Chapter 9 - Documentary Evidence: 9.1 Primary and Secondary Evidence

CHAPTER 9 - DOCUMENTARY EVIDENCE
9.1 PRIMARY AND SECONDARY EVIDENCE

9.1.1 PRIMARY AND SECONDARY EVIDENCE – ESSAY QUESTIONS
Question 7(a) October 2008
The contents of documents may be proved either by primary or by secondary evidence.
Discuss this with reference to decided cases. (13 marks)
Answer outline
Very straightforward question. Just discuss sections 61 to 66 from the Evidence Act 1950 and some
of the key cases in your notes.
A document may be used in giving evidence for two purposes. List out the two purposes and
quote the relevant provisions in the Evidence Act 1950 which allow this.
Explain the purports of the two said purposes allowed. (12½ marks)
Answer outline
‘Document’ is defined in section 3 of the Evidence Act 1950. Section 3 provides that “evidence”
includes all documents produced for the inspection of the court, such documents are called
documentary evidence. A document may be used in giving evidence for two purposes:
A document may be tendered to prove the contents of the document

1. The rules pertaining to the proving of the contents of a document are contained in section 61
to 66.
2. Section 61 provides that the contents of a document may be proved by primary and secondary
evidence.
3. Section 62 defines primary evidence whereas section 63 defines secondary evidence.
4. Section 64 provides that the contents of a document must be proved by primary evidence
unless one of the situations in section 65(1) is satisfied.
5. Section 65(1) provides for the situations where secondary evidence is allowed.
6. Section 65(2) provides for the type of secondary evidence allowed for each of the situations in
section 65(1).
7. A document tendered as evidence of the contents can be tendered:

- To prove the truth of its contents in which case it will be hearsay and can only be
admitted under an exception to the rule
- To prove the fact that the statement was made – this could be to show consistency or
inconsistency. For example a former statement of the witness in a document can be
admitted under section 157 to corroborate the witness’s evidence. A former statement
inconsistent statement admitted to impeach a witness can be admitted under section
145(1) and 155(c) of the Evidence Act.
A document may be tendered to prove the existence or condition of a document.
Section 60(3) provides that if oral evidence refers to the existence or condition of any material thing
including a document, the court may, if it thinks fit, require the production of that material thing for
its inspection. A document is real evidence when it is tendered for a purpose other than to prove the
contents of the document. For example, the document is tendered to prove its existence, or to
ascertain the type of paper used, or the ink used, or the age of the document, the size of the
document, the colour of the document… etc. Here the document is tendered as real evidence.
Section 66 of the Evidence Act 1950 provides that secondary evidence of the contents of the
documents referred to in section 65(1)(a) shall not be given unless the party proposing to give
such secondary evidence has previously given to the party in whose possession or power the
document is, or to his advocate, such notice to produce it as is prescribed by law; and if no
notice is prescribed by law, then such notice as the court considers reasonable under the
circumstances of the case.
List out and explain with reference to decided cases the circumstances in which such
notice is not necessary before giving secondary evidence. (12½ marks)
Answer outline
1. General rule – Discuss s.64. Discuss section 65(1).
2. Discuss section 65(1)(a). Note that section 65(1)(a) must be read together with section 66.
3. When is notice to produce not necessary:
- For the situations in section 65(1) other than section 65(1)(a)
- In the situations spelt out in the proviso to section 66
[The details are in your statute book.]
Question 5 August 2016
(a) What would be the redress for the party to a proceeding who has issued a Notice to
Produce pursuant to section 66 of the Evidence Act 1950 (act 56) to a third party in the
proceeding in order for him produce the original of a document in his possession but the
third party refuses to do so as he takes the position that he is not bound by law to
produce the said document?
(15 marks)
(b) Can an Accounts Executive who is skilled in the examination of documents pertaining to
accounts to be summoned as a witness to testify in court as to the general result of the
documents examined by him.
(10 marks)


Answer outline 5(a)
Section 66 provides for the rules governing notice to produce. This section should be read together
with S. 65(1)(a). Section 66 provides that secondary evidence of the contents of the documents
referred to in Section 65(1)(a) shall not be given unless the party proposing to give such secondary
evidence has previously given to the party in whose possession or power the document the
document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the court considers reasonable under the circumstances of the
case. The proviso to section 66 provides that notice to produce shall not be required in certain
situations or in any other case in which the court thinks fit to dispense with it.
The redress will turn on what is meant by the question when using the term third party. Where it is
someone under O17 RC2012, then they are a party to the proceeding and is subject to the process of
the court. In this situation, the argument taken by the third party that he need not comply because he
is not bound by law to produce the said document is not a legitimate excuse, (unless he is claiming
privilege). The redress is that section 65(1)(a) is successfully invoked and as a result s65(2)(a) is
triggered allowing any secondary evidence of the contents of the document is admissible. Secondary
evidence is defined under section 63. Also, since the third party in this context is a party to the
proceeding, an adverse inference may also be made under section 114(g).
Where a third party is a stranger, then it is to be noted that notice to produce need not even be
served on a stranger (non-party) to the proceeding, see section 66’s proviso paragraph (f) which
states that no notice is required before secondary evidence may be tendered of the document when
the person in possession of the document is not subject to the process of the court. Hence, even
without the notice to produce under section 66, section 65(1)(a) is invoked and as a result s65(2)(a)
is triggered allowing any secondary evidence of the contents of the document is admissible.
Secondary evidence is defined under section 63. However, since the third party in this context is a
stranger (non-party) to the proceeding, an adverse inference may NOT be made under section
114(g), as section 114(g) is only to be invoked against the party bearing a legal burden, and a
stranger clearly bears no legal burden in the case.
Answer outline 5(b)

Where an Accounts Executive who is skilled in the examination of documents pertaining to accounts
testifies in court as to the general result of the documents examined by him, he is effectively
tendering secondary evidence of the document.
According to section 65(2)(d) In the case referred to in paragraph (1)(g) evidence may be given as to
the general result of the documents by any person who has examined them and who is skilled in the
examination of such documents. Therefore, the account executive in question may only testify as
such if section 65(1)(g) is fulfilled, namely it is proven that the originals consist of numerous
accounts or other documents which cannot conveniently be examined in court, and the fact to be
proved is the general result of the whole collection.
Note:
Also note that, Section 63 defines secondary evidence and paragraph (e) states that oral accounts of
the contents of a document given by some person who has himself seen or heard it or perceived it by
whatever means is secondary evidence. In Wong Choon Mei [1985] 2 CLJ 126, the doctors gave oral
evidence of the contents of certain X-rays which were lost. The witness giving oral accounts of the
contents of the document should have seen (meaning read) the original document and not a copy. He
may only do so if the requirements in section 65(1) are fulfilled.
9.1.2 PRIMARY AND SECONDARY EVIDENCE – PROBLEM QUESTIONS
Question 5 October 2001
On 20.1.2002, Ali entered into a sale and purchase agreement with Ahmad for the purchase of
a double storeyed terrace house at a price of RM500,000/-. Ali paid a deposit of RM50,000/- to
Ahmad. The balance of the purchase price was to be paid on or before 20.4.2001. On 20.4.2001,
when Ali tendered the balance of the purchase price to Ahmad, Ahmad refused to accept it on
the ground that Ahmad did not wish to proceed with the agreement. Ali filed a claim against
Ahmad for breach of contract. In order to make out a case against Ahmad, Ali must tender in
evidence the original sale and purchase agreement. Ali however, only has a copy of the sale and
purchase agreement while Ahmad has in his possession the original.
With reference to relevant statutory provisions and decided cases, discuss the
admissibility of the copy of the sale and purchase agreement that Ali has in his
possession. (25 marks)
Answer outline
Issue – Discuss the admissibility of the sale and purchase agreement that Ali has in his
possession.
Here Ali is suing Ahmad for breach of contract. He has to first establish the terms of the contract.
Discuss section 91. What does section 91 provide?
Discuss section 61
Discuss section 62 which provides that the original contract is primary evidence
Discuss section 63(b). The copy is only secondary evidence. Discuss Lee Kok Nam.
Discuss section 64. What is the general position? Under what circumstances can secondary evidence
be tendered? Discuss section 65(1). Here in particular you must discuss section 65(1)(a). Also
discuss section 66. Note section 104 on who has the burden of proving the pre-condition of
admissibility.
State your conclusion.
[Note: For criminal cases, see section 73AA]
[Note– if Ali tenders the copy and Ahmad fails to object it would amount to a waiver owing to section
58(1) of the Evidence Act 1950 - Noliana bin Sulaiman.]

On 15.1.97, Mark entered into a sale and purchase agreement (the “Agreement”) with Rasta for
the purchase of premises described as No.15, Jalan Selayang, Selayang Baru, Selangor (the
“Premises”). The purchase price of the Premises is RM250,000/-, of which a deposit of
RM50,000/- was paid on the date of execution of the Agreement. The balance of
RM200,000/- was to be paid by Mark within a period of 3 months thereof, that is to say, on or
before 14.4.97.
On 15.2.97, Rasta’s solicitors wrote to Mark saying that Rasta did not wish to proceed with the
Agreement as Rasta had changed his mind about selling the Premises. Mark’s solicitors replied
to Rasta’s solicitors saying that if Rasta refused to complete the Agreement they have firm
instructions to commence legal proceedings against Rasta for specific performance of the
Agreement. As there was no response from Rasta’s solicitors, Mark filed an action against Rasta
in the High Court at Kuala Lumpur for specific performance of the Agreement.
The case came up for hearing on 20.9.2000. At the hearing, Mark gave evidence and tendered
in evidence a Photostat copy of the Agreement in support of his case. It was marked as an
exhibit in the absence of any objection from Rasta’s solicitors. Mark did not call any other
witnesses. When Mark closed his case, Rasta’s solicitors elected to make a submission of no
case to answer. They contended that Mark’s claim should be dismissed with costs as Mark had
failed to tender the original Agreement in evidence with the result that he had no evidence to
support his claim.
Discuss:
i. the possibility of Rasta’s solicitors succeeding in their submission; (15 marks)
ii. the difference, if any, if Mark had given oral evidence of the contents of the
Agreement instead of tendering a Photostat copy of it (10 marks)
Answer outline
(a) Issue – the possibility of Rasta’s solicitors succeeding in their submission.
Where it is a written sale and purchase agreement – section 91 provides that the only way to
prove the terms was by tendering the document itself or secondary evidence where allowed by
the Act. The original contract would be primary evidence as defined in section 62. The
Photostat copy would be secondary evidence - section 63(b) and Lee Kok Nam. Section 64
provides that the proof of the contents of documents must be by primary evidence unless one
of the situations in section 65(1) can be satisfied. Section 104 and illustration
appended to the section make it clear that the burden of proving the pre-condition of
admissibility is on the person seeking to tender secondary evidence of the document, here
Mark. However there is nothing here to suggest that Mark had done so. But since this is a civil
case the failure by Rasta’s solicitors to object at the time the document was tendered, would
amount to a waiver – section 58(1). Discuss Noliana bin Sulaiman. In civil cases, because of
section 58(1), the failure to object on the mode of proof would amount to a waiver – Noliana
bin Sulaiman.]
Conclusion – Hence Rasta’s solicitors unlikely to succeed.

