LAW OF EVIDENCE I

TOPIC 1: INTRODUCTION TO LAW OF EVIDENCE

A. PRELIMINARY MATTERS

1. Law can be generally divided into 2 main branches:

a. substantive law

b. adjective law

2. Sir James Fitzjames Stephen – “All rights & liabilities are dependent upon and arise out of
facts”.1

3. The object of legal proceedings is to determine the legal rights and liabilities of the parties.
These rights are in turn determined by facts of the individual case.

4. Substantive law is the area of law which determines what are the rights and liabilities of the
parties; it is dependent upon the facts of every case. Adjective law is procedural and determines
how facts will be established in court. The Law of Evidence falls under the heading of adjective
law, as it is the branch of law which regulates the proving of facts in court.

5. As a general rule the Law of Evidence applies equally to both civil and criminal proceedings.
Evidence regulates the fact-finding process of the court in the following manner:

a. it determines admissibility of facts

b. it determines the manner in which a fact may be proved

c. it determines how much proof will be required to establish a fact.

6. Purpose of the law of Evidence:

a. to regulate proving of facts in judicial proceedings

b. to ensure like cases are treated alike

c. to limit evidence only to that which is relevant

d. to provide safeguards against manufactured and unreliable evidence

e. to achieve justice and fairness

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Stephen, The Indian Evidence Act ,pp 7-8

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B. SOURCES AND APPLICATION
1. The main source of the law of Evidence in Malaysia is the Evidence Act 1950.It has
general application to all persons regardless to race or religion in the civil courts.

2. CASES:

AINAN BIN MAHMUD V SYED ABU BAKAR [1939] MLJ 209

MOHAMED SYEDOL ARIFFIN V YEOH OOI GARK [1916]1 MC 165

3. EVIDENCE ACT 1950

SECTION 2. Extent

“This Act shall apply to all judicial proceedings in or before any court, but not to
affidavits presented to any court or officer nor to proceedings before an arbitrator.”

CASE LAW:

RE LOH KAH KENG (DECEASED) (W02) [1990] 2 MLJ 237

RE LOH KAH KENG [1990] 2 MLJ 126
MALAYSIA BUILDING SOCIETY BHD v UNIVEIN SDN BHD [2003] 5 MLJ 394
FAR EAST HOLDINGS & ANOR V MAJLIS UGAMA ISLAM DAN ADAT RESAM
MELAYU PAHANG [2018]1 MLJ 1
MARNEEDI SATYAM v VENKATASWANI AIR 1949 Mad 689
PEGUAM NEGARA MALAYSIA v. MOHD KASSIM ABD HAMID [2022] 6 CLJ
41 ,CA
PP v FORSTER [1988] 2 MLJ 594
CITIBANK NA V MOHD ABDULLAH ANG [1992]1 CLJ 116

4. Other sources of the Law of Evidence include the following:

a. Criminal Procedure Code

b. Rules of Court 2012 (ROC 2012)

c. Other Statutes:
Dangerous Drugs Act 1952, Kidnapping Act 1961, Malaysian Anti - Corruption
Commission Act 2009, Sexual Offences Against Children Act 2017, Electronic
Commerce Act 2006, Electronic Government Activities Act 2007, Evidence of
Child Witness Act 2007, Evidence of Child Witness (Amendment) Act 2023 etc.

d. Common Law

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5. To what extent can reference be made to the Common Law?

• JAYASENA V R [1970]1 AER 219 PC

• PP V YUVARAJ [1969]2 MLJ 89 PC
• PP V SANASSI [1970] 2 MLJ 198

C. FACTS

SECTION 5. Evidence may be given of facts in issue and relevant facts.

Evidence may be given in any suit or proceeding of the existence or non-existence of

every fact in issue and of such other facts as are hereinafter declared to be relevant, and
of no others.

Explanation - This section shall not enable any person to give evidence of a fact which he
is disentitled to prove by the law relating to civil procedure.

