evidence 2

LAW 4211EVIDENCE

II

Evidence IIBy Bro Muzaffar Shah

Mallow

EVIDENCE 2 (OUTLINE)

DOCUMENTARY EVIDENCE

PRESUMPTIONS

CORROBORATION

ESTOPPEL


PRIVILEGES

EXAMINATION OF

WITNESS

STANDARD &

BURDEN OF PROOF

Document &

Content of Document

Document & content of a documentAccording to Evidence Act 1950, Evidence includes: (a) all

statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence: (b) all documents produced for the inspection of the court: such documents are called documentary evidence (Keterangan meliputi (a) segala pernyataan yang dibenarkan atau dikehendaki oleh mahkamah dibuat di hadapannya oleh saksi-saksi behubungan dengan perkara-perkara fakta yang disiasat: pernyataan sedemikian disebut keterangan lisan: (b) segala dokumen yang dikemukakan bagi pemeriksaan mahkamah: dokumen-dokumen sedemikian disebut keterangan dokumen)

Document & content of a document Document means any matter expressed, described or howsoever represented, upon any substance,

material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of :

(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever; (b) any visual recording (whether of still or moving images); (c) any sound recording, or any electronic magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever; (d) a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b), or (c) or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter;

Dokumen ertinya apa-apa hal yang dinyatakan, diperihalkan, atau bagaimana jua pun digambarkan, atas apa-apa benda, bahan, barang atau artikel, termasuklah apa-apa hal yang terkandung dalam cakera, pita, filem, runut bunyi atau apa jua pun peranti lain, dengan menggunakan:

(a) huruf, angka, tanda, symbol, isyarat, lambing, atau apa jua pun bentuk pernyataan, perihal, atau gambaran lain; (b) apa – apa rakaman visual (sama ada imej kaku atau bergerak); (c) apa – apa rakaman bunyi, atau apa – apa jua pun rakaman elektronik, magnetik, mekanikal atau rakaman lain dan walau bagaimana jua pun dibuat, atau apa – apa bunyi, dednyut elektronik, atau apa jua pun data lain; (d) suatu rakaman, atau pemancaran, dari suatu jarak, apa – apa hal dengan mana – mana, atau apa – apa kombinasi, cara yang disebut dalam perenggan (a), (b) atau (c), atau dengan lebih daripada satu cara yang disebut dalm perenggan (a), (b), (c), dan (d), yang dimaksudkan untuk digunakan atau yang mungkim digunakan bagi tujuan menyatakan, memperihalkan, atau dengan apa jua cara sekalipun menggambarkan, hal itu;

Document & content of a document ILLUSTRATIONS (MISALAN) A writing is a document. (Tulisan ialah dokumen) Words printed lithographed (method for printing using a plate or stone with a completely smooth surface) or

photographed are documents. (Perkataan yang dicetak, dilitografkan atau difotografkan ialah dokumen) A map, plan, graph or sketch is a document. (Peta, pelan, graf atau lakaran ialah dokumen) An inscription on wood, metal, stone or any other substance, material or thing is a document. (Inskripsi pada

kayu, logam, batu, atau apa – apa benda, bahan atau barang lain ialah dokumen) A drawing, painting, picture or caricature is a document. (Lukisan, citra, gambar atau karikatur ialah

dokumen) A photograph or a negative is a document. (Fotograf atau negatif ialah dokumen) A tape recording of a telephonic communication, including a recording of such communication transmitted

over distance, is a document. (Rakaman pita komunikasi telefon, termasuklah rakaman komunikasi sedemikian yang dipancarkan dari suatu jarak, ialah dokumen)

A photographic or other visual recording, including a recording of a photographic or other visual transmission over a distance, is a document. (Rakaman fotografi atau rakaman visual lain, termasuklah rakaman pemancaran fotografi atau pemancaran visual lain dari suatu jarak, ialah dokumen)

A matter recorded, stored, processed, retrieved or produced by a computer is a document; (hal yang dirakamkan, disimpan, diproses, didapatkan semula atau dikeluarkan oleh computer ialah dokumen)

Document & content of a document

Documentary evidence: Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term also include any media by which information can be preserved.


Photographs (R. v. Maqsud Ali [1965] 2 All ER 464 at p. 469 Schmidt v. Schmidt [1969] QWN 3 at 5; R. v. Lambert [1967] Crim. LR 480 & R. v. Howe [1958] SASR 95 at 125-6).


Tape recordings (Mohd Ali Jaafar v PP [1998] 4 MLJ 210, Ghazali Bin Salleh v PP [1993] 2 AMR 2037), Z.B. Bukhari v. B.R. Mehra AIR 1975 SC 1788, Yusufalli v. State AIR 1968 SC 147, R. v. Mills [1962] 3 All ER 298, & Gurbachan Singh v. PP [1966] 2 MLJ 125 at p. 132).


• Video recording (R. v. Fowden and White [1982] Crim. LR 588).


• Facsimile letter (Tempil Perkakas Sdn Bhd v Foo Sex Hong [1996] 5 MLJ 542)

Authentication of documentary evidence (Section 61 – 66 of EA 1950)

Authentication process

First step: The genuineness of every document must be proven

(See sections 64 & 65 of EA 1950)

Second step: Proving the content

of the document: (See sections 61, 62, and 63 of

EA 1950)

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).

Section 64 provides documents must be proved by primary evidence except in the cases hereinafter mentioned. (Dokumen – dokumen mestilah dibuktikan dengan keterangan primer kecuali dalm hal – hal yang tersebut kemudian daripada ini). This section provides that documens must be proved by primary evidence. It is based on the best evidence rule. Section 62 of the Act says that primary evidence means the document itself produced for the inspection of the court. (Dokumen itu sendiri yang dikemukakan untuk pemeriksaan mahkamah).

Per Edgar Joseph Jr J (as he then was) in Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, 368 states “It is firmly established rule under section 64 that requiring that when documentary evidence is tendered, primary evidence of the document, that is to say the production of the document itself is essential”.

Per Mohd Dzaiddin SCJ in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, 631 states that “It is well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in cases under section 65”. Section 65 provides for cases in which secondary evidence relating to documents may be given. (Hal – hal dalam mana keterangan sekunder bagi dokumen boleh diberi)

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).

• Method of proof of a document: Authentication of a document maybe provided by having its author appear as a witness, calling a witness who was present when it was signed (Section 67 – 73), or calling one who can identify the handwriting (Section 45 & 47) or draw presumption under section 90 (Ancient document). Per Augustine Paul JC (as he then was) in Alliedbank (M) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, 14 “It is settle law where a document is sought to be proved in order to establish the truth of the facts contained it, the maker has to be called. Non compliance with this rule will result in the contents of the documents being hearsay” See also R v Gillespie (1967) 51 Cr App R 172; R v Plumer (1814) R & R 264; Hill v Baxter [1958 1 QB 277; and R v Moghal [1977] Crim LR 373). • It is a requirement of the best evidence rule that the maker of a document

must be called to prove it. The question of admissibility of documents per se is a question of law (See Au King Chor v PP [1985] 1 MLJ 216). It falls upon the party seeking to produce a document to show that it is admissible in law (See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301). The provisions of the Act as to the mode of proof of any document applies equally both to the prosecution and the defense (See Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360)

No Authentication = Documentary hearsay• Myers v Director of Public Prosecutions [1965] AC 1001, the appellant was convicted

together with another man of offences relating to the theft of motor cars. The prosecution case was to prove that the disguised cars were stolen by reference to the cylinder block numbers indelibly (permanently) stamped on their engines. Therefore, they sought to adduce evidence, which derived from records kept by a motor manufacturer. The witnesses called were the employees of the manufacturers of the cars who were in chaarge with the keeping of those records/data and not with their compilation. The defense counsel objected to the admission of such evidence since it was hearsay. The manufacturer’s records could not be tendered as proof of the truth of the facts stated. The trial judge however, admitted the evidence and convicted the appellant. The appellant then appealed to the Court of Criminal Appeal on the ground that the evidence ought to have been excluded but his appeal was dismissed. On appeal to the House of Lords it was held that the records constituted inadmissible hearsay evidence. The officer who was called in this case could not prove such records were correct. The appeal was then allowed and the conviction was set aside.

No Authentication = Documentary hearsay

• In Tan Siak Heng v. Rex [1950] 16 MLJ 214, the conviction of the accused for criminal breach of trust was quashed on appeal because at his trial written hearsay evidence was wrongly admitted. The appellant was employed as ca onductor by a bus company. On a charge of criminal breach of trust against him it was proved that he had issued a used ticket to a passenger who happened to be a detective. To prove the criminal breach of trust, a deputy accountant of the bus company was allowed to tender in evidence certain records to show that the money received had not been paid to the company. However, these records were not compiled by the witness and furthermore he had no personal knowledge of the facts recorded. Apart from these records there was no evidence of the failure to pay over the money. The appellant's appeal was allowed because clearly inadmissible written hearsay evidence was wrongly admitted.

No Authentication = Documentary hearsayIn Patel v. Comptroller of Customes

[1966] AC 356 where the appellant was charged with making a false entry in that he declared the origin of the coriander seeds to be India whereas it was Morocco. The prosecution relied entirely on the labels and markings which asserted that the goods were the "produce of Morocco". On appeal the Privy Council held that the legend "produce of Morocco" written on the bags was from an evidential point of view inadmissible against the appellant as hearsay, and that the list of exceptions to the hearsay rule could not be extended to include such things as labels or markings. Perhaps the reason to exclude labels or markings as exceptions to the hearsay rule can be found in the judgment of Lord Hodson “Nothing here is known of when and by whom the markings on the bags were affixed and no evidence was called to prove any fact which tended to show that the goods in question in fact came from Morocco”.

No Authentication = Documentary hearsay

In Beh Heng Seong v PP [1972] 2 MLJ 190, the appellant was charged with a breach of the Sale of Food and Drugs Regulations by manufacturing sour plum juice in which there was saccharin (Artificial sweetener). This is prohibited for the use in the manufacturer of food or drinks. The prosecution sought to adduce evidence that a bottle of the sour plum juice offered for sale was labeled with a piece of paper bearing a certain portrait which was alleged to be manufactured by one Beh Kwang Chee. However, there was no indication as to whether Beh Kwang Chee was a shop or of the address of this person or the shop. It was held that the allegations on the label must be regarded as hearsay and inadmissible.

No Authentication = Documentary hearsay In Sim Tiew Bee v. PP [1973] 2 MLJ 200,

the appellant had been charged and convicted of the offence of being concerned in the importation of uncustomed goods. At the trial the evidence of the following documents was tendered and admitted:

(a) the ship’s manifest without the master or the officer responsible for the document being called to prove the contents;

(b) the tally sheet prepared by a tally-clerk who was called to give evidence but who stated that the measurements were taken by a coolie in the presence of the tally-clerk;

The Federal Court held that evidence (a) and (b) should not have been admitted, unless the absence of the maker could be explained, which then would have been admitted as an exception to the rule against hearsay as specifically provided by s. 32.

Second step: Proving the content of the document (See section 61, 62 & 63 of EA 1950)

In proving the contents of writing, the original of the writing is the best evidence of its contents and must, therefore, be introduced (except in certain situations) (See section 62 which provide for primary evidence/keterangan primer) . When an admissible writing has been lost or destroyed or cannot be produced, the contents may be proven by an authenticated copy (section 63 (a) – (d) which provide for secondary evidence/keterangan sekunder) or by the testimony of a witness who has seen and can remember the writing (section 63 (e) See Ma Mi v Kallander Ammal AIR 1927 PC 15, 16). Per Lord Esher MR Lucas v William [1892] 2 QB 113, 116 “Primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation of its absence has been given”. See also Jai Gopal Singh v Divisional Forest Officer AIR 1953 Pat 310, 311

Documentary Evidence & the best evidence rule

Documentary evidence is subject to the best evidence rule, which requires that the original document be produced unless there is a good reason not to do so. See section 104 illustration b. Section 104 provides the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence. (Beban membuktikan fakta yang perlu dibuktikan untuk membolehkan seseorang memberi keterangan mengenai sesuatu fakta lain, terletak pada orang yang hendak memberi keterangan itu). Illustration b of the section provides A wishes to prove by secondary evidence the contents of a lost document. A must prove that the document has been lost. (A hendak membuktikan dengan keterangan sekunder kandungan suatu dokumen yang telah hilang. A mestilah membuktikan bahawa dokumen itu hilang)

Ancient document

Presumption as to documents 20 years old i.e. Ancient document

Section 90 provides Presumption as to documents 20 years old, where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.


Anggapan mengenai dokumen yang 20 tahun lamanya

Jika sesuatu dokumen yang berupa atau dibuktikan sebagai dua puluh tahun lamanya dikemukakan dari sesuatu simpanan yang difikirkan wajar oleh mahkamah dalm hal tertentu itu, mahkamah boleh menganggap bahawa tandatangan dan tiap-tiap bahagian lain dokumen itu yang berupa sebagai dalam tulisan tangan seseorang tertentu adalah di dalam tulisan tangan orang itu, dan mengenai sesuatu dokumen yang disempurnakan atau diakusaksi, mahkamah boleh mengaggap bahawa dokumen itu telah disempurnakan dan diakusaksi dengan wajar oleh orang-orang yang berupa sebagai telah menyempurnakan dan mengakusaksikannya


Section 90 of the Indian Evidence Act 1872 provides the presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.


Requirementsunder

section 90

Not less than 20 years old

Free from suspicionProduce from

a proper custody

•An ancient document, in the law of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule.


The presumption goes only to the genuineness of the document but not to the truth of the contents. Per Sharma J in Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ 77, 79 “Private or public documents twenty years old produced from proper custody and otherwise free from suspicion prove themselves and no evidence of the handwriting, signature, sealing or delivery need in general be given. If a document twenty years old or more is produced from proper custody and is on its face free from suspicion the Court may presume - (1) that it has been signed or written by the person whose signature appears or in whose handwriting it purports to be; and (2)that it has been fully attested and executed if it purports/claim to be so.


The period of 20 years is reckoned from the date the document is tendered in evidence. Per Sir George Rankin in Surendra Krishna v Mirza Mohammad AIR 1936 PC 15, 17: “Their Lordship are however of opinion that under section 90 of the Evidence Act 1950, the period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but from the date on which, it having been tendered in evidence”.

Where only a copy of the document is produced, the presumption under the section does not arise. Per Tan Chiaw Thong J in Tsia Deevelopment Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301, 302 stated that “That the production of a copy of the document is not sufficient to justify the presumption of due execution of the original under section 90. This ground is based on the Privy Council case of Kunwar Basant Singh & Ors v Kunwar Brij Raj Saran Singh (1935) IA 180.


In raising the presumption under the section, the court may rely on internal and external evidence of the document See Per KC Vohrah J in Ghazali Bin Arifin v Ahmad Bin Bakar [1992] 1 MLJ 282, 286 where the plaintiff is the son of Ariffin bin Osman and the administrator of his estate. The defendants are the beneficiaries of one Bakar bin Awang Ahmad's estate. Both Ariffin and Bakar have died. The plaintiff pleaded that his father, Ariffin, purchased from Bakar 1/3 of Bakar's undivided share, ie 1/3 of 4461/4609th share of the land held under SP 9920 Lot 355, Mukim Bukit Pinang, Kota Setar, Kedah. The land was alleged to have been purchased pursuant to a sale and purchase agreement dated according to the Muslim calendar, 11.6.1374 which corresponds with the Gregorian calendar dated 3 February 1955. The defendants are now registered owners of the said share. The plaintiff seeks a declaration that the defendants are bare trustees of the said share and for an order that the defendants do execute a transfer of the said share to him as administrator of the estate of Ariffin bin Osman, deceased.


Held, allowing the plaintiff's claim: (3) There is one feature in the document which needs further investigation, ie the date on which it was stamped was the very same date on which the alleged vendor of the land, died. If there is a dispute as to the genuineness of such documents (having regard to s 90 of the Evidence Act 1950) , it is necessary for the courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.

(4) There is no evidence as to the time when Bakar died. And there is nothing to indicate that he could not have signed the document because he had died earlier. On the other hand, the evidence shows that the purported purchaser of the land, Ariffin, had the document of title in respect of the land in his possession and was in occupation of the land until he himself died in 1984. The inference is that having regard to the common course of natural events, Bakar must have passed it to him.


If there is a dispute as to the genuineness of such documents (having regard to s 90 of both the Malaysian and Indian Acts) one needs to heed (take note/observed) what Madgavkar J said at p 40 in Mansukh Panachand Shah v Trikambhai Icchabhai AIR [1930] Bom 39, after he had referred to the Privy Council case of Shafiqunnissa v Shaban Ali Khan [1904] 26 All 581: “... it is necessary, therefore, for the courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.”

In excercsing the discretion vested in the court under section 90 of the EA 1950, it is also important to exercise due care and caution as has been pointing out in Ghulam v Allahdin 19 IC 964 and Jesu Lal v Gangga Devi 20 IC 868.


Read together with section 4 (1). It is presumption of fact, it is a permissive presumption, so it is up to the discretion of the court to decide whether to accept it or not. Per Ong J in Mohamed Ali v PP [1962] MLJ 230 states that “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 adequate grounds to justify any presumption being raised”.

If the document sought to be produced is not admissible under this section, it is still open to the party tendering it to establish that it is admissible under any other provision of the Act. See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301.

Public document&

Private document

Public documentPublic document: Public

documents are documents made for the purpose of enabling the public to use or refer to them. Justice Blackburn in the case of Sturla v Freccia (1880) 5 App. Cas. 623 defined a public document as “a document that is made by a public officer for the purpose of public making use of it and being able to refer to it”. In Loo Fang Siang v Ketua Polis Daerah Butterworth [1981] 2 MLJ 272, Arunalandon J quoted Jowitt’s Dictionary of English Law that “a public document is defined as a document made for the purpose of the public making it”.

Public documentSection 74 provides the following documents are public documents:

(a) documents forming the acts or records of the acts of - (i) the sovereign authority; (ii) official bodies and tribunals; and (iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and (b) public record, kept in Malaysia of private documents. (Dokumen – dokumen berikut adalah dokumen awam: a) dokumen yang mengandungi tindakan atau rekod tindakan (i) kuasa pemerintah berdaulat; (ii) badan – badan rasmi dan tribunal; dan pegawai – pegawai awam, perundangan, kehakiman dan eksekutif, sama ada bagi Persekutuan atau Negeri atau bagi mana – mana bahagian lain Komanwel atau sesuatu Negara asing; dan (b) rekod awam mengenai dokumen persendirian yang disimpan di Malaysia).

Public documentThe definition of public document under this

section is wider than the English law definition in the sense that section 74 does not require the condition of public access to the document to render it a public one; and

even when a right to inspect is not permitted, a document may be a public document:

See Per Augustine Paul J in Gopinathan a/l Subramaniam v Timbalan Menteri Dalam Negeri [2000] 1 MLJ 65

Public document

Section 74 provides for two (2) classes of public documents. The first class includes the acts or records of the acts of certain authorities and officers. Examples:

Antony Gomez v. Ketua Polis Daerah, Kuantan [1977] 2 MLJ 24 (Federal Court) - A first information report is a public document

Khoo Siew Bee & Anor v. Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49 (High Court, Malaya) - A cautioned statement is a public document.

Toh Kong Joo v. Penguasa Perubatan Hospital Sultanah Aminah, Johore Baharu [1990] 2 MLJ 235 - Medical reports made by medical officer are public documents.

Haji Abdul GhaniBin Ishak v PP [1980] 2 MLJ 196 - Uncautioned statement is a public document.

Pavone v PP [1986] 1 MLJ 72 - Notes of proceeding is a public document. Gopinathan a/l Subramaniam v Timbalan Menteri Dalam Negeri [2000] 1 MLJ 65 -

Report and certificate made by an officer under section 6 of the Drug Dependent and Rehabilitation Act 1983 is a public document.

Yeow Boon Kee v Timbalan Menteri Dalam Negeri Malaysia [1993] 2 MLJ 359 - Report under section 3 (2) (c) of the Dangerous Drugs (Special Preventive Measure) Act 1985 is a public document.

Syarikat Jengka Sdn. Bhd. V Abdul Rashid Bin Harun [1981] 1 MLJ 201 (FC) - Removal passes issued by the Forest Guard is a public document

Public document

The second class relates to public records of private documents.

What constitutes a public document has to be determined by court. There are certain guidelines in the decisions of the court when determining whether a document is a public document or not. In the case of Maktab Din v Kasar Singh 1928 Lah. 640, “it was stated that in order to bring a document within the definition of section 74, it must have shown to have been prepared by a public servant discharging his duty”.

Public documentMethods of proving public documents:

In Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia [1994] 1 MLJ 592 it was held that “where the document is a public document, the best evidence rule is inapplicable and the secondary evidence may be adduced not only as to the existence of such document but also as to its contents”. The method of proving public document is laid under section 76 to section 78 of the Evidence Act 1950.

Public documentRight to inspect: A person who has an

interest or has a right declared by law to inspect may inspect a public document. In the case of Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24, where it was held, By the Federal Court: “although section 76 of the Evidence Act is silent as to the right of a person to inspect a first information report, it is clear that under the common law the appellant has that right as he is a person interested in it and inspection is necessary for the protection of his interest. The first information report is admissible in evidence in the criminal trial under section 157 of the Evidence Act and therefore the appellant or his counsel should be supplied with a copy”.

Public documentRight to the copy: This section also states

that when there is a right to inspect, an individual has a right to a certified true copy of the document on demand and on payment of the fees therefore. In Toh Kong Joo v. Penguasa Perubatan Hospital Sultanah Aminah, Johore Bahru [1990] 2 MLJ 235, where it was held that ”It is clear from s 76 of the Evidence Act 1950 that if a person has the right to inspect a document, then he should be supplied with a copy of the document on payment of the prescribed fee. A person has the right to inspect a document if he has an interest in that document and the inspection is necessary for the protection of his own interest.

Public document

However, the entitlement of a person to a copy of a public document depends on whether he has a right to inspect it. In the case of Huzir Bin Hassan v Ketua Polis Daerah [1991] 1 MLJ 445, Abu Mansor J, followed the decision in Husdi v PP stated that, “Anything that would have the effect of jeopardizing national security ran counter to national interest. It prevented the court from requiring the disclosure of any statement or document once a relevant public officer appeared claiming its disclosure ran counter to national interest. The public officer had the last say that the fact or evidence to be produced was against the national interest to disclose or produce”

Public documentThe payment of legal fees: A person is entitled to a

certified copy upon payment of the relevant legal fees. (See Dr. Munawar Ahmad Aness v Ketua Pengarah Penjara Malaysia [1999] 2 MLJ 289.

In Yusof Bin Omar v Pendakwa Raya [2001] 2 MLJ 209 it was held that the words “salinan disahkan benar” in the certificate was sufficient compliance with the Act. It would seem to appear from the judgment in that case that the words “salinan yang diakui sah” would be equally sufficient.

However, there is no requirement that the legal fees in respect of the certified copy must have been paid before it can be produced in evidence. (See Noliana Bte. Sulaimain v PP [2000] 4 MLJ 752).

Private document

• Section 75 provides that “All documents other than those mentioned in section 74 are private” (Segala dokumen selain daripada dokumen yang tersebut dalam seksyen 74 adalah dokumen persendirian). The conditions of admissibility of a private document are governed by section 61 – 66 of the Act.

Computer Generated Document

Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh

komputer).

• Section 90A, 90B and 90C relate to documents produced by a computer and were introduced by the Evidence (Amendments) Act 1993 (Act A851). The principal Act is amended by inserting, in Chapter V, after section 90, the following new subheading and new sections 90A, 90B and 90C. This section is an exception to the hearsay rule. It applies to criminal and civil proceeding.

Computer generated document (Document produced by a computer) (Dokumen yang

dikeluarkan oleh komputer).

•Admissibility of documents produced by computers: This is governed by section 90A. Section 90A (1) provides “In any criminal or civil proceeding a document produced by a computer or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement”.



Admissibility of documents produced by computers: This is governed by section 90A. Section 90A (1) provides “Dalam mana – mana prosiding jenayah atau civil sesuatu dokumen yang dikeluarkan oleh komputer, atau sesuatu pernyataan yang terkandung dalam dokumen itu, hendaklah boleh diterima sebagai keterangan mengenai apa – apa fakta yang dinyatakan dalamnya jika dokumen itu dikeluarkan oleh komputer itu dalam perjalanan penggunaannya yang biasa, sama ada atau tidak seseorang yang mengemukakan dokumen itu adalah pembuat dokumen atau pernyataan itu”.



Conditionfor

admissibility

The document was produced by a computer

(S. 3 & 90A (5))

The document was produced by the computer

in the course of its ordinary use.


dikeluarkan oleh komputer).2. The document was produced by the computer in the

course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11:

A. It may be proved by the production of the certificate as provided in subsection 2 of section 90A which provides “For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used”


dikeluarkan oleh komputer).2. The document was produced by the computer in the course of

its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11:

A. It may be proved by the production of the certificate as provided in subsection 2 of section 90A which provides “Bagi maksud seksyen ini bolehlah dibuktikan bahawa sesuatu dokumen itu dikeluarkan oleh komputer dalam perjalanan penggunaannya yang biasa dengan mengemukakan kepada mahkamah suatu perakuan yang telah ditandatangani oleh sesorang yang sama ada sebelum atau selepas pengeluaran dokumen itu oleh computer itu adalah bertanggungjawab bagi pengurusan pengendalian computer itu, atau bagi perjalanan aktiviti-aktiviti yang baginya computer itu digunakan”.


dikeluarkan oleh komputer).2. The document was produced by the computer in the course of

its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11:

See also section 90A (3) (a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it. (b) A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate and section 90A (4) Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced.


dikeluarkan oleh komputer).B. It may be proved by calling a witness. If this is done, it is not

necessary to also produce a certificate. In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 the court also argued that “Sub-s (2) which use “it may be proved” (bolehlah dibuktikan) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where a certificate is given under subsection (2) (Jika sesuatu perakuan diberikan di bawah subseksyen (2))'. These words show that a certificate is not required to be produced in every case. It is also the court view that once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as sub-s (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer).

Note: the person called as a witness should be a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer or for the conduct of the activities for which the computer was used.

In PP v Ong Cheng Heong [1998] 6 MLJ 678, where the computer printouts were not admitted as the person who tendered the computer printouts only introduced himself as the supervisor of the registration department of vehicles in the RIMV Perlis (mengawal selia bahagian pendaftaran kenderaan) and did not claim any responsibility for the conduct of the activities for which the relevant computer were used.


If the document was produced by the computer in the course of its ordinary use, then the document or statement contained in such document shall be admissible as evidence. Section 90A can also be regard as an exception to hearsay rule. In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 (Criminal Breach of Trust – Section 409 of Penal Code), where the court held that once the prosecution adduce evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s. (2), as sub-s. (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.



In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per Mahadev Shankar JCA (concurring/in agreement) states that Zainal was the branch officer in charge of all the operations of the branch. He was therefore responsible for the conduct of the activities of the branch for which that computer was used. If he chose he could have issued a certificate as required by s. 90A(2) and without his actual presence all the computer generated documents would have been admitted in evidence as provided by s. 90A(1). In this case, Zainal was able to testify with regard to the documents because he was in charge of the operations of current accounts.


dikeluarkan oleh komputer).In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per

Mahadev Shankar JCA (concurring/in agreement) also states “The viva voce (word of mouth) evidence of the man in the witness box counts for more than a certificate issued by him. Moreover, as the appellant did not challenge Zainal's evidence by way of cross-examination, the prosecution succeeded in proving that the documents were admissible”

Section 90A was enacted to bring the "best evidence rule“ (Kaedah keterangan terbaik) up to date with the realities of the electronic age. The effect of s. 90A(1) in the present scenario is that it is no longer necessary to call the actual teller or bank clerk who keyed in the data to come to Court provided he did so in the course of the ordinary use of the computer. Document produced by a computer is also primary evidence. (See section 63 explanation 3.


dikeluarkan oleh komputer).In Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240 (HC) Ian

HC Chin J held that “It was only if the evidence was challenged as to its admissibility that it was necessary to produce a certificate under s 90A(2) of the Evidence Act 1950, that the documents were produced by a computer in the course of its ordinary use. Since the documents were unchallenged, such a certificate was unnecessary”. In this case, evidence was given by the witnesses that those documents were computer generated and they were produced in the course of the ordinary use of the computer. There was no challenge to this evidence. Since this is unchallenged evidence, it becomes unnecessary to produce certificate under section 90A (2) to proved the document were produced by a computer in the course of its ordinary use. It is only where it is disputed, during the time the evidence was adduced certificate then become necessary.


In PP v Azman Ismail [2007] 10 CLJ 469 where five accused persons here were charged with the offence of murder under s. 302 of the Penal Code read with s. 34 of the same Code. On the issue whether the accused persons had been identified as the assailants of the deceased, the prosecution had introduced DNA profile. Held acquitting and discharging the accused persons. The evidence of the forensic DNA scientist (PW8) was most wanting, unreliable and unsafe to accept. The prosecution had failed to prove the expertise of PW8 (Forensic expert) by introducing evidence as required by law. Further, the DNA analysis and the probabilities values were obtained using the computer. In order to accept the information given by the computer software and the print out, there must be compliance with s. 90A of the Evidence Act 1950. There was no evidence of such compliance of the condition precedent as required by s. 90A.


• Ahmad Najib Aris v PP [2007] 2 CLJ 229, where the appellant was convicted in the High Court of the rape and murder of one Canny Ong Lay Kian ('victim'), and was sentenced to twenty years' imprisonment and whipping of ten strokes for the rape, and to death for the murder. Appellant appeal. Held (dismissing the appeal) Per Abdul Aziz Mohamad JCA states “The swabs and smears obtained by the pathologist from the victim's upper vagina proved the presence in the vagina of semen. The semen was established to belong to the appellant. The stains on the Jack Blue Classics jeans belonging to the appellant were established to be stains of the blood of the victim. These proofs were established by DNA profiling and the results of the DNA profiling were obtained by the use of a computer. It was submitted on behalf of the appellant in the appeal that the documents concerned that were produced by the computer, which established those results, or from which those results were established, were not admissible in evidence under s. 90A of the Evidence Act 1950. This court had, however, decided in Gnanasegaran Pararajasingam v. PP, that because the word used in subsection (2) is "may", a certificate under the subsection is not mandatory for proving that a document was produced by a computer in the course of its ordinary use and that so long as there is proof that a document is produced by a computer,


• Hanafi Mat Hassan v. PP [2006] 3 CLJ 269 at p. 307-312, where the accused was convicted of the offences of rape and murder respectively. In the words of the learned trial judge, the accused "had mercilessly and brutally raped and murdered the deceased, Noor Suzaily, in the bus WDE 4265 driven by him in the morning of 7 October 2000 at the time and place as stated in the charges". The chemist, who carried out DNA tests on blood samples taken from the accused, prepared the summary of the DNA profiling results thereof and confirmed that the semen found in the vagina of the deceased belonged to the accused. The accused contended that the findings of the trial judge were flawed and unsustainable in law and had hence appealed against the same. Consequently, before the Court of Appeal, arguments were put forth by the accused: (i) that a computer produced document could only be admitted under s. 90A if the prosecution proved not only that it was produced by a computer but also that it was produced in the course of its ordinary use and that in order to do so it was incumbent upon the prosecution to produce a certificate as required by s. 90A(2); Held (dismissing the appeal) Per Augustine Paul JCA delivering the judgment of the court: the use of the words "may be proved" in s. 90A(2) indicates that the tendering of a certificate is not a mandatory requirement in all cases. Thus, the use of the certificate can be substituted with oral evidence. See R v. Shepherd [1993] 1 All ER 225; Schmidt Scientific Sdn Bhd v. Ong Han Suan & ORS [1998] 1 CLJ 685 & PP v. Gurdial Singh Get Singh [2005] 6 CLJ 272.)

Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh

komputer).

Sections 90A and 90B to prevail over other provisions of this Act, the Banker's Books Evidence Act 1949, and any written law: Section 90C provides “ The provisions of sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers' Books (Evidence) Act 1949, or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding”. See Bank Utama (Malaysia) Bhd v Cascade Travel & Tours Sdn Bhd [2000] 4 MLJ 582.

Parol evidence rule: General rule

Parol evidence rule

• Parol: It refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial. • Parole: The release of a

prisoner whose term has not expired on condition of sustained lawful behavior that is subject to regular monitoring by an officer of the law for a set period of time.

Parol evidence ruleIn the context of contracts, deeds, wills, or other

writings, parol evidence rule refers to extraneous (irrelevant/unrelated) evidence such as an oral agreement or even a written agreement that is not included in the relevant written document.

For example, Carl agrees in writing to sell Betty a car for $1,000. Betty argues that Carl told her that she would only need to pay Carl $800. The parol evidence rule would generally prevent Betty from testifying to this conversation because the testimony ($800) would directly contradict the written contract's terms ($1,000).

Parol evidence rule

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

Parol evidence rule In order for the rule to be effective, the contract in question must be a fully integrated

(included) in writing; it must, in the judgment of the court, be the final agreement between the parties (as opposed to a mere draft, for example). One way to ensure that the contract will be found fully integrated is through the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties.

"This Agreement, along with any exhibits, appendices, addendums, schedules, and amendments hereto, encompasses the entire agreement of the parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. The parties hereby acknowledge and represent, by affixing their hands and seals hereto, that said parties have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in this Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement. The parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on such representation, assertion, guarantee, warranty, collateral contract or other assurance, provided that nothing herein contained shall be construed as a restriction or limitation of said party’s right to remedies associated with the gross negligence, willful misconduct of fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Agreement."

However, many modern cases have found merger clauses to be only a rebuttable presumption. (in Latin, praesumptio iuris tantum) where it is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise.

Parol evidence ruleCommon law position: The parol evidence rule enacts a

principle of the common law of contracts that presumes that a written contract embodies the complete agreement between the parties involved; the document is the sole repository (store) of the terms of the contract. The rule therefore generally forbids the introduction of extrinsic evidence (i.e., evidence of communications between the parties which is not contained in the language of the contract itself) which would add or change terms of a later written contract.

Parol evidence ruleIn Jacobs v. Batavia & General Plantations Trust Ltd

[1924] 1 Ch 287 “It is firmly established as a rule of law that parol evidence cannot be admitted to add to, vary or contradict a deed or other written instrument. Accordingly, it has been held that (except in cases of fraud or rectification and except, in certain circumstances, as a defence in actions for specific performance) parol evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties”.

Parol evidence ruleMalaysian position: Section 91 to 99 of the Act deal with

the exclusion of oral by documentary evidence. (Penyingkiran keterangan lisan oleh keterangan dokumen) Section 91 provides “When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained”.

Parol evidence ruleThis section requires the production of the document itself for

proof of its contents. The first limb of section 91 provides that when terms of a contract, grant or disposition of property have been reduced by or by consent of the parties to the form of a document then no evidence shall be given in proof of the terms of the contract, grant or disposition except the document itself (the primary evidence) or secondary evidence.

However, section 91 only excludes oral evidence on the terms of the written contract. Oral evidence is still admissible to prove the existence of a contract. (See Ng Kong Yue v R [1962] MLJ 67 & Tyagaraja Mudaliar v Vedathanni [1936] MLJ 62.

In Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, the court held that section 91 only applies when all the terms of a contract have been reduced to the form of a document.

Parol evidence ruleSection 92 of the Act comes into operation after the document

has been produced for the purpose of excluding evidence of any oral agreement or statement to contradict, vary, add to or subtract from its terms. Section 92 provides that “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”. This section provides that as a general rule evidence of any oral agreement is not admissible as between the parties to contradict, vary, add to or subtract from the terms of the written agreement proved under section 91 of the Act unless the evidence sought to be introduced falls within one of the provisos of the section.

Parol evidence rule

These two sections are based on the concept of the “best evidence rule”. The parol evidence rule thus based on the “best evidence rule” i.e. the best evidence that the party must produce which the nature of the case would permit. The parol evidence rule means that when a document is presented as evidence, the best evidence about the content of a document is that document itself. Both sections supplement (connected) each other. They must also be read together with section 144 (evidence as matter to writing) of the Evidence Act 1950 which provides “Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to the evidence being given until the document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it”. This section deals with the exclusion of oral evidence when the matter on which a witness is testifying or is about to testify is contained in a document. This section thus sets out the manner in which the provisions of section 91 and 92 of the Acts ad to the exclusion of oral by documentary evidence may be enforced by the parties to the proceeding.

Parol evidence rulePer Augustine Paul JC in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ

329 stated that “The best evidence about the contents of a document is the document itself and it is the production of the document that is required by s 91 in proof of its contents. In a sense, the rule enunciated by s 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act 1950. Section 92 applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s 91. In other words, it is after the document has been produced to prove its terms under s 91 that the provisions of s 92 come into operation to exclude evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92, in effect, supplement each other. Section 91 would be frustrated without the aid of s 92 and s 92 would be inoperative without the aid of s 91. Since s 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under s 91, it may be said that it makes the proof of the document conclusive of its contents. Like s 91, s 92 also can be said to be based on the best evidence rule”.

Parol evidence rule Per PB Gajendragadkar J in Bai Hira Devi v Official Assignee AIR 1958 SC 448 stated

that “The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the best evidence rule. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act”.

See also Inspector General of Police & Anor v. Alan Noor bin Kamat [1988] 1 MLJ 260 where it is stated that “it is clear that under section 91 of the Evidence Act no evidence can be given in proof of any matter which is required by law to be reduced to a form of a document and section 92 prohibits the giving of oral evidence to contradict or vary or explain the terms of such document”.

Section 91 & 92 applies equally to criminal trials no less than to civil proceedings: See Ah Mee v PP [1967] 1 MLJ 220 & PP v Tan Siew Hui [2008] 8 CLJ 142.

Parol evidence rule Section 93 – 98 of Evidence Act 1950. Read together with

section 92 proviso (f): These sections deal with the rule of ambiguity of a document. In Faber Merlin (M) Sdn Bhd & Ors v Lye Thai Seng [1985] 2 MLJ 380, the court laid down the principle that when there is no ambiguity in a written agreement then the general rule against extrinsic evidence applies.

Accordingly, there are two types of ambiguities in which a document suffer from namely:

Apparent/clear/patent ambiguity: Ambiguity is clear on the surface of the record/document. If we read the whole document, we cannot understand on the face of it. The court will not allow extrinsic evidence to cure patent ambiguity by producing extrinsic evidence.

Latent/hidden ambiguity: On the face of it, it is all right but cannot exactly be precise. For example if there are 2 places of the same name we can introduce extrinsic to cure the defect.

Parol evidence ruleWhat Is The Rationale Behind The

Parol Evidence Rule?: The parol evidence rule treats formal written documents created by parties as reflective of their true intentions regarding which terms are meant to be included in the contract. In doing this, it assumes that duties and restrictions that do not appear in the written document, even though apparently accepted at an earlier stage, are not intended by the parties to survive.

Why Is The Parol Evidence Rule Necessary?: The Parol Evidence Rule helps with: Increasing the predictability and finality of commercial transactions by encouraging parties to draft better contracts; Reducing litigation and arguments between parties over the meaning of a written document; and Assisting in determining the true intentions of the parties at the time of contract formation.

Parol evidence rule: The exceptions

Parol evidence

rule

Statutory exceptions

(Section 92)

Non statutory exceptions

(Cases)

Vitiating factors

(Proviso a)

Collateralwarranty

(Proviso b)

Conditionprecedent(Proviso c)

Conditionsubsequent(Proviso d)

Custom(Proviso e)

Historicalbackground

&Surrounding

circumstances

Recitalof

contract

Parol evidence rule: The exceptionsSection 92 provides that “When the terms of any such contract,

grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”. (Apabila terma – terma bagi sesuatu kontrack, pemberian atau lain – lain pelupusan harta, atau apabila apa – apa perkara dikehendaki oleh undang – undang supaya dituliskan dalm bentuk dokumen, telah dibuktikan mengikut seksyen 91, tiada apa – apa keterangan mengenai sesuatu perjanjian atau pernyataan lisan boleh diterima antara pihak – pihak kepada suratcara itu atau wakil – wakil mereka dari segi kepentigan bagi maksud menyangkal, mengubah, menambah atau mengurangkan terma – termanya).


This section provides that as a general rule evidence of any oral agreement is not admissible as between the parties to contradict, vary, add to or subtract from the terms of the written agreement proved under section 91 of the Act unless the evidence sought to be introduced falls within one of the provisos of the section.


This section comes into operation only after the document has been produced to prove the terms in accordance with section 91 of the Act.

As the section only applies to the terms of a document, a party is not precluded (prohibited) from adducing oral evidence to contradict a recital of fact in the contract. (See Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290)

Parol evidence rule: The exceptions It must be noted that where a document does not constitute a

contract between the parties and it is also not a document required by law to be reduced to a form of a document, oral evidence is not excluded (See Phiong Khon v Chon Chai Fah [1970] 2 MLJ 114)

This section applies where the whole contract is contained in the document. On the other hand, if the intention of the parties is to reduce some portion of their agreement into writing and leave the rest as oral agreement, they may in such a case give extrinsic evidence as to the portion not put in writing. (See also Damn Jadhas v Paras Nath Singh [1965] 2 MLJ 38. In Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, where it was held that “some terms are given orally and some in writing, oral evidence could be given to prove the terms agreed to orally”.

Parol evidence rule: The exceptions The scope of the words “any matter required by law to be reduced to the form of

a document” in this section show that the section applies to bilateral and dispositive documents (Documents by which rights are disposed of). Section 91 is much wider than section 92 whereby it apply to both unilateral and bilateral contract and in both dispositive and non – dispositve documents.

There are also a vital difference between section 91 and 92 as a result of the use of the word “as between the parties to any such instrument” in section 92. This part of the section shows that section 92 applies only to the parties to an instrument and not to strangers. (Read with section 99 (look at the illustration given) where a persons other than parties may give extrinsic evidence to vary the document if it effected his interests). Per Ibrahim J in Director General of Inland Revenue v Ee Sim Sai [1977] 2 MLJ 32 stated “Section 92 Applies Only to Parties to Instrument and Not to Strangers. The words 'as between the parties to any such instrument' are very important, as they and the reference to 'separate oral agreement' in proviso (2) restrict the application of the rule only to the parties to the document or their privies (have any interest). It does not apply to strangers who cannot be affected by the terms of a document to which they were not parties and which may contain untrue or collusive statements to serve some fraudulent purpose or things prejudicial to their interests; whereas section 91 applies to both strangers and parties. So, persons other than the parties to the instrument or their representatives in interest, i.e., third parties, are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document (section 99)”.

Parol evidence rule: The exceptions The provisos to the section operate as an exception to the general rule.

Per Salleh Abas FJ in Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220 stated “There is this rule of evidence contained in section 92 of the Evidence Act to the effect that no oral evidence will be admissible to contradict, vary, add or subtract the terms of a written agreement unless the oral evidence comes within one of the exceptions or illustrations contained in the section”. In Tindok Besar estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 states that “Section 92 specifically excludes evidence to contradict, vary, add to or subtract from any of the terms of a contract in writing, except in any of the situations spelled out in the provisos thereto”. These provisos are based on the common law (See United Malayan Banking Corp Bhd v Tan Lian Keng [1990] 1 MLJ 281)

The burden is on the party trying to adduce oral evidence. Per Abu Mansor J in B-Trak Sdn Bhd v Bingkul Timber Agencies Sdn Bhd [1989] 1 MLJ 124 states that “I am not unmindful of s 92 of the Evidence Act 1950 wherein it will be for the defendants to argue at the trial whether it will be open for them to contradict or vary the written terms”. (See also Ponniah v Chinniah [1961] MLJ 66; Perwira Habib Bank (M) Bhd v Penerbitan ASA Sdn Bhd [1998] 5 MLJ 297).

Parol evidence rule: The exceptions 1st exception: The vitiating factors: The word vitiating or

vitiate means to make (a contract) ineffective or invalidate. Section 92 proviso (a) provides that “any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law”. (apa – apa fakta yang akan membatalkan apa – apa dokumen atau yang akan menghakkan seseorang mendapat sesuatu dekri atau perintah berhubungan dengannya boleh dibukti, seperti fraud, intimidasi, ketaksahan di sisi undang – undang, ketiadaan penyempurnaan wajar, ketidaan keupayaan di mana – mana pihak pejanji, fakta bahawa ianya tersalah tarikh, ketiadaan atau kemungkiran balasan, atau kesilapan fakta atau undang – undang).

Parol evidence rule: The exceptions In Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385 where oral

evidence was admitted to show that there was a want of consideration (ketiadaan balasan). In this case the plaintiff claimed the sum of $3,356.00 on a promissory note signed by the defendant which alleged a loan to the defendant by the plaintiffs. Oral evidence was given that the sum represented amounts due from him as the head of “liuci” which he ran in 1962 and that the defendant had in fact never received the loan from the plaintiff. Oral evidence of failure of consideration in a contract is admissible under proviso (a) of section 92.

In NS Narainan Pillay v The Netherlandsche Handel Maatschappij [1934] MLJ 227, Edmonds J in his supporting judgement stated that “…If one assumes that the document should be regarded prima facie as a contract, still proviso I would apply; according to which "any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party or failure of consideration or mistake in fact or law…”. (See also Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35

Parol evidence rule: The exceptions 2nd exception: Collateral warranty: Section 92 proviso (b) provides “the

existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document”. (kewujudan sesuatu perjanjian lisan yang berasingan mengenai apa – apa perkara yang tidak tersebut di dalam sesuatu dokumen dan yang tidak berlawanan dengan terma – termanya, boleh dibuktikan, dan pada menimbangkan sama ada proviso ini boleh dipakai atau tidak, mahkamah hendaklah memberi perhatian terhadap tahap formaliti dokumen itu). This proviso allows other evidence to be admitted when it is alleged that the written agreement is not the entire agreement. Therefore the parties can prove that they entered into a distinct oral agreement on some collateral (something additional or confirming, giving guarantee, assurance, or security) matter.

Parol evidence rule: The exceptions In Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89,

[1980] 2 MLJ 16, where the plaintiffs, the landlords of the premises, claimed vacant possession of the premises and alleged that the defendants, the tenants, were in arrears (debt) of rent. Notice to quit had been given. The defendants alleged that they had paid the sum of $ 14,000 to the landlords and claimed that they were entitled to occupy the premises for as long as they wished on payment of rent regularly. They also alleged that the plaintiffs had refused to accept the arrears of rent. The learned trial judge found as a fact that the defendants had paid the sum of $ 14,000 to the plaintiffs. Held: (1) as the defendants had paid tea-money to the plaintiffs, and as the payment was induced and encouraged by the plaintiffs in that the defendants would be allowed to remain in occupation for as long as they desired on payment of the monthly rent, an equity had been created and the defendants were entitled to occupy the premises for a term of years to be determined, provided they observed the conditions.

Parol evidence rule: The exceptions Similar in Tan Chong & Sons Motor Co (Sdn) Bhd v Alan

McKnight [1983] 1 MLJ 220, where in this case the respondent was a squadron leader in the Royal Australian Air Force. He wanted to buy a car and get the benefit of exemption from duty in Malaysia and Australia. He would have obtained the exemption if the motor car was taken out of Malaysia and if it complied with the Australian Design Regulations. He agreed to buy a car from the appellants and signed a Buyer's Order which contained a condition that no guarantee or warranty of any kind whatsoever was given by the company. However the respondent only bought the car on the representations of the appellant's salesman that the car conformed to the Australian Design Regulations. The car supplied did not comply with the Regulations and the respondent had to sell the car for$ 6,500.00 thereby incurring a loss of $ 11,219.54 ($ 17,719.54-$ 6,500.00). The respondent also lost the fiscal advantage of importing the car to Australia duty free. The respondent claimed damages for breach of warranty. The learned trial judge found that there had been a warranty and this was breached by the appellants. There was clear evidence that had it not been for the promise of the salesman to deliver him a car complying with the Australian Design Regulations, the respondent would not have signed the Buyer's Order. At the trial several witnesses were called by both sides.

Parol evidence rule: The exceptions In Kluang Wood Products Sdn Bhd & Anor v Hong Leong

Finance Bhd & Anor [1999] 1 MLJ 193, the Federal Court said that in considering whether this proviso applies, regard is to be had to the nature of the written agreement and its surrounding circumstances. Depends on the background, nature or history of the agreements, the more formal the agreement the less ready the court will allow a collateral agreement to vary or contradict the written instrument.

In Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221, the court disallowed some oral term to be adduced in evidence (at page 227). The agreement has indeed a high degree of formality and clearly indicates that the parties intended the agreement to contain a full description of their respective rights and obligations. The agreement was drafted by a solicitor, on instructions from the respondent and all the parties were fully aware of the alleged subject matter of the oral terms and if these had been agreed at that time they would have been incorporated in the agreement.

Parol evidence rule: The exceptions 3rd exceptions: Condition precedent: Section 92 proviso (c) provides “the

existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved”. (kewujudan sesuatu perjanjian lisan yang berasingan yang menjadi syarat duluan bagi pengenaan apa – apa obligasi di bawah sesuatu kontrak, pemberian atau pelupusan harta itu boleh dibukti).

This proviso stated that if the contract is incomplete, evidence of a prior agreement can help fill in what is missing.

Condition precedent refers to an event or state of affairs that is required before something else will occur. "I will only go to heaven after I have died." My death is a condition precedent to my going to heaven. In contract law a condition precedent is an event which must occur, before performance under a contract becomes due--i.e., before any contractual duty arises.

Parol evidence rule: The exceptions In Ganesan v Baskeran [1986] 2 MLJ 26, where in this case the appellants had

agreed to buy land belonging to the respondent and had paid a deposit of $ 20,000/-. There was a restriction in the document of title that the land could not be transferred without the consent of the Ruler in Council. No such consent was obtained but the respondent applied for the rescission of the contract and the forfeiture of the deposit on the ground that the appellants had failed to complete the transaction and that time was of the essence of the contract. The learned trial judge at first heard the application in chambers and dismissed it. However after hearing further arguments in open court he reversed the decision and allowed the application. He formed the view that time was the essence of the contract and therefore the respondent had properly terminated the agreement and forfeited the deposit. The appellants appealed. It was held (Appeal allowed): (1) the central question that arose for determination in this case is whether the respondent did orally promise that he would obtain the consent of the Ruler in Council necessary for the transfer. There was therefore an issue to be tried; (2) evidence relating to the separate oral agreement is admissible under proviso (c) of section 92 of the Evidence Act and the appellants should have been permitted to adduce evidence to prove the existence of such a promise. See also Pym v Cambell 6 E & B 370.

Parol evidence rule: The exceptions 4th exception: Condition subsequent: Section 92 proviso (d) provides

that “the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents”. (kewujudan sesuatu perjanjian lisan terkemudian yang berlainan, bagi membatal atau mengubahsuai mana – mana kontrak, pemberian atau pelupusan harta itu, boleh dibuktikan kecuali dalm hal di mana kontrak, pemberian atau pelupusan harat itu dikehendaki oleh undang – undang supaya dibuat secara bertulis, atau telah didaftarkan mengikut undang – undang yang sedang berkuatkuasa berkaitan dengan pendaftaran dokumen – dokumen).

This proviso provides proof of distinct subsequent oral agreement to rescind or modify any contract except where it is required by law to be in writing or has been registered. In other words, it provides for the evidence of a later change in a written contract.

Parol evidence rule: The exceptions• In the case of Wong Juat Eng v Then

Thaw Eu [1965] 2 MLJ 213, the respondent’s predecessor let (rent) certain premises for a term of 5 years to the appellant and her co-tenants under memorandum of sublease which contained a covenant that the subleasees were not to assign or sublet the demised premises or any part thereof without the consent of the subleassor. The appellant had sublet rooms on the premises but she alleged that she had obtained verbal permission from the owner. The respondent gave a month’s notice of termination of the sublease and brought an action for possession of the premises. The court held that parol evidence is admissible as evidence of waiver. A waiver is the voluntary relinquishment or surrender of some known right or privilege).

Parol evidence rule: The exceptions BUT a distinct subsequent oral agreement to

modify an earlier agreement cannot be proved where the latter is required by law to be in writing. In Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241, where in this case the respondent was the lessee of premises in Kota Kinabalu. The lease was in writing and registered in accordance with section 104 of the Sabah Land Ordinance. It provided for the possibility of renewal by written request. The lease was for a period of 16 years commencing on January 16, 1965. On the expiration of the lease the respondent only delivered part of the premises to the appellant and retained the ground floor. The appellant claimed possession of the ground floor and in his defence the respondent alleged that there was an oral agreement for a new lease. It was held that the oral agreement could not be admitted as to do so would be contrary to section 92 of the Evidence Act. As the lease in this case was required to be in writing by virtue of section 104 of the Sabah Land Ordinance and has been registered in accordance with the Ordinance, there is no way in which the respondent's alleged agreement could be proved under proviso (d) to section 92 of the Evidence Act.

In Teo Siew Peng v Guok Sing Ong [1983] 1 MLJ 132, the court has laid down the principle that where the terms of an instrument are required by law to be reduced into writing then no evidence of any oral agreement can be admitted in evidence.

Parol evidence rule: The exceptions 5th exception: Custom: Section 92 proviso (e) provides that

“any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract”. (apa – apa kelaziman atau adat yang dengannya insiden – insiden yang tidak disebutkan secara nyata dalm sesuatu kontrak biasanya ditambah kepada kontrak dari jenis itu boleh dibuktikan jika penambahan mana – mana insiden itu tidak repugnan atau berlawanan dengan terma – terma nyata kontrak itu)

This proviso provides that oral evidence is admissible to establish a trade usage to be annexed to the written contract but such usage must be consistent with the terms and tenor (intention or meaning) of the written contract.

Parol evidence rule: The exceptions In Cheng Keng Hong v Government of Federation of

Malaya [1966] 2 MLJ 33 where in this case the Chief Architect of the Ministry of Education had issued a notice inviting tenders for the erection of a school. The applicant tendered for the work and his tender was accepted. A contract was entered into which recited the drawings and specifications according to which the work was to be done. The applicant discovered that the specification for electrical service was at variance (inconsistent) with the layout drawings and thereupon wrote to the Chief Architect. He received a letter from a Mr. Hewish for the Chief Architect that extra payment would be paid for fittings, other than those mentioned in the specifications alleging that it was custom to do so. Subsequently the Government refused to pay any extra payment. It was held that “there was no custom as alleged that if any work was done according to the drawing which was not set out in the specification, extra payment would be made, as such usage would be inconsistent with the contract, which consists of the tender, acceptance and other relevant documents”. (Custom must be well-known, recognised and generally practice by huge number of people)


• In Smith v Welson [1632] 3 B & Ad 726 stated that “where extrinsic evidence was given to show that a written contract stating 1000 rabbits actually means by local customs 1200 rabbits”.

Parol evidence rule: The exceptions 6th exception: The document historical backround and surrounding

circumstances that leads to its creation: Parties can give historical background to discover the nature of the contract but cannot adduce pre negotiation transaction to discover the intention of the parties. See Keng Huat Film S/B v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 cited Prenn v Simmonds [1971] 3 All ER 237 and Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114.

In Prenn v Simmonds [1971] 3 All ER 237, 241 where Lord Wilberforce had said per curiam at page 241 that, “evidence of negotiations, or of the parties' intentions ... ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction”.

In Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114, the court allowed extrinsic evidence to be given to help interpret the document. Evidence of surrounding circumstances is admissible. Under the head of court's power to construe and interpret a document in the light of surrounding circumstances is not affected by the rule in section 92 the author observes:-- “Section 92, however, merely prescribes a rule of evidence; it does not fetter (confine/restrict) the court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances”

Parol evidence rule: The exceptions 7th exception: Recital of contract: In Ganam d/o Rajamany v Somoo s/o

Sinnah [1984] 2 MLJ 290, any agreements in written form include recitals in the contract, which is different from the terms of contract. Recital is a rehearsal of the facts, usually at the back of the document like S&P agreements. If there is a dispute as to the instruments, can give extrinsic evidence. It is not prohibited to do so.

In the Privy Council case of Sah Lal Chand v Indarjit [1899-1900] 27 IA 93 where it was held that (i) section 91 of the Indian Evidence Act (which is in the same terms with section 92 of our Evidence Act 1950) does not preclude/prevent oral evidence to contradict a recital of fact in a written contract and (ii) it is settled law that, notwithstanding an admission that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. Recital means: “Statement to introduce the operative part of an instrument. They give details of the relevant earlier deeds or events leading up to the present deed, and explain the background of the transaction. Recital commence with the word “whereas”.


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Presumption (Anggapan)

Presumption: In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations.

Per Chang Min Tat J in PP v Ooi Seng Huat [1968] 2 MLJ 168 states “Now as matter of law a presumption is a statutory invention that upon the proof of a fact an inference (assumption) of another fact can be drawn”. Section 4 of EA 1950 provides for presumptions (Anggapan). The section prescribes three types of presumptions. Per Sarkaria J in Syad Akbar v State of Karnataka AIR 1979 SC 1848 provides that presumptions are of three types namely i) Permissive presumptions or presumptions of fact; ii) Compelling presumptions or presumptions of law (rebuttable); and iii) Irrebuttable presumption of law or conclusive proof. It should be remember that clauses (i), (ii), and (iii) are indicated in clauses (1), (2) and (3) of section 4, Evidence Act.


Presumption:Section 4

Presumptionof fact

:section 4 (1)

RebuttablePresumption:Section 4 (2)

Irrebuttable Presumption:Section 4 (3)


Presumption of fact: Section 4 (1) provides “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”. (Apabila diperuntukkan oleh Akta ini bahawa mahkamah boleh menganggap sesuatu fakta, mahkamah boleh sama ada mensifatkan fakta itu sebagai terbukti melainkan dan sehingga terbukti sebaliknya, atau boleh meminta buktinya)

Presumption of fact is a legal term used to describe a presumption that one makes to determine that a fact is probably true. For example: A man while peering through his window observed a brown Ford cargo van leaving a neighbor's house across the street. He did not notice the time but he noticed that at the time the van left the house, another neighbour was feeding her cat on the porch, which she does between 12:01pm and 12:30pm every day. The man believes on this basis that the van left the neighbour's house sometime soon after midday. He has made a presumption of fact. This type of presumptions can be found in section 86, 87, 88, 90 and 114 of the Act. The operative words in these sections are ‘may presume’. In these sections the court may either regard the fact as proved unless and until it is disproved, or may call for proof of it. Per Ong J in Mohamed Ali v PP [1962] MLJ 230 states that “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 adequate grounds to justify any presumption being raised”.

Presumption (Anggapan) Rebuttable presumption of law: Section 4 (2) provides “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”. (Apabila diperuntukkan oleh Akta ini bahawa mahkamah boleh menganggap sesuatu fakta, mahkamah boleh sama ada mensifatkan fakta itu sebagai terbukti melainkan dan sehingga terbukti sebaliknya).

Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. In other words, a rebuttable presumption is an assumption of fact accepted by the court until disproved. All presumptions can be characterized as rebuttable. It is an assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise. For example, in adoption law, it is most commonly used to "presume" that if a woman is married when she gives birth to a child, that her husband is its father. This "presumption" will stand as a legal fact unless it is contested and proven to be wrong. Or a person who has been judicially declared incompetent is presumed incompetent unless there is sufficient proof, usually in the form of medical testimony, that the person has regained competency. This type of presumptions can be found in sections 79, 80, 81, 82, 83, 84, 85, 89, 105, 107, 108, 109, 110, and 111 of the Act. The operative words in the sections are ‘shall presume’. In these sections, the court shall regard such fact as proved unless and until it is disproved.

Presumption (Anggapan) Irrebuttable presumption of law: Section 4 (3) provides “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”. (Jika satu fakta ditetapkan oleh Akta ini sebagai bukti muktamad bagi suatu fakta lain, mahkamah hendaklah, apabila terbuktinya fakta yang satu itu, mensifatkan fakta yang satu lagi itu sebagai terbukti, dan tidak boleh membenarkan keterangan diberi bagi maksud membuktikan sebaliknya fakta itu). A conclusive presumption (also known as an irrebuttable presumption) in English law is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary. For example, the doli incapax rule conclusively presumes that a child less than ten years old cannot be held legally responsible for their actions, and so cannot be convicted for committing a criminal offence. The age was seven at common law, and raised by the Children and Young Persons Act 1933 to eight and by the Children and Young Persons Act 1963 to ten. This type of presumptions can be found in section 41, 112 and 113 of the Act. The operative words in the sections are ‘conclusive proof’. In these sections the court shall not allow evidence to be given for the purpose of disproving the fact presumed. Per Stevens J in Re Khoo Thean Tek’s Settlements [1919] SSLR 50 stated that “When one fact is declared by the Ordinance to be conclusive proof of another, the court shall not allow evidence to be given for the purpose of disproving it”.

Presumption of continuity of life/ Anggapan masih

hidupS. 107

Presumption of continuity of life

Presumption of continuity of life: Section 107 of EA 1950 provides Burden of proving death of person known to have been alive within 30 years (Beban membuktikan kematian orang yang diketahui masih hidup dalam masa tiga puluh tahun) states that “When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it”. (Apabila soalnya ialah sama ada seseorang itu masih hidup atau telah mati, dan dibuktikan bahawa orang itu masih hidup dalam masa tiga puluh tahun, beban membuktikan yang dia telah mati terletak pada orang yang menegaskannya).

Presumption of continuity of life This section deals with the burden

of proving death of a person known to have been alive within 30 years.

It provides that the burden lies on the party who asserts it. This section must be read with section 108 of the Act. However both the sections cannot be apply to the same case as a person cannot at the same time be both alive and dead. In Surjit Kaur v Jujar Sigh AIR 1980 SC 274, there was an application under section 107 for the continuity of life. The issue tendered was whether in 24th Mei 1970 Surjit Singh was dead or alive. On fact that on 24th Mei 1960, he was known to be alive. This certainly gives rise to presumption of continuity of life.

Presumption of death/

Anggapan kematianS. 108

Presumption of deathPresumption of death: Section 108 of EA 1950 provides for

the Burden of proving that person is alive who has not been heard of for 7 years (Beban membuktikan bahawa orang yang telah tidak didengari apa – apa khabar selama tujuh tahun masih hidup) states that “When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”. (Apabila soalnya ialah sama ada seseorang itu masih hidup atau telah mati, dan dibuktikan bahawa tiada apa – apa khabar telah didengar mengenainya seama tujuh tahun oleh orang – orang yang sepatutnya mendengar khabarnya jika dia masih hidup, beban membuktikan yang dia masih hidup beralih kepada orang yang menegaskannya). This particular section provides that if it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Presumption of death• In Re Gun Soon Thin [1997] 2 MLJ 351, the

applicant sought a declaration that his father ('Gan Teck Heow'), who had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, be presumed dead. There was affidavit evidence that when the Japanese invaded Malaya in 1942, Gan Teck Heow was nabbed by the Japanese soldiers. Efforts to trace Gan Teck Heow, though mounted extensively, proved futile. Evidence showed that Gan Teck Heow had never contacted his family members since the Japanese soldiers took him away. The issue before the court was whether, on the facts of the case, Gan Teck Heow ought to be presumed dead. Based on the facts of the case and the affidavit evidence, the court held that Gan Teck Heow be presumed dead. Further, the court could take judicial notice of the fact that the Japanese occupation had taken the death toll on the higher scale. Without the death certificate of Gan Teck Heow or a declaration to that effect by this Court, letters of administration (L.A.) can never be extracted. (taken)

Presumption of death


requirementsSee Re A Penhas,

deceased [1947] MLJ 78.

