Procedure on filing an appeal from subordinate court to the high court, and introduction of fresh evidence at appeal stage.

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INDIVIDUAL ASSIGNMENT
CIVIL PROCEDURE II
GLUP4024
(GROUP A)
DISCUSS DETAILED ANALYSIS ON THE PROCEDURE OF FILING AN APPEAL
FROM SUBORDINATE COURT TO THE HIGH COURT AND THE
INTRODUCTION OF FRESH EVIDENCE AT APPEAL STAGE WITH REFERENCE
TO RELEWANT PROVISIONS AND CASE LAWS.
PREPARED BY:
ASMAH BINTI CHE WAN 226388
PREPARED FOR:
SIR SHANMUGAM GANESAN
SUBMISSION DATE: 21ST OF MAY 2017

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TABLE OF CONTENT
INDEX CONTENT PAGE
1.0 INTRODUCTION 3
2.0
2.1
2.1.1
2.1.2
2.2
PROCEDURE OF APPEAL FROM SUBORDINATE
COURT TO HIGH COURT
Appeal on a Decision After Trial
Notice of Appeal
Record of Appeal
Appeal on a decision Other Than a Decision
After trial
4
6
7
7
9
3.0 CROSS APPEAL 10
4.0 STAY OF EXECUTION 10
5.0 EXTENTION OF TIME 10
6.0 INTRODUCTION OF FRESH EVIDENCE 11
7.0 INTEREFERENCE BY APPELLATE COURT 13
8.0 WITHDRAWAL OF APPEAL 13
9.0 CONCLUSION 14
REFERENCES 15

3. 3
1.0 INTRODUCTION
Basically there is no definition of ‘appeal’ in the Rules of Court 2012 (ROC 2012).
However an appeal can be described as an application by an aggrieved party to an action,
making an application to an appellate court, asking it to set aside or reverse a previous
decision by a court subordinate to it. In other words, it is an application to a superior court to
review, reverse, vary or set aside the judgement, order, determination, decision or award of
an inferior court on the ground that it was wrongly decided, and requires to be corrected1.
‘Decision’ is defined as judgement, order and decree under Order 49 Rule 6 of Subordinate
Court Rules 1980 (SCR 1980) and section 3 of Courts of Judicature Act 1964 (CJA 1964).
The applicable acts for appeals from subordinate court to High Court include Subordinate
Courts Rules 1980, the Rules of Court 2012, and Courts of Judicature Act 1964.
When discussing the topic of appeal, one must bear in mind that strictly, appeals are
creatures of statutes. Unless otherwise provided by the rules of procedure of any other
statutory provision, there is no right of appeal. The court strictly requires the appellant to
adhere to the rules and procedures set out for appeals before it entertains the appeal. Also as a
general rule, an appellate court will only interfere to exercise its discretion if the court below
had clearly acted on some wrong principle or committed some error or failed to consider
some or all matters which ought to be considered2.
Hamid Sultan Abu Backer in his book, ‘Janab’s Key to Civil Procedure in Malaysia and
Singapore (3rd ed.), mentioned that there are different types of appeals existed in Malaysia.
The appeals as follow;
1 Nahendran, N., & Brendan N, S. (2004). Civil appeals handbook (2nd ed.). Kuala Lumpur; Malayan Law Journal
Sdn Bhd. Page 7
2 Hamid Sultan Abu Backer. (1993). Janab’s key to civil procedure in Malaysia and Singapore (1st ed.). Kuala
Lumpur; Janab (M) Sdn Bhd. Page 411

