Law of Evidence – written notes – Emily Law

Topic 2: Preliminary Matters

Sources & Application

 The main source of the law of Evidence in Malaysia is the Evidence Act 1950. It has
general application to all persons regardless to race/religion.
 Ainan Bin Mahmud v Syed Abu Bakar – EA only applies to civil courts but not Syariah
courts. The Law of Evidence in Syariah Court is governed by Syariah Court Evidence
(Federal Territories) Act 1997.
 Mohamed Syedol Ariffin v Yeoh Ooi Gark – the illustration in the Act is an important aid
to statutory interpretation which has been expressly provided by legislature. It should not
be rejected unless in very exceptional & special cases. However, the application of a
section does not confined to its illustrations only.

Evidence Act 1950

 S. 2 – extent: the EA shall apply to all judicial proceedings but not to

affidavits/arbitrations.
 Judicial proceeding is not defined in EA. *S. 2 of CPC – ‘judicial proceeding’ = any
proceeding in the course of which evidence is/may be legally taken.
 Re Loh Kah Keng (Deceased)
 Fact: the deceased died in a mysterious way with telephone cord surrounded his
neck. In a Magistrate’s inquiry, the wife was called to provide information. By
virtue of s. 122 of EA, the deceased’s widow is prohibited from disclosing
communications made to her by the deceased during the marriage
 Issue: whether s. 122 amounts to judicial proceeding which falls within the ambit
of EA
 Held:
o According to s. 2 of EA, the Act only applies to judicial proceeding but not
affidavits/arbitrations. An inquest does not amount to judicial proceeding and so it
does not fall within the ambit of s. 2 of EA.
o Therefore, EA is not applicable and s. 122 cannot be applied. The wife is bound to
disclose the communication between her and her deceased husband.
o Judicial proceeding = a trial which involves 2 or more parties, determine the
rights & liabilities, with a verdict of whether a person is liable/not.
o Inquest = an investigation with a verdict of the cause of death.

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Law of Evidence – written notes – Emily Law

Affidavits

 Affidavit = a statement in writing made under oath/affirmation, made before an

authorised person. The person making the affidavit is known as deponent.
 Malaysia Building Society Bhd v Univein Sdn Bhd – it reaffirms s. 2 of EA that EA does
not apply to affidavits.
 General rule: O41 ROC – there shall have no evidence of hearsay/opinion in affidavit.
 Exceptions:
o O38 R1 ROC – subject to the provisions of these Rules and of the Evidence Act &
any other written law relating to evidence, any fact required to be proved at the
trial by the evidence of witnesses shall be proved by the examination of the
witnesses in open court.
o O38 r2:
(1) Evidence-in-chief of a witness shall be witness statement & the witness shall
attend trial for cross-examination unless the Court otherwise orders/ the parties to
the action otherwise agree & subject the directions from court. In default of
attendance, the witness statement shall not be received in evidence except with
the leave of the Court.
(2) Evidence shall be given by affidavit unless any provision of these Rules
otherwise provides/the Court otherwise directs. The Court may order the
attendance for cross-examination & if the person in question does not attend, his
affidavit shall not be used as evidence without the leave of the Court.
o S. 59 of EA: all facts may be proved by oral evidence except the contents of
documents.
o S. 60 of EA: such oral evidence must be direct – a fact which could be seen, heard,
perceived by any other sense/ in any other manner & if it is an opinion, it is an
evidence of the person who holds that opinion.

Evidence Act vs Common Law

 Jayasena v R – if the Act is clear, the court will not refer to the common law. The court
will only refer to common law when there is lacuna in the local law/ the Act is silent or
vague on a particular law.
 PP v Yuvaraj – The law of evidence in Malaysia is the Evidence Act 1950. If there is a
conflict between the Act and common law, the Evidence Act prevails over common law.
Reference to common law can only be made when there is lacuna in the Act or the Act is
silent/ unclear on a particular issue.

