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 Chapter 1: Introduction

Issue: Does the EA 1950 apply to affidavits presented in Court?

● S.2 EA 1950 - EA does not apply to affidavits presented to any Court.

● Sometimes, statements made in an affidavit is tendered in court – this must comply with
the EA – statements being tendered in trial as evidence and not used in their function as
affidavits
● Affidavits used during interlocutory applications (proceedings before trial) – court looks at
the affidavit to determine the application – therefore requirements for affidavit is seen at
this stage – they do not need to comply with the EA – can contain hearsay (as they are
not being used as evidence as trial, merely used to support the interlocutory application)
● O38r2 – evidence by witness statements - pre-written Q&A will be submitted (is
considered an affidavit) – statements in the witness statement must comply with the EA –
Faridah Arifin (civil trial chapter)
● Indian case of Rama Naidu v Ramadevi (not Malaysian law but additional reading
material) – (statements of the) affidavit becomes evidence when the deponent appears
for cross-examination
● In summary – discuss s.2, how affidavit becomes evidence (statement in the affidavit) – if
the deponent is unavailable to give evidence (hearsay exception needs to apply) or as
corroboration under s.157 or if there is a need to impeach his witness for a contradictory
statement made in the affidavit; affidavit also becomes evidence when it falls under
O38r2 - provided EA is complied with.

Issue: Explain the difference between FIIs and RF.

Fact in Issue:
● S.3 EA 1950 - all facts which the P has to prove in order to succeed, together with any
further facts the D or A must prove to establish a defence.
● Civil case - depends on substantive law and pleadings.
● Criminal case - depends on substantive law, charge and plea.
● FII is direct evidence.

Relevant Facts:
● RF - not themselves in issue - allows for inference of FII and other facts.
● S.3 EA 1950 - fact is ‘relevant’ if it is connected with any one of the ways referred to in the
relevancy provisions under the EA 1950.
● Relevancy provisions - Part II EA 1950 - S.6 - S.55 EA 1950 - drafted widely.
 ● Once connected, evidence will be admitted if mode of proof is satisfied.
● Circumstantial evidence.

Issue: Explain the difference between Direct Evidence and Circumstantial Evidence.

Direct Evidence:
● All the trier of fact has to do (i.e judge) is to decide whether to accept the evidence or not.
● If accepted, it will directly show that FII exists - no inferences are needed to be made.
● Example - eyewitness saw the accused STAB the deceased.

Circumstantial Evidence:
● Trier of fact needs to decide what inferences are to be drawn and whether to accept the
evidence. Example - eyewitness saw accursed FLEEING the crime scene.
● Danger - witness lies or is mistaken - additional danger for circumstantial evidence is that
trier may make the wrong inferences.
● Sunny Ang v PP: Accused was convicted purely on circumstantial evidence adduced by
the P.

Issue: Explain the difference between Logical Relevancy and Legal Relevancy.

Logical Relevancy:
● Determined by logic and common sense, practical or human experience and knowledge
of affairs.
● Where the facts are so closely related that they, by common sense or logic, is possible to
infer the existence of a FII.
● The stronger the relationship between the two facts, the higher the degree of relevancy.
● DPP v Kilbourne, Lord Simon: Evidence is relevant if it is logically probative or
disprobative of some matter which requires proof.

Legal Relevancy:
● Founded on the law - GR: All legally relevant facts are logically relevant.
● S.5 EA - evidence may be given in FII and relevant facts and of no others.
● Definition of relevant - S.3 EA 1950.
● Governed under S.6 - 55 EA 1950.

Whatever logically probative is not necessarily admissible on evidence, unless it is so under the
EA - PP v Haji Kassim
 Issue: Relevancy, Admissibility and Weight

Admissibility:
● Question of Law - S.5 EA definition - Evidence may be given of facts in issue and relevant
facts and of no others.
● It is the duty of the judge to admit all relevant evidence and to exclude all irrelevant
evidence - Alcontara Ambross Anthony v PP.

Relationship between Relevancy and Admissibility:

● For logical relevancy, see above and:
○ May not be admissible because it is too remotely connected or prejudicial to the
accused.

● For legal relevancy:

○ S.6 - 55 EA 1950 - relevancy is the test for admissibility.
○ S.136 EA: A judge may ask in what manner a fact which is proposed to be proven
would be relevant and he shall admit the evidence only if he thinks the alleged
fact would be relevant if proved.
○ DSAI v PP: The Court has the power under S.136 EA and is duty bound to inquire
into the relevancy of the proposed witness before he gives evidence.

● Once relevant, it has to satisfy the mode of proof in Part II of the EA in order to be
admitted.
● Instances where evidence may NOT be admitted although relevant:
○ Oral by Documentary Evidence - S.91 - 99 EA;
○ Privileged Communications - S.121 - 130 EA.

● Instances where evidence which are NOT RELEVANT may be admitted:

○ Credibility of the witness - S.146(c), 155 and 157 EA;
○ Credit of the maker of any statement admitted under S.32 or 33 EA.

Weight (& admissibility):

● Question of fact - refers to the value that is given to the evidence of facts in issue and
relevant facts by the trier of fact (i.e the judge).
● Example - Corroboration - S.157 EA - allows admissibility of former statements to
corroborate the testimony of the witness - discuss also credibility provisions.
● Some provisions touching on weight - S.90B, S.158 and 73A(6) EA.
● Appellate courts are reluctant to intervene when it comes to whether the trial judge has
correctly weighed the evidence - usually will only intervene when there is an error on
admissibility as it is a question of law.
 ○ Trial judges have first-hand observation on the demeanour of witnesses and the
manner in which the evidence is given.

Issue: Illegally obtained Evidence

● GR - Kuruma; Sang - In criminal cases, if evidence is relevant, it is admissible even if it

was obtained by improper and unfair means (Kuruma), but the court retains the discretion
to exclude on the grounds that PE outweighs PV (Sang).
● Kuruma; Sang; PP v Gan Ah Bee, PP v DSAI (No.3)
● S.136 EA
● Court has discretion to exclude evidence where it would operate unfairly against the
accused - R v Kuruma;
● R v Sang -Save in regard to admissions, confessions and generally evidence obtained
from the accused after the commission of the offence, the judge has NO DISCRETION to
refuse the admission of relevant evidence on the ground that it was obtained by improper
or unfair means.
○ Test of fairness - evidence should be excluded where PE outweighs PV.

● Balamurugan Nagaraju - Burden of proof on the party asserting to prove that the
evidence was illegally obtained on a balance of probabilities.

● Aizuddin Syah bin Ahmad v PP (DDA case) - If there are mandatory provisions that
provide as to how evidence should be admitted and these provisions are NOT complied
with, NO RELIANCE can be made to the GR in Kuruma and Sang - this means that there
should be no discretion where a provision under the EA provides for HOW evidence
will be admitted.

Issue: Best Evidence Rule

Lord Hardwicke LC, Omychund v Barker: “The judges and sages of the law have laid it down
that there is but one general rule of evidence, the best that the nature of the case will admit”.
There are 2 aspects to this:
● Inclusionary aspect - if the best evidence is not available, the next best evidence is
admitted and it will be a question of weight.
● Exclusionary aspect - if the best evidence is not available, the next best evidence cannot
be admitted.

Both are no longer the position in the UK and in Malaysia. The following cases show that the best
evidence rule has no effect on the admissibility of evidence in Malaysia. Admissibility is based on
specific rules of law in the EA and not in accordance with any general theory - the position is the
same in civil and criminal cases:

● Chow Siew Woh v PP: Victim had made dying declaration to the IO (best evidence) and to
her uncle and brother (next best evidence). The Court admitted the testimony of the latter,
although the best evidence was available.

● PP v Lim Kuan Hock: Accused relied on the defence of alibi. Court admitted testimony of
the co-worker (next best evidence), even though the best evidence (Kong Chye) was in
Court at the time of the trial.

● PP v Norfaizal bin Mat (No.2): The Court refused to admit evidence under S.32(1)(i) as the
prosecution had not satisfied the precondition for admissibility by failing to show efforts
taken to locate the witness.

Although the admissibility of the evidence is not affected by the Rule, it seems to apply to the
weight given to the evidence:

● Chow Siew Woh v PP: Failure to tender the best evidence (dying declaration to the IO)
resulted in the accused being acquitted.

● Absence of the best evidence may always be the subject of adverse comment by the
Judge - Lim Kuan Hock v PP - failure to tender the best evidence of alibi resulted in his
conviction as the Court decided to accept the prosecution's evidence.

[The Courts in the aforementioned cases had allowed the next best evidence to be admitted, but
it shows how much the weight attached to the evidence has affected the outcome of the case].

Documentary Evidence:
● The best evidence rule seems to apply to documentary evidence - S.64 & 65(1) EA.
● KPM Khidmat v Tey Kim Suie: The Court refused to tender secondary evidence as the P
had not proven any of the circumstances in S.65(1).
○ The best evidence rule has an effect in the mode of proof.
○ Note: Failure to object mode of proof will amount to a waiver - S.58(1) EA (Civil
Cases) & S.73AA (Criminal Cases).

Hearsay Evidence:
● One of the rationales on the exclusion of hearsay evidence is that it is not the best
evidence.
● Hearsay exceptions:
○ S.32 & 33 EA: Principle of necessity - best evidence as the maker is no longer
available.
 ○ S.73A EA: Documentary hearsay in CIVIL CASES only.
○ S.90A - Gnanasegaran v PP - this Section is an update to the best evidence rule
with the realities of the electronic age - no longer required to call the actual
person who keyed in the data, provided he did so in the ordinary course of use of
the computer.

Issue: Failure to object admissibility of irrelevant evidence

Effect of failure to object to the admissibility of evidence during a trial:

The effect would depend on the ground of objection that ought to have been taken (i.e objection
on Part I or Part II EA). Failure to object on grounds of relevancy does not act as a waiver, nor
does it make irrelevant evidence admissible.

● Tan Kok Ann v PP: The Courts held that the failure to object the admissibility of irrelevant
evidence would not make it admissible. It is the duty of the court to disallow such
evidence despite the failure of the opposing counsel to object.
○ The same stance was taken in Keruntum Sdn Bhd v The Director of Forests and
Karpal Singh v Sultan of Selangor.

● Capital Insurance Berhad v Cheong Heng Loong Goldsmiths Sdn Bhd: Failure to object
does not affect the admissibility of the content.

Is the Court allowed to reverse its ruling on admissibility of evidence which has been admitted
earlier during the trial?

● DSAI v PP (2015): The FC held that a trial judge may review a previous ruling he made
and if need be, reverse the earlier ruling. This was supported by the English COA decision
of R v Watson.

● Ng Yin Kwok v PP: SC held that the Courts can reverse its ruling on admissibility of a
piece of evidence which has been admitted earlier during the trial. OTF, the judge
reversed his own ruling on admissibility.

● Contradictory judgment - YB Dato Hj Husam bin Hj Musa v Mohd Faisal bin Rohban
Ahmad - note that this is a COA case and those above are FC cases:

○ Civil Cases: Where the judge has marked a piece of evidence as an exhibit, he
cannot subsequently refuse to consider the evidence. The court in deliberating
may give low probative value to said evidence, but may not exclude such.
 ○ Criminal Cases: In the event the case changes its mind as to the admissibility of
the evidence, the Court may exclude it on grounds of fairness (as per R v Sang).

Issue: Failure to object on INADMISSIBILITY ON MODE OF PROOF

● In the earlier case of Lee Kok Nam v PP - failure to object inadmissible evidence does not
make it admissible and the objection can be taken on appeal.
● Noliana bt Sulaiman v PP - Criminal case - failure to object on mode of proof would
amount to a waiver, but cannot apply to this case as S.58 EA provides that it only applies
to civil cases.
● After the amendment, S.73AA EA provides that failure to object in criminal cases on the
mode of proof would amount to a waiver.
● Capital Insurance Berhad v Cheong Heng Loong Goldsmiths Sdn Bhd: Objection should
be made before the evidence is marked as an exhibit in trial.
 Chapter 3: Hearsay

Definition of hearsay - by Sir Rupert Cross as adopted by Lord Haverns in R v Sharp - "an
assertion other than one made by a person while giving oral evidence in the proceedings is
inadmissible as evidence of any fact asserted”.

Subramaniam v PP: If the out of court statement is being tendered for the truth of the matter, it
will be hearsay. If it is being tendered for the fact that it was made, it will NOT be hearsay.
● Where the statement is NOT hearsay, it will be tendered as original evidence - however,
for this to happen, the original evidence must be an FII or RF.

Rationale for the rule against hearsay:

● Lord Normand, R v Teper - Hearsay is not the best evidence and it is not delivered on
oath. Truthfulness and accuracy of the person making the statement cannot be tested by
cross examination and his demeanour is lost.
● Recaliva Design Steel (M) Sdn Bhd v Vista Access Sdn Bhd: S.60 EA 1950 reflects the
best evidence rule in terms of oral evidence - statements are best given upon perception
through the maker’s own statements.

The Rule against Hearsay will apply:

Oral Evidence:
● Truth of the matter stated - S.60 EA 1950 - oral evidence must be direct - reflect the “best
evidence rule” and relates to the rule against hearsay - Recaliva Design Steel (M) Sdn
Bhd v Vista Access Sdn Bhd.
● R v Sparks - child complained to mother - assailant was ‘coloured boy’ - accused was
white - hearsay because D was relying on the child's statement for the truth of what had
been asserted.

Documents:
● Where contents are being tendered for the truth.
● Myers v DPP - microfilms from cards containing matching cylinder block numbers of the
cars sold - hearsay.
● Patel v Comptroller of Customs - label saying “produce of morocco” - hearsay.

Assertions:
● Chandrasekara v PP - victim’s throat was slit - made gesture indicating that it was the
accused - hearsay - admitted under dying declaration.
Rule will NOT apply:
1. Statement made is not for the truth of the matter stated - Subramaniam v PP;
2. Statement is made to show that the contents were FALSE - R v Mawaz Khan;
3. Tapes, films or photographs DIRECTLY recording an incident - R v Dodson;
4. Documents from machines that automatically record some process - Castle v Cross;
5. Greetings, instructions and questions - example: Robert Book Teck Chuah - instruction to
arrest was not hearsay.

Implied Assertions:
● R v Kearley - “customers” of a drug dealer called when he was being questioned by the
police - implied assertion - hearsay.
○ However, this has been overruled by the CJA 2003 in the UK.
○ Therefore, in Malaysia, we should not follow the position in Kearley as it is clearly
wrong.

Cases:
1. Pakala Naryana Swami v KE: Statements admitted as a dying declaration may be
exculpatory of the accused.
2. Ong Her Hock v PP: The actual words should be tendered.
3. Boota Singh v PP: Accused was charged for murdering a woman he knew - court allowed
for a police report made 9 months prior to be admitted - S.8 (to show motive) and S.9 (to
show the relationship between the two)

Process of the Courts with Hearsay:

● When hearsay evidence is sought to be tendered, the person that tenders it may not be
able to prove an exception to hearsay.
● The judge will “keep in view” the evidence tendered (that is not admissible) and mark it as
“ID” - this will continue until a witness is brought to prove any ingredients of the hearsay
exception.
○ Until and unless ID documents are specifically converted into proper exhibits,
must be disregarded as well as any oral testimony referring to the said ID - Henry
Devarajah Anthony James v Petrozchem Oilfield Services.
● Once the hearsay exception is proven, the Judge can then mark the hearsay
statement/document as an exhibit and tender it as evidence.
● So long as the Court is not functus officio, the Judge is allowed to change his ruling on
admissibility.
 Issue: Multiple Hearsay

● Important to know whether the hearsay exceptions cover second hand hearsay.
○ Most exceptions only cover first hand hearsay. See Allied Bank (M) Bhd v Yau
Jiok Hua: S.32(1)(b) only covers first hand hearsay as there is a need for the maker
to have personal knowledge - the HC held that the documents tendered were out
of court statements tendered to prove the truth of its contents - hearsay.
○ However, S.73A allows second hand hearsay where there is a continuous record +
requirements satisfied.
Hearsay Exceptions:
Teper v R (transaction based test) → Ratten v R (reliability based
test - spontaneous exclamations) → R v Andrews lays down the
factors to be considered:
1. Dramatic event;
2. Dominated makers mind;
3. Special Features;
4. Question of Error.