Not less than7 years

Said absence has gone

on consistently without

explanation;

No person's have been contacted

by the presumed

The person can not be found

with any searches.

Presumption of death• In Re Othman Bin Bachit [1997] 4 MLJ 445,

in order to invoke the aid of s 108, two basic facts must be proved. They are: (a) the person must not have been heard of for seven years; and (b) this must be by those who would naturally have heard of him, if he had been alive. The first fact to be proved is self-explanatory (clear) while the second requires some elaboration (explanation). • A person 'has not been heard of' if no

reliable information concerning him is received. There is no definite rule as to who are the persons who would 'naturally' have heard of him, if alive. Generally speaking, they are his close relatives or neighbours (see Doe d'France v Andrews (1850) 15 QBD 756). • Where the question is whether a married

woman is dead or alive, her husband, if alive, would be the proper person who would naturally hear of her if she were alive (see Ganesh Bux Singh v Mohammad AIR 1944 Oudh 266).

Presumption of death• Time of death: Under this section, there is no presumption as to the time of death. In

Re Othman Bin Bachit [1997] 4 MLJ 445 it was stated that although a person who has not been heard of for seven years is presumed to be dead, there is no presumption as to the time of his death under section 108. If it is sought to establish the precise period at which a person died then it must be done so by actual evidence like the proof of any other fact. • In Lal Chand Marwawi v Mahani Ramrup Gir 42 TLR 159 where in the course of the

judgment in that case Lord Blanesburgh said: “But the law really is that on the facts now assumed there is no presumption as to Bhawan Gir being dead either in 1902 or 1904. There is only one presumption and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact is a matter of proof. See also Re Phene's Trusts (1870) 5 Ch App 139 and Re A Penhas, deceased [1947] MLJ 78. The section is designed for the purpose of determining whether a man is alive or dead at the time when the question arises in a dispute in a court or proceedings. • InSmt Mathru v Smt Rani AIR 1986 HP 6 where Gupta J said at p 8: There is no

presumption that a person who has not been heard of for a period of not less than seven years died at the end of the first seven years or on any particular date. The burden of proving the date of death of a person is always upon the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under s 108 of the Act is that a person is dead if he has not been heard of for seven years and this presumption only arises when a question is raised in a court, etc as to whether a person is alive or dead. Such presumption can earliest be drawn when a dispute is brought in a court or proceeding.

Presumption of death Where a person absconded,

presumption of death cannot be raised. In R Muthu Thambi v K Janagi [1955]

MLJ 47, the respondent (Janagi) had in 1929 married a man who after two years absconded (run away) to India. There had been no news from him. In 1940 respondent went through a ceremony of marriage with appellant. Later on they divorced and she sued for maintenance. The appellant said he is not bound to pay the maintenance because there is bigamous marriage (not valid marriage). However Janagi part argued that there was a presumption of death. However it was rejected by the court since in this case, Janagi tried to argued on the specific time of death and the fact that the first husband had only absconded to India (he had no intention to communicate), so the presumption cannot apply. See Watson v England 60 ER 266 and Bowden v Henderson 65 ER 437 where if a person absconded, presumption of death cannot be raised.


Presumption of death limitations

No presumption

as to the time of death.

Where if a person absconded,

presumption of death cannot be raised.

Presumption of legitimacy/ Anggapan

kesahtarafanS.112

Presumption of legitimacyPresumption of legitimacy: Section 112 of

EA 1950 provides for Birth during marriage conclusive proof of legitimacy (Kelahiran dalam masa perkahwinan adalah bukti muktamad tentang kesahtarafan) states that “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten”.

Presumption of legitimacy This section is in two parts.

The first part of the section provides that a child born during the continuance of a valid marriage or during 280 days after the dissolution, the mother remaining unmarried, shall be conclusive proof of the legitimacy of the child. The second part of the section provides that the presumption can only be rebutted if it is shown that the parties to the marriage had no access to each other at any time when he could have been begotten. (to be the father or sire of or procreate).

This section only applies to presumption as to paternity not maternity (Nand v Gopal AIR 1940 PC 93).

Presumption of legitimacy The section is only applicable where the legitimacy of a child is involved. Per

KC Vohrah J in Chua Kim Suan v Ang Mek Chong [1988] 3 MLJ 231. Manner of rebutting the presumption under the section: Per Aitken J in

Ainan Bin Mahmud v Syed Abu Bakar Bin habib Yusoff [1939] MLJ Rep 209 states that “This section, following the English Law, adopts the period of birth, as distinguished from conception, as the turning point in all questions of legitimacy. Birth within either period specified in the section is "conclusive proof" of legitimacy, unless it can be shown that there was non-access. That is the only way in which the presumption created by this section can be rebutted, and those who seek to rebut the presumption must prove that sexual intercourse between the parties did not take place at any time when, by such intercourse, the husband could, according to the ordinary course of nature, be the father of the child”. The decision is contrary to Islamic Law where the child must be at least 6 months during the wedding of the father and mother. (Under Islamic Law a child born within six months of a marriage is illegitimate).

The Privy Council in Karapaya v Mayandi AIR 1934 PC 49 held that “the word access in the section means no more than opportunity of intercourse and that the burden of showing that parties to marriage had no access to each other at any time when the child could have been begotten is on the person challenging the legitimacy of the child”.

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Corroboration: The general

principle

Corroboration: The general principleSection 134 of the Evidence Act 1950

provides for the “Number of witness” (Bilangan saksi) that “No particular number of witnesses shall in any case be required for the proof of any fact” (Tiada apa – apa bilangan tertentu mengenai saksi dikehendaki dalam sesuatu kes untuk membuktikan sesuatu fakta)

This particular section provides that no particular number of witnesses shall be required for the proof of any fact.

Corroboration: The general principleThis means that the testimony of a single witness, if

believed, is sufficient to establish any fact. The result of this section is that in any case, the testimony of a single witness, if believed, is sufficient to establish any fact. The Courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all. See Wright v. Tatham, 5 C & F 670 & Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457.

Corroboration: The general principle

Section 134 follows the maxim

“Testes ponderantur, non

numerantur”

Please remember: Its “Testes” NOT “Testis”


Section 134 follows the maxim

“Evidence is to be weighed and not to be counted”


“Perlu diingatkan bahawa saksi-saksi adalah dinilai dan

ditimbangkan dari keterangan yang

dikemukakannya bukannya dinilai mengikut bilangan saksi yang dikemukakan”

Corroboration: The general principleIf a single witness is entitled to full credit it is sufficient for a

decision. One credible witness outweighs any number of other witnesses. See The Wagon [1895] p. 156, 159.

The Court is concerned with the “quality” and not “quantity” of the evidence.

The basis of the section is that if a particular number of witness should be required to prove a particular offence it would hamper the administration of justice because in many cases it is not possible to get more than one.

Corroboration: The general principlePer Gopal Sri Ram JCA in MGG Pillai v Tan Sri Dato Vincent Tan Chee

Yioun [1995] 2 MLJ 493 states “As I earlier said, the respondent was the only witness called to prove his case. The learned Judge appears to have accepted that evidence. In my judgment, based on the authorities referred to, there was no necessity for the respondent to call other witnesses to prove his general damages. He may have reinforced his case by calling other persons. He took the risk of not doing that. As it happened, he was proved right”.

Corroboration: The general principleIn Vadivelu Thevar v. State of Madras AIR 1957 SC 614,

Sinha J., when delivering the unanimous decision of the Indian Supreme Court, drew attention to the material differences between English law on the subject and the law as enacted in s. 134 of the Indian Evidence Act, 1872 (which is identical to our section 134 ), and said (at page 619): that “The Indian Legislature (and I might add the Malaysian Parliament) has not insisted on laying down any such exceptions to the general rule recognized in section 134 quoted above” “The section enshrines the well recognized maxim that ‘Evidence has to be weighed and not counted’ Our legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon”.

Corroboration: The general principleAgain in Ram August Tewari & Ors v.

Bindeshwari Tewari & Ors AIR 1972 Pat. 142, at page 144, the Court made this important observation: page 144, the Court made this important observation: “The evidence of every witness is to be judged on its own merits and if there is nothing in his evidence or in the evidence of other witnesses examined in the case to discredit him, it cannot be disbelieved on the ground that there is only one witness on the point and no other witness has been examined to support him”.

Corroboration: The general principle In the case of Long Bin Samat v PP [1974] 2 MLJ 152, on the

night in question the said Che Mat bin Mat Hj Awang (PW2) was on his way to a fishing ground in the padi fields. When he switched on his torch soon after he left his house he saw the three appellants whom he had known before about 30 depas away. It was then raining with occasional flashes of lightning. All the three appellants were armed, the first with a parang, the second with a pedang and the third with a kapak. On being flashed at the three appellants charged at him in the course of which the first appellant threw a piece of wood at him. He took to his heels but he fell down at a spot and was slashed several times by the first appellant. He subsequently lost consciousness. All three appellants were convicted by the learned Magistrate under section 324 of the Penal Code (Voluntarily causing hurt by dangerous weapons or means). On appeal, it was contended that there was no corroboration of PW2’s evidence. In reply to these, Ibrahim J states “Under section 134 of the Evidence Act, 1950 no particular number of witnesses shall in any case be required for the proof of any fact and as there was no eye-witness present when the attack on PW2 took place only evidence of PW2 was available and since the learned Magistrate has accepted his evidence that would be sufficient”

Corroboration: The general principle But: Don’t confuse yourselves: However,

this section should not be interpreted as a direction to convict on the testimony of a single witness. It does not mean that the Court must act upon the evidence of one witness even if it is unshaken in cross-examination and no way discredited by the witness’s demeanour.

In the circumstances of suspicion or the testimony of a witness is challenged by cross-examination or otherwise, corroboration is required either by law or well established rule of practice.

As explained by Kingsmill Moore J. in the case of The People (Attorney General) v. Casey (No. 2) [1963] Ir. R. 33 at 38 (Irish Supreme Court) 249 “It is the function of a Judge in his charge to give to the jury such direction and warnings as may in his opinion be necessary to avoid the danger of an innocent man being convicted” This justification of the corroboration was reinforced by Lord Morris in DPP v. Hester [1973] AC 296 at p. 315 when he said that “any risk of the conviction of an innocent person is lessened if conviction is based upon the testimony of more than one acceptable witness”.

Corroboration: The general principleThe meaning of corroboration: It is questionable whether a

strict definition of corroboration is either necessary or desirable. It has been said by Lord Reid (In DPP v. Hester [1973] AC 296) and Lord Hailsham (In PP v. Kilbourne [1973] AC 729) that there is nothing “technical” in the idea of corroboration. Justice Sharma in the case of Attan bin Abdul Ghani v. PP [1970] 2 MLJ 143 stated that there is no “magic” in the use of the word corroboration.

The term has been variously (differently) defined. Lord Hailsham in the Kilbourne’s case said that the word “corroboration” by itself means no more than evidence tending to “confirm” other evidence. Lord Morris of Borth-y-Gest in Hester’s case seems to suggest the corroboration is evidence tending to “confirm” and “support” other evidence. It is evidence which renders other evidence more probable. (DPP v. Kilbourne, per Lord Simon at 758, citing from Lord Morris of Borth Gest, Lord Pearson and Lord Diplock in DPP v. Hester).


Requirementsfor

corroboration

The evidence must be

relevant and admissible.

The evidence in question

must be credible.


independent.

The evidence must

implicate the accused

• In the present state of affairs thus there is yet to be a specific definition of the term, and whether there is a need for such a definite, comprehensive and technical definition remains unclear. What is clear from the authorities is that evidence will not in law amount to corroboration unless it meets certain requirements as stated below: See PP v Rosman Abdul Wahab [2006] 4 CLJ 615.

Corroboration: The general principleFirstly, the evidence must be relevant and admissible. This can be

explained by the judgment of Lord Scarman in the case of R v. Scarrott [1978] QB 1016 at 1021. He said: “The admissibility of similar fact evidence, even when it is adduced as it is in this case as corroboration of direct evidence, does not depend upon whether it is capable of corroborating the evidence of the victim or accomplice, it depends upon its positive value and not vice-verse; for if the evidence be admissible, it follows that it is capable of corroborating”. The most important feature of the law of evidence is that evidence which is sufficiently relevant to prove or disprove a fact in issue and which is not excluded by any rule of the law of evidence is admissible. Therefore it will be conveniently said that to be admissible, evidence must be relevant.

The judgement of Lord Hailsham in Kilbourne’s case at page 741 make it much clearer that evidence must be admissible and relevant before amounting to corroboration. The learned Judge said: In my opinion, evidence which is (a) admissible and (b) relevant to the evidence requiring corroboration, and, if believed, confirming it in the required particulars, is capable of being corroboration of that evidence and, when believed, is in fact such corroboration.

Corroboration: The general principleSecondly, the evidence in question must

be credible. As stated by Lord Morris in Hester’s case: “Corroboration is only required or afforded (give) if the witness requiring corroboration or giving it is otherwise credible ... corroboration can only be afforded (give) to or by a witness who is otherwise to be believed”. A similar observation was made by Lord Hailsham in Kilbourne’s case. He emphasised that if a witness’s testimony falls of its own inanition (no quality), the question of his being capable of giving corroboration does not arise.

Corroboration: The general principleThirdly, the evidence must be independent,

that it should be emanated from a source other than the witness requiring to be corroborated. In Kilbourne’s case Lord Reid said: “We must astute (wise) to see that the apparently corroborative statement is truly independent of the doubted statement. If there is any real chance that there has been collusion (involvement) between the makers of the two statements, we should not accept them as corroborative. Similar observations were made by Lord Wilberforce and Lord Cross in R v. Boardman [1975] AC 421 at 444 and 459 respectively. Keterangan sokongan mestilah keterangan yang bebas dan boleh dipercayai

Corroboration: The general principleFourthly, the evidence must implicate the accused in a

material particular. In R v. Baskerville [1916] 2 KB 658, Lord Reading CJ said: “Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it”.

The Privy Council in the case of Dowse v. A. G. Federation of Malaya [1961] 27 MLJ 249 held that: “For evidence to be corroborative, it must be truly probative of the relevant issues, that is, it must positively implicate the accused person and positively show or tend to show the truth of the accomplice’s story that the accused committed the offence”.

Corroboration: The general principleIt is worth noting that corroboration

was not limited to direct evidence of independent witnesses.

It was frequently provided by a combination of pieces of circumstantial evidence which together tended to show that the defendant committed the crime. (See section 156 of EA 1950 & the case of R v. Hills [1988] 86 Cr. App. R. 26).

Assalamualaikum & a very good morning. Wish all of

you in good health. Welcome to evidence 2

class…

Corroboration: The exceptions.

Corroboration: The exceptionsPer Augustine Paul JC in Aziz Bin Muhamad Din

V PP [1996] 5 MLJ 473 states “As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character”. Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

Corroboration: The exceptions

Exceptions to section 134&

Testes ponderantur, non numerantur

Corroboration requiredas matter of law

(Perkara undang – undang)

Corroboration requiredas matter of practice.

(Perkara amalan)

If the need for corroboration is required by law, it is mandatory.

If convict without corroboration, it is consider erred in law thus

give ground for an appeal.

If the need of corroboration is required as a matter of prudence or

practice. All the judge need to do is to

warn/caution himself the dangers of convicting

without corroboration the accused and he need to

wrote this warn/caution in his notes of proceeding.

If the accused is convicted without the judge giving himself the warn/caution, this also can be a ground

of appeal.

Matter of law Matter of practice


PONDERANTUR

NON

NUMERANTUR

MATTER OF

LAW

MATTER OF

PRACTICE/PRUDENT

EXCEPTIONS

UNSWORNEVIDENCE

OF ACHILD

SEDITIOUS ACT

ENTRIES IN BOOKS

OF ACCOUNT

SEXUAL OFFENCES

SWORN EVIDENCE

OF A CHILD

IDENTITYEVIDENCE

EVIDENCEOF AN

ACCOMPLICE

OTHEREXCEPTION

PREVIOUS STATEMENT

Corroboration requiredas

matter of law

Corroboration

MATTER

OF

LAW

UNSWORNEVIDENCE

OF ACHILD

SEDITIOUS ACT

ENTRIES IN BOOKS

OF ACCOUNT

Unsworn evidence of a child

(Keterangan seorang kanak – kanak yang

tidak bersumpah)

Matter of law: Unsworn evidence of a childSection 118 of the Malaysian Evidence Act 1950 provides that

all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Under this section the sole test in determining the competency of a witness is whether the witness has sufficient intellectual capacity to understand and give rational answers to the question. Therefore a child is competent to testify, if he or she can understand the question put to him, and give rational answers thereto. No precise age limit is given.

Under section 6 of the Oaths and Affirmations Act 1949 witnesses must give evidence on oath, and section 8 of the Act provides that any person of immature age who ought not be affirmed or take an oath, can give evidence after a caution by the court to speak the truth, the whole truth and nothing but the truth. The judge must ascertain whether the child is competent to give testimony or not.

Matter of law: Unsworn evidence of a childIt is widely believed among lawyers that confronting the

accuser with the person he accuses ensures he tells the truth. The strongest expressions of this viewpoint come from the USA, where the Constitution gives the defendant a right to confront the witnesses against him; which the courts have interpreted as a right to look at them in the eye whilst they do so. When setting aside a conviction for sexual offence on a little girl of five, a judge in California said: By allowing the child to testify against the defendant without having to look at him or be looked at by him, the trial court not only denied the defendant the right of confrontation but also foreclosed an effective method for determining veracity. (See Herbert v Superior Court (1981) 117 Cal App 3d 850 at 853).

In the Supreme Court case of Coy v Iowa, (1988) 108 S Ct 2798 Scalia J said: It is always more difficult to tell a lie about a person 'to his face than 'behind his back'.

Matter of law: Unsworn evidence of a child The environment of the court is a strange environment for a child and research shows that it

can rapidly confuse them. Besides the strangeness of the situation, young children find it frightening to see the accused in court. The confrontation does not make the child tell the truth, but rather frightening him to say anything at all. (See RK Oates, Children as Witnesses (1990) 64 ALJ 129).The interviews conducted at different times by different people make the child more confused and these traumatize them. They finally end in the child being cross-examined by defence counsel. JR Spencer and Dr Danya Glaser list out five features of cross-examination:

(a) Like the examination-in-chief, it will take place a long time after the incident, when the child's memory for details of peripheral significance to the child has begun to fade.

(b) It is likely to contain language that is beyond the child's understanding and knowledge of language. The danger is when the child imperfectly understands the question and gives a misleading answer.

(c) It will largely consist of leading questions which tend to produce inaccurate information. (d) It will contain questions that cause emotional stress to the child. Many are not questions

in any real sense, but assertions, usually that the child is a liar. It will rapidly reduce most children to tears. It then makes it hard for the child to remember accurately and think clearly

(e) It will also contain questions that press for further details, not in order to provide the court with further information, but in the hope of making the child contradict some details of what he said earlier, so undermining his credibility in the eyes of the court. They also argued that an in-court cross-examination of a young or highly traumatized child may make him cry, scare him silent, or possibly get him to retract falsely simply to get the ordeal over; but far from being an instrument for the discovery of truth, where young children are concerned, it is a means of obscuring and destroying it.

Matter of law: Unsworn evidence of a child Section 133A of the Evidence Act 1950 provides for Evidence of child of tender

years (Keterangan seseorang kanak – kanak yang masih muda) that “Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth, (Jika, dalam sesuatu prosiding terhadap seseorang kerana sesuatu kesalahan, seseorang kanak – kanak yang masih muda yang dipanggil sebagai saksi adalah pada pendapat mahkamah tidak faham apa sebenarnya suatu sumpah itu, keterangannya boleh diterima, walaupun diberi dengan tidak mengangkat sumpah, jika, pada pendapat mahkamah, dia telah cukup akal bagi membolehkan keterangannya diterima, dan di faham tentang kewajiban bercakap benar)

Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him”. (Dengan syarat bahawa, jika keterangan yang diterima menurut seksyen ini diberi bagi pihak pendakwa, tertuduh itu tidak boleh disabitkan atas kesalahan itu melainkan jika keterangan itu diskong dengan keterangan – keterangan material lain yang menyokong keterangan tersebut dan melibatkannya).

Matter of law: Unsworn evidence of a child Principle of this section: This section deals

with the evidence of child witnesses. It provides that where a child of tender

years who is called as a witness does not, in the opinion of the court, understand the nature of an oath he may give unsworn evidence if the court is satisfied that he is possessed of sufficient intelligence to justify the reception of the evidence and understand the duty of speaking the truth.

It must be noted that this section applies only to unsworn evidence. The law relating to the sworn evidence of a child is still governed by the rule of practice/prudent.

This particular section which applies to unsworn evidence of children was added to the Evidence Act 1950 in 1971. The effect of this section, particularly the proviso therein, is that a conviction cannot stand on the uncorroborated evidence of an unsworn child witness. It is a total ban on convicting an accused person on the uncorroborated evidence of a young child who gives unsworn evidence, whatever the nature of the charge. If the prosecution can produce nothing more than this the judge or magistrate must stop the case however convincing they find it.

Matter of law: Unsworn evidence of a child

• The unsworn evidence of a child witness must be corroborated: In Sidek Bin Ludan v PP [1995] 3 MLJ 178 Abdul Malik Ishak J states “The effect of this amendment is far reaching. The proviso to section 133A of the Act in simple terms means this: A conviction cannot stand on the uncorroborated evidence of an unsworn child witness. It is insufficient for the trial court to merely administer a warning on the dangers of so convicting as the amendment now makes it a rule of law, more explicitly, that the evidence of an unsworn child witness shall be corroborated. This amendment distinguishes between the testimony of a sworn and an unsworn child witness. In the case of a sworn child witness the old rule of prudence applies, viz, the need to give an exhaustive warning on the dangers of convicting on such uncorroborated evidence. Whereas in the case of an unsworn child witness, section 133A of the Act applies”. See also PP v Mohd Noor bin Abdullah [1992] 1 CLJ 702

Matter of law: Unsworn evidence of a child Manner of ascertaining the capacity of a child witness: The section makes it

obligatory for a trial court, by way of a preliminary inquiry, (mengadakan suatu penyiasatan untuk membentuk satu pendapat) to ascertain the capacity of the child to understand the questions and give rational answers. The object is to determine whether the child is in position to be sworn. In Muharam Bin Anson v PP [1981] 1 MLJ 222 where the appellant had been convicted of the offence of mischief by fire in that he set fire to a dwelling house intending to cause the destruction of the building. On appeal it was argued that (a) as the evidence against the appellant depended on the visual evidence of identity by the complainant and his wife there was the possibility that the appellant had been wrongly identified; (b) that the prosecution had failed to call the son of the complainant at the trial; (c) that the learned trial judge had failed to accept the testimony of the child of the appellant who gave evidence for the defence; (d) that the sentence of six years' imprisonment was excessive. Held: Appeal dismissed: (3) the learned trial judge was justified in rejecting the evidence of the child of the appellant as she was about seven years at the time of the incident and gave unsworn evidence at the trial. Where the child witness name Kunah Bte Muharam was ten years old at the time of the trial and about seven years of age at the time of the incident. After holding an inquiry, the learned trial judge received her unsworn evidence after forming the opinion that Kunah did not understand the nature of an oath but thought she possessed sufficient intelligence to justify the reception of her evidence and understood the duty of speaking the truth. Altough later on, her evidence was rejected as the learned judge in the view that Kunah evidence was taught by someone as what to say in court.

Matter of law: Unsworn evidence of a childIn Yusaini Bin Mat Adam v PP [1999] 3 MLJ 582 the

sessions court convicted the appellant for the offence of rape committed on a girl aged 10 years 8 months. The girl was of the age of 11 when she gave evidence in court during the trial. Despite the fact the girl was a child of tender years, the court did hold an inquiry to form an opinion (mengadakan suatu penyiasatan untuk membentuk satu pendapat) whether the child was in the position to be sworn in accordance with the requirements under section 133A of the Evidence Act 1950 ('the Act'). The girl gave contradictory evidence and the observations noted by the sessions judge showed that the she behaved strangely through the trial. The appellant appealed. Held, allowing the appeal: The court when accepting the evidence of a child of tender years ought to have examined whether the child had sufficient appreciation of the responsibility of telling the truth over the ordinary duty to tell the truth upon pain of punishment for perjury. On the failure of the session court judge to follow the procedure in s 133A of the Act, the conviction should be set aside.

Matter of law: Unsworn evidence of a child• Section 133A which was introduced in the Evidence Act 1950 in 1971 (see

PU (A) 261/71) is the equivalent of s 38 of the English Children and Young Persons Act 1933 (repealed since 1991). In England, prior to 1933, children could testify in criminal proceedings only if they were found competent to swear the same oath as adult witnesses. Section 38 of the English Act first introduced the principle of unsworn evidence in criminal cases. • In R v Hayes (1977) 64 Cr App R 194, where Hayes was charged with

inciting three boys to commit acts of gross indecency with him, and also with committing an act of gross indecency with one of them. The boys were called as witnesses and the two older boys, aged 11 and 12, were sworn after being examined by the judge. The judge’s questions during his examination were to a large extent concerned with the boys’ religious understanding, but it was clear that the oldest boy, in particular, had little if any religious belief. The appellant claimed that the boy should not have been sworn in those circumstances, but the Court of Appeal upheld the trial judge’s decision. Bride LJ said at 196: It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal, social conduct. (Emphasis added.)

Matter of law: Unsworn evidence of a childAs was observed by Andrews & Hirst in Criminal

Evidence (3rd Ed, 1997): The competence of a child could never be presumed. Even for the purpose of giving unsworn testimony, it was still necessary to establish by positive means that the child understood the ordinary duty of telling the truth. It was the duty of a court or judge to determine competence and the proper level of competence before proceeding to admit evidence from a child. This could involve the child being asked questions by the trial judge, and it could also involve the calling of expert opinion evidence from child psychologists. If a child was allowed to testify without such prior examination, any conviction based on that child’s evidence was liable to be quashed on the ground of material irregularity (R v Khan (1981) 73 Cr App R 190). If the sessions judge had, after an inquiry, decided that the child had a sufficient appreciation of the solemnity of the occasion and the added responsibility to tell the truth, which is involved in taking the oath, over and above the duty to tell the truth which is an ordinary duty of normal, social conduct, the judge would have been on guard when assessing the evidence of the child.

Matter of law: Unsworn evidence of a child In Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ 397 where the 58-

year-old accused was charged under s 354 of the Penal Code in the magistrates’ court with using criminal force with intent to outrage the modesty of a 10-year-old girl. He was convicted on the charge and sentenced to 20 months’ imprisonment. The accused appealed against conviction and sentence and the DPP cross-appealed against inadequacy of sentence. On appeal, counsel for the accused contended inter alia that the magistrate had failed to examine whether the child victim PW2 and a child witness PW3 had sufficient appreciation of the solemnity of the occasion as required by law and practice. The evidence of PW 2 was also not corroborated. There was no evidence to show that the magistrate had established the competency of the child witnesses to give evidence. The High Court had therefore to determine whether such omission was fatal. Held, allowing the appeal and dismissing the cross-appeal: Section 133A must be read together with s 118 which makes all witnesses competent witnesses and makes reference to a person of tender years. Under s 133A, when a child of tender years is called to give evidence, there is a duty upon the court to ensure that the child understands the nature of an oath. The evidence can be received without an oath if the court is of the opinion that the child possesses sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. However, under s 133A, the child’s evidence must be corroborated or there must be some other evidence implicating the accused before he can be convicted. In the instant case, there was a total failure on the part of the magistrate to comply with sections 118 and 133A thereby making the conviction in law unsafe.

Matter of law: Unsworn evidence of a child In Public Prosecutor v Chan Wai Heng [2008] 5 MLJ 798 where the accused/respondent

had been charged and convicted by the sessions court under s 377C of the Penal Code. The complainant against whom the acts were alleged to have been perpetrated was a seven year old boy. The accused dissatisfied with the conviction and sentence had appealed to the High Court by contending that the trial judge in failing to record, expressly or more specifically, in the notes of evidence that he had found that a prima facie case had been made out against the accused at the conclusion of the case for the prosecution, had caused a miscarriage of justice which occasioned intervention. In addition the accused had mounted a challenge on firstly the procedure applied by the sessions court judge in ascertaining the level of understanding of the complainant, a child witness, and secondly the nature of corroboration with regard to the child’s testimony. The High Court allowed the appeal on the grounds that the sessions court had failed to observe the provision of s 173(f)(i) of the Criminal Procedure Code (‘CPC’); that s 133A of the Evidence Act 1950 (‘the Act’) had not been adhered to in that the evidence of the complainant, a child, had not been supported with corroborative evidence because the medical evidence which was supposed to corroborate the child’s evidence was inconsistent and inconclusive. This appeal by the prosecution was against the decision of the High Court in allowing the accused’s appeal. Held, allowing the appeal and restoring conviction and sentence determined by the sessions court judge: (2) There is no set or fixed procedure to be observed in ascertaining the level of understanding of the child. However, it was clear from a scrutiny of the notes of evidence recorded by the sessions court judge that he had satisfied himself that the child witness did not comprehend (understand) the oath and thereafter embarked on a process of ascertaining the child’s level of understanding.

Matter of law: Unsworn evidence of a child In Chao Chong & Ors v PP

[1960] MLJ 238 states “One reason why childrens evidence is regarded with suspicion is that there is always the danger that a child may not fully understand the effect of taking an oath. In this country where evidence is taken on affirmation that consideration loses much of its force. Another reason, however, which in this country possesses undiminished force is that it is a matter of common knowledge that children at times find it difficult to distinguish between reality and fantasy. They find it difficult after a lapse of time to distinguish between the results of observation and the results of imagination”.

Matter of law: Unsworn evidence of a childIn Loo Chuan Huat v PP

[1971] 2 MLJ 167, the appellant had been convicted of murder. The prosecution case rested entirely on the evidence of a boy of 11 or 12 years old, who gave unsworn evidence. The learned Azmi LP (as he then was), in deciding that the direction given by the trial judge was unsatisfactory, said: “Nowhere in the summing up has the jury been invited to consider their own experience of children and their capability of confusing fantasy with reality”.

Matter of law: Unsworn evidence of a child

In Tham Kai Yau & Ors v PP [1977] 1 MLJ 174 the Federal Court in deciding the sufficiency of the warning said: “It is sufficient if the judge adopts the prudent course of advising the jury to pay particular attention to or to scrutinize with special care, the evidence of young children and explains the tendencies of children to invent (create) and distort (twist)”.

Matter of law: Unsworn evidence of a child In Shanmugam a/l Munusamy v PP [1999] 1 MLJ 288, where the appellant

was convicted by the High Court for murder under section 300 of the Penal Code (FMS Cap 45) ('the Code') and was sentenced to death under section 302. The trial of the appellant was conducted before a panel of jurors and at the end of the trial, the jury found the appellant guilty. The appellant appealed against his conviction and sentence. Counsel for the appellant submitted that there was a misdirection by the trial judge in respect of the evidence of a child witness , as there was no warning by the judge in his summing-up to the jury of the risk of a conviction based on a child's evidence. Held, dismissing the appeal and confirming the conviction and sentence: (1) The trial judge had warned the jury of the risks of accepting a child’s evidence and that they had to evaluate and scrutinize the evidence when it was not given under oath. The jury was also warned that a child may find difficulty in differentiating between 'fantasy' and 'reality' and also between 'imagination' and 'what actually was seen'. Further, the trial judge had made it clear to the jury that an accused person cannot be convicted on uncorroborated evidence of a child witness. He also explained to the jury that corroboration did not necessarily come from the evidence of another eyewitness, but could also come from 'circumstantial evidence' of other witnesses. The circumstantial evidence must be of such a nature that it would lead to an irresistible conclusion that the facts did happen. As such, the trial judge’s summing-up was fair and in accordance with the evidence adduced.

