Case On Dog Attack

Kamalanathan Ramanathan
[2022] 1 SMC v. Jeevan Velautham & Anor 461
KAMALANATHAN RAMANATHAN
v.
JEEVAN VELAUTHAM & ANOR
MAGISTRATE COURT, KUALA LUMPUR

SAIFULLAH BHATTI Mg
[CASE NO: WA-A73-9-03-2021]
27 JUNE 2022
TORT: Negligence - Claim - Dog attack - Claimant alleged to have been

attacked by dog, causing him to fall and suffer serious injury - Dog belonged
to neighbours - Whether neighbours/owners of dog negligent in handling dog
- Whether statement of claim sufficiently particularised events - Whether
claimant established on balance of probabilities that it was neighbours’ dog
that attacked him - Whether owners failed to take reasonable care - Whether
owners liable to claimant for dog attack - Whether claim substantiated
This was a personal injury claim premised on a dog attack. The

plaintiff and the defendants were private individuals and were
neighbours. The first and second defendants were father and son,
respectively. According to the plaintiff, he was walking up the street
in the neighbourhood one morning when he was suddenly attacked
by a dog, causing him to fall and suffer a serious injury. The dog,
which the plaintiff described as a vicious white mongrel, belonged to
the first defendant. The plaintiff ascribed the injury to the
defendants’ negligent handling of the dog and in this claim, the
plaintiff sought special and general damages. The plaintiff then
lodged a complaint with the Pest Control Unit of the Health and
Environment Department of Dewan Bandaraya Kuala Lumpur. The
dog attack was investigated, the dog was confiscated and the
defendants were issued summons, which the defendants duly paid.
The defendant accepted that the dog in issue belonged to them but
they denied that the attack ever happened. According to the
defendants, the plaintiff only complained to them about the dog
attack approximately seven days after the alleged incident. While the
defendant accepted that the plaintiff suffered his injury, they denied
that it was their dog that caused it. The defendant further stated
that their dog was a tame Labrador breed and was well taken care
of, under their control and it had never attacked anyone. The main
issue that arose was whether the defendants were liable to the
plaintiff for a dog attack.
462 Sessions & Magistrates’ Cases [2022] 1 SMC
Held (dismissing claim):
(1) The plaintiff’s statement of claim did not explain in greater detail
how the attack actually happened. An ‘attack’, especially from a
dog, could mean one of many things. The dog could have
approached the plaintiff, growled at him, acted vicious and
intimidated him by striking fear - enough to cause the plaintiff to
run away or fall back. Or, the dog could have pounced on the
plaintiff causing him to fall. Or, the plaintiff could have fallen,
gotten up and then fallen again when running to escape. The
nature of the attack was not described in sufficient enough detail
to explain what the dog did to cause the plaintiff to fall in the
way that he did. The statement of claim aside, the plaintiff in his
witness statement, when asked to explain what happened,
provided a very general narrative. In addition to that, the plaintiff
was unable to identify the dog when asked to do so. (paras 47-
49 & 58)
(2) The plaintiff relied on the first defendant’s payment of the

compound, claiming it as presumptive of guilt and accordingly
that it served as circumstantial evidence of the defendants failing
to take reasonable care of their dog and that they were thereby
negligent. The simple explanation given by the first defendant
was that he wanted to bring his dog home and that was the
reason why he paid the compound, irrespective of whether he
believed that the dog attacked the plaintiff or otherwise. The
court accepted his reason. It accorded with logic and the
common course of human events that the first defendant would
pay the relatively meagre sum of RM250 to have the dog
released immediately rather than claim trial to the charge at the
expense of the dog’s freedom. Therefore, the defendants’
payment of the compound was not presumptive of guilt and
could not be relied upon as circumstantial evidence. (paras 68,
73, 103 & 104)
(3) The law on burden of proof is beyond settled. According to

s. 102 of the Evidence Act 1950, the burden of proof in a suit
or proceeding lies on the person who would fail if no evidence
at all were given on either side. The defendants only have an
evidential burden requiring them to raise sufficient evidence to
rebut the case against them once the plaintiff provides enough
evidence that when considered in totality, the court could
consider the plaintiff’s case proved. The plaintiff was unable to
establish on a balance of probabilities that it was the defendants’

dog that attacked him. As such, the question of whether the
defendants failed to take reasonable care did not arise. The
defendants could not be held liable. (paras 114, 115 & 148)
Case(s) referred to:
Abadi Motor Sdn Bhd v. Ewwa Mohd Yusoff & Ors [2019] 1 CLJ 234 HC
(not foll)
Brady (Inspector of Taxes) v. Group Lotus Car Cos Plc & Another [1987] 3 All
ER 1050 (refd)
Cummings v. Granger [1977] 1 All ER 104 (refd)
Donoghue v. Stevenson [1932] AC 562 (refd)
Fardon v. Harcourt-Rivington [1932] All ER Rep 81 (refd)
Fitzgerald v. ED & AD Cooke Bourne (Farms) Ltd [1964] 1 QB 249 (refd)
Hatton v. Sutherland And Other Appeals [2002] 2 All ER 1 (refd)
Janagi v. Ong Boon Kiat [1971] 1 LNS 42 HC (refd)
Kong Nen Siew v. Lim Siew Hong [1971] 1 LNS 53 HC (refd)
Mirhavedy v. Henly And Another [2003] 2 AC 491 (refd)
Periasamy v. Suppiah [1966] 1 LNS 132 HC (refd)
Re Lim Chor Pee [1990] 1 LNS 119 HC (refd)
Shahrudi Abidin v. Datuk Wira Abu Seman Yusop Timbalan Menteri Dalam
Negeri Kementerian Dalam Negeri Malaysia & Ors [2021] 1 CLJ 52 CA
(refd)
Tengku Azrul Hisham Tengku Aziz v. Chua Yuen Fun [2022] 1 LNS 319 HC
(foll)
Teo Seng Tiong v. PP [2021] SGCA 65 (refd)
Legislation referred to:
Civil Law Act 1956, s. 3(1)(a)
Criminal Procedure Code, s. 260(5)
Evidence Act 1950, ss. 43, 45, 60(1)(d), 102, 114, 136
Federal Constitution, art. 7
Road Transport Act 1987, s. 121
Other source(s) referred to:
BM Prasad, Manish Mohan, “Ratanlal & Dhirajlal - The Law of Evidence”,
(LexisNexis, 2013), p 567
Mariette Peters, “Law of Evidence in Malaysia”, (LexisNexis, 2013), p 299
For the plaintiff - Tharamjit Singh Gurmkh Singh & Nurul Fatihah Abdul
Ghani; M/s Tharamjit Singh & Co
For the defendants - Gunaseelan S Thambinathan & Keshvinjeet Singh
Sandhu; M/s Gunaseelan & Assocs
Reported by Lina E
JUDGMENT
Saifullah Bhatti Mg:
Introduction
[1] This is a personal injury claim premised on a dog attack. The

allegation is that early one morning, the plaintiff was walking up the
street and was suddenly attacked by the defendants’ dog causing
him to fall and suffer serious injury. He seeks compensation in
general and special damages.
[2] The defendants, for all intents and purposes, accept that the
dog in issue in this case belongs to them but deny the attack ever
happened. In other words, the defendants accept that the plaintiff
suffered his injury but deny that their dog caused it. They go so far
to say that the dog attack is a figment of the plaintiff’s imagination.
[3] Mr Gunaseelan, learned counsel for the defendant, informed

the court at the outset of trial that the dog has since died ie.
sometime in 2021 - before the trial of this action commenced. The
plaintiff accepts this fact.
[4] The trial of this action took place before me on 25 to 26

January 2022 via remote communication technology. I have read
and considered the cause papers and parties’ submissions as well as
the evidence - oral and documentary. This is my judgment after full
trial.
Documents/Witnesses
[5] The documents relevant to this case are these:
Bundle A - Bundle of Pleadings
Bundle B - Common Bundle of Documents
Bundle C - Issues to be Tried
Bundle D - Statement of Agreed Facts

[6] The following witnesses were called:

Party Witness Name Witness
Statement
Plaintiff SP1 Kamalanathan a/l Ramanathan Exh. SP1
SP2 Muhammad Fariz bin Mohamad Exh. SP2
SP3 Dr. M.S. Puteri Zalmah binti

M.A Shoukat Ali Exh. SP3
SP4 Dr. Mohd Hazwan bin Rusli Exh. SP4
Defendant SD1 Jeevan a/l Velautham Exh. DW1
SD2 Ramasamy a/l Sinnakolandai Exh. DW2
SD3 Nurul Atiqah binti H Muzammil Subpoena
Backgrounds Facts
The Statement Of Claim
[7] The plaintiff is a private individual who resides at No. 26, Jalan
Ibu Kota 4, Taman Ibu Kota, 53100 Kuala Lumpur, Malaysia
(‘plaintiff’s residence’).
[8] The defendants are also private individuals with a residential

address at No. 2, Jalan Taman Ibu Kota, Taman Ibu Kota, 53100
Kuala Lumpur, Malaysia (‘defendants’ residence’). The first
defendant is the owner of the dog whereas the second defendant is
the owner of the defendants’ residence. The second and first
defendants are respectively father and son.
[9] The plaintiff claims that on 22 March 2018, while he was

walking to a nearby shop and when he arrived at Jalan Ibu Kota (left
side), a white dog (which the plaintiff describes as a vicious white
dog/mongrel), owned by the first defendant, attacked the plaintiff.
[10] The plaintiff avers that as a result of the attack, the plaintiff fell
and suffered injury. The plaintiff ascribes the injury to the
defendants’ negligent handling of the dog. The statement of claim
particularises the facts of negligence and I will refer to them later, if
necessary.
[11] The plaintiff accordingly seeks to be compensated in special

and general damages. The special damages are particularised in the
statement of claim whereas the general damages are in relation to
alleged shock and trauma, and for pain and suffering.
The Defence
[12] The defendants begin their defence by denying that their dog
is vicious or a mongrel. They instead assert that their dog, a white
dog, is a tame dog of the Labrador breed.
[13] The defendants also plead that their dog was always well taken
care of, under their control and that it had never attacked anyone.
To this end, the defendants claim that they had never received
complaints from their neighbours about the dog.
[14] As such, the defendants deny outright the allegation that on

22 March 2018 their dog attacked the plaintiff and further aver that
the plaintiff only ever complained to them about the dog attack
approximately seven days after the alleged incident.
[15] The plaintiff did not file a reply.
The Case And Issues To Be Tried
[16] Parties filed a joint statement of issues to be tried listing down

the following issues (in English):
(i) Whether a white dog owned by the first defendant had attacked
the plaintiff and thereby caused injury.
(ii) Whether the first and second defendants were negligent in the
care and management of the said white dog.
(iii) Whether the plaintiff was attacked by a dog on or around

