QUESTION:

Explain what you mean by proving authenticity of a document, and distinguish it from
proving the contents of a document. Answer with reference to the relevant provisions of
the Evidence Act 1950 and leading cases.

ANSWER:

The definition of documents as provided in section 3 of Evidence Act 19501. The

provision provided that,

“Document” means any matter expressed, described, or howsoever represented, upon any
substance, material, thing or article, including any matter embodied in a disc, tape, film,
soundtrack or other device whatsoever, by means of—

(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or
representation whatsoever;

(b) any visual recording (whether of still or moving images);

(c) any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever
and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

(d) a recording, or transmission, over a distance of any matter by any, or any combination, of
the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned
in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of
expressing, describing, or howsoever representing, that matter;

The ideas of written paper as the sole definition of document are backward and old-
fashioned. This is because, as the technology continue evolving, now there are many other
devices that can do the exact same function as written paper, or even better. There are many
types of new devices or platforms that has the ability to record, for example;

i. Online communication platform in which a sender can communicate through internet

or phone line like social media sites, text messages, email, phone call and video calls.
ii. Wireless devices in which it functions to capture and record pictures or video like
CCTV, smartphone, laptop and cameras.
iii. Internet based commerce like online banking,

1
Act 56
 It is required under general principle of admissibility of documents that the document must
be relevant to prove the facts in issue or the relevant fact under section 5 of Evidence Act
19502, the document has probative value, the maker of the document must be called to tender
the document in court, the authenticity of the document must be proved and the content of the
document must also be proved.

1.0 PROVING AUTHENTICITY OF A DOCUMENT

In answering the question on proving authenticity of a document, we must look at the

definition of authenticity before moving on the next issue. According to Black Law’s
dictionary3, authenticity means, “The validity of a document or record. The document is kept
in original form with no tampering”. Hence, the document that will be tendered to the court
must be proved its validity and that it has not been tempered by anything.

Meanwhile, Evidence Act 1950 does not give a direct definition of authenticity,
however, section 67 of Evidence Act 1950 4 provided that “If a document is alleged to be
signed or to have been written wholly or in part by any person, the signature or the handwriting
of so much of the document as is alleged to be in that person’s handwriting shall be proved to
be in his handwriting”. So, we can see from the provision that the authenticity in the context of
proving documentary evidence means proving the authorship of the document.

There are various ways to prove the authenticity of document as provided by Evidence
Act 1950 which are: -

i. Call the witness;

ii. Call the maker;

iii. Call expert;

iv. Call non expert- anyone who is familiar with the writing;

v. Comparison by the court;

vi. Circumstantial evidence or indirect evidence;

vii. Presumption to ancient document.

2
Act 56
3
https://thelawdictionary.org/authentic/
4
Act 56

2
 We can also refer to the case of State (Delhi Administration) v Pali Ram5. In this case
the court held that Indian Evidence Act recognizes only 2 direct ways of proving authenticity
which are by an admission of the maker or by the evidence of the witness who saw it written.
However, there are three other methods which are by evidence of handwriting expert, by the
evidence of a witness familiar with the handwriting and comparison by the court.

In the recent case decided in Federal Court, in Letchumanan Chettiar Alagappan @ L

Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased)
& Anor v Secure Plantation Sdn Bhd6, Jeffery Tan FCJ said, “In a civil case, the onus of
proving the genuineness of a deed is cast upon the party who produces it and asserts its validity.
If there be conflicting evidence as to the genuineness, either by reason of alleged forgery or
otherwise, the party asserting the deed must satisfy the jury that it is genuine.” Hence, the party
disputing on the authenticity of the document must prove the allegation.

The discussion on the ways to prove the authenticity will be discussed accordingly as below.

1. Call the witness

Under section 68 of the Evidence Act7, it is provided that if the document is provided
by the law to be attested, it cannot be admissible unless one attesting witness has been called
to prove the execution, if there is attesting witness alive. The witness is subjected to court’s
procedure and must be capable of giving evidence.

For example, Ahmad and Ali has entered into a sale and purchase agreement. The said
agreement was signed by both of them and executed in front of Ahmad’s and Ali’s lawyer. On
filing a suit over the said agreement, Ahmad has called Ali’s lawyer to testify to the court that
the document is authentic since Ahmad’s lawyer died. Here, if the court finds that the testimony
by Ali’s lawyer is credible and admissible, the court has the discretion to held that the said
agreement is authentic.

