Presumption

Law of Evidence

It is the general principle in the law of evidence that: “He who asserts must prove”. This is
provided under Section 101 (civil + criminal)
There are exceptions to this general rule:
1. Admitted facts (s.58 + s.73AA)
2. Judicial notice (s.56 + s.57)
3. Presumptions
Presumptions are facts which are automatically accepted by the court without the need of
proof/evidence. Therefore, it has an impact on the burden of proof, where presumptions apply, it
will reduce the number of facts that a party must establish in court.
Therefore, this topic must be read together with burden of proof.
In Malaysia, presumptions are generally operated by statutory direction.

Types of presumptions

With basic facts Without basic facts

With basic facts

-Involves the relationship between 2 sets of facts:
i) basic fact: if the basic fact is established

court may/must accept the existence of the

ii) presumed fact without calling for proof

(the burden will now shift to the other party to rebut the existence of the presumed fact/disprove
the presumed fact. If the other party fails the presumed fact will be deemed to exist and the court
will act accordingly)
Example: The accused was found in possession of stolen goods, it is the duty of the prosecution
to prove that the accused was a theft. However, it can be presumed that the accused is a thief
because he was found with possession of stolen goods, therefore the accused can be established
as a thief within calling proof. The burden then shifts to the accused to prove on BOP that he is
not a thief.

Without basic facts

*Not necessary to establish any basic facts.
Example: Presumption of innocence
Presumption of insanity
(these can be rebutted)

Presumptions can also be divided in the followings.

Presumptions

-Presumptions of Fact -Presumption of Law

-Discretion -No discretion
-Rebuttable -Rebuttable/Irrebuttable
(s.114) (s.112,s.113)
Presumption with basic facts
 Section 4
(1) Whenever it is provided by this Act that the court may presume a fact, it may either regard
the fact as proved unless and until it is disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact
as proved unless and until it is disproved.
(3) When one fact is declared by this Act to be conclusive proof of another, the court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it.

Example: s. 4 (1) = s.114 ( presumption of fact)

s.4(2) = s112( rebuttable presumption of law)
s.4(3) = s.113(irrebuttable presumption of law)

 Section 114
The court may presume the existence of any fact which it thinks likely to have happened, regard
being had to the common course of natural events, human conduct, and public and private
business, in their relation to the facts of the particular case.
ILLUSTRATIONS
The court may presume -
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars;
(c) that a bill of exchange accepted or endorsed was accepted or endorsed for good
consideration;
(d) that a thing or state of things which has been shown to be in existence within a period shorter
than that within which such things or states of things usually cease to exist is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would if produced be unfavourable to the
person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the
answer if given would be unfavourable to him;
(i) that when a document creating an obligation is in the hands of the obligor the obligation has
been discharged.
But the court shall also have regard to such facts as the following, in considering whether the
maxims do or do not apply to the particular case before it:
Elements:
Deals with rebuttable presumptions of facts.
The section uses the term “may” and if interpreted using section 4: the operation of the
presumptions in s.114 are not automatic but at the discretion of the court.
On prove of basic fact court has a discretion either to accept the presumption and call for
evidence to the contrary or it may reject the presumption and order that the facts which are the
subject matter of the presumption to be strictly proven.

Mohamed Ali v PP
Held: Presumptions of fact must not be drawn automatically, or, as it were, by rule of thumb,
without first considering whether in the circumstances of each particular case there were
adequate grounds to justify any presumption being raised’

Example of application on para(a)

-If court decides not to accept the presumption then the prosecution has to lead evidence of these
facts and prove it BRD.
-If court accepts the presumption then the burden shifts to the accused who has the burden to
establish that he is not the thief of handling stolen goods with knowledge on the BOP.

1. Para (a)
The court may presume -
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has
received the goods knowing them to be stolen, unless he can account for his possession;
-If court decides not to accept the presumption then the P has to lead evidence of these facts and
prove it beyond reasonable doubt.
-If the court accepts the presumption then the burden shifts to the Accused who has the burden to
establish that he is not the thief or handling stolen goods on the balance of probabilities.
PP v Hong Ah Huat
Facts: In this case the evidence showed that the accused had purchased stolen property from the
thief. The property were found in his possession. The learned magistrate acquitted the accused as
he found there was doubt in the prosecution case.
Held: It is open to the court to presume under Illustration (a) of section 114 of the Evidence
Ordinance that the accused is either the thief or a receiver of stolen goods. The question as to
what amounts to recent possession varies according to whether the stolen article is or is not
calculated to pass readily from hand to hand. It depends upon the nature of the article itself.