ILLUSTRATIONS

(a) A. is tried for the murder of B. by beating him with a club with the intention of
causing his death.

At A's trial the following facts are in issue:

A's beating B. with the club;

A's causing B's death by the beating; and

A's intention to cause B's death.

(b) A. a party to a suit does not comply with a notice given by B. the other party to
produce for B's inspection a document referred to in A's pleadings. This section does not
enable A. to put the document in evidence on his behalf in that suit, otherwise than in
accordance with the conditions prescribed by the law relating to civil procedure.

SECTION 3. Interpretation.

In this Act, unless the context otherwise requires -

"computer" means any device for recording, storing, processing, retrieving or producing
any information or other matter, or for performing any one or more of those functions, by
whatever name or description such device is called; and where two or more computers

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carry out any one or more of those functions in combination or in succession or otherwise
howsoever conjointly, they shall be treated as a single computer;

"court" means a court established by or under Part IX of the Federal Constitution and
includes -

(a) a Judge;

(b) a Sessions Court Judge;

(c) a Magistrate; and

(d) except an arbitrator, every person legally authorized to take evidence;

"document" means any matter expressed, described or howsoever represented, upon any
substance, material, thing or article, including any matter embodied in a disc, tape, film,
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;

ILLUSTRATIONS

A writing is a document.

Words printed, lithographed or photographed are documents.

A map, plan, graph or sketch is a document.

An inscription on wood, metal, stone or any other substance, material or thing is a

document.

A drawing, painting, picture or caricature is a document.

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A photograph or a negative is a document.

A tape recording of a telephonic communication, including a recording of such

communication transmitted over distance, is a document.

A photographic or other visual recording, including a recording of a photographic or

other visual transmission over a distance, is a document.

A matter recorded, stored, processed, retrieved or produced by a computer is a document;

"evidence" includes -

(a) all statements which the court permits or requires to be made before it by witnesses in
relation to matters of fact under inquiry: such statements are called oral evidence;

(b) all documents produced for the inspection of the court: such documents are called
documentary evidence;

"fact" means and includes -

(a) any thing, state of things or relation of things capable of being perceived by the
senses;

(b) any mental condition of which any person is conscious;

ILLUSTRATIONS

(a) That there are certain objects arranged in a certain order in a certain place is a fact.

(b) That a man heard or saw something is a fact.

(c) That a man said certain words is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or
fraudulently, or uses a particular word in a particular sense, or is or was at a specified
time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation is a fact;

"fact in issue" means any fact from which, either by itself or in connection with other
facts, the existence, non-existence, nature or extent of any right, liability or disability
asserted or denied in any suit or proceeding necessarily follows;

ILLUSTRATION

A. is accused of the murder of B.

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At his trial the following facts may be in issue:

that A. caused B's death;

that A. intended to cause B's death;

that A. had received grave and sudden provocation from B;

that A. at the time of doing the act which caused B's death was by reason of unsoundness
of mind incapable of knowing its nature;

"film" includes a microfilm and any negative;

"microfilm" means any transparent material bearing a visual image in reduced size either
singly or as a series and includes a microfiche;

"negative" means a transparent negative photograph on any substance or material, and

includes any transparent negative photograph made from the original negative
photograph;

"proved" : a fact is said to be "proved" when, after considering the matters before it, the
court either believes it to exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it
exists;

"disproved" : a fact is said to be "disproved" when, after considering the matters before it,
the court either believes that it does not exist or considers its non-existence so probable
that a prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist;

"not proved" : a fact is said to be "not proved" when it is neither proved nor disproved;

"relevant" : one fact is said to be relevant to another when the one is connected with the
other in any of the ways referred to in the provisions of this Act relating to the relevancy
of facts.