If there is no attesting witness can be found, section 69 of Evidence Act8 will remedy
the situation whereby it provided that in that case or the document was executed in the United
Kingdom, the attestation must be proved by its handwriting or the signature.

5
AIR 1979
6
[2017] 5 CLJ 418
7
Act 56
8
Ibid

3
 Take the previous example as an example in this situation, if both of Ali’s and Ahmad’s
lawyer died, Ahmad can call Ali’s lawyer’s assistant to testify to the court that the handwriting
and signature on the said document was Ali’s lawyer.

However, if the party willingly admit that the document was executed by himself, it
should be sufficient as to prove the document is authentic. This is governed under section 70
of Evidence Act9.

Referring to the previous example, if both parties agree that the said agreement was
duly executed by them, they can insert the said agreement on Part A of Bundle of Document.

In the case where the attesting witness denies the execution, the execution may be proof
by other evidence based on section 71 of Evidence Act10.

For example, we can prove the authenticity of the document by looking into the
circumstantial evidence which will specifically discussed later.

2. Call the maker

Section 58 of the Evidence Act11 provided that “No fact need be proved in any
proceeding which the parties thereto or their agents agree to admit at the hearing or which
before the hearing they agree to admit by any writing under their hands, or which by any rule
of pleading in force at the time they are deemed to have admitted by their pleadings: Provided
that the court may, in its discretion, require the facts admitted to be proved otherwise than by
such admissions.”

Meanwhile, section 70 of Evidence Act are as discussed.

In short, if the party has agreed upon a document for its authenticity, they can insert the
document in bundle of documents Part A and Part B. Once they inserted the documents in those
parts, its authenticity will not be in question and will not raise any issue to be tried in court
which regards to its authenticity.

9
Ibid
10
Ibid
11
Ibid

4
3. Call expert.

Other than calling witness to prove the authenticity of document, expert opinion can be
testified in court in proving the authenticity of the document. This is based on section 45 of
Evidence Act 12which provided:

“When the court has to form an opinion upon a point of foreign law or of science or art,
or as to identity or genuineness of handwriting or finger impressions, the opinions upon
that point of persons specially skilled in that foreign law, science or art, or in questions
as to identity or genuineness of handwriting or finger impressions, are relevant facts”.

As we discussed before, the meaning of proving authenticity of document is proving

the authorship. Authorship can be proven by handwriting or finger impressions. In both
situations, we can call expert like handwriting expert and fingerprint analyst. In law, there are
2 types of expert. In the case of PP v Saad bin Mat Takraw13, the court stated that there are
two types of experts which are; gazetted experts, like gaming experts appointed under section
11(6) of Common Gaming Houses Act 1953 and experts under section 45 to 49 of the Evidence
Act 1950.

However, the section mentioned is not only confined to proving the authorship. In the
case of Syed Abu Bakar bin Ahmad v PP14, it was stated that the expert evidence is
admissible if it is the matter arises is beyond the knowledge of a judge. This is because, the
expert should not give conclusion on matters which are for the court to decide as per Ong Chan
Tow v R.15

This section also governs on expert on foreign law, science or art. In this discussion,
we will only focus on the expert of handwriting and finger impression. For further discussion,
we look into Illustration (c) of the section which provides:

“The question is whether a certain document was written by A. Another document is

produced which is proved or admitted having been written by A. The opinions of
experts on the question whether the two documents were written by the same person or
by different persons are relevant”.

12
Ibid
13
[1998] 3 MLJ 784
14
[1984] 2 MLJ 19
15
[1963] MLJ 160

5
From this illustration, say for example, in the case where we need to prove the fingerprint of A
on the agreement, if the expert says that it is not A’s, it is relevant.

It should also be noted that the expert must be a qualified expert. In the case of PP v
Muhamed bin Sulaiman16, Suffian LP stated that an expert must be skilled in his field, he
need not to specifically do special study, he may be an expert by experience.