22 March 2018 at about 6.10am and suffered injury as a result
of that attack.
(iv) Whether the first and second defendants are liable for the injury
and trauma allegedly suffered by the plaintiff as a result of the
dog bite (gigitan anjing) that happened around 22 March 2018
at about 6.10am.
(v) Whether the plaintiff suffered a loss of income as a result of the

injury.
[17] With respect, I find the issues to be tried either repetitive or

confusing. When drafting pleadings and trial documents, parties
should be minded to state exactly what their case is and to what
exactly it is they are responding. The issues to be tried essentially
repeat the same essential issues without actually crystallising what

actually this court should direct its mind to. I also find them
confusing because of the use of the words “dog bite” or “gigitan
anjing”. The statement of claim does not allege a dog bite.
[18] In light of this, I think it is crucial that I first crystallise the

essence of what the claim is with the view to extracting the issues
to which I should direct my mind.
[19] The following are the undisputed facts from Bundle D (and
includes undisputed facts that surfaced during trial):
(i) The plaintiff and defendants are neighbours and know of each
other’s existence. They are not particularly well-acquainted or
friendly. Neither do they have any bad blood between them.
(ii) The plaintiff was walking from his home to a nearby sundry
shop. At about 6.10am, he fell or was caused to fall resulting in
serious injury.
(iii) The plaintiff sought treatment for his injury on the same day and
has been required to undergo treatment or is undergoing
treatment.
(iv) The first defendant owns a white dog.
(v) The first defendant’s white dog had passed away before the
commencement of trial.
[20] Premised on the above agreed facts, there are really only two
main issues in this case as follows:
(i) Whether the defendants are liable to the plaintiff for a dog attack
(‘liability issue’); and
(ii) If so, whether the plaintiff is entitled to the reliefs sought in the
statement of claim (‘remedies issue’).
[21] As gathered from the above, it is clear that the defendants do

not contest that the plaintiff fell and suffered injury. They do,
however, seriously contest that it was their dog that caused the
plaintiff’s injuries on 22 March 2018. The liability issue can, in light
of the agreed or uncontested facts, be further be broken down into
the following sub-issues:
(i) whether the first defendant’s dog did in fact attack the plaintiff;
and if so,
(ii) whether the attack was as a result of the defendants’ failure to

take reasonable care to ensure that the dog would not cause
harm to passers-by - in casu, the plaintiff.
[22] If the answers to (i) and (ii) are both affirmative, then it would
follow that the defendants were negligent and liable - entitling the
plaintiff to the reliefs he seeks against them in the statement of claim.
Findings/Decision
The Law Generally
[23] The plaintiff’s cause of action in this case is based solely on

negligence. The law on negligence as a tort is broad and diverse.
Much headway has been made in this field throughout the centuries
and across jurisdictions.
[24] In a sense, the law on this subject has become so much more
intricate than what it once was in Donoghue v. Stevenson [1932] AC
562. It has branched out into more specific and sometimes subtle
areas with their own defining features unique to the categories of
claims. The common features of negligence remain across these cases
(such as owing a duty of care and breaching that duty). They only
differ, usually, in the manner in which the breach duty of care or
causation is established.
[25] Claims for pure economic loss for example fall within the larger
banner of negligence but have developed, in a sense, into their own
niche area of the law. Road traffic cases, medical negligence and the
like are further examples of specific breed of negligence cases with
their own set of issues unique to their kind.
[26] Another prime example of the niche development of tort law is

to be found in the growing body of case law on the liability in
negligence for psychiatric harm caused by stress at the workplace
(see: Hatton v. Sutherland And Other Appeals [2002] 2 All ER 1). To
my knowledge, the tort has not yet found its way into Malaysia
though perhaps it should.
[27] In these specialised cases, the questions are beyond just the
‘neighbour principle’ - as seen in the classic and more generic cases
on negligence.
[28] The present case, involving harm caused by a domestic animal,

is another example of the area of the law on negligence that has
come, over the years, to develop its own identity. There is indeed an
entire corpus of law developed in England to deal with these sorts
of claim to the point that the United Kingdom (‘UK’) Parliament
moved to partially codify the law in the UK Animals Act 1971.
[29] Without diving into too much detail it suffices to say that a
neat summary of the law prior to the Animals Act 1971 is contained
within the report of the UK Law Commission entitled ‘Civil Liability
for Animals’ dated 1 November 1968.
[30] In summary, prior to the UK Animals Act 1971, there were

various causes of action available to persons aggrieved by animal
related accidents or incidents. A few of these causes of action
include:
(i) Statutory actions (for instance vide the Dogs Acts 1906 to
1928) for damage caused to cattle and poultry done by dogs.
(ii) Strict liability actions premised on either ferae naturae and

mansuetae naturae. The former category applied in relation to
animals classified as ‘wild’ and thus any injury or damage caused
by the animal is deemed directly attributable to its keeper (strict
liability). The latter category, which in English translates to
‘tame’ and which are called ‘scienter’ actions render the keeper of
such types of animals (usually domestic or tame animals) only
automatically liable if the injured party can first establish that the
animal in question has a propensity described as ‘vicious,
mischievous or fierce’. See: Fitzgerald v. ED & AD Cooke Bourne
(Farms) Ltd [1964] 1 QB 249, at p. 270.
Put another way, strict liability actions were thus contingent

upon two mutually exclusive things. If the injured party could
show that the offending animal belonged to the category of
‘wild’ animal, the owner of such animal would be held strictly
liable for the injury caused by that animal.
If the animal is ‘tame’ or domestic, the injured party must first

show that the specific animal in question (and not its species per
se) has a ‘vicious, mischievous or fierce’ propensity and if proved,
would render the keeper strictly liable. Such actions are called
‘scienter’ actions.
(iii) The third category of actions is trespass; and finally we have
(iv) Negligence.
[31] Causes of actions (ii), (iii) and (iv) all fall under the category of
torts and were thus developed and regulated by common law. The
UK Animals Act 1971 was passed with a view to streamlining and
clarifying and streamlining the law in relation to items (i) to (iii). The
law of negligence virtually remained and continued to develop
through the common law. The reason for this is quite simply that
negligence is the broadest banner under which an action can be
brought under the common law. It was intended to remain, in my
words, a ‘catch-all’ cause of action.
[32] In this regard, the House of Lords in Mirhavedy v. Henly And

Another [2003] 2 AC 491, was called upon to interpret the UK
Animals Act 1971. The decision was not unanimous insofar as it
relate to the interpretation of those sections and cases decided
thereupon. That said, the various speeches of Their Lordships
propounded that negligence is always the broadest form of action
that can be brought in relation to these cases. Lord Nicholls
observed thus:
59 To summarise, the intendment of paragraph (b) is that if the
animal does what is normal for the species (a) usually or (b)
only in special circumstances or at special times then it should
not be treated as dangerous and there should be no strict
liability, it being always remembered that liability in
negligence is preserved.
(emphasis added)
[33] In stating the law generally on the subject, Lord Scott of

Foscote similarly observed that:
130 A clear answer to the question as to the proper construction of
paragraph (b) cannot, in my opinion, be obtained from the
actual language of the provision, nor from a perusal of
Hansard, nor from examining the contents of the Law
Commission Report on Civil Liability for Animals (Law Com
No 13) on which the 1971 Act was in part based. The answer
depends upon identifying what Parliament appears to have been
trying to achieve. It seems to me that Parliament was trying to
draw a distinction between animals that in normal
circumstances behaving normally are dangerous and those that
in normal circumstances behaving normally are not. As to the
former, they belong to a dangerous species and there was to

be strict liability for damage; as to the latter they do not belong
to a dangerous species and strict liability was to be limited to
damage caused by the animal displaying abnormal
characteristics that it was known by its keeper to possess. This
seems to me to be a coherent policy. In respect of damage for
which no strict liability was imposed, a remedy in negligence would
always be available if the keeper of the animal had failed to exercise
reasonable care to see that the animal did not cause damage. The
keeper’s knowledge of the circumstances in which and times at which
the animal might be likely to become dangerous and cause damage
would, of course, be highly relevant in determining the standard of
care required to be observed by the keeper. A standard of care can,
in appropriate circumstances, be placed so high as to require the
person subject to it to become virtually an insurer against damage.
(emphasis added)
[34] Their Lordships’ opinions on the various angles in which cases

on animal attacks can be brought were also previously articulated
(perhaps more lucidly) by Lord Denning MR in Cummings v. Granger
[1977] 1 All ER 104 (‘Cummings’) who said, at p. 107:
This brings me to the law. At common law when a dog bit a man,
the owner or keeper of the dog was strictly liable if he knew that it
had a propensity to bite or attack human beings. Apart from this,
however, he was liable for negligence if the circumstances were such
as to impose on him a duty of care towards the injured plaintiff,
which he had failed to observe: see Fardon v. Harcourt-Rivington
([1932] All ER Rep 81) by Lord Atkin and Draper v. Hodder [1972]
2 All ER 210. Now so far as strict liability is concerned, the common
law has been replaced by the Animals Act 1971. But the common
law as to negligence remains.
(emphasis added)
[35] This brings me now to the law on negligence in relation to

injuries or damage caused by animals. The seminal judgment in this
regard is the decision of the House of Lords in Fardon v. Harcourt-
Rivington [1932] All ER Rep 81 (‘Fardon’). The general statement on
the law of negligence was put thus by Lord Dunedin at p. 83, as
follows:
… There is, however, another doctrine which, if the facts fitted,
would be equally useful to the plaintiff, and that is that you must not
put anything dangerous in itself where the public may possibly have
access to it, and the best-known instance of that is the case of a

loaded gun. There have been several cases, as a matter of fact,
decided upon the question of loaded guns; but a motor car with a
dog in it is not a thing dangerous in itself, and, therefore, one comes
at last to this, which is really the point on which the plaintiff mostly
relied, that if you negligently allow something which may become
dangerous to be in a position to which the public may have access,
without his taking any precaution against the thing becoming
dangerous, you are then liable for the consequences. The root of this
liability is negligence, and what is negligence depends on the facts with
which you have to deal. If the possibility of the danger emerging is
reasonably apparent, then to take no precautions is negligence; but if the
possibility of danger emerging is only a mere possibility which would never
occur to the mind of a reasonable man, then there is no negligence in not
having taken extraordinary precautions.
(emphasis added)
[36] Another helpful statement on the law is found in the same case
in the speech of Lord Atkin who described it as follows, at p. 83:
… But it is also true that, quite apart from the liability imposed upon
the owner of animals or the person having control of them by reason
of knowledge of their propensities, there is the ordinary duty of a person
to take care either that his animal or his chattel is not put to such a use
as is likely to injure his neighbour - the ordinary duty to take care in the
cases put upon negligence.
(emphasis added)
[37] I find that the above English cases are direct authority or the
applicable law in a negligence case such as this where the allegation
is injury suffered by reason of an animal attack.
[38] Nowhere in their submissions did parties direct me to a

