GROUNDS OF SUBMISSION

We humbly submit to the court that these are the grounds that goes to the root of this
erroneous conviction appealed against, namely:

1. The learned trial judge has erred in law in failing to consider the fact that Mr Ng did not
provide reason in giving his answer

2. The learned trial judge has erred in law in failing to find that the prosecution is in breach
of section 51A of Criminal Procedure Code

3. The learned trial judge has erred in law in accepting Inspector Ariffin opinion as it is
not relevant and admissible

4. The learned trial judge has erred in law in accepting Inspector Ariffin testimoy without
corroborative evidence

5. The learned trial judge has erred in law for allowing Inspector Ariffin to tender records
of Lee’s previous convictions and hence tends to reveal his bad character.

6. The learned trial judge has erred in law in convicting Lee since the burden of proof of
the special knowledge under section 106 of Evidence Act by teoh is not satisfied

7. The learned trial Judge has erred in law in refusing to admit Teoh’s previous
convictions on the ground that it is not relevant

8. The trial judge has erred in law in rejecting Mr. Kunalan’s testimony on the ground that
certificate was not adduced pursant Section 90A of Evidence Act.

The fact in issue is whether Lee is guilty for the offence of drug trafficking under
section 39B of the Dangerous Drugs Act 1952

1
THE GROUND OF APPEAL

1. The learned trial judge has erred in law in failing to consider the fact that Mr Ng did not
provide reason in giving his answer

The issue is whether Mr Ng may give opinion without providing his reason

Expert opinion is an opinion of a person who is deemed to possess special skill or knowledge
relating to subject matter in issue, one that an ordinary man lacks. This can be further
explained in section 45(1) of Evidence Act 1950 (EA) where a person is an expert and may
be called to give an opinion in assisting the court, if the subject matter involves if the subject
matter involves foreign law, science or art, handwriting or fingerprints impressions. In
determining this, it must first be considered whether the subject matter or the nature of
evidence is as such that requires special skill. In the case of Junaidi bin Abdullah v PP
[1993] MLJ 217, the test to be applied for section 45 of EA is firstly whether subject matter
requires expert testimony.

Secondly, whether a witness who is giving testimony is an expert in the subject matter in
dispute. In other words, that person has the necessary skills. This can be seen in the case of
Datuk Mokhtar Hashim and PP v Muhammad Sulaiman [1983] 2 MLJ 332 where the court
held that plaintiff who was the chemist was a competent expert witness even though with no
academic training and qualification in ballistic as the evidence sought to be prove by the
prosecution is only limited to the serviceability of an ordinary revolver. The chemist was
competent to give expert evidence of such uncomplicated matters.

Before an expert gives his evidence in a matter, the expert witness should give his evidence
as firstly he should first state his qualifications as an expert. Secondly, he should then state
whether he has given evidence as an expert in such cases and that his evidence has been
accepted by the courts. He should then process to describe the various documents and give
his reasons as provided in Wong Chop Saow v PP [1965] 1 MLJ 247.

There is no rule requiring the expert to have testified previously in court for him to be able to
give evidence provided that he could satisfy the court as to his standing by virtue of Dr
Mokhtar Hashim v PP [1983] 2 MLJ 332. However, the Court shall take judicial notice that
the expert has given evidence of the matter previously as illustrated in the case of Kong Nen
Siew v Lim Siew Hong [1971] 1 MLJ 262, the court takes judicial notice that the witness has
appeared in court in the past as an expert in Foochow customary law relating to marriage and

2
divorce and his evidence has been accepted without question. The Court ruled that in this
case the expert does need to prove qualification. Sometimes, even if it is the expert’s first
testimony, if his testimony is impressive, it may be given high credibility.

Next, after establishing whether that person is an expert to tender his evidence to court, that
expert shall comply with his duty as in section 51 of EA where the expert is paramount to
give reason, justification and ground for his opinion. Even though his evidence is relevant, the
weight attached to it could be zero. As illustrated in the case of Dr Shanmuganathan v
Periasamy s/o Sithambaram Pillai [1997] 3 MLJ 61, it is trite law that the principal object of
expert evidence is to assist the court to form its own opinion. An expert should give his reasons
to assist the court. This can also be seen in PP v Chia Leong Foo [2000] 6 Mlj 705, a bare
expression of opinion has no evidentiary value at all regardless how experienced or qualified
the expert is. The court must make its own conclusion after examining the reasons given by
the expert witness. The judges on the other hand have a duty to consider the reasoning given
by the expert and form a conclusion.

