LAW578/591 – LAW OF EVIDENCE II

TUTORIAL QUESTIONS
TOPIC 5 – BURDEN AND STANDARD OF PROOF

3. Consider the burden and standard of proof in the following situation:

a. ABC Sdn Bhd is a property development company. Ah Chong, the managing

director of the company, colluding with the seller, bought on behalf of the
company a piece of land for development for RMlmillion ringgit when the
actual market value was only RM300,000. Ah Chong is alleged to have
received a 'kick back' in the amount of RM200,000 from the seller. ABC Sdn
Bhd has now commenced an action against Ah Chong claiming damages on
the grounds of fraud and criminal breach of trust. Ah Chong's defence is a
bare denial of the allegations.

b. Samy has commenced an action against Fred seeking a declaration that he is

the rightful owner of a piece of land in Damansara. In his claim he alleges that
Fred ​had forged his (Samy's) signature in the memorandum of transfer and
thereby procured the registration of the land in his (Fred's) name. Fred in his
defence denies Samy's allegations and asserts that the signature in the
Memorandum of Transfer is the genuine signature of Samy's.

ANSWERS:

a) The fact in issue in this question is whether Ah Chong is guilty of the offence
of fraud and criminal breach of trust committed towards ABC Sdn Bhd.

The issue is whether Ah Chong’s defence towards the action made by ABC
Sdn on the grounds of fraud and criminal breach of trust is enough to show the
burden and standard of proof of the allegations.

Generally, ​Section 101 ​stated regarding the burden of proof. 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. When a person
is bound to prove the existence of any fact, it is said that the burden of proof lies on
that person. The burden of proof is imposed based on the principle that he who
asserts must prove. In criminal cases, the prosecution has the burden of proving the
elements of the offence. While in civil cases, the plaintiff assumes burden of proof for
his action.
 Next, ​Section 102 of the Evidence Act provides that the evidential burden lies
on both parties to a case, whether criminal or civil. In civil cases, the plaintiff will have
the legal burden to prove the case on a balance of probabilities while the defendant
assumes the evidential burden to raise sufficient evidence. In criminal cases, the
prosecution has the burden to prove the case (legal burden) and this burden remains
on him throughout the trial in respect of the facts in issue. The accused on the other
hand, generally has to weaken the effect of the prosecution’s case either by
cross-examination, or if he is called to enter defence, by adducing evidence himself
or through witnesses. The standard of proof refers to the quantum of proof and in
criminal cases, the prosecution to prove a case on a standard beyond a reasonable
doubt.

The term balance of probabilities was referred to in ​Miller v Minister of

Pensions so as to mean a probability which is ‘​not so high as required in a criminal
case…more probable than not…but if the probabilities are equal, it is not discharge.​’
In the case of ​Eastern Enterprise v Ong Choo Kim​, the court held that the standard
of proof must be higher than degree of probability but not very high standard of the
criminal law.

In one of the other local cases ​Mat v PP, ​the appellant in this case was
charged with theft and alternatively with dishonestly retaining stolen property. He
gave evidence and called witnesses in his defence at the end of which he was
convicted because "on the whole" the learned Magistrate was "unable to believe the
defence.” It was held that the learned Magistrate had seriously misdirected himself as
to the meaning of the burden of proof by the accused in cases where it was
necessary for him to rebut the prosecution case against him. If the court accepts the
explanation given by or on behalf of the accused, it must acquit. But this does not
entitle the court to convict if it does not believe that explanation, for he is still entitled
to an acquittal if the explanation raises a reasonable doubt as to his guilt, as the onus
of proving his guilt lies throughout on the prosecution. If upon the whole evidence the
court is left in a real state of doubt, the prosecution has failed to satisfy the onus of
proof which lies upon it.

Applying to this issue, Ah Chong is alleged to have sold a RM300,000 market

value land for RM1 million. ABC Bhd is alleging that Ah Chong has received

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RM200,000 profit from the transaction. Since ABC Bhd are contending that Ah
Chong has committed Criminal Breach of Trust and fraud, the burden of proof shall
lie on ABC Bhd to prove that Ah Chong did commit fraud and CBT. Nevertheless, Ah
Chong still holds the evidential burden to weaken ABC Bhd’s case.

