Chapter 1: Hearsay Evidence

1) Introduction
 Definition of hearsay evidence:
PP v Subramaniam [1956] MLJ 220
Held : Hearsay evidence means an out-of-court statement made by someone who is not called as a
witness and the purpose is to prove the truth of the statement.

Public Prosecutor v Ng Lai Huat [1990] 2 MLJ 427

Held : Hearsay evidence is evidence by a witness of what another person has stated (whether verbally,
in writing or otherwise) on a prior occasion is inadmissible for the purpose of proving that any
fact stated by that person on such prior occasion is true.

 Generally, hearsay evidence is not admissible due to the possibility of concoction and fabrication. This is
known as the rule against hearsay.
- This is implied by S.60 Evidence Act which provided that only “direct evidence perceived by the
senses of the witness” can be admitted. (Hence, this impliedly means that hearsay evidence is
inadmissible.)
Section 60: Oral evidence must be direct
(1) Oral evidence shall in all cases whatever be direct, that is to say—
(a)   if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
(b)  if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard
it;
(c)   if it refers to a fact which could be perceived by any other sense or in any other manner, it must
be the evidence of a witness who says he perceived it by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence
of the person who holds that opinion on those grounds.
(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on
which such opinions are held may be proved by the production of the treatise if the author
- is dead, or
- cannot be found, or
- has become incapable of giving evidence, or
- cannot be called as a witness without an amount of delay or expense which the court regards as
unreasonable.
(3) If oral evidence refers to the existence or condition of any material thing including a document, the
court may, if it thinks fit, require the production of that material thing or the document for its
inspection.

Lim Ah Oh v R [1950] MLJ 269

Held : The rule against hearsay is found in section 60 of the Evidence Ordinance. Under that
section, evidence of statements might be admitted provided the reason for admitting was
borne in mind.

 Other info (Not important, may be skipped)1

1
Ratten v. The Queen (1972) AC 378
Held : A question of hearsay only arises when the words spoken are relied on testimonially, i.e. as establishing some facts
narrated by the words.

Hearsay & Hearsay Rule as defined in Black's Law Dictionary (Deluxe 9th edn) 
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 1.1) Difference between direct and hearsay evidence.
PP v Tan Kok An [1996] 1 MLJ 90
Held : The test to distinguish between direct and hearsay evidence is, if the Court were to admit the
evidence,
- the court only has to rely on the witness, it is direct evidence.
- If the court has to rely on not only the witness but some other person also, it is hearsay
evidence.

Hassan Ali Basari v PP [2018] 4 CLJ 561 (CA)

Fact : (In this case, the Court explained what direct evidence is in regard to the information a witness
gave.)
Held : The information that PW1 gave to the appellant was not hearsay evidence for the simple reason
that it was within his own personal knowledge. It was not something that he came to
know of from a third party not called as a witness. It was what he saw with his own eyes and
heard with his own ears and not what a third party told him.

 Having said that, just because a statement is made by a third party who is not called as witness, it
doesn’t mean that the statement is inadmissible as whether a statement is regarded as hearsay or not
depends on its purpose.

[Subramaniam v PP]
Fact : The accused was charged with unlawful possession of ammunition. His defence was that he
had been captured by terrorists and was committed the offence under duress by the terrorists.
In proving this, the accused invoked his conversation with the terrorists. The trial judge held
that the conversation with the terrorists was inadmissible unless the terrorists testified it. The
accused appealed.
Held : Appeal allowed. Hearsay evidence means an out-of-court statement made by someone who
is not called as a witness and the purpose is to prove the truth of the statement. So, if a
statement is to prove the truth of a statement, the statement is mere hearsay and
inadmissible. However, if the statement is to prove that a statement is made and not its
truth, it is admissible.
: In this case, the accused’s conversation (the evidence) is not to prove whether whatever the
terrorists have said was true but to prove that threats were inflicted on him (to prove whether
the appellant was under duress). The statement, whether true or not, if it had been believed by
the appellant, might reasonably have induced in him an apprehension of instant death if he
failed to comply the terrorist.
: Thus, the conversation could be admitted as evidence.

2) Main Principles for Hearsay Evidence

 Generally, hearsay evidence is ‘second hand’ evidence. It is evidence given by a witness who did not see
or hear the asserted fact. Hearsay evidence can exist in oral or documentary form.
 The General principle is that hearsay evidence cannot be admitted as evidence in court. However, there
are exceptions to this general inadmissibility under ss.6, 32(1), 73A, 90A Evidence Act. (will be
explained below)
2.1) Why is hearsay evidence inadmissible

o Hearsay: Traditionally, testimony that is given by a witness who relates not what he or she knows personally, but what
others have said, and that is therefore dependent on the credibility of someone other than the witness. Such testimony is
generally inadmissible under the rules of evidence.
o Hearsay rule: The rule that no assertion offered as testimony can be received unless or is or has been open to test by cross-
examination or an opportunity for cross-examination, except as provided otherwise by the rules of evidence, by court rules,
or by statute. The chief reasons for the rule are that out-of-court statements amounting to  hearsay are not made under oath
and are not subject to cross-examination.

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 There are 4 main reasons:
i. It is not made on oath
ii. The Judge cannot see the demeanor of the witness (the maker of the statement) when giving
evidence.
iii. There is no opportunity for cross-examination on hearsay evidence as the maker of the statement
is not present in court
iv. Hearsay evidence may be concocted, fabricated and tailored to suit the witness's testimony

Teper v R [1952] AC 480, 486:

Held : The rule against the admission of hearsay evidence is fundamental. It is not the best
evidence, and it is not delivered on oath. The truthfulness and accuracy of the person whose
words are spoken by another witness cannot be tested by cross-examination and the light
which his demeanour would throw on his testimony is lost.

[Leong Hong Khie v PP] & [Tan Gong Wai v PP] [1984] 1 LNS 172  
Held : The general rule is that hearsay evidence is not admissible as proof of a fact. This rule has
been long established as a fundamental principle of the law of evidence as laid down in
Tepper v R. Another reason is the danger that hearsay evidence may be concocted,
fabricated and tailored to suit the witness's testimony (issue of credibility of the maker).
: Notwithstanding this general rule, certain exceptions have been recognised upon the ground
of necessity or convenience. In Malaysia, these exceptions are set out in s.32 of the Evidence
Act 1950. 

3) Exceptions to general principle

 Among sections in the Evidence Act 1950 which provide for the exceptions to the general rule of
hearsay evidence are: sections 6, 17, 32, 73A and 90A

Section 32(1) : Cases in which statement of relevant fact by person who is dead or cannot be found,
etc., is relevant

Statements, written or verbal, of relevant facts made by a person who is

- dead or
- who cannot be found, or
- who has become incapable of giving evidence, or
- whose attendance cannot be procured without an amount of delay or expense which under the
circumstances of the case appears to the court unreasonable,

are themselves relevant facts in the following cases: (a) – (j)

 In order to use s.32(1), to bring in hearsay evidence, the relevant party needs to prove the following
conditions:2

(i) Prove one of the following:

o The statement was made by a person who is dead; or

PP v Mohd Jamil bin Yahya [1993] 3 MLJ 702

Held: The scope of the first principle may be briefly indicated by terming it the necessity principle. The person whose assertion
is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing.
: The second principle which is termed circumstantial guarantee of trustworthiness is in the nature of a practical
substitute for the ordinary test of cross-examination. We see that under certain circumstances, the probability of accuracy
and trustworthiness of statement is practically sufficient, if not quite equivalent to that of statements tested in the
conventional manner.

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  Proof of death certificate or presumption under ss.107 and 108 EA
o The statement was made by a person who cannot be found; or
 There must be proper search
o The statement was made by a person who has become incapable of giving evidence; or
 Due to old age or mental incapacity
o The statement was made by a person whose attendance cannot be procured without an
unreasonable amount of delay or expense; and
(ii) Prove that the fact that it wishes to admit is a relevant fact to the facts in issue; and
- A fact is relevant when it falls under S5- 55 of EA.
(iii) Prove that the evidence falls in to one of the paragraphs from ss.32(1)(a) to (j)

Alliedbank (Malaysia) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, [1998] 2 CLJ 33 
Held : This case laid down the general conditions that need to be fulfilled under s.32(1) EA:
i. Section 32 should be construed strictly, which means that there must be strict proof to
explain the non-availability of the maker as a witness.
ii. Then the circumstances that would bring a statement within any of the provisions
enumerated in the section (a)- (j) must be established 
iii. The burden of proving such circumstances is on the party desiring to lead the evidence
: If a person who made a statement is outside the jurisdiction of the court (ie the person is
overseas), he would fall under the classification of “a person whose attendance cannot be
procured without an amount of delay or expense which under the circumstances of the case
appears to the court unreasonable.” 
- However, just because a person is living overseas, it doesn’t mean any statement made by
the person can be admitted as evidence without requiring him to testify it in the court as
witness. For otherwise, it would be dangerous to subscribe such a doctrine. Hence,
Sufficient evidence must be adduced to show that it would involve such delay and
expense as would seem unreasonable to produce the maker as a witness.
- In Borneo Co (M) Sdn Bhd v Penang Port Commission  [1975] 2 MLJ 204, it was held that it
would be unreasonable to expect a witness to be brought from England to give merely
formal evidence when the expenses of bringing him down would exceed the subject matter
of the claim. 

Similar judgement:
[Sim Tiew Bee v. PP] [1973] 2 MLJ 200 & [PP v Lam Peng Hwa] [1996] 5 MLJ 405
Held : Before the court could admit the statement of a witness as evidence under s.32 of the
Evidence Act, the condition precedent contemplated under the section must be satisfied. (In
La Peng Hwa, the condition precedent that the prosecution ought to satisfy was either to
prove that the witness could not be found or that her attendance could not be procured,
without an amount of delay or expense.)

3.1) Exception 1: Dying declaration – s.32(1)(a) EA3(Malaysian position is different from UK

position)
(a)  when the statement is made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in which the cause of that
person’s death comes into question.

3
[Yong Kong Tai v Salim Bin Jalal]
Held: Section 32(1)(a) of the Evidence Act varies from the common law version in two material respects:
i. Firstly, it is not confined to cases where the defendant is charged with the murder or unlawful killing of the
declarant.
ii. Secondly, it does not require that the statement be made "under expectation of death ".

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 Such a statement is relevant whether the person who made it was or was not at the time when it was
made under expectation of death, and whatever may be the nature of the proceeding in which the cause
of his death comes into question;
Illustrations
The question is whether A was murdered by B; or
A dies of injuries received in a transaction in the course of which she was ravished.
The question is whether she was ravished by B; or
The question is whether A was killed by B under circumstances that a suit would lie against B by A’s
widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape
and the actionable wrong under consideration, are relevant facts.

3.1.1) Conditions to evoke S32(1)(a)

 Hearsay evidence can be admitted under s.32(1)(a) EA only in 2 situations, which is when the
statement is about the maker’s: (Dr Jal: In exam, you must write which limb the case falls under) 4
i. Cause of death: A case falls under this limb when the deceased specifically point out who
killed him and how he was killed. (there was a direct cause of death)
ii. Transactions that led to his death: A case falls under this limb when the deceased pointed
out the details of the transactions that led to his death but he doesn’t know the identity of
the culprit such as he was beaten but without knowing who did that. (illustrated in Pakala
Narayana Swami, will be explained below)
 Dying declaration can be admitted as evidence because the law presumes that a person won’t lie
as to his cause of death or circumstances which resulted in his death.

[Yong Kong Tai v Salim Bin Jalal]5 

Fact : The P sued the D for the death of the accused based on the deceased’s dying
declaration made in the hospital to his son. However, the declaration is different from
the defendant’s case.
6
Held : To qualify a statement as a dying declaration, that statement must first satisfy 2 strict
conditions, namely:
i. It must relate to either
a. the cause of death or
b. the circumstances of the transaction which resulted to the death.
- This phrase "circumstances of the transaction" should not be accorded
an unnecessarily wide construction or it would lead to hearsay being too
readily admitted. 
ii. The statement must not be in a summary form.
- The statement, no matter how short, must not be summarised by anyone
but must given word for word as given by that dying person. Verbatim
reproduction of the declarants dying words must be given.
: In this case, the deceased made a statement to his son. Judge observed that:
4
Augustine Paul (2000) Evidence: Practice and Procedure at page 329:
For a statement to be admissible under para (a), it must either relate to the cause of the maker's death or to the circumstances of
the  transaction which led to his death. In this respect the scope of the paragraph is wider than the English common law where a
dying declaration must relate exclusively to the cause of death itself.

5
Yong Kong Tai (Widow) On Behalf Of Herself And The Other Dependants Of Loh Keng Yuen, Deceased v Salim Bin Jalal
[1996] 2 MLJ 291
6

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 i. The son did not write down what the deceased father told him about 7 to 8 years
ago.
ii. That statement was given in a narrative form by the son.
iii. Each time the son was required to repeat what his late father had told him, he
would recite a different version.
iv. The son summarised what his late father had told him.
v. The son testified that his late father talked to him for half hour on the second
night. Yet, so little was adduced before this Court.
- So, the judge held that the summarised version as narrated by the son of
what his late father had told him doesn’t satisfy the second condition (no
summary of the dying declaration) and, consequently, the dying declaration
ought not to be received as evidence.
- The Court went on to say that, even if both conditions were satisfied, the
court must still be extra careful and bear in mind that the dying declaration
was not made on oath and the maker of the statement cannot be cross-
examined. Thus, the court must assess the credibility of the deceased before
relying on his statement made to his son.
- Here, the 2nd deceased purportedly told his son, that a motorlorry knocked
their station wagon from behind. The questions are, did the deceased
actually saw the motorlorry coming from behind since he was only a front
passenger seated next to the driver and, at the material time, it was raining
heavily? Was the second deceased a good observer? Obviously these salient
questions remained unanswered till today.