Malaysia applies Res Gestae in the following cases:

● Kok Ho Leng v R: telephone message to have same
Common Law Res Gestae & analogy as shouting bystanders - S.6 - ‘same
S.6 EA 1950 transaction’ - res gestae
● Leong Hong Khie v PP: Applied Ratten.
● Bandahala bin Undik v PP: Common law res gestae is
embodied in Sections 6-9 and 14 of the EA 1950.
○ Contemporaneity and spontaneity must be
shown.

Section 6 EA 1950 - same transaction test:

● Amrita Lal Hazra v Emperor: consider factors such as (i)
proximity of time, (ii) proximity or unity of place, (iii)
continuity of action and (iv) community of purpose or
design.

Requirements:
1. The maker of the statement is dead;
● Burden on the party wishing to tender the dying
declaration - illustration (a), S.104 EA 1950.
2. Maker’s death comes into question;
S.32(1)(a) EA 1950 3. Statement made is as to the cause or circumstances of
transactions leading to his death;
4. The actual words made should be tendered (Ong Her
Hock v PP).

There is no requirement that the maker had to be under the

expectation of death - proviso S.32(1)(a).

Note: S.32(1)(a) vs Res gestae vs Common Law Dying Declaration (difference on the weight):
● Res Gestae:
○ Narrower than S.32(1)(a) - statement should be as contemporaneous as possible
to prevent fabrication.
○ Wider than S.32(1)(a) - the Section only applies where the maker’s death comes
into question.

● CL Dying Declaration: Requires the deceased to be under a settle hopeless

expectation of death
Difference between S.32(1)(b) and S.73A EA 1950:

● S.32(1)(b) EA 1950:
○ Only admits statements made in the ordinary course of business;
○ Applies in civil and criminal cases;
○ Written or verbal evidence;
○ Only applies to first hand hearsay -
■ Allied Bank (M) Bhd - maker of the statement must have personal
knowledge of the matters of the statement.
■ Tempil Perkakas Sdn Bhd v Foo Sex Hong: Person tendering the
document must have personal knowledge of the ordinary course of
business at the time the statement was made.
○ Maker must be unavailable (as per the section);
○ S.65 & 66 (Secondary documentary evidence) applies.

● S.73A EA 1950:
○ Any statement made by a person in a document. Secondary hearsay must form
part of a continuous record;
○ Only applies to civil cases;
○ Only documentary evidence (which contain statements in fact which direct oral
evidence would be admissible);
○ 3 situations as to the maker (Arab-Malaysian Merchant Bank Bhd v Chong On
Foh Medical Hall):
■ Where the maker was called to give evidence - S.73A(1)(a)&(b);
■ Where the maker is not available, but proviso to S.73A(1) is satisfied -
S.73A (1)(a) + proviso;
■ Maker was available but was not called as a witness under the
circumstance provided by S.73A(2) - S.73A(1)(a) + S.73A(2).
○ S.65 & 66 do not apply - S.73A(1) - original must be produced - unless S.73A(2)(b)
applies.

(c) Statement which is against the pecuniary or proprietary

interest of the person making it, or if true, would expose him to
criminal prosecution or civil suit.

● Requirements:
1. Out of court statement of relevant fact;

2. Maker unavailable (1/4 reasons);

3. Statement is against pecuniary or proprietary

interest which would expose him to criminal
liability.
● Illustration (f): Question is whether A
and B are legally married. The statement
S.32(1)(c) EA 1950 of a deceased clergyman that he married
 them under circumstances that the
celebration would be a crime is relevant.

● PP v Foster Frank: Court admitted

affidavit made by persons in Germany
who confessed to committing the
offences the accused had been charged
for.

4. Maker must have personal knowledge of the

contents of the statement.

Ward v Pitt: maker had no personal knowledge of whether the

child that Ward was carrying was his. Section 32(1)(c) only
admits 1st hand hearsay.

S.32(1)(d) EA 1950 When an issue is in the opinion of any public right or custom.

Statements on existence of relationships:

Section 32(1)(e) - admissibility of statements where it relates to

the existence of any relationship by blood, marriage or
adoption between persons. (applies to all persons, regardless if
they are alive)

● Requirements:
1. Out of court statement;
2. Unavailability of maker;
3. Statement relates to the evidence of any
relationship of blood, marriage or adoption
between 2 or more persons;
4. Maker of the statement had special means of
knowledge;
5. Statement was made before the question in
dispute was raised.

● Mohd Syedol Ariffin v Yeoh Ooi Gark: Statement made

by the defendant’s deceased father in a register of
births and deaths left by the father was admissible
under this section.

S.32(1)(e)&(f) EA 1950 ● Illustration (l): Question is what was the date of birth of
A. Letter from A’s deceased father to a friend,
announcing the birth of A on a given day, is a relevant
fact.
 Section 32(1)(f) - admissibility of statements where it relates to
the existence of any relationship by blood, marriage or
adoption between persons deceased. (applies to only
relationship between 2 deceased persons)

● Requirements:
1. Out of court statement;
2. Unavailability of maker;
3. Statement relates to the evidence of any
relationship of blood, marriage or
adoption between 2 or more persons
deceased;
4. Statement made in (a) any will or deed
relating to the affair of the family in which
the deceased belonged to; or (b) in any
family pedigree; or (c) upon any
tombstone, family portrait, other things
on which such statements are usually
made.

Difference between paras (e) and (f):

1. Para (f) only relates to the existence of any relationship

between persons deceased. Para (e) applies to persons
alive or dead.
2. Para (e) requires the maker to have special means of
knowledge. This is not mentioned in (f). Instead, the
nature of documents under (f) suggests that the maker
would have had special means of knowledge.
3. Para (f) seems to only allow written statements. Para (e)
statements may be written or verbal.

S.32(1)(g) EA 1950 When a statement is relevant where the maker is unavailable

and when the statement is contained in any document which
relates to any transaction as mentioned in Section 13(a).

S.32(1)(h) EA 1950 When statements are made by a number of persons and

expressed feelings or impressions on their part relevant to the
matter in question.

Section 32(1)(i) - When statement was made in the course of, or

for the purposes of, an investigation or inquiry into an offence
under or by virtue of any written law; and

● Requirements:
 1. Out of Court statement;
2. Maker unavailable;
3. Criminal case;
4. Statement made in the course of and purpose of an
investigation or inquiry into an offence under or by
virtue of any written law;
● Who is the maker? Any one who is involved in
the case (police, victim, witness).
S.32(1)(i)&( j) EA 1950 5. Maker must have personal knowledge of the contents
*Only applies to CRIMINAL of the statement.
PROCEEDINGS
Allows for the admission of Section 112 CPC statements by
witnesses and police. (Would not apply to accused as without
the accused (maker not available) there would be no case in
the first place).

Section 32(1)( j) - where the statement was made by a public

officer in the discharge of his duties.
● Requirements:
1. Out of Court statement;
2. Maker unavailable;
3. Criminal case;
4. Statement made by a public officer in the
discharge of his duties;
5. Maker must have personal knowledge of the
contents of the statement.

Issue: Are they to be read disjunctively (2 exceptions) or conjunctively (both make 1 exception)?

Disjunctive:
● If read disjunctively, S.32(1)(i) would allow for statements of witnesses to be admitted
and S.32(1)( j) would allow for statements of police (police diary) to be admitted.

● PP v Mohd Jamil bin Yahya (HC): Court admitted the S.112 statement.

● Siti Aisyah v PP (2019)(COA): S.112 statement is relied upon by the accused person. If
read conjunctively, then the accused person will not be allowed to tender a S.112
statement by a witness and cannot cast a reasonable doubt on the prosecution’s case.

Conjunctive:
● If read conjunctively, it would mean that statements by witnesses will not be allowed.
Hence, S.112 CPC statements are not admissible.
● PP v Michael Anayo Akabogu (HC): Jeffrey Tan JC held that they should be read
conjunctively:
1. He held that disjunctive would be too great a breach of the hearsay rule;
 2. Both subsections are conjoined by ‘and’.
3. Other paras begin with ‘when’, but ( j) starts with ‘where;.

● Kobra Taba Seidali v PP (2014)(COA): held that these 2 paras should be read
conjunctively. It was argued here that to allow for a disjunctive reading, it would allow
for evidence against an accused person to be tendered without the witnesses having to
appear in court (no cross examination required). To allow for this to happen, it would be
too great of a breach to hearsay - takes away the accused’s right to fair trial. In this
case, the Prosecution wanted to rely on the S.112 statement and the Court was
protecting the accused.

Note: General rule under S.113 CPC states that S.112 CPC statements are inadmissible.
However, S.113(4) CPC holds that where statements made in the course of an identification
parade, S.27 or S.32(1)(a), (i) and ( j) EA 1950, the general rule will NOT apply.

Hence, this means that where the maker is unavailable under S.32(1)(a), (i) and ( j) EA 1950,S.112
statements are admissible.

● Entries in books of accounts are not alone sufficient to

charge any person with liability;
● Popular Industries v Eastern (Garment) Manufacturing
Sdn Bhd: Entries themselves would have to be proved
by someone who has personal knowledge of the
S.34 EA 1950 transactions reelected in such entries (additional
requirement)
● Sim Siok Eng v Poh Hua Transport & Contractor Sdn
Bhd - requirements:
○ Entries are in a book of accounts regularly kept
in the course of business;
○ Entries refer to a matter into which the court has
to inquire

● S.32A EA 1950 - evidence taken under S.265A CPC may be admissible as evidence (i.e
evidence taken from protected witnesses).

See also S.33 and S.35 - S.38 EA 1950.

 Chapter 4: Admissions & Confessions

Admissions Confessions

● Defined in S.17(1) EA 1950 ● Defined in S.17(2) EA 1950

● Apply in Civil and Criminal cases ● Applies only in criminal cases
● Statement which suggests an ● An admission made at anytime by the
inference as to any FII or RF accused person stating of suggesting
● Made by any person under the the inference that he committed the
circumstances in S.18-20 EA 1950 offence - discuss S.21 EA 1950
● S.23 - without prejudice rule ● S.24 - S.26 EA 1950 - exclusion of
confessions

Admissions:
● S.23 EA 1950:
○ Rationale for the Rule - Rush & Tompkins Ltd v Greater London Council - public
policy encourages litigants to settle their differences rather than litigate them to a
finish. Parties should not be discouraged by the knowledge that anything that is
said in the course of such negotiations may be used to their prejudice in the
course of proceedings.

○ Conditions - Malayan Banking v Foo See Moi & Dusun Desaru Sdn Bhd v Wang
Ah Yu:
1. Some individuals must be in a dispute and that dispute led them to
negotiate with one another; and
2. The communication between the parties must contain suggested terms
that would finally lead to the settlement of the dispute.

○ When would a “without prejudice” communication lose its privilege status:

1. Once the settlement is negotiated fully and matters have finalized

completely - Knapp v Metropolitan Permanent Building Society
Association;

2. Evidence of negotiation become admissible when an action is taken after

the conclusion of the agreement - shows the terms of the agreement -
Malayan Banking v Foo See Moi;

3. Where both parties waive privilege - either by words or conduct - Dusun

Desaru Sdn Bhd v Wang Ah Yu;
 4. Where a letter is labelled without prejudice, but no negotiations are taking
place - Daya Anika Sdn Bhd v Kuan Ah Hock

○ Other Cases:

1. Ted Bates (M) Sdn Bhd v Balbir Singh Jhall - admission of a debt and
requesting for MORE TIME to pay DID NOT fall within the scope of S.23 EA
1950.

2. Where a letter is labelled without prejudice, it implies that all previous

(Oliver v Nautilus Steam Shipping Co) and subsequent (Davies v Nyland)
negotiations between parties are privileged.

3. Lim Tjoen Kong v AB Chew Investments Pte Ltd - Privilege is not waived
merely by filing an affidavit in reply to an opponent’s affidavit containing
privileged information.

Confessions:
● Anandagonda v The Queen: Statement made by the accused that he merely slowed
down at the crime to see why there were so many people gathered was held to be an
admission and NOT a confession - confession must amount to the accused stating or
suggesting that he committed the offence.

● S.24 EA 1950:
○ R v Santokh Singh - inducement must relate to the charge

● S.27 EA 1950 - information leading to discovery:

○ Conditions:
1. Information must have been received from the accused person charged
with the offence;
2. Accused must have been in police custody at the time of giving the
information;
3. The fact deposed must have been discovered in consequence of the
information received from the accused;
4. Item must have been hidden;
5. Actual words?
a. Accused actual words should be recorded - Tan Keo Hock v PP;
Tan Huang Hiang v PP - failure to record actual words would affect
the admissibility of the information.
b. PP v Hashim bin Hanafi - no need for actual words but a written
record would be desirable - failure would NOT affect the
admissibility.
 ○ Francis Anthony - although there is no “voluntariness” pre-requisite, the Court
still invoked their common law discretion (under R v Sang).

○ Wong Nam Loi v PP - S.27 can extend to include actions such as pointing.

○ Pathmanabhan Nalliannen v PP - Where S.27 cannot be used to admit the

information, the action of pointing may be admissible under S.8 EA 1950.

● S.30 EA 1950:
○ Herchun Singh v PP (FC): Statements made under S.30 cannot, in itself, warrant a
conviction.
■ The HC in DSAI sought to depart from this and held that there is nothing to
suggest that S.30 requires “independent” evidence against the Co-A
before a conviction, but this was later overruled by the COA on appeal,
stating that earlier FC decisions (Herchun Singh) is binding.

○ Conditions:
1. The A and Co-A are charged for the same offence;
2. One of them has made a statement implicating HIMSELF AND ANOTHER
accused person;
3. For it to be admissible against the Co-A, it must first be proved against the
maker (A).

Issue: Mixed Statement

● These are statements that are partly inculpatory and partly exculpatory (can be both
admissions and confessions). There is a need to determine if the inculpatory statement
can be admitted.
○ If yes, the whole statement will be evidence of the truth of its contents - R v Sharp,
applied in Chan Kin Choi v PP.
 Chapter 5: Opinion Evidence

● S.45 EA 1950:
○ Requirements - Junaidi bin Abdullah v PP:
1. The nature of the evidence requires special skill;
● Should be within one of the categories listed under S.45;
○ Foreign Law:
■ Sivagami Achi v Ramanathan - Hindu law - expert
evidence required.
■ The Estate of Sim Siew Guan/ Kong Nen Siew v
Lim Siew Hong - Customary law - expert evidence
allowed.
■ PP v Foster Frank - Pupil of a German law firm in SG
testified on German Law.

○ Science or Art:
■ Chandrasekaran v PP - this heading should be
given a liberal interpretation.

○ Handwriting:
■ See Illustration (c) S.45;
■ Syed Abu Bakar v PP - when the court is tasked
with determining the genuineness of handwriting,
the Court should NOT make a decision without
expert opinion.