2. Para (b)
The court may presume -
(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars.
Note: s.133

3. **Para (g)
The court may presume:
(g) that evidence which could be and is not produced would if produced be unfavourable to the
person who withholds it;
(Where it applies court may draw an adverse inference against the party who has withheld the
evidence)
Effect: the party against whom such an inference is drawn will not be able to discharge the
burden of proof
It operates as a tool which can be used by the Defence as against the Prosecution. Will be argued
during submissions (no case to answer / closing arguments).
Note : courts very reluctant to draw such inference unless elements are satisfied.
Elements:
-Applies to both civil and criminal cases
-Not mandatory but discretionary (s.4(1))
-Basic fact: that evidence which could be and is not produced
-It must be material evidence which was deliberately withheld.
-Presumed fact: that evidence would be adverse to the party withholding.
-The choice of words suggest that it must be more than mere failure but deliberate withholding of
evidence with an ulterior motive

Withholding material evidence

Munusamy v PP
Facts: This was an appeal from the conviction of the appellant for the offence of trafficking a
dangerous drug. On appeal, the conviction was attacked on five main grounds. The argument on
the first three grounds evolved around the provision of adverse inference under section 114(g)
Evidence Act 1950 on (a) the non-production of the unknown informer,
Held: Adverse inference under that illustration can only be drawn if there is withholding or
suppression of evidence and not merely on account of failure to obtain evidence. It may be
drawn from withholding not just any document, but a material document by a party in his
possession nor for non-production of just any witness but only an important and material witness
to the case
There was overwhelming evidence that the cannabis produced in court was indeed the one
recovered by the police from the appellant and the evidence was sufficient to rebut any adverse
inference under section 114(g) Evidence Act so as to render the calling of the typist as a
prosecution witness, to show the clerical mistake in addressing the exhibits, wholly unnecessary;

Khoon Chye Hin v PP

Held: It is, of course, well settled that in a criminal case prosecuting counsel, provided there is
no wrong motive, has a discretion as to whether or not to call any particular witness and in
particular has a discretion not to call in support of his case a witness whom he does not believe to
be a witness of truth.

It is crucial to call the important witness

PP v Chee Kon Fatt
Facts: Other important points for consideration were whether C had any motive to falsely
implicate the accused, the failure of the prosecution to call the sister S of the accused who was
present at the scene of the arrest and who was seen conversing with the accused.
Held: Witnesses essential to the unfolding of the narrative upon which the prosecution case is
based must, of course, be called by the prosecution whether in the result the effect of their
testimony is for or against the prosecution. Indeed she was arrested by Chettavelu along with the
accused on the ground of trafficking in the same drug but was subsequently released. So, her
evidence could scarcely be considered unnecessary.

Azilah Bin Hadri v PP (altantuya)

Held: The failure to call DSP Musa had not in any way caused unfairness to the respondents.
The court fail to see how the presumption of adverse inference under s.114(g) EA could be
applicable here. The calling of DSP Musa would not have affected the evidence pertaining to
Baginda’s previous relationship as he never instructed the respondent how to assits Baginda.

It is the general rule that once the prosecution have proved a prima facie case, the failure to call a
witness is not fatal. However, on consideration on the whole, adverse inference may be drawn to
the prosecution on the defence stage.
PP v DSAI (No.3)
Held: The failure for the prosecution to call the PM has no adverse inference as the prosecution
has the discretion to call witness as long as there is no ulterior motive. No adverse inference will
be drawn if there is sufficient evidence to prove its case.