3.1.2) A dying declaration is not admissible if it talks about anything else other than one’s own
caused of death
 As mentioned earlier, dying declaration is admissible only if it refers to the cause of death of the
deceased or to any of the circumstances of the transaction which resulted in his death. Anything
else other than these are not admissible.

[Hj Salleh and Marzuki v PP] [1931-32] FMSLR 229]

Facts : The accused was charged for murder. The witness was a child and hence needed
collaboration. The PP used the dying declaration in a letter of the deceased to corroborate
the child witness. However, in the letter, the deceased only wrote that he was scared of
the accused and did not say anything about his death.
Held : The dying declaration was not admissible as under Section 32(a), a declaration can only
be admitted if it talks about the cause of death of the deceased.

3.1.2.1) Duration of the declaration made may be a key

 A dying declaration, even if fulfilled the conditions under S32 may not be admissible if it was
made too long before the incident. Thus, the shorter the duration the better because it reduces
the risk of fabrication and concoction.

[Yeoh Hock Cheng v R] [1938] 1 MLJ 104]

Facts :The accused was charged for the murder of a girl. 2 statements were made by the
deceased
 1st Statement: The deceased told her father that the accused threatened to kill her if
she told her father that she slept at the accused`s home. (made 11 days before her
death)
 2nd Statement: The deceased told her sister that she was going out with the accused
and the accused told her to wear man`s shirt. (made on the day of her death)

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 Held : The 1st statement on the threat to kill her would appear to be too remote and cannot
properly be treated as one of the “circumstances of the transaction resulting in her
death”. Meanwhile the 2nd statement made to her sister is one of the “circumstances of
the transaction resulting in her death”.
: From the way she was murdered, it was obvious that the murder was planned. The
accused himself arranged for the deceased to go out with him and to wear man's
clothes, presumably to avoid recognition, these undoubtedly appear to be
circumstances of the transaction which resulted in the deceased's death, and the
deceased's statements to that effect become relevant under section 32 (1).7
3.1.2.2) Meaning of “Circumstances of transaction”
 The case of Paka Narayanaswami explained the meaning of this phrase:
[Pakala Narayana Swami v King Emperor] [1939] 1 MLJ 59
Facts :The deceased went to collect his debt from the accused. Later, the body of the
deceased was found in a trunk brought by the accused where it had been cut into
seven portions. The widow of the deceased made a statement that the deceased had
told her, before his death, that he was going to the accused`s house.
Held : The transactions that the wife told fulfils the element of Section 32(1)(a) i.e. what
she said can connect to the facts in issue. "Circumstances of the transaction" is a
phrase that conveys some limitations. It is not as broad as "circumstantial evidence",
which includes evidence of all relevant facts. It is narrower than res gestae.
Circumstances must have some proximate relation to the actual occurrence.
: The statement may be made before the cause of death has arisen, or before the
deceased has any reason to expect to be killed. The circumstances must be
circumstances of the transaction. So, general expressions indicating fear or suspicion
and not directly related to the occasion of the death, will not be admissible.
: In this case, statements made by the deceased that he was proceeding to the spot
where he was killed, his reasons for so proceeding, that he was going to meet a
particular person and that he had been invited by such person to meet him was each of
them be circumstances of the transaction. Such a statement might indeed be
exculpatory of the person accused.

3.1.3) If the dying declaration is reduced into writing, the exact words must also be recorded
 As laid down in Yong Kong Tai, the exact word must be produced and can’t be summarised.
However, if the words are reduced in writing particularly by a police investigator, magistrate or
anyone of these kinds, not only that exact words are required, it must also be recorded.
 Reason:
 It may miss out or add extra things which are not told by the maker.
 Different people have different interpretations hence may ended up writing different things.

[Toh Lai Heng v. Regina]8

Fact : The witness, an inspector was called to testify the relevant deposition. He briefly
reduced the substance of the dying declaration into writing. The deceased and the
witness conversed in Malay, which was not their mother tongue and the conversation
was recorded in English.
Held : A declaration doesn’t need to be proven in writing. So, in cases where the
declaration was heard by a witness and wants to produce it as evidence, the exact
words must be given and not summarised.
7
The position in England is that for a dying declaration to be admissible, it must be made immediately before the death (under
expectation of death). However, under M`sian law, the EA allows the acceptance of DD made not under the expectation of death
as exception to hearsay rule.
8
[1960] 1 LNS 157 CCA (cited in judgement for Yong Kong Tai)
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 : But, when the declaration was reduced into writing particularly by a police
investigator, magistrate or anyone of that kind, the actual words of the deceased must
be recorded. Since the actual words of the deceased was not recorded, it was fatal to
the case.

3.1.4) Credibility of the witness

 S158 : When a statement is proven under Section 32 or 33, all matters can be proven to
either
collaborate or contradict the statement. 9
 Under s158, even a dying declaration can be rebutted. Therefore, even if a dying declaration
fulfilled all the conditions to be admitted as evidence, the judge must still examine the
creditability of the statement maker especially when the maker is an accomplice (which if he was
alive, his statement requires corroboration)

[PP v Mohd Jamil bin Yahya] [1993] 3 MLJ 702]

Facts : The accused waas charged with drug tracking. The PP charged the accused based on a
dying declaration by a self-confessed drug dealer, which before death, gave statement that
the accused was involved in the drug trafficking. The defendant challenged the credibility
of the maker.
Held : Even if S32 and 33 (EA) admit dying declaration, the declarant must also be opened to
discrediting like other witnesses as S158 (EA) provided that a dying declaration under
S32 n 33 can not only be used to collaborate but also to discredit other evidence.
: In this case, the punishment for the offence was death penalty. So, the person who made
the declaration must be scrutinized especially when the punishment is death sentence.
Hence, extra caution is needed to admit the dying declaration as evidence.
: Also, in evidence law if the declarant is an accomplice, his evidence would need to be
collaborated too even if he is already dead. In this case, since the declarant is not a mere
informer (which might be rebutted if cross-examined) and the statement was made after 5
months the accused were arrested, the court cannot place reliance on it.

[Boota Singh v PP] [1933] 2 MLJ 195b]

Facts : The deceased made a police report against the accused saying that the accused tried to
misbehave against her. After 9 months, the deceased was murdered and the PP relied on
the report to charge the accused for murder.
Held : The report was not admissible under Section 32(1) as it is only limited to statements by
a person as to the cause of his death or as to any of the circumstances of the transaction
which resulted in his death. The letter only indicates that the accused and deceased was
on bad terms, hence is only admissible under S8 as a prove for “motive to murder”.

Similar position : [Chan Phuat Khoon v PP]10

3.2) Exception 2: Statement made during ordinary course of business - Section 32(1)(b)11
9
S158： What matters may be proved in connection with proved statement relevant under section 32 or 33
Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in order to contradict or to
corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if
that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
10
[Chan Phuat Khoon v PP] [1962] MLJ 127]
Facts: The trial court convicted the accused based on a statement by the deceased to her husband and the doctor at the
hospital prior to her death.
Held : It is essential for the court to assess the credibility of the deceased before relying on the statement made by him.
Hence, the conviction could not stand and it must be set aside.
11
(b) when the statement was made by any such person in the ordinary course of business, and in particular when it consists of
- any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of
professional duty; or
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 S32(1)(b) : A statement made by a person “in the ordinary course of business” can be admitted as
evidence if the maker is dead, incapable of giving evidence or has lost. (read the full section in the
footnote first, it is complicated)
 Anything stated in the document can be used as a relevant facts although the maker is not available.
 Rationale: Usually in business dealing or professional setting, people will keep proper record and
usually the record are true.
 Examples:
o Illustration (b)
 The question is as to the date of A's birth.
 An entry in the diary of a deceased surgeon regularly kept in the course of business,
stating that on a given day he attended A 's mother and delivered her of a son, is
relevant fact.
o Illustration (c)
 The question is whether A was in Kuala Lumpur on a given day.
 A statement in the diary of a deceased advocate regularly kept in the course of
business that on a given day the advocate attended A at a place mentioned in Kuala
Lumpur for the purpose of conferring with him upon specified business is a relevant
fact.
o Illustration (d)
 The question is whether a ship sailed from Penang harbour on a given day.
 A letter written by a deceased member of a merchant's firm by which she was
chartered to their correspondents in London, to whom the cargo was consigned,
stating that the ship sailed on a given day from Penang harbour is a relevant fact.
o Illustration (j)
 The question is what was the price of shares on a certain day in a particular market.
 A statement of the price made by a deceased broker in the ordinary course of his
business is a relevant fact.

 Cases to illustrate:
[Sim Tiew Bee v PP] [1973] 2 MLJ 200
Facts : The accused was charged for importing uncustomed goods. At the trial, the PP relied on
inter alia the ship’s manifest (a document listing a ship's contents, cargo, passengers, and
crew, for the use of customs officers.) to prove that
Held : As the ship manifest was a statement made by a person “in the course of the business” of
the shipping company it could be admitted under s32(1)(b) if it was proved that the maker
was already dead. However, in this case, since it was not proven that the maker was dead, the
manifest is considered hearsay and not admissible.

[Syarikat Jengka Sdn Bhd v Abdul Rashid] [1981] 1 MLJ 201

Facts :The plaintiff is a timber logger. The plaintiff contract with the defendant, a logging company
to cut down the trees in part of a forest. Later, the plaintiff accused the defendant for
removing and converting 700 tons of timber belonging to the plaintiff to the defendant’s own
use.
: During trial, the plaintiff produced a document which was said to be the record of timber
extraction from the forest written by his son who had since died. The issue is whether the
record of timber extraction falls under Section 32(1)(b) as it was prepared in the course of
business.

- an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or
- a document used in commerce, written or signed by him, or
- the date of a letter or other document usually dated, written or signed by him.
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 Held : Section 32(1)(b) cannot be relied on because there is no evidence to show that the record
was a statement made “in the ordinary course of business” of the P or “part of an entry in a
memorandum or book kept in the ordinary course of his business” or “an entry in book of
accounts regularly kept in the course of the P’s business” as required under S32(1)(b).
(Moreover, it was not proved that the 700 tons of timber ever existed.)
3.3) Exception 3: When a statement is against one’s own interest - Section 32(1)(c)12
 S32(1)(c) : When the statement is
- against the pecuniary or proprietary interest of the maker, or
- if true, would expose or would have exposed the maker to a criminal or civil
liability.
 If a statement is made by someone in which that the statement will incriminate him, the statement
may most probably be true and admissible if the risk of fabrication and concoction can be reduced.
 Example: If one said that drug belongs to him, then the statement may be admissible as evidence.
 Rationale :Logically, people will not make statement will go again their own interest. Usually, if
you make any statement that go against your own interest, then most probably it is
true.

[PP v Foster Frank Edald Henrich] [1988] 2 MLJ 594

Facts :Police raided a hotel room which was occupied by three Germans. Having found drugs in
one baggage, the police arrested one of the occupants and let the other two free. The two men
who were let go went back to Germany and testified that they alone carried the drugs. When
the accused was prosecuted, he relied on the affidavits given by the 2 men to say that he did
not own the drugs. The issue was whether the contents of affidavits was admissible i.e, if
true, would expose or would have exposed the makers to a criminal prosecution.
Held : The affidavits were admitted as evidence. It is enough if the statement, assuming it to be
true, would expose its maker to the risk of prosecution.

3.4) Exception 4: Public opinion as to existence of any public right, custom, matter of public
interest- Section 32(1)(d)13
 S32(1)(d) : Public opinion as to the existence of any public right, custom or matters of public
interest can be admitted if :
- if it existed, the maker would have been likely to be aware, and
- the statement was made before any controversy as to the right, custom or
matter arises. (if the statement was made after, it can’t be admitted)
 Rationale: There are still a lot of people can prove the truth of his statements if he said something
wrong.

3.5) Exception 5: Statement related to the existence of any relationship - Section 32(1)(e)14
 This exception relates to the statement made on the existence of any relationship between any
persons, deceased or otherwise.
 Section 32(1)(e): A person’s statement as to the relationship of certain parties can be admitted when,

12
(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose
him or would have exposed him to a criminal prosecution or to a suit for damages.

13
(d) when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public
or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made
before any controversy as to the right, custom or matter had risen.

14
(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose
relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the
statement was made before the question in dispute was raised.
10 | P a g e
 - The relationship must relates to relationship by blood, marriage or adoption,
- The maker of the statement must have special knowledge.
 If the maker of the statement is family member, then, special knowledge can be
presumed.
- The statement must be made before the issue arise
- Shamugam v Pappah: The maker must be someone who is dead, cannot be found or
incapable to give evidence.
 Such statements can be written or verbal.

[Shamugam v Pappah] [1994] 1 MLJ 144]

Facts : The P claimed that he is the only legitimate child of one Kanapathy and therefore sole
beneficiary to the estate of Kanapathy. He brought in a statutory declaration sworn by the
deceased to show that P is his son.
Held : The statutory declaration only showed that the deceased was the father of the P. It does not
show that the P was the legitimate child of the deceased.
: On section 32(1)(e)
i. the statement, written or verbal, of relevant facts must have been made by a person
who is dead, cannot be found, incapable to give evidence etc
ii. The statement must relate to the existence of any relationship by blood, marriage or
adoption.
iii. The person making the statement must have special means of knowledge as to the
relationship. In the case of family members, a special knowledge is to be presumed.
iv. The statement must have been made before the question in dispute arose.