(b) section 63(e) provides that an oral account if the contents of the documents given by some
person who has himself seen [or heard it or perceived it by whatever means] is secondary evidence.
Therefore, the answer would be the same as above.
Question 7(a) July 1999 – Failure to object on the mode of proof in criminal cases
Raflis, a manager of Syarikat Baton Sdn Bhd was charged in the Sessions Court at Penang for an
offence of criminal breach of trust under Section 408 of the Penal Code. The charge against
Raflis was as follows:
That you between the 5th day of February 1998 and the 28th day of February 1998, being a
manager of Syarikat Baton Sdn Bhd and in such capacity was entrusted with certain property, to
wit 30,000 share certificates in Mita Bhd, committed criminal breach of trust by dishonestly
transferring the said property to Get Big Sdn Bhd and that you have thereby committed an
offence punishable under Section 408 of the Penal Code.
Raflis pleaded not guilty to the charge and the case was fixed for trial.
At the trial, the prosecution tendered, through Nisha, an officer of Syarikat Baton Sdn Bhd,
photostat copies of the 30,000 share certificates in Mita Bhd and photostat copies of four
letters written by Raflis to Get Big Sdn Bhd.
Counsel for Raflis did not object to the admissibility of the photostat copies of the 30,000 share
certificates in Mita Bhd and the photostat copies of the four letters.
The Sessions Judge admitted the documents as prosecution exhibits.
At the close of the prosecution case, the Sessions Judge ordered Raflis to enter his defence. At
the conclusion of the trial, the Sessions Judge found Raflis guilty. The Sessions Judge convicted
and sentenced Raflis to 5 years imprisonment and fined him RM5,000/-.
Raflis intends to appeal against conviction and sentence on the ground, amongst others, that
the photostat copies of the 30,000 share certificates in Mita Bhd and photostat copies of the
four letters ought not to have been admitted as evidence at the trial.
Advise Raflis. (10 marks)
Answer outline
(a) Raflis intends to appeal against conviction and sentence on the ground:
- that the photostat copies of the 30,000 shares certificates in Mita Bhd
- that the photostat copies of the four letters ought not to have been admitted as evidence
at the trial.
Section 61 provides that the contents of document can be proved by primary or secondary evidence.
The original share certificates and letters would be primary evidence under section 62 of the EA
whereas the photocopies would be secondary evidence under s.63(b) of the Evidence Act – copies
made by mechanical means which by themselves ensure the accuracy of such copies – Lee Kok Nam
v PP. Also see illustration (a) to section 63.
Section 64 however provides that the contents of documents must be proved by primary evidence
unless one of the situations/circumstances in section 65(1) which allows secondary evidence to be
tendered is satisfied – Note that by virtue of section 104 – the burden of proving that one of the
situations in section 65(1) applies is on the prosecution. Also see illustration (b) to section 104. Here
the most likely situation is section 65(1)(a) as the original is with Get Big Sdn Bhd. Here the
prosecution should serve notice to produce under section 66 on Get Big Sdn Bhd. and if they fail to
produce it, then can tender secondary evidence. [Also note section 162]
The other possible situation is section 65(1)(c) – where the original is lost or destroyed – nothing to
indicate this here. Section 65(1)(c) also provides that can tender secondary evidence when the party
offering the evidence of its contents cannot for any other reason not arising from their own default
or neglect produce it in reasonable time.
As stated above the burden of proving the precondition to admissibility was on the prosecution and
there is nothing to indicate it has been satisfied.
The failure to object to inadmissible evidence does not make the evidence admissible and the
objection can even be taken on appeal – Lee Kok Nam. In criminal cases, the failure to object even on
the mode of proof is not a waiver. This is because section 58(2) provides that section 58(1) shall not
apply to criminal proceedings – Noliana bin Sulaiman.
The decisions in Lee Kok Nam and Noliana bin Suliaman suggest that the defence could succeed in
their submission in the criminal trial. However these cases must now be looked at in light of section
73AA a recent amendment. Section 73AA applies to criminal cases and is similarly worded to section
58(1). Section 73AA would suggest that the failure to object in criminal cases on the mode of proof
would now amount to a waiver and the defence counsel will not succeed in their submission.
Sam Mamba (“Sam”) is an expatriate space engineer who is employed by Malspace Research
Sdn Bhd (“the Company”) which is a contractor for the local space agency. Before he was
employed, the Company sent Sam a letter dated 2.12.1999 by facsimile transmission setting
out the terms and conditions of employment (“the Document”) which he was asked to sign if he
accepted the terms and to fax the Document back to the Company. Sam signed the same and
faxed the Document back to the Company on 3.12.1999. Among the terms was that the
Company would pay Sam a yearly bonus of RM50,000/- before Christmas each year. Also
before Sam faxed the signed Document to the Company, he had a telephone conversation with
the Company’s Executive Director Ms. Venus Yeetee wherein she promised Sam that in addition
to his other perks stated in the Document, the Company would pay his relocation expenses of
moving to Malaysia which was expected to be in the region of US$5,000/-. The Document is
silent on relocation expenses.
Soon after he joined the Company on 2.1.2000, the Company fell on hard times having failed to
land many of the contracts that it expected to.
Though the Document that Sam received clearly stated that he would be employed for an initial
period of 5 years with an option for renewal if his services were required, the Company
terminated Sam’s services with effect from 31.12.2000. The Company claimed that Sam’s
contract was only for 1 year and that Sam was not entitled to any damages from the Company.
The Company also refused to pay him the bonus or the relocation expenses.
When Sam faxed the Document to the Company on 3.12.1999, he also faxed the same to his
bosom friend Prof. Jupiter G. Leo who is the Dean of the Faculty of Aeronautical Engineering of
the local university. Sam is unable to locate the Document which he had until very recently in
his briefcase. He believes it has been stolen by someone working for the Company.
Advise Sam what evidence may be admitted in support of his claims against the
Company. Give reasons for your answer. (25 marks)
CLASS ACTIVITY
9.2 PUBLIC DOCUMENTS AND THE RIGHT OF INSPECTION
Question 1 January 2003
A police report has been lodged in respect of the murder of X. Y and Z have been subsequently
arrested by the police of X’s murder. The police then recorded statements from both of them
under section 113 of the Criminal Procedure Code.
The Public Prosecutor has decided to charge Y for the offence of X’s murder while Z is charged
for abetting such an offence.
You have now been retained to act for only Z.
Advise Z as to whether he is entitled to apply for copies of the following documents under the
Evidence Act 1950:
(a) the police report lodged in respect of X’s murder: (6 marks)
(b) Y’s statement to the police: (6 marks)
(c) Z’s statement to the police; and (6 marks)
(d) statements of witnesses to the police. (7 marks)
SUGGESTED ANSWER
Issue – whether Z is entitled to apply for certified copies of certain documents under the Evidence Act
before the trial
This question deals with public documents and the right of inspection. Section 74 defines public
documents whereas section 76 deals with certified copies of public documents. Section 76 provides
that every public officer having the custody of a public document which any person has a right to
inspect shall give that person on demand a copy of it on payment of the legal fees therefor. In Dr.
Munawar Ahmad Aness v Ketua Pengarah Penjara, Malaysia & Ors,[1999] 2 MLJ 289 (HC) the
Court said that for section 76 to apply, a person wanting to get a certified copy of a public document
has to satisfy the court of three things:
- that the document is a public document within the meaning of section 74 of the Evidence
Act. It should be noted that section 74 does not require the condition of public access to
the document to render it a public one –Gopinathan a/l Subramaniam v Timbalan
Menteri Dalam Negeri (2000)
- That he has a right to inspect the document. Section 76 is silent on who has a right to
inspect – it merely states that if a person has a right to inspect a public document in the
custody of a public officer, he is entitled to get a certified copy on payment of the legal
fees. From the case law, it would appear that a person would have a right to inspect if he
has an interest in the document and inspection is necessary for the protection of his
interest – Toh Kong Joo v Penguasa Perubatan Hospital Sultanah Aminah, Johore
Bahru (1990). The applicant’s interest has to be balanced with the public interest. If the
public interest prevails he has no right to inspect.
- The applicant (here Z) must tender the legal fees therefor
(a) Issue - Can Z get a copy of the first information report lodged in respect of X’s
murder. [First information report- public document - accused has right to inspect as he would
want to know what has been alleged against him so that he can prepare his defence. and to get
a copy on payment of the legal fees. Case – Anthony Gomez v Ketua Polis Daerah Kuantan]
- Is the police report a public document? In Khoo Siew Bee, Suffian LP set out the test to
determine if a document was a public document as follows - a document recorded by a
public officer who is under a duty to record it. [Note that the definition of public
documents in section 74 is not confined to documents forming the acts or records of the
acts of public officers.] Hence the first information report is clearly a public document.
In Anthony Gomez, it was conceded by the respondent that a first information report is
a public document, so the question was not examined by the Federal Court.
- Would Z have a right to inspect? Z would have a right to inspect. In Anthony Gomez v
Ketua Polis Daerah Kuantan (1977), the court held that the accused had a right to
inspect the first information report as he is a person interested in it and inspection is
necessary for the protection of his interest as he would want to know what has being
alleged against him so that he can prepare his defence.
- Since the first two conditions are satisfied Z would be entitled to get a certified copy
upon paying the legal fees therefor.
(b) Issue - Can Z get a copy of Y’s section 113 statement
[Co-accused’s cautioned statement – public document – no right to inspect – cannot get copy.
Why? Case – Haji Abdul Ghani bin Ishak v PP. Note effect of recent amendment to the Criminal
Procedure Code.]
- Is Y’s cautioned statement a public document? In Khoo Siew Boo & Anor v Ketua Polis,
Kuala Lumpur, the court held that the police officers who recorded the accused
cautioned statements were under a duty to record them and therefore they were public
documents as defined in section 74 of the Evidence Act 1950.
- Would Z have a right to inspect? In Haji Abdul Ghani bin Ishak v PP the court held that
the applicant had no right to inspect the co-accused’s cautioned statement. Although Z
may have an interest in Y’s statement, the co-accused is a competent witness in his
defence and his evidence may be against the accused and hence there may be a danger
of witness tampering.
- Since the second condition is not satisfied, Z would not be entitled to get a certified copy.
(c) Issue – Can Z get a copy of his own section 113 statement?
[Accused own cautioned statement– public document. – accused has a right to inspect and to
get a copy on payment of the legal fee. Case – Khoo Siew Bee. Note effect of the recent
amendment to the Criminal Procedure Code.]
- Z’s cautioned statement would be a public document as made clear in Khoo Siew Bee.
- Would Z have a right to inspect? In Khoo Siew Bee, the court held that the accused had
an interest in his own cautioned statement and hence a right to inspect it and to a
certified copy before the commencement of the trial.
- Hence Z can get a copy of his cautioned statement on payment of the legal fees
therefore.
(d) Issue – Can Z get the statements of witnesses to the police?
[Statement of witnesses – public documents – accused has no right to inspect as witness

statement privileged and danger of tampering with witnesses. Case – Husdi v PP ]
- Are the statements of the witnesses public documents? In Husdi v PP, the court held
that the section 112 statements recorded from witnesses would be public documents.
- Would Z have a right to inspect? In Husdi, the court held that a witness statement made
to the police in the course of a police investigation is a privileged document and there
can be no right to inspect such a document. The court said that there was also a danger
of tampering with witnesses.
- Hence Z cannot get certified copies of the statements of the witnesses.
Conclusion – Z will be able to get certified copies of the first information report and his own
cautioned statement on payment of the legal fees therefore but will be unable to get certified
copies of Y’s cautioned statement or statements of witnesses.
9.3 RULE AGAINST EXTRINSIC EVIDENCE

9.3.1 RULE AGAINST EXTRINSIC EVIDENCE – ESSAY QUESTIONS
What is the “parol evidence rule”? Discuss the rationale for the rule and the exceptions to it.
Support your answer with authorities. (25 marks)
See Question 6, October 2013 below
Question 6, October 2013
“The general rule is that extrinsic evidence is not admissible for the construction of a written
contract; the parties intentions must be ascertained, on legal principles of construction, from the
words they have used”.
(per Lord Wilberforce in Wickman Tools v Schuler AG [1974] AC 235 at pg. 261)
To what extent has the above common law principle been embodied in the Evidence Act
1950 and if so, does this principle admit of any exceptions? (25 marks)
Answer outline
Parol evidence refers to extraneous evidence such as an oral agreement (a parol contract), or even a
written agreement, that is not included in the relevant written document. The parol evidence rule is
a principle that preserves the integrity of written documents or agreements by prohibiting the
parties from attempting to alter the terms of the written document through the use of oral or written
terms that are not in the document. Since the contracting parties have reduced their agreement to a
single and final writing, extrinsic evidence of past agreements or terms should not be considered
when interpreting that document. The rule against extrinsic evidence is governed by sections 91 and
92 of the Evidence Act.
Section 91 appears to provide for 2 categories of documents, which prohibit extrinsic evidence:
First limb - when the terms of the contract, grant or disposition of property have been reduced by or
by consent of the parties to the form of a document
Second limb - in all cases in which any matter is required by law to be reduced to the form of a
document
Some documents may fall within both limbs — for example a written lease agreement which is
registered as required by the NLC.
The first limb of Section 91 provides that when the terms of a contract, grant or disposition of
property have been reduced by or by consent of the parties to the form of a document then no
evidence shall be given in proof of the terms of the contract, grant or disposition except the
document itself (primary evidence) or secondary evidence where allowed by the Evidence Act. In
other words, proof of the terms shall be by the document itself or secondary evidence.
Section 91 would not apply to oral contracts and contracts, which are partly oral and partly in
writing. In Tan Chong Motors, the court held that Section 91 only applies when all the terms of a
contract etc. have been reduced to the form of a document. Oral evidence is admissible to prove the
existence of a contract - Goh Leng Sai. Section 91 only excludes oral evidence on the terms of the
written contract
Section 92 only comes into operation after the document has been proved according to section 91.
Section 92 provides that when the terms of any such contract, grant or disposition of property, or any
matter required by law to be reduced to the form of a document, have been proved according to
section 91, no evidence of any oral agreement or statement shall be admitted as between the parties
to any such instrument or their representatives in interest for the purpose of contradicting, varying,
adding to or subtracting from its terms. However section 92 goes on to provide 6 exceptions in
provisos (a) to (f) of Section 92
Section 92 does not exclude all oral evidence. It only excludes evidence, which seeks to contradict,
vary, add or subtract from the terms of the written contract. For example, Section 92 would not
exclude oral evidence to contradict a recital of fact - Ganam v Somoo. In Keng Huat Films v
Makhanlall, the court held that evidence of background circumstances is allowed. However evidence
of negotiations is excluded on the ground that it is only the final agreement, which records a
consensus, and as such evidence of negotiations is unhelpful - Keng Huat Films v
Makhanlall Evidence of parties' subjective intentions is excluded so that any individual purpose
which either party has through his own interpretation and understanding of the agreement is not
admissible. -
Keng Huat Film Co. Sdn Bhd v Makhanlal (Properties) Pte. Ltd. If the oral evidence is excluded by
Section 92, it can only be admitted if it falls within one of the provisos (a) - (f) to Section 92.
Section 92(a) provides that any fact may be proved which would invalidate any document or which
would entitle any person to any decree or order relating thereto, such as fraud, intimidation,
illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly
dated, want or failure of consideration, or mistake in fact or law. In Tan Siew Hee & Ors v Hi Sii, oral
evidence was admitted to show that there was a want or failure of consideration.
Section 92(b) provides that the existence of any separate oral agreement, as to any matter on which a
document is silent and which is not inconsistent with its terms, may be proved, and in considering
whether or not this proviso applies, the court shall have regard to the degree of formality of the
document. In Tan Chong Motors, the court said that the primary purpose of proving the pre-
contractual statement made by Mr Sze (the salesman) was to prove the existence of a warranty, a
separate contractual promise, although such proof resulted in a conflict between the warranty and
the terms of the contract subsequently entered into. Such proof is obviously allowed by the
provisions (b) and (c) to section 92. In Eushun Properties, the loan agreement was in writing. The
appellant wanted to adduce oral evidence of the representations and assurances of the general
manager on the purpose of the loan and the intent of the drawdown. The Court said that the law on
collateral contracts is dearly spelt out in section 92(b) of the Act i.e., a collateral agreement could
exist side by side with the main agreement, which it contradicts. However in Malek & Joseph Au a
BBMB, where there was a three year tenancy with an option to renew, the court refused to admit oral
evidence under s.92 (b) that the respondent's assistant manager had represented that A could at any
time opt to occupy one-half of the premises and pay half the rent as it was the appellant (A) who
made the proposal 8 months into the agreement.
In Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ193,
the court said that in considering whether the proviso applies, the nature of the written agreement
and its surrounding circumstances must be considered. The court admitted the utterances regarding
the certainty of the end finance and the timing of the first drawdown, which were not in the letter.
The Court referred to Tan Chong Motors. In Tan Swee Hoe v AH Hussain [1980] 2 MLJ 16, the court
held that collateral contracts do not offend the extrinsic evidence rule because the evidence was not
incorporated into the main contract. Instead it exists side by side with the contract as a separate
contract.
Section 92(c) provides that the existence of any separate oral agreement constituting a condition
precedent to the attaching of any obligation under any such contract, grant or disposition of
property, may be proved. In Tan Chong Motors the car complying with ADR was a condition
precedent to the contract and hence the oral evidence could be admitted under section 92(c).
Section 92(d) states that the existence of any distinct subsequent oral agreement, to rescind or
modify any such contract, grant or disposition of property, may be proved except in cases in which
the contract, grant or disposition of property is by law required to be in writing, or has been
registered according to the law in force for the time being as to the registration of documents.
In Abdul Haji bin Haji Masud Ahmad v Kwang Yuet Song, the court said that oral evidence could
not be adduced to vary the terms of the 10 year lease which had been reduced to the form of a
document and registered as required by the NLC as it would run afoul of the provisions of Sections
91 and 92 of the EA. In Voo Min En v Leong Chung Fatt [1982] 2 MU 241, the court held that oral
evidence could not be admitted under proviso (d) to Section 92 to modify the written agreement as
the lease in this case was required to be in writing by virtue of section 104 of the Sabah Land
Ordinance and had been registered in accordance with the Ordinance.
Section 92(e) provides that any usage or custom by which incidents not expressly mentioned in any
contract are usually annexed to contracts of that description may be proved if the annexing of any
such incident would not be repugnant to or inconsistent with the express terms of the contract.
In Cheng Keng Hong v Govt, of the Federation of Malaya, the court did not use S.92 (e) as it had not
been shown that there was such a trade usage or custom with regard to such contracts. There was no
custom as alleged that if any work was done according to the drawings which was not set out in the
specification, extra payment would be made.
Section 92(f) provides that any fact may be proved which shows in what manner the language of a
document is related to existing facts. In Tan Suan Sim v Chang Fook Shen, the sale and purchase
agreement had provided that the balance of the purchase price would be paid at "a later date". The
court admitted oral evidence to explain he ambiguity in the agreement i.e. to show that the parties
had agreed that the payment would be made upon receiving the loan from the bank. In Faber Merlin
(M) Sdn Bhd v Lye Thai Sang & Anor [1985] 2 MU 381, the court held that there was no ambiguity
in the meaning of common property as it had been defined in the written agreement. Hence there
was no need to resort to S. 92(f). In Hjh Aminah bte Bakri v Manisah bte Hj Bakri & Ors [1989] 1
MLJ 350, the court held that on the facts, the words 'if necessary' in the sale and purchase agreement
of the property meant that the sale was subject to the approval of the court if necessary, for example
where the sale was opposed by the beneficiaries or the co - executrix. The case of Padang Serai
Kilang Kayu v Khor Kia Fong [1997], concerned a sale and purchase of a factory. The court allowed
oral evidence to be adduced to show that the land was also included under S. 92(b) and S. 92(f).
9.3.2 RULE AGAINST EXTRINSIC EVIDENCE – PROBLEM QUESTIONS
Question 4(a) July 1999
Answer both parts of this question.
(a) Able entered into a written sale and purchase agreement (‘the Agreement’) with
Cain for the sale of a house to Cain for RM300,000/-. At the time of execution of the
Agreement, Cain inquired from Able as to whether the house was being sold with vacant
possession.
Able confirmed verbally to Cain that the house was being sold with vacant possession.
The Agreement did not state that the house was being sold with vacant possession.
Upon execution of the Agreement, a sum of RM30,000/- was paid by Cain and the
balance of RM270,000/- was to be paid within 3 months of the date of the execution of
the Agreement.
On the due date, Cain paid the balance of the purchase price of RM270,000/- to Able and
asked Able to give vacant possession of the house.
Able replied that he was not obliged to give vacant possession of the house as that was
not a term of the Agreement.
Cain then sued Able in the High Court for breach of contract in that Able had failed to
give vacant possession of the house. Able, in his statement of defence, stated that he was
not obliged to give vacant possession of the house.
At the trial, Cain adduced evidence of the conversation between Able and Cain at the
time of the execution of the Agreement wherein Able confirmed verbally that the house
was being sold with vacant possession.
Able objected to the admissibility of this piece of evidence.