Ah Chong must prove that he had no knowledge that the property was only
RM300,000 instead of RM1 Million as per ​section 106 which stated that when any
fact is especially within the knowledge of any person, the burden of proving fact is
upon him. Since this fact is only known to Ah Chong, he might need to produce all
documents related to the agreement, for example the report from surveyor at the time
he purchased the land from the seller. A bare denial on part of Ah Chong won’t be
sufficient to help him with the case.

In conclusion, the burden of proof will be on ABC Bhd as the complainant to

prove the legal burden but Ah Chong still needs to discharge his evidential burden by
proving that he had no knowledge on the huge gap between the market value and
purchase price of the land. Meanwhile the standard of proof is on the balance of
probabilities which need to be proven by the party alleging the fact, which in this case
is ABC Bhd.

b) The fact in issue is whether Fred is liable for forged Samy’s signature in the
memorandum of transfer.

The issue is in regard to the burden and standard of proof where there is
criminal allegation in a civil case.

Burden of proof refers to the legal burden of proving facts in issue or

establishing a case. Section 101 of Evidence Act 1950 provides on burden of proof
whereby it is stated that 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; 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.

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 Basically, the burden of proof is imposed based on the principle that he who
asserts must prove. In civil cases, the plaintiff will have the legal burden to prove the
case on a balance of probabilities while the defendant assumes the evidential burden
to raise sufficient evidence. With regards to the standard of proof, in general, the
standard of proof in civil cases is on a balance of probabilities.

There might be distinction on the standard of proof where there exists a

criminal allegation like adultery, forgery, misrepresentation, fraud and more in a civil
case. Concerning the allegation of forgery, the case that can be referred to is ​Adorna
Properties v Boonsom Boonyanit (2001)​. In this case, the plaintiff claimed that she
was the registered proprietor of two pieces of land ('the land'). She alleged that
someone had forged her signature and transferred the land to the defendant. The
defendant claimed that it had no knowledge that the transfer documents were forged
by someone who was not the true owner and had no reason to suspect that they
were forged. The High Court dismissed the plaintiff's claim but its appeal to the Court
of Appeal and the appeal was allowed.

Hence, the defendant appealed to the Federal Court. The issues for
consideration were: (i) whether the standard of proof for forgery was that of a balance
of probabilities or beyond a reasonable doubt; and (ii) whether the defendant had
acquired an indefeasible title to the land by virtue of the proviso to Section 340(3) of
the National Land Code 1965 ('NLC'). The court held that the standard of proof for
forgery in a civil case is that of a balance of probabilities.

In addition, in the case of ​Yong Tim v Hoo Kok Cheong (2005)​, the issue
that was brought before the Federal Court was whether the civil standard of proof as
applied in ‘forgery’ cases, which is proof on a balance of probabilities as enunciated
by the Federal Court in ​Adorna Properties Sdn Bhd v Boonsom Boonyanit (2001)
should also be applied in ‘fraud’ cases. The court ruled that with regard to the
standard of proof to be applied in civil proceedings, a clear distinction must be drawn
between ‘forgery’ and ‘fraud’. The general rule is that proof in civil proceedings of
facts amounting to the commission of a crime (including forgery) need only be on a
balance of probabilities. However, where fraud is alleged in civil proceedings, it has
to be proved beyond a reasonable doubt.

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 Therefore, in the current situation, Samy has alleged that Fred is committing
forgery of his signature in the Memorandum of Transfer of a land in Damansara.
However, Fred denies the allegation by stating that the signature in the said
Memorandum of Transfer is the genuine signature of Samy. Thus, it can be said that
Samy has made a criminal allegation towards Fred in the civil claims of the registered
owner over the said land in Damansara. ​By virtue of Section 101 of EA 1950​, the
legal burden lies with Samy. He must prove to the court the basis of his allegation
towards Fred.

Meanwhile, the evidential burden shifts from one another. The evidential
burden lies on Samy as the plaintiff when he adduced evidence of forgery committed
by Fred and once it is proved by the court, the evidential burden shifts on Fred as the
defendant as he needs to tender evidence to the court as to prove that the signature
in the Memorandum of Transfer of a piece of land in Damansara is the genuine
signature of Samy.

By virtue of the case ​Adorna Properties Sdn Bhd v Boonsom Boonyanit

(2001), ​the standard of proof in the current situation is on the balance of probabilities.
This is due to the fact that this question is concerned with the allegation of forgery in
a civil claim of dispute of registered proprietor of the said land.

To conclude, the legal burden lies on Samy meanwhile the evidential burden
lies on both parties, Samy and Fred. Also, the standard of proof in this question is on
the balance of probabilities.