3.6) Exception 6: Statement regarding relationship between dead people - Section 32(1)(f)15
 Akin to exception 5 but this exception relates to the statement made with regards to any relationship
between deceased persons only.
 Section 32(1)(f ): A statement falls under this exception when
i. the statement relates to the existence of any relationship by blood, marriage or
adoption
ii. the relationship are concerning 2 or more dead people
iii. the statement is a written statement (in a will, portrait etc)
iv. the statement was made before the question in dispute was raised.
3.6.1) What is the difference between paragraph (e) and paragraph (f)?
Para (e) Para (f)
Relates to the existence of any relationship between Relates to any relationship between deceased
any persons, deceased or alive persons only
Refers to the requirement of ‘special means of There is no such requirement in Paragraph (f);
knowledge’
Refers to statements that are written or verbal Paragraph (f) applies only to written statements

 Case to illustrate:
[Lee Kim Luang v Lee Shiah Yee] [1988] 1 MLJ 193]
Held : Inscription on the tombstone which read “Lee Jit Chan alias Lee Chin Aik, sons: Teow Kee,
Kim Luang” is admissible to show the existence of relationship by blood, marriage or
adoption between the deceased persons under s.32(f).
: The statutory declaration made by the mother that the name of her husband was Lee Aik
alias Lee Chan may be relevant under s.32(1)(e), but because the statement was made after
15
(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and
is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family
pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement
was made before the question in dispute was raised.
11 | P a g e
 the question in dispute, whether Lee Chan or Lee Teow Kee was known as Lee Aik, was
raised, it was inadmissible. This is unlike the situation in Khaw Sim Bee where the affidavit
was made before the issue arose and it was held admissible.
: The statement made on the tombstone is admissible to prove relationship.

3.7) Exception 7: Statement relates to any transaction under S13(a) - Section 32(1)(g)16
 Section 32(1)(g): when the statement is contained in any document which relates to any transaction
mentioned in S13(a).17
 This exception relates to the statement made with regards to any relationship between deceased
persons only.
3.8) Exception 8: Public’s felling or impression - Section 32(1)(h)18
 Section 32(1)(h): when the statement was made by a number of persons and their expressed feelings
or impressions are relevant to the matter in question.
 This exception relates to the statement made on the feelings or expressions.
 Purpose of this exception: to allow admissibility of evidence of persons, who are not called as
witnesses, as to what they said in reaction to an event or thing presented to them, in circumstances
which exclude opportunity of reasoned reflection and possibility of concoction and distortion.
 Illustration (n):
o A sues B for a libel expressed in a printed caricature exposed in a shop window.
o The question is as to the similarity of the caricature and its libellous character.
o The remarks of a crowd of spectators on these points may be proved.
3.9) Exception 9: Statement made by public officers during investigation of a criminal offence
Section 32(1)(i)19 & Section 32(1)(j)20
 Section 32(1)(i): when the statement was made during or for the purposes of an investigation into an
offence under any law
 Section 32(1)(j): when the statement was made by a public officer in the discharge of his duties.
 Both (i) & (j) were added under the 1993 Amendment of the EA, where both are only applicable in
criminal proceedings. This provision may be different from the position in UK and India.
 Due to the word “and” between (i) and (j), should these two para be read conjunctively or
disjunctively? It is disjunctively.

[Siti Aisyah v PP] [2019] 4 MLJ 46

Held : S32(1)(i) and (j) are to be read disjunctively. This is because if (i) and (j) were meant to be
read disjunctively, subsection (j) could have been drafted together with (i) instead of
separated from each other. Therefore, a police statements could be admitted under both paras
(i) and (j) although para (j) would only apply to a statement made by public officer.

Old position:
16
(g) when the statement is contained in any document which relates to any transaction as is mentioned in paragraph 13(a).
17
S13: Facts relevant when right or custom is in question
Where the question is as to the existence of any right or custom the following facts are relevant:
(a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or
denied or which was inconsistent with its existence;

(h) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the
18

matter in question

19
(i) when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by
virtue of any written law

20
(j) where the statement was made by a public officer in the discharge of his duties.
12 | P a g e
 [Kobra Taba Seidali v PP] [2014] 2 MLJ 554
Facts : The accused was charged for possessing drugs. The accused was caught when she
reached KLIA in a group together with a lady called “Maryam”. Maryam was not
charged and set free. The accused was convicted by the trail court but he appealed
inter alia on the basis that he prosecution's failure to call Maryam as a witness or to
tender her investigation statement (under s 112 of the CPC) denied her of a fair trial.
The issue was whether the s112 statement could be admitted under S32(1)(i).
Held : Section 32(1)(i) must be read conjunctively with (j) and is only related to public
officers and not any witnesses.
: Rational : if the subsections are read conjunctively, the subsections will only be
limited to public officers and there is very little the defence can
complain of. However, if the subsections are read disjunctively, it is
not limited only statement made by public officers and in the present
case, a witness statement can introduced by the prosecution officer as
substantive evidence without calling the maker. If so, the integrity of
the administration of criminal justice would be compromised.
: The Parliament will have never intended for (i) & (j) to be read
disjunctive because if it so, they would have not used the word ‘and’
which is often used to connect sentences. Taking into consideration of
(a) to (h) which stands disjunctively as there is no ‘and’, if (i) and (j) is
meant to be read disjunctively ‘and’ need not be used at all.

 Even if a statement falls under this section, the Court can still refuse to admit it as evidence if it has
low probative value.
[PP v Tukiman Demin]
Fact: : The accused as charged for possessing drugs as some drugs were found in his room. The
prosecution sought to admit the statement of the co-occupier of the house under s32(1)(j)
because it was unable to call the co-occupier and make him available in court. But to do so, it
would derive the accused’ chance to cross-examine the statement maker. So, the issues was
whether the statement by the co-occupier was admissible in evidence under s32(1)(i) and (j).
Held : Before the court could admit the statement of a witness as evidence under s 32, the
condition precedent must be satisfied, namely the witness cannot be found or that his
attendance cannot be procured without an amount of delay or expense.
: In this case, the preconditions are satisfied hence the statement is admitted. However, since
the evidence has low probative value because:
a. it is not subject to cross-examination by the defence
b. The co-occupier was an interested witness as he was occupying the same house where
the drug was found and he was also convicted for another drug offence.
c. The co-occupier was not an honest witness as he said he didn’t involve in drugs but he
was in fact convicted for drug offences.
: For the reasons above, the PP had created a gap in his case as the statement was not a
strong evidence. So, the PP had failed to make a prima facie case and the accused must be
discharged.

Chapter 2 : Documentary Hearsay

1) Introduction
13 | P a g e
 The concept of hearsay applies for both oral and documentary evidence
 If the purpose of you bringing in that evidence is to prove the truth of the content of a document, then
you have to call the maker of the document.
 Else, it will become documentary hearsay
 E.g. When the purpose of you bringing in a contract is to prove the content, i.e. terms and conditions that
are important because they are relevant to your case
 For documentary hearsay, you must bring in the maker of the document to avoid any fabrication or
concoction
[Allied Bank (Malaysia) Bhd v Yau Jiok Hua]21
Held : It is settled law that where a document is sought to be proved in order to establish the truth
of the facts contained in it, the maker has to be called … Non-compliance with this rule will
result in the content of the document being hearsay.

2) Common law cases on documentary evidence/hearsay:

[Myers v DPP]22
Facts : The accused was charged of receiving stolen cars. To prove this, the Prosecution called the
employees of the car manufacturers as witnesses. The witnesses (employees) produced microfilm
records23 compiled anonymously by different workmen to show cylinder block numbers which were
recorded on a card by the employees of the manufacturers. The cylinder block numbers were
moulded into a secret part of the block and could not be destroyed/removed. (Note: The witnesses
called were persons who kept those records only but not those who compiled). The Defence objected
on the evidence being hearsay and that the manufacturers’ records cannot be proof of the truth of the
facts.

Held : A hearsay evidence can only be admitted if it falls under the exception. In this case, the persons
who inserted the information into the card cannot be identified as those records were compiled
anonymously. (Dr Jal: Too many people involved in manufacturing; cannot identify the maker).
Hence, the manufacturer’s record was hearsay and cannot be admissible.

[Patel v Comptroller of Customs]24

Facts : The Appellant was charged for making false declaration on 5 imported bags of coriander seed. He
declared it to be India instead of the purported true origin, Morocco. The outer bag was marked with
the appellant’s business name while the inner bag was marked with the label “Produce of Morocco”.
The issue is whether the bag can be used to proved that it was in fact originated from Morocco.
Held : The label is inadmissible as evidence as the maker cannot be called, thus false declaration cannot be
proven. This is because nothing is known of when and by whom the labels on the bags were affixed,
hence no evidence to prove that the goods in fact came from Morocco.

Cf:
[R v Rice]25
Facts : This case primarily involves 3 people, Rice (R), Moore (M) and Hoather (H) where all of them
were charged for conspiracy. M raised his defence that he had been used as an innocent agent by R.
In proving this, he tender a flight ticket with R’s name on it as an evidence that R had used the ticket
to fly to Manchester for the purpose of the offence charged. Therefore, the issue is whether a flight
ticket bearing someone’s name is admissible as evidence that the person travelled on that flight since
the ticker is issued by thee flight company which is a third party. (which if the flight ticket is treated

21
[1998] 2 CLJ 33.
22
[1965] AC 1001.
23
Photographs of the written record compiled by anonymous workmen on the production line.
24
[1965] 3 All ER 593.
25
[1963] 1 QB 857.
14 | P a g e
 as documentary hearsay, the maker of the flight ticket aka the flight company has to come and testify
it)

Held :The court accepted the evidence that an airline ticket displaying someone’s name is an evidence that
the person traveled on that flight. The reason being that, in ordinary course and based on logical
thinking as well as common sense, when a ticket contains someone’s name, it means the person
mentioned is the one who is boarding the flight.
: Hence, the flight ticket is relevant to the fact in issue (as it is used to prove whether R flew with the
ticket, not to prove the content of the ticket ie whether R bought the ticket). Thus, is admissible as
evidence .

2.1) Malaysian Position:

[Sim Tiew Bee v PP]26
Facts : The accused was convicted for importing uncustomed goods of sacks labelled “To Sim
Tiew Bee, Sibu”
Issue :Whether the label can be admitted as evidence to prove the name of the consignee without
calling its makers
Held :The words "To Sim Tiew Bee" on the gunny sacks were labels or markings and therefore
being hearsay, are not by themselves evidence that the applicant was the consignee of the
goods (court referred to Patel’s case)
: The label was merely a documentary hearsay of which without the maker of the label being
called it must be rendered inadmissible.

[Beh Heng Seong v PP]27

Facts : The accused was charged with breach of Sale of Food and Drugs Regulations by
manufacturing sour plum juice which contained saccharin. The prosecution’s evidence was a
bottle of sour plum juice labelled with a paper bearing a portrait, alleging the manufacturer to
be “Beh Kwang Chee” but there was no indication as to whether “Beh Kwang Chee” was a
shop, or its address. Objection was raised against the label’s admissibility.
Held : (The court referred to Myers’ and Patel’s case). Though “Beh Kwang Chee” had the same
surname "Beh" with the accused, both are still different names. So, tn the absence of proof
that the name “Beh Kwang Chee” was the name of a shop and that the accused was the
proprietor of this shop, there would be no prima facie case made against the accused. Hence,
the label on the bottle must be regarded as hearsay and inadmissible.

[Nahar Singh v Pang Hon Chin]28

Facts : The appellant sued the respondent for a deposit he paid to respondent under a Sale and
Purchase Agreement dated 3 Jan 1979 for a house. The respondent denied having entered the
transaction, signing the agreement or receiving the deposit since he was in Thailand since 17
Nov 1978- 22 Jan 1979. In relation to that, the respondent raised the defence that an unknown
third party had impersonated the respondent to enter the transaction with the appellant. In
proving this, the respondent tendered the endorsements on his passports, flight schedules,
plane tickets and correspondence from Thai Immigration as evidence to prove that he was in
Thailand during the material time hence could not enter into the transaction.
Held : (referring to R v Rice). It is perfectly possible for a passport to be used by an impersonator
and it would be wrong to assume that such endorsements are sacrosanct (so are the flight
schedules, plane tickets and correspondence from Thai Immigration). Therefore, without
proving the endorsements by calling their authors (makers), these endorsements are merely
hearsay which can’t be admissible as evidence.
3) Admissibility of Documentary Hearsay Evidence
26
[1973] 2 MLJ 200.
27
[1972] 2 MLJ 190.
28
[1986] 2 MLJ 141.
15 | P a g e
There are 2 important provisions which allow a documentary hearsay to be admitted as evidence:
(i) SECTION 32(1)(b):29
A statement made by a person “in the ordinary course of business” can be admitted as evidence if the
maker is dead, incapable of giving evidence or has lost.
 See Syarikat Jengka Sdn Bhd v Abdul Rashid30

(ii) SECTION 73A***

 Previously, Aziz bin Muhammad Din v PP31 held the word ‘etc.’ in S73A to include “criminal
cases” but later, Federal Court in the case of Lim Guan Eng v PP 32 overturned the position and held
that s73A is only applicable for civil cases,
3.1) Section 73A(1)
S73A.: Admissibility of documentary evidence in civil cases, etc.
(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement
made by a person in a document and tending to establish that fact shall, upon production of the
original document, be admissible as evidence of that fact if the following conditions are satisfied:

(a) if the maker of the statement either—

(i) had personal knowledge of the matters dealt with by the statement; or
 personal knowledge means the person himself must know it. The source of evidence
(information) cannot be derived from somewhere/someone else

(ii) where the document in question is or forms part of a record purporting to be a continuous
record, made the statement (so far as the matters dealt with thereby are not within his
personal knowledge) in the performance of a duty to record information supplied to him by a
person who had, or might reasonably be supposed to have had, personal knowledge of those
matters; and
 Under this clause, no personal knowledge involved
 But the person records the information based on what has been supplied to him by
someone who has the knowledge
 E.g. Staff at National Registration Department (Jabatan Pendaftaran Negara)- they don’t
know you (their duty is only to record information supplied; they don’t have personal
knowledge, we do); you are supplying them with information by filling in the forms such
as your date of birth, name, etc. for production of your identification card (I.C.)

(b) if the maker of the statement is called as a witness in the proceedings:

See previous lecture notes.

