TOPIC: ADDUCING FURTHER EVIDENCE – S.

425 CPC
• The issue is whether the court is allowed to adduced further evidence?
• S.425 CPC is a provision that allows the court to allow further evidence
• There are two (2) limbs:-
→ conferring a discretion on the court
→ when it is essential in the interest of justice – Lok Poh Siang (1957) MLJ 105

• S.425 CPC is use as much as the prevention to escape of a guilty person to a careless prosecution as
indication of an innocent person wrongly accused because of carelessness and ignorance – Ramli Kechik
(1986) 2 MLJ 33

• Under S.425, the defence as well as the prosecution may apply to invoke the section, further, it is the
essentiality of the additional evidence to a just decision that the main consideration (just decision does not
mean a decision in a defence’s favour)

• It would not be an improper exercise of the discretion mainly because the evidence supporting the
prosecution but not to the defence. (maksudnya, dedua pihak daripada defence dengan prosecution boleh
pakai)

• The court examines the evidence, not to help the prosecution or the defence but in the interest of justice –
Ahmad Hussin Zamir (1999) 3 CLJ 356

• The court has no interest to help the accused as well as the prosecution. The main idea is to held justice.

• The use of S425 should be seen particularly at what stage of trial prosecution was made:-
→ during prosecution’s case
→ at the close of prosecution’s case
→ after submissions
→ during defence’s case

DURING PROSECUTION’S CASE

• The prosecution generally in re-calling of witness or call any witness before the close of its case – Yap
Kok Peng (1974) 1 MLJ 108

• The adducing of further evidence not only gives right to further re-call but also to call fresh evidence –
Ramli Kechik (1986) 2 MLJ 33

• Maksudnya, adducing further evidence boleh dibuat dengan cara memanggil saksi baru ataupun re-call
balik witness lama.

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• The prosecution can even adduce new evidence at the ELEVENTH HOUR (the latest possible time)

• However, in the case of Ong Cheng Heong (1998) 6 MLJ 678; that even at the eleventh hour, the court
gave leave to the prosecution to effect emergency repairs to the defects in its case by tendering further
exhibits.

• Subject however to the right of defence to cross examine on the fresh exhibits. (kiranya, PP boleh je nak
adduce new witness ataupun tendering new exhibits dengan syarat ada right of defence utk cross examine
balik the fresh exhibits.

• The provision of S425 can be avail of by the defence (even defence can recall witness) in the prosecution’s
case. Defence team pun boleh je nak recall balik witness yg diaorg nak sbb section 425 tu avail je.

• In Kee Leak Tuan (1984) 1 MLJ 260; the defence made 2 applications; i.e.
→ to have a victim of a rape case who was regarded as mentally retarded to be examined by a
psychiatrist to determine her competency to testify (to certify that she is not a competent) and this
was refused.
→ the defence then made a 2nd application to cross-examine her. This was also refused.
→ Q: was the Sessions Court right?
▪ On appeal, the court held that the refusal or rejection is of the court’s discretion. But
the reason given by the cross-examination was sufficient to justify the making of an order
to recall.

• AGAIN, IT IS ON THE COURT DISCRETION NAK BAGI ATAU TIDAK.

• The refusal had prevented the accused from exercising the statutory rights and this was sufficient to allow
the appeal

• prosecution have any right to give any evidence to recall.

• prosecution can bring new evidence.

• prosecution can even do it at the 11th hour.

• defence can also call.

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CLOSE OF PROSECUTION’S CASE

• At any stage of the trial in S.425 was stated in the case Ibrahim Arifin (1993) 2 CLJ 529; to confer the
right of the court to exercise its discretion even if until the re-opening of prosecution’s case.

• Provided that the defence were not prejudiced, and it is essential to a just decision.

• While in Abdul Hamid (1969) 1 MLJ 63; it was stated that strong and valid reason must exist for the
exercise for this discretion.

• The effect of calling a witness after the close of prosecution’s case has only been to allow evidence where
they are of a formal or technical nature – Phon Nam (1988) 3 MLJ 415 and Abdul Rahim Abdul Satar
(199) 3 MLJ 188.

• However, where the evidence would be prejudicial to the defence such as that the defence has already
submitted or has begin the submission, no case to answer and the application is to effect repairs the
prosecution’s case to counter points in defence’s submission, the application would not be allow – Ibrahim
Arifin (1993) 2 CLJ 529

• The prosecution would not be allowed to re-open its case when the defence had begun their submission of
no case to answer, and the recall of witnesses is to effect repairs on their case to counter submission by the
defence in their submission of no case.