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a) Appeal from subordinate court to the High Court. This consists of two types, namely
appeal from the decision of the subordinate court after a full trial3 and interlocutory
appeal from the decision of the subordinate court other than a full trial4.
b) Appeals from statutory bodies and tribunals to the High Court.
c) Appeals from Registrar of High Court to the Judge in Chambers.
d) Appeals from High Court to Court of Appeal.
e) Appeals from Court of Appeal to Federal Court.
f) Appeals from High Court to Federal Court5.
As far as this report is concerned, it will focus on the first type of appeal which is
appeal from subordinate court to the High Court.
Under Section 3 of CJA 1964, ‘subordinate court’ means any inferior court from the
decisions of which by reason of any written law there is a right of appeal to the High Court6.
As far as this report is concerned, it is pertinent to know that the SCR 1980 makes a
distinction between two types of appealable decisions from subordinate court to High Court.
The first is a decision made after trial and the second one is a decision ‘other than a decision
made after trial’ which also known as interlocutory decision.
This report will make a thorough study on the procedure of filing an appeal from
subordinate court to the High Court and also include introduction to fresh evidence at appeal
stage in order to have a better understanding on procedure of appeal.
2.0 PROCEDURE OF APPEAL FROM SUBORDINATE COURT TO HIGH COURT
Order 55 Rule 2 of ROC 2012 and section 29 of CJA 1964 state that all appeals to
High Court shall be by way of re-hearing7 by giving notice of appeal within fourteen days
3 On such appeal,the matter will beheard by a judge and decision delivered in open court as stated under
Order 55 Rule 10 ROC 2012
4 On such appeal the matter will beheard by a judge in chambers and not in open court as stated under Order
49 Rule 6 of SCR 1980.
5 Hamid Sultan Abu Backer. (2001). Janab’s key to civil procedure in Malaysia and Singapore (3rd ed.). Kuala
Lumpur; Janab (M) Sdn Bhd. Page 693
6 Act 91
7 A second hearingof a caseor a second argument of a motion or appeal after a decision has been rendered,
usually requested as a resultof a defect in the decision,such as a mistakeabout the facts or governing law.
Retrieved on 3rd of May 2017 from http://www.yourdictionary.com/rehearing#0e7ZbzEXQgr7QCKZ.99

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from judgement. Therefore, High Court does have appellate jurisdiction to hear cases from
subordinate court however the procedures of appeal must be strictly followed.
Section 27 of the CJA 1964 states that appellate jurisdiction of the High Court shall
include the hearing of appeals from subordinate Courts. However it must be noted that
Section 28 of the same Act imposes certain limitation to section 27. Section 28 states that;
(1) Subject to any other written law, no appeal shall lie to the High Court from a decision of
a subordinate court in any civil cause or matter where the amount in dispute or the value of
the subject-matter is ten thousand ringgit or less except on a question of law.
(2) An appeal shall lie from any decision of a subordinate court in any proceedings relating
to maintenance of wives or children, irrespective of the amount involved.
The abovementioned provision, which subsection (1) imposed a limitation of appeal from
subordinate court to High Court where except when there is a question of law in appeal, the
amount dispute must not be less than ten thousand ringgit, otherwise, there would be no right
of appeal.
Section 28 was considered in the case of Kannaya & Anor v The Swee Eng8. In this
case, respondent made an application for appeal of appellant to be dismissed on the ground
that the value of subject matter of the appeal was below RM10,000.00 and that the appeal
involved question of fact only and not question of law which therefore did not bring the
appeal within the exception to Section 28(1) OF CJA 1964. The appellant however
contended that the value stated in Section 28(1) should include cost as well as interest which
would take the total sum awarded to be above RM15,000.00 therefore appellant should be
entitled to appeal. The Court then held that the value of the subject matter which below
RM10,000.00 does not include interest and cost. Therefore appellant does not entitle to make
an appeal to the High Court.
We can also see the issue of limitation to appeal in the case of Lein Tiam Hock v
Arumugam a/l Kandasamy9. The issue here is the amount in dispute or the value of the
subject matter at hand did not exceed RM10,000.00 and there was also no question of law to
be resolved by the court as stated under Section 28 of CJA 1964. The court then held that the
amount dispute stated under Section 28 relates to the value of the awards of the subordinate
8 (1994) 1 MLJ 508
9 (1999) 3 AMR 3670