Malaysian case directly on point and in my own research I have
found none on point save for the decision of the High Court in
Periasamy v. Suppiah [1966] 1 LNS 132; [1967] 1 MLJ 19
(‘Periasamy’).
[39] In Periasamy, the appeal concerned the question of the

appellant-defendant’s liability for damage caused to the respondent-
plaintiff’s bull. The respondent-plaintiff had alleged that his two bulls
were pulling a cart when the appellant-defendant’s own bull
suddenly attacked one of them causing injury. The Sessions Court
found the defendant liable and hence his appeal to the High Court.
[40] The High Court affirmed the Sessions Court’s finding of

liability because the High Court agreed with the lower court’s finding
of fact that the defendant had failed to take reasonable care resulting
in the plaintiff’s bull’s injury. In affirming these findings, His Lordship
Raja Azlan Shah J (as His Royal Highness then was) held as follows
(in relation to the law on negligence vis-à-vis animal attacks), at
p. 21:
However, the plaintiff’s claim is based on negligence and it is on that
aspect of the case that this present appeal has to be decided ...
It is a perfectly clear principle of law that a man may be involved in

liability for damage done by his animals under the general principle
of negligence. In such case the plaintiff must prove a duty owed to
him by the defendant. It is also perfectly clear that he is liable if his
animal damaged his neighbour’s property. Who is one’s neighbour
has been judicially defined. Lord Atkin in the celebrated case of
Donoghue Stevenson [1932] AC 562 at p 580 stated the law as
follows...
[omitted]
That classic statement bears reference to ‘persons’ but I have no

doubt that includes his property as well. Applying that test, it is
beyond doubt that the defendant owes a duty to the plaintiff to take
reasonable care not to damage the plaintiff’s property which is in the
near neighbourhood. On the facts as found by the learned president
the defendant has failed to take reasonable care as a result of which
the plaintiff’s bull was injured.
[41] My statement of the cases up to this point is to ascertain the

generally applicable law. In light of the paucity of cases specific to
the subject, I am to apply Malaysian common law in conjunction
with the common of law of England per s. 3(1)(a) of the Civil Law
Act 1956.
[42] This case is grounded purely on negligence and not strict

liability (whether a scienter action or otherwise) or liability under any
given statute. A proper understanding of the various English causes
of actions available for animal attacks puts me on guard to apply the
decided English cases only to the extent that they discuss and
propound the law on negligence.
[43] I do not think that anywhere in the cases that have been cited
above or even this case is it disputed whether the defendants owe
the plaintiff a duty of care. The test, in relation to the question of
negligence, is whether the defendant failed, in the circumstances, to

take reasonable care thereby causing their animal, in this case a dog,
to cause injury to the plaintiff. That is the crucial question of fact
that was tried in this case.
[44] Having reformulated the issues in the case and tying them to
the law, I will proceed now to summarise the evidence and state my
findings in relation to them.
The Evidence
The Plaintiff’s Case
[45] As it is the plaintiff, SP1, who claims to have been attacked by

the defendant’s dog it is incumbent on me to start with his evidence.
[46] Preliminarily, I observe that the statement of claim and his

evidence-in-chief recorded in his witness statement (exh. SP1)
contain only general details about the dog attack. To be clear,
para. 4 of the statement of claim says this:
4. Pada 22hb Mac 2018 pihak plaintif sedang berjalan kaki dari
rumahnya ke kedai dan ketika sampai Jalan Ibu Kota kiri, tiba-
tiba seekor anjing jenis (mongrel/besar) berwarna putih yang
dimiliki oleh defendan pertama telah keluar rumah defendan
kedua dan menyerang pihak plaintif yang mengakibatkan
plaintif terjatuh dan plaintif turut mengalami kecederaan
sepertimana yang dinyatakan berikut.
[47] The statement of claim does not explain in greater detail how
the attack actually happened. An ‘attack’ (especially from a dog) can
mean one of many things. The dog could have approached the
plaintiff, growled at him, acted vicious and intimidated him striking
fear - enough to cause the plaintiff to run away or fall back. Or, the
dog could have pounced on the plaintiff causing him to fall. Or, the
plaintiff could have fallen, gotten up, and then fallen again when
running to escape.
[48] The nature of the attack was not described in sufficient

enough detail to explain what the dog did to cause the plaintiff to fall
in the way that he did. The formula for the plaintiff is simply that the
dog ‘attacked’ the plaintiff which caused him to fall and seriously
injure himself.
[49] The statement of claim aside, SP1 in his witness statement,

when asked to explain what happened on 22 March 2018, provides
a very general narrative. See, exh. SP1, Q&A 3:
Soalan : Boleh beritahu apa yang berlaku pada tarikh kejadian?
Jawapan : Pada 22 Mac 2018, sekitar jam 6.10 pagi, saya sedang
berjalan kaki dari rumah saya ke kedai dan ketika
sampai di Jalan Ibu Kota kiri, tiba-tiba seekor anjing
mongrel berwarna putih milik defendan-defendan telah
menyerang saya yang mengakibatkan saya terjatuh.
Akibat dari kejadian tersebut, saya telah mengalami
kecederaan dan telah ke hospital untuk mendapatkan
rawatan.
[50] SP1’s evidence is virtually a reproduction of para. 4 of his

statement of claim without any further elucidation as to what and
how the attack happened. Then, after what appears to be a general
assertion of a dog attack in exh. SP1, SP1 goes on to describe in his
witness statement what he did after the alleged dog attack.
Principally, two things occurred one after the other.
[51] The first thing that happened after the entire episode of the
dog attack, based entirely on his own evidence, is that on the same
day the plaintiff/SP1 sought medical treatment. He made his way to
the emergency department and sought treatment in the later part of
the morning - at 10.45am (see Bundle B, p. 5). It was later that the
plaintiff went to a specialist - an orthopaedist.
[52] The second thing that happened after seeking medical

treatment, is that SP1 lodged a police report at 1.18pm on the same
day (22 March 2018) alleging the following (see Bundle B, p. 1)
(‘plaintiff’s first police report’):
Pengadu Menyatakan:
Pada 22 March 2018 Jam Lebih Kurang 0610hrs, Semasa Saya

Sedang Berjalan Kaki Dari Rumah Saya Untuk Pergi Ke Kedai Dan
Ketika Saya Sampai Jalan Ibu Kota Kiri Tiba-tiba Seorang Seekor
Anjing Dari Rumah Yang Pertama Terus Datang Menyerang Saya.
Akibat Kejadian Tersebut Saya Terus Terjatuh Dan Anjing
Berkenaan Terus Berlari Masuk Semula Ke Dalam Rumah
Tersebut. Saya Telah Mengalami Patah Pada Pergelangan Tangan
Kiri Serta Koyak Tisu Pinggang Kiri Dan Kanan Saya. Saya Datang
Ke Balai Buat Report Mahu Membuat Tuntutan Insuran. Sekian
Laporan Saya.
[53] The rest of exh. SP1 explains what happened after the alleged
dog attack and what the plaintiff suffered as a result of the fall.
[54] Some details of the alleged attack only emerged in

cross-examination where for the first time SP1 appeared to suggest
that the dog had gone for his neck (see: notes of evidence, p. 4):
DC : You fell back. One minute, one minute. You fell back, the
dog just ran away, that’s your evidence?
SP1 : It just left. I was sitting on the floor, I can see the dog…
DC : Ran away or walked away slowly?
SP1 : Just, it ran away.
DC : It ran away, ya? Ran away. So, in other words, the dog did
not scratch you?
SP1 : Scratch?
DC : You know, the nails in front. Did it scratch you anywhere?
SP1 : No.
DC : No. So, you agree the dog also did not bite you?
SP1 : It was going for my neck.
DC : No, no, no, no. That is not my question. So, the dog did
not bite you?
SP1 : The dog never bit me.
DC : You are very about that?
SP1 : There’s no… the dog never bit me.
[55] That is the extent of SP1’s evidence on the dog attack. I

observe here that any sensible person who claims to have been
attacked to the extent of suffering serious injury, when given the
opportunity to complain about it, would spare no detail of the tale
of his woes. This to me, is to be expected from the common course
of natural events and human conduct which is stated in s. 114 of the
Evidence Act 1950.
[56] In explaining the general effect of the Indian equipollent of our

s. 114, learned authors of Ratanlal & Dhirajlal explained the
application of the section as follows (see: BM Prasad and Manish
Mohan, “Ratanlal & Dhirajlal - The Law of Evidence”, (LexisNexis,
2013), at p. 567:
The effect of this provision is to make it perfectly clear that Courts
of Justice are to use their own common sense and experience in
judging of the effect of particular facts, and that they are subject to
no particular rules whatever on the subject.
[57] In this case, neither the statement of claim nor SP1’s witness
statement discloses the details of the attack. These details only
emerged much later: during cross-examination. This, in my view,
impairs the credibility of SP1 specifically in respect of whether or not
I believe outright that he was actually ‘attacked’ by the defendant’s
dog as alleged. SP1’s inconsistency, in my view, renders his narrative
less than believable.
[58] On top of this, it appears that SP1 was unable to identify the
dog when asked to do so. Pages 16 to 17 of Bundle B contain
pictures of the alleged dog, but, when asked whether those pictures
refer to the dog who attacked him, SP1 was unsure. This is the
exchange that took place during cross-examination (see: notes of
evidence, pp. 18 to 21):
DC : Thank you, thank you. Now, Tuan, if I can just have a
moment, I am just writing things. Now, I refer you to
pp. 16 and 17 of bundle B. Can you see? These are
photographs. Tuan, sorry, it’s sidewards...
DC : Do you know about these photographs?
SP1 : Yes, yes.
DC : I see. So, this is the dog, isn’t it? This is the dog?
SP1 : It’s white lah. That’s all I know because I can’t see.
DC : No, is this dog which you say attacked you?
SP1 : Most probably yes, this is the one.
DC : No, no. you must be very sure. Yes or no? Not most
probably. Yes or no, this is the dog that attacked you?
SP1 : Boleh kasi large the screen tak?
M : Mr Gunaseelan could you perhaps enlarge it.
DC : I will try to enlarge it, Tuan. One minute. Is this the dog
that attacked you? Yes, Mr Kamalanathan, is this the dog
that attacked you? Yes or no? Don’t ask anyone anything.
If you are not sure, you must say not sure.
SP1 : I think this is the dog, white colour.
DC : No, no. Not whether you think. Is this the dog that
attacked you?
SP1 : No, no. it’s a white coloured dog so it could be.
DC : No, my question is not the colour of the dog. Is this

the dog that attacked you? If you are not sure say
you are not sure.
SP1 : I am not sure.
DC : You’re not sure? Alright.
SP1 : It’s a white dog lah.
DC : No, no. I agree, that is what you have been saying. So

you are not sure whether this is the dog that attacked you,
isn’t it? Right?
SP1 : (No audible answer)
DC : Now, we will move to p. 17, same bundle. Turn it around,

one minute. Can I enlarge it, just a little.
M : Thing is now at 200%. Could you perhaps try enlarging

it to 300%?
DC : Okay. I think it won’t be very clear. I think this is the

best. Unless if my learned friend Tharam have the
photograph itself, he can put it near the screen, it may be
clear. Is that the best you have? If I may ask my learned
friend Tuan if that is the best they have.
M : Yes, I think Mr Tharamjit just said that.
DC : Okay, fair enough. Again, Mr Kamalanathan, you have to

make do with what we have. Is this the dog which
attacked you? Or you say attacked you?
SP1 : Yes, yes.
DC : Is it? You’re sure, ya?
SP1 : Should be lah because it’s white.
DC : Not should be.
SP1 : As I told you just now, I don’t know anything about dog.
I know it was a white coloured dog.
DC : No, was this the dog that attacked you? If you are not
sure say you are not sure.
SP1 : I think this is the dog lah.
DC : No, that’s not the answer. Not what you think. Are you
sure or not? Yes or no?
SP1 : I am not sure, then.
[59] Learned counsel for the plaintiff re-examined SP1 on the

identity of the dog and whether SP1 recognised it (see: pp. 25 to 27
of the notes of evidence). There too, in re-examination, apart from
confirming the obvious fact that the dog is white in colour, SP1 was
unable to identify the dog as the dog that attacked him on 22 March
2018.
[60] Specifically, the pages that the defendant’s counsel referred to

during cross-examination were Bundle B, pp. 16 to 17, which were
taken on day sometime after the alleged attack. Page 28 of Bundle
B also contains a picture of the dog and this were referred to by
counsel for the plaintiff during re-examination to clarify whether the
plaintiff could identify the dog. The relevant portion of that exchange
during re-examination is reproduced in extenso, as follows (notes of
evidence, pp. 25 to 27):
PC : My learned friend has referred to the dog photo, I think
in pp. 16 and 17, correct Mr Gunaseelan?
DC : Yes, yes.
PC : If you don’t mind, Mr Guna because my laptop is used by

the plaintiff, can you just maybe put up the photo if you
don’t mind from the ikatan.
DC : Sure, just give me a moment.