To test whether the person is an expert, Mohamed Azmi SCJ in the case of Junaidi
Abdullah v PP17 held that first, we must see if the nature of evidence requires special skill?
Second, if so, does the expert witness has necessary skill and adequate knowledge to express
opinion on that matter. For expert witness under section 45 of Evidence Act, we must look into
the case, if the case is more complex than usual case, the expert must have deeper knowledge
about it.

Though there are many ways to prove authenticity, it seems like calling the expert has
the heaviest evidential weight in this matter. This is because, in the case of Syed Abu Bakar
bin Ahmad v PP18, Abdul Hamid FJ held that, it would be erroneous for judge to form a
conclusion on a matter which could only be properly concluded with the aid of expert evidence.
This is because in this case, there was dispute whether Sgt. Paou write the words. A witness
said yes, and another witness said no. Hence, it is best to refer to an expert to decide.

In the case of Wong Swee Chin v PP19, the court held that, the court must weigh all
the evidence and determine the probabilities. The judge cannot transfer the conclusion to the
expert witness. Hence, we can conclude that although it carries heaviest evidential value, the
judge still has the duty to determine whether it is relevant or not before coming into conclusion
and decision.

4. Call non-expert
Section 47 of Evidence Act20 provided that the opinion of any person acquainted with
the handwriting or signature of the person is a relevant fact. This section has not narrowed
down the context of “any person acquitted with the handwriting”. Hence, we need to further
refer to the explanation in the same section.

16
[1982] 2 MLJ 320
17
[1993] 3 MLJ 217
18
[1984] 2 MLJ 19
19
[1981] 1 MLJ 21
20
Act 56

6
 It is provided in the explanation that A person is said to be acquainted with the
handwriting of another person when he has seen that person write, or when he has received
documents purporting to be written by that person in answer to documents written by himself
or under his authority and addressed to that person, or when, in the ordinary course of business,
documents purporting to be written by that person have been habitually submitted to him.
For example, a legal assistant, private assistant, secretary and partner can testify their
bosses’ handwriting or signature in the court. Family members can also testify other family
members’ handwriting or signature.
However, it must be noted that the evidential value of opinion of non-expert is not
heavy. It was stated in the case of PP v Mohamed Kassim bin Yatim21 that the value of
combined testimony of two witnesses who familiar with the handwriting of the accused cannot
be stronger than ordinary opinion expert. In the case of Chu Choon Moi v Ngan Sew Tin22,
the court held that it is not proper to make any conclusion on the genuineness of a signature by
comparing the handwriting in court with expert’s opinion. In this case, the handwriting or
signature is in Chinese, hence it is out of the knowledge of the judge. It is also insufficient to
rely on the testimony of a non-expert.
It must be noted that the evidential value of calling non expert is little. We can see in
the recent case, Sembagavally a/p Murugason v Tee Seng Hock23, the court held that
although the husband of the plaintiff testifies in court, as a person acquainted with the plaintiff’s
signature, his evidence carries very little weight.

5. Comparison in court
Section 73 of the Evidence Act 195024 provided that the signature, writing or seal can
be compared by a witness or by the court with the one which need to be proved. The court may
direct any person in the court to write any words or figures for the purpose of comparison.
This section shows the beauty of flexibility of law. This is because, as discussed before, calling
the expert is the best way to prove the authenticity of the document. However, this section
provides otherwise; the judge may decide by the comparison in his own opinion. Everyday, we
can see the manipulation or fraud in court. Hence, with this section, it give power for the judge
to decide by himself.

21
[1977] 1 MLJ 64
22
[1986] 1 MLJ 34
23
[2019] MLJU 785
24
Act 56

7
 In the recent case, Astaka International Sdn Bhd v RHB Bank Bhd25 , this is the case
where there was an allegation that the chief executive officer’s signature on documents were
forged. The Court directed the CEO to provide five specimen signatures for comparison with
the disputed documents. The Court found that the differences between the signatures were so
obvious and were forgeries even without the aid of an expert. This procedure was not observed
on the facts of the present case.

6. Circumstancial Evidence

There is no specific provision on Evidence Act 1950 about circumstantial evidence

which can be used to prove the authenticity of the document. However, there are cases which
show that we can rely on the circumstantial evidence.

The circumstantial evidence may be the letterhead, logo or any other distinguishing factor.