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Law of Evidence – written notes – Emily Law

Facts

 S. 3 ‘fact’: (a) anything capable of being perceived by senses; (b) any mental condition of
which a person is conscious.
 S. 3 ‘evidence’: (a) oral evidence; (b) documentary evidence
 S. 5 EA: evidence may be given of facts in issue & relevant facts
o Fact in issue = direct evidence
o Relevant fact = circumstantial evidence
 S. 3 ‘fact in issue’: any fact, the existence/non-existence, nature/extent of any right,
liability/disability asserted/denied
 Sir Rupert Cross – ‘fact in issue’ =
a) fact where a plaintiff in civil action/prosecutor in criminal proceeding must
establish in order to succeed
b) any further facts that defendant/accused must establish to rely on a defence
 s. 3 ‘ relevant’: one fact is said to be relevant when it falls within any relevancy
provisions under EA (Chapter II s. 5-s. 55)
 Sir Rupert Cross – ‘relevant’ = fact not itself in issue but from which the existence/non-
existence of the fact in issue may be inferred; evidence of facts relevant = circumstantial
evidence.
 PP v Dato Seri Anwar Ibrahim (No. 3)
 Fact: the accused was charged with corrupt practices. It was alleged that the
accused had unlawfully used his public position to his advantage, in that he had
directed 2 senior police officers to obtain 4 written statements from one Azizan &
Ummi, denying their allegation of sexual misconduct & sodomy against him in
order to save himself from any criminal proceedings.
 Held: (HC, Augustine Paul): the truth of falsify of the allegation of sexual
misconduct & sodomy is not a fact in issue. Therefore, no evidence can be led to
establish whether the allegations are true/false as such evidence is irrelevant & not
admissible under s. 5, 7, 8 & 9 of EA.
 Comment: the judge construed ‘fact’ in a narrow way
 PP v Azilah Hadri & Anor (Altantuya’s case)
 Fact: the deceased was murder. It was found that the immigration record of
deceased & her sister was deleted.
 Held: the affecting issue in a murder case is its AR & MR. The issue of the
deletion of immigration record & allegation of political conspiracy is irrelevant.

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Law of Evidence – written notes – Emily Law

Classification of Evidence

 There are 3 forms of evidence which known as ‘judicial evidence’:

a) Oral evidence (testimony of witness)
b) Documentary evidence
c) Real/physical evidence (eg: visit of crime scene)
 Evidence can be classified into 3 categories:
a) Oral/documentary
b) Direct/circumstantial
c) Original/hearsay

Best Evidence Rule

 Best evidence rule = the principle that the court admits the best evidence available.
 Omychund v Barker – there is one general rule of evidence, the best that the nature of the
case will admit.
 One question arises from the best evidence rule is should the best evidence rule applies to
admissibility or only weight?
 Admissibility = if it is not the best evidence, it is inadmissible
 Weight = the 2nd best evidence can still be admitted, but given less weight

 R v Quinn & Bloom

 Fact: the prosecution of a striptease performance was conducted at the premises
where the appellants carried on business as club proprietors. One of the exhibits
was a reconstruction of striptease performance film.
 Held: the judge rejected the evidence, on the basis that it was not the best
evidence. This objection goes not only to weight, but to the admissibility as it is
not the best evidence.

 Kajala v Noble
 Fact: the appellant was charged with behaving in a threatening manner. At the
hearing, a video-cassette recording which showed the appellant behaving in such
manner was admitted as evidence. This was because the original was kept in
British Broadcasting Corporation (BBC). As a matter of policy, it did not allow
the original documents to leave their premises.
 Held:
o The evidence is admissible although it was not the best evidence.
o The old rule that a party must produce the best evidence no longer applied except
where the original document was available on the party’s hands.
o The court is not confined to the best evidence but could admit all relevant
evidence. The goodness/ badness of it went to the weight but not admissibility.

 Note: Malaysia adopts Kajala’s approach

 In Malaysia, the best evidence rule is reflected in s. 60(1)(c), s. 64, s. 91 & s. 144 of EA.

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 Chow Siew Woh v PP

 Fact: the victim was attacked & made a dying declaration to the uncle and
brother. He made another dying declaration to investigating officer. During the
trial, the declaration was tendered by the uncle & brother but not the officer.
 Held (FC): the court allowed the dying declaration tendered by the uncle &
brother as evidence but it carries lesser weight due to their failure to report the
identity of the deceased’s assailant until after her death, 9 days after the discovery
of the fact.
 *It means that even if the party is unable to tender the best evidence, the court
will consider the weight of the next best evidence.

 PP v Lim Kuan Hock

 Fact: the defendant raised a defence the defence of alibi. The condition is that
there must have witness. The defendant appeared to be the witness himself.
 Held: in weighing the credibility of the evidence of the accused, it was weak & a
conviction is warranted.