Discuss. (15 marks)
ANSWER OUTLINE
(a) Issue – Whether Cain can adduce evidence of the conversation between Able and Cain at the
time of the execution of the agreement wherein Able confirmed verbally that the house was
being sold with vacant possession? This would depend on whether the rule against extrinsic
evidence would apply. Here Able has objected the tendering of the evidence. The relevant
provisions are sections 91 and 92.
Section 91 provides that when the terms of the contract have been reduced by or by consent
of the parties into a document, no evidence shall be given in proof of the terms except the
document itself or secondary evidence where allowed by the Evidence Act. Here there is a
written contract. In Tan Chong Motors, the court said that section 91 only applies when all the
terms of the contract have been reduced into a document. Cain can argue that here, not all the
terms have been reduced into the document since the term on vacant possession was not
included in the document and therefore that section 91 does not apply. Using this argument
Cain may be able to adduce evidence of Able’s verbal confirmation that the house was sold
with vacant possession. However such an argument is unlikely to succeed and the court will
probably come to the conclusion that the contract is a written contract and that section 91
applies. Hence the way to prove the terms of the contract is by tendering the contract itself.
[This argument is optional and you may not want to use it.]
Section 92 provides that when the terms of the contract have been proved according to s.91,
no evidence of any oral agreement or statement shall be admitted as between the parties to
any such instrument or their representatives in interest for the purpose of contradicting,
varying, adding to, or subtracting from its terms. The only way to adduce the evidence is if it
falls under one of the provisos (a) to (f) to the section. Here Cain wants to adduce oral
evidence wants to adduce oral evidence which adds a term to the written contract. This
evidence would be excluded under section 92.
To bring in the evidence must see whether it can come within any of the exceptions in the
proviso to section 92.
Possible exceptions here are provisos (b) and (c) to section 92.
Section 92(b) – collateral contract – can adduce oral evidence of the existence of any separate
oral agreement on which the main contract is silent and which is not inconsistent with its
terms. In considering whether the provision applies, the court shall have regard to the degree
of formality of the document. Here Cain should be able to tender under s.92(b).
Cases you can use.
In Tan Chong Motors – the representation by the salesman (Mr. Sze) that the car would
comply with Australian Design Regulations amounted to a collateral contract. The court held
that a collateral contract exists side by side with the main contract and will prevail over the
main contract.
In Eushun Properties the court held that a collateral agreement could exist side by side with
the main agreement which it contradicts [not necessary here].
* Padang Serai Kilang – case concerning sales and purchase of factory. Issue was whether
land was also included as the written contract was silent. Held – Sections 91 and 92 do not
preclude completely the admission of oral evidence. Where there is a prior oral agreement or
statement verbally agreed to by the parties at the time of executing the documents pertaining
to a matter on which the document is silent, evidence as to its nature, factual background or
surrounding circumstances maybe given when such oral evidence is not inconsistent nor
contradicts the terms of the document. Thus the oral evidence adduced was admissible under
provisos (b) and (f) of section 92.
Section 92(c) – condition precedent – the existence of any separate oral agreement
constituting a condition, precedent to the attaching of any obligation under any such contract
may be proved. In Tan Chong Motors the court said that the car complying with ADR was a
condition precedent. It can be argued that here the Able’s verbal confirmation on vacant
possession constituted a condition precedent and therefore the evidence can also be admitted
under section 92(c). But this will only be the case where Cain had made it clear that he would
not be interested in buying the house unless it came with vacant possession.
Conclusion – Cain should be able to adduce the oral evidence.
Question 7 July 2006

Answer all parts of this question
Ah Seng runs a business of manufacturing biscuits and tarts. His speciality is his famous egg
tarts. Ah Seng has been using the X-100 machine to pack and seal his egg tarts. The X-100,
which has been in operation for over 5 years, broke down frequently and could only pack 50
egg tarts per minute.
On 20.9.2005, Ah Seng negotiated with Ah Poh for a new packing machine. Ah Poh offered to
sell to Ah Seng the Z-500 for RM15,000/-. According to Ah Poh, the Z-500 could pack 100 egg
tarts per minute.
On 1.10.2005, Ah Seng and Ah Poh signed a one page contract for the sale and purchase of the
Z-500. The sale and purchase expressly states that the amount of RM5,000/- is to be paid on
execution of the contract and the balance of RM10,000/- to be paid upon the successful
commissioning of the machine. The contract also specifies that the machine is to be delivered
and commissioned by 31.1.2006. Ah Seng paid the RM5,000/- deposit.
On 15.10.2005, Ah Seng telephoned Ah Poh and asked if the Z-500 could be delivered and
commissioned earlier by 31.12.2005. Ah Seng told Ah Poh that he wanted it earlier to be well
prepared for the Chinese New Year demand in January 2006. Ah Poh confidently agreed and
promised that the Z-500 would be delivered and commissioned by the end of 2005.
Despite Ah Seng’s constant reminders to Ah Poh, the Z-500 was not delivered by 31.12.2005. In
fact, the machine was not full operational until 25.1.2006.
On 25.1.2006, Ah Poh invoiced Ah Seng for the remaining RM10,000/-. Ah Seng, however,
reminded Ah Poh of his oral statement made on 1.10.2005 that Ah Poh would give a RM2,000/-
discount if the machine was delivered late. Ah Poh refused to give the discount as it was not so
stipulated in the written contract. Ah Seng reluctantly made the payment.
After a week of operation, Ah Seng finds that the Z-500 can only pack 75 egg tarts per minute.
Ah Seng checked the written contract and found that it made no mention of the packing speed
of the Z-500.
(a) Ah Seng now wishes to sue Ah Poh for breach of contract. Advise Ah Seng if he can
adduce the following evidence in support of his claim:
i. Ah Poh’s statement on 20.9.2005 that the Z-500 could pack 100 egg tarts per
minute. (6 marks)
ii. Ah Poh’s statement on 1.10.2005 that Ah Poh would give Ah Seng a

RM2,000/- discount if the Z-500 was delivered late; and (6 marks)
iii. Ah Seng’s conversation with Ah Poh on 15.10.2005 that the Z-500 would be
delivered and commissioned by 31.12.2005; (6 marks)
(b) In order to prove his damages, Ah Seng wishes to tender his accounting books in
evidence. His accounting books were prepared by his accounts clerk, Janice. The
necessary information on sales was supplied to Janice by the store manager, Gilbert.
However, by the time the matter comes to trial, Janice has resigned and has moved to
Ireland.
Can Ah Seng tender the books of accounts in evidence? (7 marks)
Answer outline
(a) 1. Discuss s.91 - Section 91 provides that when the terms of the contract have been reduced
into writing no evidence can be given of the terms except the contract itself or secondary
evidence where allowed by the Act.
2. Discuss s.92 - Section 92 provides that when the terms of any such contract have been
proved according to s.91, no evidence of any oral agreement or statement shall be admitted
as between the parties to the contract for the purpose of contradicting, varying, adding to
or subtracting from its terms. However section 92 goes on to provide 6 exceptions in
provisos (a) to (f) of section 92.
3. Note that all of the items of evidence that Ah Seng wants to adduce would appear to be
caught by s.92 as they appear to add to, vary, subtract or contradict the terms of the written
agreement. Discuss which exceptions can be resorted to in order to admit the various
items of evidence.
(i) Statement made prior to the execution of the agreement.
Discuss s.92(c) - condition precedent. Discuss Tan Chong Motors v Alan

McKnight.
Discuss s.92(a) - can argue that the statement was a misrepresentation — the
contracts becomes voidable at Ah Seng’s
option. Discuss
s.92(b)
(ii) Discuss s.92(b) - a separate oral agreement on which the main contract is silent
and which is not inconsistent with its terms....consideration will be given to the
formality of the agreement. Here it is a one page contract.
(iii) Discuss s.92(d) - any subsequent oral agreement to modify or rescind the
agreement may be proved except where it is required by law to be in writing and
registered. However, the courts are reluctant to admit evidence under this
exception so it may be difficult for this evidence to be tendered.
(b) 1. Discuss if the book of accounts is relevant.
2. However, because it is an out of court statement that is being tendered for the truth of its
contents it would be hearsay and thus inadmissible. Discuss Subramaniam. The hearsay
rule applies to out of court statements in documents as can be seen in the decisions
in Myers v DPP and Patel v Comptroller of Excise and Customs.
3. Hence the book of accounts can only be tendered if it can be brought within one of the
hearsay exceptions.
4. The most likely exception which can apply here would be section 34 which provides for
the admissibility of entries in a book of accounts regularly kept in the course of business.
5. Discuss the conditions of admissibility - For the entry or entries in the book of account to
be admissible, in Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd the
court said that the following conditions must be satisfied:
(a) the entries are in a book of accounts regularly kept in the course of business
(b) the entries refer to a matter into which the court has to inquire. Both appear satisfied
here.
6. Discuss the mode of proof — s.62, s.64
7. Conclusion –
[Section 32(1)(b) cannot be used here. Why? What about section 73A?]

(a) X wished to purchase a new tractor for his paddy field. X went to Best Tractors Sdn Bhd
and was served by Y, a salesman employed by Best Tractors Sdn Bhd.
X was concerned that the tractor he wished to purchase should be able to operate
during the monsoon season. X’s concern was conveyed to Y. Y assured X that the tractors
sold by Best Tractors Sdn Bhd could work in “all kinds of weather” (“Y’s Assurance”).
Relying on Y’s Assurance, X bought the tractor from Best Tractors Sdn Bhd. The sale and
purchase contract (“Sale Contract”) expressly stated that the tractor could not be used
during “heavy rain”.
After concluding the Sale Contract, X found out that the tractor broke down during a
heavy downpour in the very first monsoon season.
Advise X as to whether he could rely on Y’s Assurance to rescind the Sale Contract
and give reasons for your advice. (8 marks)
SUGGESTED ANSWER
1. Discuss s.91: See above
2. Discuss s.92: See above
3. What is the evidence sought to be admitted here? X wants to adduce oral evidence of Y’s
statement that the tractor could work in all kinds of weather. Since this would vary or
contradict what is stated in the agreement it would be excluded by s.92. However s.92 go on to
provide 6 exceptions in the proviso to s.92. Discuss which exceptions can be resorted to in
order to admit the evidence.
4. What exceptions can X rely on to try to get the evidence admitted?
− Discuss s.92(a) - misrepresentation
− Discuss s.92(b) — Note that here the agreement is not silent. However note decisions in:
■ In Tan Chong Motors, the court said that the primary purpose of proving the
pre-contractual statement made by Mr. Sze (the salesman) was to prove the
existence of a warranty, a separate contractual promise, although such proof
resulted in a conflict between the warranty and the terms of the contract
subsequently entered into. Such proof is obviously allowed by the provisions (b)
and (c) to section 92. In Eushun Properties, the loan agreement was in writing.
The appellant wanted to adduce oral evidence of the representations and
assurances of the general manager on the purpose of the loan and the intent of
the drawdown. The Court said that the law on collateral contracts is clearly spelt
out in section 92(b) of the Act i.e. a collateral agreement could exist side by side
with the main agreement, which it contradicts.
− Discuss s.92(c) — deals with condition precedent. Read proviso (c) and illustration (j)
and the case of Tan Chong Motors as explained above.
5. Conclusion on whether the evidence can be admitted.
Yusof, the Chief Executive Officer of Easimoni Bank Bhd, has agreed to Easimoni Bank Bhd’s
lending RM15,000,000/- to Rugi Sdn Bhd (“Loan”) to finance Rugi Sdn Bhd’s new business
venture in prawn farming. The Loan Agreement had been signed by both Easimoni Bank Bhd
and Rugi Sdn Bhd and had also been duly stamped. The full sum of the Loan had also been
disbursed by Easimoni Bank Bhd to Rugi Sdn Bhd.
Easimoni Bank Bhd and Yusof were not aware that the Loan contravened section 65(1) of the
Banking and Financial Institutions Act 1989 (“BAFIA”) as Yusof had exceeded the mandate
given to him by Easimoni Bank Bhd in granting the Loan to Rugi Sdn Bhd.
Rugi Sdn Bhd has now defaulted on the Loan. Easimoni Bank Bhd intends to recover the Loan
as well as interest from Rugi Sdn Bhd (“Proposed Court Action”).
Easimoni Bank Bhd now seeks your advice as to whether the contravention of BAFIA may be
admitted as evidence or not against Easimoni Bank Bhd in the Proposed Court
Action. (8 marks)
Suggested Answer
(a) Issue – whether the contravention of BAFIA may be admitted as evidence or not against
Easimoni Bank Bhd in the proposed Court action.
Here the written loan agreement had been executed by both parties and stamped. Section 91
provides that when the terms of the contract have been reduced by the parties into a
document, no evidence shall be given in proof of the terms except the document itself or
secondary evidence where allowed by the Evidence Act. Section 92 provides that when the
terms of the contract have been proved according to s.91, no evidence of any oral agreement or
statement shall be admitted as between the parties to any such instrument or their
representatives in interest for the purpose of contracting, varying, adding to, or subtracting
from its terms. The provisions (a) to (f) of section 92 provide for the circumstances in which
oral evidence may be tendered.
Can Rugi Sdn Bhd rely on any of the provisos to section 92 to admit the contravention of
BAFIA as evidence against Easimoni Sdn Bhd? Section 92(a) provides that any fact may be
proved which would invalidate any document such as illegality. Rugi Sdn Bhd may be able to
rely on s.92(a) if the contravention of BAFIA would invalidate the agreement on the grounds of
illegality. If it does not, the contravention of BAFIA would be irrelevant and cannot be adduced
as evidence against Easimoni.
Additional sample questions
Question 6(b) November 1999
Rahman entered into a written contract of employment with Baton Sdn Bhd whereby Rahman
was appointed as a manager with a salary of RM5,000/- per month. Before Rahman signed the
written contract of employment, Rahman inquired from Baton Sdn Bhd whether he was
entitled to a yearly bonus. Baton Sdn Bhd informed Rahman that he was entitled to a yearly
bonus of three months salary. The written contract of employment did not state anything about
the entitlement of bonus. At the expiry of the first year of employment, Rahman tendered his
resignation. The resignation was in accordance with the contract of employment. Rahman
asked Baton Sdn Bhd for the bonus of three months salary as promised. Baton Sdn Bhd refused
to pay the bonus as it was not a written term of the contract of employment. Rahman sued
Baton Sdn Bhd for the bonus of three months salary. At the hearing, Rahman intends to adduce
evidence of the oral promise by Baton Sdn Bhd as to the payment of bonus.
Advise Rahman. (12 ½ marks)
See answer to Question 4(a) July 1999 above.

