LAW OF EVIDENCE (GLUP 4053)

ASSIGNMENT 1

WRITTEN REPORT ON SECTION 8 OF EVIDENCE ACT 1950

PREPARED BY:

NAME MATRIC NUMBER

MUHAMMAD ASHRUL HAIKAL 255762
BIN ASHRI

PREPARED FOR:

DR ANI MUNIRAH BINTI MOHAMAD

SUBMISSION DATE

7TH DECEMBER 2020

1.0 Introduction

In the year of 1790, far across to the east of London, there was a notorious man who
claiming himself as the servant of god which his duty was to purify the city from women
by the method of slitting the throat of the victim and this man was known as J.W Von
Archenholtz alias the London Monster which had committed numerous crime of murder
and rape upon young lady and prostitute with a terrifying method by using small knife
attached to the flowers before raping the victim and after three years of his “purifying
actions” the monster was caught and it was revealed that the motive behind his actions was
to unleash his personal vendetta against women due to the failure of his previous
relationship and abused by his mother during his childhood1.

The ill-fame London monster has become one of the most fundamental material
to study the existence of motive in a commission of crime and offence. Guyora Binder in
his article of The Rhetoric of Motive and Intent 2, highlighted the notion or arguments put
forward by the Martin Gardner where he suggested that the criminal law has evolved
around the existence of motive whereby it is on the basis that criminal liability is
constructed based on the maxim of actus reus non facit reum nisi men sit rea where a guilty
action can only be liable with the existence of a blameworthy mind. However, in relation
to the maxim only, it is very questionable how to determine the blameworthy mind exist
and from the maxim, Gardner infer that motive has a starring role to play in order to
accompany the establishment of mens rea.

Nevertheless, in our legal landscape in Malaysia, Evidence Act 1950 has

address the circumstances related to motive and has been even more comprehensive rather
than the lying principles of foreign countries. Section 8 of Evidence Act 1950 under
subsection 1 stated that the existence of motive or preparation by promoting a particular
fact before the court which to support any fact in issue or relevant facts to the case; and
under subsection 2 suggested that any conduct by any entities related to the party of the
proceedings exempli gratia an agent or the party itself can be proved before the court in
circumstances where the facts are related to fact in issue or deemed as relevant fact.

1
Colin Wilson, “Chapter Fifteen: Sex Crime- The Beginnings,” in Serial Killer Investigations (Chichester:
Summersdale, 2007), pp. 276-295.
2
Guyora Binder, “The Rhetoric of Motive and Intent,” Buffalo Criminal Law Review 6, no. 1 (January 2002): 1-
96.
 Generally, in regards to the perspective of criminal liability there are four
stages of committing a crime which are intention, preparation attempt and accomplishment
of the crime3 and only at the stages of attempt and accomplishment can an offender be
charged. This perspective is particularly similar in Malaysia due to the circumstance of pari
metaria with India which was address in the case of Thiangiah & Anor v PP [1977] 1 MLJ
79. However, the elements that may exist on first and second stage may be very vital in
order to prove the liability by establishing a prima facie case which is a standard of proof
in a criminal trial or discharging the burden of proof based on the balance of probability in
the civil cases.

As summary, the comprehensiveness of Section 8 of Evidence Act 1950

comprises 3 fundamentals pillar which can be very crucial in proceedings before the court
whereby the 3 pillars are known as; motive, preparation and conduct (either previous or
subsequent one). Therefore, the aim of this study is to determine how these 3 elements
fulfilled their own role in order to ensure fair and just trial. In further elaboration, the most
fundamental object about Section 8 of Evidence Act 1950 is to ensure all three motive,
preparation and conduct exist in one same transaction or Res Gestae.

3
Rajib Hassan, “The Elements and Stages of a Crime,” accessed November 26, 2020,
http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html.
2.0 Legal Principle

Generally, the identity of Section 8 of Evidence Act 1950 portrayed the wide
aspects which it may cover as it was explained in the case of PP v Peter Kong [2007] 5
MLJ 567 where there are 5 materials which are (i) facts which shows motive; (ii) facts that
reveal preparation; (iii) facts which divulge previous or subsequent conduct, (iv) statements
to explain any acts and (v) statement made in the presence and hearing of a person 4.