● Ong Chan Tow v R - Experts cannot give evidence on matters

which the Courts can decide by itself otherwise they would usurp
the function of the court;

2. Witnesses must have acquired the special skill by academic qualifications

or by experience.
● Lin Lian Chen - an expert may only give his opinion on matters
within his expertise. Here, witness has a degree in Chemistry, 13
years’ experience and a Diploma in Blood Serology. However, it
was held that this did not necessarily imply that the witness has an
expert knowledge of heroin. (It is likely that the lawyer in this case
did not ask sufficient questions to establish that the expert was well
versed in heroin). Hence, there is a need to prove:
 1. That the witness has special skills (education, experience,
etc)
2. That the special skill relates to the issue at hand.

● Kumaraguru v PP - it was held that the testimony of the chemist

stated “I have been working at the chemistry department for 12
years. I am a qualified chemist. I have given evidence in Court
before” did not make him competent. (Need further questioning to
establish competence).

● PP v Kit Chee Wan - gazetted experts need not establish that they
have expertise in the area they have been recognised for.

● Dato Mokhtar Hasim v PP: Special skills may be gained through

academic qualifications or experience. There is no rule requiring
the expert to have testified previously in court for him to be able
to give evidence.

● Junaidi bin Abdullah v PP: It does not matter how the person has
obtained his special skill. If there is a lack in any area (albeit
education or experience), it does not affect the relevancy or
admissibility of the evidence, but its weight.

Other Cases:
● Wong Chop Saow v PP - procedure for opinion evidence to be adduced.
○ Establish Expertise - qualification, experience - be specific.
○ If he has been an expert in a different case before. If yes, whether the other court
has accepted his evidence. If not, it is not a prerequisite as held in DMH v PP.
○ Describing the subject matter
○ Opinion
○ Grounds of Opinion - S.51 - any witness who is giving his opinion should give the
grounds of his opinion.interference
■ Sim Ah Song v R - A bare expression of opinion has no evidential value at
all - explanation to it should be provided.
■ UAB v Tai Soon Heng Construction Sdn Bhd - opinions unsupported by
cogent data - any reliance upon such evidence would “constitute a serious
misdirection warranting interference by an appellate court”.

● Asean Securities Paper Mills v CGU Insurance - the court disregarded the expert
evidence - non-consideration of the material evidence constitutes insufficient judicial
appreciation of evidence
 Issue: The Rule against Opinion Evidence

● GR - S.3 EA 1950 - “facts” - capable of being perceived by the senses (of the witness).
○ Inference drawn from what he has perceived = opinion evidence.

● Rationale for the rule:

○ Unreliability - not based on proper grounds;
○ Witnesses should only give evidence of facts which they have perceived and trier
should decide what inferences to draw;
○ Witness that states his opinion cannot be prosecuted for perjury.

● Exceptions - there are some areas where the Court cannot handle the evidence on its
own and needs opinion evidence for “help”:
○ Expert Opinion - S.45 EA 1950;
○ Non-Expert Opinion - S.47 - S.50 EA 1950.

Issue: Psychiatric Evidence

● R v Turner (generally applied): Psychiatric evidence allowed, but only on recognised

scientific illnesses.
i.e. Criminal defences of insanity, diminished responsibility, schizophrenia, etc.

● Lowery v R (this case should be confined to the facts of its own case): Psychiatric
Evidence was tendered not to show a recognised scientific illness, but to show that there
was more than one accused and that the D was not the type of person to commit this
crime. (Although this case has not been overruled, many hold that this is bad law).

● Hence, the things to consider are:

1. Whether the “evidence” is based on a recognised scientific illness;
2. Where the evidence holds that the accused committed the offence - evidence of
propensity - generally INADMISSIBLE;
3. If the evidence is given on an ULTIMATE ISSUE which is for the Court to decide - it
will be held to be usurping the function of the Court.

Issue: Handwriting Evidence (see notes)

● Expert - S.45 EA 1950:

○ Syed Abu Bakar bin Ahmad v PP (somewhat a General Rule) - When the court is
tasked with determining the genuineness of handwriting, the Court should NOT
 make a decision without expert opinion.

● Non-expert - S.47 EA 1950:

○ Requirements - Differences may be determined by someone acquainted with the
handwriting or signature.

■ Who is acquainted is found under the Explanation to this section:

1. Person has seen that person write;
2. When A has received documents written by B in ANSWER to that
written by A (see illustration);
3. Documents written in the ordinary course of business &
handwriting are habitually submitted.

○ Leong Yeu Moi v Neo Ai Si: Just because the D is the wife of the deceased does
not mean that she is well versed with her late husband’s handwriting. Expert
opinion needed. ‘Acquainted’ issue required to be proven.

● Courts - S.73 EA 1950 - (usually applied when the differences are obvious) - Comparison
of signature, writing, or seal with others admitted or proved - allows for the court to
compare without the use of expert witnesses.

○ Sembagavally a/p Murugason v Tee Seng Hock:

■ Court to determine whether the P had signed documents other than the
SPA and Form 14A. P contended that his signature was forged.
■ Court held that S.73(2) could be used to compare the signatures.

○ Procedure - Astana International Sdn Bhd v RHB Bank Bhd:

■ The Judge directed the PW to provide 5 signature specimens and had the
PW sign on a specimen card. He then proceeded to make comparisons
between (i) the 5 specimens; (ii) the specimen card; and (iii) the alleged
forged signatures.

Issue: Evidential Value of Expert Evidence (S.45 EA 1950 evidence)

● Ong Chan Tow v PP - experts cannot give evidence on matters on which the court can
decide on its own.
● Wong Swee Chin v PP - expert is only there to assist the judge in coming to his
conclusion.
● Turner v R - Role of expert is to assist the court in areas where the court does not have
the necessary knowledge or experience.
● Discuss S.51 & Sim Ah Song v R & UAB v Tai Soon Heng Construction Sdn Bhd.
 Issue: Conflicting Opinion Evidence

● Dato Mokhtar Hashim v PP - where there is conflicting opinion evidence given by the
parties, the judge is free to choose which evidence or testimony he prefers but he should
give his reasons as to why one was preferred over the other;

● Tengku Joharis Badlisah v PP - Appellate court should not interfere with trial judge’s
decisions so long as the judge had weighed the respective theories carefully and
dispassionately and had reached a clear conclusion.

Chapter 6: Similar Fact Evidence

● General Rule - Makin v AG for NSW - evidence tending to show that the accused has
been guilty of criminal acts other than those covered by the indictment for the purpose of
showing that the accused is someone who has general criminal disposition is
inadmissible.

● Exceptions:
○ Common Law Exceptions:
Makin v AG - so long as the evidence of previous acts were of similar fact, the
evidence may be admitted to show intention, to rebut the defence of natural
causes or rebut the defence of accident.
● Applied in local cases such as R v Raju and PP v Veeran Kutty.
⇩
Boardman v DPP - The test was now whether the evidence was of such a high
degree of relevance that it’s probative value outweighed the prejudicial
effect.
● Note: Makin was NEVER overruled - only the basis of admissibility was
altered.
● Note: Unlike Ss.14 & 15 EA 1950, the second limb of Makin is not
confined to merely evidence showing state of mind.
○ PP v Ang An An: There are 3 ingredients to a criminal case: AR,
MR & Identity.
○ R v Straffen: Straffen was convicted for murdering 2 girls. He
escaped when he was being transported. Another girl was found
dead at the time he was missing and the manner in which she
was found was similar to the previous murders performed by
 Straffen. Court admitted evidence for the purpose of
identifying* the perpetrator. *does not contradict with Raju

■ Junaidi v PP - Applied Boardman Test - PV outweighs PE - Malaysia runs

on legal relevancy, but Boardman runs on logical relevancy. Therefore,
although Boardman should not run as a stand alone test (as it is based on
logical relevancy), it is not bad law as S.11(b) reflects the same concept.
● Therefore, there are 4 exceptions: S.11(b), 14, 15 & Boardman.

■ Azahan bin Mohd Aminallah v PP:

● Court held that the statutory exceptions should be read together
with the Boardman test.

■ Reconciliation: Since SFE is tendered by the prosecution, there is a need

to test it against R v Sang, where the court has the (common law)
discretion to exclude prosecution evidence (where the PE outweighs the
PV). Therefore, the nett of this concept and Azahan take into the same
considerations and no ‘new’ requirements are added.

○ Statutory Exceptions - In addition to Makin, R v Raju - SFE can be admitted under

S.11(b), S.14 and S.15:
Note: R v Raju: SFE cannot be used to prove AR. AR must first be proven before
SFE can be used to prove MR.

■ S.14 - specific purpose - prove a person’s state of mind when it is relevant.

■ S.15 - specific purpose - prove a person’s state of mind when the (i)
accused is concerned with (ii) a series of similar occurrences and (iii) the
question is whether it was done accidentally, with particular knowledge
or intentionally.

■ S.11(b) - facts which are not otherwise relevant are relevant - not limited
to state of mind (hence, can extend to identity but NOT AR) - used to
measure probative value (high probable or improbable) - see Junaidi v PP.

● Prejudicial Effect:
○ The prejudice suffered by the D is having evidence of other crimes he is not
charged with being used to prove his guilt. This may overwhelm the mind of the
trier of fact, but in Malaysia, the case is run by judges alone which are legally
trained on these matters.
○ There is also the need for the judges to provide their reasonings in the written
 judgement.
○ Hence, these factors reduce the risk of having a person being pronounced
guilty for wrongful reliance on SFE.

Issue: Argument that S.11(b) should not be used to admit SFE

● Based on probative value - wider than S.14 and S.15 - if purpose was to admit SFE, it would
render those Sections redundant - not the intention of the legislature.
● None of the S.11 illustrations are examples of SFE.
● S.11 was intended to be a residuary section for S.6 - S.10 EA 1950 - facts specifically
connected to FII - not a residuary section for SFE which can only be admitted under S.14 &
15.

Issue: SFE in Civil Cases

● S.14 - explanation 1 - evidence of general habits or tendencies are inadmissible under S.14
- discuss also illustration (n).
● S.15 - specific purpose for state of mind - discuss the 3 requirements.
● S.11(b) - admits evidence based on probativeness.
● Common law exception for SFE in civil cases was applied in Mood Music Publishing Co
Ltd v De Wolfe Ltd - P sued D for infringement of copyright on their musical work - P
wanted to tender evidence showing that in 3 other instances, D had produced music that
were subject to copyright. Court allowed evidence to be admitted.
○ Requirements:
1. The evidence must be logically probative;
2. Must not be oppressive or unfair to the other party;
3. Sufficient notice must have been given to the other party of the intention
to use the evidence

Issue: SFE in Criminal Cases

● Generally, there are 3 types of questions:

1. Where the accused in being charged for an offence and evidence of other
misconduct is sought to be admitted;
● Discuss GR in Makin - discuss exceptions.

2. Where the accused is charged in one proceeding for several counts;

● GR - evidence on one count is inadmissible in relation to another, but
where SFE can be found, it may be admissible in relation to other counts
 3. Other situations:
● Thompson; Lewis (???)

Chapter 7: Character Evidence

Character Evidence in CIVIL Cases:

● S.52 EA 1950 - General Rule:
○ In Civil cases, the character of any party is IRRELEVANT to render probable or
improbable any conduct imputed to him unless that party’s character is in issue or
relevant.

● S.55 EA 1950:
○ The fact that the character of any person is such as to affect the amount of
damages which he ought to receive is relevant.

● Note: Explanation to S.55 - under Sections 52, 53 & 55, only general character are
allowed to be shown, whereas under Section 54, both general and particular acts may
be shown.

Character Evidence in CRIMINAL Cases:

● Accused’s good character - relevant under S.53 EA 1950.

● Accused’s bad character - admissible under 2 provisions:

○ S.54(1) EA 1950 - evidence of bad character (BC) is irrelevant unless evidence of
his good character has been adduced.
■ GC is tendered by a person other than the accused.
■ R v Butterwasser - When can the accused be said to have put his
character in issue?
● It is when the accused either by their own testimony or by
presenting witnesses, advances evidence of the accused’s good
character.
● It does not merely become an issue if good evidence is testified
without premeditation (must be intended - Malindi v The Queen).

○ S.54(2) EA 1950 - where the accused gives evidence (the issue is raised during
the cross examination of the accused on his BC - since he is required to give
evidence under this Section):
■ General Rule - BC of the accused is not allowed to be raised during his
cross-examination if the BC is being raised for the first time - R v Jones .
 ■ Exceptions:
● S.54(2)(a) EA - SFE;
○ Upon establishing so, follow up with SFE principles.

● S.54(2)(b) EA limb 1 - where D or his counsel has adduced GC;

○ Must be premeditated - Malindi v The Queen
○ R v Winfield - Once GC is tendered, the D is putting
character evidence in issue - all BC will also be relevant
under this Section
○ Limitation: S.120(3) EA - Discretion of the court to limit the
questions being asked during cross examination in regard
to the bad character if it is used to attack the credibility of
the accused.
■ Selvey v DPP - GR - XE should be permitted except
in cases in which, in the opinion of the judge, would
make a fair trial impossible.

● S.54(2)(b) EA limb 2 - where D or his counsel has casted an

imputation on the Prosecution or PW;
○ R v Bishop:
1. Imputations may consist of PCs and human
behaviour which was not criminal but which might
be thought to be morally distastable.
2. Hence, anything to suggest an imputation would
allow for the P to bring in the accused's bad
character.

○ Selvey v DPP: the accused had “lost his shield” when he

alleged that the complainant had committed buggery.

○ R v Rouse: Calling the prosecution witness a liar was not

held to be an imputation.

○ However, in R v Rappolt where the accused held that the

PW was “such a horrible liar that even your brother would
not speak to you” amounted to an imputation.

● S.54(2)(c) EA - where there is a co-defendant.

○ See notes.

● Types of Bad Character - notes

 Chapter 8: Judicial Notice

● Section 56 EA 1950: No fact of which the court will take judicial notice need be proved.
● Section 57 EA 1950: 14 categories of which MUST be judicially noticed.

○ Can the court take judicial notice of any other facts than those listed under S.57?
■ Yes. Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd: List
in Section 57 is not exhaustive - there is no limit on the courts from taking
judicial notice of other facts mentioned therein.
● The matter of which the court will take judicial notice must be
subject of common and general knowledge and its existence or
operation is accepted by the public without qualification or
contention.
● Test: The fact involved must be sufficiently notorious that it
becomes proper to assume its existence without proof - Lee Chow
Meng v PP.

● Case Examples:
1. Pang Ah Chee v Chong Kwee Sang: Court took judicial notice of Chinese funeral
expenses and the fact that such expenses are normally incurred and only the
amount would vary according to the status of the deceased.

2. Lee Chow Meng v PP: Court may take judicial notice that there has been an
increase in the commission of offences in KL involving firearms.

3. Pembangunan Maha Murni Sdn Bhd: 2% rate commission to the broker was not
recognised as custom so as to entitle it to judicial notice.

● Rationale:
1. Save time and expenses in the trial - unnecessary to adduce evidence and prove
facts which are of common and general knowledge - ensuring a more efficient and
effective process.
2. Courts are presumed to know what every man of ordinary intelligence would
commonly know - should not include considerations of general knowledge that
are well known to the public.
3. Prevents witnesses from being called unnecessarily.