Answer ALL parts of this question
Bellco Sdn. Bhd. (“Bellco”) is in the business of manufacturing bicycles. Bellco engaged
Bestex Consulting Sdn. Bhd. (“Bestex”) to provide consulting services to improve Bellco’s
efficiency in manufacturing and to increase Bellco’s profits.
During the initial meeting, Bestex’s director, Mr.Tan, told Bellco’s director. Mr.Lim, that Bestex
would not charge any fees if Bellco’s profit did not increase by at least twenty (20) per cent as a
result of Bestex’s recommendations. Following that meeting, Bestex and Bellco signed
a Consultancy Agreement dated 1.8.2010 (“the said Agreement”) which stated Bestex’s
consultancy fees at RM50,000/-. According to the said Agreement, Bestex was to complete its
final report by 15.1.2011.
After signing the said Agreement, Mr. Lim noticed that Mr.Tan’s guarantee of a twenty (20) per
cent increase in profits was not stated anywhere in the said Agreement. Mr. Lim then wrote an
email to Mr. Tan had said about the fee waiver.
In a subsequent telephone conversation sometime in September 2010, Mr.Lim asked Mr.Tan

whether he could complete the report by end of November 2010 so that so that the
recommendation could be put in place before the end year increase in demand. Mr. Tan said,
“No problem.”
As it turned out, Bestex only completed its report on 5.1.2011. Bellco implemented all of
Bestex’s recommendations but only saw a five (5) per cent increase in its profits. Bestex is
demanding its full fee and sues Bellco for it.
Advise Bellco if it can adduce the following evidence to defend Bestex’s claim:
(a) Mr. Lim’s oral evidence of what was said at the initial meeting and his subsequent
email to Mr. Tan confirming the profit guarantee; (8 marks)
(b) The telephone conversation between Mr. Lim and Mr. Tan on the early delivery of
the final report; and (7 marks)
(c) In order to prove that Bellco only benefited from a five(5) per cent increase in its
profits, Bellco wishes to tender its accounting books in evidence. The accounting
books were prepared by an accounts clerk, Jill. The necessary information on
production was supplied to Jill by the factory manager, Richard. However, by the
time the matter comes to trial, Jill has resigned and moved to Iceland. (10 marks)
9.3.3 RULE AGAINST EXTRINSIC EVIDENCE - 2ND LIMB OF SECTION 91??

Kumar was charged in the High Court at Kuala Lumpur for trafficking in dangerous drugs, to
wit, 125 grammes of heroin. The evidence adduced at the trial was that, acting upon
information received, Inspector Castor led a police party to house No.64, Jalan Besi, Kuala
Lumpur. Upon entry into the premises, the police party saw Kumar holding a bundle of packets
suspected to contain heroin. Kumar was arrested. Inspector Castor lodged a police report of
the arrest but instead of stating the number of the house as 64 he wrote 46 on the police
report. The packets suspected to contain the dangerous drugs were sent to the chemistry
department for analysis. David, the chemist, who conducted the analysis, stated in his report
that the packets contained 125 grammes of heroin.
At the trial of Kumar, the prosecution sought to adduce evidence from Inspector Castor to show
that the number of the housed stated in the police report is mistakenly stated as 46 when it
should be 64. The defence objected to the admissibility of this evidence on the ground that the
police report, being a matter required by law to be reduced to the form of a document, cannot
be contradicted or varied pursuant to Section 92 of the Evidence Act, 1950.
With reference to relevant statutory provisions and decided cases, discuss whether the
defence may succeed in the objection raised. (25 marks)
Answer outline
Issue – Asked to discuss whether the defence may succeed in the objection raised.
The defence objected to the admissibility of evidence from Inspector Castor to show that the number
of the house stated in the police report was mistakenly stated as 46 when it should be 64 on the
ground that the police report, being a matter required by law to be reduced to the form of a
document, cannot be contradicted or varied pursuant to section 92 of the Evidence Act 1950.
The courts have not been consistent on their interpretations of the scope and application of the
second limb of section 91 (in all cases where a matter is required by law to be reduced to the form of
a document) and its relationship with section 92.
It is submitted that the matter has been settled by the recent Federal Court decision in Balachandran v
PP and the Court of Appeal decision in Lee Kwai Heong & Anor v PP.
- Balachandran v PP (FC) – A first information report is not substantive evidence. The

evidentiary value of a first information report is only to contradict the testimony of a
witness under s. 145 Evidence Act 1950 or to corroborate his testimony under section 157
of the Evidence Act. It is not substantive evidence of its contents. Hence it can be
contradicted]
- Lee Kwai Heong & Anor v PP (CA) - It is settled law that a first information report is not
a substantive piece of evidence. Its evidential value ‘is only to contradict the testimony of a
witness under section 145 of the Evidence Act 1950 or to corroborate his testimony under
s. 157 of the said Act. Accordingly, the question of invoking ss. 91 and 92 of the Evidence
Act 1950 should not arise.
Hence Inspector Castor will be allowed to give oral evidence that the number of the house stated in the
police report was mistakenly stated as 46 as a police report is not substantive evidence and the question
of invoking sections 91 and 92 of the Evidence Act 1950 does not arise.
However the following answer discusses the various approaches that have been taken by the courts.
The defence may succeed in the objection raised if the judge follows the approach taken by the
Federal Court in Ah Mee v PP. Discuss Ah Mee – court said that since section 107 of the Criminal
Procedure Code required a police report by law to be reduced into a document, the second limb of
section 91 would apply. The Federal Court held that sections 91 and 92 apply in both civil and
criminal cases and whether the document is unilateral or bilateral, dispositive or non-dispositive.
Hence although this is a criminal case and a police report is a unilateral document based on the
decision in Ah Mee, the police report would clearly fall within the ambit of the second limb of section
91. Once the report was tendered, section 92 would prevent oral evidence from being tendered to
vary or contradict what is in the police report. If the judge follows this approach the defence
submission would succeed.
However the defence will not succeed in the objection raised if the judge follows the approaches
taken by the judges in Tng Tien Chai (where the court followed the Federal Court decision in Datuk
Haji Harun Idris) or the approach taken in Datuk Tang Leng Teck or the Federal Court decision
in Balachandran.
Discuss Tng Tien Chai. Briefly discuss the facts. The court did not follow Ah Mee preferring instead
the approach in Datuk Haji Harun Idris. The court held that sections 91 and 92 only applied in civil
cases and has no application in criminal cases. Also section 91 and 92 only applied to bilateral and
dispositive documents only and had no application to unilateral and non-dispositive documents. The
court also said that a police report was not substantive evidence. [See your notes for more
information.] On the facts of the question, since it is a criminal case and the police report is a
unilateral document based on the decision in Tng Tien Chai, sections 91 and 92 have no application
and hence Inspector Castor will be allowed to give oral evidence that the number of the house stated
in the police report was mistakenly stated as 46 when it should have been 64.
Discuss Datuk Tang Leng Teck. In this case the High Court refused to follow Ah Mee. The court held
that the type of documents caught by section 91 and 92 may not be the same. The court held that
section 91 which provides that in all cases where any matter is required to be reduced to a document
means what it says – ‘all cases’. Hence section 91 would apply to all documents whether unilateral or
bilateral, dispositive or non-dispositive. Hence section 91 would apply to a police report. However,
the court held that section 92 would only prevent oral evidence from being adduced to add, vary,
subtract or contradict from the terms of the document where the document was bilateral in nature
owing to the words ‘as between the parties’ in section 92.
Hence although a police report would be caught by section 91, section 92 would not prevent oral
evidence from being tendered to add, vary, subtract or contradict from what was stated in the police
report. On the facts of the question, Inspector Castor will be allowed to give oral evidence that the
number of the house stated in the police report was mistakenly stated as 46 when it should have
been 64 as although the police report may be caught by section 91, section 92 would not prevent the
Inspector from giving oral evidence that the number should have been 64.
The recent decisions in Balachandran v PP (FC) and Lee Kwai Heong & Anor v PP (CA) would
suggest that since a first information report is not substantive evidence, it can be contradicted. In Lim
Kwai Heong & Anor v PP, the court said that the question of ss. 91 and 92 of the Evidence Act should
not arise in the case of a first information report.
9.4 DOCUMENTS PRODUCED BY COMPUTER

9.4.1 COMPUTER EVIDENCE – ESSAY QUESTIONS

Sections 90A, 90B and 90C were inserted into the Evidence Act 1950 in 1993. Explain the
purports of sections 90A, 90B and 90C of the Act as further explained in decided cases. (25
marks)

Sections 90A, 90B and 90C were incorporated into the Evidence Act 1950 in 1993
Discuss the rationale for the introduction of these provisions with regard to relevancy
and admissibility of documentary evidence in a court of law. (25 marks)
Question 7(b) October 2008

By virtue of section 90A of the Evidence Act 1950, in any criminal or civil proceeding a
document produced by a computer or a statement contained in such document shall be
admissible as evidence in a court of law of any fact stated therein whether or not the person
tendering the same is the maker of such document or statement.
This is an exception to the rule against documentary hearsay.
Discuss this with reference to decided cases. (12 marks)
Question 1(b) July 2012

(b) Discuss the interrelationship between the provisions of section 90A(2) and
section 90A(6) of the Evidence Act 1950. (10 marks)
ESSAY MATERIAL
Rationale for the introduction of 90A, 90B and 90C.
As compared to the past, computers play an integral part in the modern world that we live in.
Computers have expanded into the many aspects of our everyday life. Computers are used as a form
of communication - emails, text messages and video conferencing for example. Also, a main method
of monetary transactions, i.e. online banking. With an increasing use computers (and with the
increase of computer related crimes), there was a need for a provision to admit documents produced
by computer or statements in such documents. The Evidence Act 1950 which was drafted in 1871
obviously predates computers and did not provide for the admissibility of documents produced by
computer. However the amendment in July 1993 was necessary to update the law owing to changes
in technology and the increasing importance of computers in all aspects of life. Hence sections 90A,
s90B and s90C were added to the Evidence Act in 1993.
Section 90A(1)
Section 90A(1) provides that in criminal or civil proceedings, a document or a statement contained
in such a document shall be admissible as evidence of any fact stated therein if the document was
produced by the computer in the course of ordinary use, whether or not the person tendering the
same is the maker of such document or statement. S90A applies to both civil and criminal
proceedings.
Section 90A(1) covers a wide range of evidence given the broad interpretation of “computer” and
“documents” in the Evidence Act 1950.
[Under the Evidence Act 1950, “computer” is defined in section 3 as “an electronic, magnetic, optical,
electrochemical, or other data processing device, or a group of such interconnected or related
devices, performing logical, arithmetic, storage and display functions, and includes any data storage
facility or communications facility directly related to or operating in conjunction with such device or
group of such interconnected or related devices, but does not include an automated typewriter or
typesetter, or a portable hand held calculator or other similar device which is non-programmable or
which does not contain any data storage facility”.] The definition of ‘computer’ would cover regular
desktop computers, laptops, mobile phones, smart phones, ATM Machines, parking tickets machines, bus
ticket machines, DNA processing computers used in labs and many other devices [“document” is defined
under section 3 of the Evidence Act 1950 as “any matter expressed, described, or howsoever
represented, upon any substance, material, thing or article, including any matter embodied in a disc,
tape, film, sound-track 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 illustrations make clear that documents may contain more than just words, as photographs,
drawings, maps and so forth including a matter recorded, stored, processed, retrieved or produced
by a computer is a document.
Examples of documents admitted under section 90A.
In Hanafi Mat Hassan, S90A was used to admit a bus ticket produced by a machine in the bus, and a
DNA report. In Ahmad Najib Aris, the s90A was used to admit a chemist report chemist report which
contained evidence of the deceased blood on the accused’s jeans, vaginal swab showing the accused
semen was found in the deceased vagina, deceased blood found in the accused’s car, and deceased
hair found in accused person’s car. In Mesnayo Bin Longdi v Pendakwa Raya [2015], s90A was used
to admit digital photographs. In Gnanasegaran Pararajasingham and Bespile Sdn Bhd v
Asianshine Sdn Bhd & Ors s90A used to admit computerised bank statements. These cases display
the wide range of documents which are covered by s90A.
Conditions of admissibility for section 90A(1)
Section 90A(2) explains the conditions of admissibility under this provision.
The conditions of admissibility are as follows:
1. The document was produced by computer. Section 90A(5) provides that a document shall be
deemed to have been produced by a computer whether it was produced directly or by means
of any appropriate equipment and whether or not there was direct or indirect human
intervention.
2. The document was produced by the computer in the course of its ordinary
use. In Gnanasegaran, the court held that there were two ways of doing this:
- The first method as explained by Gnanasegaran is that it may be proved by a certificate