To determine whether Mr Ng is an expert, in the case of Junaidi bin Abdullah v PP, the test
to be applied under section 45 of EA is firstly the nature of evidence requires special skill. In
this present case, the subject matter involve science or art in which the issue involve is on
drugs. According to the case of Chandrasekaran & Ors v Public Prosecutor [1970] 1 MLJ
153 , ‘science or art’ is a wide field and shall be given liberal interpretation as it is elastic
enough. Here, the court has lack of knowledge in terms of identifying the drugs, hence it
requires another person who has this skill to assist the court and this material falls under
‘science or art’ which is the subject matter of dispute.

Secondly, whether a witness who is giving testimony is an expert in the subject matter in
dispute. By applying to the case of Datuk Mokhtar Hashim and PP v Muhammad Sulaiman
and Wong Chop Saow v PP, Mr. Ng is a chemist attached to the Department of Chemistry of
Penang for one year, held Bachelor of Science (Honours) degree conferred by University of
Malaya. Even though his knowledge in chemistry is only one year, nevertheless, one year of
learning should be enough for him, as the evidence sought to be prove by the prosecution is
only limited to drugs. Hence, Mr Ng was competent to give expert evidence of such
uncomplicated matters. Thus, Mr Ng has fulfilled the requirement under section 45. Even
though Mr Ng never testified in any other court before, by virtue of the case of Dr
Shanmuganathan v Periasamy s/o Sithambaram Pillai and Kong Nen Siew v Lim Siew
Hong, no rule required for expert to have testified previously in court for him to be able to give
evidence provided that he could satisfy the court as to his standing.

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Nevertheless, even though he is qualified, his evidence should be given no weight, this is due
to the fact that when counsel for Lee asked him whether the opium seized was of commercial
quantities. Mr.Ng answered “yes.” When asked why he answered in affirmative, Mr. Ng did
not provide reasons for that answer. Applying section 51 of EA, Mr Ng is paramount to give
reason, justification and ground for his answer. As illustrated in the case of Dr
Shanmuganathan v Periasamy s/o Sithambaram Pillai in order to assist the court to form
its opinion, Mr Ng should have given reason for his answer. With reference to the case of PP
v Chia Leong Foo, since Mr Ng only answer ‘Yes’ and provide no reason for his answer
hence, it has no evidentiary value at all regardless how experienced or qualified he is. Even
though his evidence is relevant, the weight attached to it could be zero.

To conclude we strongly believe that the judge has erred in law in failing to consider the fact
that Mr Ng did not provide reason in giving his answer. Even though the evidence is relevant
and admissible, nevertheless it carry zero weight. The court cannot come to a conclusion since
Mr Ng provide no reason for his answer.

2. The learned trial judge has erred in law in failing to find that the prosecution is in breach
of section 51A of Criminal Procedure Code

The issue is whether the prosecution was wrong in not tendering the report on the
identity and weight of the drug to the accused prior to trial

Evidence introduced in the form of a document as provided under Section 3 of EA there are
three things pertaining to the definition of a document, first is what, which is a statement.
Second is where, where the statement was made. Third is how, how the statement is made.
A document only becomes documentary evidence when a party seeks to prove its content. A
party seeking to produce a document needs to show that it is relevant and thus admissible in
law.

The production of document evidence as provided under section 51 and 51A of Criminal
Procedure Code (CPC) in which these sections are to eliminate surprise elements in criminal
trials to ensure fair trial. Hence, disclosure of certain docs held by both the prosecutor and the
defence would assist a fair trial and the accused to prepare his defence. Section 51 and 51A
enables disclosure of document and information or reports by prosecution that would form part
of the prosecution’s case to the defence before commencement of trial. Section 51A(1)(b)
states that the prosecution shall before the commencement of the trial deliver to the accused
the documents which include a written statement of facts favourable to the defence of the

4
accused signed under the hand of the Public Prosecutor or any person conducting the
prosecution. It makes it mandatory to the prosecution to supply documents or reports which
will be used by the prosecution in its case to the defence before the trial commences.

This sections operates in favour of the accused whereby the prosecution can be compelled to
supply the accused documents which are favourable to the accused and obtained during the
investigation. However, the prosecution may be exempted from disclosing documents on the
ground of public interest. The accused may request the court to see whether protection on the
basis of public interest is warranted. In the case of Public Prosecutor v Mohd Fazil bin
Awaludin, [2009] 8 MLJ 579 in applying and administering section 51A of the CPC, the court
should keep in mind not only to the technical non-compliance of the section but also to the
justice of the particular case. Therefore, the court still has powers and discretion to grant
adjournment to enable counsel to inspect the documents.