Matter of law: Unsworn evidence of a childThe evidence of one unsworn witness cannot corroborate the

evidence of another unsworn witness: Per Muhammad Kamil J in PP v Mohammad Terang Bin Amit [1999] 1 MLJ 154 states “It is pertinent to note that the provisions of s 133A of the Act are in fact derived from s 38 of the Children and Young Persons Act 1933 of England. In this regard, the learned magistrate clearly demonstrated the correct application of the law in citing Director of Public Prosecutions v Hester [1972] 3 All ER 1056, where Lord Pearson after having recited the relevant part of s 38 of the Children and Young Persons Act 1933 went on to state that (at p 1069): The proviso contains the only statutory disqualification of unsworn evidence differentiating its effect from that of other evidence. An accused person is not to be convicted on unsworn evidence unless it is corroborated by some other material evidence in support thereof implicating the accused. The disqualification applies to all the unsworn evidence given in a particular case; if there are two or more children giving unsworn evidence to the same effect, still there can be no conviction unless there is some other evidence corroborating their evidence”

Sedition cases (Kes – kes hasutan)

Matter of law: Sedition casesSection 6 of the Sedition Act 1948

provides (1) Notwithstanding anything to the contrary contained in the Evidence Act no person shall be convicted of an offence under section 4 on the uncorroborated testimony of one witness.

Menurut s 6 (1) Akta Hasutan 1948, tiada seorang pun boleh disabitkan kerana sesuatu kesalahan di bawah s 4 atas testimoni yang tidak disokong yang diberi oleh seorang saksi.

Matter of law: Sedition cases In Lim Guan Eng [1998] 3 CLJ 14 where the

appellant is the Member of Parliament for Kota Melaka as well as the Deputy Secretary-General of the Democratic Action Party. He published 5,000 copies of a pamphlet which contained the words “Victim imprisoned, criminal free”. The appellant was charged with the first charge that the words ‘Mangsa dipenjarakan’ (‘Victim imprisoned’) amounted to false news that had been maliciously published, contrary to s 8A (1) of the Printing Presses and Publications Act 1984 ('the PPPA') ('the first charge'). The appellant was alleged to have made a speech in which he said that he was dissatisfied with the laws of Malaysia because of the double standard which resulted in the rape case involving Rahim not being brought to court and with the fact that the court had ordered the minor to be detained for three years whereas Rahim, who should have been imprisoned for violating the law, was instead set free. These two comments resulted in the second charge against the appellant, that he had committed sedition contrary to s 4(1)(b) of the Sedition Act 1948 ('the second charge'). The trial judge found the appellant guilty on the first charge and sentenced him to a fine of RM10,000, in default six months' imprisonment. The judge also convicted the appellant on the second charge and imposed a fine of RM5,000, in default three months' imprisonment. The appellant appealed against both convictions and sentences passed upon him. At the same time, there were two cross-appeals by the Public Prosecutor who complained that the sentence passed upon the appellant in respect of each proved offence was inadequate.

• Held, after considering all the witness evidence which is fully corroborated, dismissing the appellant’s appeals but allowing the respondent's cross-appeals. The appellant was sentenced to 18 months imprisonment on each charge. (Evidence of corroboration by witnesses in this case is regarded as sufficient). See also Lim Guan Eng v PP [2000] 2 CLJ 541 where the Federal Court uphold his conviction. See also PP v Mark Koding [1983] 1 MLJ 111.

Entries of book account

(Catatan dalam buku akaun)

Matter of law: Entries of book accountSection 34 provides “Entries in books

of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but the entries shall not alone be sufficient evidence to charge any person with liability”. Illustration: A. sues B. for $1,000 and shows entries in his account books showing B. to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.

Matter of law: Entries of book account Per Salleh Abas in Sim Siok Eng & Anor v

Poh Hua Transport & Contractor Sdn Bhd [1980] 2 MLJ 72, 73, where in this case the respondent claimed the sum of $ 5,283.25 for goods sold and delivered to the appellants. To support its case the respondent produced its books of accounts kept by it to record its transactions with several customers including the appellants. Evidence was given that the goods were ordered and delivered to the appellant’s premises and that the entries in the account books were entered from the invoices. The learned trial judge gave judgment for the respondents and the appellants appealed. Held, dismissing the appeal: (1) the books of account were regularly kept in the cause of business and referred to a matter into which the court had to inquire and were therefore admissible under section 34 of the Evidence Act; (2) corroboration of the entries in the book of account were to be found in the book of account itself, in the admission by the appellants which tallied with the first four entries relating to them and in the oral evidence relating to the order and the supply of the goods.

Corroboration requiredas

matter of practice

If the need for corroboration is required by law, it is mandatory.

If convict without corroboration, it is consider erred in law thus

give ground for an appeal.

If the need of corroboration is required as a matter of prudence or

practice. All the judge need to do is to

warn/caution himself the dangers of convicting

without corroboration the accused and he need to

wrote this warn/caution in his notes of proceeding.

If the accused is convicted without the judge giving himself the warn/caution, this also can be a ground

of appeal.

Matter of law Matter of practice

Corroboration

MATTER

OF

PRACTICE

SEXUAL OFFENCES

SWORN EVIDENCE

OF A CHILD

IDENTITYEVIDENCE

EVIDENCEOF AN

ACCOMPLICE

Sworn evidence of a child

(Keterangan seorang kanak – kanak yang

bersumpah)

Matter of practice: Sworn evidence of a child The requirement of corroboration even in the case of the sworn

evidence of a child: Per Azmi LP in Loo Chuan Huat v PP [1971] 2 MLJ 167 states “One point, perhaps, requires observation: though the evidence of P.W. 4 was sworn evidence, he was nevertheless a young person and in our opinion the jury should have been warned of the risk of accepting his evidence”. As Lord Goddard C.J. in Reg v Campbell [1956] 2 QB 432, 438 said: “... The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn, or of an adult”. In commenting on the need for corroboration of the evidence of child witnesses, Yong Pung How CJ said in Lee Kwang Peng v PP [1997] 3 SLR 278 that “Although s 136 of the Evidence Act provides that 'no particular number of witnesses shall in any case be required for the proof of any fact', it is a well-established rule of practice in our law that where evidence is given by a child witness, that evidence is not to be accepted at face value without some measure of corroboration”. See Goh Liong Lam & Ors v R 1958 MLJ 254 , Chao Chong & Ors v PP 1960 MLJ 238 and Ng Kwee Piow v R 1960 MLJ 278.

Matter of practice: Sworn evidence of a childThe nature of warning required in the case of the sworn

evidence of a child: Per raja Azlan Shah J in Tham Kai Yau v PP [1977] 1 MLJ 174 states “In cases involving child evidence of tender years, we are of the opinion that it would not be necessary to give a formal warning that it is dangerous to convict on the uncorroborated evidence of a child of tender years. It is sufficient if the judge adopts the prudent course of advising the jury to pay particular attention to or to scrutinise with special care, the evidence of young children and explains the tendencies of children to invent and distort. The objection in such a case as this, is not on the grounds of complicity, as in the case of an accomplice, or on the grounds of an oath against an oath, as in the case of a prosecutrix in a sexual offence against her, but on the ground of tendency of a child of tender years to confuse fantasy with reality”.

Matter of practice: Sworn evidence of a childA question then arises is whether a Judge sitting alone is

required to warn himself as he does the jury. If so, how can we tell? It was held by the Privy Council in the case of Chiu Nang Hong v. PP [1965] 31 MLJ 40 that the Judge sitting alone should have in his mind the risk of convicting without corroboration and he should make it clear that he has the risk in question in his mind. In other words the Judge’s mind upon the matter is required to be clearly revealed. In the recent case of Ng Yau Thai v. PP [1987] 2 MLJ 214/[1987] CLJ 358 the Supreme Court held that the mind of the trial Judge can be gathered from the contents of his judgement and nowhere else. In other words the warning should appear in the judgement or grounds of decision of the trial Judge. In both cases it was held that there is no magic formula and no set words which must be adopted to express the warning.

Evidence of an accomplice

(Keterangan rakan sejenayah)

Matter of practice: Evidence of an accompliceMatter of practice: Evidence of an accomplice (Keterangan

rakan sejenayah): Per Woodward Ag CJ in R v Lim Yam Hong [1919] 14 SLR 152 states “The statute law regarding accomplices is to befound in sections 114, illustration (b) and 133 of the Evidence Ordinance”. Section 133 provides “An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice”. (Seseorang rakan sejenayah adalah saksi yang kompeten terhadap orang tertuduh; dan sesuatu sabitan bukanlah tak sah disisi undang – undang semata – mata oleh sebab sabitan itu terbit dari testimony tak disokong yang diberi oleh seseorang rakan sejenayah)

Section 114 Illustration (b): An accomplice is unworthy of credit unless he is corroborated in material particulars. (bahawa seseorang rakan sejenayah sememangnya tidak boleh dipercayai melainkan jika disokong oleh butir – butir material).

Matter of practice: Evidence of an accomplice

The corroborative effect of these 2 sections is that while it is not illegal to convict a person on uncorroborated testimony of the accomplice, section 114(b) provides that a judge must caution himself of the dangers of convicting uncorroborated evidence of an accomplice.

Matter of practice: Evidence of an accomplice However, the principles to be acted on

by R v Baskerville [1916] 2 K.B. 658, where a very large number of previous decisions were cited and discussed, and this judgment may be regarded as the latest authoritative statement of the law. At page 663 it is said: “There is no doubt that the uncorroborated evidence of an accomplice is admissible in law. (See R.v. Atwood [1787] 1 Leach 464) BUT it has long been a rule of practice in common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence”. See also R. v. Stubbs [1855] Dears 555 & In re Meunier [1894] 2 Q.B. 415.

Matter of practice: Evidence of an accomplice In Daud bin Awang Ngah & Ors v PP

[1958] MLJ 168 it was stated that “There is no rule of law which demands that in every case where an accused person gives evidence which tends to incriminate a co-accused, the jury should be warned that it is dangerous to convict upon such evidence unless it is corroborated. Whether or not such a warning should be given to the jury is not a matter of law. It is a matter to be decided in the light of the circumstances of each individual case”.

In Tan Cheng Seng v R [1948] MLJ 148 it was stated that “The Court only considers it necessary to call attention to one point. At the hearing one of several co-accused gave evidence on his own behalf which gravely implicated another of the co-accused. It was contended on behalf of the latter that this evidence should have been treated as evidence of an accomplice, and required the same degree of corroboration”.

Matter of practice: Evidence of an accomplice The rules laid down by the judgment in R

v Baskerville [1916] 2 K.B. 658 may be briefly stated thus:-

1. The uncorroborated evidence of an accomplice is admissible, and a conviction founded on such evidence is not illegal.

2. But it is a rule of practice virtually equivalent to a rule of law that the presiding judge must warn the jury of the danger of convicting on such evidence.

3. It is also his duty to tell them that nevertheless they can legally convict on such evidence.

4. When it appears that the judge has not given the required warning, the Court of Appeal will quash the conviction.

5. The corroboration must be evidence which implicates the accused. Evidence tending merely to shew that a crime has been committed is insufficient.

Matter of practice: Evidence of an accomplice In Syed Jaafar v R [1948] MLJ

148 where this is an appeal against the conviction and sentence by the 2nd District Judge upon a charge of abetting the offence of criminal breach of trust in the theft of 21 bales (a large bundle or package) of cloth the property of the military. The only direct evidence that the appellant committed the offence was the evidence of Cherubal Shanker (P.W.7), who was an accomplice. Held: (3) that as there was therefore no adequate corroboration of the evidence of the accomplice, the conviction of the accused must be quashed.

Matter of practice: Evidence of an accomplice In Tay Choon Nam v R [1949] MLJ 157

where these are appeals by the three accused who were convicted by the District Judge, Singapore, on the 25th June 1948 of offences under the Prevention of Corruption Ordinance, No. 41 of 1937, s. 3(b). The first two accused were charged jointly with having corruptly given to a 2nd Lieutenant in the R.A.O.C. three separate amounts in cash, namely,$ 500 in November 1947, $ 1,000 in December 1947 and $ 500 in January 1948. The third accused was charged with abetment of these offences. At the conclusion of the case all three accused were convicted as charged and the learned District Judge sentenced the 1st accused to 9 months and the other two accused to 6 months, each. On appeal, one of the grounds of appeal was that the learned District Judge was wrong both in law and in fact in convicting the accused on the evidence of a witness, who was an accomplice. Held: (1) that it was clear from the judgment of the District Judge that he was fully aware of the danger of acting on the uncorroborated evidence of an accomplice and nevertheless acted on such evidence and therefore the conviction could not be interfered with.

Matter of practice: Evidence of an accomplice In Jegathesan v PP [1980] 1 MLJ 165

the appellant, an advocate and solicitor of the High Court of Malaya, was convicted of the offence of abetting one Mohd. Razali alias Ramli bin Awang (Ramli) in giving false evidence at a criminal trial, an offence punishable under sections 109 and 193 of the Penal Code and he was sentenced to 1 day’s imprisonment and a fine of $ 2,000. He appeals to the High Court against his conviction. The principal evidence against the appellant was that of “Ramli” but the learned President of the Session Court did not consider whether Ramli was an accomplice and whether his evidence was corroborated. Held: as the learned President had failed to consider whether the witness was an accomplice and as he had not advised himself of the dangers of convicting on the uncorroborated evidence of accomplices, the conviction was unsafe and must be quashed.

Matter of practice: Evidence of an accomplice In Seah Chay Tee v Public Prosecutor (1948)

MLJ 77 where in this case the appellant was charged with three others with possession of military goods contrary to S. 5 (1) of the Forces Proclamation 50. The evidence was that the four accused were in a car, stopped by the police, in which were found 2 wheels and 12 coils (A series of connected spirals), which were alleged to be military property. No attempt was made to prove that one or some or all of the accused had any control over or the power to dispose of the goods. The only evidence against the appellant was that of his co-accused. Held that there was no other evidence save that of his co-accused against the appellant. The evidence of a co-accused against his fellow accused is to be given even less weight than that awarded to the evidence of an accomplice, and requires stronger corroboration. There was no corroboration by untainted evidence and, legally speaking, one accomplice cannot corroborate another. The prosecution failed to make out a case and all accused should have been discharged at the close of the prosecution, nor can the evidence of the three co-accused support a conviction of the appellant.

Matter of practice: Evidence of an accomplice This accomplice rule only applies to cases where the accomplice is a prosecution witness. It does not apply to defence witness. (See Daud bin Awang Ngah & Ors v PP [1958] MLJ 168, 169-170 & Davies v DPP [1954] AC 378). In the case of Davies v DPP [1954] 1 All ER 507 was received locally in Re Soot Leot [1956] MLJ 54, 55-56, where in Davies it classify 3 types of accomplices:

Participes Criminis. Participants in a crime. They commit the crime together.

Receiver of stolen goods from the thief. When A has been charged with a specific offence on a particular

occasion. And evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such case the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it dangerous to accept it without corroboration.

Matter of practice: Evidence of an accompliceIn Public Prosecutor v Nomezam Apandy bin Abu Hassan

(No 2) [2008] 1 MLJ 68 Where it states: “In Malaysia, a person is an accomplice if he is a participles criminis — has participated in the commission of an 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. The particular facts and circumstances of each case play a pivotal part in resolving the issue of whether a witness is an accomplice. In the instant case, the witness was not an accessory after the fact. He did not play an active role in the crime. He was not a participes criminis and was not in law an accomplice. The witness evidence should thus be treated as the evidence of an ordinary witness, requiring no corroboration”.

Matter of practice: Evidence of an accomplice The issue of agent provocateur

(Undercover agent/ Penyamar sulit): Agent provocateur is not an accomplice. Traditionally, an agent provocateur (plural: agents provocateurs, French for “inciting agent”) is a person employed by the police or other law enforcement body to act undercover. There is no requirement of corroborative warning. However if the extent of participation is major and active, the court may want to scrutinise the evidence of an agent provocateur with care. In Teja Singh & Mohamed Nasir v PP [1950] MLJ 71, 74-76 where in this case the two appellants appealed against their conviction and sentence for abetment of bribery and bribery respectively. Held: Appeal dismissed: (1) that the police officers were at most agents provocateurs and not accomplices and that on the facts of this case the evidence of the police officers was properly received in evidence. See also the case of Public Prosecutor v Rames a/l Subramaniam [2008] 5 MLJ 820.

Identification evidence

(Keterangan identiti)

Matter of practice: Identification evidence Matter of practice: Identification evidence

(Keterangan identiti): In Reg v. Turnbull [1977] QB 224, where the four appellants were convicted of various offences. The prosecution case against them was based wholly or substantially on a number of visual identifications. On appeal against their convictions that the Court had been cautious enough before conviction them on identification evidence, the Court of Appeal held that the trial of the first two appellants having correctly followed the practice necessary in cases depending on identification, their appeals would be dismissed; however the practice not having followed in the trials of two other appellants, their appeals would be allowed. Before lying down the guidelines at p. 228 the Court of Appeal sought to state that rationale for doing so. The three appeals before their Lordships raised problems relating to visual identification in criminal cases. Such evidence could and had brought about miscarriages of justice in a number of cases recently. The number of such cases though small compared to the number in which evidence of visual identification had been proved to be satisfactory necessitated in the Court’s taking some steps to reduce the number as far as possible.

Matter of practice: Identification evidenceThe danger of miscarriage of justice occuring could be

reduced if the trial Judges summed up to the juries the following rules. The guidelines are as follows:

1. Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some references to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the Judge need not use any particular form of words.

Matter of practice: Identification evidence 2. The Judge should direct the jury to examine closely the

circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in anyway, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asked to be given particulars of such descriptions, prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Matter of practice: Identification evidenceIn PP v. Chan Choon Keon & Ors [1989] 2 MLJ

427, Faiza Thamby Chik JC states “In dealing with the evidence of visual identification, the court has to remind itself of the special need for caution before convicting the accused in reliance on the correctness of the identification. Conflicting pieces of evidence given by two important and vital prosecution witnesses, ie the investigating officer and the officer who conducted the identification parade, were specific weaknesses in the identification evidence for the prosecution. Moreover, the identification parade was not properly conducted”.

Matter of practice: Identification evidence In Tan Kim Hoo v PP [2007] 6 CLJ 557, the accused were charged under ss. 3

and 3A of the Firearms (Increased Penalties) Act 1971, and subsequently convicted and sentenced to death. This was their appeal against that decision. Amongst the ground advanced by accused was in respect of their identity as the perpetrators of the offence with which each was charged. It was submitted that the test identification parade had been badly conducted and that having regard to all the surrounding circumstances, it was unsafe to sustain the convictions based on identification evidence. Held (Dismissed the appeal) states “The issue of identity of each of the accused in the instant case was a question of fact and must be determined by a trial court like any other fact sensitive issue in accordance with well-established guidelines governing the judicial appreciation of evidence. The pertinent passages from the judgment under appeal showed that the learned judge appreciated the evidence placed before him and applied the correct legal tests to that evidence. He asked himself the right question and took into account all the relevant material. He was well aware of the danger of acting on evidence of identification and subjected the evidence on that issue to careful scrutiny. Having done all that, he found the evidence compelling and therefore acted on it. And he gave cogent reasons for so doing. Nothing more may fairly be expected of a trial judge in a case as this and, indeed, the direction by the learned judge on the issue of identification was admirable and beyond criticism”.

Sexual offences (Jenayah seksual)

Matter of practice: Sexual offences

“An easy allegation to make but difficult

to established/disproved/substantiate

/rebut”.

Matter of practice: Sexual offencesSexual offences (Jenayah

seksual): Thomson LP in speaking for the Federal Court in Din v PP [1964] MLJ 300 said that “The need for corroboration in such cases springs not from the nature of the witness but from the nature of the offence and added at page 301 “If however, she complains of having been raped, then both prudent and practice demand that her evidence should be corroborated”.

Matter of practice: Sexual offencesPenser-Wilkinson J in PP v

Mardai [1950] MLJ 33 at p 33: “Whilst there is no rule of law in this country that in sexual offences the evidence of the complainant must be corroborated,nevertheless it appears to me, as a matter of common sense, to be unsafe to convict in cases of this kind unless either the evidence of the complainant is unusually convincing or there is some corroboration of the complainant's story”.

Matter of practice: Sexual offencesLikewise, Murray-Aynsley

CJ in Koh Eng Soon v R [1950] MLJ 52 opined: “In this case the complainant was an adult. In cases of this kind corroboration is desirable though not technically essential. Where the case has been heard by a magistrate or a district judge the appellate court must be satisfied that the court below appreciated fully the desirability of having corroboration and was not under a misapprehension that something was corroboration which as a matter of law was not”.

Matter of practice: Sexual offences

It seems clear that the requirement for corroboration in cases of sexual offences also applies where the victim is male. This can be seen from the English case of R v Burgess (1956) 40 Cr App R 144.

Matter of practice: Sexual offences Roberts CJ’s in PP v Emran bin Nasir

[1987] 1 MLJ 166, he stated at p 171: “I warn myself that, on a charge of rape, it is dangerous to convict on the evidence of the complainant alone, since experience has shown that female complainants have told false stories for various reasons”. In England, this view is found in R v Henry, R v Manning (1968) 53 Cr App R 160. There, Salmon LJ said at p 153: “What the judge has to do is to use clear and simple language that will without any doubt convey to the jury that in cases of alleged sexual offences it is really dangerous to convict on the evidence of the woman or girl alone. This is dangerous because human experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all”.

Jennico Associates Sdn Bhd v. Lilian ThereraDe Costa & Anor [1998] 3 CLJ 583.

Allegation of sexual harassmentby boss…

Victim resign and claim for constructive dismissal…

Award was given by the Industrial Court to the victim…

Application made in the High Court for an order of certiorari to quash

the award of the Industrial Court…

Certiorari granted; decision of Industrial Court

quashed…

Reason: NO CORROBORATION…

NGO’s proposed: It is not necessary for evidence of

sexual harassment be corroborated

GE

NE

RA

L D

ISC

US

SIO

N

Other exception???

Previous statement (Pernyataan terdahulu)

Other exception: Previous statementPrevious statement (Pernyataan dahulu): Section 157 of EA

1950 provides “In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved”. (Bagi menyokong testimony seorang saksi, sesuatu pernyataan dahulu yang dibuat olehnya sama ada secara bertulis atau lisan, atas sumpah atau dalam percakapan biasa, berhubungan dengan fakta yang sama pada atau lebih kurang pada waktu fakta itu telah berlaku, atau dihadapan mana – mana pihak berkuasa yang kompeten di sisi undang – undang menyiasat fakta itu, boleh dibuktikan. This section provides that the former statement of a witness may be proved in order to corroborate his present testimony relating to the same fact.

It is expression of feeling. It is made shortly after the

incident.It must be made voluntarily

and spontaneously and not induced by leading, inducing

or intimidating questions. It is made to someone in authority, not necessarily the

police.It is the evidence of conduct

thus admissible under section 8.

It is an expression of knowledge.

It is the evidence for corroborative evidence under section 157 or for dying declaration under

section 32.

Complain (Aduan) Statement (Kenyataan)

Other exception: Previous statementThe important issue to be considers: Whether the previous

statement can amount to corroboration?The section states that the former statement made by the

witness may be used to corroborate his testimony in court. That is the literal meaning of the section. Some cases have interpreted the section in that manner. Other cases have; however, following R v Whitehead [1929] 1 KB 99, taken the view that a statement admitted under the section is not of any genuine corroborative value as a witness cannot corroborate himself. Corroborative evidence must be external to the witness. It must be from outside source and not from the witness himself. Lord Heward held that corroborative evidence must be external or not if witness repeats 25 times there will be 25 corroborations. It is thus necessary to cite the matter under two schools of thought:


Requirementsfor

corroboration


relevant and admissible.

The evidence in question

must be credible.


independent.

The evidence must

implicate the accused

First school of thought: (The statement amount

to corroboration)

Other exception: Previous statementPer Terrel J in R v Koh Soon Poh [1935] MLJ 120 states that

“Any former statements made by a witness and coming within section 157 of Ordinance No. 53 (Evidence), are admissible as corroboration of the evidence given by such witness at the trial”. In PP v Samsul Kamar Bin Mohd Zain [1988] 2 MLJ 252, KC Vohrah states “I think counsel is right in bringing this issue of admissibility first before calling the police officer who recorded the statement from the accused to give evidence and then raising the issue, though he has certainly caught the prosecution by surprise. That a former statement of a witness may be proved in court to corroborate his testimony as to the same facts provided the former statement relating to the same facts was made by him at or about the same time when the facts took place, or before any authority legally competent to investigate the facts is dear from section 157 of the Evidence Act”.

Other exception: Previous statement In PP v Teo Eng Chan [1988] 1 MLJ 156 “Former statement by a witness,

complying with the requirements of section 159 of the Evidence Act, is corroborative of the witness and goes beyond showing consistency as it does in English law”. In Liew Kim Yong v PP [1989] 3 MLJ 323 the appellant was convicted of raping the complainant and of abetting the rape of the complainant by another man. The appellant was convicted on both charges and sentenced to seven years imprisonment and six strokes of the cane on the charge of rape, and seven years imprisonment on the abetment charge, both sentences to run concurrently. He appealed against both his conviction and his sentence. The appellant appealed against sentence on the grounds that there had been no violent assault, no weapon used, no threats and the relationship between the appellant and the complainant prior to the offence had been pleasant. Held: dismissing the appeals against conviction and sentence: (6) A plain reading of section 159 of the Evidence Act showed that the complainant's complaint to her sister over the phone and to her mother and sister were admissible as corroboration of the complainants own evidence. This evidence not only confirmed in material particulars that the complainant had been raped, but also that the appellant had raped her. (See also Lim Baba v PP [1962] MLJ 201)

Second school of thought:

(The statement does not amount to corroboration)

Other exception: Previous statement Ong J said in Mohamed Ali v PP [1962] MLJ 230 that “It will not be

out of place here to say a few words about s. 157 of the Evidence Ordinance. Admissibility of a previous statement under that action must not be confused with the weight to be given to it. Corroboration, strictly speaking, means independent corroboration as explained in R v. Baskerville [1916] 2 KB 658. In my opinion true corroboration by independent evidence from an extraneous source should be distinguished from "corroboration" as it appears in s. 157, which rests on the principle that consistency between a previous statement by a witness and his present evidence may afford, some ground for believing him. The value of such a statement as corroboration may be infinitesimal (small), as in the majority of cases it is. On the other hand, by reason of the abundance of detail it may contain as to the facts and circumstances surrounding any relevant transaction, it may be capable of being cross-checked for truthfulness against other relevant evidence, in which case, of course, it may be effective corroboration, but only because it has been shown to be true”.

Other exception: Previous statementIn Chiu Nang Hong v PP [1965] 1 MLJ 40 the Privy

Council observed that corroboration msut come from an independent source.

In Ah Mee v PP [1967] 1 MLJ 220, Ong FJ said “With respect, corroboration in the legal sense connotes some independent evidence of some material fact which implicates the accused person and tends to confirm that he is guilty of the offence: see Clynes [1960], 44 Cr App R 158, 161. Consistency is not such corroboration and s. 157 of the Evidence Ordinance should be read in the light of my exegesis thereof in the case of Mohamed Ali v PP [1962] MLJ 230”.

Other exception: Previous statementIn Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119,

Raja Azlan Shah FJ said that “Although the previous statement made under section 157 is admissible as corroboration, it constitutes a very weak type of corroborative evidence as it tends to defeat the object of the rule that a person cannot corroborate himself”.

Gopal Sri Ram in Lim Guan Eng v PP [1998] 3 MLJ 14 reviewed the law relating to corroboration. He came to the view that corroboration must be external to the witness or not if a witness repeats it 100 times, there will be 100 corroborations. It is a basic common law principle that evidence requires corroboration. It does not remove its taint by repetition, notwithstanding section 157.

Other exception: Previous statementIn Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ

401, the Federal Court reiterated the principle that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.

In Aziz Mohd Din v PP [1996] 5 MLJ 473 Augustine Paul JC said that a statement rendered admissible by section 157 of the Act cannot be treated as corroboration of evidence.

In PP v Paneerselvan [1991] 1 MLJ 106 Edgar Joseph Jr J in ruling that a pervious statement was technically admissible excluded it as corroboration under section 157. It can therefore be taken to be settled law that a previous statement rendered admissible by this section cannot constitute evidence of corroboration as popularly understood.

Third school of thought ???

Other exception: Previous statement

In Morgan a/l Perumal v Ketua Inspektor Hussein Bin Abdul Majid [1996] 3 MLJ 281 Abdul Malik Ishak J, after reviewing the cases reffered earlier, said that a previous statement gives rise to a strong assumption of consistency.

In YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2 MLJ 621 Mahadev Shankar JCA said that a pervious statement could only be used to show consistency or to contradict testimony of a witness.

In PP v Dato’ Seri Anwar Bin Ibrahim (No 3) [1999] 2 MLJ 1 Augustine Paul J said that “The corroboration set out in section 157 is only for the purpose of showing that the witness is consistent”.

In Ariyadasa v The Queen [1966] 68 NLR 257 TS Fernando J said: “The corroboration that s. 157 contemplates is not corroboration in the conventional sense in which the term is used in courts of law, but in the sense of consistency in the conduct of the witness tending to render his testimony more acceptable”.


PONDERANTUR

NON

NUMERANTUR

MATTER OF

LAW

MATTER OF

PRACTICE/PRUDENT

EXCEPTIONS

UNSWORNEVIDENCE

OF ACHILD

SEDITIOUS ACT

ENTRIES IN BOOKS

OF ACCOUNT

SEXUAL OFFENCES

SWORN EVIDENCE

OF A CHILD

IDENTITYEVIDENCE

EVIDENCEOF AN

ACCOMPLICE

OTHEREXCEPTION

PREVIOUS STATEMENT

FINISH…



PRESUMPTIONS

CORROBORATION

ESTOPPEL

FINISH

FINISH

FINISH


PRIVILEGES

EXAMINATION OF

WITNESS

STANDARD &

BURDEN OF PROOF

Estoppel(Estopel)

ESTOPPEL:THE GENERAL

PRINCIPLES

ESTOPPELBY

RECORD

ESTOPPELBY

CONDUCT

ESTOPPELBY

DEED

RESJUDICATA

AUTREFOIS ACQUIT

& AUTREFOIS

CONVICT

CANNOT PREVENT STATUTORY

BODY FROM EXERCISING

ITS DUTY

CANNOTAGAINST STATUTE

IMMOVABLEPROPERTY

CONTINUENCEOF

TENANCY

Estoppel

Estoppel: The General principles.

Estoppel: The general principle. Estoppel is a legal doctrine

recognized both at common law and in equity in various forms. This term appears to come from the French estoupail or a variation, which meant “stopper plug”, referring to placing a halt (stop) on the imbalance of the situation. The term is related to the verb “estop” which comes from the Old French term estopper, meaning “stop up, impede (hold up)”. Note the similarity between the English terms “estop” and “stop”.

Estoppel: The general principle.The doctrine of estoppel: Per Choor Singh J in

Industrial & Commercial Realty Co Ltd v Merchant Credit Pte Ltd [1980] 1 MLJ 208 states “The doctrine of estoppel has been explained by Lord Denning in his book, The Discipline of the Law, at page 217: Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so…”

Estoppel: The general principle.

Gopal Sri Ram JCA said in Teh Poh Wah v Seremban Securities Sdn Bhd [1996] 1 MLJ 701 that “It is a flexible doctrine by which courts seek to do essential justice between litigating parties”.