as provided in subsection (2). The certificate must be signed by a person who either
before or after the production of the document by the computer is responsible for the
management of the operation of the computer or for the conduct of activities for which
the computer is used. It shall be sufficient for the matter to be stated to the best of the
knowledge and belief of the person signing the certificate- section 90A(3)(a). This
certificate shall be prima facie proof of all matters stated in it without proof of signature
of the person who gave the certificate -section 90A(3)(b). Also, based on subsection 4,
where this certificate is tendered, it shall be presumed that the computer in question
was in good working order and was operating properly in all respects throughout the
material part of the period during which the document was produced.
- Alternatively, it may be proved by calling a witness to tender the document. The witness
must be a person who either before or after the production of the document by the
computer is responsible for the management of the operation of the computer or for the
conduct of activities for which the computer is used. This witness should be able to
testify to the matters presumed under subsection 4, which is that the computer in
question was in good working order and was operating properly in all respects
throughout the material part of the period during which the document was produced.
The Court of Appeal explains the use of “may be proved” in subsection (2) is permissive
and not mandatory. This can also be seen in subsection (4) which begins with the words
‘Where a certificate is given under subsection (2)’. These words show that a certificate is
not required to be produced in every case. The use of oral evidence in lieu of the
certificate under subsection (2) was reiterated by the Court of Appeal in Mohd Khayry
bin Ismail v Public Prosecutor [2014] 4 MLJ 317 and in Mesnayo Bin Longdi v
Pendakwa Raya. The Court of Appeal explains the use of “may be proved” in subsection
(2) is permissive and not mandatory. This can also be seen in subsection (4) which
begins with the words ‘Where a certificate is given under subsection (2)’. These words
show that a certificate is not required to be produced in every case.
If these two conditions are satisfied the computer printouts will be admissible.
Relationship between section 90A(2) and 90A(6)
The law as it stands is found on the Federal Court decision in Ahmad Najib bin Aris v PP. Wherein
the FC approved and adopted the approach in the Court of appeal decision in Hanafi Mat Hassan.
See above for the conditions of admissibility for section 90A(1). Section 90A(2) propounds on a
matter of mode of proof, namely the mode of proving that a document has been produced by a
computer in the course of its ordinary use. On the other hand section 90A(6) deals with the
admissibility of a document which was produced by a computer but not in the course of its ordinary
use and is only deemed to be so.
The Court of Appeal in Hanafi Mat Hassan explained that there may be instances when a document,
even though produced by the computer, may not have anything to do with the ordinary use of the
computer. Here the court may invoke the deeming provision under section 90A(6).
The purpose of s90A(6) is therefore to render a document produced by a computer, not in its
ordinary use, to be one that is produced by the computer in the ordinary course of its use. Section
90A(6) can only apply to a document which was not produced by a computer in the ordinary course
of its use, or, in other words, to a document which does not come within the scope of section 90A(1).
It cannot be used as a mode of proof to establish that such a document was so produced. Such
document must be proved in the manner authorized by section 90A(2). The Court of Appeal in
Hanafi Mat Hassan said that section 90A(6) has its own purpose to serve and can never be a
substitute for the certificate.
The relationship between subsection (2) and (6) based on Hanafi Mat Hassan would then appear to
be that where a document is proved to have been produced by a computer, the court may deem that
it was produced through the ordinary use of that computer, even though it was not.
The problem in interpretation arises in the use of subsection (6) by the Federal Court in Ahmad
Najib Aris. The Federal Court having quoted the bulk of the Court of Appeal’s decision in Hanafi Mat
Hassan, including the portion stating “section 90A(6) has its own purpose to serve and can never be
a substitute for the certificate” went on to do the exact opposite. The Federal Court in Ahmad Najib
Aris had used s90A(6) as substitute for the certificate under section 90A(2). In Ahmad Najib
Aris, chemist report which contained evidence of the deceased blood on the accused’s jeans, vaginal
swab showing the accused semen was found in the deceased vagina, deceased blood found in the
accused’s car, and deceased hair found in accused person’s car. Clearly the chemist report held a high
probative value. No certificate was tendered as required by section 90A(2), neither was any oral
evidence adduced to show that the report was produced by a computer in the course of its ordinary
use. The only evidence available is that the report was produced by a computer. The Federal Court
resorted to section 90A(6) to presume that the report was produced by the computer in the course
of its ordinary use. Therefore, the FC in Ahmad Najib Aris, while adopting the CA’s reasoning
in Hanafi Mat Hassan, had still used s90A(6) as a method of proof.
The prosecution ought to have tendered evidence to prove to the court the ordinary use of the
computer, and then whether or not the chemist report was produced in the course of the ordinary
use of the computer. If it was produced in the course of its ordinary use, then the court should have
resorted to section 90A(1) to admit it. However if it was not produced by the computer in the course
of its ordinary use, then should have resorted to section 90A(6) to admit it. The Federal Court should
not have decided that since there was no evidence tendered to prove that the chemist report was
produced in the course of the ordinary use of the computer, that it was not produced in the course of
the ordinary use of the computer, and resorted to s.90A(6) to deem/presume the document was
produced by the computer in the course of its ordinary use.
Despite the decision in Hanafi Mat Hassan, it is submitted that s90A(6), the deeming provision
should not apply to all documents, but should be confined to documents produced by a computer
after the commencement of the criminal or civil proceeding or investigation or enquiry. S90A(6)
should be limited in its use to those documents produced for purpose of the case, and not all
documents produced by a computer.
Section 90A and hearsay evidence
Documents produced by a computer, tendered for the truth of the matter stated within such
document would tantamount to hearsay. Section 90A makes such documents and the statements
contained in such documents admissible as evidence of any fact stated therein. This appears to make
section 90A a hearsay exception.
In Gnanasegaran a/I Pararajasingham, the court admitted computerized bank statements under
section 90A to show the movement of funds between the appellant’s client and office accounts.
Mahadev Shankar said that section 90A was an updating of the best evidence rule and it was no
longer necessary to call the actual teller or bank clerk who keyed in the data to come to court
provided he did so in the course of the ordinary use of the computer. Further, the court held that
“This is a relaxation of the direct evidence rule in section 60 of the Act beyond the extent to which its
provisions have been diluted by section 32(b) in the case of document made in the ordinary course
of business. A situation could thus arise under section 90A(1) where the particular person who
keyed in the information may not be individually identifiable, but the document would nevertheless
be admissible’”
In Hanafi Mat Hassan, a bus ticket produced by a ticket machine in a bus belonging to the bus
company of the accused which was found in the bag belonging to the deceased was tendered as
evidence using s90A. Also, a DNA report showing that the semen of the accused was found in the
vagina of the deceased was also admitted under s90A.
In Ahmad Najib Aris, a chemist report which contained evidence of the deceased blood on the
accused’s jeans, vaginal swab showing the accused semen was found in the deceased vagina,
deceased blood found in the accused’s car, and deceased hair found in accused person’s car was
admissible under s90A.
All these documents were evidence for the facts/matters stated within them, making all of them
hearsay, however as the cases have shown, s90A is used to admit them and serves as an exception to
the rule against hearsay.
In Petroliam Nasional Bhd v Khoo Nee Kiong (2003), the court accepted that e-mails, instant
messages and digital photographs stored in a computer constituted documents produced by a
computer. It also acknowledged that an email could be authenticated by “appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances”. Further circumstantial evidence including the document’s own distinctive
characteristics and the circumstances surrounding its discovery could also establish its authenticity.
However, the High Court discussed the use of s90A with regard to emails in Avnet Azure Sdn Bhd v
Eact Technologies Sdn Bhd and Sapura Research Sdn Bhd(2011). In this case, The document in
issue was a server generated email which was tendered as proof of delivery together with a
certificate under section 90A(2)EA 1950. Avnet contended that once this computer evidence was
admitted upon production of the certificate, the truth of the contents must be held proven. Avnet’s
witness P4, also explained the circumstances of the contract in detail. Despite the section 90A
certificate and oral testimony the court questioned the admissibility and evidential weight of email
messages. The Court held the view that an email without the maker being called was inadmissible . The
Court held that Avnet had not proved its claim and dismissed its claim. It is submitted that though
section 90A has provided for the admissibility of computer generated documents confusion persists
resulting in inconsistencies in findings by the Courts. However, this may actually be the preferred
approach.
The issue arises from the phrase “document produced by a computer”. Such is often misleading.
In Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & 2 Ors, Justice Richard Malanjum was
concerned that any document, including an invoice, would be admitted regardless of its authenticity as
long as it was printed by a computer. In the information technology age, especially when white collar
crimes are growing rampant and most evidence now come in the form of documents, the law on
hearsay must evolve.
[Therefore, a clear distinction must be drawn between documents where its output is a mere
regurgitation of its input, such as emails and SMS/Whatsapp texts, and one which is a product of the
computer’s processing and calculation. The former may be inadmissible hearsay though the latter
may be admitted.]
To extend the use of s90A would be an affront to the rationale of the rule against hearsay and the
logic behind its exceptions. Hearsay evidence carries inherent risks of mistake, concoction and
fabrication. The exceptions to the rule against hearsay all work towards minimizing such risks. To
allow emails, SMS, text messages of any sort to come in as hearsay evidence merely by relying on s90A
would be disregarding the recognised hearsay risks and would do nothing to minimize such.
[As explained by the Court of Appeal in Kobra Taba Sedali, a decision on the conjuctiive reading is
s32(1)(i) and (j), when interpretating statutory provisions relating to hearsay, the provision must be
considered as “a whole as well as the underlining jurisprudence relating to hearsay rule and liberty
of the subject and the constitutional guarantees to achieve fair trial by means of procedural law”. To
interpret s90A to admit emails/SMS to establish a substantive element of the offence, as compared to
the nexus to the charge would give the defence much to complain about. Also to allow such
emails/SMS to be introduced by the prosecution as substantive evidence without calling the maker
the integrity of administration of criminal justice will be compromised.]
[The Court of Appeal in Kobra Taba Seidali did not address s90A, but propounded upon the approach
to be used when dealing with the interpretation of statutory exceptions to the rule against hearsay in
deciding whether s32(1)(i) and (j) should be read disjunctively or conjuncticely].
Section 90B
Section 90B focuses on the weight to be attached to a document, or a statement in a document,

admitted by s90A. These include the manner and purpose of the creation as well as the accuracy of
the document, the interval of time between the occurrence or existence of facts mentioned and also
the supply of the information including the real intention of the person who supplies or had custody
of the document.
Section 90C
Section 90C further affirms the position of ss90A and 90B. This section implies that the admissibility
of computer printouts in Malaysia under ss90A and 90B shall be determined by the EA 1950 only
and not by any other written laws, locally or abroad. Other written laws include other provisions of
the EA 1950 itself and the Banker‟s Books (Evidence) Act 1949.
9.4.2 Computer evidence – Problem Questions
Muthu sued Ah Chong in the Sessions Court at Kuala Lumpur for a sum of RM240,000/- which
Muthu had lent to Ah Chong in various sums over a period of twenty- four months. Ah Chong
disputed Muthu’s claim.
To support his claim, Muthu intends to tender computer printouts of his statement of account
from Easy money Bank Bhd. in respect of Muthu’ s current account with Easy money Bank Bhd.
for the purpose of proving that Muthu has given cheques drawn on Easy money Bank Bhd. in
favour of Ah Chong.
Advise Muthu in respect of the admissibility, at the trial, of the computer printouts. (25
marks)
ANSWER SUGGESTION
The computer printouts of his statement of accounts will be relevant as they would show that Muthu
has given cheques drawn on Easy money Bank Bhd. in favour of Ah Chong. The statements, as
computer generated documents would be admissible if it satisfies the requirements of section 90A.
This is provided for in section 90C which states that section 90A will prevail over any other provision
concerning computer generated documents.
Section 90A provides that in criminal or civil proceedings, a document or a statement contained in
such a document shall be admissible as evidence of any fact stated therein if the document was
produced by the computer in the curse of ordinary use, whether or not the person tendering the
same is the maker of such document or statement.
The conditions of admissibility under section 90A are as follows:
1. The document was produced by computer. Here this is clearly satisfied. Section 90A(5)
provides that a document shall be deemed to have been produced by a computer
whether it was produced directly or by means of any appropriate equipment and
whether or not there was direct or indirect human intervention.
2. The document was produced by the computer in the course of its ordinary use. Here the
monthly statements produced by the computer would most likely have been produced
by the computer in the course of its ordinary use. In Gnanasegaran, the court held that
there were two ways of doing this.
The first method as explained by Gnanasegaran is it may be proved by a certificate as provided in
subsection (2). The certificate must be signed by a person who either before or after the production
of the document by the computer is responsible for the management of the operation of the
computer for the conduct of activities for which the computer is used. It shall be sufficient for the
matter to be stated to the best of the knowledge and believe of the person signing the certificate-
section 90A(3)(a). This certificate shall be prima facie proof of all matters stated in it without proof
of signature of the person who gave the certificate -section 90A(3)(b). Also, based on subsection 4,
where this certificate is tendered, it shall be presumed that the computer in question was in good
working order and was operating properly in all respects throughout the material part of the period
during which the document was produced.
Alternatively, it may be proved by calling a witness to tender the document. The witness must be a
person who either before or after the production of the document by the computer is responsible for
the management of the operation of the computer or for the conduct of activities for which the
computer is used. This witness should be able to testify to the matters presumed under subsection 4,
which is that the computer in question was in good working order and was operating properly in all
respects throughout the material part of the period during which the document was produced
If these two conditions are satisfied the computer printouts will be admissible. Explanation 3 to
section 62 provides that a document produced by computer is primary evidence. Section 64 provides
that documents must generally be proved by primary evidence. In Gnanasegaran a/I
Pararajasingham, the court admitted computerized bank statements under section 90A to show the
movement of funds between the appellant’s client and office accounts. Mahadev Shankar said that
section 90A was an updating of the best evidence rule and it was no longer necessary to call the
actual teller or bank clerk who keyed in the data to come to court provided he did so in the course of
the ordinary use of the computer.
Note the recent High Court decision Bespile Sdn Bhd v Asianshine Sdn Bhd & Ors, where the Court
held that computerized bank statements are clearly generated and produced by computers in the
ordinary course of business of the respective banks and the court can take judicial notice under
section 57 pf the Evidence Act of the fact that bank statements in this era of computers and
information technology are invariably produced by computers. The court also relied on 90A(6) . The
court held that it is only in cases where it is uncertain whether a document was produced by a
computer in the course of its ordinary use would a certificate under Section 90A(2) be necessary.
This approach would make it even easier to admit the monthly bank statements.
Answer BOTH parts of this question
Bank Kaya commences an action to recover a loan sum from its customer, Yen Sdn. Bhd.. In the
course of negotiations for settlement, an email is sent by an officer of Bank Kaya to Yen Sdn.
Bhd. accepting the terms of settlement proposed by the General Manager of Yen Sdn. Bhd. at a
lunch meeting held the previous day. The Plaintiff, Bank Kaya, wishes to adduce the email in
evidence as part of its case. Bank Kaya does not propose to call the officer, an expatriate (who
has since returned to his home country), who had drafted and sent the email as a witness to
tender the email. Instead, Bank Kaya wishes to rely on a Certificate issued under section
90A(2) of the Evidence Act 1950. However, the Certificate is not signed by the person in charge
of the computer which “produced” the email but was instead signed by the Senior Manager of
Bank Kaya. Counsel for Bank Kaya wishes to call the Senior Manager as a witness to tender the
email. Counsel for Yen Sdn. Bhd. objects to the admission of the email on the ground that the
email does not correctly reflect what the General Manager of Yen Sdn. Bhd. had said during the
lunch meeting and that the maker of the email ought to be called.
The Certificate signed by the Senior Manager does not state whether he is responsible for the
management of the operation of the computer or for the conduct of the activities for which the
computer was used. The Certificate also does not state what the Senior Manager is responsible
for.
(a) Can Bank Kaya call the Senior Manager to tender the email in evidence under
section 90A of the Evidence Act 1950? Give reasons and cite cases in support of
your answer. (15 marks)
(b) Discuss the interrelationship between the provisions of section 90A(2) and
section 90A(6) of the Evidence Act 1950. (10 marks)
Answer outline
The statement in contention is the email written by the bank officer reflecting the terms of the
settlement agreed upon by the parties over lunch. The maker of statement in the email is the bank
officer, who has since left the country. The Plaintiff Bank does not seek to call him as a witness, and
intends to tender the email through the Senior Manager of the Plaintiff Bank. The email will be an out
of court statement, tendered in court by someone other than the maker, and the purpose of
tendering such email would be the truth of the matters stated within the email. Hence, it would
tantamount to hearsay PP v Subramaniam.
As a general rule, hearsay statements are not admissible in court, unless it falls within one of the
exceptions.
Since the Plaintiff Bank seeks to tender the email under s90A, the first matter to discuss would be
whether s90A is an exception to hearsay. The reading of s90A(1) shows that it is an exception to
hearsay - statements contained in a document produced by a computer, shall be admissible as
evidence of any fact stated therein if the document was produced by the computer in the course of its
ordinary use, whether or not the person tendering the document is the maker the document or
statement.
The conditions of admissibility under section 90A are as follows:
1. The document was produced by computer. Here this is clearly satisfied. Section 90A(5) provides
that a document shall be deemed to have been produced by a computer whether it was produced
directly or by means of any appropriate equipment and whether or not there was direct or indirect
human intervention. Here the document in issue is an email, which even though produced by human
intervention (the writing of the email), still satisfies Section 90A(5)
2. The document was produced by the computer in the course of its ordinary use. Here the email
produced by the computer would most likely have been produced by the computer in the course of
its ordinary use. In Gnanasegaran, the court held that there were two ways of proving this.
The first method as explained by Gnanasegaran is it may be proved by a certificate as provided in

