Khor Gaik Thiam v Theow Say Kow @ Teoh Kiang Seng, Henry

Case Significance

A Federal Court restatement of the 'plainly wrong' test governing appellate review of a trial judge's findings of fact, allowing the appeals, setting aside the Court of Appeal's reversal, and restoring the High Court's findings and costs order.

This Federal Court decision is one of a set of consolidated civil appeals heard and determined together, concerning the duty of an appellate court when reviewing a trial judge's findings of fact, and the correct application of the "plainly wrong" test. The appeals arose from a hard-fought dispute that had been tried in the High Court at Penang, in which the trial judge, having heard the witnesses, made findings of fact and gave judgment. On appeal, the Court of Appeal had taken a different view of the evidence and reversed the High Court. The central questions before the Federal Court concerned the proper approach of an intervening appellate court to a trial judge's assessment of the evidence, the difference between the roles of the High Court and the Court of Appeal in evaluating evidence, the operation of the "plainly wrong" test, and the law and procedure governing the recantation of evidence, together with the reliability and credibility of expert and interested witnesses. This appeal, brought by a further appellant against the same respondent, was heard together with the related appeals, and turned on the same core question of whether the Court of Appeal had been entitled to substitute its own evaluation of the evidence, including evidence that had been the subject of recantation, for that of the trial judge. The Federal Court held that an appellate court may interfere with a trial judge's findings of fact only where they are shown to be plainly wrong — that is, findings that no reasonable court, having the advantage of seeing and hearing the witnesses, could have reached — and not merely because the appellate court might have reached a different conclusion. Concluding that the Court of Appeal had wrongly disturbed findings that were properly open to the trial judge, the Federal Court allowed all the appeals, set aside the decisions of the Court of Appeal, and affirmed the findings of the High Court. It reversed the Court of Appeal's costs order in favour of the appellants and reinstated the High Court's costs order, subject to allocatur. The decision is a significant restatement of appellate restraint in relation to concurrent or first-instance findings of fact.