If prosecution fail to tender document favourable to the defence, adverse inference under
section114(g) of EA can be raised against the prosecution and it could be fatal to the
prosecution’s case. In See kek chuan v PP [2013] 6 mlj 885, cctv evidence to prove that the
accused was not in possession of the bag containing drugs was not tendered by the
prosecution. This was fatal and court acquitted the accused. Section 51A is meant to protect
both accused and prosecution and for justice for both. Also to expedite the proceedings in
court and to save court’s time to avoid unnecessary adjournment.

In the present case, Mr. Ng, the second prosecution witness was called to give evidence on
the identity as well as weight of the material found. Mr. Ng then tendered his report.
Nevertheless, the report on the identity and weight of the drug was not given to the accused
prior to the trial. As stated under section 51A of EA the prosecution have to disclose the
reports which will form part of the prosecution’s case to the defence prior to trial. Applying the
case of Public Prosecutor v Mohd Fazil bin Awaludin, the court has powers and discretion
to grant adjournment to enable the counsel to inspect the documents. With reference to
Section 51A(1)(b) of CPC, the prosecution have to deliver to the accused the report on the
identity and weight of the drug prior to the trial. It is mandatory for the prosecution to supply
the report in which he will used in the trial.

In the present situation since the prosecution witness does not give to the accused the report
on the identity and weight of the drug prior to the trial hence, the prosecution can be compelled
to supply the accused report which are favourable to the accused. In addition to that, the
prosecution is not exempted from disclosing the report as it does not consist any information

5
regarding the public interest. This is due the fact that the report only consist identity and weight
of drug.

Applying section 114(g) of EA, in this case since the prosecution have fail to give the report
to the accused prior to the trial hence it could be fatal to prosecution case. With reference to
the case of See kek chuan v PP, Section 51A of EA is meant to protect both accused and
prosecution and for justice for both. Also to expedite the proceedings in court and to save
court’s time to avoid unnecessary adjournment. Hence, since the report on the identity and
weight of the drug was not given to the accused before the trial, it will be fatal to the prosecution
case.

To conclude, we strongly believe that the judge has erred in law in failing to find that the
prosecution in breach of section 51A(1)(b) of the Evidence Act for not tendering the report of
on the identity and weight of the drug to the accused prior to the trial

3. The learned trial judge has erred in law in accepting Inspector Ariffin opinion as it is
not relevant and admissible

The issue is whether Inspector Ariffin opinion is relevant and admissible

There are many situations where the court require to determine on an issue which is outside
the court’s experience and expertise. Opinion means any inference (proposition, statement or
judgment) from perceived facts. The law on the subjects derives from the general rule that
witnesses must speak only to the facts which they themselves perceived (know, identify or
aware of).

Opinion evidence is generally not admissible but in special circumstances mentioned in

Section 45 to 50 of EA, opinion evidence may be admissible. The exception where evidence
of opinion may be admissible is where the matter is not within the judge’s common knowledge
or experience, evidence may come from an expert under section 45 or non-expert under
Section. 47, 48, 49, or 50, where a person who is specifically skilled in any of the matters
listed under the provisions. A person who has not undergone training or study of a particular
field or is not as skilled as experts in the field but has been exposed to the facts in issue by
way of familiarity or acquaintance. As illustrate in the case of RW Miller & Co Pty Ltd
(Australia) [1967] HCA 50 it was held that distinction between factual evidence and opinion
evidence is not clear. In Dolgobinda v Nimai Misra [1959] SC 914, it stated that opinion is a
belief or a conviction resulting from what one thinks on a particular question. It is suggestion
of answer or inference by a witness on a relevant fact and based on witness’ perception

6
However, opinion evidence can be described as evidence of conclusion, usually judgmental
or debatable, reasoned from facts. Court is not bound to accept opinion evidence, but in
making decision, a judge must weigh opinion evidence when the need arises. In PP v Lee Ee
Teong [1953] Mlj 244 the court admitted that prosecution do frequently and properly rely upon
the evidence of detectives and other persons who by reason of their experiences, have special
knowledge of methods of gambling. This sort of evidence if strictly speaking not evidence by
experts, it is admissible under Section 49 and not Section 45.

In the present case, Inspector Ariffin was of the opinion that both Lee and Teoh were heavily
involved in smuggling drugs. With reference to the case of Dolgobinda v Nimai Misra, the
opinion made by Inspector Ariffin is based on his belief as it is grounded on what he think and
what he infer from the relevant fact. Hence, Inspector Ariffin has given evidence based on his
opinion which generally, not admissible unless falls under Section 45, 47, 48,49 or 50, where
opinion evidence may be admissible. In order for Inspector Ariffin opinion to be admitted, it
must fall under any exception of Section 45, 47, 48,49 or 50. Nevertheless, since Inspector
Ariffin is not an expert, hence he cannot invoke section 45 to give evidence of opinion.