subsection (2). The certificate must be signed by a person who either before or after the production
of the document by the computer is responsible for the management of the operation of the
computer for the conduct of activities for which the computer is used. It shall be sufficient for the
matter to be stated to the best of the knowledge and believe of the person signing the certificate-
section 90A(3)(a). The question states that the Certificate is not signed by the person in charge of the
computer which “produced” the email but was instead signed by the Senior Manager of Bank Kaya.
This does not comply with the requirements under subsection (2).
Although, section 90A(3)(b) states that this certificate shall be prima facie proof of all matters stated
in it without proof of signature of the person who gave the certificate. It is for the party producing
the certificate to ensure that the matters on which is seeks to rely upon are stated in the certificate,
only then will the certificate act as prima facie proof of the matters stated in it as provided for in
s90A(3)(b). Here, the Certificate signed by the Senior Manager does not state whether he is
responsible for the management of the operation of the computer or for the conduct of the activities
for which the computer was used. The Certificate also does not state what the Senior Manager is
responsible for. Therefore, the content of the certificate is incomplete for Bank Kaya to rely on s90A.
[Also, based on subsection 4, where this certificate is tendered, it shall be presumed that the
computer in question was in good working order and was operating properly in all respects
throughout the material part of the period during which the document was produced. But given that
the certificate is defective, this would not apply either.]
Alternatively, it may be proved by calling a witness to tender the document. The witness must be a
person who either before or after the production of the document by the computer is responsible for
the management of the operation of the computer or for the conduct of activities for which the
computer is used. This witness should be able to testify to the matters presumed under subsection 4,
which is that the computer in question was in good working order and was operating properly in all
respects throughout the material part of the period during which the document was produced.
Therefore, even though the certificate cannot be relied upon section 90A can still be used. Should the
senior manager be such person who either before or after the production of the document by the
computer is responsible for the management of the operation of the computer or for the conduct of
activities for which the computer is used, then he may tender the email.
If these two conditions are satisfied the email will be admissible. Explanation 3 to section 62
provides that a document produced by computer is primary evidence. Section 64 provides that
documents must generally be proved by primary evidence.
Note also the recent High Court decision Bespile Sdn Bhd v Asianshine Sdn Bhd & Ors, where the
Court held that it is only in cases where it is uncertain whether a document was produced by a
computer in the course of its ordinary use would a certificate under Section 90A(2) be necessary.
In Petroliam Nasional Bhd v Khoo Nee Kiong (2003), the court accepted that e-mails, instant
messages and digital photographs stored in a computer constituted documents produced by a
computer. It also acknowledged that an email could be authenticated by “appearance, contents,
substance, internal patterns, or other distinctive characteristics, taken in conjunction with
circumstances”. Further circumstantial evidence including the document’s own distinctive
characteristics and the circumstances surrounding its discovery could also establish its authenticity.
However, the High Court discussed the use of s90A with regard to emails in Avnet Azure Sdn Bhd v
Eact Technologies Sdn Bhd and Sapura Research Sdn Bhd(2011). In this case, The document in
issue was a server generated email which was tendered as proof of delivery together with a
certificate under section 90A(2)EA 1950. Avnet contended that once this computer evidence was
admitted upon production of the certificate, the truth of the contents must be held proven. Avnet’s
witness P4, also explained the circumstances of the contract in detail. Despite the section 90A
certificate and oral testimony the court questioned the admissibility and evidential weight of email
messages. The Court held the view that an email without the maker being called was inadmissible. The
Court held that Avnet had not proved its claim and dismissed its claim. It is submitted that though
section 90A has provided for the admissibility of computer generated documents confusion persists
resulting in inconsistencies in findings by the Courts. However, this may actually be the preferred
approach.
The issue arises from the phrase “document produced by a computer”. Such is often misleading.
In Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & 2 Ors, Justice Richard Malanjum was
concerned that any document, including an invoice, would be admitted regardless of its authenticity as
long as it was printed by a computer. In the information technology age, especially when white collar
crimes are growing rampant and most evidence now come in the form of documents, the law on
hearsay must evolve.
Therefore, a clear distinction must be drawn between documents where its output is a mere
regurgitation of its input, such as emails and SMS/Whatsapp texts, and one which is a product of the
computer’s processing and calculation. The former may be inadmissible hearsay though the latter may
be admitted.
To extend the use of s90A would be an affront to the rationale of the rule against hearsay and the
logic behind its exceptions. Hearsay evidence carries inherent risks of mistake, concoction and
fabrication. The exceptions to the rule against hearsay all work towards minimizing such risks. To
allow emails, SMS, text messages of any sort to come in as hearsay evidence merely by relying on
s90A would be disregarding the recognised hearsay risks and would do nothing to minimize such.
[As explained by the Court of Appeal in Kobra Taba Sedali, a decision on the conjuctiive reading is
s32(1)(i) and (j), when interpretating statutory provisions relating to hearsay, the provision must be
considered as “a whole as well as the underlining jurisprudence relating to hearsay rule and liberty
of the subject and the constitutional guarantees to achieve fair trial by means of procedural law”. To
interpret s90A to admit emails/SMS to establish a substantive element of the offence, as compared to
the nexus to the charge would give the defence much to complain about. Also to allow such
emails/SMS to be introduced by the prosecution as substantive evidence without calling the maker
the integrity of administration of criminal justice will be compromised. ]
[The Court of Appeal in Kobra Taba Seidali did not address s90A, but propounded upon the
approach to be used when dealing with the interpretation of statutory exceptions to the rule against
hearsay in deciding whether s32(1)(i) and (j) should be read disjunctively or conjunctively].
Where this approach is favoured, s90A cannot be used to admit the emails. Ideally, the officer of Bank
Kaya who sent the email should be called as a witness. Alternatively, one of the other available
hearsay exceptions may be of use, such as s73A.
9.5 SECTION 90D, 90E AND 90F-
Question 1(b) November 2018
Discuss admissibility of evidence under Mutual Assistance in Criminal Matters. (10 marks)
ANSWER OUTLINE
The admissibility of evidence obtained under Mutual Assistance In Criminal Matters is governed by
Chapter VA of the Evidence Act 1950.
The mechanism on obtaining evidence on this issue is governed by the Mutual Assistance in Criminal
Matters Act 2002 [Act 621]. The admissibility of such evidence however is governed by sections 90D,
90E and 90F.
Section 90D provides for the applicability of the provisions. One noteworthy point is that it only
applies in criminal cases.
Section 90E provides for the major evidential requirements and covers several critical issues. Section
90E(1) provides as a general rule that any testimony, statement or deposition, together with any
document or thing exhibited or annexed to such statement or deposition, that is received by the
Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act
2002 in respect of the criminal matter, shall be admissible as evidence. This provision appears to
allow for a witness’s testimony to be admissible, even for the truth of the matter states, without the
witness having to attend court.
The main purpose of this section appears to be to allow for the ease of collection and tendering of
evidence where witnesses in criminal cases are abroad. In this situation, the evidence may well be
hearsay as it may be tendered for the truth of the matter stated- Subramaniam. As such, it functions
as a hearsay exception.
(It is submitted that there is however merit in the rule against hearsay, in that hearsay evidence be as
a general rule, inadmissible. This is because hearsay evidence is inter alia inherently open to the
risks of concoction, fabrication, mistake, it is not given on oath and there is no right to cross examine
the witness- See Teper, and Recaliva Design. Critically assess whether the risks of hearsay is
addressed in these provisions.)
Section 90E(2) to (9) provide for requirements which must be fulfilled before statement is
admissible under these provisions. These requirements govern the manner in which the statement is
to be collected.
Section 90E(2) provides in a nutshell that the testimony, statement or deposition shall be taken
under oath the equivalent of an oath, or as it would in the court of the relevant nation in issue. (This,
is submitted, is to remove the risk of not given on oath as explained by Teper above.)
Subsection (3) provides that the testimony, statement or deposition shall be signed or certified by a
judge, magistrate or officer in or of the foreign country to which the request was made; and bear an
official or public seal of the foreign country; or a Minister of State, or a department or officer of the
government of the foreign country.
Subsection (4) provides that a certificate by the judge, magistrate or officer referred to in subsection
(3) shall, without further proof, be admitted in the proceedings as conclusive evidence of the facts
contained in the certificate.
Subsection (5) provides that all courts in Malaysia shall take judicial notice of the official or public
seal referred to in subsection (3).
Subsection (6) provides that the testimony taken under subsection (2) may be reduced to writing or
be recorded on a tape, disk or other device from which sounds or images are capable of being
reproduced or may be taken by means of technology that permits the virtual presence of the person
in Malaysia.
Subsection (7) provides that where the testimony has been reduced to writing or recorded on a tape,
disk or other device from which sounds or images are capable of being reproduced, the writing, tape,
disk or other device shall be authenticated as provided under subsection (3).
Subsection (8) provides that where the testimony has been made by means of video or other means
which permits the virtual presence of the person in Malaysia, that testimony shall be deemed to have
been given in Malaysia. This appears to suggest means like Skype/Facetime/Whatsapp Videochat.
And subsection (9) provides that for the purposes of this Chapter, the testimony, statement or
deposition need not be in the form of an affidavit; or constitute a transcript of a proceeding in a
foreign court.
Upon receipt of the testimony, statement, deposition pursuant to the request made by the Attorney
General under Mutual Assistance in Criminal Matters Act 2002 [Act 621], the Attorney General of
Malaysia (or a person authorised by the AG) is to issue a certificate as well to certify that the
testimony was indeed received by the Attorney General pursuant to a request made under the
Mutual Assistance in Criminal Matters Act 2002. This certificate shall on its production without
further proof be admitted in the proceeding as conclusive evidence of the facts contained in the
certificate. This is provided for in section 90F.
9.6 MIXED QUESTIONS
Dubious Builders Sdn Bhd (DBSB) accepted Bingsu Sdn Bhd’s (BSB) Terms of Supply for the
sale and delivery of two hundred tons of steel bars at the total purchase price of RM300,000.00
and faxed it to BSB. On DBSB’s instructions, Kimchi, BSB’s manager arranged for the delivery of
the steel bars to Baro’s construction site. Baro was present to acknowledge receipt of the steel
bars and stamped the delivery notes. A week later Maria, BSB’s accounts clerk issued DBSB an
invoice for RM300,000.00 for the supply and delivery of the two hundred tons of steel bars.
DBSB’s manager, James, in a WhatsApp to Maria claimed that only one hundred and eighty tons
of steel bars were delivered. James also claimed that the payment for the steel bars was not due
since there was an oral arrangement with Kimchi that the steel bars supplied was on credit
terms payable twelve months after the delivery. James informed that DBSB would not have
purchased the steel bars but for the oral arrangement. Maria replied through an email denying
James’s allegation and demanded for full payment. DBSB failed to pay. BSB has commenced
legal action against DBSB for RM300,000.00 for the supply and delivery of two hundred tons of
steel bars. Kimchi has since returned to Korea. Baro is now working in Singapore.
Bingsu Sdn Bhd seeks your advise on the admissibility of the following evidence:
(a) The faxed copy of the Terms of Supply; (8 marks)
(b) The delivery notes; and (8 marks)
(c) The oral arrangement. (9 marks)
ANSWER OUTLINE
There are several pieces of evidence in this question, namely the faxed copy of the Terms of Supply;
the stamped delivery notes as acknowledge receipt of the steel bars, the invoice issued by the
accounts clerk, Maria; the Whatsapp message; the oral agreement; and the email. However, the
question does not seek an answer on all the issues as such we will confine our answer to the
questions asked only.
(a) The faxed copy of the Terms of Supply
As BSB has commenced legal action against DBSB for RM300,000.00 based upon their Terms
of Supply. The cause of action is thus for breach of contract. As such, BSB will have to prove the
terms of their contract, which is found in the terms of supply. Section 91 provides that when
the terms of the contract have been reduced into writing no evidence can be given of the terms
except the contract itself or secondary evidence where allowed by the Act.
Dubious Builders Sdn Bhd (DBSB) accepted Bingsu Sdn Bhd’s (BSB) Terms of Supply for the
sale and delivery of two hundred tons of steel bars at the total purchase price of
RM300,000.00 and faxed it to BSB. This means that DBSB signed the Terms of Supply and
faxed it over to BSB. As such, the signed Terms of Supply in the hands of DBSB is the primary
evidence (section 62 EA 1950). The faxed copy in the hands of BSB is secondary evidence,
namely under section 63(b) as it is a copy made from the original by mechanical processes,
which in themselves ensure the accuracy of the copy. (In PP v Jawan Ak Empeling & Anor
[1996], the court held a fax copy to be a document within section 3 of the EA.) The issue
therefore is whether BSB may tender the fax copy of the agreement in court to prove the terms
of supply.
Section 61 stipulates that the content of a document may be proved by primary or secondary
evidence. However, based on section 64, Documents must be proved by primary evidence
except where section 65 applies. Section 65(1) stipulates the legally legitimate reasons for not
being able to tender primary evidence in court. Based on the applicable paragraph in section
65(1), section 65(2) stipulates the types of secondary evidence which is admissible.
It appears that the most relevant provision is section 65(1)(a)(i) which provides that the
original is shown or appears to be in the possession or power of the person against whom the
document is sought to be proved. This is because the primary evidence is in the hands of
DBSB, the Defendant. The Plaintiff BSB will have to prove this according to section 104. Section
65(1)(a) requires that notice to produce pursuant to section 66 be sent to the Defendant. The
requirement to send the notice to produce is a mandatory requirement as section 66 stipulates
that secondary evidence of the contents of the documents referred to in paragraph 65(1)(a)
shall not be given unless the party proposing to give such secondary evidence has previously
given to the party in whose possession or power the document is, or to his advocate, such
notice to produce it as is prescribed by law. If the Defendant DBSB complies with the notice to
produce and tenders the primary Terms of Supply, such will be used in evidence, if it does not,
the Plaintiff BSB is allowed to tender any secondary evidence [section 65(2)(a)], and this
would include the fax copy as it falls under the definition of secondary evidence under section
63(b).
(b) The delivery notes
On DBSB’s instructions, Kimchi, BSB’s manager arranged for the delivery of the steel bars to
Baro’s construction site. Baro was present to acknowledge receipt of the steel bars and
stamped the delivery notes. Kimchi has since returned to Korea. Baro is now working in
Singapore.
As part of proving its case, BSB will have to prove that they have performed their obligations
under the contract, as payment will only be due upon delivery. BSB will be arguing
performance on their part of the contract and non-performance on DBSB’s part by failure to
pay.
The best evidence would be if Kimchi and Baro themselves appeared in court and testified as
to the delivery and receipt of the goods. However, it appears that both of them are out of the
country, and may well be unavailable to return. In that circumstance, the next best evidence
would be the delivery notes.
The delivery notes will be relevant to show performance of the contract on the part of BSB
which is a fact in issue as payment will only be due upon delivery.
Proving performance is especially important as DBSB’s manager, James, that only one hundred
and eighty tons of steel bars were delivered. As such, claiming non-performance of the
contract.
Although it is generally relevant, in the absence of Baro and Kimchi in court, the delivery notes
will be tendered for the truth of the matters stated in it, and thus will be hearsay
(Subramaniam v PP, Myers v DPP ). Hearsay evidence is inadmissible unless an exception
applies. The most relevant exceptions are section 32(1)(b) and section 73A.
Arguably, the portion of the delivery note in issue is the portion containing the acknowledge
receipt and the stamp, this was done by Baro, as such Baro will be treated as the maker.
In order for section 32(1)(b) to apply, certain requirements must be fulfilled.
(1) It must be an out of court statement of a relevant fact. This is satisfied.
(2) One of the preconditions regarding the unavailability of the maker to testify must be
satisfied, the applicable one here is that the maker, Baro’s attendance cannot be
procured without an amount of delay or expense which under the circumstances of the
case appears to the court unreasonable. BSB will have to prove this – section 104. Given
that Baro is working in Singapore, and Singapore a neighbouring nation to Malaysia, this
requirement will be hard to prove.
(3) The statement was made in the ‘ordinary course of business’ and includes statements in
the discharge of a professional duty. Here, BSB will have to prove what the ordinary
procedure is when goods are received, there must be prove on this issue- Syarikat
Jengka Sdn Bhd v Abd. Rashid; Sim Tiew Bee v PP v PP. Further, the person who
testifies in court and tenders this delivery note must be someone who has personal
knowledge of the ordinary course of business at the time the statement was
made- Tempil Perkakas Sdn Bhd v Foo Sex Hong.
Once this is done, the court will be able to decide whether the manner in which the
goods were received was part of the ordinary course of business. Here, it is worth
arguing that Baro was job to receive the goods, and to acknowledge receipt.
(4) The maker must have personal knowledge of the matters in the statement. Section
32(1)(b) is confined in its operation to a statement which is based on the personal
knowledge of the maker. Section 32(1)(b) only renders admissible first hand hearsay –
Allied Bank (Malaysia) Bhd v Yau Jiok Hua [1998] 6 MLJ 1(HC). This is likely to be
satisfied as the facts state that Baro himself received the goods and stamped to
acknowledge receipt of the goods.
As a whole, section 32(1)(b) is unlike to be satisfied because it would be difficult to convince
the court that Baro’s Baro’s cannot be procured without an amount of delay or expense which
is unreasonable as he is in Singapore only.
A more likely provision to apply is section 73A. This is because, the court under section 73A
has the discretion to dispense with the maker’s attendance.
The requirements for section 73A to apply are as follows:
(1) The section only applies in civil proceedings. This is satisfied.
(2) Direct oral evidence of the fact would have been admissible. This is also satisfied, since
if Baro attends court, his testimony would be admissible.
(3) The statement is in a document. The Delivery note is written.
(4) The original document must be produced. There is nothing indicating this cannot be
done.
(5) Personal knowledge on the part of the maker, this requires either Section 73A(1)(a)(i)
or (ii) has to be satisfied. Based on Section 73A(4), Baro is the maker as he would have
acknowledged receipt. Here, since he himself received the goods and he himself
acknowledged receipt, he would have personal knowledge.
(6) The maker is available and appears as a witness, or the maker is unavailable and the
preconditions in the proviso are satisfied or the court exercises it’s discretion under
s73A(2)(a). Here, the maker, Baro will be unlikely to appear in court. Besides that, it is
unlike that he would satisfy any of the reasons for unavailability, as the most relevant
one is that if he is beyond the seas and it is not reasonably practicable to secure his
attendance. Being in Singapore is unlikely to fall within beyond the seas, and regardless,
it is unlikely that BSB would be able to prove to the court that it is not reasonably
practicable to secure his attendance. The final option for this requirement is that the
court exercise it’s discretion under section 73A(2)(a) to dispense with the need to I call
the maker, though he may be available. This was done in Allied Bank (Malaysia) Bhd v
Yau Jiok Hua.
It appears, that should the court exercise its discretion to dispense with the makers
attendance, then then the delivery note will be admissible.
(c) The Oral Agreement
James, DBSB’s manager, also claimed that the payment for the steel bars was not due since
there was an oral arrangement with Kimchi (BSB Manager) that the steel bars supplied was on
credit terms payable twelve months after the delivery. James informed that DBSB would not
have purchased the steel bars but for the oral arrangement. Maria, BSB’s accounts clerk
replied denying James’s allegation and demanded for full payment. As such, in order for DBSB
to rely upon the oral agreement, they would first have to prove it was made and secondly,
argue that it can be read as part of the terms of Supply, although not expressly provided for in
the written form of the Terms of Supply.
The relevant provisions are section 91 and 92 of the Evidence Act. Section 91 stipulates
that when the terms of a contract have been reduced by the parties to the form of a document
no evidence shall be given in proof of the terms of the contract except the document itself, or
secondary evidence of its contents. The content of the contract between DBSB and BSB have
been reduced to the form of the Terms of Supply. Therefore, the Terms of Supply have to be
tendered in court. Such may be done either by primary or secondary evidence, as addressed in
question (a).
The core issue at this juncture is whether the oral agreement is admissible. The oral
agreement seeks to introduce a term which is not present in the Terms of Supply. Section 92
stipulates as a general rule that once the terms of the contract, here, the terms of supply, have
been proved according to section 91, [done under question (a)] no evidence of any oral
agreement shall be admitted as between the parties for the purpose of contradicting, varying,
adding to, or subtracting from its terms. However, there are 6 exceptions to this found in
paragraph (a) to (f). The most relevant of these is section 92(c), which provides that an oral
agreement may be admissible to contradicting, varying, adding to, or subtracting from the
terms of the Terms of Supply if the oral agreement constitutes a condition precedent to the
attaching of any obligation under any such contract. Here, DBSB argues that DBSB would not
have purchased the steel bars but for the oral arrangement. As long as this oral agreement was
made before the signing of the Terms of Supply, it is submitted to constitute a condition
precedent. It is critical that it must be made prior to the signing [condition precedent- and see
illustration (b)]. A case on point is Tan Chong Motors, here the vendor of a car had orally
warranted to the purchaser that the car satisfied the requirements to be exported to a foreign
nation. Upon this, the purchaser agreed to buy the car. This term was however not found in the
formal agreement. It was later found that the car did not meet the export requirements. The
court held that the warranty was a condition precedent and thus admissible under section
92(c). This would appear to be similarly applicable to DBSB.
The second possible argument is that the Terms of Supply does not provide for when payment
must be made, and as such is silent on the issue. The relevant provision is proviso (b), which
provides a separate oral agreement is admissible as to any matter on which a document is
silent and which is not inconsistent with its terms. An illustration on point is illustration (f)
which states: “A orders goods of B by a letter in which nothing is said as to the time of
payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods
were supplied on credit for a term still unexpired.” This would appear to fit our facts, the only
requirement is that the Terms of Supply must be silent on the issue of time of payment.
Stooge Sdn. Bhd. (‘Company’) is engaged in the business of manufacturing wrought iron gates
and window grills for installation in residential and commercial premises. The Company
approaches Comedy Bank Bhd. (‘Bank’) for a loan of RM5 million in order to finance the
purchase of new machinery and for additional working capital. The loan is secured by a charge
over a piece of land situated in Bangi owned by the Company.
Additionally, the Directors of the Company, Curly, Larry and Moe, furnishes a joint and several
guarantee to the Bank. The joint and several guarantees further provide, inter alia, that the
loan is repayable on a written demand being made to them.
The Company faithfully makes payments of its monthly installments for six (6) months but has
since defaulted in its repayment due to declining business caused by a regional financial crisis.
Curly, who is the principal Director of the Company, writes a letter marked “Without Prejudice”
(‘the Letter’) on behalf of the Company to the Bank furnishing the reasons that the Company
was unable to meet its financial obligations and seeking the Bank’s indulgence in waiving the
Company’s liability and obligation to repay the outstanding sum due to the unfortunate
circumstances. The Bank replies rejecting the request.
The Bank then issues notices of demand (‘the notices of demand’) to the Company and the
guarantors. The AR cards in respect of the notices of demand were returned to the Bank with
acknowledgements indicating receipt of the notices of demand by the Company and the
guarantors. The Bank has also been sending periodical computer generated monthly
statements to the Company since the loan was disbursed (‘the monthly statements’).
As there was still no repayment made in response to the notices of demand, the Bank instructs
their solicitors to institute a suit against the Company and the guarantors, respectively. In the
course of the preparation for the trial, the solicitors for the Bank are instructed that the
original documents comprising the Loan Agreement, the Charge and the Guarantee (‘the
Documents’) have been misplaced in the course of the Bank relocating to new premises a
month ago. Concerted efforts made to locate the originals of the Documents have proved Mile.
The Bank however, has photocopies of the original documents (‘the photocopies of the
Documents’). In their pleadings, the Company and the guarantors have denied executin g the
Documents and have also denied receiving the notices of demand.
Suggested answer
(a) the photocopies of the Documents;
The original documents comprising the Loan Agreement, the Charge and the Guarantee have
been misplaced and cannot be found. However the bank has photocopies of the documents. It
will be important to tender these documents to prove the existence of and the terms of the
loan agreement, the charge and the guarantee, especially since the defendant company and the
guarantors (Curly, Larry and Mo) have denied executing the documents.
Section 91 provides that when the terms of a contract have been reduced by the parties to the
form of a document then no evidence shall be given in proof of the terms of the contract except
the document itself (primary evidence) or secondary evidence where allowed by the Evidence
Act. In other words, proof of the terms of shall be by the document itself or secondary
evidence.
Section 61 provides that the contents of a document may be proved by primary or secondary
evidence. The original documents would be primary evidence as provided in section 62.
However the originals have been misplaced. The photocopies would be secondary evidence
under section 63(b) i.e. copies made by mechanical means which by themselves ensure the
accuracy of such copies. In PP v Lee Kok Nam the court held that a photocopy being a copy
made from the original by a mechanical process would be secondary evidence under section
63(b).
Section 64 provides that documents must be proved by primary evidence unless the party can
satisfy one of the conditions for the admissibility of secondary evidence as laid down in
section 65(1). Section 65(1) provides for the situations where secondary evidence of the
existence or contents of a document admissible in evidence may be given. The applicable
situation here would be section 65(1)(c) which provides that secondary evidence can be given
when the original document has been lost. Section 104 provides that the burden of satisfying
any of the preconditions in section 65(1) is on the party who wishes to tender the secondary
evidence. See illustration (b).
Section 65(2) provides for the type of secondary evidence which may be given in each of the
circumstances in section 65(1). Section 65(2)(a) provides that in cases referred to in section
65(l)(c) any secondary of the contents of the document is admissible. This would clearly
include photocopies. Hence provided the Comedy Bank can prove that the originals have been
misplaced they can tender the copies.
[Optional - Can discuss Noliana bt Sulaiman]
(b) The Letter
Here the letter can be admitted as an admission. Admissions are an exception to the hearsay
rule. Section 17(1) defines an admission as a statement, oral or documentary which suggests
an inference as to any fact in issue or relevant fact and which is made by any of the persons
and under the circumstances mentioned in section 18 to 20. Here the statement in the letter
admitting the debt, and seeking a waiver of the obligation to repay owing to its declining
business caused by the regional financial crisis is an admission as defined in section 17(1) as it
is a statement in a document suggesting an inference as to a fact in issue made by the Curly the
Principal Director on behalf of the defendant company.
Section 18(1) provides that statements by a party to the proceeding or by an agent to any such
party whom the court considers expressly or impliedly authorized by him to make them are
admissions. Here Curly the Principal Director of Stooge Sdn Bhd, would clearly have the
authority to make admissions on behalf of Stooge Sdn Bhd.
Section 21 provides that admissions are relevant and can be used against the maker or his
representative in interest. Hence the admission in the letter can be used against Stooge Sdn
Bhd to prove the debt.
However, the question is whether section 23 which deals with 'without prejudice
communications' would prevent the admission from being used against Stooge Sdn Bhd.
Section 23 provides that no admission is relevant in civil cases if it was made upon an express
condition that evidence of it is not to be given or under circumstances from which the court
can later infer that the parties agreed together that evidence of it should not be given. Here the
letter was marked 'Without Prejudice'. The court will have to see if section 23 will apply.
In Malayan Banking v Foo See Moi and Dusun Desaru Sdn Bhd v Wang Ah Yu, the courts
said that two conditions are required for this rule to apply:
a. some individuals must be in a dispute and that dispute led them to negotiate with one
another; and
b. the communication between the parties must contain suggested terms that would
finally lead to the settlement of the dispute.
On the facts here there is nothing to suggest that the letter was a communication made by
Stooge Sdn Bhd in the course of negotiations with Comedy Bank Bhd towards the settlement of
the dispute. In Ted Bates (M) Sdn Bhd v Balbir Singh Jholl, the court held that a letter in
which the borrower admitted a debt and requested for time to repay the sum did not fall
under section 23 and was admissible as there was no evidence that the admission was made in
the course of negotiations. Hence the admission is relevant. Although Stooge Sdn Bhd was not
seeking an extension of time but a waiver of the loan, the same principle would apply and as
per Ted Bates the admission was not made in the course of negotiations and hence section 23
will not apply.
As to the mode of proof, the original letter would be primary evidence as defined in section 62
and section 64 provides that generally the contents of a document must be proved by primary
evidence. Hence the letter can be admitted.
(c) the notices of demand
The question does not seem to ask about the AR Cards. Also there is not much information
that has been provided in the question regarding the notice of demand. Please see the detailed
answer to Question 1 October 2009 in the Hearsay chapter of your Revision Guide. Note
however the facts are not the same and your answer has to be modified as far less facts have
been provided here. Also this part will only carry about 6 to 7 marks.
Things to note however are that the facts stipulate that the joint and several guarantees
provide that the loan is repayable on a written demand being made to them. As such it is
important to prove that the notice of demand has been send. Determine whether the notice of
demand is hearsay, who is the maker, and discuss sextion 32(1)(b) and sextion 73A.
(d) the monthly statement
The computer generated monthly statements will be relevant as they would show the
payments and the total outstanding under the loan. Section 90A provides that in criminal or
civil proceedings, a document or a statement contained in such a document shall be admissible
as evidence of any fact stated therein if the document was produced by the computer in the
curse of ordinary use, whether or not the person tendering the same is the maker of such
document or statement.
The conditions of admissibility are as follows:
1. The document was produced by computer. Here this is clearly satisfied. Section 90A(5) provides
that a document shall be deemed to have been produced by a computer whether it was
produced directly or by means of any appropriate equipment and whether or not there was
direct or indirect human intervention.
2. The document was produced by the computer in the course of its ordinary use. Here the monthly
statements produced by the computer would most likely have been produced by the computer
in the course of its ordinary use. In Gnanasegaran, the court held that there were two ways of
doing this.
The first method as explained by Gnanasegaran is it may be proved by a certificate as