Note: Are facts that have been judicially taken notice of rebuttable?
● In some instances, no - eg: Current PM of Malaysia.
● Yes - eg: Pregnancy runs for 9 months - evidence of premature birth may be tendered.
 Chapter 9: Documentary Evidence

● Section 3 EA 1950 defines:

○ ‘Evidence’ as -
(a) all statements which the court permits or requires to be made before it by
witnesses in relation to matters of facts under inquiry: such statements are
called oral evidence;
(b) All documents produced for the inspection of the court: such are called
documentary 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, etc.
(b) Visual recording (still or moving images);
(c) Any sound recording, magnetic, mechanical, etc recordings and sounds,
electronic impulses, data;
(d) Recording or transmission in any combination of the above.

Rules Governing the Proof of Documents:

● Primary and Secondary Evidence:
S.61 EA 1950 Contents of documents may be proved either by primary or
secondary evidence.

Primary Evidence - the document itself is produced for the

inspection of the Court.

Explanation 3 - Documents produced by computer (including

phones, i.e. whatsapp messages etc) are primary evidence.
S.62 EA 1950
Cases:
1. PP v Rengasamy: Carbon copies are primary evidence
(made in the same process as “top copy”).
2. Allied Bank v Yau Jiok Hua: Typewritten carbon copy was
secondary evidence as it was signed separately - not
“same process”.

Secondary evidence includes (means it is not exhaustive):

(a) Certified copies;

(b) Copies made by the original by a mechanical process
 which ensures the accuracy of the copy;

● Lee Kok Nam v PP: Court held that photocopies

would come under S.63(b).

● PP v Jawan Ak Empeling: Fax copies are

secondary evidence under S.63(b).

(c) Copies made from or compared with the original;

(d) Counterparts of documents against the parties who did not
S.63 EA 1950 execute them;

● Explanation 1 to S.62 EA 1950.

(e) Oral accounts of the contents of the document given by

some person who has himself seen or heard it or
perceived it by whatever means.

Wong Choon Mei: Doctor gave oral evidence on contents

of x-rays which were lost. Allowed so long as contents
were seen from an original and not a copy. Here, the
doctor read from a copy of the X-rays and were hence
inadmissible.

S.64 EA 1950 Documents must be proved by primary evidence except in the

cases hereinafter mentioned.

Cases in which secondary evidence relating to documents may

be given:

(1) The reasons which secondary evidence can be used - see

Section.

Note: S.104 EA 1950 provides that the burden of satisfying

S.65 EA 1950 any of the preconditions in S.65(1) is on the party who
wishes to tender the secondary evidence.

Tahan Steel Corporation Sdn Bhd v Bank Islam Malaysia

Bhd: If a party fails to prove what has happened to the
primary evidence, secondary evidence will not be allowed
to be tendered.

(2) Depending on which exact paragraph in (1), which type of

secondary evidence may be used - see Section.

Rules as to notice to produce:

 Secondary evidence of the contents of documents listed in
S.66 EA 1950 paragraph 65(1)(a) shall not be given, unless...notice has been
*read together given to the authoritative party.
with S.65(1)(a) EA
1950 However, notice need not be required if it falls within one of the
circumstances found under (a) - (f) of this Section.

● Presumptions to Documents: S.79 EA 1950 - S.90 EA 1950.

● Proof of Signature, Handwriting, Execution and Attestation of Documents: S.67 EA
1950 - S.73 EA 1950.
● Failure to Object on Mode of Proof
○ S.58(1) EA 1950 - failure to object on mode of proof constitutes a waiver and
evidence shall be admissible - PP v Lee Kok Nam.

Issue: State the 2 purposes of which a document can be tendered for

● State definition of a ‘document’ and ‘evidence’ under Section 3 EA.

● Purposes:
1. A document may be tendered to prove the contents of the document
● S.61 - S.66 EA provides for rules pertaining to the proving of the contents
of a document.
● Briefly discuss what each Section covers.
● 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 a hearsay rule.

○ To prove that the statement was made - show consistency or

inconsistency (i.e for corroboration or impeachment)

2. A document may be tendered to prove the existence of condition of a

document
● S.60(3) EA - where oral evidence refers to the existence or condition of
any material things including a document, the court may, if it thinks fit,
require the production of that material thing for inspection.
● Here, the document will be tendered as real evidence.
Issue: Where a third party refuses to produce a document despite receiving the Notice under
S.66 EA - claims not bound by law to produce said document.

● Define S.66, S.65(1)(a) and the proviso to S.66 EA

● Two possible redresses:
○ Where the third party is someone under O.17 ROC 2012:
■ “Not bound by law” is NOT a legitimate excuse unless he is claiming
privilege.
■ S.65(1)(a) is invoked, triggering S.65(2)(a) - any secondary evidence is
admissible.
■ Secondary evidence defined under S.63 EA.
■ Since TP is a party to the proceeding, adverse inference under S.114(g) EA
may be made against him.

○ Where the third party is a stranger:

■ Proviso (f) to S.66 - Notice need not be sent to a party that is not subject to
the process of the court.
■ Hence, S.65(1)(a) is invoked and S.65(2)(a) is triggered, allowing secondary
evidence.
■ No adverse inference as a stranger bears NO legal burden in the case.

Issue: Public Documents

● Section 74 - what are public documents.

● Section 76 - when can certified copies of public documents be granted:
○ 3 requirements - Dr.Munawar Ahmad Aness v Ketua Pengarah Penjara,
Malaysia:
1. The document is a public document within the meaning of S.74 or the EA;
● There is no “public access” requirement before the document is
public - Gopinathan a/l Subramaniam v Timbalan Menteri Dalam
Negeri

2. He has a right to inspect the document;

● (TEST) whether or not he has an interest in the document and
whether the inspection is necessary for the protection of his own
interest - Toh Kong Joo v Penguasa Perubatan Hospital Sultanah
Aminah, Johor Bahru;

3. Payment of legal fees.

Case Law:
● Anthony Gomez v Ketua Polis Daerah Kuantan - FIR is a public document - accused
would be entitled to inspect it as he is a person interested - necessary for the protection
of his interest against what is being alleged of him.

● Khoo Siew Boo v Ketua Polis KL - Cautioned statements are public documents - accused
has a right to inspect his own cautioned statement; Haji Abdul Ghani bin Ishak v PP -
Co-accused have no right to inspect each other’s cautioned statement - although there is
interest co-accused is a competent witness - prevent witness tampering.

● Husdi v PP - S.112 statements from WITNESSES are public documents, however, this is a
privileged document and there can be no right of inspection of said document.

Issue: Rule against Extrinsic Evidence

The parol evidence rule is a principle that preserves the integrity of written documents or
agreements by prohibiting parties from attempting to alter the terms of the written document
through the use of oral or written terms that are not in that document.

● Section 91 - provides 2 categories of documents which prohibit extrinsic evidence:

○ Limb 1: When ALL 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;
■ Tan Chong Motors v Alan McKnight - where the contract is half
written-half oral, this Section would NOT apply.

○ Limb 2: In all cases in which any matter is required by law to be reduced to the
form of a document.
■ Balachandran v PP (FC) - FIR is not substantive evidence - its evidentiary
value is only to contradict the testimony of a witness or for corroboration -
hence, since it is not substantive evidence, it can be contradicted.
■ Ah Mee v PP - S.107 CPC requires a document by law to be reduced into
writing, hence, limb 2 of S.91 EA will apply. Once it applies, S.92 EA will
limit the admissibility of evidence.
■ Datuk Tang Leng Teck - S.92 EA would only apply if the documents are
bilateral in nature (owing to the words “as between the parties”)

● Section 92 EA 1950: Where Section 91 is proven, no evidence of any oral agreement or

statement which seeks to contradict, vary, add or subtract from the terms of the
written contract shall not be admitted, subject to 6 exceptions found under (a) - (f).
 ○ Note: S.92(c) may only apply where it was done PRIOR to finalising the final
contract.

Issue: Documents Produced by Computer

● Section 90A, 90B & 90C:

○ Rationale: Amendment in July 1993 - necessary to update the law owing to
changes in technology and the increasing importance of computers.

Admissibility of documents produced by computers, and of

statements contained therein.

(1) ...shall be admissible as evidence of any fact stated

therein…. (hearsay exception issue)...produced by
computer in the course of its ordinary use.

(2) May prove ‘ordinary use’ by tendering to the court a

certificate signed by a person, before or after the
production of the document, is responsible for the
management and operation of the computer.

● Standard Chartered Bank v Mukah Singh:

Certificate is only necessary when there is a
dispute as to the document being produced by a
computer ‘in the course of its ordinary use’.

(3) (a) Sufficient for the certificate given to be stated to the

best of the knowledge and belief of the person stating it.

(b) Certificate will be evidence prima facie proof of all

matters stated without proof of the signature of the
person who gave the certificate.

(4) Presumption that the computer used was in good working

order.

(5) Document produced by computer includes those

produced with any appropriate equipment, whether or not
there was human intervention.
S.90A EA 1950
(6) Deems a document produced by a computer to have
been produced by the computer in the course of its
ordinary use. (Function of this Subsection was explored in
Hanafi Mat Hassan* see below).
 (7) If the statement was made by a person, who manages the
operation of the computer or is involved directly or
indirectly in the production, is charged, it will not be
admissible.

Note: Where S.90A cannot apply, an alternate can be found in

Mohd Khayry bin Ismail v PP:
● The amendments in relation to computer generated
documents found in the EA 1950 does not affect the
common law position of R v Maqsud Ali.
● In R v Maqsud Ali, there is a need to prove that the
document is relevant and that it is reliable -
accuracy/authenticity must be proven - there is still need
to prove that the computer was in good working order,
however, it is usually applied when there is no evidence of
‘ordinary use’.
● The case of Mohd Khayry also stipulated that where
S.90A cannot be satisfied, the document may still be
tendered if any other hearsay exception applies.

S.90A SUB-ISSUE #1:

*Hanafi Mat Hassan v PP:
● S.90A(6) is ought to be construed strictly and only for the purpose of which it
was created.
○ S.90A(2): Certificate to show that a document was produced by a
computer in the ordinary course of its use.
○ S.90A(6): Deems a document produced by a computer to have been
produced by the computer in the course of its ordinary use.
○ Hence, these two provisions are incompatible and inconsistent with
each other and cannot be used to substitute one another.

● S.90A(6) EA 1950 only applies when the document is produced by a computer

NOT IN ITS ORDINARY USE.

To invoke S.90A(6) to satisfy the requirement under S.90A(1) to render the

document admissible, S.90A(4) must first be established by:
1. tendering a certificate under S.90A(2) - [not applicable here] or
2. calling a witness as per Gnanasegaran.

Example:
In a forensics lab, DNA sample results are produced. These results are produced by a
computer. The ordinary use of the computer would be to run DNA results. This signifies
that the risk of there being corruption would be relatively low.

However, it is also possible that the computer can be used to write emails. This would
be a computer produced document which was in good working order, but this is not
done within ordinary use.

Hence, S.90A(6) will be applied to deal with this issue. Courts will invoke “presumption”
under (6) and say that the email was produced in the “ordinary use” of the computer -
provided all other requirements are satisfied.

Ahmad Najib Aris v PP agreed with the case of Hanafi:

1. If the certificate is tendered: S.90A is activated and established.
2. However, if oral evidence (without certificate) is tendered, there is a need to
prove that the document was produced by a computer NOT in the ordinary
course of use AND that the computer was in good working condition.

S.90A SUB-ISSUE #2:

Gnanasegaran a/l Pararajasingham v PP:

● Whether or not other methods can be used to prove the ingredients of S.90A.
○ Court held that since it was worded as ‘may’, methods other than
providing a certificate may be used- i.e calling a witness (same person
who should have signed and issued the certificate) - he must give
evidence (of those presumed under subsection 4) that:
1. This is a computer produced document;
2. He must mention that the document was produced during
ordinary use of the computer;
3. The computer must have been in good working order.
● Here, it was held that a certificate was only necessary if the witness (in charge of
the management of the computer) was not giving evidence.

S.90A SUB-ISSUE #3:

(IMPORTANT - hearsay exception issue!!):

S.90A is also a hearsay exception as per Gnanasegaran v PP. S.90A(1) is an update
of the ‘best evidence rule’ with the realities of the electronic age.

● Bergamo Development v Eck Development - Courts allowed whatsapp

messages to be tendered under S.90A - requirements satisfied.
● PP v Dato Sri Mohd Najib Razak - Blackberry Messenger - admitted.
 ● Avnet Azure Sdn Bhd v Eact Technologies Sdn Bhd and Sapura Research Sdn
Bhd:
○ It was held here that where the output is a mere regurgitation of its input
(i.e emails, SMS/whatsapp messages), it does not fall within the purview of
S.90A as it has not been “produced” by a computer.

○ The Court also held that S.90A should not be a hearsay exception as
admission of “documents” - in this case, an email - without calling the
maker should be inadmissible. (Maker not subject to cross-examination)

● Aprofit Sdn Bhd v Kent Sing Constructions Sdn Bhd

○ The Courts were CONCERNED that any document, including an invoice,
would be admitted regardless of its authenticity as long as it was printed by
a computer.

Note: Hearsay exceptions are meant to work towards minimising risks of mistake,
concoction and fabrication. To allow emails, SMS, text messages to come in as hearsay
evidence merely by relying on S.90A would be disregarding the hearsay risks and
would do nothing to minimize such.

Section 90B EA Weight to be attached to document or statement contained in

1950 document, admitted by virtue of S.90A EA 1950.

Section 90C EA Sections 90A and 90B to prevail over other provisions in this
1950 Act, the Banker’s Books (Evidence) Act 1949, and any other
written law.

● Cases:
○ Mok Yii Chek - Whatsapp messages fall within the definition “documents” under
S.3 EA.
○ Hanafi Mat Hassan - S.90A was used to admit a bus ticket produced by a
machine on the bus and a DNA report.
○ Mesnayo bin Longdi v PP - Digital photos were admitted under S.90A.
○ Gnanasegaran v PP; Bespile Sdn Bhd v Asianshine Sdn Bhd - S.90A used to
admit computerised bank statements.
■ The latter case held that the Court can take notice under S.57 EA that bank
statements in this era of computers and information technology are
invariably produced by computers.

○ Petroleum Nasional Bhd v Khoo Nee Keong - The Court accepted that emails,
instant messages and digital photographs stored in a computer constituted
documents produced by a computer.
● In the event the requirements of S.90A are satisfied, Explanation 3 to Section 62 EA
provides that a document produced by computer is primary evidence.

Issue: Evidence under Mutual Assistance in Criminal Matters (S.90D, E & F EA 1950)

● S.90D EA 1950: Provides for the applicability of the provisions.

● S.90E EA 1950 - GR - Any testimony, statement or deposition, together with any

document or thing exhibited or annexed to such statement or deposition, that is received
by the AG pursuant to a request made under the Mutual Assistance in Criminal Matters
Act 2002, shall be admissible as evidence.
○ This provision allows for a witness’ testimony to be admissible, even for the truth
of the matter stated, without the witness having to attend court.
○ This seems to ease the collection and tendering of evidence where witnesses in
applicable cases are abroad.
■ 3 types:
1. Writing - Subsection (7) states that certificate under Subsection (3)
is required;
2. Recorded sounds or images Subsection (7) states that certificate
under Subsection (3) is required;
3. “Virtual Presence” i.e Skype/Facetime/Whatsapp Videochat -
Subsection (8) - as if he is giving his testimony in Court;

○ Subsection (10) prevails over the cases of Kuruma & Sang - removes the Court’s
discretion of the court to adduce evidence - Aizuddin Syah bin Ahmad v PP.