In addition to that, Inspector Ariffin also does not fall under exception of non-expert as stated
under Section 47 to section 50, in which as mentioned in the section, he did not undergo
training or study of a particular field or is not as skilled as experts in the field and has not been
exposed to the facts in issue by way of familiarity or acquaintance. Even though he worked as
an undercover but there is nothing in the fact stated that he was exposed to the fact in issue
by way of familiarity or acquittance which in this case regarding the drugs. In contrary to the
case of PP v Lee Ee Teong, Inspector Ariffin does not rely on any evidence of detectives nor
evidence from other person and he also does not have any special knowledge of drugs as he
only worked as undercover.

To conclude, we strongly believe that the judge has erred in law in accepting Inspector Ariffin
opinion as he does not fall under any exception provided under section 45,47,48,49 or 50 of
the Evidence Act. Hence, his opinion is irrelevant and inadmissible.

4. The learned trial judge has erred in law in accepting Inspector Ariffin testimoy without
corroborative evidence

The issue is whether Inspector Ariffin testimony need to be corroborated

7
Oral testimony of a witness may sometimes require corroboration in order to be credible.
Corroboration or lack of it, however, only affects the weight attached to that evidence. Section
134 stated that the testimony of a single witness if believed is sufficient to establish any fact.
In R v Baskerville [1916] 2 KB 658 corroboration is independent evidence which affects the
accused by connecting, or tending to connect, him with the crime. It must be evidence which
implicates the accused, in that it confirms in some material particular not only the evidence
that the offence has been committed, but also that it was committed by the accused. Evidence
of consistency can only amount to corroborative evidence when it connects the accused to
the crime. Corroborative evidence must not only show consistency, but also implicate the
accused.

Categories of witnesses which require corroboration including children, victims of sexual

offences, or accomplice. Nevertheless a distinction should be made between an accomplice
and an agent provocateur as different corroboration rules apply. As mentioned in Teja Singh
& Mohamed Nasir v PP [1950] 1 mlj 71, where an agent provocateur is entirely distinguished
from an accomplice, the evidence of an agent provocateur is not required to be corroborated.
Categories of an agent provocateur, where enforcement personnel that goes undercover,
person not being an enforcement personnel, but is planted by the enforcement authorities or
an accomplice who had from the very beginning of the conspiracy assisted the enforcement
authorities

In Munusamy v PP [1937] 1 mlj 93, whether a person is an informer or has become an active
agent provocateur would depend on the facts of each case. If a person does not play an active
role in the crime, he is an informer. In Chong Chee Kin v PP, an informer is a person who
merely gives information to the police regarding the commission of an offence. In PP v Ee
Boon Keat [2006] 2 mlj 633, the part played by the informer in this case was beyond that of
one who merely supplied information as he had participated in the commission of the offence
where he played an active role in the transaction involving the accused. He was therefore an
agent provocateur. However, in PP v Mohamed Halipah [1982] 1 mlj 155, an undercover
police detective was introduced to the accused by an informer, and there was some bargaining
as to the price of the heroin and the amount. Based on his testimony and cross-examination,
it was revealed that the detective had never met the accused prior to the encounter, did not
know what he looked like, did not arrange for the supply of drugs, nor did he instigate or entice
the supply by the accused. The court held that the police detective is not an agent provocateur

Section 40A(1) of Dangerous Drug Act and Section 52(1)(b) of Malaysian Anti-
Corruption Commission stated that no agent provocateur shall be presumed to be unworthy

8
of credit and Section 52(2), MACCA stated that a conviction for an offence under the Act is
not illegal if it is based on uncorroborated evidence of an agent provocateur. Pursuant to
the case of Hari Bhadur Ghale v PP [2012] 2 CLJ 1006, the person that are not agent
provocateur are not entitled for the benefit of Section 40A(2) of the DDA,

In the present case, Inspector Ariffin, the Investigating Officer, who worked undercover in this
case have given a testimony stating that the car bearing registration number WEP535 was
sent for repair at Motor RR Workshop, Alor Setar on the said day, Inspector Ariffin was on his
undercover duty. The workshop has been under police surveillance for months. He also
identified Lee and Teoh as the people who brought the car to that workshop. Generally, oral
testimony of a witness may sometimes require corroboration in order to be credible, unless
the person is an agent provocateur. With reference to the case of Teja Singh & Mohamed
Nasir v PP, the evidence of an agent provocateur is not required to be corroborated.
Nevertheless, as illustrated in the case of Munusamy v PP, with must first look at whether he
was an informant or agent provocateur.