provided in subsection (2). The certificate must be signed by a person who either before or
after the production of the document by the computer is responsible for the management of
the operation of the computer for the conduct of activities for which the computer is used. It
shall be sufficient for the matter to be stated to the best of the knowledge and believe of the
person signing the certificate- section 90A(3)(a). This certificate shall be prima facie proof of
all matters stated in it without proof of signature of the person who gave the certificate
-section 90A(3)(b). Also, based on subsection 4, where this certificate is tendered, it shall be
presumed that the computer in question was in good working order and was operating
properly in all respects throughout the material part of the period during which the document
was produced.
Alternatively, it may be proved by calling a witness to tender the document. The witness must
be a person who either before or after the production of the document by the computer is
responsible for the management of the operation of the computer or for the conduct of
activities for which the computer is used. This witness should be able to testify to the matters
presumed under subsection 4, which is that the computer in question was in good working
order and was operating properly in all respects throughout the material part of the period
during which the document was produced.
If these two conditions are satisfied the computer printouts will be admissible. Explanation 3
to section 62 provides that a document produced by computer is primary evidence. Section 64
provides that documents must generally be proved by primary evidence. In Gnanasegaran
a/I Pararajasingham, the court admitted computerized bank statements under section 90A
to show the movement of funds between the appellant's client and office accounts. Mahadev
Shankar said that section 90A was an updating of the best evidence rule and it was no longer
necessary to call the actual teller or bank clerk who keyed in the data to come to court
provided he did so in the course of the ordinary use of the computer.
Note the recent High Court decision Bespile Sdn Bhd v Asianshine Sdn Bhd & Ors, where the
Court held that computerized bank statements are clearly generated and produced by
computers in the ordinary course of business of the respective banks and the court can take
judicial notice under section 57 pf the Evidence Act of the fact that bank statements in this era
of computers and information technology are invariably produced by computers. The court
also relied on 90A(6) . The court held that it is only in cases where it is uncertain whether a
document was produced by a computer in the course of its ordinary use would a certificate
under Section 90A(2) be necessary. This approach would make it even easier to admit the
monthly bank statements.
Answer ALL parts of the question
In a civil suit between a Bank as the plaintiff and the Company as well as the Directors of
the Company who were Guarantors for an amount of RM20 million due and owing by the
Company, the Bank has to prove that:
i. There was a written contract between the Bank and the Company as well as the
Bank and the Guarantors.
ii. Pursuant to the loan documents, there was disbursement of the loan of RM20
million to the Company.
iii. There was service of the letters of demand on the Company and the Guarantors.
Pursuant to the above, answer the following questions:
a) The principal director of the Company wrote a letter on behalf of the company to the
Bank explaining as to why the Company could not meet the payment on time and
seeking that the Bank absolved the Company from its repayment obligation as the
Company’s predicament was due to unforeseen circumstances. The letter was marked
“without prejudice’. The Bank replied promptly rejecting the request. Is that letter
admissible as evidence in the trial? (8 marks)
b) Since the disbursement of the loan, the Bank has been sending monthly statements to
the Company. The monthly statements were generated by the Bank’s computer, into
which the necessary information has been programmed. No queries have been raised by
the company in respect of the Bank’s statements, at any time. Are the monthly
statements admissible as evidence in the trial? (7 marks)
c) The original of the Loan Agreement, the Charge, the Guarantee, the correspondence and
all the documents in the possession of the Bank have been misplaced. Efforts were made
to trace the originals but it cannot be located. Photocopies of the lost originals were
forwarded to the Bank’s solicitors in whose possession they are now. In what manner
the Bank would be able to establish its claim? (10 marks)
Answer outline
(a) See Confessions and Admissions topic for answer.
(b) See answer to Question 4 October 2013 above
(c) See answer to Question 4 October 2013 above
Chepat Kaya Sdn. Bhd. (the Company) has been incorporated to undertake the manufacture
and sale of customised furniture from m rubber wood. It applied for and obtained a loan of
RM10 million from ABC Bank Bhd. (the Bank) for the purchase of machinery and for working
capital. The loan was secured by a third party charge over the land owned by the Company’s
subsidiary Laju Kaya Sdn. Bhd. and on which the Company’s showroom was situated. The
directors of the Company, Jay, Kay and Ray have also provided a joint and several guarantee to
the Bank which provides, among others, that the loan is repayable on written demand being
made to them. For about a year, the Company was punctual in the payment of its monthly
instalments but suddenly and contrary to its projections, sales slowed and the Company was
unable to meet its obligations to the Bank. Its principal director Jay wrote a letter on behalf of
the Company to the Bank (the said Letter) explaining the situation and seeking that the Bank
absolved the Company from its repayment obligation as the Company’s predicament was due
to unforeseen circumstances. That letter was marked “without prejudice”. The Bank replied
promptly rejecting the request.
As the Company thereafter made no instalment payments, the Bank issued letters of demand to
the Company, the chargor and the guarantors. The AR Cards in respect of each of these letters
were returned to the Bank with the necessary postal endorsements denoting that they had
received the letters respectively. Since the disbursement of the loan, the Bank has been sending
monthly statements to the Company. These monthly statements are generated by the Bank’s
computer, into which the necessary information has been programmed. No queries have been
raised by the Company in respect of the Bank statements, at any time. In the course of
photocopying the Loan Agreement, the Charge, the Guarantee, the correspondence and all the
documents in the possession of the Bank, for the Bank’s solicitors, the Bank’s documents’ clerk
misplaced the originals. Despite-all efforts the originals cannot be located. However the
photocopies were forwarded to the Bank’s solicitors in whose possession they are now.
The Bank’s suit against the Company and the guarantors is to be heard soon. The Defendants
have denied that they executed the documents or the said Letter or that they received the
Letters of Demand.
You are retained to act for the Bank. Identify the evidential issues and how you would
establish the Bank’s case against the defendants. (25 marks)
Class activity
1. Letter from Chepat Kaya Sdn Bhd to the Bank explaining the situation and seeking that the
Bank absolved the Company from its repayment obligation as the Company’s predicament was
due to unforeseen circumstances. That letter was marked “without prejudice”.
2. Letters of demand issued by the bank & AR Cards
3. Monthly computerised bank statements
4. Photocopies of the Loan Agreement, the Charge, the Guarantee, the correspondence and all the
documents in the possession of the Bank since the originals had been misplaced.
(See answer to Question 4 October 2013 above.)
Answer all parts of this question
Mr. Yap and Encik Kamarul incorporated a company known as Nation Diners Sdn. Bhd. Nation
Diners Sdn. Bhd. obtained a franchise licence from Revenue King Sdn. Bhd. to open two fast-
food outlets in Johor Bahru. Success was short-lived and the downturn in the economy severely
affected business.
Yap and Kamarul then approached Revenue King Sdn. Bhd. for help with their business. As Yap
and Kamarul were prepared to call it quits, they entered into a Memorandum of Understanding
with Revenue King Sdn. Bhd on the following terms:
(a) That Yap and Kamarul would transfer 80% of all their shares in Nation Diners
Sdn. Bhd. To Revenue King Sdn. Bhd. at the nominal price of RM10/-;
(b) That Revenue King Sdn. Bhd. would repay all personal loans totalling
RM100,000/- that Yap and Kamarul had made to Nation Diners Sdn. Bhd.; and
(c) That Revenue King Sdn. Bhd. would be responsible for the liabilities Nation Diners
Sdn, Bhd. including a corporate loan from. Maybank Bhd:
After having received the transfer of 80% of the shares in Nation Diners Shd. Bhd., Revenue
King Sdn. Bhd. refused to repay the personal loans to Yap and Kamarul. Revenue King Sdn. Bhd.
has also failed to pay the instalments on the corporate loan from Maybank Bhd.
i. Revenue King Sdn. Bhd. now disputes the quantum of the personal loans owing to
Yap and Kamarul. Yap and Kamarul regret that their personal loans were not
documented in writing.
However, their loans were recorded in the accounts of Nation Diners Sdn. Bhd.
The accounts were kept by the accounts clerk, Gillian. However, Gillian has since
resigned and has migrated to Australia.
Can the books of accounts be tendered in evidence? (10 mark)
ii. The original books of accounts were destroyed in a kitchen fire in 8th month of
operations.
Is a photocopy of the books of accounts admissible? (5 marks)
iii. Yap and Kamarul also allege that Revenue King Sdn. Bhd. agreed to replace them
as guarantors for the corporate loan. Yap wishes to produce a copy of the email
correspondence following the signing of the Memorandum of Understanding
showing this agreement.
Is the email correspondence admissible? (10 marks)
ANSWER OUTLINE
(i) 1. Discuss if the book of accounts is relevant.
2. However, because it is an out of court statement that is being tendered for the truth of its
contents it would be hearsay and thus inadmissible. Discuss Subramaniam. The hearsay
rule applies to out of court statements in documents as can be seen in the decisions
in Myers v DPP and Patel v Comptroller of Excise and Customs.
3. Hence the book of accounts can only be tendered if it can be brought within one of the
hearsay exceptions.
4. The most likely exception which can apply here would be section 34 which provides for
the admissibility of entries in a book of accounts regularly kept in the course of business.
5. Discuss the conditions of admissibility - For the entry or entries in the book of account to
be admissible, in Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd the
court said that the following conditions must be satisfied:
(a) the entries are in a book of accounts regularly kept in the course of business
(b) the entries refer to a matter into which the court has to inquire. Both appear
satisfied here.
6. Discuss the mode of proof — s.62, s.64
7. Conclusion –
(ii) Discuss section 61
Discuss section 62 which provides that the original book of accounts is primary evidence
Discuss section 63(b). The photocopy of the book of accounts is only secondary evidence.
Discuss Lee Kok Nam.
Discuss section 64. What is the general position? Under what circumstances can secondary
evidence be tendered? Discuss section 65(1). Here in particular you must discuss section
65(1)(c). Note section 104 on who has the burden of proving the pre-condition of
admissibility. Discuss section 65(2)(a).
State your conclusion.
(iii) Issue – Can a copy of the e-mail correspondence be admitted to prove that Revenue
King had agreed to replace Yap and Kamarul as guarantors for the corporate loan although
it is not stated in the Memorandum of Understanding?
Discuss s.91 of the Evidence Act - The first limb of Section 91 provides that when the terms
of a contract, grant or disposition of property have been reduced by or by consent of the
parties to the form of a document then no evidence shall be given in proof of the terms of
the contract, grant or disposition except the document itself (primary evidence) or
secondary evidence where allowed by the Evidence Act. In other words, proof of the terms
shall be by the document itself or secondary evidence. This would suggest that extrinsic
evidence such as the subsequent email is not allowed.
Discuss s.92 of the Evidence Act - Section 92 provides that when the terms of the contract
have been proved according to s.91, no evidence of any oral agreement or statement shall
be admitted as between the parties to any such instrument or their representatives in
interest for the purpose of contradicting, varying, adding to, or subtracting from its terms.
The only way to adduce the evidence is if it falls under one of the provisos (a) to (f) to the
section. Can any of the exceptions apply here? In Syarikat Bunga Raya Timor Jauh Sdn
Bhd v Tractors Malaysia Berhad [1980], a letter to prove a separate agreement was held
not admissible.
Discuss s.90A of the Evidence Act.
Omar, a director of SMS Sdn Bhd, is charged with committing criminal breach of trust of the
company’s funds amounting to RM1 million, which the company had decided to be used for
charity, by transferring the company’s funds in the Bank to his personal account.
The Prosecution wishes to adduce the following documentary evidence:
(i) Form 24 and Form 49 under the Companies Act 1965;
(ii) Minutes of the Board of Directors meetings;
(iii) Debit advice signed by Omar;
(iv) Bank account statements of Omar and of the company; and
(v) A Police Report lodged by another director of the company.