29

[1981] 1 MLJ 201.

30

Facts:The plaintiff is a timber logger. The plaintiff contract with the defendant, a logging company to cut down the trees in part of
a forest. Later, the plaintiff accused the defendant for removing and converting 700 tons of timber belonging to the
plaintiff to the defendant’s own use.
: During trial, the plaintiff produced a document which was said to be the record of timber extraction from the forest
written by his son who had since died. The issue is whether the record of timber extraction falls under Section 32(1)(b) as
it was prepared in the course of business.
Held : Section 32(1)(b) cannot be relied on because there is no evidence to show that the record was a statement made “in the
ordinary course of business” of the P or “part of an entry in a memorandum or book kept in the ordinary course of his
business” or “an entry in book of accounts regularly kept in the course of the P’s business” as required under S32(1)(b).
(Moreover, it was not proved that the 700 tons of timber ever existed.)

31
[1996]5 MLJ 692.
32
[2000]2 CLJ 541.
16 | P a g e
 Provided that the condition that the maker of the statement shall be called as a witness need
not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a
witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or
if all reasonable efforts to find him have been made without success.

Summary on S73A(1):
● S73A is considered an exception to hearsay because the proviso shows circumstances where you
cannot call the witness. In other words, s73A admits/accepts hearsay evidence
● S73A requires you to call in the maker as witness because you are relying on him to prove the
contents of the issue, for you to be able to cross-examine him
● Unless his duty is to record the document, then he does not need personal knowledge
● If the witness is not available, the proviso must be fulfilled, then you can bring in evidence even
though the maker is not called (i.e. dead, unfit, cannot be traced, etc.)
● Note : The words “if all reasonable efforts to find him have been made without success” in proviso
means that you must show positive efforts to locate the maker.

[Mahmod bin Kailan v Goh Seng Choon]33

Facts : The appellant was knocked down by a taxi and had lost his earnings due to the accident. So,
he sued the driver for loss of earnings and was awarded damages. However, he appealed
against the award on the ground that the court did not include past earnings for the damages.
So, he sought to prove that he was a labour contractor by producing a letter from a
construction company, but no one from the company was called to testify the letter.
: Instead, the appellant only called his lawyer’s clerk as witness to testify the letter.
According to the clerk, he went to the construction company’s premises but found that the
signboard was already missing. He was told by some people that the company had moved but
nobody knew where they moved to and he could not find the company's address in the phone
book.
Held : The letter was inadmissible as no reasonable efforts have been made to find the author of
the letter within the meaning of the proviso to subsection (1) of s73A. In this case, the
appellant could have checked with the Business Registration Department nor of the Registry
of Companies for the address but he didn’t do so.
: However, the court still increased the damages by assuming (based on the evidences shown)
that the appellant was working before the accident thus the past earnings claims were
allowed.

 Do you need to prove by way of documentary evidence if you have oral evidence based on s73A(1)?
Dr Jal : You have to go back to relevancy. Whatever is in the document must be relevant to the
facts in issue (e.g. for breach of contract, refer to the contract) You can admit both oral and
documentary evidence; but if you have already proved through oral evidence, then no need to
prove by documentary.
3.2) Section 73A(2)
● S73A(2) is another exception for documentary hearsay (besides proviso for s73A(1))

Section 73A(2):
In any civil proceedings, after considering all the circumstances of the case, if the court is satisfied that
undue delay or expense would otherwise be caused, the court may at anytime of the proceeding, order

33
[1976] 2 MLJ 239.
17 | P a g e
 that such a statement as mentioned in subsection (1) shall be admissible as evidence or admit such a
statement in evidence (without saying so) –
(a) notwithstanding that the maker of the statement is available but is not called as a witness; and
(b) notwithstanding that the original document is not produced, if, it is produced:
- a copy of the original document or
- a copy of the material part of the document which is certified to be a true copy in such
manner the court may order or approve.
[IJM Corp. Bhd v Zamri Hj Ibrahim]34
Facts : The appellant developer and the respondent entered into a sale and purchase agreement. The
appellant sent a letter to the respondents notifying them that the unit had been completed and that
the respondents were requested to settle all outstanding payments. The respondent then paid the
full purchase price but failed to pay some other incidental charges (service, insurance, quit rent
and assessment charges) as vacant possession of the unit had not been delivered to them. So, the
appellant sued the respondent for recovering the charges . In proving his case, the appellant
tender the letter as an evidence.
: The High Court did not admitted the letter as its signatory (one Mr Goh) was not called as
witness to testify the letter as he has disappeared. His portfolio was taken over by another witness
who testified that the letter was issued and served on the respondents although he was unable to
produce proof of its posting.
Held : Under s73A there are 3 circumstances where a statement in a document is admissible:-
i. When the maker is called to testify the document itself
ii. When the maker is not available, as provided under s73A(1)
iii. When the maker is available but not called as witness due to the under circumstances laid
down in s73A(2).
: In the present case, the case falls under section 73A(2)(a) as Mr Goh (the maker) has
disappeared. So, if the Court having regard to all the circumstances, is satisfied that undue delay
or expense “would otherwise be caused”, it may admit a document even if the maker is available
but not called.

[Arab Malaysian Merchant Bank Bhd v Chong On Foh Medical Hall & Liquor Dealers]35
Facts : The plaintiff bank sued the defendant firm based on a factoring agreement. So, the agreement
became the evidence that the plaintiff relied on in his case. The agreement was signed on behalf
of the plaintiff by one Dr Junid and Dr Cheah (the managing directors). However, Dr Junid, who
had knowledge of the document, had left the plaintiff while Dr Cheah could not come to the
Magistrate's Court at Bukit Mertajam from Kuala Lumpur as he was a busy man. So, the
defendant objected to the tendering of the agreement
Held : The agreement is admissible under S73A(2) since Dr Cheah himself had previously come to
Bukit Mertajam all the way from Kuala Lumpur five or six times for the same case. In this case,
the claim was only for a sum of RM5,425.82 while the costs incurred on the plaintiff were more
than what it was claiming. Thus, since Dr Junid has disappeared and only Dr Cheah is available,
if he had to come again there would be “undue delay or expense” on the case.

34
[2014] 7 CLJ 479.
35
[1997] 4 MLJ 532.
18 | P a g e
Dr Jal: To understanding s73A, you MUST read this case (judgment by Augustine Paul):-
[Allied Bank (Malaysia) Bhd v Yau Jiok Hua]36
Facts : The plaintiffs sued defendant for debt recovery (overdraft). The Defendant did not dispute the
overdraft but argued that the notice of demand had not been sent to him. The plaintiffs tried to prove
service of few notices of demand by AR registered post through PW1 (a lawyer ) and PW2
(plaintiff’s manager)
: PW1 stated that he had no personal knowledge of plaintiffs having been clients of his firm-
whatever knowledge he had was only through his office records. PW2 confirmed that he had
personal knowledge of the letters of demand, the authors being PW1’s law firm (M/s Nordin Hamid
& Co).:
- He stated that the letters of demand were issued on his behalf by the law firm
- The lawyer handling the plaintiff’s matter was Mr Thavarajah, who has migrated to Australia
- PW2 said that he considered looking for Mr Thavarajah but did not do so because his exact
whereabouts were not known; it would not be cost-effective to bring him for trial; and he did not
know how long it would take to find him
: Plaintiffs sought to admit the letter as evidence through ss32(1)(b) and 73A. The Defendants
objected on the documents’ admissibility as it had not been established who the author of the
documents was; and no evidence was adduced to establish the efforts taken to locate the witness.

Held : Where a document is sought to be proved to establish the truth its content, the maker has to be
called. Non-compliance with this rule will result in the contents of the document being hearsay
: However, ss. 32(1)(b) and 73A are exceptions to the hearsay rule. The differences of these sections
are:
- S32(1)(b) is confined to maker’s personal knowledge BUT s73A extends the scope to
admissibility of the statement even when its maker does not have personal knowledge of its
contents so long as the supplier of the information to the maker had such knowledge
- S32(1)(b) renders admissible only first-hand hearsay BUT s73A renders admissible both first-
hand AND second-hand hearsay.
: Pursuant to s32(1)(b), sufficient evidence must be shown to prove that such “delay and
expense” to be unreasonable in producing the maker as a witness.
- The question of the reasonableness of the delay or expense should be considered with
reference to the circumstances of each case.
- Whether the attendance of a witness can be procured without any unnecessary delay or
expense is for the court to decide.
: In this case, S32(1)(b) is inapplicable as Mr Thavarajah could not have issued the notice in 1990 if
he had migrated between 1988 and 1989. He did not have personal knowledge to the content of the
notices but the notices were all prepared by him based on information supplied by another person.
: Also, S73 A is inapplicable too as the plaintiff failed to prove that Mr Thavarah was in fact not
available. Although Mr Thavarah was said to be in Australia, the plaintiff did not prove so and
hence, it is mere allegation. Thus, the ingredient under S73A that the witness is not available is not
satisfied.

4) Summary by Dr Jal:
 S73A is applicable to statements in a document and civil cases only.
 In general, S73A provides for admissibility of a statement made in a document where its maker will or
will not be called to testify in court depending on the circumstances stated in the section.
36
[1998] 2 CLJ 33.
19 | P a g e
 Chapter 3 : Computer-Generated Documents: Section 90A
1) Introduction
● S90 A is inserted quite late into the Evidence Act to cater for computer-generated documents
● In that regard, a “computer-generated documents” must satisfy 2 definitions which are:
i. ‘document’37
ii. ‘computer’38

where both are defined under section 3.

 “Computer” under section 3 is defined quite widely. It basically refers to any devices with data
processing and storage function. For example, besides laptops, cases have held the following to be a
‘computer’
- CCTV [Ahmad Najib Aris v PP]39
- bus ticket machine [Hanafi Mat Hassan v.PP]40
- DNA analysers [Hanafi.Bin.Mat.Hassan.v.PP]
(this case held that when there are more than 1 devices involved in
producing a document like DNA analyzers, all the devices will be
counted as one computer. )
● As for “documents”, it is defined to include any representation, be it in physical or virtual form such as
images or voice recording. Therefore, bank statements, CCTV footage, WhatsApp messages are all
considered “documents”.
Mok Yii Chek v Sovo Sdn Bhd [2015] MLRHU 196
Held : Print-outs of e-mails and Whatsapp messages fall within the wide meaning of “document”
under the Evidence Act. A print-out of a Whatsapp message be admitted as evidence if the
following criteria is met:
i. the Whatsapp message concerns the existence or non-existence of a fact in issue, or that it
is otherwise relevant to the proceedings.
ii. the Whatsapp message must meet the procedural requirements of admitting a document
produced by a computer (eg: through oral evidence that the print out was produced by the
computer in the course of the ordinary use of the computer, or by providing a certificate
under Section 90A of the Evidence Act 1950).

37
Section 3:
“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;

38
Section 3:
“computer” means an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such
interconnected or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage
facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected
or related devices, but does not include an automated typewriter or typesetter, or a portable hand held calculator or other similar
device which is non-programmable or which does not contain any data storage facility;

39
[2009] 2 CLJ 800.
40
[2006] 3 CLJ 269
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2) Section 90A
● To understand this chapter, please read through the provision first:
S90A: Admissibility of documents produced by computers, and of statements contained therein
(1) In any criminal or civil proceeding, a document produced by a computer, or a statement
contained in such document, shall be admissible as evidence if the document was produced by the
computer in the course of its ordinary use, whether or not the person tendering it is the maker.
(2) Under this section, to prove that a document was “produced by a computer in the course of its
ordinary use” , it may be proven by tendering to the court a certificate signed by a person who
either before or after the computer-generated document’s production, is responsible for:
- the management of the operation of that computer, or
- the conduct of the activities for which that computer was used.
(3) (a) For the certificate mentioned under subsection (2), it shall be sufficient 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 as evidence as prima facie proof of
all matters stated in it without proof of signature of the person who gave the certificate.
(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.
(5) A document shall be deemed to have been produced by a computer
- whether it was produced by it directly or by means of any appropriate equipment, and
- whether or not there was any direct or indirect human intervention.
(6) A document produced by a computer, or a statement contained in such document, shall be admissible
in evidence whether or not it was produced by the computer
- after the commencement of the proceeding, or
- after the commencement of any investigation or inquiry in relation to the proceeding or such
investigation or inquiry,
and any document so produced by a computer shall be deemed to be produced by the computer in the
course of its ordinary use.
(7) A accused in a criminal proceeding cannot tender a computer-generated document as evidence when:
- the accused is responsible for the “management.of.operation” or “conduct.of.activities” of the
computer which produced the document concerned.
- the accused is involved directly or indirectly in the production of the document.

● Thus, s90A:
i. Applies for BOTH civil and criminal cases
ii. The document concerned must be document produced by a computer in the course of its
ordinary use (E.g. if it is a bus ticket dispenser, it should only produce bus ticket) (s90A(1)).
iii. A certificate must be tendered to show that the document concerned is produced by a computer in
its ordinary use (s90A(2)) and it is sufficient that such certificate is stated by the “best knowledge
of the person tendering it. (s90A(3)(a))
iv. A computer-generated document doesn’t need signature (s90A(3)(b))
v. Also, s90A(4)- (6) laid down the presumptions for a computer-generated document.

 Note: S90A(6) is controversial. (See upcoming notes)

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3) Mode of proof under S90A
 Dr Jal: When we talk about method of proving, the same principle is applicable for documents. This
means you have to call the maker to prove the content of the statement or the document can be regarded
as hearsay. However, S.90A is an exception to the hearsay rule.
 The effect of S.90A is that it is no longer necessary to call the maker of a document to come to Court to
testify the document. This is a relaxation of the direct evidence rule.
 S90A(1) provided that a document can be admitted as long as it is produced “by a computer in its
ordinary use”. How to prove this?
 This case explained the application of S90A in detailed:

[Hanafi Mat Hassan v PP]41 (endorsed by Federal Court in Ahmad.Najib.Aris.v.PP)

Facts : The accused was convicted of rape and murder and the evidence concerned was a bus ticket
produced by a bus ticket machine and a DNA report produced by a computer. The accused
appealed against the decision of the trial judge. He contended that a computer produced
document such as bus ticket and DNA report could only be admitted under s.90A if the
prosecution was able to prove that they were produced by a computer in the course of its
ordinary use. Thus, it was inadmissible unless the prosecution proves it by producing a
certificate under s.90A(2).