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court and not the value of the plaintiff’s claim. Therefore, as the amount in dispute was
RM9,150.00, then the appeal was not allowed.
In the case of Mohamad Safuan bin Wasidin & Anor v Mohd. Ridhuan bin Ahmad
(an infant)10, it was stated that in the case of an appellant intending to appeal from the
decision of the subordinate court where the quantum is less than RM10,000.00, the notice of
appeal in Form 14011 must state generally the question of law that he wishes to appeal and
any failure to confirm to this basic statutory requirement would strike at the very core of the
appeal and consequently, would nullify the appeal. This case shows how important it is to
state question of law in Form 140 where the amount is less than RM10,000.00 in order to
make an appeal to High Court successful.
Also, like have been mentioned in the introduction, Order 49 of SCR 1980 makes a
distinction between two types of appealable decisions from subordinate court to High Court.
The first is a decision made after trial and the second one is a decision ‘other than a
decision made after trial’ which also known as interlocutory decision. Knowing the types of
appeal under subordinate court is vital because procedure for both appeals varies. This type
of appeal from subordinate court to the High Court will be discussed later.
It must be noted that an appeal whether or not on a decision other than a decision
made after trial against the decision of the subordinate court must be brought within fourteen
days, from the date of the decision complained to High Court, by filing a notice of appeal in
Form 11112. Once notice has been filed, the Registrar will send a copy of the notice of appeal
to the Registrar of High Court13.
2.1 APPEAL ON A DECISION AFTER TRIAL
The procedure of appeal to the High Court from subordinate court on a decision after
trial is set out in Order 49 of SCR 1980 and must be read together with Order 55 of ROC
2012. It must be noted that like have been mentioned before, when it comes to procedure of
appeal from subordinate court to the High Court, limitation of appeal as stated under section
28 of CJA 1964 must be complied with. Such limitation is the amount of appeal must be
10 (1994) 2 MLJ 187
11 Now no longer Form 140 for noticeof appeal.But use Form 111 instead as stated under Rules of Court 2012
12 Order 55 Rule 3(1) of ROC 2012
13 Ibid

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more than ten thousand ringgit or, it must involve question of law. The appeal made shall also
be by way of re-hearing and the notice must be brought within fourteen days from date of
decision made as stated under Order 55 Rule 2 of ROC 2012.
2.1.1 Notice of Appeal
The notice of appeal must be in Form 111 and shall be filed in the Court from which
the decision is appealed from14. Also, the copy of the notice must be filed and served to all
respondents within the time limited for filing15, which is fourteen days from date of decision.
In the case of Lee Lan v Lim Yoon Loy16, the appellant filed notice of appeal in Magistrate
Court on the same day but it was not served to respondents within time limited for appeal
which is fourteen days from date of judgment. In this case, it was held that failure to serve
notice of appeal is fatal.
It is pertinent to know that appellant may apply for appeal for the whole or part of
judgement or order17. This is to make it clear to the judge on the scope of the appeal. Also,
stated under Order 55 Rule 3(3) of the same Act, at the time of filing, appellant shall lodge
in the Court appealed from a sum of one thousand ringgit by way of security for the cost of
appeal within time limited for filing. Apart from that, appellant must also apply to High Court
in writing for the notes of proceedings and the ground of judgment as stated under Order 55
Rule 3(5) of the same Act. It must be noted that appeal to High Court on a decision after trial
shall be made in open court18.
2.1.2 Record of Appeal
14 Order 55 Rule 3(1) of ROC 2012
15 Order 55 Rule 3(4) of ROC 2012
16 [1991] 3 MLJ 419
17 Order 55 Rule 3(2) of ROC 2012
18 Order 55 Rule 3(6) of ROC 2012

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Order 55 Rule 4(1) of ROC 2012 requires appellant to prepare record of appeal to
court and serve to all parties19 within one month from date filing notice of appeal. The record
of appeal shall contain copies of;
(a) The relevant pleadings;
(b) The notes of evidence, including witness statements, if available, recorded wholly or
partly by mechanical means;
(c) The grounds of judgment, if available;
(d) The memorandum of appeal;
(e) The decision, order or judgment;
(f) A duplicate copy of the notice of appeal;
(g) A duplicate copy of notice of cross appeal, if any;
(h) All such documentary exhibits and other documents the parties shall consider relevant
for the purposes of the appeal:
Provided that the record of appeal shall be filed notwithstanding that the notes of
evidence and/or judgment are not ready or that the sealed decision, order or judgment has not
been extracted. It must also be noted here that record of appeal shall contain decision of the
subordinate court. Failure to insert would be fatal to the appellant. The rational of filing and
serving this record of appeal to all respondents is that to ensure respondents know what kind
of appeal is made against them, avoid element of surprise and to avoid injustice.
Order 55 Rule 4(2) of ROC 2012 states that in the even where notes of evidence
and/or judgement are not ready or the order or judgment has not yet been extracted within
one month, then those notes and/or judgment, when they are made available or extracted,
shall be filed by way of supplementary record of appeal without leave of High Court,
provided that the absence of the grounds of judgment shall not prevent the appellant from
proceeding with his appeal.
In addition to that, Order 55 Rule 4(3) of ROC 2012 requires appellant to file and
serve memorandum of appeal in Form 112 within 1 month. If this provision is not complied
with, the appeal is not properly brought to the court.
In the event that parties are unable to agree with record of appeal, the matter shall be
referred to the Registrar of the High Court who may require the parties to attend before a
19 Order 55 Rule 4(8) of ROC 2012