PP v Chia Leong Foo

Held: This is an appropriate instance where the prosecution could have called a representative
from High Light Park Industry to rebut the defence evidence on the purchase of the helmet. This
was not done. Failure by the prosecution to rebut this evidence means that if such evidence in
rebuttal had been adduced it would have been adverse to the prosecution. (prosecution says
pillon rider wear yellow helmet, but evidence shows it’s the accused.)
Upon a consideration of the whole of the evidence adduced, the court was satisfied that the
defence had raised a reasonable doubt in the prosecution case. As proof of guilt can be
established only on the whole of the evidence adduced, it emerged that Yee Chin Koon's
evidence is material which the prosecution ought to have adduced. This raised the presumption
under s 114(g) of the Evidence Act 1950 that if such evidence had been adduced it would have
been unfavourable to the prosecution.
(Adverse inference against the accused)
Goh Ah Yew v PP
Held: That an accused person is at liberty to offer evidence or not as he thinks proper and no
inference unfavourable to him can be drawn because he adopts one course rather than the other
and that therefore the Deputy Public Prosecutor in this case was wrong in inviting the assessors
to draw an inference against the appellant by reason of his failure to call a witness who was
present in Court and available.

Baharom v PP
Facts: The appellant had been convicted or murder. The accused relied on the defence of
insanity.
Held: The accused could have called the prison medical officer and the medial superintendent of
a mental hospital who were acquainted with his medical condition and was on the position to
testify his state of mind. The failure to produce such witnesses an adverse inference can be
drawn against them.

In Civil cases, adverse inference cannot be drawn against the plaintiff

Selvaduray v Chinniah
Held: The burden of proof was not on the defendant, his failure to call a material witness would
not raise an adverse preumption.

 Section 114A (publication)

(1) A person whose name, photograph or pseudonym appears on any publication depicting
himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to
publish or re-publish the publication is presumed to have published or re-published the contents
of the publication unless the contrary is proved.
(2) A person who is registered with a network service provider as a subscriber of a network
service on which any publication originates from is presumed to be the person who published or
re-published the publication unless the contrary is proved.
(3) Any person who has in his custody or control any computer on which any publication
originates from is presumed to have published or re-published the content of the publication
unless the contrary is proved.
(4) For the purpose of this section-
(a)"network service" and "network service provider" have the meaning assigned to them in
section 6 of the Communications and Multimedia Act 1998 [Act 588]; and
(b)"publication" means a statement or a representation, whether in written, printed, pictorial,
film, graphical, acoustic or other form displayed on the screen of a computer.
Elements:
Applies to both civil (defamation) & criminal (Penal Code, Computer Crimes Act). The
presumption could apply to any publication on which can be displayed on the screen of a
computer i.e. email, blogs, forums, social network.
It is clear that the presumption is rebuttable by evidence to the contrary (BOP).

Tong Seak Kan v Loke Ah Kin

Facts: The first plaintiff, a prominent businessman and his wife, the second plaintiff sued the
first defendant for cyberspace defamation. However, it was his defence that the two blogs
allegedly containing the defamatory statements did not belong to him and that he had nothing to
do with the publications.
Held: The confirmation by service provides provided proof that the first defendant was the
registered subscriber of the two blogs, automatically kicking in the presumption under
s.114A(2). (retrospective, after proving)

YB Dato Hj Musa v Mohd Faisal Rohban

Facts: The plaintiff, a well known politician, commenced a defamation suit against the
defendant allegaing that the respondent was a blogger and had circulated a defamatory blogspot.
Held: The new s.114A EA will assist the plaintiff to force the defendant to exonerate himself
from liability. The defendant faield to rebut the presumption and mere denial is not acceptable.

 Presumptions under DDA

Section 37(d) & (a)
(d) any person who is found to have had in his custody or under his control anything
whatsoever containing any dangerous drug. Shall until the contrary is proved, be deemed to
have been in possession of such drug and shall, until contrary is proved, be deemed to have
known the nature of such drug.
(da) any person found in possession of drugs of a certain weight (basic fact) will be presumed to
be trafficking (presumed fact)
It must be noted that the law disallowed double presumption
Muhammad bin Hassan v PP
Held: The prosecution is not allowed to rely on the presumption of possession as a basic fact in
order to invoke the presumption of trafficking. (meaning cant rely on s.37(d) and invoke s.37(da)

 New Section 37A

Notwithstanding anything under any written law or rule of law, a presumption may be applied
under this Part in addition to or in conjunction with any other presumption provided under this
Part or any other written law.
Royal Assent: 31 December 2013
In Force from: 15 February 2014
Gazetted Date: 14 February 2014

Mohammad Hanafi Mohd Hashim v PP

FC: The section is unconstitutional for its grave erosion to the presumption of innocence by
virtue of Art.5(1) of FC.