PC : Photo p. 28. The Bandaraya’s report. There’s a dog also.

I just want to confirm whether this is the same dog.
DC : Let me do this slowly, ya. Page 28. No, no, not 28.
PC : Not 28, Mr Guna?
DC : No, no 28 is something else. I think it is, 24, 24. That

was the page I referred to. Which one are you looking at?
PC : I want to refer to 28 to confirm the dog. Maybe you can

scroll down a bit.
DC : This is p. 24 in my bundle.
PC : My bundle it’s 28. Page 28.
DC : No, 24. Lampiran 2, 24 in p. 24 of bundle B.
M : Can I confirm that this is the photo that you are referring
to?
DC : Oh you want to go to 28? I never referred to that.
M : Mr Tharamjit, is this the one?
DC : No, I did not refer to that.
PC : 28, Tuan, 28.
DC : No, I did not refer to 28 in my cross. I refer to 24 but

if you want, no problem. Put it to 28.
PC : Yes, if you don’t mind, can I refer to p. 28.

Mr Kamalanathan, can you just confirm that this is the
same dog as at p. 24?
DC : That’s a leading question.
PC : Okay, I will rephrase it.
DC : Never mind. Let us be careful.
PC : Okay. Can you recognise this dog, Mr Kamalanathan?
SP1 : Can. White coloured dog.
PC : Are you sure this is the same dog shown by Mr Guna

earlier by the lawyer at photo 16 and 17? Is this the same
dog, you believe the same dog?
SP1 : I am not sure.

PC : You are not sure?
SP1 : It’s a white dog.
DC : Alright, he has answered the question.
PC : You are not sure the dog at number 16 and 28…
SP1 : I noticed they look alike, something different.
PC : It’s the same dog?
SP1 : I am not sure also.
(emphasis added)
[61] The picture in p. 28 of Bundle B was taken when the dog was
seized. The first defendant is clearly standing there with the dog and
yet SP1 is unable to confirm that the dog in the picture was the dog
that attacked him on 22 March 2018. SP1 also could not also tell
if the dogs in pp. 16 to 17 of bundle is the same as the one in
p. 28 of the same bundle.
[62] Now, even though SP1 cannot identify the dog that attacked
him and quite apart from the fact that he cannot even properly
describe how the attack happened, I must and will test the totality
of the plaintiff’s testimony against the rest of his evidence on the
attack below.
[63] In this regard, SP1 cum the plaintiff produced SP2 as a

witness. SP2, one Muhammad Fariz bin Mohamad, was at the
material time serving with the Pest Control Unit of the Health and
Environment Department of the local authority, Dewan Bandaraya
Kuala Lumpur (‘DBKL’).
[64] SP2’s evidence is in essence that some two weeks after the
alleged dog attack, that is on 2 April 2018, his department received
a complaint from the plaintiff, in the form of the plaintiff’s first police
report in respect of the alleged dog attack. He and his team were
dispatched to the site and acted on the complaint on 4 April 2018.
[65] The material findings by SP2 and his team are contained in
Part B of the investigation report and they read as follows (Bundle
B, p. 20):
Pada 4 April 2018 @ 9 pagi, siasatan telah dijalankan bersemuka
dengan pengadu (orang yang kena serang) beserta dengan salinan
repot polis. Kejadian kes anjing menyerang pengadu adalah berlaku
pada 22 Mac 2018 @ 06.10 pagi, semasa pengadu sedang berjalan

kaki dari rumah pengadu untuk ke kedai dan ketika sampai jalan ibu
kota kiri, tiba-tiba seekor anjing pemilik jenis (mongrel/besar)
berwarna putih telah menyerang pengadu. Pengadu terus lari
menyelamatkan diri sehingga terjatuh dan anjing berkenaan terus
berlari masuk semula ke dalam rumah. Oleh sebab kejadian itu,
pengadu mengalami kecederaan patah pada pergelangan tangan kiri
serta koyak tisu pinggang kiri dan kanan pengadu. Pada hari yang
sama iaitu 22 Mac 2018 pengadu telah pergi mendapatkan rawatan
di Hospital Kuala Lumpur.
(emphasis added)
[66] SP2’s above report was prepared based on the plaintiff’s first
police report and upon the plaintiff’s recount of the events to SP2.
This is confirmed by SP2 during cross-examination at p. 34 of the
notes of evidence. It is also obvious that neither SP2 nor anyone in
his team is an eyewitness to the actual dog attack. The information
that they have regarding the actual attack was premised on the first
police report and any testimony they obtained from the plaintiff as
summarised above.
[67] To summarise, SP2’s evidence is that they investigated the dog

attack, confiscated the dog, and issued a summons to the
defendants. They also issued a notice to the defendants to post a
warning sign in their premises to indicate that the dog is a vicious
animal (‘anjing garang’).
[68] I have carefully considered the evidence of SP2 and the report
that he and his team prepared. It is my view that the evidence does
not lend much assistance to the plaintiff’s case. My reasons are
twofold:
(i) firstly, SP2’s evidence is not reliable; and
(ii) secondly, the defendant’s payment of the compound is not

presumptive of guilt and cannot therefore be relied upon as
circumstantial evidence.
Reliability Of SP2’s Evidence
[69] I find that the investigation conducted and report prepared by

SP2 are poor and slipshod. The report contained in Bundle B, p. 20
(supra) is inconsistent with the story narrated by SP1 himself.
According to SP1, he fell back when the dog almost went ‘for his
neck’. However, according to SP2, SP1 hurt himself when he fell in

an attempt to run away trying to save himself. This is as per the
words ‘… [p]engadu terus lari menyelamatkan diri sehingga terjatuh
dan anjing berkenaan terus berlari masuk semula ke dalam rumah …’.
[70] Additionally, SP2’s documentation contains careless errors.

For instance, item 1 of the investigation report (Bundle B, p. 19)
indicates that the complaint they received is dated 2 March 2018.
This is remarkable considering that the dog attack happened on
22 March 2018 and that the investigation itself happened on 4 April
2018. And, in their ‘Notice of Commission of Offence’ dated 4 April
2018 issued to the defendant, SP2 recorded the ‘nature of the
offence’ as ‘menyerang seorang warganegara India’ or in English,
that a citizen of India was attacked. These errors though minor,
when considered with the rest of SP2’s evidence give me the
impression that SP2’s investigation was more routine and reactionary
than actually necessary. Bluntly put, it appears to me that SP2’s
team conducted the investigation and took action premised solely on
the first police report and the plaintiff’s complaint believing it to be
true rather than on the belief that the attack actually happened.
[71] I am further convinced that SP2’s investigation is routine and

his report and testimony are unhelpful for the reason that the said
report (Bundle B, p. 20) identifies the dog as a mongrel. The
defendants, of course, deny that the dog is a mongrel and insist that
it was a Labrador. When questioned in cross-examination, SP2
admitted not knowing the species of the dog in question and for
some reason or another decided that the dog is a mongrel (see notes
of evidence, at p. 36):
DC : Seekor anjing jenis mongrel/besar. Mengapa kamu kata
mongrel itu? Kamu tidak pasti, kamu tidak tahu. Mengapa
kamu kata mongrel? Atau pun, dengar ya, ini yang
diberitahu oleh pengadu? Plaintif?
SP2 : Oh, tidak. Bukan kiranya daripada pengadu. Kiranya

kebiasaannya kita orang…
DC : Bukan, soalan saya, adakah pengadu beritahu kamu itu

adalah mongrel?
SP2 : Tak ada. Dia just beritahu anjing putih.
DC : Anjing putih sahaja?

SP2 : Ya.
DC : Jadi kamu menganggap itu mongrel?
SP2 : Ya.
[72] I therefore find any notation or finding by SP2 that the dog is
anjing garang (vicious or dangerous dog) as purely speculative
considering that in his own evidence that the dog, when seized was
tame and cooperative though notwithstanding the fact that the
owner of the dog, the first defendant, was present. There is also no
veterinary report on record to identify the dog as a mongrel or any
related or evidence to the fact that the dog is actually dangerous or
has a vicious propensity such that I can reasonably believe that the
dog was probably the cause of the plaintiff’s injury. In short, I find
that SP2’s investigation and report, for the above reasons, do not
assist the plaintiff.
The First Defendant’s Payment Of The Compound
[73] The plaintiff relies on the first defendant’s payment of the

compound claiming it is presumptive of guilt and accordingly that it
serves as circumstantial evidence of the defendants failing to take
reasonable care of their dog and that they are thereby negligent.
(See: para. 5.5 of encl. 43, plaintiff’s written submission).
[74] This is a point of law and also perhaps the plaintiff’s strongest
evidence as objective proof of his allegations.
[75] The compound issued by SP2 to the first defendant is to be

found in Bundle B, at p. 37. According to the plaintiff, the first
defendant’s payment of the compound is tantamount to an
admission of his dog attacking the plaintiff. The defendants reject this
assertion and counter-argue that the payment of the compound is
irrelevant under the Evidence Act 1950 and as such inadmissible as
evidence. The defendants rely on the judgment of the Court of
Appeal in Shahrudi Abidin v. Datuk Wira Abu Seman Yusop Timbalan
Menteri Dalam Negeri Kementerian Dalam Negeri Malaysia & Ors
[2021] 1 CLJ 52 (‘Shahrudi’).
[76] In my respectful view, Shahrudi is of no assistance to the

defendants. That case concerned the question of whether an order
of habeas corpus granted in favour to a detenu was, in light of s. 43
of the Evidence Act 1950, admissible in his subsequent civil suit
against the Government alleging false imprisonment. The Court of
Appeal affirmed the general principle that prior convictions are

inadmissible in subsequent civil suits but that the habeas corpus order
was not caught by s. 43. I cannot see how this case helps the
defendants because that case had nothing to do with prior
convictions and the present case itself has nothing to do with habeas
corpus.
[77] To my knowledge, there is no rule excluding the evidence in

p. 37 of Bundle B and as such, it is admissible as relevant evidence
under s. 136 of the Evidence Act 1950. Such evidence must
therefore be accorded weight and be dealt with in accordance with
the rules of evidence established by law. What then are those rules?
[78] I have conducted my own research and the following cases

lend significance assistance in answer to the effect of payment of
compounds and whether they amount to admissions of guilt and
how such evidence is to be treated.
[79] A case which is on all fours with the issue in this case is the
decision of the High Court of Singapore in Re Lim Chor Pee [1990]
1 LNS 119; [1991] 2 MLJ 154 (‘Lim Chor Pee’). In that case, the
respondent, an advocate and solicitor of the Supreme Court,
challenged a notice to show cause issued against him finding him
guilty of grossly improper conduct. One of the bases for finding him
guilty on one of the charges was that he had settled income tax
summonses issued against him. A three-justice bench of the High
Court held that the composition of a compoundable offence per se
cannot itself be deemed an admission of guilt. I find instructive the
following dictum of Thean J, at p. 166:
… Whether the offence is compounded under the Code or under the
Income Tax Act, payment of a sum of money is exigible from the
alleged offender. The fact that the payment made is a penalty, is a large
sum and is imposed at the same rate applicable upon conviction of the
offence by court is not a valid ground for raising the inference of guilt
against the alleged offender. We accept that there is no equivalent in
the Income Tax Act of sub-s (4) of s 199 of the Code. However,
in our opinion, on principle, the same rule should apply to a
composition of an offence under the Income Tax Act, or to put it
negatively composition of an offence by an alleged offender cannot
constitute an admission of guilt against him. The effect of a
composition is that no further action can be taken by the prosecuting
authority against the accused on the offence compounded or indeed
any other offence in respect of which he could plead autrefrois acquit
or autrefrois convict in respect of the offence compounded.
There are multiple reasons why a person may wish to compound an offence,
whether it be an income tax offence or an offence compoundable under the
Code, without any admission of guilt. In particular, in the case of a
taxpayer being charged for tax evasion under s 96 of the Income Tax Act,
where the burden of proof is shifted to him, he may, on grounds of
practicality and expediency, if agreeable to the Comptroller of Income Tax,
compound the offence and pay the requisite composition fee and penalty.
(emphasis added)
[80] The Singapore High Court clarified that the composition of an