For example, in the case of Dato Mokhtar Hashim v PP26, the letter which has the
letterhead of Ministry of Youth and the signature of him is the circumstantial evidence to show
that the letter was written by him. The letter is important to show that the gun was belonged to
him. Hence, the court in this case accepted the letter’s authenticity because of circumstantial
evidence which are the letterhead of ministry of which he was the minister and the signature
of him.

We can conclude from this case that the court will uphold justice by the law and by its
discretion to ensure that there will be no detriment caused to any party.

7. Presumption of ancient document

Section 90 of Evidence Act27 provided that;

“Where any document purporting or proved to be twenty years old is produced from
any custody which the court in the particular case considers proper, the court may
presume that the signature and every other part of that document which purports to be
in the handwriting of any particular person is in that person’s handwriting, and in the
case of a document executed or attested, that it was duly executed and attested by the
persons by whom it purports to be executed and attested.”

25
[2012] 3 MLJ 758
26
[1983] 2 MLJ 232
27
Act 56

8
From this section, it is best to say that, to prove the document is an ancient document, we must
fulfil the two requirements which are;

i. The document be must of 20 year

ii. The document must be kept in proper custody

To understand more on the meaning of proper custody, we have to look into the
explanation on the same section which provide, “Documents are said to be in proper custody
if they are in the place in which and under the care of the person with whom they would
naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the
circumstances of the particular case are such as to render such an origin probable”.

The example for this section is, if Zaid bought a house in 1980, and he wanted to sell
the house in 2019. However, there was matters arising from the sale and purchase. When he
produces to the title of the house to the court, he must ensure that he is the one who keep the
document. Then, it is kept in proper custody and can be presumed to be authentic. However, in
other situation, if Zaid’s friend who produce the evidence to the court since he is the keeper, it
is unlikely that the court will presume that the document is authentic.

In conclusion, it is best for the party to opt for the best way to prove the authenticity of
the document. However, if there is difficulty of proving the authenticity of the document in the
best possible way, the party can always use the other way and support it with any other evidence
related available.

9
2.0 PROVING THE CONTENTS OF A DOCUMENT.

In distinguish with proving the authenticity of a document, proving the contents of a

document is another thing that needs to be proved for the evidence to be admissible. According
to Blackstone’s dictionary, contents mean the words of a document. It can be information or
just communication. It also must be readability, freshness, usefulness, and be relevant in the
way it is shown28.

2.1 BEST EVIDENCE RULE

Firstly, the rule that governs to prove the contents of the document is the Best Evidence
Rule. This rule indicates that ‘the best proof that the nature of the thing will afford is only
required’29 This rule has always been relied on in common law in which a party needs only to
bring or put forward the best that he has in the form of real, primary and direct evidence. For
instance, to prove oral evidence, the best evidence will be direct evidence and to prove
documentary evidence, it must be from primary evidence. The more cogent method must be
adopted there. In the case of Brucespringteen v Masquerade, the court agreed that the best
evidence rule is a very restrictive and technical rule.

However, this rule becomes less important nowadays because normally the court will
look to whether it is the best evidence available or not. If we confine the method of proving to
the best evidence only, we may not have the primary evidence. In Garton v Hunter30, Lord
Denning M.R. said:

“The old rule has gone by the board long ago. The only remaining instance of it that, I
know is that if the original document is available in one’s hand, one must produce it. One
cannot give secondary evidence by producing a copy. Nowadays, we cannot confine ourselves
to the evidence. We admit all relevant evidence. The goodness or badness of it goes only to the
weight and not to admissibility”. The development now, it seems that the rule operates only in
cases involving documentary evidence.

Besides, in Kajala v Noble,31 the Appellant was convicted of using threatening

behaviour. Part of the evidence against him was a copy of the BBC news video tape of the

28
Black's Law Dictionary 435 (9th ed. 2009)
29
Habibah Omar, Mazlina Mahali, and Marimuthu S. B. (2018). Law of evidence in malaysia
(2nd ed.). Selangor: Sweet & Maxwell.
30
[1969] 1 All ER 451
31
(1982) 75 Cr App R 149

10
incident. The Court accepted the BBC’s policy that refused to permit the original copy of the
tape to leave the premises and allowed the prosecution to adduce the copy of the tape. The
principle that lies in this case is that best evidence rules which need you to provide primary
evidence is only applied to document simpliciter which means document in a simple way,
written in a paper.