 KPM Khidmat Sdn Bhd v Tey Kim Suie

 Issue: concern the admissibility of documentary evidence (summary of accounts)
 Fact: The summary of account was tendered as proof that the appellant owed
respondent a sum of money for work completed. The summary was taken from
R’s record book but in the court, R was unable to produce it, claimed that he did
not know the whereabouts of the record book due to the long lapse of time.
 Held:
o Contents of document must be proved by the production of original document.
Secondary evidence is generally not admissible.
o S. 65(1) EA: secondary evidence relating to documents may be admissible if…

 Gnanasegeran v PP
 Fact: the best evidence rule is considered in the light of computer technology,
concerning the admissibility of document produced by computer.
 Held:
o For such document to be admissible, s. 90A(1) EA must be fulfilled – the printout
must be produced by the computer in the course of its ordinary use.
o S. 90A(2) EA – a certificate signed by the person responsible for the management
& operation of the computer may be tendered.
o Note: in the case, the certificate was not tendered. Instead, an officer was called to
given evidence on the working of that computer.
 Held:
o The information is stored electronically in the bank’s computer. It is not in itself
visible to naked eyes.
o Therefore, the oral evidence of the bank officer may not have been the best
evidence but it was admissible subject to the weight of such evidence.

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Law of Evidence – written notes – Emily Law

Documentary evidence

 Documentary evidence can be relevant in its:

a) Authenticity
b) Contents (when parties in dispute with the contents)
c) Real evidence (eg: doc with fingerprint; an object, whether real/fake)
 In a civil proceeding, documentary evidence can be adduced in ‘agreed bundle of
document’ or ‘disputed document/disputed or disagreed bundle’.

A. Agreed bundle of document

 It means: agreed to authenticity & it can either agreed to content or dispute with content
 General rule: the truth of content will not be admitted unless agreed by both parties

 Jaafar Bin Shaari v Tan Lip Eng

o A document does not automatically become part of evidence before the court
unless it is referred to by either party.
o Once it is part of the evidence, it must be marked as ‘exhibit’.
o The truth of the content of any document is a matter for court at the end of trial.

B. Disputed document
 All disputed documentary evidence must be admitted & proved by witness.
 General rule: the maker of document is the witness
 The original document must be lodged in court for inspection
 Once admitted in court, it must be marked as ‘exhibit’

 YB Dato Hj Husam Hj Musa v Mohd Faisal Rohman Ahmad (2015)(CA)

 Fact: The appellant, a politician, commenced a defamation suit against the
respondent alleging that the respondent had circulated an article about appellant
via his blogspot. R denied writing the article and owning the said blogspot. The
trial judge held that the A did not establish that the R was the writer in the blog &
dismissed the suit. Hence, the appellant's appeal.
 It was the appellant's submission that (i) the trial judge had marked the A's
documentary evidence as exhibit without objection from R (ii) the trial judge
refused to consider some of the marked exhibits; and (ii) the R's defence was a
mere denial and no particulars were given in the statement of defence to support
his defence of denial.
 Held (Hamid Sultan Abu Bakar):
o As a general rule in a defamation suit, once the plaintiff has established by
direct/circumstantial evidence through documents that the act is defamatory, it
was published, it refers to plaintiff & the defendant was the author of the
misconduct, liability is attached.
o Under s. 114A EA, it is for the respondent to rebut the presumption but he failed
to do so. The defence of mere denial was not acceptable.

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o *In civil cases, once the court decided that the evidence is relevant & have
allowed the exhibits to be marked as exhibit with no objection by the respondent,
it cannot be subsequently expunged unless it has been marked as ID only.
o *The judge, in the instant case, had accepted the evidence as relevant, admitted it
and marked it as exhibit but late refused to consider the evidence, alleging that it
was lack of satisfaction on the admissibility procedure.
o *The judge could not do that. Once it is marked as exhibit, the court cannot
exclude such evidence.

 In criminal proceeding, all disputed documentary evidence must be admitted & proved
through a witness.
 S. 73AA of EA – agreed facts need not be proved in the court
 Dato Seri Anwar Ibrahim v PP (2015)
 Issue: whether in criminal trial, the judge is at liberty to unmark the evidence as
exhibit.
 Held: in criminal case, the judge has the liberty to do so, but not in civil case.

Real Evidence/Physical Evidence

 Real evidence must be adduced by witness & marked as ‘exhibit before it can be
admitted as evidence in the court.
 In adducing such evidence, one must establish the chain of evidence.
 Nobies Weah Ezike v PP (2010)
 Fact: the accused was charged with s. 39B of DDA for drug trafficking. The trial
judge admitted & considered the IDs which were not yet properly admitted as
‘exhibit’.
 Held (CA): such evidence should not be considered, the prosecution’s case had to
stand without those exhibits. However, the court found the accused guilty of
charge as the prosecution had proved the case beyond reasonable doubt & there is
no break in the chain of evidence.