offence amounts to an acquittal. This is consistent with s. 260(5) of
Malaysian law in the Criminal Procedure Code [Act 593] (‘CPC’) -
which is the law of general application on criminal procedure. An
accused person who compounds an offence, might do so on grounds
of expediency - such as to free himself of the offence hanging over
his head. As will be seen later, the payment of a compound is nearly
akin to a civil settlement without an admission of guilt.
[81] I could only find two Malaysian cases on this point of law ie.
whether the payment of a compound amounts to an admission of
guilt. These two cases are, however, conflicting decisions.
[82] The first of the two cases, an application for judicial review, is
Abadi Motor Sdn Bhd v. Ewwa Mohd Yusoff & Ors [2019] 1 CLJ 234;
[2019] 9 MLJ 18 (‘Abadi Motor’) which was decided on 31 October
2018.
[83] The applicant in that case was in the business of importing

motor vehicles into Malaysia. Several of his vehicles were seized by
the Customs Department and he was issued compounds in relation
to certain offences committed in relation to the process of
importation. The remedies sought were in the nature of certiorari and
mandamus to direct the customs officials to return the vehicles seized
and for refunds of monies paid as compounds. The learned judge,
Vazeer Alam J dismissed the application and, in so deciding, found
that the payment of the compound by the applicant amounted to an
admission of guilt. His Lordship held:
[19] Following investigations, and upon the respondents being
satisfied that offences under the Act had been committed, offers
to compound the offences were made pursuant to the
provisions of the Act and the Regulations referred to earlier.
The applicant had a choice of accepting the offer to compound the
offence, or rejecting it, and appearing in court to challenge the
charges. The applicant did not elect to appear in court to challenge

the charges. Instead, the applicant chose to accept the offer of
compound for Case No 1, Case No 3 and Case No 4 and paid the
compound in full. Such acceptance amounts to an admission of guilt
in so far as the offences are concerned.
(emphasis added)
[84] His Lordship took the position that the applicant ought to
have contested the charges if he believed he was not guilty and so
the payment of the compound amounted to a direct admission of
guilt. I note that His Lordship was not referred to the Singaporean
decision of Re Lim Chor Pee (supra) and there was therefore no
judicial consideration on this point of law in Abadi Motor.
[85] This leads me to the second case: Tengku Azrul Hisham Tengku
Aziz v. Chua Yuen Fun [2022] 1 LNS 319; [2022] MLJU 268
(‘Tengku Azrul’). The case was an appeal to the High Court from the
decision of the Sessions Court finding that the defendant was not
liable for a civil road traffic accident. It is the latest decision of the
High Court on the issue having been decided on 20 December 2021
(grounds of judgment dated 10 January 2022).
[86] In that case, the learned Sessions Court Judge deemed

inadmissible the fact the defendant had compounded the traffic
offence relevant to the civil traffic accident claim. On appeal, the
plaintiff/appellant argued, inter alia, that this refusal to admit was
erroneous and had that evidence been admitted, it would have aided
in proving that the defendant was liable. At issue in the case was in
the interpretation of s. 121 of the Road Transport Act 1987 (‘RTA
1987’) which reads as follows:
121. Where any person has compounded an offence or pleaded
guilty by letter to an offence under this Act, no evidence of
any such act shall be admissible in any civil proceedings
arising out of the same transaction as the said offence and
he shall be deemed not to have committed, by reason only of
so doing, a breach of any condition of any policy of insurance
relating to admission of liability without the consent of the
insurers.
(emphasis added)
[87] The learned Tee Geok Hock JC, in applying settled cannons
of statutory interpretation, upheld the lower court’s decision that the
said s. 121 rendered evidence of payment of traffic compounds,
inadmissible.
[88] In my opinion, the decision in Tengku Azrul, being the latest

decision of the High Court, displaces the decision in Abadi Motor on
this point of law (even though Tengku Azrul did not refer to Abadi
Motor).
[89] I am aware that Tengku Azrul was decided premised upon

s. 121 of the RTA 1987 which is the more specific provision on the
admissibility of evidence displacing the more general s. 260(5) of the
CPC and s. 136 of the Evidence Act 1950. That said, I think that
Tengku Azrul is still authority for the issue in this case even though
this case is not concerned with s. 121 of the RTA 1987. This is
because, in my view, Tengku Azrul posits two rationes decidendi - one
narrower and the other, broader.
[90] The narrower ratio of the case, on the facts, is that under
s. 121 of the RTA 1987, the composition of an offence in a road
traffic case is inadmissible as evidence and cannot be relied on by
insurers companies as a reason to claim a breach of condition of an
insurance policy to enable them to repudiate liability to pay under
such policy. This, as explained in Tengku Azrul, was the mischief that
the Legislature sought to eliminate when it passed s. 121 in the
terms that it did. (see: Tengku Azrul, [30]).
[91] The broader ratio decidendi of the case is that even if the fact
of payment of a compound is admissible as evidence, it is a
rebuttable presumption of admission of guilt. In other words, s. 121
was passed to fortify and enhance the pre-existing law contained
within s. 260(5) of the CPC that the composition of a
compoundable offence amounts to an acquittal and that by judicial
extension, is a rebuttable presumption of admission of guilt. This is
borne out clearly in Tengku Azrul where Tee Geok Hock JC observed
thus:
[31] While taking away the insurers’ defence under their previous
practice that the act of compounding traffic offence or plea by
letter to a traffic summons could be a ground for repudiating
the insurer’s liability, there is nothing in the statute to suggest that
the Legislature intended to materially alter the previous law
regarding the legal effect of compounding offence as an acquittal or
to take the opposite extreme of exposing the insurers to liability or
prima facie liability to pay merely by virtue of the act of
compounding offence or plea by letter on the part of the insured driver
or rider. For such a fundamental alteration in the legal effect of
compounding offence as an acquittal when applied to traffic
offences, clear and express words stating the fundamental
alteration in the statute are necessary. A canon of interpretation

is that the Legislature is presumed to have not intended to
make a change in the settled law unless such intention is stated
in clear and express words to that effect: Reg v. Schildkamp
[1971] AC 1 at pg 14G (House of Lords). It is also illogical and
contrary to common sense that comparatively more serious offences
can be compounded for an acquittal (with no stigma of guilt) under
section 260 of the Criminal Procedure Code while the comparatively
less serious traffic offences under the Road Transport Act 1987 would
have compounding of traffic offence with the stigma of guilt.
(emphasis added)
[92] Based on the above passage and following from what has been
laid down above, the following is what I understand. Under
s. 260(5) of the CPC, a person who compounds a compoundable
offence is acquitted of the offence. An accused person paying a
compound might have done so without expecting to fear being mired
by the stigma of guilt. Section 121 of the RTA 1987, which relates
to an offence arguably more serious than those contained within the
list of compoundable of offences in the CPC, makes it such that
evidence of payment of the compound is completely inadmissible as
evidence. In that sense, s. 121 of the RTA 1987 (being the more
specific legislation for road traffic offences) eliminates completely the
need to consider whether the payment of a traffic compound
amounts to an admission of guilt on a case to case basis by rendering
it completely inadmissible.
[93] The High Court in Tengku Azrul went a step further than it did
in Abadi Motor to consider the effect of paying a compound and
whether that act amounts to an admission of guilt. This is what the
learned Tee Geok Hock JC said upon analysing an article from
Singapore on the subject in Tengku Azrul:
[27] From the above references, it is reasonably clear that:
(a) Compounding of an offence has the legal effect of acquittal

or verdict of not guilty vis-à-vis the accused or the person
reasonably suspected of having committed the offence:
s. 260(5) of the Malaysian Criminal Procedure Code;
(b) Compounding of an offence is akin to a composition of

offence (ie. settlement of a criminal charge or complaint by
payment of consideration) or akin to the common law plea
of nolo contendere (which is commonly understood as accepting
the punishment without admission of guilt and without

admission of responsibility for the act or matter charged or
complained of); and
(c) When the compounding of an offence or plea of nolo

contendere is made, it is made on the basis or understanding
that the act of compounding or such plea will not be used against
the accused or suspect in another cause of action or proceeding.
(emphasis added)
[94] The above observations were made squarely in relation to the

application of s. 260(5) of the CPC (the broader ratio decidendi) and
applied to suit the narrower and more stringent wording of s. 121 of
the RTA 1987 (the narrower ratio decidendi). It stands to reason that
Tengku Azrul, being the later decision of the High Court, supersedes
the High Court’s decision in Abadi Motor. I am therefore bound to
follow Tengku Azrul.
[95] That said, Tengku Azrul only explains the application of

s. 260(5) generally and used that explanation to interpret s. 121 of
the RTA 1987. Even though law stated in Tengku Azrul was not
applied directly to a case similar to this one, the case nonetheless
provides some guidance by stating that the composition of a
compoundable offence: ‘is commonly understood as accepting the
punishment without admission of guilt and without admission of
responsibility for the act or matter charged or complained of’ or ‘it
is made on the basis or understanding that the act of compounding
or such plea will not be used against the accused or suspect in
another cause of action or proceeding.’ The case does not, given the
circumstances in which it was decided, otherwise provide guidance
on how the court ought to distinguish between whether the
payment of a compound can, in certain circumstances, count as an
admission of guilt.
[96] I am therefore brought back to the Singaporean decision of