● S.90F EA 1950 - Upon receipt of the evidence, the AG or someone authorized by the AG
is to issue a certificate and certify that the evidence has been received by the AG in
pursuant to Mutual Assistance. This certificate (attached with the evidence) shall on its
production, without further proof, be admitted in the proceeding as conclusive evidence
of the facts contained in the certificate.

Issue: Digital Photographs - where the memory card has been erased

● Positive Well Marketing Sdn Bhd v OKA Concrete Industries Sdn Bhd:
1. Court recognised that people do erase memory cards and this would fall within
Section 65(1)(c) EA 1950.
2. As long as the Court is sure of the accuracy and authenticity of the image (which
in this case has been saved onto PW3’s computer before the storage card was
erased), it can be tendered.
 3. Here, the Court called the person who took the original photographer of the
image to testify under oath

● Further examples:
1. Scenario 1: Poem on wall (Primary Documentary Evidence) → Memory Card
(Erased) → Saved photograph (admissible under Secondary Documentary
Evidence - S.65(1)(c)).

2. Scenario 2: Poem on wall (Primary Documentary Evidence) → Memory Card

(admissible under Secondary Documentary Evidence - S.65(1)(d)).

3. Scenario 3: Photograph of person or object → Memory Card (Primary Documentary

Evidence). However, if erased → Saved photograph (admissible under Secondary
Documentary Evidence - S.65(1)(c)).

Issue: Tape Recordings

● Tape recording of a relevant conversation is a relevant fact and is admissible under this
Section 7 EA 1950. The proof of a tape recording (document within the meaning of
Section 3) is governed by Sections 61 to 66 - produced for inspection in court or via
secondary evidence.

● Conditions set out in Mohd Ali Jaafar v PP:

1. The tape was run through and found to be clean before the recording was made;
2. The machine was in proper working order;
3. The tape was not tampered with or altered in any way - it should be established in
whose possession the tape was at all times;
4. The officers or other witnesses played the tape over after making the recording
and heard voices which they can identify;
5. A transcript was prepared of the voices;
6. The officers (or other witnesses) played over the recording and checked it with the
transcript as to identify the voices and as to the conversation.
 Chapter 10: Burden and Standard of Proof

Burden of Proof:
● Determines who has to prove the FII of a case - Sections 101 to 114 EA 1950 - mainly S.101
- 106 EA.

1. Legal Burden of Proof:

● Obligation as a matter of law to adduce evidence to the satisfaction of the courts
to establish the existence or non-existence of each FII.
● This burden has to be satisfied on the required standard of proof - the BOP is only
discharged if the FII is established or proved.
● Jayasena v R - ‘proved’ in S.3 EA appears to refer to the legal burden of proof and
not the evidential burden.

2. Evidential Burden of Proof:

● This is satisfied by merely adducing evidence to create a live issue.
● Where the accused has an EB, all he needs to do is adduce evidence that would
lead to a failure on the part of the prosecution to prove the case beyond a
reasonable doubt.
● Where the accused is not asking for any particular defence - accused does not
bear a LB, only a EB - Nagappan a/l Kuppusamy.

The question as to who bears the BOP is a question of law. Where a party in any proceeding has
discharged this legal burden is a question of fact. An error by the courts as to the burden or
standard is a ground of appeal.

Note: It is not for the accused to prove his innocence, it is for the prosecution to prove his guilt.
● Mat v PP - in this case the Court convicted the accused on the ground that “on the whole”
they could not believe the accused;
● PP v Saimin - the accused’s case depends on its support, not upon its absence or
weakness on his part.

Note: Where there is dispute as to the ingredients of the offence, the burden is on the P to prove
the ingredient and not for the accused to prove there is not - i.e cannot use S.106 to shift burden
to accused to prove AR or MR - Mary Ng; Attygalle

Standard of Proof:
● Definition - Miller v Minister of Pensions:
 1. “BRD” - “it need not reach certainty, but it must carry a high degree of probability.
Proof BRD does not mean proof beyond the shadow of a doubt”.

2. “Balance of Probabilities” - “If the evidence is such that the tribunal can say, ‘we
think it more probable than not’, the burden is discharged, but if the probabilities
are equal, it is not”.

● Criminal cases: Prosecution - BRD - Mat v PP; Accused - Balance of Probabilities -

Yuvaraj v PP.

● Civil Cases: Both P and D - balance of probabilities.

Issue: Criminal allegation in Civil Suits

● Sinnaiyah & Sons Sdn Bhd v Damai (2015): So long as it is a civil case, the civil standard
would apply, i.e. balance of probabilities.
○ Pre-Sinnaiyah:
■ Ang Hiok Seng v Yim Yut Kiu (fraud case): If there is a criminal allegation
in a civil case, that allegation needs to be proven on a standard beyond
reasonable doubt, unless the fraud was purely civil in nature, hence,
standard would be that on a balance of probabilities.

Issue: Forgery

● BOP - Letchumanan Chettiar v Secure Plantation Sdn Bhd: The party relying on the
validity of the document must first prove so (regardless who is alleging forgery), before
the adverse party needs to raise issues regarding forgery.

● Sembagavally Murugason v Tee Seng Hock:

○ Jeffrey Tan FCJ - allows for Letchumanan to apply for all civil cases - and not limit it
to cases on power of attorney.

● Standard - Boonsom Boonyanit v Adorna Properties - Forgery to be established on a

balance of probabilities.

Issue: S.105 EA - Defences under the Penal Code

 ● S.105 EA - burden on party relying on the defence to prove that there is existence of
circumstances entitling him to the exception.

● Kenneth Fook Mun Lee - insane automatism - S.105 places a legal burden on the
accused.
● Jayasena v R - claimed provocation - S.105 places a legal burden on the accused.
● Usually applied when doubt can be casted on the P’s case - Chandrasekaran -
depending on the evidence, even if the accused fails to prove the elements of the
defence, he might have succeeded in creating a gap in the prosecution’s case - if so,
entitled to an acquittal - supported in Duis Akim v PP and Pathmanabhan Nalliannen v
PP.

● Accused to prove on a balance of probabilities (PP v Yuvaraj).

● The type of evidence required to prove the defence of insanity is usually expert evidence
under S.45 EA 1950.
○ In the case of Baharom, the Court drew an adverse inference against the accused
for failing to call certain expert witnesses who could have given evidence on the
defence of insanity which he was claiming.

Issue: Defence of Alibi

● S.103 EA - Illustration (b) - legal burden on the accused - since A is making a positive
allegation that he is elsewhere, the BOP should be on him.
● Standard - on A - balance of probabilities - PP v Yuvaraj - definition in Miller v Minister of
Pensions.
● However, note that alibis are not defences and not facts in issue (as they are not
ingredients to any offence/defence) - they are STRONG relevant facts.
● Pathmanabhan Nalliannen v PP - once the accused person pleads an alibi he does not
assume the burden to prove, the onus is on the prosecution...the evidence of the
accused’s alibi need only raise a reasonable doubt that he committed the crime.

● Where the A manages to establish that he was elsewhere, he will be acquitted - however,
even failing to establish so may still cast a reasonable doubt on the prosecution’s case.

Note - the following cases hold that the A only has an EB when relying on a alibi:
● Yau Heng Fang; Lillian v PP - Courts decided that the accused only bears EB - the
accused only has to adduce some evidence to raise doubt in the P’s case - these cases
were decided per incuriam as they did not consider S.103 EA.
● Chandrasekara - see above.
● If EB, there is no standard of proof.

Issue: S.106 EA - Where the fact is known within the knowledge of any person...

● Rationale - PP v Hoo Chee Keong - S.106 EA is an exception to S.101 EA - not intended to

relieve the P of that duty - designed to meet exceptional cases where it would be
disproportionately difficult for the P to establish facts which are ‘especially’ within the
knowledge of the A.

● Usually raised where authority/permit/license are in question - should not be applied in

cases like Mary Ng v R (P held D should prove MR) and Attygalle v R (Court held P should
prove illegal operation and not for D to prove it was not - AR).

● Re Tan Kheng Cheng - The Courts held that the P must first establish a prima facie case
before any burden is placed on the accused under S.106 EA.
○ Hence, after prima facie case is proven, Jayasena - A has legal burden - balance
of probabilities (PP v Yuvaraj) - definition (Miller v Minister of Pensions).

Issue: Prima Facie Case

● S.173 - S.180 CPC

● Situation before the 1997 Amendment:
○ PP v Man Bin Abas; PP v Chin Yoke - applied BRD at prima facie.
⇩
○ Haw Tua Tau - following the Singapore CPC (which is pari material to the local EA)
there is no obligation to prove a prima facie case BRD.
■ This was followed in other local cases of Munusamy v PP and Junaidi v
PP.
⇩
○ Khoo Hi Chiang v PP - SC overruled Haw Tua Tau (+Munusamy and Junaidi) -
Court must conduct a MAXIMUM EVALUATION when determining prima facie.

● After the amendment: current s.173(h)(iii)

Looi Kow Chai v PP - Judge must subject evidence to a maximum evaluation - TEST: if
judge decides to call upon the accused to enter his defence and he elects to remain
silent, is the judge prepared to convict him on the totality of the evidence contained in the
prosecution’s case?
 ○ If the answer is in the negative - no prima facie case, accused entitled to an
acquittal.

● Note - Looi Kow Chai v PP; DSAI; Balachandran - there is no burden on the prosecution
to prove its case beyond reasonable doubt at the close of its case. BRD is only to be
determined at the close of the whole case.
○ DSAI - if the accused elects to remain silent and fails to show why the finding of a
prima facie case is wrong, the case will be said to have been proved BRD.
○ Low Kooi Chai - Accused cannot be compelled to give evidence but must risk the
consequences if he does not do so - if explanation needs to be given and is not, it
is common sense to draw an adverse inference and that the accused is guilty.
○ Balachandran - prima facie case is one which is established by sufficient
evidence, and can be overthrown only by rebutting evidence adduced by the
other party.

Issue: Circumstantial Evidence

● What is circumstantial evidence? Where it is evidence of relevant facts and not facts in
issue and the judge has to draw an inference from these facts
● Circumstantial evidence is sufficient to convict - Letchumanan, Sunny Ang
● Irresistible Conclusion Test - Discuss Kartar Singh v R:
○ Is the evidence consistent with his guilt?
○ Is there any inconsistencies with any other material conclusion?

● McGreevy (following in FC case of Jayaraman v PP) - the irresistible conclusion test =

proving BRD (no higher burden).

● PP v Azilah bin Hadri - circumstantial evidence alone can lead to a conviction, provided:
1. Circumstances from which the guilt is to be drawn is established;
2. Facts established is consistent with the hypothesis of guilt;
3. Circumstances are complete and conclusive to exclude any consistency with the
accused’s innocence.
 Chapter 11: Presumptions

Provisions: S.107 EA 1950 to S.114 (a) - (i) EA 1950

2 types of presumptions:
1. Presumption without basic facts - nothing more than abbreviations of the rules allocating
the burden of proof - eg. Presumption of Innocence and the Presumption of Sanity.

2. Presumption with basic facts - S.4 EA lays down 3 types - once the basic facts are
established, then only presumptions come into play - Ng Kim Huat:

a. Presumptions of Fact - the courts MAY take the presumed fact to exist - may be
rebutted.
● Defined under S.4(1) EA - where it is provided that the Court may presume
fact, (i) it may regard the fact as proved unless and until it is disproved; or
(ii) It may call for proof of it.

b. Presumptions of Law - the courts MUST take the presumed fact to exist - S.4(2)
and (3) states “shall presume” and “conclusive proof” respectively.
● Rebuttable presumptions of law - may be rebutted.
● Irrebuttable presumptions of law - cannot be rebutted.

Effect of Presumptions:
● Aid in discharging a party’s BOP
● The party relying on the presumption bears the burden of proving the BASIC FACTS -
once successful, his adversary bears the burden of disproving it.
○ Note: The party against whom the presumption may operate has 2 options:
1. He may adduce evidence (XE or calling witnesses) to prevent the other
party from establishing the basic facts.
2. He may disprove the basic fact (except in cases of irrebuttable
presumptions).
● “Disprove” as defined under S.3 EA 1950 suggests that a legal burden is placed on the
party seeking to rebut the presumed fact - follow burden and standard accordingly.

Issue: S.114(a) EA 1950

● Basic facts - (i) accused was in possession of the stolen goods (ii) soon after theft
 ● Presumed fact - accused is the thief or has received the goods knowing them to be stolen
- ‘may presume’ - S.4(1) EA - discretion of the courts.
● Rebuttal - if accused can account for his possession - S.3 ‘disproved’ - accused has LB to
disprove on a balance of probabilities.

Issue: Section 114(g) EA 1950

Basic Facts:
1. Evidence which could be produced that is withheld must have been material to the case;
● “Could be produced” - evidence must be available to the person that withholds it -
PP v Nanda Kumar Govindasamy - no adverse inference drawn as the
whereabouts of the person not called was unknown.
● Munusamy v PP - material evidence is material witnesses or material documents,
not just any type of evidence.
● PP v DSAI - no adverse inference was drawn as the evidence of the persons not
called was not necessary.

2. There must be deliberate withholding or suppression of evidence - and not merely a

negligent failure to obtain the evidence (Munusamy v PP).

Presumed Fact: the evidence is unfavourable to the party who withheld it.
● Case law has suggested that this presumption is only invoked when the party has a legal
burden to an issue.

Other facts the Courts will consider when invoking S.114(g) EA against:

Criminal Cases:
1. The discretion of the PP;
● Teoh Hoe Chye v PP: Adverse inference should not be
drawn against the prosecution unless the failure to call
the witness gives rise to a serious gap in his case.

2. Whether there was sufficient evidence in support of the P’s case;

● Namisiyiam v PP; DSAI v PP - failure to call witnesses did
not lead to adverse inference as the P would not have
fallen short of prima facie.

3. Whether the P had offered such witnesses to the D;

● Generally, the presumption does not arise if the witnesses
are offered to the defence.
 the Prosecution ●However, Abdullah Zawawi v PP - it is not for the defence
to call the offered witnesses to supplement the P’s case.
● P may offer by:
(a) calling the witness to testify (XE for D) or
(b) Tan Ah Lay v PP where there are high numbers of
witnesses, pass the list of their particulars to the D.
4. Whether the witness had statutory protection.
● i.e S.40(1) DDA 1952 - protection of INFORMERS.
○ Munusamy v PP - no adverse inference should
have been made for the failure to call the informer
as he was entitled to statutory protection under
S.40(1) DDA.
● Does not extend protection to agent provocateurs - as
seen in Ti Chuee Hiang & Lee Lee Chong - instead APs
are protected under S.40A (1) DDA 1952 (cannot be
presumed to be unworthy of credit by attempting to abet
the crime if the SOLE PURPOSE was to secure evidence -
PP v Amir bin Mahood).

1. Where the accused bears EB - Goh Ah Yew v PP - no such

inference can be drawn against an accused person.
the Accused ● In this case, it was also held that no adverse inference
should be drawn against him when he chooses not to call
a certain witness or provide certain evidence.

2. Where the accused has a legal burden, adverse inference can be

drawn - Baharom v PP - accused has LB to prove insanity.

Civil Cases:
● GR - S.114(g) EA should not be invoked against the D where he does not bear the legal
burden of proof - Selvaduray v Chinniah.

Issue: S.114A EA 1950

● S.114A EA 1950 - Presumption of fact in a publication - this Section was only introduced
in 2012:
○ “Is presumed” gives no discretion to the courts, hence, it is a (rebuttable)
presumption of law. However, the title suggests that it is a presumption of fact and
this is preferred as it will enable the court to control and act as a check on the
obvious dangers of the Section.

