A short guide to conducting an appeal
This is a way to conduct an appeal. An appeal is a request to a higher court to rehear and review the court below’s decision (‘the original decision’). An appeal can happen from the subordinate courts, comprised of the magistrates and sessions courts, to the High Court (Scenario 1), or from the High Court to the Court of Appeal (Scenario 2). For civil matters, there is only one right of appeal. If a litigant wants to appeal further a Scenario 1 or 2 situation, the person appealing requires the higher court’s permission (Scenario 3) before he is allowed to file his appeal. For criminal matters, the situation is different. There are two rights of appeal: the appeal against the original decision and the appeal against the appeal. There is no need to obtain the higher court’s permission to appeal the second time. This essay is not concerned with Scenario 3. That is dealt with in A Short Guide to Getting Leave to Appeal. This guide only concerns Scenario 1 and 2 appeals, i.e., an appeal against the original court’s decision. To conduct an appeal, firstly, we need to understand and appreciate the threshold to meet before a higher court intervenes to reverse an original court’s decision. Although an appeal takes place by way of a rehearing, the matter is not argued afresh. The focus of an appeal is primarily whether the original court committed any error of law or fact. If that is established the higher court will reconsider the case afresh. However, if it cannot be shown the court committed any error, it will not interevene. In Malaysia, we have the ‘plainly wrong’ test adopted from the United Kingdom. An appellate court should not interfere with the trial judge’s conclusions on primary facts unless satisfied that he was plainly wrong. per Justice Zabariah Mohd Yusof, Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator of the Estates of Tan Ewe Kwng, Deceased & Ors [2020] 10 CLJ 1, Held (1) In the case of Ng Hoo Kui, the Federal Court was asked whether it should adopt the ‘four non exhaustive identifiable errors of a trial judge’ that amounts to being ‘plainly wrong’ that were idenfied in the English Supreme Court case of Henderson v Foxworth Investments Ltd and Another [2014] 1 WLR 2600. The Federal Court decided those ‘four non exhaustive indentifiable errors’ were merely a explanation about what amounted to being ‘plainly wrong’ warranting appellate intervention. They were not guidelines. The Federal Court rejected using those ‘four non exhaustive identifiable errors’ as a ‘rigid guidleline’ to be adopted in finding that a decision was plainly wrong. In short, the Federal Court said they were not bound and in doing so kept the door open for other identifiable errors that cannot yet be imagined. Fair enough. Although the Federal Court did not adopt those ‘four non exhaustive indentifiable errors’, I feel thinking in those terms is helpful to litigation lawyers. They provide a helpful categorisation of judicial errors. For ease of reference I will call these the ‘4 identifiable errors’. These 4 identifiable errors are excellent examples about what amounts to being plainly wrong. Finally, these4 identifiable errors articulated by the English Supreme Court are the commonest ones and therefore the ones we are likeliest to encounter. These four identifiable errors are (1) a material error of law, (ii) a critical fact-finding of fact without evidential basis, (iii) a demonstrable misunderstanding of relevant evidence, and (iv) a demonstrable failure to consider relevant evidence. Although there are other errors, these four identified errors tend to cover the general run of cases. Error (i) has to do with the application of law. Errors (ii), (iii) and (iv) relate to fact findings. That makes sense because those are the only two areas a judge is ultimately responsible for the correct application of law and the accurate finding of facts. If a judge gets either of these things wrong or both, then the decision is vulnerable to being set aside on appeal. Bear these four identifiable errors in mind when preparing our appeal. These are errors we should look out for in the grounds of judgments of the original court (assuming one is prepared) when considering it together with the notes of proceedings, bundle of pleadings, common bundle of documents and written submissions. It is important not to limit our appreciation to just these four identifiable errors but to be open to other identifiable errors that invite appellate intervention, such as failing to consider a litigant’s submission, not listening to parties, being in a conflict of interest position, or the judge fails to turn on his video camera. Second, once we understand the threshold for appellate intervention i.e., plainly wrong and what amounts to an original court being plainly wrong, focus our submission on those identified errors. Although I discuss conducting an appeal through oral submission, my suggestion apply equally to how we approach our written submissions. When I say, focus our submission, I mean leading the court to the identified errors as quickly as possible. ‘Leading’ because we first need to frame the context in which these errors arise before identifying the errors. The context is the background facts (i.e., the story or narrative) or law (the current state of the law about a legal issue) from which the legal issues arise. The context is important because it circumscribes the factual parameters of the legal decision. It provides shape and colour to arguments about the disputed issue. Third, once the context is established, summarize the original court’s errors before they are demonstrated. The operative word is demonstrate means ‘clearly show the existence or truth of (something) by giving proof or evidence.’ Show then tell. This is what I mean: Show the passage in the grounds of judgment (GOJ) where the identified error resides. Invite the court to look at the relevant paragraphs in the GOJ. Read it out. Read out the key passage or sentences if the quote is