Lim Chor Pee which held that the payment of compound is not per
se an admission of guilt because the composition might have been
done for the sake of expediency. In this regard, I draw considerable
further guidance from the recent judgment of the Singapore Court of
Appeal in Teo Seng Tiong v. PP [2021] SGCA 65 (‘Teo Seng Tiong’).
[97] Teo Seng Tiong was a constitutional challenge. The appellant

was charged with two offences relating to a serious road traffic
incident. He was convicted and sentenced on both counts. The sole
constitutional question before the apex Court of Singapore was
whether his prior compounded offences could be considered as
aggravating factors for purposes of sentencing. The appellant
maintained that they could not. The constitutional question was
posed in relation to charges brought prior to amendments to the
Singapore Road Traffic Act (Cap 276, 2004 Rev Ed) which
expressly legislatively provide that they could be regarded as
aggravating factors for purposes of sentencing.
[98] This is what the learned Sundaresh Menon CJ had to say on

behalf of the unanimous five-justice bench on the subject of the law
prior to the amendments in Singapore:
[60] The Prosecution acknowledges that the acceptance of a
composition offer does not amount necessarily to an admission
of guilt. We agree generally with this view, subject to what we
say below.
[61] The foundation of composition is that it is a sort of settlement

agreement. For example, under the Fourth Schedule read with
s. 241 of the CPC, there are a number of offences under the
Penal Code and some other Acts which may be compounded
by the victim of the alleged offence, thereby effecting what is
in essence a private settlement. The act of entering into a
settlement agreement does not mean necessarily that one is admitting
liability or guilt although that is one real possibility.
[62] Some offences are compounded for the sake of expedience and
efficient administration. In the case of road traffic offences, the
composition procedure is used for the “efficient disposition of
less serious traffic violations”: Ong Heng Chua ([16] supra) at
[40] (relying on the speech by the Minister for Home Affairs
and Second Minister for Law, Prof S Jayakumar, in the second
reading of the Road Traffic (Amendment) Bill on 30 August
1985 (see Singapore Parliamentary Debates, Official Report
(30 August 1985) vol 46 at cols 327-328), where the Minister
said, “most road offences could be compounded by the Traffic
Police instead of being referred to the court” and “[o]nly the
more serious offences will be referred to the courts”). It would
appear that the rationale for this is that such offences occur
frequently and in relatively high numbers but are generally not
so serious that they should go before the courts. Composition
of such offences would therefore benefit the alleged offenders,
the Traffic Police, as well as the courts in terms of time and
expense. While most alleged offenders who accept the offer of

composition are probably admitting guilt, it is reasonable to expect
that some alleged offenders in minor traffic offences may genuinely
not recall the circumstances of the alleged offences and choose to pay
a relatively low composition amount in order to close the matter
quickly.
(emphasis added)
[99] The learned Chief Justice of Singapore then went on to hold

as follows:
[67] Considering all the above reasons, we accept the proposition
that the acceptance of a composition offer is not necessarily an
admission of guilt in respect of the offence compounded.
However, it cannot be correct to say that acceptance of a
composition offer can never be such an admission. Under
s. 135(1) of the RTA, a composition is offered to “a person
reasonably suspected of having committed the offence”.
Similarly, under ss. 242(1) and 243(4) of the CPC, the Public
Prosecutor or the compounding authority may offer
composition to “a person reasonably suspected of having
committed the offence”. Therefore, when composition is
offered to a person, that means effectively that he is an alleged
offender even if he has not yet been charged. Accordingly, if
that person accepts the composition and pays the amount specified
without protest, it would be at least a presumptive admission of guilt
until it is shown otherwise, since people who are alleged to have
committed an offence would not pay the composition amount if they
deny having committed any offence or assert that they have a
defence to the alleged offence. This is particularly so in traffic
offences if accepting the composition offer would also entail
accepting demerit points which can result eventually in
disqualification from driving. It would be up to the alleged offender
who asserts that he accepted an offer of composition despite his
innocence to provide and prove the reason(s) for having done so.
Again, this is reasonable and logical as he would be the only person
who is aware of the reason(s).
[68] This is consistent with Re Lim Chor Pee because, as noted at

[57] of that decision quoted earlier, the respondent lawyer there
did give his reasons to the Disciplinary Committee for paying
the composition amounts which the Disciplinary Committee
rejected but which the court accepted. It was because of the
reasons spelt out at [57] of that decision that the court
concluded that the respondent there was under considerable
pressure to come to some form of a settlement with the
authorities to bring an end to the prolonged criminal
investigations into his affairs regardless of his guilt or

innocence. On that basis, the court held that the compositions
made by the respondent ought not to be considered as an
admission of guilt. The court’s holding was not on the basis that
compositions could never be an admission of guilt because that would
defy logic and common sense.
(emphasis added)
[100] The Singapore Court of Appeal explains that the payment of

a compound is tantamount to a settlement in civil cases without
admission of liability (or guilt in criminal cases). It is however, in law,
an acquittal and is therefore caught by the double jeopardy rule
(a rule also ensconced in art. 7 of our Federal Constitution). The
apex court then explained that the outright payment of a compound
without protest can presumptive of admission of guilt but balanced
this with the consideration that in many cases, protest against
payment is a reasonable means to rebut the presumption of guilt.
Lim Chor Pee (supra) was cited as an example of how fair reasons
were given for the composition of the offence in that case and
composition was accordingly not relied upon as an admission of guilt
or liability. The Court of Appeal held that prior payments of
compounds could therefore, (prior to the amendments) be
considered as presumptive of guilt and be relied upon as aggravating
factors for purposes of sentencing.
[101] Having culled the authorities and attempting to drawing out of

them their rationes decidendi, I find that the test in any given case
where an offence is compounded is as follows for when it concerns
the admissibility and treatment of evidence of the composition of a
compoundable offence:
(i) The court must first determine whether the fact of payment of
the compound is admissible as evidence. The evidence is
generally admissible under s. 260 of the CPC unless there is a
specific legal provision rendering it inadmissible eg. s. 121 of the
RTA 1987. The first defendant’s payment of the compound in
casu is admissible under s. 260 of the CPC as there is, to my
mind, no more specific provision excluding it.
(ii) Once the said evidence is admitted, it becomes presumptive of

guilt. The presumption may however, be rebutted if there is
evidence to show that the compound was paid under protest or
if there is a subsequent reasonable explanation as to why the
compound was paid.
(iii) In my assessment of the judicial authorities, any evidence of

protest against payment of the compound in question at the
earliest possible opportunity is a strong reason to rebut the
presumption of guilt.
Any reason given later in court for the reason for paying the
compound during court proceedings (or long after the payment)
is subject to higher scrutiny as such reasons can be
afterthoughts. In this category of cases, the court should also be
minded to examine the circumstances of the case to ascertain
whether the reasons given for paying the compound are
reasonable, believable and accord with common sense (in those
circumstance). It must therefore be considered on a case by
case basis.
[102] In this case, the first defendant, who was also SD1, explained
his reason for paying the compound. The following is the exchange
between learned counsel for the plaintiff and SD1 during
cross-examination (notes of evidence, at p. 79):
PC : Sebab apa disita? Sebab apa anjing kamu disita?
SD1 : Kerana kami dapat tahu dia telah menyerang seseorang

tetapi tidak ada bukti apa-apa.
PC : Okay, tiada bukti, kan? Jadi setuju dengan saya kalau

kamu kalau benar tidak serang, mengapa kamu bayar
kompaun?
SD1 : Sebab saya nak bawa balik anjing saya. Itu sahaja saya
punya motif. Time tu saya tak kisahlah dia serang atau tidak,
saya tidak selidik benda itu. Saya nak bawa balik saya punya
anjing, itu sahaja.
(emphasis added)
[103] The simple explanation given by SD1 is that he wanted to

bring his dog home. That is the reason why he paid the compound
irrespective of whether he believed that the dog attacked the plaintiff
or otherwise. In the circumstances of this case, I accept his reason.
[104] The reason why I accept the first defendant’s excuse for
paying the compound is because I find it was done so ‘on grounds
of practicality and expediency’ (see Lim Chor Pee (supra), at p. 166).
The defendants’ entire narrative has always been an outright denial
of their dog attacking the plaintiff. I also accept, as part of common

sense, that a dog (although regarded as chattel under law), is an
animal and enjoys the love and affection of its master. It accords
with logic and the common course of human events that the first
defendant would pay the relatively meagre sum of RM250 to have
the dog released immediately rather than claim trial to the charge at
the expense of the dog’s freedom. And, at the risk of repetition, the
first defendant’s denial is buttressed by the fact that he has always
disclaimed knowledge of the dog attack. Given the consistency of his
overall narrative, I think it is unlikely the first defendant’s reason for
paying the compound is a fabrication or an afterthought.
[105] I accordingly accept the first defendant’s reason for paying the
compound and his act of so paying is not presumptive of guilt. As
such, the fact that the first defendant paid the compound does not
lend strength to the plaintiff’s case that the defendants’ dog attacked
him.
[106] At this juncture, the question still remains whether the plaintiff
was attacked by the defendants’ dog. Here, only two other pieces
of evidence remain:
(i) A plaintiff’s second police report dated 30 August 2018 (‘second

police report’) (Bundle B, p. 2); and
(ii) The Emergency Department medical report dated 20 July 2022

(‘ED medical report’) for the plaintiff’s visit at Hospital Kuala
Lumpur (‘HKL’) on 22 March 2018 (Bundle B, pp. 5 to 6).
[107] I shall deal with each in turn.
[108] The second police report, which was lodged some five months
after the first police report, reads as follows:
Pada 30/0/2018 Lebih Kurang Jam 0615hrs Semasa Saya Jalan Kaki
Dari Rumah Saya Untuk Ke Kedai Dan Ketika Sampai Di Jalan Ibu
Kota Kiri, Tiba-tiba Saya Nampak Seekor Anjing Warna Putih Dari
Rumah No 2 Jalan Taman Ibu Kota Berada Di Luar Sedang
Menyalak Dan Meluru Ke Arah Saya. Saya Nampak Anjing Ini
Masuk Semula Ke Kawasan Rumah Pemiliknya Kerana Dipanggil
Oleh Pemiliknya. Saya Datang Ke Balai Buat Repot Takut Jadi Apa-
apa Pada Keselamatan Saya Serta Membahayakan Nyawa Orang
Awam Yang Lain Di Dan Mahu Rujuk Pihak Berwajib Untuk Ambil
Tindakan Tegas Kepada Pemilik Anjing Tersebut. Sekian Repot
Saya.
[109] SP1 further elaborated his reasons for lodging the second
police report during cross-examination, as follows (see: notes of
evidence, p. 16):
DC : Alright, never mind. Now, on the, I am looking at page
two, still. This time, the dog came out again and attacked
you, is it?
SP1 : It never attacked me. It was exactly in the same position.
DC : But this time it didn’t attack? Just growling at you?
SP1 : The dog start barking and this time the father called the
dog in. Once he knows the dog was barking, if you read
my report, the father, the owner of the dog, the father
called the dog. Anyway, I made a police report.
DC : I see. But this time it didn’t attack you?
SP1 : No, it didn’t.
DC : I see. That is why you said, you made the police report
for everybody’s safety, is it?
[110] Learned counsel for the plaintiff, Mr Tharamjit, submits that

the second police report shows that the plaintiff is consistent in his
assertions that the defendants’ dog attacked the plaintiff. With
respect, I am unable to agree how the second police report evinces
anything of that sort. The defendants’ case is that they have always
had full control of their dog. In this regard, SP1 (even if I believe
him) himself accepted, that though the dog was outside the
premises, the dog, for one, never attacked him, and two, the dog
returned to its master as soon as the second defendant beckoned for
it to do so. I am unable to see how the lodging of the second police
report in any way fortifies the fact that the plaintiff was attacked on
22 March 2018, prior to his lodging of the first police report. In fact,
the second police report is proof that the first defendant was in
control of his dog.
[111] For the avoidance of doubt, I have already prior to this,

commented on the first police report. The plaintiff is only recorded
as stating to the effect that a dog had attacked him and that the dog
subsequently returned to the defendants’ premises without even
explaining the nature of the attack or anywhere else in the
documentary evidence. The details of the attack only first emerged
in cross-examination. In fact, SP2’s own investigation report that I
referred to earlier states that the plaintiff fell when running away from
the dog. During cross-examination, the plaintiff could not even
identify the dog from the pictures that were shown to him. There are
simply too many inconsistencies in the plaintiff’s narrative for me to
find, on a balance of probabilities, that the defendants’ dog attacked
the plaintiff.
[112] This leads me now to the final piece of evidence from the
plaintiff - the ED medical report. The doctor who examined the
plaintiff was one Dr Priya Darshini Tanabalan who was not called as
a witness in this trial. The ED medical report was prepared by SP3,
one Dr M.S. Puteri Zalmah binti M.A Shoukat Ali. The material
portions of the report on the allegation of the dog attack read as
follows (Bundle B, p. 5):
Sejarah (History):
54 years old Indian gentlemen (sic). No known medical illness.