To prove that a person is an agent provocateur, by applying the case of PP v Ee Boon Keat,
Inspector Ariffin must prove that he was beyond that of one who merely supplied information
and has participated in the commission of the offence where he played an active role.
Nevertheless, based on the facts of the case, there is nothing stated that he has played an
action role in the commission of offence. The fact only stated that the car that was brought to
the workshop has been under police surveillance for months. Thus, in the event that Inspector
Ariffin does not play an active role and only watch them for afar or from the police surveillance,
hence it could not be said that he falls under the exception of agent provocateur where the
evidence of corroboration is not needed.

Hence, since Inspector Ariffin is not an agent provocateur. With reference to the case of
Chong Chee Kin v PP and PP v Mohamed Halipah, based on the fact it could be said that
Inspector Ariffin is an informer since he did not play an active role in the commission of the
offence as he only give information regarding the car bearing registration number WEP535
that was sent for repair at Motor RR Workshop, while he was on his undercover duty and the
workshop also has been under police surveillance for months. There is nothing on the fact
mention that he involved together with accused in trafficking the drug nor did he ever
communicated with the accused. Hence in the event that he is an informer, thus, his evidence
on the car bearing registration number WEP535 was sent for repair at Motor RR Workshop,
and on when he identified Lee and Teoh as the people who brought the car to that workshop
need to be corroborated in order to be credible.

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Since Inspector Ariffin is an informer hence, Section 40A(1) of Dangerous Drug Act and
Section 52(1)(b) of Malaysian Anti-Corruption Commission is not applicable and the
evidence of Inspector Ariffin need to be corroborated. With reference to the case of Hari
Bhadur Ghale v PP, since Inspector Ariffin is not agent provocateur thus he is not entitled for
the benefit of Section 40A(2) of the DDA,

To conclude, since Inspector Ariffin is not an agent provocateur hence his testimony need to
be corroborated. Thus, we strongly believe that the judge has erred in law accepting Inspector
Ariffin testimony as he was an informer and hence corroborative evidence is needed

5. The learned trial judge has erred in law for allowing Inspector Ariffin to tender records
of Lee’s previous convictions and hence tends to reveal his bad character.

The issue is whether Inspector Ariffin may tender the record of Lee previous conviction

‘Character’ as in Phipson on Evidence is a person’s general reputation in a particular respect

or disposition in a particular respect. Common Law position in R v Rowton (1865) Le & Ca
520, stated that whenever the character evidence of a person’s reputation is questioned in
court, it should not include such person’s disposition. ‘Character’ under the Evidence Act,
explanation to Section 55 of EA, in Section. 52, 53, 54 and 55, the word “character” includes
both reputation and disposition but, except as provided in Section 54, evidence may be given
only of general reputation and general disposition, and not of particular acts by which
reputation or disposition is shown.

In criminal proceedings, the fact that the accused has a bad character is irrelevant to prove
the guilt of an accused. Hence, the accused has a “shield” against cross-examination on
his/her bad character. The fact that a person is of bad character is not relevant for raising a
general inference that the accused is likely to have committed the offence charged. The guilt
of the accused must be proved by independent evidence and not on the basis of his character.

There exist two shields under Section 54(1) and 54(2) of EA. Section 54(1) provides shield
against evidence of bad character of the accused. The prosecution may not adduce evidence
of the accused’s bad character nor of the accused’s tendency to act in a particular way even
if it is relevant. Exception for the inadmissibility of bad character evidence as in Section 54(1)
where in criminal proceedings the fact that the accused person has a bad character is
irrelevant, unless evidence has been given that he has a good character, in which case it
becomes relevant. Therefore, if the accused gives evidence as to his good character, the

10
accused risks losing his “shield” as his/her bad character becomes relevant. Such evidence
to his good character need not be given by the accused himself. When evidence of good
character of the accused has been adduced, evidence of bad character of the accused may
be given by way of independent evidence or during cross- examination of the accused. In R v
Winfield [1939] 4 All ER 164 the accused insisted upon calling a witness to ask her about his
character in regard to women, the court held if the accused chooses to put his character in
issue, he must bear the consequences. Whenever good character is brought in the court by
the accused, he can be cross-examined as to his bad character

In this present case, based on the facts, the judge has allowed Inspector Ariffin to tender
records of Lee’s previous convictions of drug abuse. Generally, in criminal proceeding the fact
that the accused has a bad character is irrelevant to prove the guilt of an accused. In the event
that Inspector Ariffin have tender the bad character of Lee, hence Lee has a “shield” against
cross-examination on his bad character. Nonetheless, with reference to section 54(1),
evidence act provide for the exception of the inadmissibility of bad character if Lee has given
evidence as to his good character, hence he will lose the shield and his bad character become
relevant.