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Judge of the High Court20. The matter would be solved by excluding from record all the
documents that are not relevant to the subject matter of appeal21. Also, stated under
subsection (7) of the same provision, where in the course of preparation of the record one
party objects to a document on the ground that it is irrelevant or unnecessary, while the other
party insists on it, the record shall indicate in the index of paper or otherwise, the fact that and
the party by whom, the inclusion of document was objected to.
2.2 APPEAL ON A DECISION OTHER THAN A DECISION AFTER TRIAL
Appeal on a decision other than a decision after trial, also known as interlocutory
appeal, as stated under Order 49 Rule 6 of SCR 1980 and Order 55 Rule 5(1) of ROC 2012,
would be heard by a judge in chambers and not in open court. The procedure in respect of
interlocutory appeals is similar to appeal proper, however they are not identical. The
procedure for this appeal has been made simple and without the need for appellant to deposit
any security for costs. Order 49 Rule 6(3) of SCR 1980 states that appellant shall not include
in appeal record the notes of evidence, the grounds of judgements or any memorandum of
appeal. However, Order 55 of ROC 2012 is silent as to whether a memorandum of appeal
needs to be filed in interlocutory appeal.
The interlocutory appeal is brought by filing a notice of appeal in Form 111A in the
Registry of the Subordinate Court with a copy extended to Registry of High Court within
fourteen days from the date on which the decision was pronounced22. Also, appellant must
serve a duplicate copy of the notice on every other party to the proceedings23. In the case of
Himat Iktisas (M) Sdn Bhd v Better Sleep Marketing (East Coast) Sdn Bhd24, defendant
accordingly filed a notice of appeal. At the hearing of the appeal, the plaintiff raised a
preliminary objection that although the registrar of the subordinate court had received the
notice of appeal within time, the defendant's notice of appeal served on the plaintiff was not
properly endorsed and was therefore defective. The defendant ventilated that there was no
necessity for it to serve a copy of an endorsed notice to the plaintiff. In this case, it was held
that failure to serve notice of appeal to respondents would be fatal. And this irregularity
20 Order 55 Rule 4(5) of ROC 2012
21 Order 55 Rule 4(6) of ROC 2012
22 Order 55 Rule 5(2) of ROC 2012
23 Ibid
24 [2002] 1 MLJ 577

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cannot be cured under Order 1A of ROC 2012. Thus, the court allowed the plaintiff's
preliminary objection and dismissed the defendant's appeal with costs.
After filing notice of appeal, within one month appellant shall file record of appeal in
the High Court. As stated under subsection (3) of Order 55 Rule 5 of ROC 2012 and Order
49 Rule 6(3) of SCR 1980, record of appeal shall contain;
(a) The application for the decision;
(b) All pleadings filed;
(c) All affidavits filed in support of or in opposition to the application; and
(d) The order or draft order of the decision appealed from:
Provided that the record of appeal shall not include the notes of evidence, the ground of
judgment or any memorandum of appeal.
3.0 CROSS APPEAL
Under Order 55 Rule 8 of ROC 2012, a respondent of an appeal may, within
fourteen days from the date of service on him of the record of appeal, file a notice of cross
appeal in the High Court and serve upon the appellant a duplicate copy of the notice in Form
113 that he intends to contend on the hearing of the appeal that the decision of the Court
below should be varied. If there is any amendment to the notice of cross appeal, the Court
may allow such amendment at any time as it thinks fit25.
4.0 STAY OF EXECUTION
It must be noted that an appeal shall not operate as stay of execution under the
decision appealed against except in so far as the Court appealed from or the High Court may
order, and any application for stay shall be made in the first instance to the Court appealed
from as stated under Order 55 Rule 16(1) of ROC 2012 and Order 49 Rule 4(5) of SCR
1980. Stated under Order 55 Rule 16(2) of ROC 2012 that the High Court may grant an
order of stay of execution on such terms as it thinks fit. Therefore, stay may be applied and
granted, but appeal must not operate as stay of execution.
25 Order 55 Rule 9 of ROC 2012