Boustead Trading (1985) Sdn Bhd v Arab – Malaysian Merchant Bank Bhd [1995] 3 MLJ 331 states “The time has come for this court to recognize that the doctrine of estoppel is a flexible principle by which justice is done according to the circumstances of the case. It is a doctrine of wide utility and has been resorted to in varying facts patterns to achieve justice. Indeed, the circumstances in which the doctrine may operate are endless”.

Estoppel: The general principle.The true nature of the doctrine in this context is that stated

by Lord Russell of Killowen in Dawsons Bank v Nippon Menkwa Kabushiki Kaisha LR 62 IA 100 at p 108: “Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action”.

Burden of proving estoppel: The burden of proving estoppel is on the person who is relying on it as a defense. (See Kerajaan Malaysia v Mohd Mokhtar Bin Ali [1995] 4 MLJ 601.

Estoppel: The general principle.

“He who seeks equity must come with clean hands”

Estoppel: The general principle.Per Abdul Hamid Embong JC in Kerajaan Malaysia v

Mohd Mokhtar Bin Ali [1995] 4 MLJ 601 made reference to the case of Liew Ah Hock v Malayan Railway [1967] 1 MLJ 53 , Winslow J said: “Next, the authors (referring to Spencer Bower and Turner in The Law Relating to Estoppel by Representation) discuss a further proposition, to wit, that he who raises an equitable estoppel must do equity himself: otherwise equity will not assist him. The abovementioned maxim and similarly he who comes into equity must come with clean hands, require one seeking this remedy not to be guilty of improper conduct in regard to the subject matter of litigation. The defendant’s own conduct here left him wanting (not good enough) in seeking relief in equity”. In this case the court states that “I find that the defendant had not performed his part of the agreement”.

Syarikat Batu Sinar Sdn Bhd v UMBC Finance Berhad

[1990] 3 MLJ 468. (See also Teo Kim Huatt v

Aetna Universal Insurance Bhd [2002] 2 CLJ 147)

ESTOPPELBY

RECORD/JUDGMENT ESTOPPEL

/CAUSE OF ACTION ESTOPPEL/ISSUE ESTOPPEL

SECTION 40 -44

ESTOPPELBY

REPRESENTATION/CONDUCT

/ IN PAISSECTION 115

ESTOPPELBY

DEED/TENANCY ESTOPPEL

SECTION 116

Types of estoppels

Estoppel by record/Judgment estoppel/Issue estoppel/Cause

of action estoppel (Estopel melalui rekod)

Sections 40 – 44 of EA 1950

Estoppel by record: Sections 40 - 44Estoppel by record/ issue estoppel (ss 40-44): Sections

40 to 44 of the Act deal with the relevancy of previous judgments, orders and decrees. Section 40, 41, and 42 are subject to sections 43 and 44 of the Act. Section 40 which deals with the doctrine of res judicata relate to the existence of a previous judgment, order or decree which by law prevents any court from taking cognizance (to take notice) of subsequent suit. It renders the previous judgment, order or decree relevant for that purpose. It must be noted that the section prescribes that the previous judgment becomes relevant only when there is a law which prevents any court from taking cognizance of such judgment.

ESTOPPELBY

RECORD

CIVIL CASES:RES

JUDICATA

CRIMINAL CASES:AUTREFOIS ACQUIT

& AUTREFOIS CONVICT

Estoppel by record: Sections 40 - 44Specific laws for the purpose of the section: There are specific

laws for the purpose of the section to allow it to operate in both civil and criminal cases.

a) Law in respect of civil cases: The power of the court to dismiss or stay proceedings where the matter in question is res judicata between the parties is provided by paragraph 11 of the schedule to the Courts of Judicature Act 1964 and paragraph 1 of the third schedule to the Subordinate Courts Act 1948. Under Order 14 Rule 14 (1) of the Subordinate Courts Rules 1980 and the corresponding Order 18 Rule 8 (1) of the Rules of the High Court 1980, the defense of res judicata may be pleaded for the purpose of this section. The principle of res judicata: Res judicata or res iudicata (Latin for a matter [already] judged) is, in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.

Estoppel by record: Sections 40 - 44 b) Law in respect of criminal cases: Section 302 (i) of the Criminal

Procedure Code provides for the plea of autrefois acquit or autrefois convict whereby a person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 166 or for which he might have been convicted under section 167 of the said Code. It has been said that the doctrine of res judicata occupies the same place in civil law as the plea of autrefois does in criminal (Double jeopardy) (See Connelly v Director of Public Prosecutions [1964] 2 All ER 401).

Per Lord MacDermott in Sambasivan v PP [1958] MLJ 145 states “…it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim res judicata…is no less applicable to criminal than to civil proceedings”. See also PP v Lee Siew Ngock [1966] 1 MLJ 225.

Estoppel by record: Sections 40 - 44Distinction between res judicata and estoppel: Generally

speaking, res judicata is a matter of procedure while estoppel is a matter of evidence.

Under the doctrine of res judicata where a matter has been litigated between the parties to a final decision that decision cannot be questioned and the matter decided cannot be re-opened. Res judicata has also been referred to as “estoppel by record”. On the other hand, estoppel by record is something which in certain circumstances makes certain evidence inadmissible. Per Thomson CJ in Leong Cheong Kweng Mines Ltd v Kok Hoong [1962] MLJ 224 states

“At this point I would emphasise that the question is in its essence one of estoppel and not one of res judicata. Generally speaking, res judicata is a matter of procedure while estoppel is a matter of evidence. The dichotomy (splitting), of course, is not complete in the logical sense. Res judicata, a thing which has been adjudged, may in certain circumstances give rise to an estoppel…”

Estoppel by record: Sections 40 - 44 Cause of action estoppel and issue estoppel: The expression estoppel by record has

now disappeared and res judicata is now described in its true and original form as cause of action estoppel. The doctrine has further extended to what is known as issue estoppel. Per Lord Guest in Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1961] 1 AC 853 states

“As originally categorized, res judicata was known as estoppel by record. But as it is now quite immaterial whether the judicial decision is pronounced by a tribunal which is required to keep a written record of its decisions, this nomenclature (categorization) has disappeared and it may be convenient to described res judicata in its true and original form as cause of action estoppel. This has long been recognized as operating as a complete bar if the necessary conditions are present. Within recent years the principle has developed so as to extend to what is now described as issue estoppel, that is to say, where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam”.

• Estoppel per rem judicatam is a defence that bars a party from litigating a specific issue that has been decided in a prior separate action. The application of the doctrine of issue estoppel can be seen in cases such as Mensa Mencantile (Far East) Pte Ltd v Eikobina (M) Sdn Bhd [1991] 2 MLJ 258; Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd [1984] 2 MLJ 105; Kok Hoong v Leong Cheong Kwang Mines Ltd [1964] MLJ 49; In Re Lim Leng Cheak, Decd; Lim Eow Thoon v Lim Keng Chuan [1969] 2 MLJ 228; and Superintendent of Pudu Prison v Sim Kiw Chan [1986] 1 MLJ 494.

Estoppel by record: Sections 40 - 44Conditions necessary to maintain a plea of res judicata: In order

to successfully maintain a plea of res judicata certain conditions must be satisfied. They are generally stated by Gill J in Lee Sem Yoong v Leong Yoong [1967] 2 MLJ 86 namely 1)former suit2)final judgement

“For the doctrine of res judicata to apply, a defendant has to show that there was a former suit between the same parties for the same matter and upon the same cause of action, and also that the matter directly and substantially in issue has been heard and finally decided by the court which heard it”. See also Xiamen International Bank v Sing Eng (Pte) Ltd [1993] 3 SLR 228.

The previous judgment must have been a final judgment: See cases OCBC Bank (M) Bhd v Kredin Sdn Bhd [1997] 2 MLJ 372; Tengku Azmi Bin Tengku Yusof v Tengku Ahmad Bin Tengku Abdul Ghaffar [1982] 1 MLJ 78; Cheng Hang Guan v Perumahan Farlim (Penang) Sdn Bhd [1988] 3 MLJ 90; & Chua Weng Meng v Wong Kok Kong [1999] 2 MLJ 416.

Estoppel by Estoppel by representation/conduct representation/conduct

(Estopel melalui (Estopel melalui representasi/perbuatan)representasi/perbuatan)

Section 115 of EA 1950.Section 115 of EA 1950.

Estoppel by conduct: Section 115Estoppel by representation/conduct/in pais:

Section 115 states:

“When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing”.

Estoppel by conduct: Section 115This section deal with estoppel by conduct and provides that when a person has by his (a) declaration, (b) act, or (c) omission,

intentionally caused or permitted another person (i)to believe a thing to be true and (ii)to act upon such belief,

then neither he or his representative shall be allowed to deny the truth of that thing in any suit or proceeding between himself and such person or his representative.

Estoppel by conduct: Section 115

“Allegans contraria non est audiendus”

He is not to be heard who alleges things

contradictory to each other


This type of estoppel was described in Pickard v Sears [1837] 6 Ad & El 469, 474 which was referred to by Raja Azlan Shah FJ in Public Textiles Bhd v Lembaga Letrik Negara [1976] 2 MLJ 58 as

“That, where one, by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring (claim) against the latter a different state of things as existing at the same time”.

This section can be further illustrated by analyzing three other leading local cases:

ESTOPPEL BY DECLARATION• In Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ

77, The plaintiff is the Commissioner of the Municipality of the Town and Fort of Malacca. The Municipality are the owners of premises known as Quarters No. 116 Jalan Bukit China. Malacca (hereinafter referred to as the quarters).

• The defendant was an employee of the plaintiff and the said quarters were allotted (given) to him by reason of his employment with the Municipality. The defendant joined service with the Municipality on 1 July 1938.

• According to the record of his service, he was twenty five years of age at that time. He had come from India with his father and brother. He did not have with him any certificate of birth at that time. The defendant questions the veracity of the entry made in Record of Service Book showing his age as twenty five in 1938.

• It is, however, not conceivable how such an entry could have been made unless the defendant himself represented to his employer at the time of his employment that he was twenty five. He could serve the Municipality up to the age of fifty five.

• If he was twenty five in 1938, he must have been born in 1913 which meant that he could remain in the employment of the Municipality only up to 1968. The plaintiff filed this action on 2 September 1970 claiming possession of the quarters, damages for unlawful occupation thereof and costs.

• The only plea taken up in the defence was that as the defendant was born in 1922, he could not be evicted, that his retirement was wrongful, that he was entitled to remain in occupation of the quarters until he reaches the age of fifty five and that he could not be asked to pay a rental of $ 20 per month or any sum whatsoever as from 1 January 1969.

Held: (1) the defendant had not discharged the onus of showing that the entries in the Record of Service were incorrect; (2) the defendant was estopped from denying that he was twenty-five years of age at the time of his employment as stated in the Record of Service. The judge states:“Again the defendant is estopped from denying he was twenty five years at the time of his employment. He was employed on the faith induced by him that he was twenty five. In Halsbury’s Laws of England (Third Edition) volume 15, page 175, paragraph 344, the position is put in these words: “When one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced”. The defendant having failed to discharge the onus cast on him and having held that he was a licensee, there will be an order for his ejectment and an order that he pay to the plaintiff damages at the rate of $ 20 per month from 1 May 1969 as also the costs of this suit.

V Veeriah v GM, KTM• In V Veeriah v GM, KTM [1974] 1 MLJ 201, the

plaintiff was an employee of the defendant. From his record of service his date of birth was stated as June 26, 1916. Accordingly he was retired from the service of the defendant pursuant to the Pensions Ordinance on June 26, 1971.

• The plaintiff sought a declaration that he had been prematurely and unlawfully retired before reaching the age of fifty five and for a declaration that on June 26, 1971 his correct age was fifty one years of age.

• The following facts were agreed: the plaintiff was in fact born on June 2, 1921 and not on June 26, 1916. His Identity Card, E.P.F. Membership Card and Citizenship Certificate all showed his date of birth as June 2, 1921.

• The plaintiff had taken steps to obtain proof that he had in fact been born on June 2, 1921 and to have his date of birth on his service record card altered as permitted by the General Orders governing his employment.

• The defence contention was that by virtue of section 115 of the Evidence Act the plaintiff was estopped from proving his true date of birth.

Held: (1) the evidence showed that even before the date of intended retirement the defendant already believed or had reason to believe that the plaintiff was not in fact born on June 26, 1916; (2) for the defendant to succeed on the defence of estoppel, there must be ignorance on his part as to the real date of birth of the plaintiff. When both parties have equal means of knowledge of the fact there can be no estoppel; (3) there can be no estoppel where the truth of the matter appears as it did in the present case on the face of the proceedings.

Muthiah v Lee Kor Fan Following Muthiah v Lee Kor Fan [1966] 1 MLJ 105 one of the necessary elements of a valid

estoppel by representation is that the representation should be of a nature to induce,

i.e. the representation should be made with the intention of inducing the person pleading estoppel to alter his position to his detriment. In this case no evidence had been adduced to prove such intention or from which such intention could be inferred.

Sarkar on Evidence, Twelfth Edition, at page 1033 states that there are seven prerequisites to bring a case within the scope of estoppel as defined in section 115. It was contended by the defence that all these prerequisites had been fulfilled, namely:

i. There must be a representation by a person or his authorised agent to another in any form -- a declaration, act or omission.

ii. The representation must have been of the existence of a fact and not of promises de futuro or intention which might or might not be enforceable in contract.

iii. The representation must have meant to be relied upon, i.e. it must have been made under the circumstances which amounted to an intention causing or permitting belief in another. The proof of the intent might be direct or circumstantial, e.g. by conduct.

iv. There must have been belief on the part of the other party in its truth.

v. There must have been action on the faith of that declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment.

vi. The misrepresentation or conduct or negligence must have been the proximate cause of leading the other party to act to his prejudice.

vii.The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of things or had means of knowledge, there can be no estoppel.

SCOPE & LIMITATION


BODY FROM EXERCISINGITS DUTY


Estoppel by conduct: Section 115 Estoppel cannot be set up to prevent a

statutory body to perform its statutory duty: In Public Textile Bhd v LLN [1976] 2 MLJ 58 where the respondent Board had contracted to supply electricity to the appellants. By mistake it had considerably undercharged the appellants and they claimed the amount of $ 84,624.01 cents from the appellants. The High Court gave judgment in favour of the Board, the learned trial judge holding that the Board was not estopped from claiming the amount although the appellants had utilised the accounts rendered by the Board for the purpose of costing their products. The appellants appealed to the Federal Court. Held, dismissing the appeal: (2) the plea of estoppel by representation cannot be pleaded against a public corporation on which there is imposed a statutory duty to carry out certain acts in the interest of the public.

Estoppel by conduct: Section 115 In Maritime Electric Co Ltd v General Dairies Ltd [1937]

1 All ER 748, the appellant company, a public utility company, within the meaning of the Public Utilities Act of New Brunswick, sold and delivered electric current to the respondent dairy company, which, to the knowledge of the appellant company, used it in the manufacture of certain milk products. The respondent company paid to the vendors of the cream a price depending, amongst other things, on the cost of manufacture of its products, of which the cost of the electrical energy consumed was a factor. Owing to a mistake on the part of the appellant company’s employees the amount of current supplied to the respondent company was wrongly determined on the meter dial readings, and as a result monthly accounts were rendered by the appellant company, and paid by the respondent company for only one-tenth of the current actually supplied. The respondent company, relying upon the correctness of the accounts as rendered, paid to the vendors of the cream used larger sums of money than it would or could have paid for the cream if the proper accounts for electric energy supplied had been furnished. By the Public Utilities Act, a public utility company is strictly limited as to the charges which it can make, and a public utility company charging or receiving for any service rendered a greater or less compensation than that prescribed by the Act is liable to a penalty. Held: the respondent company could not rely upon an estoppel which would have the effect of defeating the unconditional statutory obligation imposed by the Public Utilities Act. The duty put upon both parties by the statute could not be avoided or defeated by a mistake.

Estoppel by conduct: Section 115 In The Queen v Blenkinsop [1892] 1 QB 43 where it was held that the money sought to be

recovered was arrears within the meaning of the section, and that the overseers (manager) were not estopped from recovering it by reason of the delivery of the incorrect demand notes by their predecessors.

In Commissioners of Customs and Excise v. Hebson Ltd. [1953] 2 Lloyds Rep. 382 where it was held that “An officer having a public duty cannot be deprived of his duties and powers, or cannot be prevented by any estoppel from performing their duties and powers which he has a statutory or other public obligation to exercise in the general public interest”.

In Kok Hoong V. Leong Cheong Kweng Mines Ltd. [1963] 1 LNS 61 the Privy Council had occasion to consider Maritime Electric Co.’s case with reference to the plea of estoppel in the face of a statute and explained it in this way (p. 308): “Thus a corporation on which there is imposed a statutory duty to carry out certain acts in the interest of the public cannot preclude (prevent) itself by estoppel in pais from performing its duty and asserting legal rights accordingly." and Gives a 'statutory obligation of an unconditional character' it is not open to the Court to allow a party bound by the obligation to be barred from carrying it out by the operation of an estoppel. Subsequent decisions show that it has been extended to cover cases where the statute lays down a duty to exercise a discretion which is intended to be performed or exercised for the benefit of the public: see Southend-of-Sea Corp. v. Hodgson (Wickford) Ltd. [1962] 1 QB 416. Smith v. Attorney General [1973] 2 NZLR 393.


Whether there can be estoppel against a statute: Per Grimberg JC in Foo Loong Lithographer Pte Ltd v Mun Hean Realty Pte Ltd [1989] 2 MLJ 80 states “I am also obliged to reject the plea of estoppel, and the related plea of waiver, because it is a general principle that the doctrine of estoppel cannot be invoked to render valid a transaction which the legislature has, on grounds of general public policy, enacted ... to be invalid ...”:

In Bradshaw v M'Mullan [1920] 2 IR 412, the House of Lords held that a contract was void as being contrary to a provision of the Local Government (Ireland) Act 1898. The defendant relied upon certain events as giving rise to an estoppel. The plea was rejected. In the course of his speech, Lord Shaw of Dunfermline said: Further, my Lords, I desire to make this observation. I do not see my way to sanction the application of this specific plea of res judicata, or the more general plea of estoppel, to any transaction such as the present, which is in plain defiance of statutory injunction. Such a plea, if allowed, would place the Courts of the country in open conflict with the determination of the Legislature.

In Oversea Chinese Banking Corp Ltd v eastern Auto Co Ltd [1961] MLJ 300, it was held that the parties cannot defeat the provisions of the Control Rent Ordinance by estoppel.

In Puran Singh v Kehar Singh [1939] MLJ 71 it was stated that “that there can be no estoppel against a statutory provision in an Enactment which legislates on a matter of general interest”.

Estoppel by deed/Tenancy estoppel

(Estopel melalui perjanjian penyewaan)

Section 116 of EA 1950.

Estoppel by deed: Section 116

Estoppel by deed/Tenancy agreement: Estoppel by deed is as described by Baker v Dewey [1823] 1 B & C 704 as “A party who executes a deed is estopped in a court of law from saying that the facts stated in the deed are not truly stated”. (See also Thong Guan Co (Pte) Ltd v Lam Kong Co Ltd (No 2) [1998] 3 CLJ 964.

Section 116 provides for Estoppel of tenant and of licensee of person in possession which states “No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the license of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the license was given”.

Estoppel by deed: Section 116Principle and scope: This

section is in two parts. The first part relates to the rule of estoppel between a tenant and landlord and the second part between a licensee and licensor. The section provides that the tenant or licensee is estopped from denying the title of the landlord or licensor. Under both parts of the section, a person is estopped from denying the title of person from whom he accepted tenancy or license so long as he remains in possession under it only.

Estoppel by deed: Section 116 In the case of Terunnanse v Terunnanse [1968] AC 1086 the Board

had to construe section 116 of the Ceylon Evidence Ordinance, which is also in the same terms as the corresponding section in the Indian Act. Their Lordships pointed out that the Indian Evidence Act 1872, which was drawn by Sir James Stephen, was intended to reproduce in a concise form the English law of evidence as it then existed and that its provisions should if possible be construed in a manner consistent with the English law. There is no doubt that under English law as it stood in 1872 and stands today there was and is no difference as regards the matter in hand between a tenant and a licensee. Each is estopped from denying the title of the person from whom he accepted the tenancy or licence so long as he remains in possession under it but each is permitted to deny that title as from the time that he is no longer in possession under it.

In Doe d Higginbotham v Barton 11 A & E 307, 312, 113 ER 432, 434 in which Lord Denman C.J. said: “... the tenant cannot deny that the person by whom he was let into possession had title at that time…”.

Estoppel by deed: Section 116 Meaning of the words during the continuance of the tenancy in the

section: Per Raja Azlan Shah Ag CJ in Singma Sawmill Co Sdn Bhd v Asian Holding (Industrialized Buildings) Sdn Bhd [1980] 1 MLJ 21 states “In our view, the relationship of landlord and tenant can be created only by a contract, valid according to the law subsisting at the time of its execution or can be created or continued by operation of law. Now section 116 of the Evidence Act enacts that no tenant of immovable property shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. The words during the continuance of the tenancy are important and make it clear that where there is no legal tenancy, the provisions of the section are not applicable. That being so, where the contract of tenancy has come to an end by effluxion of time, there is no legal contract of tenancy and therefore there can be no question of the continuance of such tenancy. The tenant in consequence can later challenge the status of the landlord, and he cannot be deemed to be estopped from denying that the title of the landlord has come to an end”.

Estoppel by deed: Section 116 Meaning of the words during the continuance of the tenancy in the section: The Federal

Court in Tay Cheo v Chow Ngia [1967] 1 MLJ 281 said that while a tenant is estopped from denying the landlord’s title he could, if he wished, challenge the validity of the tenancy agreement on the ground of fraud, misrepresentation or probable mistake in order to show that he and the landlord do not stand in the relationship of landlord and tenant. The tenant cannot contend that the agreement was void because because the landlord had no title to the land.

As Augustine Paul JC said in Tan Chee Lan v Dr Tan Yee Beng [1997] 4 MLJ 170 that “Once s 116 becomes applicable the tenant is estopped from denying his landlord's title for so long as he is in possession of the premises. This is so even though the landlord’s title is merely equitable, and therefore at law a nullity (an act that has no legal force) (see Board v Board (1873) 9 LR QB 48).

The estoppel also operates in favour of a lessor who has no title whatsoever (see Tedman v Henman [1893] 2 QB 168). Where a lessor, without any legal estate or title, demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground. In other words, a tenant cannot deny his landlord’s title nor can the lessor dispute the validity of the lease (see Cuthbertson v Irving (1859) 4 H & N 742)”.

The doctrine of tenancy by estoppel applies both to the tenant and the landlord (See Methani v Perianayagam [1961] MLJ 5).

Estoppel by deed: Section 116Application of the section: Section 116 Evidence Act 1950 reads

thus: No tenant of immovable property ... shall during the continuance of the tenancy be permitted to deny that the landlord ... had at the beginning of the tenancy a title to the immovable property…”

In Hirabai AIR 1955 Nag 234, the question posed for decision was whether a tenant could deny the title of his landlord after the termination of the tenancy. The court in delivering its judgment quoted with approval the following passage by Mooker J in Bhaiganti Bewa v Himmat AIR 1917 Cal 498 “Enjoyment by permission is the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. Two conditions then are essential to the existence of the estoppel, first, possession, secondly permission; and when these conditions are present, the estoppel arises, and the estoppel prevails so long as such possession continues”.

Estoppel by deed: Section 116Next is Annamalai Chettiar AIR 1970

Mad 57 , where it was stated that: Section 116 of the Evidence Act clearly says that the tenant is estopped from denying, during the continuation of the tenancy, that the landlord had title at the commencement of the tenancy. Possession and permission being established, estoppel would bind the tenant during the continuation of tenancy and until he surrenders his possession...

Estoppel by deed: Section 116Singma Sawmill Co Sdn Bhd v Asian Holdings (Industrialised

Buildings) Sdn Bhd [1980] 1 MLJ 21 where Raja Azlan Shah Ag CJ (Malaya) (as his Majesty then was) said [at p 24]: Now s 116 of the Evidence Act enacts that no tenant of immovable property shall, during the continuance of the tenancy be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. The words during the continuance of the tenancy are important and make it clear that where there is no legal tenancy, the provisions of the section are not applicable. That being so, where the contract of tenancy has come to an end by effluxion of time, there is no legal contract of tenancy and therefore there can be no question of the continuance of such tenancy. The tenant in consequence can later challenge the status of the landlord, and he cannot be deemed to be estopped from denying that the title of the landlord has come to an end.

Estoppel by deed: Section 116In Wee Tiang Yap v Chan Chan Brothers [1986] 1 MLJ 47,

Hashim Yeop Sani FJ (as he then was) in a supporting judgment said [at p 51]: A tenant cannot deny that the person by whom he is let into possession had title at that time; but he may show that subsequently such title is determined by transfer or otherwise. This rule which has been well established in many English cases was adopted by this court in Fatimah v Moideen Kutty [1969] 1 MLJ 72.

In Fatimah v Moideen Kutty, it was held that notwithstanding the doctrine of estoppel a tenant may plead that the title of the landlord has come to an end. It must be borne in mind that the relationship of landlord and tenant can be created only by a contract, valid and legal according to the law subsisting at the time of its execution.

ESTOPPEL:THE GENERAL

PRINCIPLES

ESTOPPELBY

RECORD

ESTOPPELBY

CONDUCT

ESTOPPELBY

DEED

RESJUDICATA

AUTREFOIS ACQUIT

& AUTREFOIS

CONVICT


BODY FROM EXERCISING

ITS DUTY


IMMOVABLEPROPERTY

CONTINUENCEOF

TENANCY

Estoppel

FINISH…



class…



PRESUMPTIONS

CORROBORATION

ESTOPPEL

FINISH

FINISH

FINISH

FINISH


PRIVILEGES

EXAMINATION OF

WITNESS

STANDARD &

BURDEN OF PROOF

WITNESS

MARITALCOMMUNICATION

PRIVILEGE

LEGAL PROFESSIONAL PRIVILEGE

CROWN/ STATE/ PUBLIC INTEREST IMMUNITY

PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

Witness(Saksi)

Witness• Witness (Saksi): Section 3 of EA 1950

provides evidence includes (Keterangan meliputi) (a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence (Segala pernyataan yang dibenarkan atau dikehendaki oleh mahkamah dibuat di hadapanya oleh saksi-saksi berhubungan dengan perkara-perkara fakta yang disiasat: pernyataan sedemikian disebut keterangan lisan) (b) all documents produced for the inspection of the court: such documents are called documentary evidence (Segala dokumen yang dikemukakan bagi pemeriksaan mahkamah: dokumen-dokumen sedemikian disebut keterangan dokumen). First the witness must be a relevant witness. (See section 5 of EA 1950)

Witness• Section 118 of EA 1950 provides for “Who may testify” (Siapa

boleh memberi keterangan). “All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. (Semua orang adalah kompeten memberi keterangan melainkan jika mahkamah berependapat bahawa mereka tidak boleh memahami soalan –soalan yang dikemukakan kepada mereka atau tidak dapat memeberi jawapan yang rasional kepada soalan-soalan itu oleh kerana umurnya terlalu muda, terlalu tua, kerana penyakit, sama ada penyakit tubuh atau penyakit otak, atau oleh apa-apa sebab lain yang seumpamanya)• Explanation: A mentally disordered person or a lunatic is not

incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.

Witness• Principle and scope: This section

deals with the competency of witnesses. The section provides that all persons shall be competent to testify except those who are (a) unable to understand the questions put to them, or (b) unable to give rational answers to those questions due to tender age, extreme old age, disease, whether of body or mind or any cause of the same kind. • Per McElwaine CJ in Ghouse Bin

Haji Kader Mustan v R [1946] MLJ 36 states “If a witness in this Colony is competent and has been summoned he is bound to give evidence, and to answer all relevant questions”.

Witness• Section 119 of EA 1950 provide

for “Dumb witnesses” (Saksi bisu). (1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court. (Seseorang saksi yang tidak dapat bercakap boleh memberi keterangannya dengan apa-apa cara lain denganya keterangan itu mudah difahami, seperti misalnya, dengan tulisan atau isyarat; tetapi tulisan itu mestilah ditulis dan isyarat itu dibuat dalam mahkamah terbuka) (2) Evidence so given shall be deemed to be oral evidence (Keterangan yang diberi sedemikian hendaklah disifatkan sebagai keterangan lisan).

Witness• Principle and scope: This section specifies

the manner of admitting the evidence of a dumb witness. So long as he can make his evidence intelligible in open court it shall be deemed to be oral evidence. If a person took a vow of silence under religion, that person can give evidence by sign and it is tantamount to oral evidence. In Chai Kor v PP [1965] 2 MLJ 208 where on the effect of this evidence Wylie CJ said at page 209 that “The circumstances concerning the deaf-mute demanded, as strongly as could be demanded, that the Judge should warn the jury in the strongest terms to consider whether they should, or should not, accept his evidence. Strictly speaking, the question had to be left to the jury. It was a question of fact for them. But, speaking for myself, I feel that this is a case where the Judge would be justified in putting to the jury that they could not safely accept his evidence”.

Marital communication privilege

(Perlindungan terhadap komunikasi dalam tempoh

perkahwinan)

Marital communication privilege• The right given to a

husband and wife to refuse to testify in a trial as to confidential statements (Orally or written) made to each other within and during the framework of their spousal relationship. • The marital privilege is an

exception to the general rule that all relevant evidence is admissible at trial.

Marital communication privilege• The marital communications

privilege is a right that only legally married persons has in court. • Generally, the determination of

whether a marriage is legal depends on state law. • Courts will not permit its use by

partners who merely live together or by those who have a common law marriage or a sham, or false, marriage. Moreover, the communication must have taken place while the marriage existed, not after a divorce.

Marital communication privilege• The privilege also cannot be

claimed in certain situations, such as where one spouse is subject to prosecution for crimes committed against the other or against the children of the couple. • In addition, the presence of

third persons at the time of the communication usually eliminates confidentiality and thus destroys the privilege, although courts have granted exceptions for the presence of children.

Marital communication privilege• Its origin: The marital communications

privilege originated at common law. It was made formal in the English Evidence Amendment Act of 1853, which said that neither husbands nor wives could be forced to disclose any communication made to the other during the marriage. In the United States, the privilege came to be recognized in state and Federal Rules of Evidence. By the twentieth century, the U.S. Supreme Court said that it was “regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice” as stated in the case of Wolfle v. United States, 291 U.S. 7, 54 S. Ct. 279, 78 L. Ed. 617 [1934].

Malaysian context

Section 120 Section 122



• Section 120 of EA provides for “Parties to civil suits and wives and husbands”. (1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. (2) In criminal proceedings against any person the husband or wife of that person respectively shall be a competent witness. (3) In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness: provided that, so far as the cross-examination relates to the credit of the accused, the court may limit the cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness”.


• Principles of the section: This section deals with the competence of witnesses in civil and criminal proceedings. The issue is now whether the spouse of a party or accused is compellable (dipaksa) as a witness. Per McElwaine CJ in Ghouse Bin Haji Kader Mastan v R [1946] MLJ 36 states “If a witness in this Colony is competent and has been summoned he is bound to give evidence, and to answer all relevant questions. There is no class of witness who can be called a compellable witness. The words compellable when used in the Evidence Ordinance relate not so much to a witness as to a type of evidence; and in my opinion a witness may be compelled to give any relevant evidence unless a section enacts that he shall not be compelled to give it. Such sections are 122-127 and 130”. The District Judge was fully within his rights in compelling the wife to give evidence, as her evidence did not fall under any section which enacts that she shall not be compelled to give such evidence.