Nevertheless, contrary to the case of R v Winfield there is nothing in the facts shows that Lee
has tender his good character. Hence, exception for the inadmissibility of the bad character
evidence is not applicable in this present case, as there is nothing in the fact shows that Lee
has tender his good character in court.

To conclude, Inspector Ariffin may not tender the record of Lee previous conviction and we
strongly believe that the judge has erred in law for allowing Inspector Ariffin to tender records
of Lee’s previous convictions and hence tends to reveal his bad character.

6. The learned trial judge has erred in law in acquitting Teoh and convicted Lee since the
burden of proof of the special knowledge under section 106 of Evidence Act by teoh is
not satisfied

The issue is whether the judge was wrong in acquitting Teoh by not considering the
special knowledge under section 106

Burden and Standard of Proof, in any case, the decision of the court depends on whether the
parties have satisfied their burden and standard of proof on who bears the burden and what
is the standard. Burden of proof may have two distinct meaning, namely, the burden of

11
establishing a case (legal burden) and the burden of introducing evidence (evidential burden
or sometimes call onus of proof). Section 101 of EA deals with legal burden while Section
102 deals with evidential burden.

Section 101 of EA provides on whom the legal burden lies, proof in criminal cases as in
Woolmington v DPP [1935] UKHL 1 where the accused was charged for the murder of his
wife, the trial court held that the accused failed to prove that the gun went off accidentally. On
appeal, the court held that the trial court had erred in its judgment as it is upon the prosecution
to prove that the accused had the intention to kill his wife. In Mat v PP [1963] MLJ 263, the
onus of proving the accused’s guilt lies throughout the case on the prosecution

Evidential burden is burden of adducing sufficient evidence. It lies on the party who would fail
if no evidence is given on either side. It shifts as soon as evidence of a prima facie case is
produced and shifts back when the opposing party rebuts. Section 102 of EA stated that the
evidential burden lies on both parties to a case, whether criminal or civil. In International
Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86, the court has made a clear distinction
between legal burden and evidential burden. The court held that the expression burden of
proof referred to in Section 101 is the burden of establishing a case and this rests throughout
the trial on the party who asserts facts in issue. The second expression (always referred to
onus of proof), on the other hand, relates to 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 depending on the scale of evidence and other
preponderates.

In criminal cases, the prosecution has the burden to prove the case and this burden remains
on them 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, if any.
Burden of proof for accused in proving facts especially within knowledge as stated in section
106 of EA. The rationale for Section 106 in criminal cases has been stated in the case of PP
v Hoo Chee Keong [1997] 4 MLJ 451 the court admitted that Section 106 is an exception to
Section 101. Section 106 is not intended to relieve the burden of the prosecution but is
designed to meet certain exceptional cases in which it would be impossible or difficult to
establish facts which are ‘especially’ within the knowledge of the accused and which he could
prove without difficulty or inconvenience

In applying section 101, and the case of Mat v PP, Teoh has a legal burden in proving the
existence of facts which he asserts. Where in this case he must prove the existence of facts

12
in which he has testified in the court in stating that the car which contains the opium found in
the petrol tank belongs to Lee. In addition to that, as provided under section 102 and the case
of International Times & Ors v Leong Ho Yuen, he also have the evidential burden of
adducing sufficient evidence to prove his fact is true.

Teoh testified that he ‘coincidentally’ met Teoh at Haadyai and claim that he denied any
knowledge regarding the opium found in the petrol tank and testified that the car belongs to
Lee. This statement of facts is especially within knowledge of Teoh only as nobody aside from
him can give evidence to support the his facts. Thus, section 106 is applicable in which Teoh
has a burden in proving facts which is especially within his knowledge. On the other hand, Lee
has given evidence that Teoh had called him and was willing to pay extra if Lee can arrange
to pick Teoh up at Haadyai. His evidence was given by Mr Kunalan and Mr Kunalan has
adduce Teoh’s phone record which shows that communication between Teoh and Lee was
not ‘coincidental’.

Nonetheless, Teoh does not give any evidence to prove that their meeting was coincidental.
Moreover, he did not provide any evidence in denying his knowledge regarding the opium
found in the petrol tank. Hence, he has a burden to proof under section 106 that he has no
knowledge on the opium found in the car.

The elements to prove that offence of drug trafficking under section 39(1)(a), is the possession
of the drugs. Hence, Teoh must prove that the drugs was not in his possession. Nevertheless,
claim made by Teoh are not supported by any evidence. Thus, as per the case of Hoo Chee
Keong , if the claims made and the facts is especially within knowledge of Teoh only, thus,
Teoh has to prove such facts under section 106. Since Teoh has failed to provide evidence to
prove his facts, he should not be acquitted.