Meanwhile in Malaysia, among the earliest cases in which the best evidence rule was
invoked is the case of How Chien v Pp32. Mill J stated that:

..“prosecuting officer should produce before the court such real evidence as circumstances
reasonably permit; if it is not reasonably practicable to produce the material thing itself, they
should produce a portion of it, or sample of it or a photograph, or a sketch or some other
evidence may supply the court with the best evidence reasonably obtained under the
circumstances”.

Hence, in the best rule evidence, there are two rules to comply. The first rule is that
when to prove contents of a document, a party needs to produce primary or original evidence.
While the second rule is that if the party are unable to produce the primary or original evidence,
the secondary evidence may be admissible provided that the party has legal foundation or legal
reasoning on why they are producing the secondary evidence.

To elaborate further, under the first rule, the requirement to provide primary evidence
first is a compulsory. It is neither alternative nor optional. Even though section 61 of Evidence
Act 1950 provides two methods of proving contents of documents which is either primary or
by secondary, but within section 61 alone will not give you right to choose either primary or
secondary evidence. In addition, section 61 of the Act must be read together with sections
62,63,64 and 65 of Evidence Act 1950.

Moreover, the wording under section 64 requires document to be proved by primary

evidence except in cases falling under section 65 where secondary evidence can be proved.

Among the cases that show primary evidence must be given first is Popular Industries
Ltd v Eastern Garment Manufacturing Sdn Bhd.33 The principle of this case is that if you
want to produce secondary evidence, then you must lay legal foundations unless the
circumstances fall under the exceptions best evidence rule provided under section 65 of the

32
[1936] 1 JLR 114
33
[1989] 3 MLJ 360
11
Act. Then, secondary evidence may be produced before the court. The same principle also has
been illustrated in the case of Jai Gopal Singh v Divisional Forest Officer34.

2.2 Primary Evidences

The document itself produced for the inspection of the court is itself primary evidence.35
There are three explanations to this section.

Explanation 1

This explanation is in two parts.

Part 1: This part concerns documents, which are prepared in more than one copy, and all parties
have executed all copies. For example, four parties to a contract signed four identical copies of
the contract and all of them retained one copy each. All the copies are primary evidence. In the
case of Forbes v Samuel,36 the court held that the partnership deed executed by all of the
partners in possession is primary evidence.

Part 2: However, if the document is executed in counterparts, in duplicate without being

executed or signed by each of parties to it, then the original documents that is signed by a party
only is considered as original, and not to others.37

Explanation 2

When documents are made by one uniform process, they are only considered as primary
evidence of the reproductions but not of the original document from which they originate. The
best examples that fit the meaning are newspaper printing and carbon copies. Any copy of the
newspaper is primary evidence of the reproduction if it is made under one uniform process.
Same goes to carbon copies whereby it must be writing in one single process. If a carbon copy
is signed separately after the top copy, then it is considered as secondary and not primary
because it was not produced at the same time.

In PP V Rengasamy,38 carbon copies of cash analysis books were held not to be

secondary evidence under section 63(b) of the Evidence Act, as they were said to be documents

34
AIR 1953 Pat 310
35
Evidence Act 1950, s.62
36
[1913] 3 KB 706
37
Section 63(d) provides that counterparts of document constitutes secondary evidence as against the parties
who did not execute it.
38
[1974] 1 MLJ 223

12
made by one and the same uniform process as the top copies and were therefore admissible
under section 64 of the Act.

Explanation 3

This explanation says that where a document produced by a computer, it is primary

evidence. This explanation must be read together with sections 90A, 90B, and 90C that
governed the admissibility of computer-generated documents. In PP v Datuk Haji Sahar
39
Arpan, the court ruled that the computer printout was admissible as primary evidence
because the online system ensured the data’s authenticity.

Hence, section 62 explains in detail on what types of evidences that are considered as
primary evidence.