In discussion which concern with the principle related to Section 8 of

Evidence Act 1950, this paper will examine the value of the core to the provision in a
separate manner where for the elements of motive and preparation will be discussed
altogether and only the elements of conduct shall be address separately.

First of all, in regards to the motive and preparation although motive was not
mention as part of the stage of crime and preparation only is not sufficient to impose a
criminal liability on a person due to the ambiguity of the outcome of a preparation itself.
Nevertheless both of these elements can appear as a crucial instrument within a relationship
that formed between motive, intention and preparation.

These three aspects of motive-intention-preparation must exist and form a

link which will establish a strong connection to be proved before the court. Bear in mind
that motive and intention must be distinguished between one another as the motive is
psychology effect or known as mental trigger which lead to the creation of impulse that
develop the intention to commit which lead to preparation of an act5.

Based on the requirement of mens rea which is a guilty mind which by

interpretation of Section 35 of Penal Code “whenever an act is a criminal offence which
done by criminal intention or knowledge…” which suggested that under the Malaysian Law
the law considered that knowledge is a part of mens rea element which at the first instance
would be difficult to be proved before the court.

4
Hamid Sultan Abu Backer, Janab’s Key to The Law of evidence, Advocacy and Professional Ethics
(Janab (M) Sdn Bhd, 2018) 145
5
David P. Leonard “Character and Motive in Evidence Law”, Loyola of Los Angeles Law Review 34
(2001): 439-440 Loyola Marymount University.
 The difficulties to prove knowledge as part of the intention was address in
the case of PP v Suzie Adrina Binti Ahmad [2006] 5 MLJ 135 where the presiding judge
Gopal Sri Ram elaborated that knowledge is a state of mind which can be understood and
interpreted based on the admitted circumstances and one of the method to interpret
knowledge of mind is by proving the existence of motive. In simple words, although motive
is not part of intention nor requirement of criminal liability, but motive can be vital when
proving the existence of one part of criminal liability.

On the other hand, the motive only can be employ as an ingredient to show
that there was an establishment of intention towards the commission of a particular offence
but not to show that the motive was developed by the fact that the offender was bad in
nature or having bad character as it will poise unjust towards the accused, this principle
was established in the case of Nath Singh v R (1949). This principal can be seen was
influenced by the ideal of challenge against the involvement of motive as instrument of
evidence where the scholars from western world nowadays has been debated whether
motive should be given a limitation as instrument of evidence in order to prove fact in issue
or relevant fact to a specific case6.

The objective of using motive as an instrument to show the bad character was
installed in the framework of Evidence Act 1950, whereby it was stipulated under Section
52 for civil proceeding, where such action shall not be permitted if the purpose was to
convince that the actions was established by the bad character and it falls under similar
situation for criminal trial where under Section 54, showcase of bad character is not
permissible unless for reply.

In practice, there can be said that there are two manners where an evidence
can appear before a trial, either as direct evidence or circumstances evidence where these
two can be differentiate whereas for the direct evidence it must be established under Section
5 and Section 60 of Evidence Act 1950 where direct evidence refer to the actual production
of material or by testimony of the witness, meanwhile circumstantial evidence must be
produce under the context of Section 60 by witness in accordance of his own senses which

6
Elaine M. Chiu “Challenge of Motive in the Criminal Law” Buffalo Criminal Law Review 8 No 2
(2005):657, https://doi.org/10.1525/nclr.2005.8.2.653
 it must refer to any fact that will allow the judge to make inference in relation to the
existence of fact in issue7

Therefore in relation to the role of motive to be played is different according

to the manner of evidence presented in a particular trial whereby in direct evidence, motive
has very little role to be performed meanwhile as for the circumstances evidence, motive
has a vital role to be played where in the case of Dato’ Mokhtar Bin Hashim & Anor v PP
[1983] 2 MLJ 232 the presence of motive would make the charge more concrete against
the accused. However, the absence of motive would not make the chance of accused to
exculpate from charge higher as long as there are other evidence which established the
connection between the offence and the accused as we have to remember that motive is not
sufficient to secure conviction unless the offence actually occurred as absence of motive is
not equal to absence of intention or mens rea8.