Held : The purpose of S90A is to admit a computer-generated document as evidence. Under

S90A(1), there are 2 conditions that must be fulfilled to admit a computer-generated
document:
i. The document is produced by a computer, and
ii. The document is produced by a computer in the course of its ordinary use.

: So, to satisfy these 2 conditions, the first element (document is produced by a computer) can
be proven in ordinary form (ie calling witness etc). As for the second element (document is
produced by a computer “in its course of ordinary use”). there are 2 ways:

i. By using a certificate as required by S90A(2)

ii. Without using a certificate as required by S90A(2) but by oral evidence

Under S90A(2), it states that a certificate may be tendered to prove that a document is
proven by a computer in its course of ordinary use. However, this requirement is not
mandatory due to the word “may” which is why another way of proving the second
element under (1) is available which is by using oral evidence instead of the certificate.

However, if a certificate is used, the presumption contained in s.90A(4) will be activated

to establish that:
a. the computer was in good working order AND
b. the computer was operating properly in all respects.

But, if oral evidence was used, the matters above under s.90A(4) must be proven by oral
evidence since the presumptions under s90A(4) is only limited to when a certificate under
(2) was tendered as (4) starts with “Where a certificate is given under subsection (2), it
shall be presumed that…….”

41
[2006] 3 CLJ 269.
22 | P a g e
 : S90A(6) provided that any computer-generated document shall be deemed to be produced
by the computer in the course of its ordinary use. Does this means that (6) can be used to
presume that a document was produced “by the computer in the course of its ordinary use” so
as to satisfy the second element under (1)? Under the old position in Gnanasegaran (will be
explained later), yes, but this case has overruled the position, so it is not so anymore. The
Court explained:

- the presumption42 under S90A(6) can only be used for a document that is not
produced by a computer in the course of its ordinary use, in other words, when a
document does not satisfy the second element of s 90A(1).
- This is because if (6) is used to presume that every document is produced “by the
computer in the course of its ordinary use” then technically (2) would be
unnecessary43. Therefore, this means that the function of (6) is to render a document
produced by a computer but not in the course of its ordinary use to be one that is”
produced by the computer in the ordinary course of its use”.
- Thus (6) cannot apply to a document which is already one that is produced by a
computer in the ordinary course of its use. In such cases, the document must be
proved in the manner authorised by s 90A(2).
- However, even if a document was presumed to be produced “by the computer in the
course of its ordinary use”, the requirements under 90A(4) must still be established.
This can be done by tendering in evidence the certificate under s 90A(2) or by way of
oral evidence.

: It must be stressed that s 90A only deals with the admissibility of a document produced by a
computer and not to the weight to be attached to it which will be the subject matter of a
separate exercise.

Cf old position:
[Gnanasegaran a/l Pararajasingam v PP]44
Facts : The appellant was charged with criminal breach of trust. The prosecution relied on
documentary evidence including computerised records generated by the bank’s computers.
To testify the document, the PP summon a witness (‘Zainal’) who was in charge of
operations of current accounts of the bank, to give oral evidence . The appellant argued that
Zainal’s evidence was not admissible because s 90A states that a certificate is needed to
authenticate computerised records.
Held : Section 90A makes computerized records made in the course of its ordinary use admissible
if it is proven that:-
i. the document was produced by a computer; and
ii. the computer was in the course of its ordinary use.
: Hence, how to prove that the computer being in course of its ordinary use? There are 2
ways, either by cert under (2) or by oral evidence but (2) is not mandatory due to the word
“may”. This can be supported by sub.(4) which provided that “where a certificate is given
under subs.(2)..” which also implies that the certificate is not required to be produced in every
case.

42
that a document was produced “by the computer in the course of its ordinary use”
43
The court explained a lot to come to this reasoning, read para 28 - 31 of the case.
44
[1997] 3 MLJ 1.
23 | P a g e
 : However, since sub (6) provided that a document produced by a computer shall be deemed
to be “produced by the computer in the course of its ordinary use.” This means that as long as
it could be proven that a document is generated by a computer it is presumed to be “produced
by the computer in the course of its ordinary use.”. In other words, (6) can be used to bypass
the requirement of a cert under (2).

:. In this case, since the prosecution had adduced evidence through a bank officer that the
document was produced by a computer, they do not have to produce a certificate under subs.
(2) as subs.(6) already presumed that it was “produced by the computer in the course of its
ordinary use.”. Hence, since Zainal was in charge of the operations of current accounts, he
could testify the documents.

4) Other rules pertaining the application of Section 90A

 This subtopic will discuss other rules governing the application of section 90A.

4.1. The certificate under section 90A(2) is only required when it is disputed that it was “produced
by a computer in the course of its ordinary use”.
 This means that if noone dispute that a document is “produced by a computer in the course of
its ordinary use”, it can be admitted straight away without tendering the certificate of oral
evidence:

[Standard Chartered Bank v Mukah Singh]45 (confirmed by CoA in Chua.Boon.Hong.v.PP)

Facts : The Plaintiffs (bank) claimed against the Defendant for failing to repay the loan
instalments. The documents that were disputed were the computer-generated loan
ledger cards which showed the amount owing by the Defendant to the Plaintiffs. The
Defendant argued that these documents were inadmissible because s.90A(2) is not
complied with.
Held : 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 use46 of the
computer. Hence, it becomes unnecessary to produce the certificate under S.90A(2) to
prove that the documents were produced by a computer in the course of its ordinary
use.
: Such a certificate under Sub (2) is only required when it is disputed that
whether the documents were “produced by a computer in the course of its
ordinary use”.

4.2. The Appropriate Person to Sign the Certificate

 As mentioned, the certificate shall be signed by a person responsible of a computer’s
“management.of.operation” and “conduct.of.activities”. This can be technical sometimes:

Navi.&.Map.Sdn.Bhd.v.Twincie.Sdn.Bhd,47
Fact : The plaintiff sought to admit the printout of a Skype chat as evidence to prove his
claim of infringement of copyright against the defendant. So, the plaintiff tendered a
certificate signed by its Head.of.Digital.Forensic.Department, who was a digital
forensic expert.
Held : The Court held that, the expert is not a person responsible for the computer’s
“management.of.operation” and “conduct.of activities”. This is because he as a digital
forensic expert was only responsible for the management and analysis process of the
45
[1996] 3 MLJ 240.
46
Dr Jal: for eg, bus ticket dispenser can only produce bus ticket and not others
47
[2010] MLJU 1210
24 | P a g e
 hard disc and not the computer component that produced the said Skype chats.
Therefore, the certificate was not admissible.

4.3. Even if a certificate is tendered a witness may still be called to testify the document
 The certificate is not a conclusive way to prove the authenticity of a document. Thus, even when
a certificate is tendered, if the authenticity of the document is disputed, the witness (exp: cyber
forensic expert or maker) may still be required to testify the documentL

[Tan Chow Cheang v PP]48

Facts : The Appellant was charged for trafficking in dangerous drugs. He then produced a
pendrive containing the CCTV recording to prove that the drug was planted (hence,
the PP’s case would collapse). 2 certificate was produced under S90A(2) to testify the
CCTV footage. However, the PP objected and insisted to sent the footage to the
forensic department for forensic report. The appellant however objected and
contended that the maker of the certificate was in Court during the trial and she could
give oral evidence on the certificate and the CCTV recording immediately.
Held : The Court disagreed with the Appellant’s argument even though the certificate was
certified by a director “responsible for the management of the operation of the
computer”. The production of the certificate is not the conclusive way to prove the
pendrive’s admissibility as the word used in s.90A(2) is ‘may’. Especially when the
content was being disputed49 and it is possible for images to be tempered with, it is
only safe for witnesses to be called to confirm or to rebut it.

 This case illustrate a document was admitted as evidence by calling the maker of document in
lieu of a certificate:
[PP v Azilah Hadri]50
Facts : The accused were charged for the offence of murder. In order to pinpoint the
accused’s whereabouts during the murder, the police tendered the call logs of the
accused’s number and called the officers from Celcom to testify the content.
However, the accused argued that a certificate should be tendered under section
90A(2) instead.
Held : In this case, the officers from Celcom is the makers of the call logs. Since they as the
maker testified that the call logs were produced by a computer and the computer was
in good order it satisfy the requirements under section A90(1) i.e. the call logs were
produced by the computers in the course of their ordinary use. So, there is no need to
adduce the certificates under s.90A(2).

4.4. Human Intervention

 section.90A(5) provided that a document shall be deemed to be produced by a computer
whether it was produced by it directly or by means of any appropriate equipment and whether
or not there was human intervention.
 Thus, even if there were human interventions during the production of the document (hence
there is fabrication of the document, it is for the other party to prove so)
 This provision was endorsed by the Court in Pathmanabhan.a/l.Nalliannen.v.PP51 by holding
that “humans are more infallible in making mistakes than machines”.
48
[2018] 6 CLJ 452.
49
The High Court judge had averred in her judgment that the image in the video was blurry and the raiding office had refuted
the time shown on it.
50
[2015] 1 CLJ 579.
51
[2013] 5 MLJ 867
25 | P a g e
 4.5. Admissibility and Authenticity
 Section.90B states that the Court shall consider certain aspects when determining the weight of a
computer-generated document. This means that even if a document is admissible under
section.90A, it will not be automatically accepted as evidence as the Court must still consider its
probative value

90B. Weight to be attached to document, or statement contained in document, admitted by

virtue of section 90a

In estimating the weight, if any, to be attached to a document, or a statement contained in a

document, admitted by virtue of section 90a, the court—
(a) may draw any reasonable inference from circumstances relating to the document or the
statement, including the manner and purpose of its creation, or its accuracy or otherwise;
(b) shall have regard to—
(i) the interval of time between the occurrence or existence of the facts stated in the
document or statement, and the supply of the relevant information or matter into the
computer; and
(ii) whether or not the person who supplies, or any person concerned with the supply of,
such information or the custody of the document, or the document containing the
statement, had any incentive to conceal or misrepresent all or any of the facts stated in
the document or statement.

Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd [2017] 1 MELR 383
Held : The court refused to admit a snapshot image of a Whatsapp conversation as evidence
because the snapshot doesn’t include the Claimant’s name, the date of the Whatsapp
message, the Claimant’s handphone number and the Claimant’s profile picture. So there are
risk of fabrication of the conversation, hence not admissible.

[Hanafi Mat Hassan v PP[

Held : Section.90A only deals with the admissibility of a computer-generated document and not its
weight.

4.6. Superiority of section 90A

 Section.90C provides that section.90A shall supersede other laws governing the admission of
evidence except the Security.Offences (Special.Measures) Act.52

Section 90C: Sections 90a and 90b to prevail over other provisions of this Act, the Bankers’ Books
(Evidence) Act 1949, and any written law

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 [Act 33], 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.

5) Illustrative cases under S90A

52
Security Offences (Special Measures) Act 2012 (Act 747). Section 17 of the Security Offences (Special Measures) Act provided
that the Act will overrides the provisions of the Evidence Act 1950.
26 | P a g e
  This heading is added just to illustrate some important principles under S90A as the case of Hanafi
Mat Hassan has summed up everything:

i. S.90A(6) is a deeming provision. Its purpose is to render/presume a document produced by a
computer to be one that is “produced in the ordinary course of its use”. It can only apply to a
document which is not produced by the computer in the ordinary course of use. 53 However, the
requirements of s.90A(4) must be fulfilled by tendering a certificate under s.90A(2) or by way
of oral evidence.

[Ahmad Najib Aris v PP]54 (FC)

Facts : The accused was convicted of rape and murder. One of the grounds of appeal was
the acceptance of the DNA report (the evidence concerned) was in breach of s.90A
Held : A document was produced by a computer in the course of its ordinary use can be
proved by
i. tendering a certificate under s.90A(2) or
ii. by way of oral evidence. Such oral evidence must not only consist of a
statement that the document was produced by a computer in the course of
its ordinary use but also of the matters presumed under s90A(4).
: S.90A(6) deals with the admissibility of the document which was not produced by
the computer in the course of its ordinary use and is only deemed to be so. The
presumption contained in s.90A(6) can be invoked only when the document was not
produced by a computer in the course of its ordinary use.
: In this case, no certificate under (2) was tendered nor oral evidence was given to
show that the report was produced by a computer in the course of its ordinary use.
Therefore, s.90A(6) can be resorted to admit the evidence. In this case, since
presumptions under (4) was proven by the evidences given, (6) can be invoked to
admit the report.

[Lau Chee Kai v PP]55

Facts : The Appellant was charged for the offence of kidnapping for the purpose of
obtaining a ransom but was later convicted on an amended charge (receiving ransom
monies). The Appellant appealed and challenged the admissibility of a computer
printout (a printed copy of the note’s serial numbers) under s.90A. The Appellant
contended that the prosecution had not tendered a certificate under s.90A(2), it had
not proved the computer was used in the course of its ordinary use.
Held : The prosecution had not tendered a certificate under s.90A(2) and the witness did
not say printed copy of the notes’ serial number was produced by a computer in the
course of its ordinary use.
: However, by proving that the printed copy was produced by a computer, it could be
resorted to the presumption under s.90A(6) which provides that a document produced
by a computer shall be deemed to be produced by the computer in the course of its
ordinary use.

iii. Unimportant cases that you can ignore:

[PP v Datuk Hj Sahar Arpan]56

Facts : The accused was convicted for having committed corrupt practice by using his
public position for his pecuniary advantage. During the trial, statements of accounts
53
Ie, a document which does not come within the scope of s.90A(1)
54
[2009] 2 CLJ 800.
55
[2016] 6 MLJevi 223.
56
[1999] 3 CLJ 427.
27 | P a g e
 and documents from the registrar of companies produced from microfilms or direct
from computers were tendered.
Held : A computer printout is not a copy but an original document.
: The computer printouts relating to the banking transactions were primary evidence.
This was because the information, which came about was because of the online
system, was created by the normal process of computerisation. The online system of
the relevant institution ensured the authenticity of the data as no information were
tampered.
: The makers were also being called to give evidence. This assisted the prosecution to
circumvent s.90A(2) as the witnesses admitted that the documents were produced in
the course of ordinary use.