● Issues and problems arising from S.114A EA:

 1. Rutinin bin Suhaimin v PP - decided prior to S.114A - maker of the statement only
had to raise a reasonable doubt. Now with the introduction of S.114A, the maker
has to prove his innocence on a balance of probabilities.

2. Burdens internet users who are wrongfully accused of publishing seditious or

defamatory content - cyberspace is easily infiltrated, easily hacked etc.

3. Internet forum owners that provide online community forums, blogs and hosting
services will be liable for the content that is published through their services.
4. Further infringement on the freedom of speech.

● Note: Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Ketua Editor Malaysia Kini:
○ The Malaysian Judiciary faced backlash via the comments on one of the articles
that MalaysiaKini had published.
○ MalaysiaKini were charged with contempt of court under S.114A(1) EA 1950 as they
were presumed to be the publisher of such comments.
○ The issue was whether or not MalaysiaKini had rebutted the presumption:

■ They intended to do so by stating that they did not have the knowledge
that these comments were being posted on their article.
■ MalaysiaKini held that the comments go through a certain ‘filter’ in which
words which are banned would not allow the comment to be published.
The words in the comments were not caught under their filter.
■ They also argued that the moment they realised, they took it down
immediately.

○ The Court (majority) held that the ‘filters’ used were inadequate. Hence, the
rebuttal was not allowed - Mkini liable.
■ Ash’s opinion - inadequate filters somewhat meant that those words were
“allowed”.
○ Minority - also held that the filters were inadequate but this meant that they had no
knowledge - Mkini should not be held liable.

Issue: Res Ipsa Loquitur - Presumption of Negligence

● It will be presumed where the victim would not have suffered damages if the negligence
did not occur.
● To rely on this presumption, the plaintiff has to prove:
1. A thing is shown to be under the management of the D or his servants;
2. An accident has happened;
3. The accident such as in the ordinary course of things would not have happened if
those who are involved in the management had conducted proper care.
● David Chelliah v Monorail Malaysia: It was not sufficient to show several hypothetical
causes consistent with the absence of negligence and that the accident might have
occurred without negligence on their part. To discharge the onus, they had to go further
and either show that they had not been negligent or to give an explanation of the cause
of the accident which did not connote negligence by them. (Tort - Legal Burden - Balance
of Probabilities).

● Whether or not the D is negligent is a fact especially within their knowledge - S.106 EA -
burden to prove on D.

Issue: Presumption in the DDA 1952

● Hasim bin Jonet v PP; Mohd Radhi v PP - presumptions under S.37(d) and S.37(da) DDA
1952 operate independently - even if the presumption of possession has not been
rebutted, unless the facts of the case does not obviously so warrant, the Judge should
consider as a separate exercise whether the presumption of trafficking has been
rebutted. Failure would warrant a ground of appeal.

● S.37(d) DDA 1952 - rebuttable presumption of law:

○ Prosecution to prove basic facts BRD - Ng Kim Huat, Mat v PP.
○ Accused can rebut presumed fact (knowledge of the nature of the drug) on a
balance of probabilities - Yuvaraj.

● S.37(da) DDA 1952 -

The issue on double presumptions:
1. **Muhammaed Hassan v PP:
● Court held that there was a need to PROVE knowledge in drug trafficking
cases.

2. However, by applying newly added S.37A DDA 1952 introduced in 2014, it allows
for the presumption in possession to be applied in trafficking offences as well -
resulting in 2 presumed facts.
● However, the words ‘may’ gives the Court discretion.
● The introduction of this Section nullifies the decision of Muhammed
Hassan (This Section allows for 2 presumptions to apply under S.37(da)
DDA 1952).
 3. In 2018, in the case of Alma Nudo Atenza v PP, the Federal Court declared that
S.37A DDA 1952 was unconstitutional (breach of Art 5(1) and Art 8(1) of the FC)
and Muhammed Hassan was restored.

Possession of Dangerous Drugs Trafficking in Dangerous Drugs

Section 37(d) DDA 1952 Section 37(da) DDA 1952

“Any person who is found to have had in his “Any person who is found in the possession of
custody or under his control anything -
whatsoever containing any dangerous drug (i) 15g or more in weight of heroin;
shall, until the contrary is proved, be deemed (ii) 15g or more in weight of morphine’
to have been in the possession of such drug .
and shall, until the contrary is proved, be .
deemed to have known the nature of such Otherwise than in accordance with the
drug”. authority of this Act or any other written law,
shall be presumed, until the contrary is
proved, to be trafficking in the said drug”

Elements: Elements:

(1) Custody or PROVE (1) Custody or PROVE

Control (basic (by Prosecution BRD) Control (basic (by Prosecution BRD)
fact) fact)

(2) Dangerous Drug PROVE (2) Dangerous Drug PROVE

(basic fact) (by Prosecution BRD) (basic fact) (by Prosecution BRD)

(3) Knowledge of the PRESUMED (3) Knowledge of the PROVE**

nature of the drug (Court SHALL presume) nature of the drug (by Prosecution BRD)
(presumed fact) (basic fact)

(4) Weight of the PROVE

drugs (basic fact) (by Prosecution BRD)

(5) Intent to traffic PRESUMED

(presumed fact) (Court SHALL presume)

● The defence of innocent carrier under the DDA:

○ Munuswamy Sundar Raj v PP:
■ Mere denial is not sufficient. If the accused deliberately ‘shuts his eyes’ to
the obvious, because he ‘doesn't want to know’ he is taken to know.

○ Maria Elvira Pinto Exposto v PP (2020):

 ■ FC held that the accused was an innocent carrier as she was a victim of an
internet romance scam and was deceived.
■ The facts here do not warrant the application of ‘willful blindness’ as she
could not have been deemed to have ‘shut her eyes’ to the obvious as
there was no suspicion to begin with.
■ Only where there is reasonable cause for obvious suspicion and the
accused has taken no effort to dispel such suspicion will they be
presumed to have accepted the risk of that suspicious endeavour.

○ Simon Savarimuthu Thevarajah v PP (2020):

■ The fact that the accused had momentary custody and control of the box
before he was arrested cannot show that he had possession, and hence
knowledge of the contents of the box.
■ Following this, his expressions of shock and confusion when the true
nature of the contents were disclosed cannot lead to an irresistible
inference that the accused had knowledge.
■ Hence, it was not safe for the court to convict the accused of the charge.
 Chapter 12: Competence and Compellability

● General Rule: S.118 EA 1950; Explanation to S.118 EA; S.119 EA 1950.

● Compellability - Ghouse bin Haji Kader Mustan; S.120(1) & (2).

Issue: Competency of the Accused

● S.120(3) EA 1950 - Competent witness on his own behalf, cannot be compelled to give
evidence for himself.
○ Not a competent witness for the Prosecution unless he ceases to be an accused
(i.e either where he pleads guilty and is convicted, or when the charges against
him is dropped).
● Note: S.133 EA - an accomplice shall be a competent witness against the accused.

Issue: Evidence by Children

● Preliminary examination - MANDATORY - failure would amount to a ground of appeal.

● Criminal Cases:
a. Sworn evidence: Where the child can understand the nature of the oath or the
higher or the solemn duty of speaking the truth in court.

b. Unsworn evidence: S.133A EA 1950 - If it is the court’s opinion that the child does
not understand the nature of the oath but possesses sufficient intelligence to
justify the reception of evidence and understands the duty of speaking the truth,
he may give unsworn evidence. (Note: Must be corroborated unless it falls under
SOACA 2017)

● Civil Cases:
a. Sworn/Unsworn Evidence: allowed under the Oath and Affirmation Act.

● Mohd Amin Ishak v PP: When the child saw the incident, she was 14, but at the date of
the trial, she was already 17. Competence is judged on the date of the trial. The Court did
not conduct a preliminary examination, but the appeal was dismissed as she was old
enough and no preliminary examination was needed.
 Issue: Accused’s Spouse

● S.120(2) EA 1950 & Ghouse - accused’s spouse is a competent witness for the
prosecution (although not stated specifically in this subsection, we can imply from the
wording of S.120(3))
● GR - Ghouse - a competent witness is a compellable witness unless privilege (S.122 - S.127
or S.130 EA 1950) applies.
○ Here, the most relevant provision would be S.122 EA 1950 - marital
communications privilege. DISCUSS REQUIREMENTS.

Issue: Accused Evidence

● S.120(3) EA 1950 - where the accused chooses not to testify, he is permitted to make a
dock statement. Dock statements are unsworn statements - accused not called to XE but
must be evaluated in light of all other evidence.
● DSAI - weight attached will be reduced; however, this must be considered in light with
any other available evidence to corroborate the unsworn statement - Lee Boon Gan v R.

Issue: Co-Defendants

● Singapore case of Lee Yuen Kong - Defendant can give evidence for Co-Defendant.

Issue: Sequestration of Witnesses

● Purpose:
○ Prevent witnesses from tailoring their testimony;
○ Aids the fact finder in detecting testimony that is less than candid.

● Yomeishu Seizo Co v Sinma Medical Products (M) Sdn Bhd - witnesses that are yet to
testify should be excluded from the courts unless they are parties to the proceeding, the
accused (must be first to testify for the defence - S.181 CPC) and expert witnesses.
○ Dr Soo Fook Mun v Foo Fio Na: States that expert witness is an exception and
they SHOULD be allowed to hear other expert witness’ opinions. In this case, the
P’s expert witness was not present but the P had tendered the expert report. The
D’s expert witness was given P’s expert report and the court held that it was
perfectly proper for him or her to later study the notes of evidence to ascertain
the nature of the evidence given.
● Note: S.132 EA 1950 - anything testified may not be used in the witnesses own trial.
○ Dato Haji Wasli - may be tried for the trial he is incriminated in, but his testimony
in another’s trial cannot be used.

Chapter 13: Privilege

● Privilege is a power to withhold evidence, either by not answering questions or

producing documents, or by preventing another witness from doing the same in
interlocutory proceedings or at the trial.
○ Required to be raised in Court. Failure to object would not be subject to a waiver
as the right to waive privilege lies in the hands of the witness. - Palldas a/l
Arumugam

● Sections 121 - 134 EA 1950.

Issue: Marital Communication Privilege

● S.122 EA 1950:
○ Limb 1: No person shall be compelled to disclose any communication made to him
by his spouse (whether present or former - provided the communication was
made while they were married).
■ Applies where the witness refuses to testify - they cannot be forced.

○ Limb 2: No person shall be permitted to disclose any such communications

unless the spouse or his representative in interest consents.
■ Applies where the witness wants to testify - they cannot be allowed to do
so unless consent is obtained.

● Exceptions:
a. In suits between married persons (i.e trespass to persons)
b. Proceedings in which one married person is prosecuted for a crime committed
against the other.

○ Ghouse bin Haji Kader Mustan: Exceptions apply to both limbs (c/f) Mok Yii Chek
- Exceptions only apply to the 2nd limb.

● Conditions for S.122 to apply:

1. Judicial proceedings;
2. The maker of the communication and the recipient are or have been married;
3. The communication was made during marriage.
 Issue: Legal Professional Privilege

a. Any communication made to him in the course and for the purpose of his
employment or on behalf of his client;
b. The contents or condition of any document he has become acquainted in and for
the purpose of his employment;
c. Any advice given by him to his client

● Requirements:
○ Must have client-lawyer relationship - Dato Sri Mohd Najib Hj Abdul Razak v PP;
○ There must be express consent before privilege can be waived & once something
is privileged it is always privileged (disclosure does not waive privilege) and can
only be waived by express consent of the client - Dato Au Ba Chi v Koh Kheng
Kheng & Dato Anthony See v See Teow Chuan

● S.127 EA 1950 - S.126 EA 1950 shall apply to interpreters and the clerks or servants of
advocates (i.e the whole firm is bound by privilege).

● S.128 EA 1950 - If any party to a suit give evidence at his own instance or otherwise, he
shall not be deemed to have consented as mentioned in Section 126; and if the party to a
suit calls any such (former) advocate as a witness, he shall be deemed to have
consented to the disclosure ONLY IF he questions the advocate with intent for the
privileged content to be disclosed (waived).

Issue: S.129 EA 1950

● S.129 EA 1950 - No one shall be compelled to disclose to the court any confidential
communications which has taken place between him and his legal professional adviser
unless he offers himself as a witness, in which he may be compelled to disclose any
such communications as may appear to the court necessary to be known in order to
explain any evidence which he has given, but no others. (i.e prevents the clients/third
party from disclosing privileged information).

● Are communications between solicitor or client and third parties privileged? (Litigation
Privilege)
○ Wang Han Lin v HSBC Bank Malaysia Bhd:
■ 2 types of privilege: solicitor-client privilege and litigation privilege.
■ S.126 EA 1950 does not deal with litigation privilege, but S.129 EA 1950
expands into it.
■ There is nothing in the EA that is contrary to the concept or application of
litigation privilege.
■ Solicitor-client relationship is not a pre-requisite.
Issue: Can a solicitor use privileged information to defend himself (if he becomes a suspect)?

● Leonard Teoh Hooi Leong v PP (COA):

○ Court held that a solicitor can disclose privileged information if it is to save
himself - solicitor’s denial to disclose such information led the court to believe that
he was hiding something and he cannot hide behind the “skirt of privilege”.

● Gideon Tan v Tey Por Yee (COA):

○ Although this was not a criminal charge, the parties nonetheless argued using
cases to hold that committal proceedings are of a criminal nature. The Court held
that the right of the lawyer to defend himself in committal proceedings did not
create an exception to the rule of solicitor-client privilege. (Privilege cannot be
waived).

● Tan Chong Kean v Yeoh Tai Chuan (Federal Court) overruled Leonard Teoh.
○ Questions by the FC:
1. Is there a cause of action? Yes. Breach of confidentiality is a cause of
action.

2. Whether a solicitor sued for a debt in his personal capacity is allowed in

his defence to rely on confidential information reposed in him in his
capacity as a solicitor? Solicitor is not allowed to diverge privileged
information even if it is to defend himself.****

3. Whether in a court action for breach of solicitor-client privilege, it was

sufficient if the client merely pleaded the breach without disclosing the
contents of the privileged document? If the privileged information was
included in the SOC, it would be construed as abandoning the privilege.
Hence, it is sufficient to mention that such documents are privileged.

4. Whether S.126 EA by using the words ‘unless with his client’s express
consent’ rejected the concept of an implied waiver at common law? No
such thing as implied consent.

Issue: Affairs of State

● S.123 EA 1950:
 No one shall be permitted to produce any unpublished official records relating to affairs
of State, or to give any evidence derived therefrom, except with the permission of the
officer at the head of the department concerned (right to waive privilege), who shall
give or withhold permission as he thinks fit...subject to the Ministers.

● What is meant by “affairs of state”?

○ Gov-Gen v H Peer Mohd Khuda - matters of a public nature in which the state is
concerned and the disclosure of which will be prejudicial to the public interest or
injurious to national defence or detrimental to good diplomatic relations.

● Whether a document is an affair of state?

○ BA Rao v Sapuran Kaur (broad approach) - look at the nature of the document -
label does not confer a document an affair of state - court to determine if it is -
departmental head to decide whether disclosure of its contents will be against
public interest.
○ Wix Corporation SEA v Minister of Labour (narrow approach) - The primary
consideration is whether disclosure would be injurious to the public interest.
Dispute between employer and employee arising out of a contract of service
would hardly be said to fall within the meaning of S.123 EA 1950.