Secondly, onto the part of preparation of an offence which fundamentally is

not able sufficient to secure a conviction against the accused nor being a part of element to
be proved in relation to a certain offence. However, the presence of preparation towards a
particular offence or action can be a vital instrument in proving fact in issue or any relevant
fact.

In general, preparation can be very ambiguous or vague in order to establish

a connection between the preparation and the commission of the crime as one act of
preparation can bring various different outcomes, as example the act of purchasing a knife
can be taken into account as an preparation to commit murder or to use the knife as kitchen
utensils. In regards to ambiguity of preparation, arise the question how to differentiate
between a mere preparation or an attempt to commit crime.

The answer lies in the test laid by Augustine Paul J (as he was then) where
the outcome of the act would determine whether it is an attempt or a preparation, if the
person change his mind, the overt acts done would not be harmful will make the act known
as preparation but if the overt acts done which will not prevented by extraneous cause
would result to the commission of the crime, then such action will be known as attempt;

7
Habibah Omar, Siva Barathi Marimuthu, Mazlina Mahali, Law of Evidence in Malaysia (Thomas Reuters Asia
Sdn Bhd, 2018) 20-21
8
Atley v State of UP (1955) AIR (SC) 807
 this fundamental test was founded in the case of Mohd Ali Jaafar v Public Prosecutor
[1998] 4 MLJ 219.

The third pillar of section 8 is known as previous or subsequent conduct

where in literal meaning, conduct equals to behavior of a person which reflect his or her
state of mind and it must be distinguished from character as character is an opinion formed
by a third party against a particular subject.9 In a broader context, the coverage of conduct
under Section 8 of Evidence Act 1950, includes (i) conduct of any party of agent to any
party in reference to any suit or proceeding or (ii) conduct of any party or agent in reference
to facts in issue or relevant facts in that suit or proceedings or (iii) conduct of the victim.

In relation to the practicality of establishing conduct under section 8, the

victim or complainant must be aware regarding the nexus of the conduct and the event, in
simple words both the conduct and the event must exist together which will establish a fact
in issue, Failure to do so will result an isolation between the conduct and the event that will
create a weak fact in issue which will be volatile to one’s claim10

Furthermore, although coverage of conduct under section 8 is very broad, the

coverage shall be interpreted in literal meaning whereby a statement should not be
considered as a conduct unless the statement is to explain a conduct, falls under complaint
or fulfilled the requirement of section 32(1)(a) of Evidence Act 1950 or the statement is
corroborated under Section 157 of Evidence Act 1950.

9
Abu Backer, Janab’s Key to The Law of Evidence, Advocacy and Professional Ethics, 149
10
M. C. Sarkar et al., Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia and
Singapore (Nagpur: Wadhwa and Co., 2009).
3.0 Analysis

The analysis part will be put forward three cases decided by the court in
Malaysia which 2 of the cases would be criminal cases which the accused was charged
under Section 302 of Penal Code and one case of civil matter concerning with the element
of negligence which was the key ingredient to prove the liabilities; bear in mind that all
three cases would be applied for analysis related to each of the pillar under Section 8
Evidence Act 1950 which are motive, preparation and previous or subsequent conduct.

The first case is known as Pendakwa Raya v Thinesh A/L Velayuthan [2019]
1 LNS 2087 which will be used to discuss the application of the provision in relation the
presence of motive as a vital ingredient in trial which rely on the circumstantial evidence.
Brief fact of the case which was agreed by both parties were the deceased (known as
Kumar) a Sri Lanka national holding UNCHR card was reported missing by his wife around
8/10/2017 which his body was found by a staff of Jabatan Kerja Raya on 9/10/2017 nearby
RNR Genting Sempah.