2.3 SECONDARY DOCUMENTS

In the Evidence Act, the types of secondary evidence are enumerated under section 63.
This section states that secondary evidence includes: (a) certified copies; (b) copies made from
the original by mechanical process such as photographs; (c) copies made from or compared
with the original; If the copy of document is not compared with the original, then it is not
admissible;40 (d) counterparts of documents as against the parties who did not execute them (as
explained in explanation 1 part 2 of section 62). (e) and oral accounts of the contents of a
document given by some person who has himself seen or heard it. In Dato Mohd Anuar bin
Embong v Bank Bumiputra (M) Bhd,41 the court held that it is insufficient for the document
to be read out or explained without him seeing and reading it.

The rule of tendering the secondary evidence is based on the second rule of best
evidence rule in which if the original document could not be produced, the next best must be
adduced. Usually, secondary evidence takes the form of a copy and the types of secondary
evidence in this section are not exhaustive. This can be seen in Lee Weng Kin v Menteri Hal
Ehwal Dalam Negeri, Malaysia & Ors,42 where the court discussed on the extent of the
meaning of ‘copy’. The court ruled that an unsigned order which was partly printed and partly
typewritten and not certified to be a true copy by the minister did not fall within the meaning

39
[1999] 3 CLJ 427
40
Ram Prasad v Ragunath Prasad (1885) 7 All 738
41
[1997] 2 AMR 1430
42
[1991] 1 MLJ 472

13
of section 63 of the Evidence Act 1950. The word ‘copy’ on the other hand means a document
that is prepared from the original, which is an accurate or a true copy of the original.

Besides, section 64 gives the general rule that proof of document must be made by
primary evidence, but this section provides the exception by the words used “except in the
cases hereinafter mentioned.”

Hence, section 65 gives the exceptions ‘with the existence, condition or content of a document’.

The instances where secondary evidence may be given are as follows;

(a) When the original is under the possession or power of: (i) the against party; (ii) person
out of reach; (iii) person legally bound to produce it.
Under section 66 of the Act the requirement is that the party must prove that he has
served a notice to the person who has possession of the original document. The notice
must be served first before the secondary evidence can be given and this principle is
stated in the case of Neoh Kow v Malayan Banking Sdn Bhd.43 However, if the
situation falls under situation (ii), then the serve of notice is not required.44

(b) When the existence, condition, or contents of the original have been proved to be
admitted in writing. This clause must be read together with section 65(2)(b) and section
22. Section 22 of the Act provides that oral evidence may be admissible as secondary
evidence.

(c) When the original is destroyed or lost, or it cannot be produced due to his own default
or neglect. These two limbs must be read disjunctively. The first limb only required the
party to do a diligent search and how far it must be made is depends on the importance
of the document. In Tan Sri Hian Tsian v PP,45 the court accepted the secondary
evidence after satisfying that the document could not be found, and a sufficient search
had been made. Whereas, for the second limb, it is important for the party to prove that
the inability to produce the original did not arise from his default. In Ganad Corp Bhd
v Flobright Trading Sdn Bhd,46 the Plaintiff’s witnesses only said that they have
either lost or misplaced the originals and had given no further explanation. The Court

43
[1986] 2 MLJ 386
44
Section 66, Evidence Act 1950
45
[1979] 1 MLJ 73
46
[2000] 6 MLJ 830

14
 rejected the secondary evidence as the court did not satisfy that the non-production of
the original was not due to their default.

(d) When the original cannot be removed easily in nature. For instance, notice painted on
walls or tree. However, in Owner v Beehive Spinning Co,47 the Court accepted the
secondary evidence even though the original one was only suspended by nails to a wall.
The court acknowledged that the notice was required by the law to be constantly affixed
to the wall. A legal foundation needs to explain to the court when the evidence is not
naturally immovable.

(e) Secondary evidence may be given when the original is a public document. Section 74
of Evidence Act derives public document as (a) documents forming the acts or records
of the acts of the sovereign authority, official bodies and tribunals, public officers,
legislative, judicial and executive; (b) public records kept in Malaysia of private
documents. In Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia
48
& Anor, the Court held that where the document is a public document, the best
evidence rule is cannot be applied but the secondary evidence may be adduced. This
paragraph must be read together with paragraph (f).

(f) When the original is a document of which a certified copy is permitted by the Act.
Section 65(2) (c) says that paragraphs (e) and (f) only allowed for the certified copy of
the document and no other kind of secondary evidence. Besides, under section 76, the
law allowed to provide a certified copy if the document is a public document.