CASE LAW:

PP V. DATO' SERI ANWAR IBRAHIM (NO 3) [1999]3 CLJ 313

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D.CLASSIFICTION OF EVIDENCE

Evidence can be classified into the following categories:

a. Oral/Documentary

b. Direct / Circumstantial

c. Original / Hearsay

E. BEST EVIDENCE RULE

1. The best evidence rule refers to the principle that the court admits the best evidence
available. The classic illustration of the rule can be found in Lord Hardwick’s statement:
“the judges and sages of the law have laid down that there is but one general rule of
evidence, the best that the nature of the case will admit”
OMYCHUND V BARKER [1745] 26 ER 15, 33

2. The application of this rule gives rise to the question as to whether only the best
evidence can be admitted, excluding all other evidence.

3. Case Law:
R V QUINN & BLOOM [1962] 2 QB 245
KAJALA V NOBLE [1982] 75 CR APP REP 149, CA
PP V LIM KUAN HOCK [1976] 2 MLJ 114
KPM KHIDMAT SDN.BHD V TEY KIM SUIE [1994] 2 MLJ 627
GNANASEGARAN v. PP [1997] 4 CLJ 6 CA.
PP V NORFAIZAL BIN MAT (N0.2) [2008] 7 MLJ 792
PP V NOMEZAN APPANDY (NO.2) [2008] 1 MLJ 681
CHOONG YIK SOON V MAJLIS PEGUAM MALAYSIA [2008]7 MLJ 215
PP V MOHD JELANI BIN SULAIMAN [1997] 5MLJ 551
DATO' KANAGALINGAM VELUPPILLAI v. MAJLIS PEGUAM MALAYSIA [2022]
2 CLJ 858

F. PROCEDURE FOR ADDUCING EVIDENCE IN COURT

YB DATO' HJ HUSAM HJ MUSA v. MOHD FAISAL ROHBAN AHMAD [2015] 1

CLJ 787, CA
JAAFAR SHAARI & SITI JAMA HASHIM v. TAN LIP ENG & ANOR [1997] 3 MLJ
693
ROC: O 34 r. 2

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CHAIN OF EVIDENCE AND MARKING OF EXHIBITS:

ENG SIN v. PUBLIC PROSECUTOR [1974] 1 LNS 33, FC

PP v. KALIDASS RAMAYA [2017] 2 CLJ 704, HC
MOHD YAZID MOHD SHARIFF v. PP [2016] 5 CLJ 709, CA
NOBIES WEAH EZIKE V PP [2010] 1 CLJ 578

G. TEXT / READING LIST

1. Augustine Paul, Evidence Practice and Procedure (4th edn, LexisNexis 2010),
Chapter 1.
2. Jeffrey Pinsler, Evidence, and the Litigation Process (7th edn, LexisNexis,2020),
Chapter 1 & 17.
3. Hamid Sultan Abu Bakar, Janab’s Key to The Law of Evidence (4th edn, Janab
2014) page 65-186.
4. Hamid Sultan Abu Bakar, The Law of Evidence, Advocacy and Professional Ethics
(5th edn, Janab 2018), Chapter 1.
5. Mariette Peters, Law of Evidence in Malaysia (LexisNexis, Malaysia, 2013), Chapter
1.

H. e-LEARNING ACTIVITY
1. Students to watch Youtube video on introduction to Evidence:
https://www.youtube.com/watch?v=cB5IX0Gte30 (1minute)
2. Students to discuss and Form Assignment Grouping
3. Students to read online article on additional evidence: “Additional Evidence”, Mimi
Kamariah Majid [1993] 1 MLJ lviii
4.Students to read case report on YB DATO' HJ HUSAM HJ MUSA v. MOHD FAISAL
ROHBAN AHMAD [2015] 1 CLJ 787, CA

Note: case law, case reports and articles identified may be subject to change due to legal
developments during the progression of the trimester. Students are expected to be updated
on the latest developments in real time.

All Lecture & tutorial materials are the property of Multimedia University (“MMU”). Any
sharing or distribution of these materials with any external party is strictly prohibited unless
prior consent or approval is obtained from MMU’s authorised personnel.

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