-
2008 and the respondents / defendants’ appeal No. 12-11-2008 arising out
15 of the same motor accident.
Brief Facts
1. The plaintiff appeals on liability and quantum, where the learned
sessions judge had found liability in the ratio of 20:80 and the plaintiff
20 asserts that the defendant did not give evidence, in consequence the
liability must be 100% against the defendant. The defendants in their
appeal say that the plaintiff, who was a pedestrian, failed to exercise
proper care and in consequence the defendants are not liable or the
learned sessions judge ought to have apportioned liability on 50:50
25 basis, taking into consideration that the plaintiff who was in court at
that material time did not give evidence and only the mother of the
plaintiff gave evidence. Further, the defendants say the agreed
special damages before the trial, must also be apportioned according
to liability.
30
2. I have read both the appeal record and the submission of the parties
in detail. I do not wish to repeat the same here. I take the view that
Civ-App-No:12-11-2008
3
the plaintiff’s appeal must be dismissed 5 with costs and the
defendants’ appeal be allowed partly. My reasons are as follows:
(a) The learned sessions judge had meticulously considered the
complaints of both the appellants in the judgment. The
judgment was based on a finding of facts. It is trite that the
10 appellate court will not ordinarily disturb the finding of facts and
issue of quantum. (see Voon Jan Choo v Lee Chie Siang &
anor [2007] 9 CLJ 242; [2007] 7 MLJ 77).
(b) the plaintiff’s argument that the liability must be 100% against
the defendants as the defendants did not give evidence, is
15 misconceived. I have dealt with this area of law in (Tu Leh Ho
& Ors v Anin Anak Lengie & Lee Sing Forwarding Agencies:
Sibu Civ-App. No. 12-10-2008) and it reads as follows:
“In cases where the defendant does not give evidence and is
a material witness to the case, prima facie, the facts
20 asserted by the plaintiffs has formidable evidential value for
various reasons in law inclusive of the law, relating to
adverse presumption. In consequence the trial judge in an
accident case is duty bound to consider the issue of liability,
i.e whether the plaintiff should be wholly or partly liable as
25 the case may be taking into consideration the facts of the
case. For example if the facts shows that there was a
collision between two vehicles in opposite directions in the
absence of special circumstances there is a prima facie
presumption that both drivers are negligent and the onus
30 falls on each of them to show that the other was negligent.”
(c) the defendants’ argument that special damages must be
apportioned on the basis 20:80 has merits. (see Ng Peng Heng
v Ng Shaw Ching & Anor [2000] 1 LNS 23).
35
3. For reasons stated above, I make the following orders:
Civ-App-No:12-11-2008
4
(a) The plaintiff’s appeal be dismissed with costs 5 to the defendants.
The getting up fees shall not exceed RM10,000.00. If costs
cannot be agreed the defendants are at liberty to tax the costs.
(b) The defendants’ appeal be allowed with costs by stating that
the agreed special damages in the sum of RM45,918.68 must
10 be apportioned on the basis of 20:80. The getting up fees shall
not exceed RM5,000.00. If costs cannot be agreed the
defendants are at liberty to tax the costs.
I hereby order so.
15
SGD
(Y.A. DR. HAJI HAMID SULTAN BIN ABU BACKER)
Judicial Commissioner
High Court
20 Sibu.
Date: 9th February 2009
For the Appellants/Defendants:
Messrs. Battenberg & Talma Advocates
25 Level One, 12 & 14
Chew Geok Lin Street
96000 Sibu, Sarawak
For the Respondent/Plaintiff:
30 Messrs. Lim & Lim Advocates
7H, Lot 303, Lorong 1
Jalan Rubber, Kuching
Sarawak