• The prosecution also would not be allowed to call evidence where the effect would be to prevent the
defence from using weaknesses and mistakes in the prosecution as defence’s material and prevent the
accused from obtaining the benefit of the doubt from such witness – (1994) 3 CLJ 39

• Nor would the prosecution would be allowed to adduce evidence to make an emergency repairs to defect in
its case caused by its lack of care in the conduct of its own case - Lin Lean Chen (1991) 1 MLJ 316, or to
add a different colour or a different twist in the prosecution’s case – Karim Osman (1994) 1 CLJ 726

• S.425 would also not be allowed to be raised even if the evidence is of a formal or technical nature where
opportunity has already been given for such evidence to be adduced and despite which opportunity the
prosecution still failed to do so

• In Phon Nam (1988) 3 MLJ 415; it was ruled that S.425 could be invoked to allow the prosecution to
adduce formal evidence relating to the signatures on the chemist report. Despite this, the prosecution still
failed to adduce such evidence as the witness said he could not remember if copies of the report have been
served on the accused.

• Prosecution further applied to invoke S.425 to recall the witness again to adduce this evidence.

• In Phon Nam (1991) 2 MLJ 550; the application was refused and the Supreme Court held S425 never
intended to enable the prosecution to effect emergency repairs to its case.

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• 1st time chance - formal evidence
• 2nd time chance – consider a repair because the 1st formal evidence has been given. Shows that the
prosecution is careless as how they want to repair, i.e. EMERGENCY REPAIRS

SUMMARY: CLOSE OF PP’S CASE

• Court would allow, if it is a formal or technical evidence/mistakes.
• Court would not allow; if it is
→ (i) emergency repairs
→ (ii) add new twist or different colour
→ (iii) counter defence’s submission of no case
→ (iv) is formal evidence adduce more than one; it is a repair

DURING DEFENCE’S CASE

• In the case of Ramasamy (1955) 21 MLJ 95; it was said that it is important that the whole of the
prosecution’s case should be put to the court before the defence is call upon.

• If the prosecution or the court is going to make further investigation after the accused has entered his
defence, then the provision of S182 (equivalent to summary trial S173(m) is going to become nugatory.

• In Abdul Hamid (1969) 1 MLJ 53; it was said S.425 should be exercise with outmost caution and only the
evidence is essential to and just decision and that at the close of the defence case unless there is a strong
and valid reasons.

• Defence → prosecution not allowed strong & valid : beyond human ingenuity to anticipate

• Exception to the general rule → strong and valid reasons

→ surprise –Samsur Kamar
→ not foresee – Kenneth Lee
→ defence mounted 1st time – Chia Lam Foo
→ further evidence is in favour

• The power in S.425 was held in Belfour (1949) MLJ Supp 8; should only be exercise in very rare cases
for instance where a point is raised which the other side could not foresee.

• This occurred in Samsur Kamar (1988) 2 MLJ 252; where defence counsel applies to use part of the
cautioned statement but not the 2nd and later part which was alleged not voluntarily made

→ The issue on appeal was whether the prosecution could at that stage of defence’s case, requested
for a trial within a trial and invoke S425 to call witnesses to prove the 2nd part was also voluntarily
made.
→ The court was of the view that where the prosecution was being caught by surprise, the prosecution
should be allowed to call evidence in rebuttal to sure the statement was voluntarily made.

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• The 2nd situation was discussed in Kenneth Fook Mun Lee (2002) 2 MLJ 463; where the court stated
that the evidence need not be one in human ingenuity could not have foresee and that the rule has been
wider that the evidence was not reasonable foreseeable.
→ In the above case, the defence suggested that the accused had an attack of hypoglycaemia (disease
that goes to the stage of automatism) i.e. did a certain act that did not realised that he was doing.
→ Q: can the prosecution bring expert evidence to rebut on this point?
→ At the time of the incident that he was at the stage of automatism. At close of defence case, the
prosecution was held to entitled to adduce evidence in rebuttal.

• The 3rd situation is that the prosecution was generally expected to negative in its case and explanation
defence would be expected to adduce in answer to the prosecution’s allegations.
→ Calling evidence in rebuttal is permissible in special and limited cases. One instance is where the
defence is mounted for the 1st time during the defence case without being having suggested in a
course of its case – Chia Long Foo (2000) 6 MLJ 705

GROUNDS OF JUDGEMENT

• The Magistrate must give weight to the preparation to the ground of judgement – Por Choo Bik (1993) 2
MLJ 131

• The law requires a Magistrate to give grounds for his decisions – Syarikat Perusahaan Makanan Haiwan
(1969) 2 MLJ 250; that the form of judgement should be an oral judgement (speaking judgment)

• What is a speaking judgement can be obtain from the view in Federal Court in Kananpathi (1998) 2 CLJ
1; the judgment found by the Federal Court is to be unsatisfactory consisting of the re-production or
precaution of the witness’s testimony in the form of question and accused there was failure to analysed or
asses the testimony.