● What can the courts take into account in deciding if it is an affair of state?
○ When reading S.162 EA 1950:
■ Section 162(1): If there is a dispute as to whether a document is privileged
or not, if a person has been summoned, they have to attend together with
the said document. The validity of any such objection (in this case,
privilege) shall be decided on by the court.

■ Section 162(2): The Court if it sees fit, may inspect the document, unless it
refers to affairs of State.

However, if the Court is not allowed to inspect the document, how is it able to
determine whether it is a document containing an ‘affair of state’? There are 3
views:

Prohibition on the Inspection of the Document

● Taken in the dissenting judgement in Sodhi Sukdev
Singh
View 1 ● The courts can only rely on the word of the HoD who is
exercising their discretion by declaring that the Document
is AoS

● Majority view in Sodhi Sukdev Singh & BA Rao v

Sapuran Kaur.
 ● Inspection is not permitted, but taking of OTHER
EVIDENCE (injury to public interest + nature of the affairs
View 2 of state involved) is permitted.
(This view is in line ○ OTHER EVIDENCE such as an affidavit by the
with S.162(2)) HOD stating that the document is or is not an
AoS.
● Court decides whether a document is related to affairs of
state, and the HOD determines the risk of disclosure.

● BA Rao v Sapuran Kaur: Allows for the Court to inspect

the document and determine whether or not it is one of
“affairs of state”. This is because the court understands
better than all others the process of balancing
View 3 competing considerations.
● Once the court decides it is an AoS, it is then for the HoD
to exercise his discretion as to whether disclosure of its
contents will be against public interest.
● But if the court finds that it is not related to affairs of state,
its information cannot be withheld.

Issue: Right against Self-Incrimination

● An accused person’s right against self-incrimination - can be seen in:

○ S.120(3) EA 1950 - accused cannot be compelled to give evidence.
○ S.173(ha) & S.181(1) CPC - accused can elect to remain silent.

● However, under S.73(2) EA 1950, where the accused is directed by the Courts to write
any words of figures (for comparison purposes), he MUST participate even if he chooses
NOT to testify.
○ Although this is held to be against the accused’s right to remain silent, it was
held that the position of law in Malaysia must be interpreted in accordance with
the statutes in Malaysia - Mohamed Syedil Ariffin v Yeoh Ooi Gark.

● Note - S.132 EA 1950 - right against self incrimination of a witness - however, it was held
that this right does not exist (PP v Datuk Haji Wasli bin Mohd Said) as it merely just stops
the PP from using the witnesses’ testimony in other cases and DOES NOT prevent the
witness from being CHARGED.

● S.132(3) EA 1950 - the Court shall explain to the witness the purport of subsection 2,
which states that no answers given by the witness shall subject him to any arrest or
prosecution unless… he gives false evidence.
○ Muniandy v PP - witness is entitled to the explanation under (3) by law, failure of
the judge to give the said explanation would warrant a ground of appeal.
 Chapter 14: Examination of Witnesses

Stages and purpose of various stages of examination:

● S.138(1) EA 1950 - order of examination - EIC → XE → RE

● The party who calls the witness will conduct EIC - S.137(1) EA
1950.
● S.138(2) EA 1950 - EIC must relate to relevant facts.
● S.138(4) EA 1950 - Court may permit recalling of witnesses for
EIC further EIC and XE.

● Purpose: Ascertain all the facts to prove the case of the party
calling him. Questions must be framed with some objective in
view (since leading questions are not allowed in EIC and RE
S.141 & 142 EA 1950).

● The examination of a witness by the adverse party shall be

called his XE - S.137 EA 1950.
● S.138(2) EA 1950 - XE must relate to relevant facts, but is not
confined to facts to which the witness testified in his EIC.
● S.138(4) EA 1950.
● S.143 EA 1950 - When leading questions may be asked.

XE ● Purpose (two fold):

1. To weaken, qualify or destroy the case of the opponent -
impeach the accuracy, credibility, and general value of
the evidence.
2. Establish the party’s own case by means of his
opponent’s witnesses - elicit suppressed facts which will
support the case of the XE party.

● After XE, the party which called the witness may question him
again - S.137(3) EA 1950.

RE ● Purpose - S.138(3) EA 1950:

○ Explanation of matters referred to in XE, and if there is a
new matter (with leave of court), XE may be conducted
by the adverse party on this.

Note - Discretion to recall witness under S.138(4) EA 1950 - Leave of Court must first be
obtained:
● Silver Bird Group Bhd v Dato Tan Han Kok:
1. Court has wide discretion where there are “unforeseen circumstances” and
“inadvertent omissions”. However, this is subject to prejudice and surprise which
may be caused to the other party.
2. Courts are more willing to allow recalling at the end of the party’s case.

● For criminal cases, in addition to the above, also apply S.425 CPC - Saravanan
Rajagopal v PP: Discretion of the courts under S.425 CPC is based on the essentiality of
the additional evidence to the just decision of the case. Any recalling of witnesses which
has been thoroughly examined should be dismissed.

Issue: Effect of Failure of XE

● Ayoromi Helen v PP - Failure of the defence to XE the PW on a CRUCIAL PART of the

case will amount to an ACCEPTANCE of the witness’ testimony.
○ Exceptions - listed in Transport Ministry v Garry (which was addressed in
Ayoromi):

1. Story itself is of an incredible or romancing character (exaggerated stories

etc);
2. The abstention arises from mere motives of delicacy (impolite to question
of sexual circumstances);
3. When counsel indicates that he is merely abstaining for convenience, e.g
to save time (i.e other witnesses have been CE for the same point).

Issue: Defence raised in D’s case which is not raised in the P’s case

● In criminal cases, the only time the P knows what is the defence of the accused person is
during the D’s case.
● During P’s case, not only do they have to prove the ingredients of the offence BRD, but
also to disprove any doubts or any possible defences the D would rely on.
○ However, how can the P do so when he will only learn of the defence during the
D’s case?
■ Likely the P would need to guess and this may be possible as defences
are limited.
■ D could also indicate the possible defences as to which he is going to rely
on, either via EIC or CE. (Failure to do so entirely may render the court
unable to fully close the case and this may potentially allow for the P to
re-open the case. Witnesses can also be recalled and new witnesses/
evidence can be adduced).
 ■ Tan Kim Ho v PP - places a duty on the Defence to raise their defence
during the P case. Failure may result in many consequences (i) Court may
treat it as a fabrication; or (ii) Court may allow P to rebut it, although P has
already closed their case.

Issue: S.136(1) EA 1950

● S.136(1) EA 1950 - When any party proposes to tender evidence of any fact, the court may
ask the party proposing to tender the evidence in what manner the alleged fact if proved
would be relevant and the court shall only admit the evidence if it thinks the fact, if proved
would be relevant and not otherwise.

● DSAI - The court is duty bound to inquire into the relevancy of the proposed witness
before he gives evidence - the objective is to ensure that evidence is confined to relevant
facts.

Issue: Hostile vs Unfavourable Witnesses

● Hostile witness:
○ Witness, in the opinion of the judge, shows no desire to tell the truth at the
instance of the party calling him.
■ Can be impeached under S.154 ,155 and 145 EA 1950 to attack his
credibility.

○ PA Anselem v PP: Purpose of the XE of the hostile witness is not for the purpose
of substituting the unsworn statement made out of court, but to prevent the court
from giving any value to the sworn statement made in court.

○ PP v Tan Chye Joo: Purpose of the XE under S.154 EA 1950 is only to test the
veracity of the witness. Whether the testimony will be rejected in whole or in part
depends on the result of the XE.

● Unfavourable Witness:
○ No hostile animus to the party calling him, is not intentionally giving bad evidence.
○ CANNOT be impeached.

Issue: Impeachment Proceedings

● S.154, S.155, S.145 EA 1950

 ● Dato Mokthar Hashim v PP: Voir dire only required in instances where the witness denies
making any previous statement. If the witness only denies the truth of the previous
statement (but admits that he made it), there is no need for a voir dire.

● Methods - 3 ways under S.155 EA 1950:

The credit of a witness may be impeached in the following ways by the adverse party, or
with the consent of the court, by the party who calls him:

(1) By evidence of persons…from their knowledge of the witness believe him to be

unworthy of credit;
(2) Witness has been bribed/received corrupt inducement;
(3) By proof of former statements inconsistent with any part of his evidence which
is liable to be contradicted.
● Based on S.145 EA 1950:
○ For statements made in writing - if it is intended to contradict the
witness, his attention must first be brought to the parts of the
document.
○ For oral statements - the circumstances of the supposed statement
sufficient to designate the particular occasion, shall be mentioned
to the witness.

● PP v PA Anselam - cross-examination during impeachment proceedings is NOT TO

SUBSTITUTE his previous unsworn statement - all it can do is to prevent the Court from
giving any value to the sworn statement.

Procedure of Impeachment:
1. Party informs the Court of its intention to impeach.

2. Muthusamy v PP - differences between the statements - Court decides if there are

material discrepancies - if they are minor, likely impeachment proceedings will not be
allowed. If material, it will be allowed - leave obtained.

3. Witness is asked whether he made the former statement. (If writing - S.145(1) EA 1950; if
oral statement - S.145(2) EA 1950):
○ If he admits, the Court will explain to the witness and he will be given an
opportunity to explain. If his explanation is satisfactory, his credit is saved.
Otherwise, his credibility is doubtful.
○ If he denies, the matter is either (by the party that commences proceedings) (i)
drop the proceeding; or (ii) prove that the witness made the statement.

4. When is the impeachment order given?

 ○ PP v Datuk Haji Harun bin Haji Idris:
1. An immediate order to impeach the credit of the witness cannot be given;
2. The witness is entitled to be cross-examined and re-examined;
3. Hence, it is only after the prosecution’s case (or the respective party’s
case) that the court will decide whether to disregard the witnesses after
assessing his credit with the rest of the evidence as a whole.

● Impeachment based on a “hunch”:

(a) Dato Mokthar Hasim v PP: Counsel cannot make an application to impeach
based on a “hunch”.

(b) Siti Aisyah v PP:

(i) Police statements held to be privileged (in Husdi v PP), are incorrect.
(ii) So long as it is satisfied to the Court that it is necessary and desirable,
then there can be disclosure of the document under S.51 CPC.

Effect of Evidence given by impeached witness:

1. DMH v PP - testimony of witness GIVEN IN COURT will be disregarded.
2. PP v Abdul Kudus bin Japlus - Previous statements (made out of court) adduced to
impeach the witness cannot be regarded as substantive evidence which can be relied on
for purposes of the main trial.

Issue: Evidence of Rebuttal

● PP v Chia Leong Foo - P must present its primary case completely before closing its case.
Failure would amount to no evidence of rebuttal being allowed (as it would result in the
splitting of P’s case)
● Discretion to allow the rebuttal of witnesses - R v Killick:
1. When circumstances are “very special or exceptional”;
2. More likely allowed if “fresh evidence” was contained in D’s case;
3. Less likely is the Prosecution wants to “improve on something” that has already
begun. (Where D has already “foreshadowed” the defence before the close of the
P’s case, witnesses CANNOT be recalled).

● Osman bin Ali v PP - it is the practice of the HC to allow the prosecution to call medical
evidence in rebuttal where the D raises diminished responsibility.

Issue: Discrediting Witnesses

● How is the credibility of witnesses assessed?

 ○ AG of HK v Wong Muk Ping - must assess witnesses together with all other
available evidence. Good/cautious witnesses may still be unworthy of credit.

○ Chow Yee Wah v Choo Ah Pat - credibility of a witness is best decided by the trial
judge. He has the benefit of seeing and hearing the witness (testimony and
demeanour). The Appellate Court may be slow to interfere, but may still intervene
where there is clearly a wrong decision. ‘
● Usually when there is inconsistency with his own evidence, inconsistency of his evidence
as compared to evidence of the whole case and demeanour of the witness.

Issue: Refreshing Memory

● S.159 EA 1950 - See Section for specific “elements”

○ *Moomin bin Seman v PP:
1. Witnesses cannot refresh memory as of right - leave of Court is required.
2. Issue: If material is used to refresh memory during adjournment of the
case, will the accused be entitled to that material?
● During adjournment, the witness IS STILL a witness. Hence,
refreshment will still be done under S.159 and the accused will still
be entitled to the material under S.161.

○ Chau Kam Hoon v PP:

1. Document need not be legally admissible before it may be used to refresh
memory.

2. Leave is required because the material used to refresh the memory of the
witness has to comply with certain requirements laid down under S.159(1)
and (2) - witness or another person, at about the time of the incident.

3. If a document is used to refresh memory, it should be made clear so that

the adverse party can inspect it - S.161 EA 1950.

4. ***Cross-examination on the portion referred to by the witness does not

make the document evidence against the cross-examiner. However, if
there is cross-examination on part of the document not used by the
witness to refresh his memory, the party calling the witness is entitled to
require the cross-examiner to make the document evidence.

● S.160 EA 1950 - Testimony to facts stated in document mentioned in S.159 EA 1950.

○ Applied when the witness has no specific recollection of facts.
○ Witnesses must be sure that the facts were correctly recorded in the document.
 ○ V. Daniel v PP: Since there is no recollection, all witnesses can confirm is that
when the time it was made, the contents of the document were held to be true.
Hence, the document under this Section is to be introduced as evidence (legally
admissible under the EA).

● S.161 EA 1950 - duty to disclose documents for refreshing memory.

○ Give the adverse party the right to examine the documents used to refresh the
witness’ memory and the right to cross examine such witnesses.

● Refreshing memory BEFORE giving evidence.

○ PP v DSAI (No.3) - Police statement can be shown to a witness before the
witness gives evidence - no legal prohibition. However, the weight attached to the
evidence will be affected.

Issue: Leading Questions

● S.141 EA 1950 - definition of LQ - Any question suggesting the answer which the person
putting it wishes or expects to receive or suggesting disputed facts as to which the
witness is to testify, is called a leading question.

● S.142 EA 1950 - when leading questions MAY NOT be asked:

○ LQs MAY NOT be asked during EIC or RE except with the permission of the
Courts.
○ The Court shall permit leading questions as to matters which are introductory or
undisputed, or which have in its own opinion been already sufficiently proved (i.e
by other witnesses).

● S.143 EA 1950 -
○ Leading questions maybe be asked in CE subject to the following qualifications:
■ The question may not put into the mouth of the witness the very words
which he is to echo back again; and

■ The question may not assume that facts have been proved which have not
been proved, or that particular answers have been given contrary to the
fact.
○ The court, in its discretion, may prohibit leading questions from being put to a
witness who shows a strong interest or bias in favour of the CE party.

Issue: Rule of Finality of Answers to Collateral Questions

● S.146(c) EA 1950 - witnesses may be XE in addition to questions on relevant facts be
asked any questions to shake his credit by injuring his character.
● S.153 EA 1950 - where a witness has been asked and has answered any question which
is relevant to the inquiry as far as to shake his credit, no evidence shall be adduced to
contradict him.
○ Exceptions:
1. Where witness was asked on a previous conviction and he denies;
2. Where the witness was asked questions tending to impeach his
impartiality and he denies the facts.

Issue: S.146A EA 1950 - Restrictions on Evidence at trials for RAPE

● S.146A EA 1950 states that:

○ No evidence and no question in the cross-examination shall be adduced or
asked, by or on behalf of the accused, concerning the sexual activity of the
complainant with any person other than the accused, unless -

(a) It is evidence or question which may rebut evidence of the complainant’s sexual
activity or absence thereof that was previously adduced by the prosecution;

● Where the prosecution has adduced the complainant’s sexual activity or absence
thereof, and the accused knows this is untrue and wants to rebut this.