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5.0 EXTENTION OF TIME
When appellant failed to file and serve notice of appeal or record of appeal or when
respondents failed to file notice of cross appeal within the time limited to do so, they may
apply for extension of time from the Court. Under Order 3 Rule 5(1) of ROC 2012, it states
that the Court has power to extend or abridge the period as it thinks fit. The Court may extend
such period although the application for extension is not made until the expiration of that
period26. It must be noted that person who wants to apply for extension of time must make an
application supported with affidavit showing reason for the delay.
It is pertinent to know that the grant of extension of time to appeal is discretion of
Court. The following are normally to be considered based on case Scott & English (M) Sdn
Bhd v Lei Kei Refrigeration & Stainless Steel Industries Sdn Bhd & Ors27;
(a) The length of delay;
(b) Reasons of delay;
(c) The chances of the appeal succeeding if time for appealing is extended; and
(d) The degree of prejudice to the potential respondent if the application is granted28.
In the case of Gan Hay Chong v Siow Kian Yuh & Anor29 the appellant applied for
extension of time to file the memorandum of appeal and to serve it on the respondent. One of
the grounds of delay was that it was as a result of misinterpretation by solicitor in respect of
time limited to file memorandum of appeal. The Federal Court held that that kind of mistake
did not constitute a sufficient ground for granting the extension of time.
6.0 INTRODUCTION OF FRESH EVIDENCE
Basically, fresh evidence is not new evidence. Fresh evidence existed at the time of
the initial trial, but for various reasons could not be put before the court30. Under Order 55
26 Subsection (2) of the same provision
27 [1994] 2 MLJ 424
28 Hamid Sultan Abu Backer. (2001). Janab’s key to civil procedure in Malaysia and Singapore, (3rd Ed.). Kuala
Lumpur; Janab (M) Sdn Bhd. Page 702-703
29 [1975] 2 MLJ 129
30 Retrieved on 3rd of May 2017 from http://disinherited.com/introducing-fresh-evidence-appeal-hearing/

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Rule 7 of ROC 2012 and Order 49 Rule 6 of SCR 1980, it states about restriction of fresh
evidence. These provisions state that at the hearing of any appeal, fresh evidence shall not be
admitted unless the Judge is satisfied that;
(a) at the hearing in the Subordinate Court, the new evidence was not available to the
party seeking to use it or that reasonable diligence would not have made it so
available; and
(b) the fresh evidence, if true, would have had or would have been likely to have a
determining influence upon the decision of the Subordinate Court.
Therefore, based on the abovementioned provisions, there is restriction in introducing fresh
evidence at appeal stage. However, fresh evidence can only be admitted if the judge satisfies
that during trial, such evidence was not available, and such evidence would be important and
likely to have determining influence upon decision of Subordinate Court.
In the case of Luggage Distributors (M) Sdn Bhd v Tan Hor Teng31, the issue is
whether new point can be raised at the appellate stage. The Court of Appeal held that an
appellate court will not entertain a point not raised in the court below, except in exceptional
cases. Based on this case, exceptional cases include where the interest of justice so require, a
plea of illegality rises for the first time, and jurisdiction of the trial court.
The introduction of fresh evidence at appeal stage can also be seen in the case of Ting
Sie Chung v Hock Peng Realty Sdn Bhd32. In this case, appellant filed an application to
introduce new evidence which is a new witness at the High Court, however, it was dismissed.
Appellant then appealed to the Court of Appeal. The Court of Appeal then allowed
appellant’s claim and setting aside the order by learned judge. It was held in this case that the
witness was not in Malaysia during trial at the Subordinate Court and his presence is
important as to give influence to the decision of the Subordinate Court.
Special grounds in introducing fresh evidence at appeal stage can also be seen in the
case of Lau Foo Sun v Government of Malaysia33, it was held that fresh evidence can be
adduce when evidence could not have been obtained with reasonable diligence for use at trial,
when evidence has determining influence, and also when the evidence is credible to be
accepted. In this case, one more ground has been added which is the evidence must be
31 [1995] 2 AMR 969
32 [2016] 5 MLJ 342
33 [1974] 1 MLJ 28