Alleged fall after attack by dog. Complain of left wrist, forearm pain
and lower back pain. Otherwise no loss of consciousness. No
retrograde amnesia. No ENT bleed. Triaged to Non Critical Zone,
seen by Dr. Priya Darshini Tanabalan (MMC 63994) and findings
documented.
[113] With respect, the view that I have formed above remains
unchanged even after reading this report because though it might
render the plaintiff’s case that he was attacked by a dog credible, it
does not fortify the plaintiff’s narrative that it was the defendants’
dog that caused him the injury.
[114] The law on burden of proof is beyond settled. According to

s. 102 of the Evidence Act 1950, the burden of proof in a suit or
proceeding lies on the person who would fail if no evidence at all
were given on either side. The defendants only have an evidential
burden requiring them to raise sufficient evidence to rebut the case
against them once the plaintiff provides enough evidence that when
considered in totality the court can consider the plaintiff’s case
proved. This trite principle on legal versus evidentiary burdens is
explained neatly by Mustill LJ in Brady (Inspector of Taxes) v. Group
Lotus Car Cos Plc & Another [1987] 3 All ER 1050, at p. 1059:
… It means no more than this, that during the trial of an issue of
fact there will often arrive one or more occasions when, if the judge
were to take stock of the evidence so far adduced, he would
conclude that, if there were to be no more evidence, a particular
party would win. It would follow that, if the other party wished to
escape defeat, he would have to call sufficient evidence to turn the
scale.
[115] In my view, the plaintiff is unable, in fact, able to establish on

a balance of probabilities that it was the defendants’ dog who
attacked him. I say this purely on the plaintiff’s own evidence. I shall
now proceed to examine the defendants’ case, regardless.
The Defendants’ Case
[116] As has already been stated, the defendants deny that their dog
ever caused or was the reason for the plaintiff’s fall. The defendants’
first witness is the first defendant or SD1.
[117] SD1 gave inconsistent evidence on his knowledge of the

alleged dog attack. In para. 4 of this defence (Bundle A, p. 12), the
defendants claim that the plaintiff had complained to them about the
dog attack seven days after the alleged incident took place on
22 March 2022. If the allegation in the defence is correct then the
plaintiff must have seen the defendants on or about 29 March 2022.
However, in his witness statement (exh. SD1) and in cross-
examination, SD1 claimed that the plaintiff never met the first
defendant or his parents and that the first time the defendants came
to learn of the alleged attack was when SP2’s team came to
investigate the said incident.
[118] Apart from the above, SD1 testified that his dog had never
attacked anyone and that it is tame. To this effect, he called SD2
(as a witness of opinion who understands the nature of dogs) and
SD3 (as a witness of fact who has observed how SD1 cared for and
managed the dog). I shall refer to their evidence later.
[119] In my view, the inconsistency in SD1’s evidence as to whether

or not the plaintiff ever met him or his parents does not make him
inherently incredible or affect the weight of the rest of his evidence.
This is because the legal burden to prove that the plaintiff met the
defendant lies with the plaintiff. It is after all the plaintiff’s case that
he was attacked. It is therefore for the plaintiff to prove it.
[120] The first time ever the plaintiff claims to have met the
defendants is in his cross-examination. He claims that the date of the
incident, 22 March 2018, was a Thursday and that he met the
defendants on Sunday (25 March 2018) - three days after the dog
attack (see: notes of evidence, pp. 12 to 13). This important and
useful allegation of fact is nowhere pleaded in the statement of claim.
[121] The defendants claim to have met the plaintiff seven days after
the incident and yet the plaintiff elected not to file a reply to the
defence to state the fact of him having met them much earlier but to
no avail. It is the plaintiff’s right or perhaps strategic choice not to
file a reply but he must suffer the consequences of not pleading this
material fact. After all, it is a cardinal rule of civil trials that material
facts not pleaded ought to be disregarded. See generally: Janagi v.
Ong Boon Kiat [1971] 1 LNS 42; [1971] 2 MLJ 196, at p. 196.
[122] In any case, I find that the defendants’ inconsistent stand as

to when they discovered the alleged dog attack is immaterial to their
defence because in the first place, they deny that their ever caused
the attack. Even if they found out about it at the time the plaintiff
said he informed them, they are not legally required to take any
action to remedy the situation if they maintained that their dog never
attacked the plaintiff in their absence.
[123] Reverting to SD1’s evidence, he asserts two things. First, he

denies the attack outright. I accept this because as I have stated at
length above, the plaintiff has not been able to establish clearly that
it was the defendants’ dog that caused it or even how the attack
happened. There are too many inconsistencies in the plaintiff’s
narrative with varying allegations such as, at one point, the dog
running up to his neck and at another point, (according to SD2
based on what he recorded from SP1), that the plaintiff fell while
running away. In any case, the plaintiff is unable to confirm the
identity of the dog from the pictures contained in the evidence.
[124] The second assertion by the defendants and reiterated by SD1

in his oral testimony is that the dog is tame. For this, he relies on the
testimonies of SD2 and SD3.
[125] SD2, Mr Ramasamy a/l Sinnakolandai, is a retired police

sergeant who served with the Royal Malaysia Police Force as a dog-
handler in the K-9 Unit for 30 years until his retirement at the age
of 60 in 2019. In addition to this, SD2, while serving as a sergeant,
received training or attended refresher courses for the handling of
dogs at Pulapol six months at a time annually during his 30-year
service. He has also been called to testify as a witness twice (since
before this trial) in two separate and prior cases for dog related
incidences. In his 30 years of service in the K-9 Unit, SD2 has

trained numerous dogs including German Shepherds, Labradors, and
Golden Retrievers. Given this experience, I find that SD2 is qualified
to testify and provide his opinion on the subject of dogs under
ss. 45 and 60(1)(d) of the Evidence Act 1950. It is trite that an
expert need not be so by special study and that he may be so by
experience. See generally: Mariette Peters, “Law of Evidence in
Malaysia”, (LexisNexis, 2013), at p. 299.
[126] See also Kong Nen Siew v. Lim Siew Hong [1971] 1 LNS 53;
[1971] 1 MLJ 262. I applied analogously the same considerations as
the High Court did in that case for determining whether SD2 can be
regarded as an expert by experience and his opinion be treated as
evidence in this case. At p. 263, the learned Seah J held:
Counsel for the petitioner called Dato Ting Lik Hung to give expert
evidence on Chinese marriage custom as practised in the state of
Sarawak. Apart from being the Headman for Area No. 1 covering
the Foochow community in the Sibu district, Dato Ting is also for
many years a Registrar of Chinese Foochow marriages appointed
under the provisions of the Chinese Marriage Ordinance. Dato Ting
claims and I think justly claims that he is conversant with Chinese
marriage customary law and particularly the Foochow custom. I take
judicial notice of the fact that Dato Ting has appeared in this court
in the past as a (sic) expert on Foochow customary law relating to
marriage and divorce and his evidence had been accepted without
question. For myself, I am satisfied that he is a recognised authority on
Foochow custom pertaining to matrimonial matters in Sarawak and
would treat him as an expert within the meaning of s. 45 of the Evidence
Ordinance.
(emphasis added)
[127] Now, according to SD2, Labradors are tame dogs commonly

kept as pets. In the K-9 Unit, Labradors serve to detect explosions,
drugs or firearms by virtue of their acute senses. Further, in exh.
SD2, SD2 testified as follows in relation to a general question on
dog attacks (exh. SD2, Q&A 10):
S : Mengikut keterangan kamu, apabila seekor anjing menyerang
orang tersebut, adakah mereka akan berundur sekiranya
orang yang diserang terjatuh?
J : Tidak, dia akan serang dan gigit namun sekiranya anjing

tersebut takut dia akan gigit tetapi akan lepaskan. Kalau dia
serang secara betul, dia akan gigit dan tarik daging.
[128] The testimony above explains that dog ‘attacks’ (in the sense
of the word ‘attack’) are by their nature severe and result in serious
physical injury. Here again, the lack of explanation by the plaintiff as
to how the attack even happened in the first place in the statement
of claim plants doubt in my head as to whether there was even an
‘attack’ in the sense of the word.
[129] SD2, at the material time lived in the neighbouring area not
too far away and claims to have walked by the area where he has
seen the defendants’ dog. According to him the dog is of the
Labrador breed and is tame. In cross-examination, SD2 was asked
whether he himself had ever trained the defendants’ dog which
question he answered in the negative. According to him, having
passed by the area, having trained dogs generally for 30 years as his
career and having seen the dog with his own two eyes, he can tell
the dog is of the Labrador breed and is therefore generally tame.
Given that he is not a related party and the sheer amount of
experience he has under his belt in this field, I have no reason to
disbelieve him.
[130] While SD2 testified that the dog is a Labrador and that it is
tame in its general nature, SD3 is a subpoena witness who was
called to testify specifically on the nature of the very dog in question
in this case. SD3, one Ms Nurul Atiqah binti H Muzammil, is a
neighbour of the defendants’ (of two minutes away) and claims to
have known the first defendant from childhood. She also knows the
plaintiff since they all live in the same area and also states that the
plaintiff and her father are friends. Given the relationship between
both the first defendant and SD3, and the plaintiff’s relationship with
SD3’s father, I do not think there is any inherent bias in SD3’s
testimony and this is not a ground to render her evidence suspect.
[131] According to SD3 during examination-in-chief, based on her

own observations, the defendants’ dog is a tame dog. She says this
because, according to her experience, the dog is obedient and listens
to its master, the first defendant, or his siblings - albeit that she has
only seen this in the first defendant or his siblings’ presence.
[132] SD3 also claims that in 2018, she used to attend college and
used to leave the house early morning which is about the time the
incident was said to happen (6.10am). SD3 testified that the dog
never left the defendants’ presence as the defendants would always
be within the dog’s vicinity. The dog only left the house to urinate
or defecate and would always return when called - all the time with
someone from the defendants’ residence keeping watch. This is what
I gathered from SD3’s testimony during cross-examination (see:
notes of evidence, pp. 124 to 125):
PC : Anjing tu berada di luar ke 6.00 pagi, ada pernah lihat?
SD3 : Okay, kalau dia keluar pun dia akan keluar dengan tuan dia
lah. Kalau pagi tu pun dia akan, tuan dia akan bagi lima
minit macam tu dia akan bagi dia buang air dulu lah.
Macam saya kalau waktu 2018 tu saya selalu pergi kolej,
so saya akan keluar pagi.
PC : Keluar pagi lah?
SD3 : Ya, betul.
PC : So, dia akan keluar lima minit, dia akan pergi sendiri buang
air kecil dan kembali balik?
SD3 : Dia tak jauh pun, dia memang dekat kawasan rumah dia
pun.
PC : Dia akan keluar pergi buang air besar, air kecil dia balik
lah?
SD3 : Ya, betul.
[133] What then followed from the above was an exchange between
learned counsel for the plaintiff and SD3 on the issue of whether
SD3 ever took any pictures of the dog roaming around outside the
defendants’ residence or whether she was inventing a story to save
the defendants from liability.
[134] To better understand SD3’s evidence, I put questions to her

from the bench during re-examination. SD3 clarified the exchange
that took place during cross-examination, that the dog was always
supervised when it left the premises to answer the calls of nature.
The re-examination is as follows (see: notes of evidence, pp. 130 to
131):
M : Okay, dan soalan terakhir saya, soalan kedua terakhir
saya, Cik Nurul cakap tadi bahawa Laaron, anjing
tersebut, Laaron, dia ada keluar untuk buang air besar air
kecil, yang bila dia keluar tu untuk buang air besar air kecil
tu dia dengan adanya encik Jeevan disitu atau alone? Anjing
tu keluar sendiri?
SD3 : Okay, kalau dia keluar, encik Jeevan akan bawa dia atau
adik beradik encik Jeevan. Dia akan bawa keluar untuk dia
melepaskan apa yang patut lah. And then after dia dah tu,
dia bawa jalan-jalan anjing dia and dia bawa balik rumah
semula.
M : Okay dan…
SD3 : Selalu petang-petang dia akan buat macam tu lah.
M : Dan soalan terakhir saya, dalam experience Cik Nurul,