→ The judge merely set them out without questions. It did not set out the accused defence; with a
view of assessing it nor did they test the defence by comparing it with the prosecution’s evidence.
→ witness’s evidence compare to prosecution’s evidence
→ compare to defence’s evidence.
▪ macro level- look at the totality of the defence

• However, a weak defence is; a judge should not set abrush a defence on basis that he believed the
prosecution’s witness and not the defence’s witness.

• When the law imposes the law of proving and explanation of the accused and the explanation is given
consistent with innocence; the court’s duty bound to consider whether it might be reasonably be true
although not convince of its truth.

• The preferred practice was stated in Kesavan Sendaran; is for the grounds for decision to be written in 2
parts corresponding to the 2 phases of the trial that is the prosecutions case and the defence’s case

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• The court would also be inclined to call further evidence where it would assist to determine the innocence
of the accused

• In Jacob (1948-49) MLJ Supp; defence has subpoenaed a witness but did not call the witness.

→ The court was of the view that he was the most material defence’s witness and would be able to
establish that the accused was not implicated to the offence.
→ The view of the court was additional evidence was at the discretion of the court, but this discretion
must be exercise most guardedly and never if it can be interpreted as favourable to the accused the
calling of the witness was proper exercise of the discretion

• Q: can they (defence) recall the prosecution’s witness during the defence’s case?
→ The right to adduce further evidence in the course of defence would also include prosecution’s
witness for cross-examination.
→ This was allowed in Ong Boon Siang (1961) MLJ 4 & Hassan (1962) 19 MLJ 323; however,
such right to recall for cross-examination, prosecution’s witness subject to the application being
treated on its merits and an application maybe refused if it was frivolous and vexatious

• Such right to recall witness, prosecution subject on the application been treated to its merits and an
application may be refused when it was frivolous and vexatious.

• The grounds of judgement should state briefly matters of law and facts which the court considered the care
taken in considering this matter and the extend and nature of doubt if any created in the mind – Syarikat
Perushaan Makanan Haiwan (1969) 250, and not just a conclusion arise at – Balasingam (1959) MLJ
193

• Except in straight forward cases, the Magistrate must state what were his findings of facts – Augustine
(1964) MLJ 7

• The Magistrate should discuss the evidence, he should also state the reasons for his findings and this should
indicate that he applied his mind to the evidence – Abang Abdul Rahman (1982) 1 MLJ 346

ALTERATION OF THE JUDGMENT

• S.278 CPC provides no court other than the High Court having once recorded its judgement to alter or
review the same, if a written judgment is delivered it is perfected as soon as delivered
→ Write 1st → read → sign = cannot

• If it is an oral judgment, it is perfected when pronounced and the effect entered in the judge’s notebook and
signed

• Once judgment is pronounced and signed, it cannot be altered – Heng Yu Non (1949) 15 MLJ 285

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TIME LIMIT FOR WRITING JUDGMENT

• No time limit is set down for writing judgment or when the court should serve on the appellant on the
grounds of decision.

• FINDINGS OF THE COURT → (14 DAYS) → NOTICE OF APPEAL i.e.

→ (i) grounds of judgment

→ (ii) notice of evidence

• It is obvious that it is not possible to lay a time limit by which the grounds should be ready following a long
and complicated trial and very difficult points of law may have a reason, a Magistrate have many times to
study his authority and to set down to paper reasons which might be complicated

• In simple and straight forward cases the hearing of it which less than 1 day and not difficult points of law
has a reasons, there’s no reason as why grounds of decision should not be written immediately on the
receipt of notice of appeal

• Time taken should in such cases should be a matter of days not weeks and certainly not months

• There is good reasons from the Magistrate’s point of view as why it should be written as promptly as
possible

• The sooner after witnesses were heard, the clearer would be the Magistrate’s mind of the details of the
evidence, the witnesses’s demeanour and the general atmosphere of the trial

• When delay occurs important details fade from his mind and would also involve additional work to review
the whole case in order to bring it back to mind

• Although no time limit is set, the Magistrate has a responsibility to see no undue delay occurs – Voon Chin
Fatt (1948-49) MLJ Supp 131