To conclude, the judge was wrong in acquitting Teoh by not considering the special knowledge
under section 106 and hence we strongly believed that the learned trial judge has erred in law
in acquitting Teoh and convicted Lee since the burden of proof of the special knowledge under
section 106 by teoh is not satisfied

7. The learned trial Judge has erred in law in refusing to admit Teoh’s previous
convictions on the ground that it is not relevant

The issue is whether Teoh previous conviction may be tender by the prosecution

13
‘Character’ as in Phipson on Evidence: A person’s general reputation (external) in a particular
respect or disposition (internal) in a particular respect. Common Law position in R v Rowton
(1865) Le & Ca 520, whenever the character evidence of a person’s reputation is questioned
in court, it should not include such person’s disposition. ‘Character’ under the Evidence Act,
explanation to Section 55. In Section. 52, 53, 54 and 55, the word “character” includes both
reputation and disposition; but, except as provided in Section 54, evidence may be given only
of general reputation and general disposition, and not of particular (specific) acts by which
reputation or disposition is shown.

In criminal proceedings, the fact that the accused has a bad character is irrelevant to prove
the guilt of an accused. Hence, the accused has a “shield” against cross-examination on
his/her bad character. The fact that a person is of bad character is not relevant for raising a
general inference that the accused is likely to have committed the offence charged. The guilt
of the accused must be proved by independent evidence and not on the basis of his character.

There exist two shields under Section 54(1) and 54(2). Section 54(2) stated that shield
against questions that tend to disclose the accused’s bad character only in the event that he
is called in as a witness. The prosecution is prohibited from asking questions that tend to show
the accused has committed, or been convicted of or charged with, any other offence than what
he is currently charged with.

Where the shield under Section 54(2) can be thrown away, it is a precondition that the
accused must be called as a witness. If the accused chooses not to, the provision cannot be
invoked. There are three circumstances under which the shield of the accused can be thrown
away. The most relevant and suitable provision to be used is Section 54(2)(c) where the cross
examination on the accused’s bad character, previous charges, commissions or convictions
of offence should be allowed where the person charged and called as witness has given
evidence against co-accused. For this section to be applicable, the accused must be charged
with the same offence as the other accused in the same proceeding. If the accused is jointly
tried with another accused in the same proceeding but for different offences, this paragraph
cannot be invoked. In R v Lovett [1973] 1 All ER 744, Lovett was charged with stealing a
television set and another person, G was jointly tried in the same proceeding but was charged
for the offence of handling it. Lovett has cast the imputations on a witness for the prosecution
and also had given evidence against G. G’s counsel cross-examined Lovett on his previous
conviction. The court held that the cross-examination was improper because the two accused
were not charged with the same offence

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In this present case, counsel for Lee cross-examined Teoh on his previous convictions in
which Teoh had a long list of arrests and convictions involving drug offences. However, the
judge refused to admit Teoh’s previous convictions on the ground that it is not relevant.
Generally, in criminal proceedings, the fact that the accused has a bad character is irrelevant
to prove the guilt of an accused. Hence, Teoh will be able to use the shield provided under
section 54(2) of EA against questions that tend to disclose his bad character.

In this case, Teoh and Lee were jointly charge with the same offence for trafficking in a
dangerous drug. Hence, counsel for Lee will be able to invoke section 54(2)(c) of EA on the
ground that cross examination on Teoh previous charges will be allow as the person charge
and called as witness, lee, has given evidence against Teoh on his previous conviction by
stating that Teoh had a long list of arrests and convictions involving drug offences. Contrary
to the case of R v Lovett, the cross examination provided under section 54(2)(c) is proper
because Teoh and Lee were charge with the same offence.

Pursuant to section 146 of EA, when a witness may be cross-examined, he may, in addition
to the questions hereinbefore referred to, be asked any questions which tend to test his
accuracy, veracity or credibility, to discover who he is and what is his position in life, or to
shake his credit by injuring his character, although the answer to such questions might tend
directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose
him to a penalty or forfeiture. Section 146 refers to witness in general that may include the
accused who is called as a witness. In Sharma Kumari a/p Oam Prakash v PP [2000] 6 MLJ
282, the words of sections 54 and 146 are clear. Bad character evidence per se is not relevant,
but the section makes it clear that the bar can have exceptions. Section 146 specifically
provides that questions may be put to test a witness’ accuracy, veracity or credibility.

However, Section 146 must be read with Section 120(3) of EA which limit the cross-
examination of the accused in relation to his credibility as a witness. Section 120(3) stated 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. In Lim Baba v PP
[1962] MLJ 201, if questions are put to shake the credit of a witness (particularly if the witness
is the accused) the court has complete control over it and may forbid questions even though
they have some bearing on the question before the court.