Marital communication privilege• In PP v Abdul Majid [1994] 3 MLJ 48, where this is a criminal revision case

brought to the attention of the High Court by the learned deputy prosecutor in respect of a decision made by the learned magistrate in Rawang. The accused in this case is charged for murder under section 302 of the Penal Code (FMS Cap 45). At the preliminary enquiry held before the learned magistrate in Rawang, the public prosecutor attempted to call the accused’s wife, Syarifah Marina bte Syed Hamzah (Syarifah in short) as a witness for the prosecution. The accused’s counsel objected to this on the ground that, though she is a competent witness, she could not be compelled to tender evidence against her own husband. At that stage, Syarifah herself declared that she was unwilling to render evidence against the accused in court. Upon this, the learned magistrate then ruled that Syarifah, though a competent witness could not be compelled to give any evidence in this case against the accused, as he is her husband. The magistrate in this case based his decision on the English authority Hoskyn v Metropolitan Police Commissioner [1979] AC 474; [1978] 2 All ER 136; [1978] 2 WLR 695. Upon this decision, the learned deputy prosecutor immediately referred to this matter to this court for determination while the preliminary enquiry was put on hold. Held “I find that the said magistrate has erred in adopting the ruling in Hoskyn's case as law for this country. I therefore order the learned magistrate to proceed with the enquiry and to record the evidence of Syarifah, and if she is unwilling to testify, to compel her to do so. However, in the course of her testimony, if there had been any communication by the accused to her, such communication cannot be compelled to be disclosed by her unless the consent of the accused is obtained as provided for under section 122 of the Evidence Act 1950”.

Marital communication privilege•Decision in Abdul Majid was based on the following

arguments: It has been the general common law rule in England that a wife or a husband is incompetent to give evidence against the other except in a few exceptional circumstances. The principle behind this rule is that the family unity must be preserved and, to allow a spouse to testify against the other 'would give rise to discord (dispute) and perjury and would be, to ordinary people repugnant (annoying). Through various statutes passed in the 1800s particularly, the Criminal Evidence Act 1898, the position of a spouse witness was somewhat changed in England. The spouse witness became a competent witness. However, though competent, the issue of whether he or she is a compellable witness was unsettled.

English position

The issue ofcompetency & compellability?

R v Lapworth

[1931] 1 KB 117 R v Leach

[1912] AC 305

anyone who was a competent witness was

also a compellable witness.

a competent witness to testify against each

other, is not a compellable witness.

Hoskyn v Metropolitan Police

Commissioner [1979] AC 474

Marital communication privilege• The judge in PP v Abdul Majid also referred to an

early Straits Settlements authority, Ghouse bin Haji Kader Mustan v R [1946] MLJ 36, decided by the then Chief Justice of the Straits Settlements, Sir McElwaine which has some direct reference to this point. In this case, the appellant was charged for kidnapping a girl by the name of Isah then under the age of 16 from her lawful guardian. A day after the kidnap, the appellant married Isah. Isah must have testified against the appellant thus leading to his conviction. One of the grounds of appeal by the appellant was that Isah, being his wife could not be compelled to give evidence against him. After considering various authorities, most of it from Africa, the respected Chief Justice ruled as follows [at p 37]: “If a witness in this colony [Colony of Singapore] is competent and has been summoned he is bound to give evidence, and to answer all relevant questions. There is no class of witness who can be called a compellable witness. The words compellable when used in the Evidence Ordinance relate not so much to a witness as to a type of evidence; and in my opinion a witness may be compelled to give any relevant evidence unless a section enacts that he shall not be compelled to give it”. However, the appeal made by the accused was allowed on basis that the girl had attained puberty, she had no guardian and therefore she was not taken out of the keeping of the lawful guardian in the first place.


• This decision seems to have found favour in the Borneo States. In the case of Gimbu bin Sangkaling v R [1958] SCR 114, the Court of Appeal in the combined judiciary of North Borneo, Sarawak and Brunei, decided to adopt the principle that a competent witness is also a compellable witness. In this case, Gimbu was charged for murdering his father-in-law. Gimbu’s wife, the deceased’s daughter, was asked to testify against Gimbu to the effect that she saw Gimbu and his father go out on a frog hunting expedition together and, how Gimbu returned alone. Though she was unwilling to testify, she was compelled to do so by the trial judge. In adopting the principle of compellability attached to competency, Smith Ag CJ in this Court of Appeal has this to say: “Unless the wife can point to any exception in the law relieving her from the obligation to give evidence, then she is bound to give evidence. The whole process of law would be stultified if a witness could without legal excuse decline to give evidence. This court considers that references to the English common law and to decisions under the Criminal Evidence Act 1898 [of England] are irrelevant”.

Marital communication privilege• As a conclusion: It was clear that the spouse is a competent

witness under section 120. It was held that a witness if a spouse is a competent and compellable witness unless in section 122 the communication is a privilege marital communication. In Abdul Majid on appeal the judge refused to follow Hoskyn and Leach, thus Lapworth is still good law in Malaysia. If he/she is a competent witness, he/she is also a compellable witness. If he/she is unwilling to testify after he/she is given a subpoena, he/she can be held in contempt. Section 120 makes spouses competent witnesses in criminal and civil proceedings.

Marital communication privilege• Section 122 of EA 1950 provides for Communications during

marriage (Komunikasi dalam tempoh perkahwinan). It stated that “No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other”.

Marital communication privilege•Principle and scope: Section 122 gives some form of privilege for marital communication. Spouses cannot be compelled to disclose marital communication unless the spouse consents or if there is an action against each other such in the case of wife battery. How to determine marital communication depends at the time the communication was made the parties were married to each other.

Marital communication privilege• In Lim Lye Hock v PP [1995] 1 SLR 238,

246-247 the appellant was charged with the murder of one Tan Hui Ngin (the deceased), whose decomposed body was found at a disused egg hatchery at 74P Ponggol Road, Track 13 on 16 October 1990. He was convicted by the High Court and sentenced to suffer death. He appealed against his conviction. In this case, the accused and the murdered girl were workers of an egg hatchery. There was an argument between the two, the accused lost his temper and murdered the girl unintentionally. He came back home covered with blood and this was noticed by the wife. The accused became depressed for several days and eventually confessed to his wife that he murdered a girl at his workplace. At trial, the prosecution called the appellant’s wife as a witness. Counsel for the appellant objected on the ground that communication between the spouses was privileged under the Singapore Evidence Act (Cap 97, 1990 Ed) (the Act).

Marital communication privilege• Per LP Thean states “If the wife has seen

her husband committing the offence or returning home with blood stains on his cloths, in proceedings brought against the husband she is both competent and compellable to testify on what she saw. On the other hand, if the husband has confessed to her that he committed the offence or has explained to her how the blood stains were splattered on his cloths or has written to her a note or letter to that effect, she is not compellable to disclose such communication or produce the note or letter, and if she is prepared to disclose such communication or produce the note or letter, she is not permitted to do so, unless he i.e. the accused consent to such disclosure”. Appeal dismissed. It is noted that section 122 has two limbs. The first limb: A witness is not compellable to disclose any communication (oral or written) made to him or her by his or her spouse during the marriage & the second limb contains a prohibition on the disclosure of any such communication unless the spouse who made the communication, or his or her representative in interest, consents to the disclosure.

Marital communication privilege• The judge in PP v Abdul Majid also referred to an

early Straits Settlements authority, Ghouse bin Haji Kader Mustan v R [1946] MLJ 36, decided by the then Chief Justice of the Straits Settlements, Sir McElwaine which has some direct reference to this point. In this case, the appellant was charged for kidnapping a girl by the name of Isah then under the age of 16 from her lawful guardian. A day after the kidnap, the appellant married Isah. Isah must have testified against the appellant thus leading to his conviction. One of the grounds of appeal by the appellant was that Isah, being his wife could not be compelled to give evidence against him. After considering various authorities, most of it from Africa, the respected Chief Justice ruled as follows [at p 37]: “If a witness in this colony [Colony of Singapore] is competent and has been summoned he is bound to give evidence, and to answer all relevant questions. There is no class of witness who can be called a compellable witness. The words compellable when used in the Evidence Ordinance relate not so much to a witness as to a type of evidence; and in my opinion a witness may be compelled to give any relevant evidence unless a section enacts that he shall not be compelled to give it”. It is respectfully submitted that this decision is better understood in the light of the fact that at the time of the offence the parties were not married thus the privilege contained in section 122 did not apply. See PP v Gurdial Singh Get Singh [2005] 6 CLJ 272.

Marital communication privilege• Limitation: Although the privilege only applies to communications, it

also applies to acts when they are so inextricably interwoven (closely connected/impossible to differentiate) with communications that it is impossible to separate them. Per Mustapha Hussain J in Palldas a/l Arumugam v PP [1988] 1 CLJ 661 states “From the record of appeal, the appellant’s wife Gudi Kaur (PW3) had, in examination-in-chief, given quite a lengthy evidence of all communications between herself and her husband. Though some of the evidence relates purely to acts, as distinct from words spoken, i.e., what she saw appellant was doing, it is so inextricably interwoven with what appellant had said to her, that to separate each act from words spoken by the appellant to her would be extremely difficult, if not impossible. Even if extricable and rejecting the words spoken, one would have their prejudicial effect still lingering. Even though objection was not taken by the defence, this silence cannot convert what the law says is inadmissible evidence to be admissible. One would expect the wife’s evidence to be led in such a way as to confine such evidence to what she saw the appellant doing. The wife should have been stopped the moment she started uttering what her husband said to her. From the record it would seem that nobody ever bothered about this s. 122.

Marital communication privilege• In Verghese v Ponnan AIR 1970 SC 1876 where it was held that “the

bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged at the status at that date and not the status at the date when the evidence is sought to be given in court”. • Whether or not the spouse is compellable to give evidence look at the

status of the parties were spouses when they make marital communication. In Ram Chandra v Emperor AIR 1933 Bombay 1953 states that “The protection to marital communication is not confined to confidential communication but it must be made during the coverture of the marriage”. • In Re Loh Kah Kheng (deceased)(No 2) [1990] 2 MLJ 237 the deceased

was found dead and there was suspicion that he was murdered. The communication between his wife and himself was objected to due to marital communication. The judge held that the privilege marital communication in section 122 only applies to court proceedings. This section has no application to a coroner’s inquiry into the cause of death of a person, because an inquest is an inquisitory procedure, not adversarial in nature. Look at section 2, Evidence Act will not apply. Only principle of natural justice will apply.



class…

WITNESS


PRIVILEGE



PRIVILEGE


FINISH

Legal professional privilege/

Client solicitor privilege(Perlindungan

keistimewaan profesional undang – undang)

Legal professional privilege• Introduction: In Common Law

jurisdictions, legal professional privilege protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer. The purpose behind this legal principle is to protect an individual’s ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.

Legal professional privilege

• History: The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of Berd v Lovelace [1577] Cary 62 the full report of which states: “Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the same process.

Legal professional privilege• Its principle: The principle originated as protection for

individuals when accessing the knowledge and legal resources available to a lawyer and was said to stem from the “oath and honour” of the lawyer, a sort of special contractual relationship. It was based on the fact that the ordinary citizen could not safely navigate the complexities of the law and justice system without some assistance. However, without protection the quality of the advice would suffer as clients would be discouraged from making full disclosure to their legal representatives. As Lord Brougham put it in Greenough v Gaskell [1833], 1 M & K 98 “The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case”.


• In order for the lawyer to represent his client well, his client must give all the facts or “… he should be able to make a clean breast of it to the gentleman and whom he consults with a view to the prosecution of his claim…” (per Jessel MR in Anderson v Bank of British Columbia (1876) 2 Ch D at page 649). Any communication between the client and his solicitor is privileged, and only be waived by the permission of the client. If there is no privilege there will be no free flow of information. A client needs legal advice from his lawyer because of the solicitor’s special skills. If that advice given is not privileged, there can be tendency of unsound legal advice. Any communication between lawyer and client, either given or taken, will be protected for the furtherance for the cause of justice.


• Section 126 of EA 1950 provide for “Professional communications” (Komunikasi professional). (1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: (Seseorang peguambela tidak boleh pada bila-bila masa di benar, melainkan dengan persetujuan nyata klientnya, mendedahkan apa-apa komunikasi yang telah diberi kepadanya dalam masa dan bagi maksud dia digunakhidmat sebagai penguambela itu oleh atau bagi pihak kilentnya, atau menyatakan kandungan atau keaadaan sesuatu dokumen yang telah diketahuinya dalam masa dan bagi maksud pengkhidmatan professionalnya, atau mendedahkan apa-apa nasihat yang telah diberi olehnya kepada klientnya dalm masa dan bagi maksud dia digunakhidmat sedemikian:)

Legal professional privilege• Provided that nothing in this section shall protect from

disclosure (Dengan syarat bahawa tiada apa-apa jua dalm seksyen ini boleh melindungi dari didedahkan)• (a) any such communication made in furtherance of any

illegal purpose; (apa- apa komunikasi itu yang dibuat bagi membolehkan tercapainya apa-apa maksud yang menyalahi undang-unadng). Illustration (a) A., a client, says to B., an advocate: “I have committed forgery and I wish you to defend me”. As the defence of a man known to be guilty is not a criminal purposes this communication is protected from disclosure. Illustration (b) A., a client, says to B, an advocate: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue”. This communication being made in furtherance of a criminal purpose is not protected from disclosure.


• (b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. (apa-apa fakta yang diketahui oleh seseorang peguambela dalam perjalanan pengkhidmatannya sedemikian yang menunjukan bahawa sesuatu jenayah atau fraud telah dilakukan sejak dia mula digunakhidmat). Illustration (c) A., being charged with embezzlement (misappropriate), retains B., an advocate, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account-book, charging A. with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B. in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

Legal professional privilege• Explanation - The obligation stated in section 26 continues after

the employment has ceased. (Kewajiban yang dinyatakan dalam seksyen ini berterusan walaupun pengkhidmatan tersebut telah terhenti)• Section 127 of EA 1950 provides “Section 126 to apply to

interpreters, etc”. Section 126 shall apply to interpreters and the clerks or servants of advocates (Seksyen 126 terpakai bagi jurubahasa dan bagi kerani atau pengkhidmat peguambela)

Legal professional privilege•The idea of having the privilege under the

Malaysian Evidence Act 1950: Per Augustine Paul J in PP v Dato’ Seri Anwar Bin Ibrahim (No 3) [1999] 2 MLJ 1 that “This rule is established for the protection of the client, not of the advocate, and is founded on the impossibility of conducting legal business without professional assistance, and on the necessities, in order to render that assistance effectual, of securing full and unreserved intercourse between the two…” (See Jones v. Great Central Ry [1910] AC 4; Lyell v. Kennedy 9 App Cas 81, Wheeler v. Le Merchant 17 Ch D 675). As Jessel MR said in Anderson v. Bank [1876] LR 2 Ch D 644 at p. 649:

Legal professional privilege• Per Eusoff Chin J in Dato’ Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ

445 states “Sections 126 to 129 of the Evidence Act 1950 deal with the law relating to professional communication between clients and their legal advisers or their clerks. As regards professional communications, the rule is now well settled that where a barrister or solicitor is professionally employed by a client, all communication which passes between them in the course and for the purpose of that employment are so far privileged, that the legal adviser, when called as a witness, cannot be permitted to disclose them whether they be in the form of title deeds, wills, documents, or other papers delivered, or statements made, to him, or of letters, entries, or statements, written or made by him in that capacity, and this even though third persons were present”. Section 126 also says that the legal adviser shall not be permitted at any time to disclose professional communications. It is said that a communication once privileged is always privileged (per Cockburn CJ in Bullock v Corry & Co (1878) 3 QBD 356). See also See Teow Chuan v Dato’ Anthony See Teow Guan [1999] 4 MLJ 42.

Legal professional privilege• In order to attract the privilege under the section, the

communication to the solicitor may also have been made by an agent of his client: As Augustine Paul J said in PP v Dato’ Seri Anwar Bin Ibrahim [1999] 2 MLJ 1 at page 196 that “When learned counsel began to question Nor Azman, I informed him that the line of questioning may infringe section 126 of EA 1950 as Nor Azman was in the position of an agent of Ummi. In saying that, I had in mind Wheeler v Le Mervhant (1881) 17 Ch D 675 where Jessel MR said “The actual communication to the solicitor by the client is of course protected, and it is equally protected whether it is made by the client in person or is made by an agent on behalf of the client’”.• In R v Chhoa Mui Sai [1937] MLJ 236 it was held that evidence

of a payment of $80 by the client to the solicitor is not “communication” within the meaning of section 126 of Evidence Ordinance”.

Legal professional privilege• Requirement of section 126: In Chua Su Yin v Ng Sung Yee [1991] 2

MLJ 348, it was held that before this section can apply there must be a prerequisite of solicitor and client relationship and any disclosure, if it is to take place, must be with the absolute consent of the client. • In Chok Sin Fatt v Chew Thong [1954] SCR 15, Mr Chew was a

clerk/interpreter employed in government service and he could not be termed as professional legal adviser. It was, however, part of his duty to assist would be litigants to prepare their plaints in civil cases. It was held that communications between a would be litigant and his legal adviser made for the purpose of preparing his case would be privileged and evidence regarding them are inadmissible. However, it is not necessarily all statements made by litigant to a court official would be privilege, but it is necessary for the trial judge to consider the circumstances of each case and decide the exact function being performed by the official at the time the communication was made.

Categoriesof

legal professional privilege

Legal advise privilege

Litigationprivilege

Legal professional privilege scope

Legal advise privilege• Legal advice privilege protects confidential communications

between lawyers and their clients for the purposes of giving or obtaining legal advice. For legal advice privilege to apply, the communications in question must be with a professional legal adviser with the sole or dominant purpose of giving or obtaining legal advice. See Three Rivers District Council v Bank of England (No 5) [2004] 3 WLR 1274 where Lord Scott (at p.1287) highlighted the necessity of a legal context for the communication : “If a solicitor becomes the client’s man of business, and some solicitors do, responsible for advising the client on all matters of business, including investment policy, finance policy and other business matters, the advice may lack a relevant legal context ... In cases of doubt the judge ... should ask whether the advice related to the rights, liabilities, obligations or remedies of the client, either under private law or under public law. If it does not, then, in my opinion, legal advice privilege would not apply”.

Legal advise privilege• Legal advice privilege extends to advice from salaried (in-house) legal

advisers employed by government departments or commercial companies as much as from barristers and solicitors in private practice. See Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1972] 2 QB 102. The law does not regard the position of these in-house legal advisors as being different from those in private practice. In the judgment of Lord Denning states “... They are, no doubt, servants or agents of the employer. For that reason [the first-instance judge] thought they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges. ... I speak, of course [only] of their communications in the capacity of legal advisers”.

Legal advise privilege• Legal advice privilege also applies to communications with foreign lawyers,

where the necessary relationship of lawyer and client exists. Re Duncan, Garfield v Fay [1968] P 306 where in this case, Ormrod J (as he then was) stated (at p.311): “There is nothing [in the previous case law concerning privilege] to suggest that [the judges] intended to limit the rule to legal advisers whose names appear on the roll of Solicitors of the Supreme Court or who are members of the English Bar. The basis of the privilege is just as apt to cover foreign legal advisers as English lawyers, provided only that the relationship of lawyer and client subsists between them. Any other conclusion would lead to an impossible position for if this court were required to investigate the position of such communications in foreign law, but what law governs the relationship of English client and foreign lawyer, at any rate, when no proceedings are in contemplation? There is no forum and therefore no lex fori. The nationality of the foreign lawyer is as irrelevant as his address for this purpose”.• It does not extend to advisors who are not legally qualified. See New

Victoria Hospital v Ryan [1993] ICR 201, EAT nor does it extend to communications with members of other professions. See Slade v Tucker [1880] 14 Ch D 824.

Legal advise privilege• The test for legal advice privilege is to establish whether the

communication in question was made confidentially for the purpose of legal advice – construing (interpret/read) such purposes broadly. In Balabel v Air India [1988] Ch 317 where was stated that legal advice could not be narrowly construed to be limited to advice on the client’s legal rights and liabilities. It would be broadly construed, to include advice as to what should prudently and sensibly be done in the relevant legal context. Where there was doubt about the relevant legal context, the court should ask (a) whether the advice related to the rights, liabilities, obligations or remedies of the client under either private or public law; and, if so, (b) whether the communication fell within the policy justification for the privilege

Litigation privilege• Litigation privilege protects confidential communications between lawyers,

clients and third parties made for the purposes of litigation. Unlike legal advice where it is only a privilege from disclosure attaches to communications for the purpose of giving and obtaining legal advice and it is immaterial whether or not the possibility of litigation were even contemplated (consider). It is sufficient if they pass as professional communications in a professional capacity.

• Litigation privilege is a type of immunity given for certain acts and statements taken in connection with the pursuit of litigation. This rule covers communications with witnesses and their proofs of evidence, and is important respecting communications with potential expert witnesses, whose opinions may be necessary, but who are not legal advisers. The requirement that the communication must have been made for the purposes of pending or contemplated litigation. In the case Wheeter v Le Merchant (1881) 17 ChD 675 where the Court of Appeal ordered the defendant to produce reports made to his solicitor by a surveyor, because although the reports related to the subject matter of the litigation they had been made when no litigation was contemplated by the defendant. The touchstone of this privilege is that the prospect of litigation should be the dominant purpose, as apposed to the stricter rule that legal professional privilege must be confined to documents brought into existence for the sole purpose of submission to legal advisers for advice or for use in legal proceedings.

Litigation privilege• Dominant purpose has been an integral part of the litigation privilege

since the House of Lords decision in Waugh v. British Railway Board [1980] AC 521 where the House of Lords established the rule under English law that litigation privilege attaches only if the communication was made for the dominant purpose of preparing for litigation. Thus, a party could not sustain a claim of privilege over an accident report that had been commissioned for the dual purposes of seeking legal advice and studying railway safety issues, as the report had not been prepared for the dominant purpose of litigation. • The dominant purpose requirement under the advice head of litigation

was laid down by the Judge in the unreported English case of Hellenic Mutual War Risks Association v. Harrion (The Sagheera), judgment delivered in 18 October 1996. NLJ Nov. 22 (1996) p. 1687. • The High Court of Australia has adopted the stricter sole purpose test

in Grant v. Downs [1976] 135 CLR 674. New Zealand has adopted the dominant purpose test not the stricter sole purpose test. See Guardian Royal Exchange of New Zealand v. Stuart [1985] 1 NZLR 596 - at 602.

Litigation privilege• In Malaysia: Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357,

the plaintiff filed an action for damages against the defendants for medical negligence. The defendants have filed a statement of defence resisting the plaintiff’s claim to compel the expert witness to attend court, to give evidence and also to bring with him the medical report. Held, allowing the application made by the defandant: The medical report prepared by the expert witness was at the instance of the first defendant’s solicitors for use in the pending (awaiting) litigation. Therefore, the opinion and medical report prepared by the expert witnesses was the subject of a pending or existing litigation. The defendant therefore, was entitled to object to the expert witness giving evidence to express his opinion for the plaintiff. In other words, reports which are prepared by experts for the purpose of litigation are privileged and therefore parties are not obliged to disclose them to each other. This safeguard against an expert witness giving evidence on more than one side is protected by the existence of legal professional privilege (see para 20); Waugh v British Railways Board [1980] AC 521 and Yap Hong Choon v Dr Pritam Singh [2006] CLJ 842 followed. (2) There was no material or evidence produced by the plaintiff of any agreement or condition express or implied between the parties for disclosure and exchange of the medical report or to be produced through the expert witness. Therefore, the expert witness cannot be compelled to produce the medical report.

Litigation privilege• In the instant case, it cannot be disputed that the medical opinion of the expert witness

which was sought by the first defendant was for use in a pending litigation. Therefore, in accordance with the principle laid in Waugh v British Railways Board [1980] AC 521 which was applied in Yap Hong Choon v Dr Pritam Singh [2006] 1 CLJ 842, this court is of the considered view that on the facts in the instant case, the medical report and the opinion of the expert witness is protected by the Legal Professional Privilege. The dominant purpose for which the report was prepared by the expert witness was that of submitting it to the defendant’s legal adviser for an advise and if necessary for use in the pending litigation. Therefore, it is a document required for use in a pending litigation and it was the dominant purpose for the same (see Causton v Mann Eagerton (Johnson) Ltd [1974] 1 All ER 453 at p 460, Waugh v British Railways Board [1980] AC 521. However, in Waugh v British Railways Board, an investigation report concerning an accident was held not to be privileged because it was not made for the dominant purpose of litigation. In Ventouris v Mountain (The Italia Express) [1991] 1 WLR 607 at pp 621–622, the Court of Appeal, determined that the privilege is based on the purpose for which the document was brought into existence rather than the purpose for which it was obtained (see also Lyell v Kennedy (No 3) (1884) 27 Ch D1). See also Faridah Ariffin v Dr Lee Hock Bee & Anor [2006] 1 CLJ 660. In Sykt Chin Seng Supermarket v. United Continental Insurance Sdn Bhd [1997] 5 MLJ 121, it was held that the adjuster’s report was outside the scope of the privilege of solicitor and client relationship. There was no evidence of confidential relationship established between the adjuster and the defendant in this case. The report was independent and not privileged from disclosure.


• Section 126 has no application when the communication was made in furtherance of any illegal purpose: In Re The Detention of Leonard Teoh Hooi Leong [1998] 1 MLJ 757, a 25-year old Nor’aishah bte Bokhari (Nor’aishah) in this case had wanted to renounce Islam and convert to Christianity, and had retained an advocate and solicitor (‘Leonard’) to advise her. In consequence, a statutory declaration adverting to the voluntary nature of the conversion was prepared by Leonard, and on 22 October 1997 the declaration was affirmed by Nor’aishah. Nor’aishah, however, was subsequently put under house confinement by her parents, following which a writ of habeas corpus for her release was filed by Leonard on 28 November 1997. Nor’aishah, in the meanwhile, had escaped from her parents’s detention. A police report was then lodged on her disappearance, in which it was alleged that she had been kidnapped by her lover, one Joseph Arnold Lee (‘Lee’). The police believed that Leonard knew about the whereabouts of Nor’aishah, but had not been able to obtain that information from Leonard. Apparently, Leonard had refused to divulge the information to the police on the ground that he had not been so authorised by Nor’aishah, and that, as counsel to Nor’aishah, he was privileged in law to keep the information intact. The police in the circumstances applied for a remand order of Leonard under s. 117 Criminal Procedure Code, and on 14 January 1998, an order was issued by the learned magistrate, Pontian ordering that Leonard be remanded for seven days beginning 14 January 1998. The legal firm of M/s Lee Min Choon & Co sought to revoke the detention order aforesaid, and on 15 January 1998 it wrote to the learned judge herein applying for a revision of the magistrate’s order under s. 323(1) Criminal Procedure Code. In the circumstances, an argument was put forth that Leonard was only a potential witness and not a prime suspect, and it was therefore improper of the learned magistrate to have issued the remand order. Held: [1] It cannot be denied that as counsel to Nor’aishah, Leonard was privy to certain privileged information. This privilege, however, does not extend to communications made in furtherance of a fraud or a criminal act. [2] As the police was investigating a kidnapping case involving Nor’aishah, Leonard’s refusal to inform the police of Nor’aishah’s whereabouts made him a prime suspect and not a mere witness.

Legal professional privilege• Leonard clearly could not hide behind the ‘skirt of privilege’ to say that he was not

authorised to reveal the whereabouts of Nor’aishah. [Application dismissed.] Abdul Malik Ishak held that “Was Mr. Leonard Teoh Hooi Leong a potential witness or a prime suspect? It cannot be denied that as counsel for Nor’aishah, Mr. Leonard Teoh Hooi Leong was privy to certain privileged information. But the veil of privilege may be set aside by the court on the application of a solicitor who suspects that fraud or a crime had been committed by his client: Finers (a firm) v. Miro [1991] 1 All ER 182, [1991] 1 WLR 35 CA. A solicitor cannot be compelled to disclose legitimate communications, whether oral or written, passing directly between him and his client. This privilege, however, do not extend to communications made in furtherance of a fraud or a criminal act (Lawrence v. Campbell [1859] 4 Drew 485; O'Rourke v. Darbishire [1920] AC 581 HL (which was dutifully followed by Butler v. Board of Trade [1971] Ch 680, [1970] 3 ALL ER 593); Minter v. Priest [1930] AC 558 at 580-582, HL; Re Sarah C Getty Trust [1985] QB 956, [1985] 2 ALL ER 809 and Balabel v. Air India [1988] Ch 317, [1988] All ER 246 CA). As the police was investigating a kidnapping case involving Nor'aishah, Mr. Leonard Teoh Hooi Leong’s refusal to inform the police of Nor’aishah’s whereabouts made him a prime suspect and the remand order would therefore be appropriate, in the circumstances Public Prosecutor V. Audrey Keong Mei Cheng [1996] 2 CLJ 430. The communications between Mr. Leonard Teoh Hooi Leong and Nor’aishah were no longer privileged as it involved a criminal investigation.

Legal professional privilege• Waiver of the privilege: Per Eusoff Chin J in Dato’ Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ

445 states “'Unless with his client’s express consent', appearing in s 126. • In Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413 the question was whether the client had

expressly waived the privilege from the following evidence Yes, I said I did not make a statement at the Legal Aid Bureau. I did not tell them of the matters stated in two letters from Legal Aid Bureau. I cannot explain why the Director should have written in those terms. If I made a statement to the Legal Aid I would not object to it being produced. In fact I did not make one. Buttrose J said “On the face of that evidence, I am unable to construe it as an express waiver by the plaintiff of the privilege and indeed, in my view, it falls short of that express consent of the client which is required before any such disclosure can be made. I must confess I am unable to see how the plaintiff could be said to expressly consent to the production of a statement which he insists he never made. In any event, I do not think the position was ever made clear to him as to what his position was in the matter or what was required of him”. Statements made by a legally-aided person to an investigator of the Legal Aid Bureu and any evidence with regard to it are privileged, under section 127 of the Evidence Ordinance in view of section 27(1)(b) of the Legal Aid and Advice Ordinance, 1956. The Court of Appeal allowed this appeal holding that the trial Judge was wrong in compelling the plaintiff to disclose a communication which took place between him and the Bureau as the plaintiff did not expressly waive the privilege or consent to its disclosure.

• In See Teow Chuan & Anor v Dato’ Anthony See Teow Guan [2006] 3 MLJ 97 where it was held that “Once the confidential communications contained in the legal opinion was published by the defendant to various persons and third parties, the defendant could not claim privilege since by disclosing the legal opinion to third parties, the defendant had waived the privilege attached to it”.

Legal professional privilege• In both categories of privilege (legal advice privilege and litigation

privilege) the privilege is that of the client - not of the lawyer or of the third party. Thus, only the client may waive privilege. See Anderson v Bank of British Columbia [1876] 2 Ch D 644. Legal professional privilege may be waived unilaterally by the client. This should be contrasted with the privilege which attaches to “without prejudice communication”, which may not be waived without the consent of both parties. • The privilege under this section applies only to communications between a

solicitor and his client. Per Ong CJ in PP v Haji Kassim [1971] 2 MLJ 115 states “Where the only relevant provision in our Evidence Ordinance excluding professional confidences is s. 126, which states that no advocate and solicitor shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him and in the course of his employment as such. This rule is founded on the principle that the conduct of legal business without professional assistance is impossible and on the necessity, in order to render such assistance effectual, of securing full and unreserved intercourse between the two. This privilege does not protect professional disclosures made to clergymen (priest) or doctors..”.

Legal professional privilege• The privilege continues even after the death of the client. A

particular remark made by Lord Lindley in Bullivant And Others v. The Attorney-General For Victoria (on behalf of her Majesty) [1901] AC 196 at 206 is also of relevance especially when His Lordship said: “It is said that, the testator being dead, the privilege is gone. My Lords, I am satisfied that that answer is insufficient. I never heard it before; ... ... The mere fact that a testator is dead does not destroy the privilege. The privilege is founded upon the views which are taken in this country of public policy, and that privilege has to be weighed, and unless the people concerned in the case of an ordinary controversy like this waive it, the privilege is not gone - it remains”. This principle was followed in the Malaysian case of Tan Thian Wah v Tan Tian Tok [1998] 5 MLJ 801.