penghuni di rumah tersebut dan menjadi jiran kepada encik
Jeevan, pernah tak Cik Nurul nampak Laaron berkeliaran?
Maksudnya keluar dengan sendiri tanpa adanya manusia
lain dengan dia?
SD3 : Tak ada.
M : Okay, thank you. Would parties like to ask any further

questions?
DC : I have none.
[135] As seen in the notes, I ended that line of questioning by giving

counsel on both sides the opportunity to ask follow up questions if
they so wished. They did not have any further questions for SD3.
[136] SD3’s evidence was direct and only on facts within her
personal knowledge limited to things within her observation and
experience. There is nothing inherently incredible in the testimony
she has offered to this court and I am inclined to believe her.
[137] Taking SD2 and SD3’s evidence together, I find that the
defendants’ dog was in fact a Labrador and hence tended to have
generally a tame disposition. The dog specifically in question in this
case, according to SD3 (who I believe) does indeed have a tame
disposition and is also obedient. The dog too was always supervised
by the defendants. As such, I am unable to make a finding in favour
of the plaintiff that the dog in question ‘attacked’ him compounded
further by the fact that the plaintiff himself is unable to identify the
very dog that attacked him. I cannot, in the same vein, accept the
plaintiff’s or even SP2’s descriptions of the dog as a mongrel or
vicious dog.
[138] Further, as stated earlier, the fact that SP2 issued a compound
to SD1 who paid it does not diminish the credibility of SD1. The
making of such a payment is not presumptive of guilt in this case for
the reasons stated earlier. Also, SP2 and his team issued notices to
the effect that the defendants’ dog is a vicious dog which in my view
also changes nothing. As I have stated earlier, SP2 investigations
were, in my findings, routine and slipshod.
[139] The above is compounded further by the fact that there was
nothing in SP2’s evidence to suggest that the dog is vicious and
because SP2 has no knowledge of dogs. His ascription of ‘mongrel’
to the dog was also without basis. SP2’s evidence is further
countered by SD2 who is a dog expert and has identified the dog as
a Labrador (which are generally tame domestic dogs) and SD3 who
has testified specifically to the obedient and tame nature of the
defendants’ dog. Apart from the narrative from SP1 that suggests
otherwise, SD2 and SD3’s evidence on the dog’s general and
specific disposition remain unrebutted.
Application Of The Law
[140] I have made and stated my findings above. Based on those

findings, I am unable to rule in favour of the plaintiff. As unfortunate
as that is, I am satisfied that my approach on the evidence in this
case is consistent with the general body of law on the subject. In
particular, I am guided by the decision of the High Court in
Periasamy (supra).
[141] To recall, Periasamy was a case where the learned High Court
Judge upheld the Sessions Court’s findings after trial that the
defendant was liable when his bull caused injuries to one of the
plaintiff’s two bulls that were pulling his cart. In my view, the case
is direct authority for the issues raised in this case because of the
following allegations of fact raised in Periasamy.
[142] In Periasamy, the plaintiff asserted that while his two bulls
were pulling the cart along the Raub-Benta main road, the
defendant’s cattle and bull were grazing along the side of the road
when suddenly, the defendant’s bull attacked the plaintiff’s one bull.
In a manner similar to the present case, the defence in that case was
pure denial in that the defendant denied owning the bull that caused
the attack and even the cattle that were grazing that day. Though
there is no denial of ownership in this case, there is still a denial of
the attack coupled with the fact that the plaintiff himself cannot
identify the dog.
[143] The plaintiff in Periasamy called four witnesses who could

provide separate reasons as to why they knew that the defendant
owned the bull. The defendant himself testified and stated that at
the time the attack occurred, he had no bull on the date in question.
The High Court observed that it was merely a question of which side
the learned Sessions Court Judge believed on a balance of
probabilities. It is no different in this case.
[144] In the appeal from the Sessions Court to the High Court, the
defendant in Periasamy assailed the decision of the Sessions Court
on the ground that the plaintiff had failed to adduce sufficient
evidence to identify the bull. The identity of the animal and the
resultant question of ownership were therefore material issues. This
is what Raja Azlan Shah J (as His Royal Highness then was), held
on the issue, at p. 20:
The judgment of the court below has been attacked by counsel for
the appellant. It was said that there was no proper identification of the
bull in question, and the particular bull was not produced within the
precincts of this court. His argument was based on the premise that the
plaintiff had adduced insufficient evidence of ownership of the bull. In
this connection I would like to cite a passage from the case of Powell
Streatham Manor Nursing Home [1935] AC 243 at
p. 256 and I quote:
The case was tried by a judge sitting alone, and on appeal
from the decision of a judge the Court of Appeal and this
House have a duty to exercise their jurisdiction as tribunals of
appeal on fact as well as on law, a jurisdiction which your
Lordships have never hesitated to exercise when satisfied that
the courts below have erred on a question of fact. Where,
however, as in the present instance, the question is one of
credibility, where either story told in the witness-box may be
true, where the probabilities and possibilities are evenly
balanced and where the personal motives and interests of the
parties cannot but affect their testimony, this House has
always been reluctant to differ from the judge who has seen
and heard the witnesses, unless it can be clearly shown that
he has fallen into error.
That well-known principle has been repeatedly followed by our
courts, and I see no reason to depart from that principle in the
present case. It has not been shown to me that the learned president was
wrong in his assessment of the facts and I am of the view that on the
evidence before him he was entitled to come to the conclusion he did, and
I am not disposed to interfere on his finding of fact.
(emphasis added)
[145] The High Court affirmed the findings of the Sessions Court
and found that sufficient evidence had been adduced to believe that
the defendant owned the bull in question. Likewise here, as it is a
question of credibility (which side to believe), I have already stated,
having heard the witnesses, that the plaintiff’s evidence is
inconsistent and therefore not coherent enough to cross the
threshold of balance of probabilities. In addition, having analysed the
defendant’s case, and as stated above, I believe them that the dog
is tame and not vicious or a mongrel as categorised by the plaintiff.
[146] Having said that, this is a negligence claim. The test, as

adumbrated above in cases such as Fardon (supra) and even in
Periasamy (supra), is that the defendant must take reasonable care
that his animal not put to such a use as is likely to injure his
neighbour. Incidentally, the plaintiff is quite literally a neighbour and
not just the legal or esoteric concept of ‘neighbour’ in the law of
negligence.
[147] The statement of claim particularises 13 facts of negligence in

para. 5 of this statement of claim. None of the evidence led by the
plaintiff in this case actually establish those particulars on a balance
of probabilities.
[148] Based on the foregoing, and premised on the authorities I have

cited throughout this judgment (including Periasamy), I find that the
plaintiff has not succeeded in establishing on a balance of
probabilities that the defendant’s dog attacked him. As such, the
question of whether the defendants failed to take reasonable care
does not arise. I cannot, in those circumstances, hold the defendants
liable.
The Remedies Issue
[149] I remain sympathetic to the plaintiff as the injuries he has

suffered are real and serious. Having said that, this is a court of law
and cases are won on facts and evidence and not on sympathy. In
this regard, I respectfully truncate and paraphrase the words of Lord
Dunedin from Fardon (supra), at pp. 82 to 83 as a reminder to myself
and perhaps as consolation to the plaintiff:
Counsel for the plaintiff has made a very valiant fight for his client,
for whom, as a man, one is bound to feel sympathy as the victim
of a very unusual and terrible accident. Unfortunately, sympathy is
of very little use, and I confess I give him my sympathy, not only
as a man but as a litigant... [but] I put it simply on the question what
does and what does not amount to negligence in the circumstances
of the case. I move your Lordships that the appeal be dismissed with
costs.
[150] I do not find it appropriate to delve into a discussion on the

nature of the injury and the issues of remedies in the absence of
findings on liability. In this regard, I do not consider it necessary to
delve deeper into the evidence of the two doctors, SP3 and SP4, on
the subject of the plaintiff’s injury.
Conclusion
[151] For the reasons stated above, the plaintiff has failed to prove
his claims on a balance of balance of probabilities. The claim is
hereby dismissed with costs.

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Kamalanathan Ramanathan

[2022] 1 SMC v. Jeevan Velautham & Anor 461

JEEVAN VELAUTHAM & ANOR

MAGISTRATE COURT, KUALA LUMPUR

TORT: Negligence - Claim - Dog attack - Claimant alleged to have been

This was a personal injury claim premised on a dog attack. The

Held (dismissing claim):

(2) The plaintiff relied on the first defendant’s payment of the

(3) The law on burden of proof is beyond settled. According to

establish on a balance of probabilities that it was the defendants’

Saifullah Bhatti Mg:

[1] This is a personal injury claim premised on a dog attack. The

[3] Mr Gunaseelan, learned counsel for the defendant, informed

[4] The trial of this action took place before me on 25 to 26

[5] The documents relevant to this case are these:

Bundle A - Bundle of Pleadings

Bundle B - Common Bundle of Documents

Bundle C - Issues to be Tried

Bundle D - Statement of Agreed Facts

[6] The following witnesses were called:

Plaintiff SP1 Kamalanathan a/l Ramanathan Exh. SP1

SP2 Muhammad Fariz bin Mohamad Exh. SP2

SP3 Dr. M.S. Puteri Zalmah binti

SP4 Dr. Mohd Hazwan bin Rusli Exh. SP4

Defendant SD1 Jeevan a/l Velautham Exh. DW1

SD2 Ramasamy a/l Sinnakolandai Exh. DW2

SD3 Nurul Atiqah binti H Muzammil Subpoena

The Statement Of Claim

[8] The defendants are also private individuals with a residential

[9] The plaintiff claims that on 22 March 2018, while he was

[11] The plaintiff accordingly seeks to be compensated in special

[14] As such, the defendants deny outright the allegation that on

[15] The plaintiff did not file a reply.

The Case And Issues To Be Tried

[16] Parties filed a joint statement of issues to be tried listing down

(iii) Whether the plaintiff was attacked by a dog on or around

(v) Whether the plaintiff suffered a loss of income as a result of the

[17] With respect, I find the issues to be tried either repetitive or

repeat the same essential issues without actually crystallising what

[18] In light of this, I think it is crucial that I first crystallise the

(iv) The first defendant owns a white dog.

[21] As gathered from the above, it is clear that the defendants do

(ii) whether the attack was as a result of the defendants’ failure to

The Law Generally

[23] The plaintiff’s cause of action in this case is based solely on

[26] Another prime example of the niche development of tort law is

[28] The present case, involving harm caused by a domestic animal,

[30] In summary, prior to the UK Animals Act 1971, there were

(ii) Strict liability actions premised on either ferae naturae and

Put another way, strict liability actions were thus contingent

If the animal is ‘tame’ or domestic, the injured party must first

(iii) The third category of actions is trespass; and finally we have

[32] In this regard, the House of Lords in Mirhavedy v. Henly And

[33] In stating the law generally on the subject, Lord Scott of

former, they belong to a dangerous species and there was to

[34] Their Lordships’ opinions on the various angles in which cases

[35] This brings me now to the law on negligence in relation to

access to it, and the best-known instance of that is the case of a

[38] Nowhere in their submissions did parties direct me to a