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With reference to section 146 and 120(3), Teoh as a witness may be cross examined and
may be asked any questions to shake his credit by injuring his character, although the answer
to such questions might tend directly or indirectly to criminate him, and the court may limit the
cross-examination to such extent as it thinks proper. As illustrated in the case of Sharma
Kumari a/p Oam Prakash v PP and Lim Baba v PP, Teoh may be asked regarding his
previous conviction which tend to criminate him but however, the court has the power to limit
the cross examination if it thinks fit.

To conclude, Teoh previous conviction may be tender by the prosecution and we strongly
believe that Judge has erred in law in refusing to admit Teoh’s previous convictions on the
ground that it is not relevant.

8. The trial judge has erred in law in rejecting Mr. Kunalan’s testimony on the ground that
certificate was not adduced pursant Section 90A of Evidence Act.

The issue is whether Mr Kunalan need to adduce certificate under section90A to

support his testimony

Evidence introduced in the form of a document as provided under Section 3 there are three
things pertaining to the definition of a document, first is what, which is a statement. Second is
where, where the statement was made. Third is how, how the statement is made. A document
only becomes documentary evidence when a party seeks to prove its content. A party seeking
to produce a document needs to show that it is relevant and thus admissible in law. Section
62 states that “primary evidence means the document itself produced for the inspection of the
court”.

Explanation 3 to Section 62 of EA stated that a document produces by computer evidence

is a primary evidence. A computer-generated document may be a parking ticket, bus ticket,
documents of telecommunication, etc. It is governed by Section 90A, 90B and 90C of EA
Statements in documents generated by computer may be divided into 2 categories which are
statements which are not derived directly or indirectly from human mind and thus can be
regarded as primary evidence. For example, film, photograph produced by camera, tape
recording produced by a tape recorder-these are information produced by some purely
mechanical functioning of a machine, etc. Secondly is a statements which are derived directly
or indirectly from a human mind. For example, recorded statement during police investigation,
confession, chemist report etc. The maker of the statement must attend to be tried in the trial.
Otherwise, it is a hearsay evidence and must be brought within the exception of section 32 to
be admissible. For the first category, it is a condition precedent that the document is produced

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by a computer “in the course of its ordinary use” under Section 90A. To prove “in the course
of its ordinary use”, it can be done in 2 ways. Firstly, by tendering a certificate under Section
90A(2) and Section 90A (3) and presumption under 90A(4) is activated. However, according
to Gnanasegaran A/L Pararajasingam V PP [1997] 3 MLJ 1 section 90A uses the word
“may” and hence production of the certificate is not compulsory in every case.

Secondly, by adducing oral evidence to establish the requirements of Section 90A(1). In

Ahmad Najib Aris v PP [2009] 2 MLJ 613, it is sufficient that the person responsible for the
management of the operation of that computer states that to the best of his knowledge and
belief, the statement was produced by a computer in the course of its ordinary use. This can
replace the certificate requirement mentioned earlier. In Hanafi Mat Hassan v PP [2003] 6.
CLJ 459, a certificate need only be tendered if a person is not called to testify that the
document was produced by a computer.

In the present case, in order to prove his claim of the telephone call, Lee called Mr. Kunalan,
an employee of Celcom Malaysia Berhad to adduce Teoh’s phone record. Teoh’s phone log
showed that he made a phone call to Lee on 8 September 2020. The call lasted for 13 minutes
and 28 seconds. Mr. Kunalan testified that the record of the phone log was produced in the
ordinary course of business. With reference to section 62 explanation 3 of evidence act,
the record of the phone log is a document produces by computer evidence hence is a primary
evidence. In our present case, the record of the phone log falls under the first categories which
are not derived directly or indirectly from human mind.

Since it falls under the first category, in order to prove the course of its ordinary use, the
second way shall be used in this case in which by adducing oral evidence to establish the
requirements of Section 90A(1). This is because, Kunalan has testified to the court orally that
the record of the phone log was produced in the ordinary course of business. Hence, with
reference to the case of Hanafi Mat Hassan v PP and Ahmad Najib Aris v PP it is sufficient
that Mr Kunalan who is responsible for the management of the operation of that computer
testifies that to the best of his knowledge and belief, the statement was produced by a
computer in the course of its ordinary use without giving the certificate.

In conclusion, Mr Kunalan does not need to adduce certificate under section90A to support
his testimony and hence we strongly believe that the trial judge has erred in law in rejecting
Mr. Kunalan’s testimony on the ground that Section 90A certificate was not adduced.

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