Legal professional privilege• The issue of secondary evidence: The authority for this proposition is the decision of

the English Court of Appeal in Calcraft v Guest [1898] 1 QB 759 (“Calcraft”). This was an action by the plaintiff Mr Calcraft against a defendant Mrs Drax for trespass. Judgment was given against Mrs Drax, who appealed. Mrs Drax gave notice that she intended to rely on some documents in the appeal, including proofs of witnesses and rough notes of evidence in an earlier action which were the plaintiff’s predecessor’s privileged documents. When the defendants’ solicitors had knowledge of the documents, they inspected and took copies of them. Under the threat of legal proceedings, the solicitors then handed the documents to the plaintiff, but retained the copies. The question was whether these copies could be used by the defendant. Lindley MR, delivering the judgment of the Court of Appeal started by on the basis that as a general rule, subject to waiver, “one may say once privileged always privileged” and he cited Parke B’s statement in Lloyd v Mostyn 10 M &W 478 that: “Where an attorney intrusted confidentially with a document communicates the contents of it, or suffers another to take a copy, surely the secondary evidence so obtained may be produced”. In allowing the copies of the documents to be used, neither Lindley MR nor Parke B explained how privilege is lost through the process of copying. In as much as privilege subsists in the content of the information, the rule has engendered disagreement and controversy, leading Toulson & Phipps to call it “the unfortunate decision of the Court of Appeal in Calcraft v Guest” (at para 18-014).

Legal professional privilege• The use of secondary evidence was refused in another important decision of the Court of Appeal

in this area of the law, Lord Ashburton v Pape [1913] 2 Ch 469 (“Ashburton”). In this case, Pape obtained letters written by Lord Ashburton to his solicitor, which were admitted to be privileged. Pape’s solicitors had obtained them from a clerk of the solicitor under questionable circumstances, made copies of them, and delivered the original letters to Pape. Upon demand, the letters were handed over to Lord Ashburton’s new solicitor. Lord Ashburton applied successfully to restrain Pape and his solicitors from making use of the copies of the letters. In the judgments of the Court, Cozens-Hardy MR explained at p 473: “The rule of evidence as explained in Calcraft v Guest [1898] 1 QB 759 merely amounts to this, that if a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means. It may have been stolen, it may have been picked up in the street, it may have improperly got into the possession of the person who proposes to produce it, but that is not a matter which the Court in the trial of the action can go into.”

• While Kennedy LJ stated at p 474: “[T]he principle which is laid down in Calcraft v Guest [1898] 1 QB 759 must be followed, yet, at the same time, if, before the occasion of the trial when a copy may be used, although a copy improperly obtained, the owner of the original can successfully promote proceedings against the person who has improperly obtained the copy to stop his using it, the owner is none the less entitled to protection, because, if the question had arisen in the course of a trial before such proceedings, the holder of the copy would not have been prevented from using it on account of the illegitimacy of its origin”. Swinfen Eady LJ confirmed that he was of the same opinion states ‘‘The principle upon which the court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained”.

WITNESS


PRIVILEGE



PRIVILEGE


FINISH

FINISH

State/Crown/Executive/Public interest immunity

privilege(Perlindungan

keistimewaan terhadap kepentigan awam)

Public interest immunity privilege• Section 123 provides for Evidence as to affairs of State (Keterangan

mengenai hal-ehwal Negara) which states “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, who shall give or withhold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government”. (Tiada sesiapa jua dibenar mengemukakan apa-apa rekod rasmi yang tidak disiarkan yang berhubungan dengan hal-ehwal Negara, atau memberi apa-apa keterangan yang didapati daripadanya, kecuali dengan kebenaran pegawai yang menjadi ketua jabatan yang berkenaan, yang akan memberi atau tidak akan memberi kebenaran itu sebagaimana difikirkannya patut, dengan tertakluk, walau bagaimanapun, kepada kawalan Menteri jika berkenaan dengan jabatan Kerajaan Malaysia, dan kawalan Ketua Menteri jika berkenaan dengan Kerajaan Negeri).

Public interest immunity privilege• Principle and scope: This section

deals with the state/ crown/ executive/ public interest immunity privilege. • It provides that no person shall be

permitted to produce any unpublished official records relating to affairs of state or give evidence derived therefrom. However, he may do so with the permission of his head of department, who shall give or withhold permission as he thinks fit. The head of department is subject to the control of a Minister in the case of a Federal Department and the Chief Minister in the case of a State Department. This section must be read with section 162 of the Act.

Public interest immunity privilege• Section 162 provides for the Production of documents and their

translation. (Pengemukaan dokumen dan terjemahannya) (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court. (2) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility. (Mahkamah boleh, jika difikirkannya patut, memeriksa dokumen itu melainkan jika dokumen itu berkenaan dengan hal-ehwal Negara, atau mengambil keterangan lain untuk membolehkannya menentukan kebolehterimaan dokumen itu) (3) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence, and if the translator disobeys the direction, he shall be held to have committed an offence under section 166 of the Penal Code (F.M.S. Cap. 45).

Public interest immunity privilege• Principle and scope: This section

deals with the power of the court to compel the production of a document. It provides that a witness summoned to produce a document must bring it to the court notwithstanding any objection. The validity of such objection shall be decided by the court for which purpose the court may inspect the document, unless it refers to affairs of state, or take such other evidence to rule on its admissibility. This section must be read with 123 and 124 of the Act.

Reasonsfor

privilege

Smoothrunning

of executive

Nationalsecurity

Public interestv

Private interest

Peace&

public order

Public interest immunity privilege

The issues

Natureof

document

Executivev

Judiciary

Inspectionof the

document


Nature of the document


• The term “unpublished official records” is self-explanatory. One of the main problems has been what is meant by the term “affairs of state” (hal-ehwal Negara). According to Raja Azlan Shah J in BA Rao v Sapuran Kaur [1978] 2 MLJ 146 “In my opinion, “affairs of State”, like an elephant, is perhaps easier to recognise than to define, and their existence must depend on the particular facts of each case”. Obviously, it would cover documents relating to public security such as national defense and confidential government documents including cabinet minutes, policy documents, and documents the disclosure of which would be detrimental (harmful/damaging) to foreign relations. In this regard there are two approaches in deciding whether the document relates to affairs of state:

Public interest immunity privilege• The first approach is to look at the nature of

the document: Mohd Zafir J in BA Rao v Sapuran Kaur [1978] 2 MLJ 146 where in this case the respondents had claimed damages on behalf of the estate of the deceased for his death as a result of the negligence of the medical officers of the district hospitals. A Committee of Enquiry had been held into the death of the deceased and the respondents had issued a notice to produce the reports and findings of the Committee of Enquiry. The appellants objected on the ground that the notes and findings of the Committee of Enquiry were unpublished official records and therefore privileged from disclosure under section 123 of the Evidence Act. The learned trial judge, after scrutinising the affidavit of the Deputy Secretary General of the Ministry of Health objecting to the production, disallowed the objection and ordered production of the reports and findings of the Committee. The appellants appealed.


• Held, dismissing the appeal: “From the affidavit of the Deputy Secretary-General of the Ministry of Health after applying the principles of law as I understand them to be, I am not satisfied that the notes and findings of the Committee are affairs of State. They do not fall into the class of documents for instance police information or military secrets or concerning diplomatic relations…”

Public interest immunity privilege• The second approach is that the courts will look at the

nature of the document as well as the effect of disclosure, whether the disclosure would be injurious to the public interest. IF IT IS, then it relates to affairs of state. IF IT IS NOT, then it does not relate to affairs of state: This approach can be seen in Wix Corporation South East Asia Sdn Bhd v Minister of Labour & Manpower [1980] 1 MLJ 224 where in this case the applicant had applied for an order of certiorari (referring to a type of writ seeking judicial review) to quash an order of Reference made by the Minister of Labour to the Industrial Court. The original dispute in this case related to dismissal and in accordance with section 20 of the Industrial Relations Act was referred to the Regional Director of Industrial Relations (Selangor and Pahang) for conciliation. The Regional Director made a report to the Director-General of Industrial Relations who in turn made a report to the Minister of Labour. In this application the applicant applied for a subpoena directing the Director-General of Industrial Relations to produce inter alia the two reports. Objection to the production of the reports was made on the ground that they related to affairs of state and privilege was claimed under sections 123 and 162.

Public interest immunity privilege•Held: (1) the reports under section 20 of the Industrial

Relations Act 1967 are not official records relating to affairs of state within the meaning of section 123 of the Evidence Act, 1950. Harun J states “Affairs of State” is not defined in the Evidence Act because each case has to be decided on its merits. The primary consideration is whether disclosure will be injurious to the public interest. Obvious examples where it is against the public interest to disclose are Cabinet papers and matters relating to national security or diplomatic relations with foreign countries. Prima facie a dispute between an employer and employee arising out of a contract of service could hardly be said to be an affair of State within the meaning of section 123 of the Evidence Act.

Executivev

Judiciary

Public interest immunity privilege• Refer to the main case of BA

Rao v Sapuran Kaur [1978] 2 MLJ 146 where Mohd Zafir J said: “The law on this aspect as it appears to me is that it is for the court to decide that the document in question relates to any affairs of State, and if the court so decides, it will then be for the departmental head to decide whether disclosure of its contents will be against public interest and his decision on the point is conclusive”.

Public interest immunity privilege• Position in England: Prior to Conway v Rimmer [1968]

2 AC 910, the position in England was that the court could not go behind the Minister’s certificate that disclosure of a class of documents or contents of particular documents would be injurious to the public interest. The Minister certificate is conclusive. This was decided in the celebrated case of Duncan v. Cammell Laird and Co. Ltd [1942] AC 624, where the submarine HMS Thetis sank on 1 June 1939 during sea trials with the loss of 99 lives. The families of the sailors who had been killed in the disaster claimed damages from the builders, Cammell Laird. The appellants asked for an order for the production of certain documents from the First Lord of the Admiralty. The First Lord of the Admiralty had made an affidavit in which he stated that such production would be contrary to the public interest. However, it was contended that the court should have the documents produced and exercise its judgment upon the matter:- Held - the affidavit by the First Lord of the Admiralty was conclusive, and, in such a case, the court should not order the production of the documents for its inspection.

Public interest immunity privilege• The decision in Duncan was followed

in Ellis v Home Office Co Ltd [1953] 2 QB 135 where it was held: “It is clearly essential in the public interest that responsible government departments should be entitled to claim privilege for documents the disclosure of which would be against the public interest, and it is clearly right that the decision of the responsible Minister on the question whether privilege should be insisted on or not in respect of any particular document should be final”. “A Minister has the anxious and arduous (difficult) and responsible task of deciding whether disclosure would be against the public interest. When he decides, his decision is final”.

Public interest immunity privilege• In Conway v Rimmer [1968] 2 AC 910, the plaintiff, a

former probationary police constable, began an action for malicious prosecution against his former superintendent. In the course of discovery, the defendant disclosed a list of documents in his possession or power, admittedly relevant to the plaintiff's action, which included four reports made by him about the plaintiff during his period of probation, and a report by him to his chief constable for transmission to the Director of Public Prosecutions in connection with the prosecution of the plaintiff on the criminal charge, on which he was acquitted, and on which his civil action was based. The Secretary of State for Home Affairs objected in proper form to production of all five documents on the ground that each fell within a class of documents the production of which would be injurious to the public interest:- Held, that the documents should be produced for inspection by the House of Lords, and if it was then found that disclosure would not be prejudicial to the public interest or that any possibility of such prejudice was insufficient to justify their being withheld, disclosure should be ordered.

Court will need to balance the competing interests

•Preventing harm to the state by disclosure

•v •Preventing frustration of the

administration of justice by withholding/maintaining

disclosure

Public interest immunity privilege• When there is a clash between the public interest (1) that harm

should not be done to the nation or the public service by the disclosure of certain documents and (2) that the administration of justice should not be frustrated by the withholding of them. Their production will not be ordered if the possible injury to the nation or the public service is so grave that no other interest should be allowed to prevail over it. But, where the possible injury is substantially less, the court must balance against each other the two public interests involved. When the Minister’s certificate suggests that the document belongs to a class which ought to be withheld, then, unless his reasons are of a kind that judicial experience is not competent to weigh, the proper test is whether the withholding of a document of that particular class is really necessary for the functioning of the public service. • In the present case of Conway, it was improbable (unlikely) that

any harm would be done to the police service by the disclosure of the documents in question, which might prove vital to the litigation.

Public interest immunity privilege• Burmah Oil Co Ltd v Bank of England [1980] AC 1090 where it was

held (i) There was no rule of law that a claim by the Crown on the grounds of public interest for immunity from production of a class of documents of a high level of public importance was conclusive. If it was likely, or was reasonably probable or (per Lord Wilberforce) a strong positive case was made out, that the documents in question contained matter which was material to the issues arising in the case and if on consideration of the ministerial certificate claiming immunity there was a doubt whether the balance of the public interest lay against disclosure (and not merely where it was established that the certificate was probably inaccurate), the court had a discretion to review the Crown’s claim that the withholding of documents was necessary for the proper functioning of the public service. In reviewing the Crown's claim to privilege in such a case the court had to balance the competing interests of preventing harm to the state or the public service by disclosure and preventing frustration of the administration of justice by withholding disclosure, and could inspect the documents concerned privately in order to determine where the balance of public interest lay.


• Position in the United States: In the United States the courts have consistently refused to recognise any absolute power in the executive to forbid disclosure of evidence. In the leading case of United States v Reynolds (1953) 35 US 1, several civilian observers aboard a military plane on a flight to test secret electronic equipment were killed when the said plane crashed and their widows sued the Government. The plaintiffs applied for discovery of the accident investigation report but the Government claimed privilege and refused to produce the report. The court rejected the view that the assertion of executive privilege was conclusive on the question of production. The court recognised that there are State secrets which need not be produced but held that the determination of whether they are State secrets is a judicial function and only when it is satisfied that compulsion of the evidence will expose military matters which, in the interest of national security, will it refuse to require disclosure.

Public interest immunity privilege• The refusal of the United States courts to allow the

claim to executive privilege received striking confirmation in the case of New York Times Co v United States (1971) 403 US 713 popularly known as the Pentagon Paper case. In that case the Supreme Court refused an injunction sought by the Government to restrain the New York Times and Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Vietnam Policy” prepared within the Defence Department. The U.S. President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press under the First Amendment was subordinate to a claimed Executive need to maintain the secrecy of information. The Supreme Court ruled that First Amendment did protect the New York Times right to print said materials.

Public interest immunity privilege• In Australia, the courts had decided, long before Conway v.

Rimmer, supra, that an affidavit of the Minister was not conclusive and that the court had power to call for the documents, examine them, and determine the validity of the claim for themselves. The decision of the Privy Council in Robinson v South Australia [1931] AC 704 was to this effect. • In New Zealand in the case of Corbett v Social Security

Commission [1962] NZLR 878 the courts refused to follow Duncan v. Cammell, Laird & Co. Ltd., supra, preferring instead the earlier advice of the Privy Council in Robinson v. South Australia, supra and held: The Courts of New Zealand still possess the power to overrule a ministerial objection to the production of documents in respect of which privilege is claimed if they think it right to do so, but this is a power to be held in reserve and not to be lightly exercised.

Inspection of thedocument

The role (and limits) of a court to review the validity

of any objection to production of the document: In other words, what can the courts take into account in deciding if it “really” relate

to the affair of state?

Public interest immunity privilege• First school: There is an absolute prohibition on the

inspection of the document and the taking of other evidence. This view was taken by Kapur J. his dissenting judgement in Union of India v Sodhi Sukhdev Singh AIR 1961 SC 493. This is very strict interpretation. If the court cannot inspect the document or take secondary evidence of its contents or look at other relevant material which would indicate the injury to the public interest, how the court going to decide whether the document relates to affairs of state? The logical conclusion of this position would be that the court is debarred (exclude) from overruling the discretion of the Head of Department because the court cannot say whether the disclosure or non-discloser would be detrimental or not.


• Second school: No inspection of the document is permitted, but the taking of other evidence is permitted. This view taken by the majority in Union of India v Sodhi Sukhdev Singh AIR 1961 SC 493 and was also the approach taken by Mohd Zafir J in the High Court in BA Rao v Sapuran Kaur [1978] 2 MLJ 146 where he said that it is for the court to decide whether a document relates to affairs of state or not, and if it did, then the Head of Department must decide on the risk of disclosure. In taking other evidence, the type of further information that may be sought consists of the apprehended injury to the public interest and the nature of the affairs of state involved. One of the problems is what type of other evidence can be taken into account? It cannot be “photocopy”. Usually it includes affidavits from the Minister or Head of Department concerned. This approach give more power to the judge compare to first approach but it prevents the judge from examine the very thing that he has a duty to decide on, obviously making his job more difficult, and it will requires the judge to more or less rely on circumstantial evidence from a probably biased party (Head of Department) even though the direct evidence is available. See Takung Tabari v Government of Sarawak [1995] 1 CLJ 403

Public interest immunity privilege• Third school: Inspection of the said document is permitted. In the

State of Uttar Pradesh v Raj Narain AIR 1975 C 865 the Supreme Court took the following stand that the courts can inspect the document and decide if it relates to affairs of state or not. The court can examine the documents and can override the Head of Department concerned if it comes to conclusion that disclosure would not be harmful to the public interest. This decision indirectly overrules Union of India v Sodhi Sukhdev Singh AIR 1961 SC 493. The high-water mark of Raj Narain's, supra, case is the clear acceptance of the principle by the court that affidavit evidence claiming privilege is not conclusive and the court has power to inspect the document to satisfy itself that it requires protection. By using this approach, the court can keep a watch over the executive to ensure that the privilege is not being abused, it make the job easier for the judge because they can look at the document itself, and it brings the law in line with most of Commonwealth countries.

Approach taken in Malaysia?

Public interest immunity privilege• In Gurbachan Singh v PP [1966] 2 MLJ, the appellant had been

convicted on a charge under section 4(a) of the Prevention of Corruption Act, 1961. On the hearing of the appeal, the appellant sought to introduce further evidence for the admission of a police inquiry paper. A certificate had been issued by the Minister of Home Affairs objecting to the production of the file. Held: (1) in cases where the Minister claims privilege over a class of documents, the court can inspect the document in question to ascertain whether in point of fact its production in court would be injurious to the public interest and as in this case the court after inspecting the contents of file had come to the conclusion that they do not substantially relate to affairs of State nor give any reasonable grounds for believing that the production of the file would be injurious to the public interest, it would order the production of the file

Public interest immunity privilege• In BA Rao v Sapuran Kaur [1978] 2 MLJ 146, Raja Azlan Shah in the Federal Court adopted the third approach. He said: “In this country, objection as to production as well as admissibility contemplated in sections 123 and 162 of the Evidence Act is decided by the court in an enquiry of all available evidence. This is because the court understands better than all others the process of balancing competing considerations. It has power to call for the documents, examine them, and determine for itself the validity of the claim”.


• Waiver for such privilege: a) Makers of statements consenting to disclosure: In Makanjuola v Comr of Police of Metropolice [1992] 3 All ER 617 where it was held: Witness statements taken by the police in the course of investigating a complaint under s 49 of the 1964 Act, including the complainant’s own statements, were protected from production or disclosure in civil proceedings brought by the complainant against the police on the ground of public interest immunity notwithstanding that the makers of the statements may have consented to their disclosure. • b) The issue of secondary evidence: Rogers v Secretary of State for

Home Dept [1972] 2 All ER 1057 where it was held that neither the letter nor the chief constable’s copy of it should be produced; both belonged to a class of documents which should be protected; the ground on which protection could be claimed was not that the Crown had any privilege in the matter but that the public interest.

Public interest immunity privilege• Section 124 provides for Official communications.

(Komunikasi rasmi) where it states “No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure”: (Seseorang pegawai awam tidak boleh dipaksa mendedahkan komunikasi yang dibuat kepadanya secara rasmi dan sulit apabila difikirkannya kepentigan awam akan terjejas dengan pendedahan itu)• Provided that the court may require the head of the

department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications.

Public interest immunity privilege•Principle and scope: This section provides that no

public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure. Under the proviso to the section, the court may require the head of department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest. If he certifies that such disclosure would not be prejudicial to the public interest then the officer shall disclose the communications. This section too must be read with section 162 of the Act.

Public interest immunity privilege• In the case of Re Loh Kah Kheng [1990] 2 MLJ 126 where during the

inquest into the death of one Loh Kah Kheng, the investigating officer informed the court that he had received information from an informer concerning the deceased’s death, which related to the commission of a crime. As the information was given in official confidence, the police claimed privilege and the magistrate ruled that the written information could not be disclosed at the inquiry, but held that it should be shown to her. Held, overruling the magistrate’s ruling: (2) Before privilege under s 124 of the Evidence Act 1950 can apply, the condition precedent that the information be communicated in official confidence must be satisfied. The court is the sole judge of this question, and in coming to its decision can not only inspect the document, but can also take other evidence to determine its admissibility. (3) The court may also require the head of department of the officer to certify whether or not such disclosure would be detrimental to the public interest. (4) These two conditions had not been considered and the magistrate was ordered to record further evidence in order to comply with s 124 of the Evidence Act 1950 before making any ruling for non-disclosure.



class…

WITNESS


PRIVILEGE



PRIVILEGE


FINISH

FINISH

FINISH

Privilege against self - incrimination

(Keistimewaan perlindungan terhadap pembabitan sendiri)

Privilege against self incrimination•Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. •Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.

•“Nemo debet prodere se ipsum”

No one can be required to be his

own betrayer

•“nemo tenetur se detegere”

•Nobody has to reveal oneself

•“Nemo tenetur seipsum accusare”•No one is bound to

accuse himself.

Privilege against self incrimination• The Fifth Amendment to the United States

Constitution protects witnesses from being forced to incriminate themselves. To “plead the fifth” is a refusal to answer a question because the response could form self incriminating evidence.

• The text written as folows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless he or she is on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.

Privilege against self incrimination• In Miranda v. Arizona 384 U.S.

436 (1966) the United States Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney.• The Fifth Amendment protects

witnesses from being forced to incriminate themselves. To “plead the Fifth” is a refusal to answer a question because the response could form self-incriminating evidence.

Privilege against self incrimination• Historically, the legal protection against self-incrimination is

directly related to the question of torture for extracting information and confessions. The legal shift from widespread use of torture and forced confession dates to turmoil of the late 16th and early 17th centuries in England. Anyone refusing to take the oath ex-officio (confessions or swearing of innocence, usually before hearing any charges) was taken for guilty. Suspected Puritans (member of religious group) were pressed to take the oath and then reveal names of other Puritans. Coercion and torture were commonly employed to compel cooperation. Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with interrogations. In the most famous case John Lilburne refused to take the oath in 1637. His case and his call for freeborn rights were rallying points for reforms against forced oaths, forced self-incrimination, and other kinds of coercion. Oliver Cromwell’s revolution overturned the practice and incorporated protections, in response to a popular group of English citizens known as the Levellers (group which unphold human rights, equality before law, and religious tolerance). The Levellers presented The Humble Petition of Many Thousands to Parliament in 1647 with thirteen demands, of which the right against self-incrimination (in criminal cases only) was listed at number three. These protections were brought to the American shores by Puritans, and were later incorporated into the United States Constitution through its Bill of Rights.

Privilege against self incrimination• People have asserted the right in grand

jury or in congressional hearings in the 1950s, where witnesses testifying before the House Committee on Un-American Activities or the Senate Internal Security Subcommittee claimed the right in response to questions concerning their alleged membership in the Communist Party. However, due to the Red Scare hysteria of the times, frequently referred to as McCarthyism, people who have asserted the right were popularly seen as guilty as accused, and sometimes referred to as Fifth Amendment Communists. People have lost their jobs, lost their leadership positions in union or political organizations, or had other negative repercussions after taking the fifth. The amendment has also been used, famously, by defendants and witnesses in criminal cases involving the Mafia.

Privilege against self incrimination• In Canada, similar rights exist pursuant to the

Charter of Rights and Freedoms. Section 11 of the Charter provides that one cannot be compelled to be a witness in a proceeding against oneself. Section 11(c) states: “Any person charged with an offence has the right … c) not to be compelled to be a witness in proceedings against that person in respect of the offence…”

• An important distinction in Canadian law is that this does not apply to a person who is not charged in the case in question. In this regard, a person issued subpoena, who is not charged in respect of the offence being considered, must give testimony. However, this testimony cannot later be used against the person in another case. Section 13 of the Charter states: “A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence”.

•The position in

•England

Privilege against self incrimination

• In Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395, where in an action brought against a company and its director by another company claiming damages for libels and slander, interrogatories were administered to both the defendants directed to obtaining admissions of the publication of the alleged libels and slander. Both the defendant company and the director refused to answer on the ground that to the best of their knowledge, information, and belief, the answers would tend to criminate them:- Held that the refusals were justified. A man could not be compelled to answer a question directed to procuring his confession of a criminal act merely because it was unlikely that he would be prosecuted; and a company was entitled to the same privilege. A company could be prosecuted for libel, and there was no ground for limiting the application of the privilege in question to natural persons. Du Parcq LJ delivering the judgment of the Court of Appeal, put the common law position thus: The law is well settled.

Privilege against self incrimination• It is a general rule that ‘no one is bound to criminate

himself. In the sense that he is not to be compelled to say anything which “may tend to bring him into the peril and possibility of being convicted as a criminal”: per Field J in Lamb v Munster (1882) 10 QBD 110, 111 where in this case, the plaintiff in an action for libel administered interrogatories to the defendant relating to the writing and publication of the alleged libel. The defendant declined to answer all the interrogatories upon the ground that his answers “might tend to criminate” him. The plaintiff took out a summons that the defendant should be directed to make further and better answers. Held: the defendant was not bound to state in precise words that to answer the interrogatories would criminate him; to answer the interrogatories fully would clearly incriminate the defendant.

Privilege against self incrimination•Bowen LJ as saying in Redfern v Redfern [1891] P 139;

“It is one of the inveterate (hardened) principles of English law that a party cannot be compelled to discover that, which, if answered, would tend to subject him to any punishment, penalty, forfeiture, no one is bound to criminate himself”. Here, on a petition for divorce an order for discovery by means of interrogatories or by an affidavit of documents ought not to be made against the respondent where the sole object of discovery is to establish adultery against that party. The doctrine that no one is bound to incriminate himself applies to questions tending to establish adultery, which was an ecclesiastical (religious) offence.


• In Blunt v Park Lane Hotels Ltd [1942] 2 KB 253: On September 24, 1941, the plaintiff, a married woman, brought proceedings against Park Lane Hotel, Ld., and one Briscoe for damages for slander. By her statement of claim she alleged that on April 19, 1941, at the Park Lane Hotel the defendant, Briscoe, acting as manager of the hotel, falsely and maliciously spoke and published to two persons concerning her these words: “If you knew this woman as we do you would not have anything to do with her”. The plaintiff alleged that by these words the defendant meant and was understood to mean that she was a loose woman and was unchaste and adulterous and not fit for decent society. By his defence, the defendant, Briscoe, alleged (inter alia) that the words complained of were true in substance and in fact, and, in support of that plea, alleged by way of particulars a number of occurrences which, if proved, would show that the plaintiff had been guilty of unchastity with numerous men. On April 9, 1942, the defendant, Briscoe, applied for leave to administer to the plaintiff interrogatories which substantially went to the matters in the particulars, all the interrogatories except one being directed to establishing that on a number of occasions the plaintiff had been guilty of unchaste conduct with different men at the Park Lane Hotel and elsewhere. Master Horridge gave the defendant leave to administer the material interrogatories. The plaintiff appealed.

• Appeal was dismissed. It is only in proceedings for divorce on the ground of adultery that the spouse will be protected from answering interrogatories if the answers might tend to prove the adultery.


• In Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76, [1982] AC 380, which was a case concerned with an Anton Piller order, dealing with video piracy, the plaintiffs in that particular case were owners of copyright in certain films and, on the basis of evidence that, in breach of that copyright, the defendants were making and selling video cassette copies of those films, the plaintiffs obtained Anton Piller orders requiring, amongst other things, that the defendants should give immediate discovery of relevant documents and answers to interrogatories relating to the supply of infringing copies. The defendants applied to Whitford J unsuccessfully to have those orders discharged, on the ground, inter alia, that, by disclosing the documents and answering the interrogatories, the defendants might expose themselves to criminal proceedings (see [1982] AC 380).

• That decision was set aside by a majority decision of the Court of Appeal ( [1980] 2 All ER 273, [1982] AC 380), and, on appeal to the House of Lords, the House dismissed the plaintiffs’ appeal, holding that the defendants were entitled to rely on privilege against self-incrimination by discovery or by refusing to answer interrogatories, since, if they complied with the orders, there was in the circumstances a real appreciable risk of criminal proceedings for conspiracy to defraud being taken against them under section 21 of the Copyright Act 1956.

•The position in

•Malaysia

Privilege against self incrimination• Section 132 provides “Witness not excused from answering on ground that

answer will criminate”. (Saksi tidak dikecualikan daripada menjawab soalan atas alasan bahawa jawapan itu akan melibatkannya dalam jenayah).• (1) A witness shall not be excused from answering any question as to any matter

relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to that question will criminate or may tend directly or indirectly to criminate, him, or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or forfeiture of any kind, (Seseorang saksi tidak boleh dikecualikan daripada menjawab apa-apa soalan mengenai apa-apa perkara yang relevan dengan perkara isu dalam sesuatu guaman, atau dalam sesuatu prosiding sivil atau jenayah, atas alasan bahawa jawapan kepada soalan itu akan melibatkannya dalam jenayah, atau bahawa jawapan itu akan mendedahkan atau mungkin secara langsung atau secara tak langsung mendedahkan saksi itu kepada apa jua jenis penalty atau lucukhak) or that it will establish or tend to establish that he owes a debt or is otherwise subject to a civil suit at the instance of the Government of Malaysia or of any State or of any other person.


• (2) No answer which a witness shall be compelled by the court to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by that answer. (Tiada apa-apa jawapan yang seseorang saksi dipaksa oleh mahkamah supaya memberinya boleh menyebabkan dia ditangkap atau didakwa, atau boleh dibuktikan terhadapnya dalam sesuatu posiding jenayah, kecuali pendakwaan kerana memberi keterangan palsu melalui jawapan itu).• (3) Before compelling a witness to answer a question the answer to which

will criminate or may tend directly or indirectly to criminate him the court shall explain to the witness the purport of subsection (2). (Sebelum memaksa seseorang saksi menjawab sesuatu soalan yang jawapannya akan melibatkannya dalam jenayah atau mungkin secara langsung atau secara tak langsung melibatkannya dalm jenayah, mahkamah hendaklah menghuraikan kepada saksi itu maksud subseksyen (2)).


• Per Spenser Wilkinson J in Chye Ah San v R [1954] MLJ 217 states “On this point I think that the differences between the English law and local law on the subject of incriminating statements must be kept in mind. In England a witness in a Court of Law is not bound to answer questions which may tend to criminate him. In this country, however, the maxim is enforced in a different way, because under Section 132 of the Evidence Ordinance a witness is bound to answer all questions even though they may tend to criminate him, but if he is forced to answer such questions then no proceedings can be taken against him based upon his answers except proceedings for perjury”.

•PASI: •Does it still exist

in Malaysia?