In this trial, the presiding judge highlighted there are 3 elements under Section
302 of the Penal which must be proved which are (i) Kumar is the deceased, (ii) the death
was caused by injuries by the deceased which in common will cause the death of the
deceased and (iii) the accused cause the injury with intention.

The prosecution succeeded in proving the first and second element however,
as for the third element the prosecution argued there were only circumstantial evidence
related to the case which were (i) the report of 2 mixed DNA sample which one was
identified belong to the accused and the second one was too weak to be identified (ii) the
testimony of SP13 which alleged the accused asked SP 13 to deliver warning to the
deceased due to the delay of paying debt to the accused.

The prosecution further argued that the accused caused the death of the
deceased by existence of motive due to anger against the habit of the deceased for delaying
the payment of debt regarding to their transaction. However, at the end of the trial the court
acquitted the accused due to the failure of the prosecution to prove the third element.
 In my opinion, I agreed with the judgment of the judge because it is very basic
principle where if in a case the reliance is upon the circumstantial evidence the burden of
proving is much more strict whereby it is the duty of the prosecution to lead the court to
agree only on one conclusion which is the accused did killed the deceased. This principle
was known as the irresistible conclusion test which was established in the case of Juraimi
Hussin v PP {1998] 1 MLJ 537.

Next, the second case is known as PP v Yusof Saruan [2019] 7 CLJ 190 which
was an appeal case where in this case will reflect towards preparation and subsequent
conduct. The respondent was originally charge under Section 302 of Penal Code but was
amended to Section 304 of Penal Code which culpable homicide not amounting to murder.
Prior to the fateful event, the respondent was on drug before meeting the deceased and
entered into an argument after being provoked by the deceased and at the end of the original
trial the respondent was sentenced to 25 years imprisonment under Section 304 of Penal
Code.

The prosecution filed an appeal on the ground where the judiciary

commissioner was erred in law in relation to Section 8 of Evidence Act 1950 which the
prosecution claimed there were 2 points that the judiciary commissioner failed to take into
account the weighs of the evidence which were the fact that the respondent brought when
meeting the deceased and holding the knife when he was provoked and the second evidence
was after stabbing the deceased, the respondent took valuable belongings of the deceased
such as necklace, cash and handphone and in fact went to the pawn shop to pawn the
necklace.

These two actions negated the respondent defense which he was acting without
his conscious following the provocation by the deceased and in further circumstances, court
of appeal agreed with the arguments by the appellant and overruled the decision in high
court and sentence the respondent to death.

In regards to this case, I strongly believed that Section 8 of Evidence Act 1950
has strongly become the turning point to rebut the defense of sudden provocation by the
respondent which supposedly to be built on the balance of probabilities. It was very illogical
that a person which he claimed to be unaware of the nature of a conduct and has lost his
conscious can make a decision and perform an action of any reasonable man may do upon
finding themselves valuable properties of someone else.
 On top of that, based on my knowledge, the action performed by the respondent
between stabbing the deceased and collecting valuable items from the deceased body was
deemed to be in a nexus which will establish a fact in issue during the trial whereby failure
to establish a nexus will render the fact in issue and conduct to be isolated11.

The third case which will be part of the analysis is the case of Goodwood Hotel
Sdn Bhd v QTC Transformers Marketing Sdn Bhd & Ecotrafo Malaysia Sdn Bhd [2019]
1 LNS 2175 which was an appeal case heard before the judiciary commissioner Awang
Armadajaya Awang Mahmud in the High Court of Johor Bharu. The respondents were a
company involved with the installation and manufacturer of the transformers respectively
which will be supplied to the appellant. However, following the supply and the installation
of two transformers at the appellant premise with three years warranty.

Nevertheless following the installation and within the period of warranty, both
of the transformers were broke down and caused damages to the appellant. Therefore the
court was to determine whose liabilities it was on the ineffective transformers. The turning
point of this hearing was the role of the first respondent in the agreement between the parties
which supposedly to install a system of transformer but during the trial, it was revealed to
the court that the role of the first defendant was only to provide cable and input supply to
the transformers. Furthermore, it was exposed to the court by the expert witness that the
damage on the transformer was due to absence of the earthing system to withstand lightning
strike.