Discuss the admissibility of these documents under the provisions of the Evidence Act
1950. (25 marks)
CLASS ACTIVITY

The Sessions Court allowed Ahmad’s claim against Rafizi for negligently driving his car into
Ahmad’s vehicle and thereby causing injury to Ahmad. The Sessions court further ordered that
damages to be assessed and fixed the hearing for assessment of damages on another date.
Ahmad seeks your advice to adduce the following evidence in support of his claim for damages:
(a) A Whatsapp message from Lala Chong, Ahmad’s mechanic, of the cost of repairs
for Ahmad’s car.
(10 marks)
(b) Hospital Cepatkaya’s medical bill for Ahmad’s hospitalisation and medical
treatment that was signed by Dr Igor, who is now pursuing his specialist training
overseas.
(7 marks)
(c) A photocopy of the receipt of payment made to Sudahlupa Adjusters. The original
has been misplaced by Ahmad.
(8 marks)
ANSWER OUTLINE
(a) Hearsay and Section 90A
(b) Hearsay and Section 73A, section 32(1)(b) and perhaps section 90A
(c) Mode of proof- Primary and secondary evidence. Discussion sections 61-65
Sdn Bhd (Syarikat Onehand). Frank orally agreed with Bob, Syarikat Onehand’s general
manager and Loafer, Bob’s brother that Frank would engage Loafer as his sub-contractor to
carry out the clearing works and that payment to Loafer would be made “back to back”
immediately upon Frank receiving payment from Syarikat Onehand. Frank signed a
memorandum of agreement with Bob who executed it for and on behalf of Syarikat Onehand
for the clearing works.
The memorandum of agreement did not make reference to the oral agreement. Based on the
oral agreement, Loafer carried out the clearing work and submitted his claim for the first
payment of RM600,000.00 to Frank and Frank in turn submitted his first payment claim of
RM1 million to Syarikat Onehand. Syarikat Onehand then paid Frank a partial payment of
RM700,000.00. However, when Loafer asked for his payment of RM600,000.00, Frank refused
to pay and honour the “back to back” payment arrangement and said he would only pay Loafer
after receipt of full payment from Syarikat Onehand.
Loafer has instituted legal action against Frank for RM600,000.00. Bob, has since, fled the
country and his whereabouts is unknown.
Loafer intends to adduce the following evidence at the trial:
(i) The memorandum of agreement;
(ii) The oral agreement; and
(iii) A copy of Loafer’s first progress payment claim for RM600,000.00 that was prepared
by Jenny who is no longer in Loafer’s employment.
Advise Loafer on the admissibility of the abovementioned documents with reference to

the Evidence Act 1950 (Act 56) and decided
cases. (15 marks)
ANSWER OUTLINE
(i) Terms of the MOA- Section 91.

Mode of proof section 61-66. The MOA is signed by Bob and Frank. Not signed by Loafer. It is
anoriginal as against Frank. See section 62 Explanation 1.
(ii) The Oral Agreement was between Frank and Bob. Not Loafer.
Relevancy? Loafer not privy to contract.
If loafer tenders it, then it is hearsay.
Exception, section 32(1)(b)? Applicable to oral statements: Tay Choo Foo @ Tay Chiew Foo
v Tengku Arifaad bin Tengku Mansur & Ors [2008]
Mode of proof- Section 91 and 92.
Is there a contract which has been reduced to writing?
(iii) Loafer’s first progress payment prepared by Jenny. Jenny no longer in Loafer’s employ.
If Jenny does not attend court, then the document is hearsay- Patel; Sim Tiew Bee;…
Exception- Section 32(1)(b), section 73A.
Mode of proof- copy. Discuss sections 61-66.
Bolehcuba Development Sdn Bhd (BDSB) appointed Halus Sdn Bhd (HSB) as its main
contractor to construct and develop a twenty-four (24) storey condominium (Project). HSB
appointed Jaguh Sdn Bhd (JSB) as one of its sub-contractors to carry out electrical wiring
works at the Project. Notwithstanding the progress completion of JSB’s electrical wiring works,
HSB failed to pay JSB in proportion to the progress works that were completed, whereupon JSB
refused to complete the remaining works. BDSB through an e-mail, proposed to pay JSB
directly RM800,000.00 for work done and pay the balance RM400,000.00 within fourteen (14)
days of JSB’s completion of the remaining works and receipt of the architect’s certificate. JSB
through its director, Maha, in a letter agreed with BDSB’s proposal. BDSB paid RM800,000.00
whereupon JSB completed the remaining works and submitted the architect’s certificate. Rosie,
BDSB’s accounts clerk, signed a letter dated 10 January 2017, agreeing to pay the sums due to
JSB within fourteen (14) days. However, BDSB failed to pay JSB. JSB has since commenced legal
action against BDSB and is now preparing to go to trial. JSB has not discovered in the trial date
that Rosie is away in Sabah caring for her ill mother. JSB has requested for an adjournment.
BDSB objects to any adjournment of the trial and has submitted for the trial to proceed. The
Session’s Court Judge has ruled against JSB’s request for an adjournment.
Advise Jaguh on the admissibility of the email, Maha’s letter and Rosie’s letter.
(15 marks)

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CHAPTER 9 - DOCUMENTARY EVIDENCE

9.1 PRIMARY AND SECONDARY EVIDENCE

Question 7(a) October 2008

The contents of documents may be proved either by primary or by secondary evidence.

Discuss this with reference to decided cases. (13 marks)

Question 3(a) October 2012

A document may be tendered to prove the contents of the document

3. Section 62 defines primary evidence whereas section 63 defines secondary evidence.

7. A document tendered as evidence of the contents can be tendered:

Question 4(a) October 2012

1. General rule – Discuss s.64. Discuss section 65(1).

3. When is notice to produce not necessary:

- For the situations in section 65(1) other than section 65(1)(a)

- In the situations spelt out in the proviso to section 66

[The details are in your statute book.]

Question 5 August 2016

Answer outline 5(a)

Answer outline 5(b)

9.1.2 PRIMARY AND SECONDARY EVIDENCE – PROBLEM QUESTIONS

Question 5 October 2001

State your conclusion.

[Note: For criminal cases, see section 73AA]

Question 6 October 2000

(a) Issue – the possibility of Rasta’s solicitors succeeding in their submission.

Conclusion – Hence Rasta’s solicitors unlikely to succeed.

The Sessions Judge admitted the documents as prosecution exhibits.

Advise Raflis. (10 marks)

Question 6 October 2003

9.2 PUBLIC DOCUMENTS AND THE RIGHT OF INSPECTION

Question 1 January 2003

You have now been retained to act for only Z.

(a) the police report lodged in respect of X’s murder: (6 marks)

(b) Y’s statement to the police: (6 marks)

(c) Z’s statement to the police; and (6 marks)

(d) statements of witnesses to the police. (7 marks)

- The applicant (here Z) must tender the legal fees therefor

(b) Issue - Can Z get a copy of Y’s section 113 statement

(d) Issue – Can Z get the statements of witnesses to the police?

[Statement of witnesses – public documents – accused has no right to inspect as witness

- Hence Z cannot get certified copies of the statements of the witnesses.

9.3 RULE AGAINST EXTRINSIC EVIDENCE

Question 1 October 2012

See Question 6, October 2013 below

Question 6, October 2013

9.3.2 RULE AGAINST EXTRINSIC EVIDENCE – PROBLEM QUESTIONS

Question 4(a) July 1999

Answer both parts of this question.

Able objected to the admissibility of this piece of evidence.

Cases you can use.

Conclusion – Cain should be able to adduce the oral evidence.

Question 7 July 2006

ii. Ah Poh’s statement on 1.10.2005 that Ah Poh would give Ah Seng a

Can Ah Seng tender the books of accounts in evidence? (7 marks)

(i) Statement made prior to the execution of the agreement.

Discuss s.92(c) - condition precedent. Discuss Tan Chong Motors v Alan

(b) 1. Discuss if the book of accounts is relevant.

6. Discuss the mode of proof — s.62, s.64

Question 3(a) July 2003

1. Discuss s.91: See above