By Fahri Azzat
I was reading the decision of GS Gill Sdn Bhd v Descente, Ltd and another appeal  6 MLJ 181 recently where the Court of Appeal had yet another instance to reaffirm the principle (which really needs no further affirmation or re-affirmation, but perhaps things are the way they are because some judges still need regular reminders every now and again; so I’m also not quite sure why this case even merits a report since it just rehashes principles long stated) that an appellate court would not interfere with an actual finding of fact by a trial court. What they would interfere with is only the inference of fact drawn from a finding of fact. Gopal Sri Ram JCA wrote the lead judgment and referred to the decision of Clarke v Edinburgh Tramways  SC 35 and the dicta of Lord Shaw of Dunfermline which bears reproduction so that the thoughts it provoked from me can be better appreciated:
When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I — who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case — in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.