28 | P a g e
 Chapter 4 : Relevancy

1) Introduction
 We will be discussing general relevancy under s.5 – s.10 of the EA
 Main duty of S5-55 is to prove the existence of facts in issue by adducing relevant evidence
 It serves as a filter to make sure that not everything is brought to the Court to prove the facts and facts
in issue
 In order for a particular fact to be relevant, there must be a connection between the particular facts and
the facts in issue.
 You must be able to say that this particular fact is relevant under which section

2) Definition of “relevant”
 S.3 defines “relevant” :
An evidence is said to be relevant when it is connected with a fact by the ways of the provisions
governing the relevancy of facts. (s5-55) 57
 Dr Jal: So long as you can prove that the particular facts are connected with facts in issue, then you can
bring in the evidence provided you know under which section (s.5 – s.55) to bring in that evidence
 Janab’s Key to the Law of Evidence :
Generally, the word relevant in the context of facts means that any two facts when applied are so
related to each other that according to the ordinary course of events one either taken by itself or in
connection with the other facts, proves or renders possible the past, present or future existence or non-
existence of the other.
 For eg: If you want to prove that the accused has committed the offence, you can bring in evidence to
show that he has the motive to commit the offence (s.8 motive), right after the incident he ran away
from the crime scene (s.8 subsequent conduct) etc.

3) Court must decide whether a fact (evidence) is relevant to the fact in issue
 S.136(1) : Court to decide as to admissibility of evidence
When either party proposes to give evidence of any fact, the court may ask the party proposing to give
the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit
the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.
 Dr Jal: the one who proposes to give evidence must be able to explain how are this particular evidence
relevant to the facts in issue
 S.136(1) is a vehicle for excluding evidence that is rendered irrelevant by the EA.
[PP v Dato’ Seri Anwar Ibrahim (No.3)]58
Held : S.136 gives the power to the Court to ask a party tendering evidence of a particular fact to
show how the fact if proved would be relevant, and the evidence can be admitted only if the
Court is satisfied that it is relevant.
: The Court has the power and is duty-bound, to inquire into the relevancy of a proposed
witness before he begins to give evidence. The object is to ensure that evidence is confined to
relevant facts and does not stray beyond the proper limits of the issues at trial.
: It is necessary for the party to give a summary of the proposed evidence when asked by the
Court in order for it to rule on the relevancy of the proposed evidence.
57
Original provision : “relevant”: one fact is said to be relevant to another when the one is connected with the other in
any of the ways referred to in the provisions of this Act relating to the relevancy of facts.
58
[1999] 2 MLJ 1.
29 | P a g e
  Section 4-10 of Evidence Act governing “relevant facts” will be discussed below.
4) Section 5
 S.5 : Evidence may be given of facts in issue and relevant facts59
Evidence may be given to prove the existence or non-existence of every fact in issue and other relevant
facts, and of no others

Explanation60
ILLUSTRATIONS61

 This means that you can only bring in facts in issue and relevant facts. For eg: In order to prove actus
reus and mens rea, you can bring in any other facts to prove A is the one who caused the death of B.
 For example, in Sunny Ang’s case,62 the Prosecution brought in circumstance evidence to show that
Sunny was the one who committed the offence. There is no eye witness in this case. The prosecution
can bring in whatever evidence that can prove that Sunny has the intention and he is the one who
committed the offence. The PP eventually proved that Sunny had motive (he is a bankrupt, his mother
is the beneficiary of the insurance) and preparation to commit the offence (flippers were cut, half-empty
oxygen tank)

5) Section 6
 S.6 : Relevancy of facts forming part of same transaction
Facts which though not in issue, (but) are so connected with a fact in issue as to form part of the same
transaction, are relevant, whether they occurred at the same time and place or at different times and
places.

Illustration63

59
Original provision : Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in
issue and of such other facts as are hereinafter declared to be relevant, and of no others
60
This section shall not enable any person to give evidence of a fact which he is disentitled to prove by the law relating to civil
procedure
61

(a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following
facts are in issue:
A’s beating B with the club;
A’s causing B’s death by the beating; and
A’s intention to cause B’s death.
(b) A a party to a suit, does not comply with a notice given by B the other party to produce for B’s inspection a document
referred to in A’s pleadings. This section does not enable A to put the document in evidence on his behalf in that suit,
otherwise than in accordance with the conditions prescribed by the law relating to civil procedure.

62
learned in sem 1 and hence won’t be elaborated.
63

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating
or so shortly before or after it as to form part of the transaction is a relevant fact.
(b) A is accused of waging war against the Yang di-Pertuan Agong by taking part in an armed insurrection in which property
is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant as forming part
of the general transaction, though A may not have been present at all of them.
(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the
subject out of which the libel arose and forming part of the correspondence in which it is contained are relevant facts
though they do not contain the libel itself.
30 | P a g e
 Dr Jal: If you have a fact that can form part of the transaction to the fact in issue, then you can bring in
this particular fact under s.6
 Sarkar on the “Law of Evidence”
o There are facts which are so closely or inseparably connected with the fact in issue that they may be
said to form part of the same transaction.
o A transaction may constitute a single incident occupying a few moments or it may be occupying a
much longer time and occurring on different occasions. They may also occur at the same place or at
different places. All these constituent incidents accompany and tend to explain the fact in issue.
o Thus, these facts are relevant to the fact in issue and therefore admissible in evidence.
 S.6 incorporates common law’s res gestae64 However, it is slightly different from s.6 in Malaysia as S.6
is wider than res gestae.
o Janab’s Key to Criminal Procedure and Evidence:
Res gestae are admissible as truth of its contents although they may be hearsay, or self-serving
statement and inadmissible in evidence. The statements accompanying the act to be admissible
should as far as possible be contemporaneous to the act in issue which it relates. Further, they
should be spontaneously made so that there is no opportunity for fabrication.
 Dr Jal: When you want to prove the transaction under s.6, there is an element of hearsay. However, s.6
is an exception to hearsay rule. Thus, if the fact falls under res gestae or s.6 which form part of the
transaction, it can be admitted so long as you can minimise the possibility of fabrication and concoction
of that evidence
 For example under Illustration (a), it is a cover statement. It is admissible because whatever been said
and done is spontaneous. There is no opportunity to fabricate the evidence. The time gap is very short.
Whatever has been uttered by this person spontaneously, it can reduce the possibility of fabrication and
concoction. (look at time span – don’t be too long)

5.1) “Same transaction” under Section 6

 How to know if a fact “occurs in the same transaction” as required by S6?
 A same transaction is a group of facts so connected together as to be referred to by a single name.
As long as it happen in one single transaction, and can prove that it forms part of the same
transaction then the evidence is admissible under section 6
 A same transaction cannot be read in isolation, but has to be read as a whole. In the same transaction,
even though there is a gap between eacg separate transactions, but they are so related to each other.
 Dr Jal: If you have the facts in issue, and you have other facts to bring in because you argue these
facts form part of the transaction, these particular facts can occur at the same time or before or after
it. It does not necessarily have to happen at the same place, it can be at different places
 For direct evidence (perceive by sense) to be part of the same transaction, it must satisfy the test of 4
proximities. This test was formulated in the Indian case of Amrita Lal Hazra v Emperor.

[Amrita Lal Hazra v Emperor]65

Held : Whether 2 or more acts constitute the same transaction may be easily indicated based on
the:
a. Proximity of time;
b. proximity of place;

(d) The question is whether certain goods ordered from B were delivered to A. The goods were delivered to several
intermediate persons successively. Each delivery is a relevant fact.
64
It means “things done” In latin. It refers to all the acts, circumstances, and statements that are incidental to the facts of a
litigated matter, and which are admissible as evidence. It is a term used to describe a declaration that is made in such close
connection to an event that it can be used to prove that the event actually happened.
65
(1915) ILR 42 Cal 957
31 | P a g e
 c. Continuity of action; and
d. Community of purpose.

a. Proximity of time and place

- This means that the facts must be “related” to each other in terms of time and place.
- S6, it provided that the “related facts” can occur in the same transaction but in the same or
different time & place. So, it means that these related facts don’t have to occur at the same time
in the same place. As long as there are some “proximity”, they are related.
- However, it is common sense that if the facts occurred at the same and place, it is more lightly
to be admitted as evidence under S6.

b. Continuity of action and community of purpose.

- This means that there is continuity of action and the purpose of establishing the relevant fact

5.2) Illustrative cases: Relevancy of Facts Forming Part of Same Transaction

[Lai Khan Nei v PP]66
Facts : The accused was charged for the offence of kidnapping.
- Before releasing the victim, the accused told the victim that he received ransom from the
victim’s mother and he will go overseas after that (1st fact).
- After releasing the victim, he went to a travel agent and bought tickets to Macau (2 nd
fact).
: The issues is, are these 2 facts formed part of the same transaction?
Held : These 2 facts are connected as the accused got the ransom and bought flight ticket to Macau.
So, these 2 facts can be admitted as evidence to prove that he committed the offence of
kidnapping as these 2 facts formed part of the same transaction of the offence. The act of him
went to buy ticket was relevant under s.6.

[Hamsa Kunju v Regina]67

Facts : The Appellant was convicted for causing hurt and grievous hurt to a fellow worker on a
construction site. The attack happened at night. The prosecution witnesses testified that there
was an argument between the Appellant and the complainant (Samsuddin) in the morning. The
PP relied on this argument to show that the appellant had motive to hurt the complainant. On
appeal, the Appellant objected to the admissibility of that evidence as the argument happened in
the morning but the attached happened at night. So, the argument in the morning cannot be
admitted as an evidence to show that the appellant had the motive to attach the complainant at
night.
Held : The argument was part of res gestae under s.6. It can be argued that the interference and threat
by the complainant (Samsuddin) against the Appellant supplied the necessary motive that
contributed towards the continuity of the action, purpose and design necessary to form part of
same transaction in s.6.
: The lapse of time of almost whole day from the start of the argument in the morning until the
fight itself in the night did not prevent the evidence from being relevant under s.6.

[Kok Ho Leng v PP]68

Facts : There was a raid on premises occupied by the Appellant. The Court has to decide on whether a
66
[2016] MLJU 1658.
67
[1963] 1 MLJ 228.
68
[1941] 1 MLJ 143.
32 | P a g e
 telephone message to the premises during the raid was admissible in evidence.
Held : The telephone message was admissible under 2 sections.
- First, s.6 which deals with what are known as res gestae. A telephone message has some
analogy to the shouting of the by-standers. (similar to illustration (a) to section 6).
- Second, the subsequent cutting of the wire made the Court thinks that the telephone
message may be relevant under s.7.

[Public Prosecutor v Mohd Zahari bin Embong] [2013] 1 MLJ 201.

Facts : The accused person faced four charges for the murder of his wife and his three children. In
this case, these facts are relevant forming part of the same transaction:
 The offence was committed on 11/3/2006 between 7pm to 8:40pm. It is in evidence that
the conversation between SP7 and the accused took place "after maghrib" (of which the
Court can take judicial notice that maghrib prayer time is between 7.30 pm to 8.30 pm).
The conversation between SP12 and the accused took place immediately before SP12
called the police at about 8.40 pm. [SP7 and SP12 are the neighbours of the accused.]
 There is also the evidence of SP11, the sister of the accused who testified that she
received a call via her house phone on the same date (11/3/2006) after maghrib. This call
was confirmed by the investigating officer, SP15 that the call to SP11 was made at 8.07
pm.
Held :The court referred to s669 of Evidence Act & illustration (a)70.
: If a person wants to prove a statement by hearsay, it doesn’t need to be absolutely
contemporaneous with the action or event, but such statement should at least associate
with the facts/event that the statements are part of the things being done. 71
: In this case, the words or statement uttered by the accused to SP7, SP11 and SP12 were
obviously contemporaneous with the event relating to the deaths of the four deceased persons
and therefore admissible.

[PP v Sam Hong Choy] [1996] 1 CLJ 514.

Facts :The accused in this case was charged under FIPA. The witness (PW9) heard someone utter
“tolong kejar, perompak!” not directed to him but to persons present within the vicinity after
he heard the sound of gunfire. The defence counsel argued that those words amounted to
hearsay evidence and is therefore inadmissible.
Held :The court opine that it is not the prosecution’s intention to establish the truth of those
statements. The court also noted that PW9 had heard those words when he was about to enter
the building.
: Hence, it was a relevant fact and is admissible by virtue of s6 of EA 1950 as it is so
connected with a fact in issue as to form part of the same transaction. It does not infringe the
rule against the inadmissibility of hearsay evidence.

69
S6 of EA 1950: “Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction
are relevant, whether they occurred at the same time and place or at different times and places.

70
“A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so
shortly before or after it as to form part of the transaction is a relevant fact."

71
The court referred to the case of Teper v R:
Held:It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with
the action or event, at least so clearly associated with it that they are part of the thing being done, and so an
item or part of the real evidence and not merely a reported statement.

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6) Section 7– Facts which are the Occasion, Cause of Effect of Facts in Issue
S7 EA: facts which
- are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or
- constitute the state of things under which they happened or
- afforded an opportunity of their occurrence or transaction,
are relevant.

s7 Illustration (c) – The question is whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison and habits of B, known to A, which afforded
an opportunity for the administration of poison, are relevant facts.