(g) When the originals consist of numerous accounts or other documents which cannot be
conveniently be examined in court. Section 65(2)(d) says the evidence must be given
as to the general result of the documents by person who has skilled to examine them.

Therefore, section 65 has listed down all the types of secondary evidence that are only
allowable if the primary evidence cannot be tendered. It is the exception stated in
section 64 of the Act.

47
[1914] 1 KB 105
48
[1994] 3 AMR 2047

15
 In addition, usually, if a person produces secondary evidence, the other party needs to
object. The objection must be made at the trial before the documents are tendered as exhibit.
This principle is laid down in the case of Gopal Dass v Sri Thakorjie. The failure to do so,
will waive the right to do so in appeal. The appeal court will not accept an appeal made on the
ground that the court before has erred to accept the secondary evidence. The case of
Nachiappan v Laksmi Amal49, a photocopy of the document as secondary evidence was
accepted by the court and there was no objection made by the other party. Later, the party
appeal and the court decided that the Appellant has waived his right to object, then cannot make
it as one of the grounds of appeal. Hence, the right to object must be made before the court
tenders the evidence and before the judgment is given.

3.0 COMPARISONS AND CONCLUSION

Documentary evidence is among one of the types of evidence that is used by parties to
prove their case. For the court to accept the evidence, it must have a probative value. Hence a
party who bring the documentary evidence needs to prove before the court by proving its
relevancy, authenticity as well as the content of the documents. Proving the authenticity and
proving contents of a document is two different things. Before the contents of a document can
be proved, the court must ensure that the document itself is admissible. Admissibility of
documents and its probative value are two different aspects in documentary evidence. Even a
document is admissible, it does not always have high probative value or weight. The court will
reject the evidence if it does not satisfy the rule.

The 2019 case of Sri Paandi Restaurant Sdn Bhd & Anor v Saraswathy a/p Kesavan &
Ors50 explain the situation where the evidence is rejected due to failure of proving the
admissibility of a document. The court will not proceed to see the content of the document
when the admissibility itself becomes a question. The case is about infringement of ownership
of right where the parties were disputing on trademarks. As the ID documents had not been
classified as Part A or Part B documents under O 34 r 2(2)(d) and (e)(i) of the Rules of Court
2012, to admit ID documents as evidence, the party tendering the ID documents has to satisfy
the following two conditions: (a) either: (i) call the makers of the ID Documents so as to admit
as evidence the ID documents; or (ii) to rely on any one of the exceptions to the hearsay rule;
and (b) to adduce either: (i) primary evidence; or (ii) secondary evidence. As parties tendering

49
[1966] 2 MLJ 95
50
[2019] 11 MLJ 421

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the ID documents had not fulfilled the first condition, the court could not consider the contents
of the ID documents and the oral evidence adduced concerning the ID documents.

Besides, another difference is that unlike proving the contents of a document, which is
clearly provided under the statutes, there is no specific provision which listed down on how to
prove the authenticity. But we can impliedly apply the provisions by looking at section 68 and
67 of the Act. The attendance of the maker of the documents is crucial to avoid any hearsay
objection relating to its admissibility.

Moreover, even though there are no specific provisions governed to prove the
authenticity of a document, the perk of it is that it makes the law becomes flexible. The party
has the options either to call expert or someone who is familiar with the handwriting or the
court may itself make comparison. Meanwhile, to prove contents of a document, it must
provide the primary evidence at the first place. Only if there is no primary evidence, secondary
evidence may be produced subject to section 65 of the Act together with the legal foundations
explained. This is contradicted with proving the authenticity of a document in which the party
is not required to give reasons to call the witnesses.

Finally, the statute is silent and not make a clear and well-defined definition of
authenticity and contents. Nevertheless, considering that the Evidence Act is not exhaustive,
the meaning can be referred to the other source of law.

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 BIBLIOGRAPHY

Black Law Dictionary (n.d.). Retrieved from https://thelawdictionary.org/authentic

Evidence Act 1950 (Act 56)

Habibah Omar, Mazlina Mahali, and Marimuthu S. B. (2018). Law of evidence in malaysia

(2nd ed.). Selangor: Sweet & Maxwell.

Rasali Muda. (1998). Documentary evidence: its application in court: a comparative study

between common law, malaysia and Islamic law.

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