• Privilege no longer exist: In Televisyen Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd [1983] 2 MLJ 346 where the first 2 plaintiffs, TVB and RTV were producers of the television series and programmes which were shown on Hong Kong Television. TVB and RTV were owners of the copyright in those television films or soap operas. The third plaintiff Golden Star had the exclusive right from them to reproduce those films on video cassettes for distribution to their dealers or outlets for hiring out to the public. From investigations conducted by Golden Star, the defendants had been hiring out pirated copies of their television series on the black market. They had not given permission to the defendants to make copies of or put on video cassettes their films. The plaintiffs therefore sought for an ex-parte order, the Anton Piller order before the Writ was even served against the defendants. The plaintiffs wanted to take the defendants by surprise so that they could not get rid of incriminating evidence and their stock of infringing video cassettes. The plaintiffs therefore feared that unless they obtain an Anton Piller order the defendants would easily remove, destroy or erase incriminating documents and articles. The said order was granted by the present court. The defendants objected on the following grounds: (a) the defendants claimed privilege against self-incrimination.


• Held: Here was a strong prima facie case against the defendants that the plaintiffs had been dealing in illicit films and that the plaintiffs had satisfied the requirements for the making of an Anton Piller order, the usefulness of the Anton Piller order is on the element of surprise. This is so essential in cases of piracy. If the pirates have been forewarned then vital documents and articles would be lost, hidden or destroyed. Chan J states that: “Spenser Wilkinson J.'s view that the maxim is enforced in a different way in this country is erroneous. Section 132(1) has already withdrawn or removed the privilege. It follows that the privilege can no longer be enforced or invoked. It is not there anymore. Also by section 132(2) first limb, there would no longer be any risk of arrest or prosecution, so the privilege is lost. There is no longer any question of enforcing or invoking the privilege. It has gone”

• This decision was approved by the Court of Appeal in AG of Hong Kong v Zauyah wan Chik [1995] 2 MLJ 620 by stating that “In Malaysia, the common law privilege against self-incrimination has been removed by s 132(1) of the Evidence Act 1950 ('the Act')”.


• The privilege still exist: However, in PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ 86 where the first, second, sixth and seventh defendants sought for an order of the court to discharge an Anton Piller order granted on December 30, 1982. The defendants contended that (a) the plaintiff had misled the court by stating in his affidavit in support of the ex-parte application that the first defendant was required by law to keep a segregated bank account in respect of the plaintiff and (b) it was not possible to show the trading statements to the solicitors of the plaintiff without disclosing particulars of other clients which were confidential in nature. The production of the documents referred to in the order would incriminate the defendants by providing evidence on which they could be prosecuted for offences under the Commodities Trading Act 1980 and for conspiracy and fraud. Held, allowing the defendant’s application: (2) the principle laid down in Rank's case [1980] 2 All ER 273 (CA), [1981] 2 All ER 76 (HL) applies in this case; (3) the defendants were entitled to the privilege not to give discovery of documents, the disclosure of which would incriminate them.


• In Riedal-de Haen AG v Liew Keng Pang [1989] 2 MLJ 400 where the plaintiffs obtained an Anton Piller order against the defendant ordering the defendant inter alia to disclose the names of their suppliers and customers of goods bearing the plaintiffs trademarks. The defendant applied to discharge the order on the ground that it infringed the privilege against self-incrimination. Held, discharging the order: (3) The privilege was received into Singapore by virtue of the Charter of Justice 1826. In civil proceedings, the privilege extends to the discovery of documents which will tend to incriminate or subject the defendant to a penalty of forfeiture. Chan Sek Keong J in this Singaporean case states “I am therefore of the view that s 134 (our section 132) of the Evidence Act has merely qualified the privilege against self-incrimination to the extent the witness gives oral testimony in judicial proceedings to which the Evidence Act is applicable”.

•My view:•PASI still exist in

Malaysia however it has been “modified”


• The protection given by the section applies only when a witness is compelled by the court to answer a question. It must be noted that the protection given by this section does not apply to a witness who voluntarily answer such questions as explained in R v GA Philips [1936] MLJ 131. Per Whitley Ag J CJ states in this case that “It is to be observed that the section uses the world compelled and it would appear that a distinction is drawn between those cases in which a witness voluntarily answers a question and those in which he is compelled to answer, giving him a protection in the latter of these cases only”.

• In Chean Siong Guat v PP [1969] 2 MLj 63 Abdul Hamid J said that it is the duty of the court before compelling a witness to answer such questions to explain to him the purport of subsection (2) of the section.

• In Muniandy v PP [1973] 1 MLJ 179, the Federal Court held that “the failure of the learned judge to comply with the provisions of section 132 of the Evidence Ordinance resulted in serious misdirections”.

WITNESS


PRIVILEGE



PRIVILEGE


FINISH…

FINISH…

Assalamualaikum & a Assalamualaikum & a very good afternoon. very good afternoon.

Wish all of you in good Wish all of you in good health. Welcome to health. Welcome to evidence 2 class…evidence 2 class…

Examinationof

witness(Pemeriksaan

saksi)

Examination of

witness(Pemeriksaan saksi)

Examination-in-chief(Pemeriksaan utama)

Cross-examination(Pemeriksaan balas)

Re-examination(Pemeriksaan semula)

Process of adducing evidence from witnesses in a court of law

Examination of witness• Section 137 of EA 1950 Examination-in-chief, cross-examination and

re-examination. (Pemeriksaan utama, pemeriksaan balas, pemeriksaan semula)• (1) The examination of a witness by the party who calls him shall be

called his examination-in-chief. (Pemeriksaan seseorang saksi oleh pihak yang memanggilnya hendaklah disebut pemeriksaan utamanya)• (2) The examination of a witness by the adverse party shall be called his

cross-examination. (Pemeriksaan seseorang saksi oleh pihak lawan hendaklah disebut pemeriksaan balasnya)• (3) Where a witness has been cross-examined and is then examined by

the party who called him, such examination shall be called his re-examination. (Jika seseorang saksi telah diperiksa balas dan kemudiannya diperiksa oleh pihak yang telah memanggilnya, maka pemeriksaan itu hendaklah disebut pemeriksaan semulanya.• Principle and scope: This section deals with the meaning of examination

- in - chief, cross – examination and re – examination. It must be read with section 138.

Examination of witness• Section 138 of EA 1950 provides for order of examinations and

direction of re-examination. (Susunan pemeriksaan dan arahan bagi pemeriksaan)• (1) Witnesses shall be first examined-in-chief, then, if the adverse party

so desires, cross-examined then, if the party calling them so desires, re-examined. (Saksi – saksi hendaklah mula – mulanya diperiksa utama, kemudiannya pula, diperiksa balas jika dikehendaki sedemikian oleh pihak lawan, kemudiannya pula, diperiksa semula jika dikehendaki sedemikian oleh pihak yang telah memanggil mereka)• (2) The examination and cross-examination must relate to relevant

facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (Pemeriksaan dan pemeriksaan balas mestilah berhubungan dengan fakta relevan, tetapi pemeriksaan balas tidak perlu dihadkan kepada fakta – fakta yang telah diberi sebagai keterangan oleh saksi itu dalam pemeriksaan utamanya)

Examination of witness• (3) The re-examination shall be directed to the explanation of matters

referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. (Pemeriksaan semula hendaklah diarahkan kepada penghuraian perkara – perkara yang disebut di dalam pemeriksaan balas; dan jika, dengan kebenaran mahkamah, suatu perkara baru dikemukakan di dalam pemeriksaan semula, maka pihak lawan boleh selanjutnya memeriksa balas atas perkara itu)• (4) The court may in all cases permit a witness to be recalled either for

further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively. (Mahkamah boleh dalam segala hal membenarkar seseorang saksi dipanggil semula sama ada untuk pemeriksaan utama selanjutnya atau untuk pemeriksaan balas selanjutnya, dan jika mahkamah membenarkan demikian itu, maka pihak – pihak berkenaan adalah berhak memeriksa balas selanjutnya dan memeriksa semula selanjutnya, mengikut mana yang berkenaan.

Examination-in-chief• Examination-in-chief (also called direct examination) is the questioning

of a witness by the party who called him or her, in a trial in a court of law. Direct examination is usually performed to elicit (obtain) evidence in support of facts which will satisfy a required element of a party’s claim or defense.• In direct examination, one is generally prohibited from asking leading

questions. This prevents a lawyer from feeding answers to a favorable witness. • An exception to this rule occurs if one side has called a witness, but it is

either understood, or soon becomes plain, that the witness is hostile to the questioner’s side of the controversy. The lawyer may then ask the court to declare the person he or she has called to the stand a hostile witness. If the court does so, the lawyer may thereafter ply (carry out) the witness with leading questions during direct examination.• As stated in subsection (2) of the section, the examination-in-chief must

relate to relevant facts. There are certain rules relating to the questions that can be put to a witness during his examination-in-chief. These are governed by sections 142, 144, 154, 155, 156, 157, and 159 of the Act.

Examination-in-chief• Leading question (Soalan memimpin): In common law systems that rely

on testimony by witnesses, a leading question is a question that suggests the answer or contains the information the examiner is looking for. For example, this question is leading:• You were at Duffy’s bar on the night of July 15, weren’t you? It

suggests that the witness was at Duffy’s bar on the night in question. • The same question in a non-leading form would be:• Where were you on the night of July 15? This form of question does not

suggest to the witness the answer the examiner hopes to elicit.• Leading questions may often be answerable with a yes or no (though

not all yes-no questions are leading), while non-leading questions are open-ended. Depending on the circumstances leading questions can be objectionable or proper. The propriety of leading questions generally depends on the relationship of the witness to the party conducting the examination. An examiner may generally ask leading questions of a hostile witness or on cross-examination, but not on direct examination.

Examination-in-chief• Hostile witness (Saksi belot): A hostile witness is a witness

in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.• A party examining a hostile witness may question the

witness as if in cross-examination, thus permitting the use of leading questions. A hostile witness is sometimes known as an adverse witness (Saksi yang memudaratkan). The question whether a witness is hostile is for the judge to determine. Section 154 provides that the court may in its discretion permit the person who calls the witness to put any questions to him which might be put in cross-examination by the adverse party. The purpose of questioning is to attack the credit of the witness.

Cross-examination• In law, cross-examination is the interrogation of a witness called by one’s opponent. Unlike in direct examinations, however, leading questions are typically permitted in a cross-examination, since the witness is presumed to be unsympathetic to the opposing side. •The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavourable testimony, and to weaken the evidentiary value of his evidence.•The rules relating to cross-examination are governed by this section and by sections 139, 140, 143, 145, 146, and 147 of the Act. Sections 148 to 152 protect a witness against improper cross-examination.

Cross examination• Per Faiza Tamby Chik JC in PP v Wong Yee Sen [1990] 1 MLJ 187 states “Cross-

examination is the examination of a witness by the adverse party, that is, the party opposed to the one that calls him. What is the aim of cross-examination? Really there is one aim only. It is to assist in the administration of justice by revealing the truth to the Court. The function of cross-examination is to eliminate or reduce the danger that a false conclusion will be reached. Wigmore has declared that cross-examination is beyond doubt the greatest engine ever invented for the discovery of truth. The powers of a cross-examiner generally are: (1) to ask leading questions (s. 143 Evidence Act 1950); (2) to impeach a witness for making a previous inconsistent statement (s. 145 Evidence Act 1950); (3) to test a witness's accuracy, veracity and credibility (s. 146(a) Evidence Act 1950); (4) to shake the credit of a witness by injuring his character (s. 146(c) Evidence Act 1950)”.

• Effect of failure to cross-examine a witness: In Wong Swee Chin v Public Prosecutor [1981] 1 MLJ 212 the Federal Court in its judgment (at page 213) said: “A correct statement of the law is that failure of the defence to cross-examine the prosecution witnesses on the matter merely goes to the credibility of their testimony… On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony”.

Re-examination•Re examination also called redirect examination is

the trial process by which the party who offered the witness has a chance to explain or otherwise qualify any damaging or accusing testimony brought out by the opponent during cross-examination. •Re- examination may question only those areas

brought out on cross-examination and may not stray beyond that boundary. No new matters may be introduced without the leave of the court. •Re-examanination only arises if there was cross-

examination: Per shankar J in Yeak Chei Chai v Gan Bee Aik [1984] 1 MLJ 305 states “In this case there was no cross-examination. Therefore it follows that there should have no re-examination”.

Impeachment of witness

•Witness impeachment (Mencabar saksi): The expectation is that the witness is called to build up your case, but things can go wrong. Sometimes your witness gives evidence that will not help you. This is called an adverse witness where the witness is reluctant to help you. If a witness gives evidence against you he is called a hostile witness. However you cannot conduct cross-examination of your own witness but you can get leave from the court to impeach the witness under sections 155. See PP v Dato Seri Anwar Ibrahim (No.3) [1999] 2 MLJ 1.

Impeachment of witness• Section 155 of EA 1950 provides for impeaching credit of witness. (Mencabar

kebolehpercayaan saksi)• 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: (Kebolehpercayaan seseorang saksi boleh dicabar dengan cara-cara berikut oleh pihak lawan atau, dengan izin mahkamah, oleh pihak yang memanggilnya)

• (a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit; (dengan keterangan yang diberi oleh orang – orang yang menyatakan bahawa mengikut pengetahuan nereka mengenai saksi itu mereka percaya saksi itu tidak boleh dipercayai)

• (b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence; (dengan membuktikan bahawa saksi itu telah disogok, atau telah menerima tawaran sogokan, atau telah menerima apa-apa dorongan rasuah lain supaya memberi keterangannya)

• (c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; (dengan membuktikan bahawa pernyataan-pernyataan dahulu adalah tak konsisten dengan mana-mana bahagian keterangannya yang boleh disangkal).

Impeachment of witness• The proper method of impeaching the credit of a witness. In Muthusamy v

PP [1948] MLJ 157 states in Muthusamy the court ruled that if there is material (When there is serious and material/not minor or apparent) contradiction in the witness’ testimony, the counsel will have to convince the court and only when the court is convinced, the court will entertain the application to impeach the witness. If the counsel succeeds to impeach the witness, that piece of evidence given by the hostile witness will be expunged from the court’s record. Once the credit of a witness is impeached, his evidence becomes worthless. • Per Adams J in Mathew Lim v Game Warden, Pahang [1960] MLJ 89

states “Once…it is proved that the previous statement when compared with the evidence given in court contains material inconsistencies, the witness’s credit is impeached and his evidence becomes worthless because the witness himself has been shown to be unworthy of credit”. • In PP v Scott Allen Hazlett [2005] 3 CLJ 47 where in the present case, the

court was satisfied that, out of the eight sets of contradictions submitted, there were five sets of serious discrepancies or material contradictions. Once the credit of witness was successfully impeached, his entire evidence must be discarded.

Burden of

proof(Beban bukti)

Burden of proof(Beban bukti)

Legal burden(Beban

undang – undang)

Evidential burden(Beban

keterangan)

Burden of proof

Burden of proof• Meaning of the phrase burden of proof: The phrase burden of proof has two distinct

meanings, namely the burden of establishing a case and the burden of introducing evidence. Per Salleh Abas FJ in International Times v Leong Ho Yuen [1980] 2 MLJ 86 states “For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used (Nanji & Co. v. Jatashankar Dossa & Ors. AIR 1961 SC 1474, 1478 and Raghavamma v. Chenchamma AIR 1964 SC 136, 143). The first sense, signified by the expression burden of proof such as referred to in s. 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander, 7th Edn. paras. 351 and 354). The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss. 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.

Burden of proof• Burden of proof (Latin, onus probandi) is the obligation to prove

allegations which are presented in a legal action. The ordinary rule is that the necessity of proof lies with he who complains. For example, a person has to prove that someone is guilty (in a criminal case) or liable (in a civil case) depending on the allegations; a person is not required to prove his or her own innocence, it is rebuttably presumed. There are generally two broad types of burdens:

Burden of proof• 1) An evidentiary burden (Beban keterangan) or burden of leading

evidence or lighter burden is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie proof of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption. • In criminal cases, the burden of proof is often on the prosecutor -

sometimes referred to by the latin legal expression “ei incumbit probatio qui dicit, non que negat” (the burden of proof rests on who asserts, not on who denies). • In civil law cases, the burden of proof requires the plaintiff to convince

the trier of fact (whether judge or jury) of the plaintiff’s entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.

Burden of proof• 2) A legal burden (Beban undang – undang) or a burden of

persuasion or heavier burden is an obligation that remains on a single party for the duration of the claim. • Once the burden has been entirely discharged to the satisfaction

of the trier of fact, the party carrying the burden will succeed in its claim. The criminal standard of proof on the prosecution is proof beyond all reasonable doubt, which means proof to a high degree of probability but not proof beyond a shadow of a doubt. The criminal standard of proof on a defendant is the same as the civil standard, i.e., proof on the balance of probabilities. In civil action, the standard of proof on both parties is proof on the balance of probabilities, i.e., that an allegation is more probable than not.

Legal burden

• Section 101: Legal burden/burden of proof/burden of persuasion/burden of establishing the case• Section 101 of EA 1950 provides for Burden of proof. (Beban bukti).

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (Barang sesiapa berkehendakkan mahkamah memberi panghakiman tentang apa-apa hak atau liability di sisi undang –undang, dengan bergantung pada adanya fakta-fakta yang ditegaskan olehnya, mestilah membuktikan bahawa fakta-fakta itu ada).• (2) When a person is bound to prove the existence of any fact, it is

said that the burden of proof lies on that person. (apabila seseorang terikat untuk membuktikan adanya sesuatu fakta, maka adalah dikatakan bahawa beban bukti terletak pada orang itu)

Legal burden

• Principle and scope: This section provides that the burden of proof rest upon the party who desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts. Per Low Hop Bing J in Tenaga Nasional Bhd v Perwaja Steel Sdn Bhd [1995] 4 MLJ 673 states “Section 101(1): the plaintiff must prove such facts as the plaintiff desires the court to give judgment as to its right to claim against the defendant or the defendant’s liability to pay the plaintiff. The burden of proof is on the plaintiff: Section 101 (2). In order to succedd here, the plaintiff must prove its claim affirmatively”.

Legal burden

• The shifting of the burden: Here the burden of proof rest throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof has discharged it, then the evidential burden shifts to the other party. If the party on whom the burden lies fails to discharge it, the other party need not call any evidence. Per Augustine Paul J in Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1 MLJ 697 states “It is settled law that the burden of proof rest throughout the trial on the party on whom the burden lies. Where a party on whom the burden of proof lies has discharged it, then the evidential burden shifts to other party…what is shifts is the responsibility of adducing evidence to discharge the burden”. (See also UN Pandey v Hotel Marco Polo Pte Ltd [1980] 1 MLJ 4).

Evidential burden

• Section 102: Evidentiary burden/burden of leading evidence/burden of introducing evidence• The burden of proof referred to in section 102 is the burden of

introducing evidence. Per Augustine Paul JC in Aziz Bin Muhamad Din v PP [1996] 5 MLJ 473 states “The burden of establishing a case must be contrasted with the burden of introducing evidence (the evidential burden). The former is governed by s. 101 of the Evidence Act 1950. The latter is governed by s. 102 of the Evidence Act 1950 which states that “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The burden of establishing a case rests throughout the trial on the party who asserts the affirmative. However, the burden of introducing evidence in a case shifts constantly as evidence is introduced by one side or the other”.

Evidential burden

•The shifting of the burden of introducing evidence: The burden of establishing a case (section 101) rests throughout the trial on the party who asserts the affirmative. However, the burden of introducing evidence in a case (section 102) shifts constantly as evidence is introduced by one side or the other. Per Lee Hun Hoe J in Wong Sieng Ping v PP [1967] 1 MLJ 56 states “The appellant contended that the learned magistrate was wrong to say that the burden of proof had shifted to the appellant. He submitted that, subject to the defence of insanity and in offences where onus of proof is specially dealt with by statute, the burden of proof never shifts to an accused person, in this case the appellant”.

Standard/quantum

of Proof

(Taraf bukti/Bukti standard/

StandardPembuktian)

Standard of proof(standard pembuktian)

Beyond reasonable doubt(Di luar keraguan

munasabah)

Balance of probabilities(Imbangan

kebarangkalian)

Standard of proof

Balance of probabilities•Balance of probabilities also known as the

preponderance of the evidence, is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions, [1947] 2 All ER 372 described it simply as "more probable than not." It is settled law in Malaysia that the standard of proof in civil cases is the preponderance of probabilities. The more serious the allegation, the heavier is the balance of probabilities required.

Beyond reasonable doubt

• Beyond reasonable doubt this is the standard required by the prosecution in most criminal cases within an adversarial system and is the highest level of burden of persuasion. This means that the proposition being presented by the government must be proven to the extent that there is no “reasonable doubt” in the mind of a reasonable person that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a “reasonable person’s” belief that the defendant is guilty. If the doubt that is raised does affect a “reasonable person’s” belief that the defendant is guilty, the jury is not satisfied beyond a “reasonable doubt”. The precise meaning of words such as “reasonable” and “doubt” are usually defined within jurisprudence of the applicable country.

Beyond reasonable doubt• The standard of proof imposed on the prosecution in

Malaysia, is the quantum laid down in the case of Woolmington v. DPP [1935] AC 462, i.e. proof beyond a reasonable doubt. •Miller v Minister of Pension [1947] 2 All ER 372, “That

degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt”.• PP v. Yuvaraj [1969] 2 MLJ 89: Where the burden of

proving a defence or rebutting a presumption is on the accused, the burden on him is the same as that applied in civil proceedings, i.e. on a balance of probabilities”.

Standard of proof: Allegation of election offence?• This relates to bribery and corrupt practices in the running of elections

as covered by the Election Offences Act 1954 (Act 5). What is the quantum by the unsuccessful candidates? Based on the title of the Act, “Offences” it must be of a criminal standard. In Wong Sing Nang v Tiong Thai King [1996] 4MLJ 461, Charles Ho J stated that “It is quite clear from the authorities cited that because an allegation of corrupt practice is of a quasi criminal nature in as much as a finding of corrupt practice entails penal consequences, such allegation must be proved by the petitioner beyond reasonable doubt”. • In Re Pengkalan Kota Bye-Election [1981] 1 MLJ 265 at p 267

Abdoolcader J (as he then was) said: The corrupt practice of bribery which is a criminal offence by statute must be strictly proved beyond all reasonable doubt by clear and unequivocal evidence, and the inducement to vote or refrain from voting must be exercised upon one or more electors or voters who must be identified as the objects to whom it was made or addressed.

Standard of proof: When the case is depends wholly or substantially on circumstantial evidence?

• In McGreevy v DPP [1973] 1 W.L.R. 276, the Court of Criminal Appeal of Northern Ireland said: “Whether at a criminal trial with a jury, in which the case against the accused depends wholly or substantially on circumstantial evidence, it is the duty of the trial judge not only to tell the jury generally that they must be satisfied of the guilt of the accused beyond reasonable doubt…”• In Dato Mokhtar Bin Hashim v PP [1983] 2 MLJ 232,

Abdoolcader FJJ said: “Where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistibly point to one and only one conclusion, the guilt of the accused, but in a case tried without a jury the failure by the court to expressly state this is not a fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt…”


• In Chang Kim Siong v PP [1968] 1 MLJ 36, the appellant appealed against his conviction for murder. The evidence against the appellant was circumstantial and Pike CJ held: “The onus of the prosecution where the evidence is of a circumstantial nature is a very heavy one and that evidence must point irresistibly to the conclusion of the guilt of the accused.”• Per Suffian LP in Jayaraman & Ors v PP [1982] 2 MLJ

306 (FC) “When the prosecution relies wholly on circumstantial evidence, the quantum of proof is that of proof beyond reasonable doubt and not that of irresistible conclusion.”


• Conclusion: Jayaraman and Dato Mokhtar Hashim v PP [1983] 2 MLJ 232 are clearly influenced by McGreevy. It is clear from the above that the quantum of proof in a case involving circumstantial evidence is still proof beyond reasonable doubt. The Federal Court in Jayaraman concluded that the so-called ‘irresistible conclusion test” is merely another way of saying proof beyond reasonable doubt. It is noted the later decisions did not attempt to show that the learned Suffian LP was wrong in Jayaraman’s case. The courts seem to have accepted that the irresistible conclusion test is just another way of finding proof beyond a reasonable doubt. Therefore, it is submitted that the quantum in cases where the prosecution relies entirely on circumstantial evidence is still the same as the quantum imposed on the prosecution in criminal cases, i.e. proof beyond a reasonable doubt. (See Gopal Sri Ram’s JCA decision on the “irresistible conclusion test” in Juraimi bin Husin v PP [1998] 1 MLJ 537 and Visu Sinnandurai J view on the same matter in Malkit Singh v PP. It appears that the present judges still use the irresistible conclusion test. See also PP v Syed Muhamad Faysal Bin Syed Ibrahim [2004] 6 MLJ 302

Standard of proof: Contempt of court?

•Lord Denning MR in In re Bramblevale Ltd. [1970] Ch. 128. The Master of the Rolls there said (at p. 137) “ A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him”. See Lee Lim Huat v Yusuf Khan [1997] 2 MLJ 473, 485.

Standard of proof: Fraud?• In Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Azmi FCJ. Stated

“Where the allegation of fraud in civil proceedings concerns criminal fraud such as conspiracy to defraud, or misappropriation of money or criminal breach of trust, it is settled law that the burden of proof is the criminal standard of proof beyond reasonable doubt, and not on a balance of probabilities. However, where the allegation is entirely founded on a civil fraud and not on a criminal conduct or offence, the civil burden is applicable”. • In Saminathan v Pappa [1981] 1 MLJ 121 where Suffian LP in FC cited

Lord Atkin in Narayanan Chettyar v Official Assignee, Rangoon AIR [1941] PC 93, 95 for the proposition that the defendant must prove fraud not on the balance of probabilities but beyond reasonable doubt for the purpose of proving the plaintiff’s name as registered owner under s 340 of the National Land Code 1965. The criminal standard, ie proof beyond reasonable doubt, was also applied by the PC in Datuk Joginder Singh & Ors v Tara Rajaratnam [1986] 1 MLJ 105. There the fraud was based on CBT and undue influence in the transfer by the plaintiff’s land.

Standard of proof: Fraud?• Fraud smells of crime, so how come you divide it as civil and

criminal. There is a problem to distinguish it. In Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd. [2000] 4 CLJ 464, per Ian HC Chin J: “The distinction between civil fraud and criminal fraud cannot hold. It is an attempt at distinguishing the undistinguishable. “Fraud” has the same meaning whether in criminal or civil cases. In this case, the standard of proof must be proof beyond reasonable doubt.”• Current position:- It is now settled law that the standard of proof

required for an allegation of fraud in civil proceedings must be one of beyond reasonable doubt and not on balance of probabilities. (See: Asean Security Papers Mills Sdn Bhd v. CGU Insurance Bhd [2007] 2 CLJ 1 (Federal Court); and Yong Tim v. Hoo Kok Chong & Anor [2005] 3 CLJ 229 (Federal Court).

Standard of proof: Forgery?• However, for forgery in bank charges, the Supreme Court in applying the

civil burden of proof held in United Asian bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, following Sykt Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ 218 “The standard of proof required in a case of forgery on the facts of such a case as the one before the Court is not that of beyond reasonable doubt, but of a balance of probabilities”. • In Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ 17,

Gopal Sri Ram JCA held that it is a general rule of the common law that, in the absence of a statutory provision to the contrary, proof in civil proceedings of facts, amounting to a crime need only be on a balance of probability. • The general rule finds expression in the judgment of the High Court of

Australia in Rejfek v McElroy [1965] 112 CLR. The proof of forgery in civil proceedings, unlike fraud, comes within the general rule earlier adverted to. That it need only be established on a balance of probabilities was laid down as long ago as 1855 by the Privy Council in Doe D. Devine v. Wilson [1855] 14 ER 581.

Standard of proof: Alibi?• Alibi (Section 103 of EA): The court held in Jayasena that if there is an

allegation on a particular fact, to rebut that fact the quantum of proof is on a balance of probability. This was also held in Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232 (FC), where the accused relies on the defence of alibi, then he has the legal burden to prove his defence. However the Supreme Court in Yau Heng Fang v PP [1985] 2 MLJ 335 a dicta from Mohamed Azmi SCJ that the burden on the accused in cases of alibi is only an ‘evidential burden’, ie he need only raise a doubt in the prosecution’s case. Relying on Woolmington v DPP [1935] AC 462, the accused has no legal burden to prove his defence. In that case the Supreme Court followed the English case of R v Johnson (1961) 46 Cr App R 55 and held that the burden on the accused who relies on the defence of alibi is only an evidential burden. In these cases the counsels and the Supreme Court did not refer to section 103 illustration (b). They chose to rely on Johnson’s case. It is respectfully submitted that this decision is contrary to the clear provision of section 103.

Standard of proof: Self defense?

• Self defense (Section 105 of EA): Since the decision of Jayasena v R [1970] AC 618, [1970] 1 All ER 219 it has been accepted by all the courts in Malaysia that the burden imposed by section 105 on the accused is a legal burden to prove his defence (must prove the case on balanced of probabilities). The counsel for the appellant submits that the burden imposed by section 105 is actually the evidential burden (must proof the case beyond reasonable doubt), is the burden of adducing some evidence in support of the case. The argument is that the code should be interpreted in the light of Woolmington v DPP. This argument has been decisively rejected by the Supreme Court of Ceylon in the case of R v Chandrasekera (1942) 44 NLR 97.

Standard of proof: Self defense? The Privy Council in the Ceylonese case of Jayasena v Reginam

[1970] AC 618, [1970] 1 All ER 219 has ruled that the burden of proving accident, provocation, or self-defence rested upon the accused and could not be construed in the light of a decision in Woolmington v Director of Public Prosecutions [1935] AC 462 (i.e. evidential burden/ beyond reasonable doubt) that had changed the English law. In the Federation we have been following the decision in Woolmington's case as is apparent in the judgment of the Court of Appeal (as it was then known) in the case of Looi Wooi Saik v Public Prosecutor [1962] MLJ 337. The provision of section 105 of the Evidence Ordinance of Ceylon is similar to our section 105. Looi Wooi Saik’s case would, therefore, appear to have been overruled. In the Federal Court cases of Lee Chin Hock v PP [1972] 2 MLJ 30 and Lee Thian Beng v PP [1972] 2 MLJ 248 where it was held that the burden of proving the circumstances in section 105 is on accused. It is settled law that in criminal proceedings where there is a burden on the accused it is no higher than that of a party in a civil proceeding, that is to say on the balance of probabilities. See also Ikau Anak Mail v PP [1973] 2 MLJ 153.

Standard of proof: Matrimonial offences? Matrimonial offences: In Lim Nyun Yin v. Gan Kim Biow & Ors. [1982] 2

MLJ 68 the petitioner, a Singapore staff nurse, and the respondent, a Malaysian dental surgeon, were married in 1977 in the civil marriage registry in Seremban. After their marriage and honeymoon, they were supposed to set up matrimornal home in Bahau, Negeri Sembilan. As events turned out, they never really set up any proper matrimonial home in Malaysia or Singapore. She continued to work as a staff nurse in Singapore and he a dental surgeon in Negeri Sembilan and they met and had marital intercourse on weekends and holidays on both sides of the Johore Causeway. This arrangement appeared workable till the respondent was transferred to the Government dental clinic in Seremban, when the petitioner became suspicious of his relationship with two staff nurses, the co-respondents. After signing a separation agreement, the couple decided to live apart. The petitioner then filed her petition seeking dissolution of the marriage based on the sole ground of the respondent's adultery with the co-respondents. The evidence in support was not direct but circumstantial. In his answer, the respondent counter-charged desertion and cruelty on the petitioner's part and sought divorce on those grounds. Held: (1) adultery, cruelty, and desertion are serious matrimonial offences and require proof beyond reasonable doubt. See also Ng v. Lim [1969] 1 MLJ 139 & Wee Hock Guan v. Chia Chit Neo & Anor [1964] MLJ 217.

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doubt

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Balance of

probabilities

Balance of

probabilities

Beyondreasonable

doubt



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