 Under section 7, there are 5 situations where a particular fact can become relevant evidence. The
keywords of these situations are :
 Occasion
 Cause
 Effect
 State of things
 Opportunity

6.1) Occasion, cause or effect

Dr Jainand v Rex AIR 1949 291.
Fact : The fact in issue was whether Jainand had committed the murder of Karan Singh.
Held : The facts that Jainand had taken money and ornaments from Karan Singh and that
Karan Singh had on the day of murder gone to Jainand to demand the money and
ornaments are relevant facts showing occasion, cause or effect of the fact in issue.

Public Prosecutor v Syahril Razali [2014] 6 MLJ 881 (CA).

Facts :The respondent was a married man but he later divorced his wife and wanted to live with his
girlfriend (“the deceased”). He had proposed to the deceased but he was turned down which
led the respondent to strangle the deceased out of rage. The deceased died of asphyxia due to
manual strangulation. The respondent was charged with an offence of murder of the
deceased.
Held :To establish a person's intention in doing an act, we look at the surrounding circumstances in
which the act was done. These circumstances must not only be confined to the
circumstances at the moment of the commission of the act, but also to circumstances that
existed immediately before and after the event because s7 of EA 1950 states that:
“Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or
facts in issue, or which constitute the state of things under which they happened or which
afforded an opportunity of their occurrence or transaction, are relevant.”

6.2) Opportunity
 Under S7, if the fact infers that you had the opportunity to do something, it is a relevant fact even
though you might not be proven to have actually committed something.

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  In Sarkar Law of Evidence, 16th edn., it was explained in relation to s. 7 of the Evidence Act
1950 at p. 218 as follows:
The reason why “opportunity” allows a fact to be admissible is because , if you want to decide
whether a thing has occurred or not, almost the first natural step is to see whether there were
facts at hand calculated to produce or afford opportunity for its occurrence, or facts which its
occurrence was calculated to produce.

Lingeswaran A/L Ramoo lwn Pendakwa Raya [2017] MLJU 957.

Fact : The PP argued that based on the circumstantial evidence, there is a cumulative inference
and conclusion that no one else but the appellant was responsible for the death of the
deceased.
Held : The Court agreed and held that based on the fact that the appellant was the “last seen
person” with the deceased, it is reasonable to infer that the appellant had the
opportunity to murder the deceased. This is supported with the fact that he time stated in
the charge was approximately the estimated time of death of the deceased as stated in the
statement of SP1. 72
Zulkiply Taib v Prabakar Bala Krishna [2015] 2 CLJ 766 (CA).
Facts :The first to seventh defendants are charged for voluntarily causing hurt to the plaintiff to
extort a confession. 73
Issue :Whether the second, third, fourth, fifth and seventh defendants had unlawfully assaulted the
plaintiff in the place in question, “Bilik Detektif, D7 Unit.”
Held :Based on the evidence and circumstances of the case, the fourth and seventh defendants had
the opportunity to assault the plaintiff. This is because the evidence on records revealed
that the fourth defendant was in the Bilik Detektif, Unit D7. He also confirmed that the
plaintiff was injured whilst in custody at IPD Brickfields. There was no evidence that he had
left the Bilik Detektif, D7 Unit. Thus, the fourth defendant might have kicked and assaulted
the plaintiff as he had the opportunity to do so.
: However, the court was also mindful that mere presence at the Bilik Detektif, D7 Unit was
not sufficient to impute liability on the part of the fourth and seventh defendant. Something
more was needed. However, in this case, the uncontroverted testimony of the plaintiff
confirmed that the seventh defendant was one of the persons who had assaulted him.

7) Section 8 – Motive, Preparation and Previous or Subsequent Conduct

S8
(1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or
relevant fact.
 Dr. Jal: In Sunny Ang v PP [1967] 2 MLJ 195:
The motive of the case was that accused was having financial difficulties and the preparation
work were relevant and is important to prove the intention of his actions but it must be coupled
with other evidences as well.

72
The court referred to Aziz bin Muhamad Din v Public Prosecutor [1966] 5 MLJ 473:
The evidence of opportunity in this case has been supplemented by proof of circumstances of such a nature as to lead to the
inference that it was probable that advantage would be taken by the appellant of the opportunity. The evidence adduced by the
prosecution showed that the appellant was seen together with the deceased…”

73
irrelevant fact: At the conclusion of the trial, the first and second defendants were charged and sentenced to four years of
imprisonment. The third to seventh defendants were acquitted. On appeal, the orders of conviction and acquittal were affirmed
by the High Court. Hence, the appeal to the Court of Appeal.

35 | P a g e
(2) The conduct of any party and the conduct of any person an offence against whom is the subject to
the suit or proceeding is relevant if the conduct influences or is influenced by any fact in issue or
relevant fact, and whether it was previous or subsequent thereto
 Dr. Jal: The conduct is this section can be previous or subsequent conduct.

 Under s8, there are 3 things which can make a fact admissible:
i. motive
ii. Preparation
iii. conduct (include previous and subsequent conduct)

7.1) Motive
 Dr Jal:This can include financial difficulties. This can be seen in the cases below:

Lim Kong v PP [1962] MLJ 195

Held : The accused was convicted for kidnapping for ransom. The evidence showed that
the accused was being pressed to find money to satisfy his debts is relevant as tending
to show motive on the part of the accused.

Sunny Ang v PP
Held : The accused was convicted for murdering his girlfriend where there is a link
between the appellant’s financial difficulties and the deceased’s insurance policies
which the beneficiary was the appellant’s mother.

Wong Foh Hin v Public Prosecutor (1964) 30 MLJ 149

Facts :The appellant was convicted of the murder of his own daughter. The appellant had sexually
disturbed his daughter and his wife reported to the police when he locked her out of the house
that night. The police returned to the house but the daughter was not in the house. The
appellant was taken away and two days later, the daughter’s body was found in a well near
the house.
The evidence admitted showed that three months prior to the daughter’s death, the wife had
previously complained to the Orang Tua that the appellant had interfered with the daughter
and that the matter had been disposed of by the Orang Tua stating that, if this occurred again,
the matter would be reported to the police. Appellant, the wife and the Orang Tua signed a
document which was produced in evidence, recording, inter alia, the allegation and the
warning about reporting to the police if this occurred again.
Held :The the signed document is clearly the strongest possible evidence of motive. This
applies to the evidence of both incidents. The evidence concerning the interview with the
Orang Tua on the first occasion shows how strong the accused’s motive must have been
when the wife went off in the night time on the second occasion. It showed that applicant was
likely to be very concerned that at that tim, there would be a police investigation and the
daughter would be the most important person the police would interview and the most
dangerous from his point of view.

7.2) Preparation
Section 8, illustration (c)
If A is tried for the murder of B by poison, the fact that before the death of B, A procured poison
similar to that which was administered to B, is relevant.

36 | P a g e
Balamurali Muthusamy v PP [2011] 4 CLJ 128.
Facts :The appellant visited SP9. He told SP9 that his motorcycle had run out of petrol and
requested him to purchase petrol for his empty tank. SP9 obliged him. He bought the petrol at
a Petronas petrol station and handed it over to the appellant.
One hour later, SP4 heard shouts and screams and rushed to the source of the commotion
where he saw the wife of the appellant being drenched with petrol and the appellant
attempting to strike a lighter. SP4 saw the appellant’s wife and the deceased attempting to
prevent the appellant from striking the lighter by embracing him.
Held : The petrol, like the murder weapon (a club) in illustration (a) in s5 of the Evidence Act
1950, is a relevant fact. The procurement of the petrol here, which is a preparatory act is
a relevant fact.
: The relevancy of the request of the appellant to SP9 to buy the petrol is seen in light of
s8 of the Evidence Act 1950, which enforces that any fact is relevant, which shows or
constitutes a motive or preparation for any fact in issue or relevant fact.

 Dr. Jal: This case talks about the element of preparation on the part of the accused person. An
example is seen in Sunny Ang’s case where the preparatory acts were that the oxygen tank was
half filled and the deceased’s flippers were cut.

 If the conduct of accused may infer that he committed something, he must rebut such
presumption or he will be assumed to have done that action.
- For exp, the fact that a person ran away from the crime scene, doesn’t mean that he is
necessarily scared or that he has knowledge of a certain offence BUT he has to bring in
evidence to prove so.
Choo Chang Teik v PP
Fact : The accused was charged for drug trafficking. He claimed that he ran away
when the police raided but failed to produce evidence to rebut the presumption
of knowledge which was relevant to his presumption of possessing drugs.
Held : The appellant was convicted of trafficking heroin contained in a travelling
bag. [This is related to s9 of EA 1950]

7.3) Conduct
 Dr.Jal: We can presume or infer the level of knowledge based on the conduct of the accused
person.
 Example of conduct can be expression or action (eg the act of running away from crime scene
can be due to fear.)
 Read a few of the cases to understand the principle will do. All these cases are of the same
principle.

Soo Lik Duo v Pendakwa Raya [2019] MLJU 6.

Facts :The accused was charged and found guilty of murdering the eight month old child of
his girlfriend (SP8).
Held : SP8 had took the deceased who was crying and found that the head of the deceased
was swollen and the right of his forehead had small bruises. When the accused was
asked by SP8, the accused replied that it was normal for it to happen and started
scolding SP8 for suspecting him of hurting the deceased.
: The accused’s action raised suspicion for an innocent man would not have avoided
the questions and answered the truth on what had happened to the deceased instead of

37 | P a g e
 scolding SP8. Thus. based on s8 and s9 of EA 1950, it can infer that the accused had
committed the murder.

Alsar Imagu v Public Prosecutor [2017] 1 LNS 1837.

Facts :The accused was charged for murder. There was a fight between the accused and victim.
The witness (PW11) manage to intervene but the accused suddenly ran towards the
deceased and stabbed him. The accused later surrendered himself.
Held : The evidence of PW9 testified that the accused had surrender himself and handed
over the bloodstained knife. This corroborates PW11's evidence in pointing to the guilt
of the accused. Thus, the act of surrendering and handing over the knife reflects the
accused’s conduct. This is relevant and admissible under section 8 of the Evidence Act.

Mohd Zaiham Mislan v PP [2010] 1 CLJ 1.

Held :In this case, the accused was convicted of drug offence based on the conduct of the
accused which are relevant and admissible under s8 of the Evidence Act
- The accused appealed to the police officer to not take action against him after he
was asked whether he had ganja in his car and
- his conduct of being uneasy, scared and nervous when the police officer asked
him to open his car boot.
: The appellant must therefore explain his conduct as required by the provision of s9
of the Evidence Act. The appellant has failed to do so in this case. Therefore the
inference to be drawn from the evidence was that the appellant knew what he was
carrying the drug.

Dr.Jal: If the appellant has an explanation, that explanation is relevant under s9 of EA

1950. However, since the appellant failed to explain, his conduct is admissible under
s8 which is relevant to this case.

Parlan bin Dadeh v PP [2009] 1 CLJ 717.

Facts :The appellant was arrested by PW4 and a team of police personnel, for drug trafficking.
When PW4 identified himself as a Police Inspector, the appellant looked shocked or
stunned.
Held :The reaction of the appellant in looking stunned or shocked upon being approached by
the police was clearly admissible under s 8 of the Evidence Act since it has a direct
bearing on the fact in issue as the drugs found were tucked away in the front of the jeans
worn by him.
: The explanation for his reaction must therefore be offered by the appellant himself as
required by s 9 of the Act. However, as the appellant did not offer any explanation for his
reaction upon being approached by the police, it could be validly used as evidence against
him.74

Ridwan v PP [2010] 4 CLJ 570

Fact : The appellant was charged for the offence of drug trafficking. The appellant was
seen behaving suspiciously and upon approaching the custom checkpoint, the
74
At para 37:
“Conduct like the flight of an accused is a more positive act and is easily established. On the other hand conduct like the accused
looking stunned, nervous, scared or frightened is very often a matter of perception and more detailed evidence may be required.
Once admitted the court cannot resort to any other explanation for the conduct or draw inferences on its own accord to render it
inadmissible. The onus is on the accused to explain his conduct pursuant to s 9. Such explanation must not be in their barest
possible form, but with a reasonable fullness of detail and circumstance (see R v. Stephenson [1904] 68 JP 524).”

38 | P a g e
 appellant started retreating and running towards the immigration counter before he
was eventually apprehended by security officers.
Held : The court found the prior conduct of the appellant before being arrested showed he
was behaving suspiciously and therefore it can be inferred that he had the mens rea
to commit the offence.

Muhammad Zamani bin Mat Zin lwn Pendakwa Raya [2019] MLJU 87.
Held : The act of the appellant and the appellant’s family in meeting and discussing with
SP1 (the complainant’s mother) to settle the case out of court shows the guilt on the
part of the appellant and it is a relevant fact to be considered by the court under s8 of
EA..

Pathmanabhan Nalliannen v Public Prosecutor [2017] 4 CLJ 137 (FC)75

Held : In this case, the court held that conduct of the accused persons is consistent with
them knowing of the places where the items connected to the crime of murder were
disposed of. 76 hence is admissible as conduct under s 8 of the EA. Such “conducts”
are:
- The act of pointing by the accused persons at the spots where items connected
to the murder were found
- The acts of the accused persons leading SP32 to the location where the watch,
the logs and the zinc sheets were found, and pointing to the location
- .The conduct and information leading to the discovery show that the accused
persons knew of the various locations where the items had been disposed of.
They would not have had such knowledge had they not participated in the acts
leading to the deaths of the deceased.

 Dr. Jal: Later lectures will discuss about s27 which is on information that leads to
discovery. It means that there is very strong evidence against the accused person. If
the accused person gives information about the case (like Pathmanabhan’s case
which information by the accused led to the discovery of items belonging to the
deceased person), it shows the knowledge of the accused person about the particular
facts in issue. This shows strong evidence against the accused.