(b) It is evidence of, or a question on, specific instances of the complainant’s sexual
activity tending to establish the identity of the person who has sexual contact with
the complainant on the occasion set out in the charge; or

● Where it is not disputed that the complainant was raped, the issue here is that the
accused wants to prove that it is not him.

(c) It is evidence, or a question on, sexual activity that took place on the same occasion
as the sexual activity that forms the subject matter of the charge, where that
evidence or question relates to the consent that the accused alleges he believed
was given by the complainant.

● Where the accused wants to adduce evidence that let him to believe that there
was consent. However, this would not be restricted as this is between the accused
and the complainant.
● Hence, this applies to when there is a 3rd party involved in the sexual activity. (i.e.
where a 3rd party and complainant had sexual activity that the accused had also
taken part in).

Issue: Failure by the P to recall witnesses that were at the scene of the crime
● Teoh Hoe Chye v PP - Whether a party wants to call a witness or not is the right of the
party concerned. However, if a witness that creates a serious gap in the Prosecution’s
case is not called, it will be fatal to the Prosecution’s case.

Chapter 15: Corroboration

● Corroboration - to confirm or to support. Usually only applied to SUSPECT WITNESSES.

● There are 2 conceptions of corroboration:
1. Independent testimonies of witnesses which confirms in some material particular
not only the evidence that a crime has been committed, but also that the prisoner
committed it - Baskerville.
2. Repetition of former statements - S.157 EA 1950.

Issue: Baskerville Conception of Corroboration

● Corroboration is independent testimony that affects the accused by connecting or

tending to connect him with the crime.
● The R v Baskerville concept of corroboration has been adopted in Malaysian cases of
Dowse v AG of the Federation of Malaya.
○ Attan bin Abdul Ghani v PP: Corroboration need not be direct evidence,
circumstantial evidence of his connection with the crime is sufficient.

● Baskerville Conception of Corroboration:

1. The evidence must be admissible;
2. Independent witness;
3. Must implicate the accused - must show that the crime was committed and that
it was the accused that committed it.

Issue: S.157 EA 1950 Corroboration

● This Section suggests that a witness can be corroborated using his own former statement.
However, this goes against the Baskerville conception of corroboration.
● Malaysian courts have shown an obvious preference for the Baskerville conception - as
seen in Ah Mee & Mohd Ali.
● Karthiyayani v Lee Leong Sin: Although a previous statement made under S.157 EA 1950
is admissible as corroboration, it constitutes a very weak type of corroborate evidence as
it tends to defeat the object of the rule that a person cannot corroborate himself.
 Issue: Corroboration as a Matter of Law and as a Matter or Practice & Prudence

● Where Corroboration is required as a Matter of Law:

○ Here, the law required that there must be corroboration if there is to be a
conviction. If the accused is convicted without corroboration, it is illegal and the
conviction will be quashed.
○ Examples - proviso to S.133A EA 1950 and Section 6(1) of the Sedition Act.

● Where Corroboration is required as a Matter of Practice:

○ Here, the tribunal of fact is to be on guard as to the risk of acting on
uncorroborated evidence.
○ The court can either (i) require corroboration or (ii) dispense with the need for
corroboration - the Court can convict the accused without corroboration as long as
the court warns itself in its judgement of the risk of convicting without
corroboration - that it is dangerous to convict the accused on the uncorroborated
evidence of the particular witness - Ng Yau Thai v PP - this warning is required as
a matter of law.
○ No particular form of words is necessary for this purpose. What is necessary is that
the judge’s mind upon the matter be dearly revealed - Chiu Nang Hong v PP.

○ Din v PP - Where corroboration is required as a matter of P&P provided the judge

has warned himself in his judgement, the judge can convict if he is satisfied
beyond reasonable doubt and makes that clear in his judgement.
 Issue: Types of Suspect Witnesses

● Corroboration required as a matter of practice - S.133 EA

1950 - conviction NOT illegal merely because it proceeds
on uncorroborated evidence.

● S.114(b) EA 1950 - Court MAY presume that an

accomplice is unworthy of credit unless corroborated
(hence, Courts have the discretion whether or not they
want to invoke this presumption)

● Definition of Accomplices:
○ Davies v DPP - participant to the crime - whether
principal or secondary persons receiving stolen
goods where the thief is on trial, and accomplices
to previous crimes.
Accomplices
○ Malaysia - PP v Nomezam Apandy bin Abu
Hassan (No.2) - Accomplice if participated in the
commission of the offence. Where he had played
an active role, his evidence must be
corroborated. If his role was passive, his evidence
may be accepted with the usual corroboration
warning* (*required as a matter of law).

○ PP v DSAI (No.3) - Persons which are said to be

accomplices but had unwillingness to
participate...can be found to be credible.

○ Tan See Boon v PP - accomplices are infamous

persons that are not deserving of belief - they only
have interests in diverting blame from themselves
to the person they are testifying against.

○ Lawrence B. Masuni v PP - Persons that

encourage the commission of the offence are
accomplices.

Reconciliation of S.133 and S.114(b) EA 1950:

● Ghazali bin Salleh v PP - it is a rule of practice that it is not
safe to convict on such evidence unless such evidence is
corroborated in material particulars.
● Ng Yau Thai v PP - if the Courts consider invoking S.114(b),
 they have addressed their mind to the issue of
corroboration.
● Therefore, conviction can be based on uncorroborated
testimony but as a rule of practice (S.114(b)) it is unsafe to
place reliance on the testimony of an accomplice and
hence the judge has to give himself a warning in his
judgement.

● DSAI - Corroboration required as a matter of P&P. Hence,

Complainant of Sexual warning in Ng Yau Thai v PP required.
Offences ○ Rationale: Allegations of sexual offences are easy
to make and difficult to refute.

Unsworn Evidence - proviso S.133A EA 1950 - required as a

Matter of Law.

Sworn Evidence - Chao Chong v PP - required as a matter of

P&P - Children find it difficult to distinguish between observed
Children* facts and imagination.
(*Failure to run
preliminary examination NOTE!!! - Sexual Offences against Children:
will result in a ground for ● S.17 Sexual Offences against Children Act 2017 -
appeal) Presumption as to the capacity of a child - preliminary
examiniation is not required.

● S.18 SOACA 2017 - Court may convict on uncorroborated

evidence of children.
○ S.133A EA 1950 DOES NOT apply where there is a
sexual offence against children.

● Observation as to a child’s distressed condition -

admissible as corroborative evidence - PP v Liew Kim
Yong - argued that it is a 3rd parties’ view of the victim’s
distressed condition.

Conflicting cases on corroboration in RAPE:

● Din v PP (FC) - only factum of rape and NOT identity required to be corroborated.

● Mohd bin Majid v PP (HC) - Din should be confined to the facts of its own case -
following Baskerville, both factum of rape and identity of offender should be
corroborated.
Other Categories:

Agent Provocateur Ng Kam Wei v PP: The law regarding an agent provocateur’s
evidence can be admissible in court without corroboration is
settled.

Mohd Fadzil Ibrahim v PP - A.P evidence is admissible under S.40

DDA and there is no need for corroboration as they are not
presumed to be unworthy of credit.
● The reason for this is because A.Ps have no personal
interest/benefit in these cases - PP v Adnan Ishak.

Informer Informers are protected witnesses, as such, they need not testify
and no corroboration is required.

Interested Witness ● Tong Soon Tiong v FA Securities Sdn Bhd: There is no

legal presumption that the evidence of an interested
witness is to be disbelieved.

● However, judges have established the need to administer

the corroboration warning for interested witnesses, as
seen in Lim Boon San v PP; R v Prater, but it should be
noted that there is no obligation to do so, and only a caution
is required - R v Beck.

Co-Accused’s Evidence Abdul Khalid v PP: There is no need for a full corroboration
warning when a defendant gives evidence against a co-defendant.

Issue: Former Statements as Corroborative Evidence

Section 157 EA 1950: any former statement of witness may be proved (used as corroborative
evidence). However, this goes against Baskerville’s “independent evidence” requirement.

Position of the Courts:

Allowed:
 1. Allowed the use of S.157 EA 1950 - Liew Kim Yong v PP (SG Case)
2. Karthiyayani v Lee Leong Sin - “although the statement made under S.157 is
corroborative evidence, it is WEAK as it defeats the object that a person cannot
corroborate himself”.

Did NOT Allow:

3. Aziz bin Muhamad Din - S.157 EA 1950 cannot be used due to S.73A(3) EA 1950
(Statement rendered admissible as evidence by this Act shall not be treated as
corroboration of evidence given by the maker of the statement).

Current FC case on S.157 EA 1950:

● PP v Lim Guan Eng - Former statements are admissible as corroborative evidence -
weight depends on the facts of the case.

S.157 EA 1950 requirements:

1. Evidence on some fact given;
2. Statement previously made with some regard to the same fact;
3. Statement previously made AT OR SAME TIME the fact took place, i.e PP v Mohamed
Terang bin Amit - “first reasonable opportunity”.
4. Written/verbal, oath/ordinary convo - “may be proved” as defined in PP v DSAI
 Chapter 16 : Identification Evidence

The Turnbull Guidelines:

WHEN the case depends wholly or substantially on identification evidence, where the
correctness of which is disputed by the accused.

FAILURE of judge to warn himself - conviction may be quashed - Jaafar bin Ali v PP.

UK TURNBULL GUIDELINES (R v Turnbull):

1. Judge should warn himself that there is a special need for caution before convicting the
accused in reliance on the ID evidence.

2. Reason for needing such a warning. Reference can be made to:

a. A mistaken witness can be a convincing one; and
b. A number of witnesses can all be mistaken.

3. Quality of the evidence and whether to admit:

a. If poor, evidence should be disregarded unless there is supporting evidence
b. If good, evidence can be taken into account even without supporting evidence.

● Applied in Malaysia - Jaafar bin Ali v PP; PP v Chan Choon Keong

MALAYSIAN TURNBULL GUIDELINES:

● Duis Akim v PP applied the reworked version of the Turnbull guidelines established in the
Singapore case of Heng Aik Ren Thomas v PP. This reworked version is a three-step test
that the judge should follow:

1. Whether the case against the accused depends wholly or substantially on the
correctness of the identification evidence which is alleged by the defence to be
mistaken?

2. He should examine closely the circumstance (over what period; lighting;

distance; was it someone the witness knew etc) in which each identification
came to be made. The judge must look at the quality of the identification evidence
and decide whether to admit the evidence.
a. If the quality is good, then the judge can take it (testimony of the witness)
into account even if there is not supporting evidence (corroboration).
 3. If poor, the judge should dispense of the evidence unless there is supporting
evidence. If the judge is unable to find other supporting evidence for the
identification evidence, he should then be mindful that a conviction which relies
on such poor identification evidence would be unsafe. The supporting evidence
need not be corroboration evidence of the kind required in R v Baskerville. What
the supporting evidence has to be is evidence that makes the judge sure that
there was no mistake in the identification.

Corroborative Tools for Eyewitnesses:

Written evidence in light of S.112 CPC or S.107 CPC - if matches the

accused, the risk of mistake is minimised.
Pre-Trial Description
Jaafar bin Ali v PP: The absence of a pre-trial description of the
accused will reduce the value of the identification in an ID parade
and the subsequent identification in court.

A witness is asked to point out whether or not the ‘suspect’ is

present in court. Dock identification on its own is not sufficient to
convict the accused.

Duis Akim v PP:

● The evidentiary value of ID parade evidence is merely for
corroborative purposes. However, where the substantive
Dock Identification piece of evidence is the identification in court...such
(done during trial) identification loses its value where there is evidence to
show that the ID parade was conducted irregularly.

Goh Kooi Pheng v PP:

Where a witness identifies an accused person who is not known to
him in court for the first time, his evidence is of little value unless
there had been a previous ID parade. Whether the flaw which
occurred during the ID parade would undermine the dock ID must
depend upon the facts of the particular case.

If the witness picks out the same suspect as those decided by the
police, it may increase the chances of proving the case BRD.
However, failure would amount to a higher chance of the case
failing.

How an ID Parade should be conducted:

 1. According to Mallal’s CPC - not less than 10 persons, not
assisted by photographs or description, not allowed to see
the accused before the ID parade.

2. R v Bundy: The witness must not be allowed to see the

accused before the parade and should not have been
previously assisted by photos or verbal or written
descriptions.

3. Chan Choon Keong v PP: Where there are 2 or more

suspects, separate ID parades must be held
ID Parade

4. PP v Ong Poh Cheng: Where there are two or more

identifying witnesses, they must be kept separately.

● Note - Duis bin Akim v PP: A breach of procedural

requirements in holding an ID parade does not lead
automatically to inadmissibility. Provided the ID parade is
conducted fairly, a failure to comply strictly... need not be
fatal. Where there is evidence of bad faith or a “deliberate
flouting” of procedural requirements rather than mere
inefficiency, the identification will probably not be upheld.

● PP v Krishnaraj - The officer conducting the ID parade must

be called as he was the one overlooking the whole process
and he witnessed the suspect being ‘picked’. Failure would
cause adverse inference to be drawn against the
prosecution.

Issue: Are ID Parades necessary in ALL criminal cases?

1. Arumugan Muthusamy v PP: ID parades are not mandatory, but failure to conduct them
may prejudice the prosecution’s case.
2. ID evidence is used to corroborate an eyewitness. Where there is no eyewitness, there is
no need to conduct an ID parade - PP v Dharma Raj
3. Where a correct ID parade line up cannot be assembled, there is no use in conduction
one, as an incorrectly assembled ID parade has no evidential value - Chan Sin v PP
4. In instances of recognition, an ID parade would serve no useful purpose - Shand v The
Queen.
 Issue: Time lapse between the original observation and the subsequent identification (ID
parade)

● PP v Dharma Raj
○ Here, the lapse of time was approximately 2 months.
○ In light of the failure of the witness to give any form of initial description (pre-trial
description) of the assailant to the police soon after the incident, the lapse of
time… would in the ordinary course of human nature lessen the ability of these
witnesses to identify the assailant at the ID parade with any accuracy or
certainty.

Miscellaneous

Section 9 EA 1950 - Relevancy of facts which establish the identity of any thing or person whose
identity is relevant:
● Identification by Voice - relevant as per Teng Kum Seng v PP;
● Fingerprint identification - admissible in Toh Kee Huat v PP;
● Visual Identification - identification of the accused made by the witness while the
accused was in jail was inadmissible, as in PP v Amar Singh.

Chapter 17: Improper Admission or Rejection of Evidence

Section 167 EA 1950 deals with improper admission or improper rejection of evidence and
proves that these are no grounds for a new trial or reversal of any decision if the Court thinks:
a. Where there is improper admission of evidence, there is sufficient evidence that
justifies the decision independent of the improperly admitted evidence; or

b. Where there is improper rejection of evidence, the decision would not have
varied if the rejected evidence had been received.

● Hanafi bin Mat Hassan v PP: The court has no discretion to refuse to admit evidence on
the ground that it was illegally obtained, if it was relevant.

● Relationship between S.167 EA 1950 and S.422 CPC:

○ The improper admission of evidence will have no effect, unless there has been a
failure of justice.
○ “Failure of Justice” is the improper admission resulting in a decision different from
that which would have been given if the evidence had not been admitted.
■ The question here posed by Krishnan v PP is: “after discarding the
evidence improperly admitted, is there sufficient evidence left to justify the
conviction?”.