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credible. This is because credible evidence is likely to have determining influence for the
judge at trial.
7.0 INTEREFERENCE BY APPELLATE COURT
It must be noted that generally, appellate court would be very reluctant to interfere
with finding of fact by trial judge. However, under certain circumstances, the appellate would
interfere. In the case of Sundran Ramasamy v Arjunan Arumugam & Anor34, it was held
that the appellate court would be reluctant to interfere finding of facts made by trial court
judge, however, the court will interfere when;
a) There is misappropriation of fact by trial judge;
b) When there is inconsistence of the evidence;
c) When the trial judge failed to consider relevant fact; or
d) When the evidence is inadequate.
8.0 WITHDRAWAL OF APPEAL
Withdrawal of appeal stated under Order 55 Rule 11 of ROC 2012. In this section, it
states that an appellant may at any time before his appeal is called on for hearing serve on the
parties to the appeal a notice to the effect that he does not intend further to prosecute the
appeal35. Also, a copy of such notice shall at the same time be filed by the appellant in the
Registry of the High Court36.
34 [1994] 4 CLJ 300
35 Order 55 Rule 11(1) of ROC 2012
36 Order 55 Rule 11(2) of ROC 2012

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9.0 CONCLUSION
In conclusion, an appeal from subordinate court to the High Court separated into two
types which is an appeal on a decision after trial and an appeal on a decision other than a
decision after trial. An appeal on decision after trial shall be made in open court as stated
under Order 55 Rule 3(6) of ROC meanwhile interlocutory appeal shall be made in front of
a judge in chambers as stated under Order 55 Rule 5(1) of the same Act. Also, the appeal, be
it after trial or not, the application for appeal shall be made by applying notice of appeal
within fourteen days from the date of judgment. The notice shall be in Form 111 for appeal
after trial and in Form 111A for interlocutory appeal and such notice must be files at
subordinate court and must also be filed and served to all respondents within the time limited
for appeal which is fourteen days from decision of court. it must be noted that failure to serve
on all respondents would be fatal. Also, appellant must lodge a thousand ringgit by way of
security for cost of appeal at High Court during filing notice of appeal. Apart from that,
appellant must also prepare record of appeal and serve it to all respondents within one month
from date of filing notice of appeal.
What is the most important regarding right of appeal from subordinate court to High
Court is the limitation to the appeal. Even though section 27 of CJA 1964 already given right
to High Court to hear appeal from subordinate court by way of rehearing. However, section
28 of the same Act put limitation to it which it states that only a case amounted to more than
ten thousand ringgit or case which has issue on question of law shall be given right to appeal.
When it comes to introducing fresh evidence at appellate court which as far as this
report is concerned, on High Court, generally the court would not accept the introduction of
new evidence. However exception states in Order 55 Rule 7 of ROC 2012 where fresh

15. 15
evidence would not be admissible unless the court satisfied that such evidence was not
available during trial at subordinate court, and also appellant must show that such evidence is
credible and would have determining influence.
All in all, we can see that statutory provisions for procedure of appeal from
subordinate court to High Court must be strictly followed in order to successfully make an
appeal. Even it is costly and time consuming, however for a party who wants to change the
decision of subordinate court and still feel aggrieved in his case, it would be worth it.
REFERENCES
Nahendran, N., & Brendan N, S. (2004). Civil appeals handbook (2nd ed.). Kuala Lumpur;
Malayan Law Journal Sdn Bhd. Page 7
Hamid Sultan Abu Backer. (1993). Janab’s key to civil procedure in Malaysia and
Singapore (1st ed.). Kuala Lumpur; Janab (M) Sdn Bhd. Page 411
Hamid Sultan Abu Backer. (2001). Janab’s key to civil procedure in Malaysia and
Singapore, (3rd ed.). Kuala Lumpur; Janab (M) Sdn Bhd. Page 693, 702 & 703
Your Dictionary website. Retrieved on 3rd of May 2017, from
http://www.yourdictionary.com/rehearing#0e7ZbzEXQgr7QCKZ.99
Todd, T. (2013). Introducing fresh evidence at appeal hearing. Retrieved on 3rd of May 2017,
http://disinherited.com/introducing-fresh-evidence-appeal-hearing/