In my opinion, his lordship has brilliantly connect between provision under

Section 8 of Evidence Act 1950 with the act of the first respondent, whereby the first
respondent has neglected its obligation as under the stipulated agreement which later
caused damage in term of monetary as well as reputation to the appellant.

All in all, in three cases that we have analyzed, we can come into one major
conclusion which is the role of Section 8 of Evidence Act 1950 is to serve as a mechanism
to measure how strong the element of a particular offence accrued which will enable the
court to pass conviction upon the accused or render the defendant liable for negligence or
any civil liability that can be imposed.

11
M. C. Sarkar et al., Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia and
Singapore
4.0 Reflection

Although the term like motive is very popular in crime investigation drama, it
actually does in real world carry a good value of evidence for itself as well as the words
conduct and preparation. However, we have to realize none of these words are able to
secure conviction or liability by themselves which at first instance we are aware that these
words carry no real value as compare to its popularity. There also has been some serious
challenge on how important the role of motive can play as it was not an element of crime
nor a stage of committing crime12. On the other hand the relevancy of motive has been call
into question in context of legal practice because some believed over dependent towards
motive can cause prejudice towards the accused especially in circumstances where every
other person may possessed ill motive towards the victim13.

However, I beg to differ from such stance because in my opinion, the existence
of motive should be given equal footing as it is supposed in comparison to preparation and
conduct. This is because the ideality of motive itself can give a greater role in order to
ensure fairness and justice to the victim of a terrible crime. Furthermore, the challenge on
motive should not be without boundaries, because I believe the application and the way it
being enforce should be taken into account.

As example, in context of preparation in relation to the landscape of our country,

Malaysia whereby under Section 6 of Sexual Offences against Children Act 2017,
incorporated and criminalized the act of preparation to make child pornography whereby
this circumstances different in context of preparation in general.

As conclusion, I believe the way that we have Section 8 of Evidence Act 1950
as mechanism to ensure the elements of offences or civil liability has been fulfilled is
comprehensive in nature because it allows the use of circumstantial evidence in trial to be
more lenient as it is right now. However, I do not reject that such provision may have room
to be more comprehensive in future.

12
. Chiu “Challenge of Motive in the Criminal Law” Buffalo Criminal Law Review 8 No 2
(2005): 660
13
Douglas N. Husak, “Motive and Criminal Liability” Criminal Justice Ethics 8 No 1 (Winter/Spring 1989):5
http://dx.doi.org/10.1080/0731129X.1988.9991846
REFERENCES

Backer, Hamid Sultan bin Abu. Janab's Key to the Law of Evidence, Advocacy and
Professional Ethics. Kuala Lumpur: Janab (M) Sdn. Bhd., 2018.

Binder, Guyora. “The Rhetoric of Motive and Intent.” Buffalo criminal law review 6, no. 1
(2002): 1–96.

Chiu, Elaine M. “The Challenge of Motive in the Criminal Law.” Buffalo criminal law
review 8, no. 2 (2005): 653–729.

Hassan, Rajib. “The Elements and Stages of a Crime.” Accessed November 26, 2020.
http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html.

Husak, Douglas N. “Motive and Criminal Liability.” Criminal justice ethics 8, no. 1 (1989):
3–14.

Leonard, David.P "Character and Motive in Evidence Law". Loyola of Los Angeles Law
Review 34 (2001): 439-440

Sarkar, M. C., S. C. Sarkar, Prabhas Chandra. Sarkar, Sudipto Sarkar, and V. R. Manohar.
Sarkar's Law of Evidence in India, Pakistan, Bangladesh, Burma, Ceylon, Malaysia and
Singapore. Nagpur: Wadhwa and Co., 2009.

Wilson, Colin. Serial Killer Investigations. Chichester, England: Summersdale, 2007.