Aedy Osman v Public Prosecutor [2011] 1 CLJ 273.

Fact : This case is regarding intention derived from the struggle between the appellant
and the police officers who apprehended him.
Held : This relates to the appellant's conduct which is admissible under s8 of the
Evidence Act 1950.

 If you remain calm, this may mean that you never commit any crime.
Ibrahim Mohamad v PP [2011] 4 CLJ 113.
Held : In the present case it can be argued that both the accused had no knowledge about
the said drugs in the vehicle. This is because they had not attempted to escape when
they were in a position to do so upon seeing the existence of a police road block.

75
(Known as Sosilawati’s case)

76
The Federal Court agreed with the trial judge where he said:
“The only inference that I could make on the conduct of the second and fourth accused in providing the information in this
case was that they were in possession of the items found and had tried to destroy and conceal these items by scattering and
leaving them at various places.”

39 | P a g e
 Apart from that, both the accused did not portray any form of suspicious behaviour.
All these are indication of their state of mind, namely that they had no knowledge
about the presence of drugs in the vehicle.

8) S9 EA 1950 – Facts Necessary to Explain or Introduce Relevant Facts

S9 Evidence Act 1950:
Facts which
- is necessary to explain or introduce a fact in issue or relevant fact, or
- support or rebut an inference suggested by a fact in issue or relevant fact, or
- establish the identity of any thing or person whose identity is relevant, or
- fix the time or place at which any fact in issue or relevant fact happened or
- show the relation of parties by whom any such fact was transacted
are relevant so far as they are necessary for that purpose.
Under s977, there are 5 categories of relevant facts:
 Facts explaining or introducing a fact in issue or relevant fact
 Facts supporting or rebutting inference suggested by a fact in issue of relevant fact
 Dr. Jal: This was discussed in s8 where if the accused’s conduct is against him (under s8), the
accused has to explain his conduct. Such explanation is relevant to rebut the inferences which
might be admissible under s8
 Refer to illustration (c) and (e).

Illustration (c)78
If one’s conduct infers that he conducted a crime under s8, his explanation to rebut such
presumption is relevant.

o Salehoddin Ahmad v PP [2011] 6 CLJ 542.

Fact : There were evidence that the appellant attempted to run away even after PW4
identified himself as a police officer. The appellant, while running away, threw the
bag (P11) which contained the proscribed drugs and while he was being apprehended
by the police officers he put up a struggle.
Held : The explanation for his conducts must be given by the appellant pursuant to s9 of the
Evidence Act 1950. The appellant's conducts when taken together infers that he had
mens rea possession of the proscribed drugs.

o Khairuddin Hassan v PP [2010] 7 CLJ 129.

77
S9 Evidence Act 1950: Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is
relevant, or fix the time or place at which any fact in issue or relevant fact happened or which show the relation of parties by
whom any such fact was transacted, are relevant so far as they are necessary for that purpose.

78
S9 illustration (c): A is accused of a crime.

The fact that soon after the commission of the crime A absconded from his house is relevant under section 8 as conduct
subsequent to and affected by facts in issue.

The fact that at the time when he left home he had sudden and urgent business at the place to which he went is
relevant as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except in so far as they are necessary to show that the
business was sudden and urgent.

40 | P a g e
 Held : Since the appellant's act of flight had a direct bearing on the offence he faced, he
must satisfy the trial court why he reacted in that manner. This explanation to rebut
any inference detrimental to his defence becomes a relevant fact under s9 of the
Evidence Act.

o See Mohd Zaiham Mislan v PP and Parlan bin Dadeh v PP discussed above where the
accused in both cases failed to provide explanation for their conduct.

Illustration (e)79
One’s statement may be relevant to explain a transaction.

 Facts establishing the identity of any thing of person

 Dr. Jal: There are various ways like identification parade, fingerprint and others.

Dorai Pandian Munian v PP [2012] 10 CLJ 22 (CA).

Held : The evidence of identification parade is relevant and admissible under s9, and can
be used to corroborate the substantive evidence given by the witnesses in court on
identification of the accused as the perpetrator of the alleged crime.
 Dr. Jal: Turnbull’s principle must be followed if the prosecution’s case depends wholly or
substantially on visual identification.

 Facts fixing the time or place at which any fact in issue or relevant fact happened
 Dr. Jal: Time is very important evidence to know when did the event took place/happened.

 Facts showing the relation of the parties in the transaction

9) S10 EA 1950 – Things Said or Done by Conspirator in Reference to Common Design

 This is a very specific section.
 S10 basically deals with relevancy of facts in relation to conspiracy.
 Dr. Jal: Whatever that is said by the conspirators are relevant facts

S10 :Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence, anything said, done or written by any one of those persons, in reference to their
common intention after the time when the intention was first entertained by any one of them, is a
relevant fact
- as against each of the persons believed to be so conspiring, and
- for the purpose of proving the existence of the conspiracy as for the purpose of showing that any
such person was a party to it.

 Under S10, there are 3 condition precedent for invoking section 10:80
i. there must reasonable ground to believe that two or more persons have conspired to commit an
offence or an actionable wrong
ii. such thing said, done or written by anyone of those persons must have reference to their common
intention
iii. such thing said, done or written must be done after the common intention was first entertained by
one of them

79
S9 illustration (e): A accused of theft is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he
delivers it: “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.
80
Janab’s Key to Law of Evidence 3rd Edition (Revised by Dato’ Mah Weng Kwai): If these condition are satisfied, a wide variety
of facts is made admissible under section 10.
41 | P a g e
 Once these 3 elements are satisfied, such thing said, done or written by one of them is relevant against
every other member to prove:
a. to prove that any particular person is member thereon, and
b. the existence of conspiracy

Janab’s Key to Law of Evidence 3rd Edition (Revised by Dato’ Mah Weng Kwai):
 Section 10 deals relevancy of facts in relation to actions for conspiracy.
 Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by
unlawful means. It may be both a crime as well as tort.
 The principle on which section 10 is based is the theory of agency, which is based on the maxim, 'qui
facit per alium facit per se' ie, he who does by another does it himself.
 Each conspirator is the agent as well as the principal of the other conspirators.
 Statement made in the absence of one conspirator will be taken in evidence as an exception to 'res inter
alios acta principle ', ie, transaction that happened between strangers are inadmissible.

Khoo Teng Chye v Cekal Berjasa Sdn Bhd [2015] 6 CLJ 449.
Facts : In this case, the appellant wished to recover the judgment sum against the first respondent.
To prevent the appellant from doing so, the directors of the respondent by the name of Amir
Hussain (DW1) and/or representative of the first and second respondent conspired to deprive
the appellant of its right to recover the judgment sum against the first respondent by way of
winding up proceedings.81
Held :On the facts of the case, it is clear that the conduct of the first and second respondents
through Amir Hussain and the common solicitor, by conduct and correspondence clearly will
attract s. 10 of the Evidence Act 1950. The trial judge had failed to consider the said section
and its relevance to the facts of the case. In consequence, the integrity of the decision making
process has been compromised.

81
In this case, when Mr. Loh Eng Wee approached him for the second time for the settlement of the said judgment, he came
together with Mr. Khoo Boo Tee. He said, although Mr. Khoo Boo Tee was then no longer on record the director of the first
defendant due to his bankruptcy status, but he who was still involved in the affairs of the first defendant company had urged
him to withhold all execution proceedings as financially insolvent first defendant was in the midst of seeking assistance from the
third party to revive the development project to which he agreed. He further said that he (plaintiff/appellant) was aware of the
first respondent being presented with a winding up petition by Public Bank Bhd in 2007.

42 | P a g e
 Chapter 5: Similar Fact Evidence

1) Introduction
 Similar facts are facts which are similar to the fact in issue. For example, if you killed someone
previously and you killed someone now. The fact that you killed someone previously may be a similar
fact. Conversely, if you killed someone previously and now you hit someone, the fact that you killed
someone may not be a “similar fact” since they are not in anyway “similar”.
 Generally, in criminal cases, evidence showing that the accused has been guilty of misconduct other
than that being charged, or has a disposition to commit the kind of offence charged or crimes in
general, is inadmissible for the purpose of showing that he committed the offence charged.
 In other words, similar fact evidence is generally inadmissible as it will be unfair to the accused
person if such evidence is allowed.
○ In a proceeding, one is only allowed to bring in evidence that is relevant to prove the fact in issue of
the current case. Hence, one is not allowed to bring in any past misconducts of the accused person,
which is unconnected to the offence he is currently faced with (other than that which gave rise to the
offence charged).
 However, despite such evidence being inadmissible in the proceedings, the court, in deciding the
punishment to be given to the accused person, is allowed to consider the previous convictions of
the accused person (as an aggravating factor).

2) Common Law Position (can be used in Malaysia)

 As mentioned, similar fact cannot be admitted but cases have laid down some exceptions. These will be
discussed below:

2.1) Exception 1: When the similar fact is relevant to the fact in issue (other than to conclude that
the accused committed a crime)
 The admissibility of a similar fact is depending on the purpose of relying on it:
- A similar fact cannot be admitted if it is used to conclude that the accused had committed a
crime currently being charged.
- However, a similar fact can still be relevant in a case, if it is relevant to the fact in issue and it
is used to support or rebut something. For example, a similar fact can be used to infer that the
act of the accused is designed or accidental or to rebut the defence raised by the accused, it is
relevant and thus admissible.
#Dr. Jal: Similar fact evidence may be prejudicial to the accused, so if the court wants to accept this type
of evidence, it must be careful, so that there is no unfairness and injustice to the accused.

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 [Makin v. Attorney General for New South Wales]82
Facts: Mr. and Mrs. Makin were charged with the murder of an infant who had been given into their
care by the infant’s mother after a payment of fee.
The prosecutor wished to produce evidence that both the accused persons had been
receiving other babies in a similar manner under the pretext of wishing to adopt the
babies. Furthermore, the remains of 12 babies (including the infant in the current
charge) were found buried in the garden of houses previously and currently occupied by
them and the remains of these babies were found buried in similar ways.
The accused persons appealed against the admission of such evidence and contended that the
general rule in criminal cases confined the evidence strictly to direct evidence of the
commission of the particular act charged, and excluded evidence of similar acts committed,
or supposed to have been committed by the same accused on other occasions.
Held : In criminal cases, similar facts cannot be used to conclude that an accused had
committed an offence. In another words, the prosecution cannot adduce similar fact
evidence to show that an accused had committed the crime currently being charged just
because he was previously guilty of other criminal acts or similar offences. However, these
similar facts (or crimes previously committed) can still be a relevant fact if it is relevant
to the fact in issue. Such similar facts can be used to show if the crime currently charged
was planned or accidental or even to rebut a defence which the accused wished to bring
up. 83
: In this case, the evidence of the previous killing of other babies was brought in to rebut the
defences raised by the accused persons when they claimed that they only wished to adopt and
maintain the child and the death of the child was accidental. Hence, the similar fact evidence
is admissible.

2.2) Exception 2: When the similar fact has very high probative value and it is not prejudicial to
admit such similar fact evidence
 Under this exception, a similar facts can be admitted if they have very strong probative value AND it
is not prejudicial to admit these similar facts evidence.
 A fact is said to have strong probative value if it is so strong that they “couldn’t not have happened
by coincident” and by taking into account the facts of the case as a whole, it is safe to inter that
the accused has committed a crime.

a. Old Position (you may skip to pg 48 unless you want to know the development)
 Under the old position, to determine if a similar fact evidence has strong probative value/ strong,
the English Court has laid down the “striking similarity test”.
 Under this test, there are 2 questions to be determine:

82
[1894] AC 57 Privy Council.
83
Lord Herschell provides the first general principle in admissibility of similar fact evidence:
“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of
criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct/character to have committed the offence for which he is being tried.” (First limb)

“On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it
inadmissible if it be relevant to an issue before the court and it may be so relevant if it bears upon the question whether the acts
alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would
otherwise be open to the accused.” (Second limb)

The first limb disallows the admissibility of the accused’s previous misconducts that show that likelihood of him repeating the
misconduct again. The second limb allows for admissibility of similar fact evidence if it is relevant to show that the current
misconduct was designed or to rebut the likelihood of it being accidental or to rebut the defence raised by the accused.

44 | P a g e
 i. how strong or credible are these similar facts tend to support the fact in issue?
- A fact has strong probative value if it has “unusual common features and striking
similarity” with the fact in issue
- Dr Jal: Under the principle of striking similarity, the modus operandi (how the accused
commits the offence) shall be the same (between the past misconducts and the current
offence) to bring in the evidence.84
ii. whether such similar fact evidence, if admitted, is likely to be prejudicial to the accused. The
court must weight the probative value of the similar fact evidence against the prejudicial
effect of doing so.
 If the similar fact evidence has high probative value (ie it has unusual common feature and
stricking similarity with the fact in issue) and it is not prejudicial to admit such an evidence, then
such similar fact evidence can be admitted.
 This is the case which first laid down the striking similarity test.

[R v Boardman]85
Facts : The accused, a headmaster of a boarding school attended by boys, was charged and
convicted of offences of attempted buggery with one pupil and incitement to commit
buggery with another pupil.
The main similarities of the oral testimonies given by the 2 boys were that the accused
had approached towards them:
o He woke them at night in the school dormitory;
o He spoke in certain tone of voice;
o He invited them to engage in homosexual activities with him in the sitting room;
and
o He indicated to them that he will be passive partner and they will play the active
role.
: At the trial, the judge ruled that the evidence of one boy as to what happened on one
occasion in one charge, was admissible as corroborative evidence in relation to the
evidence of another boy as to what happened on another occasion in another charge.
The accused appealed against the conviction on the ground that the judge’s ruling as
to the admissibility of the boys’ evidence had been wrong.

Held : Similar fact evidence could only be admitted in exceptional cases.

: In deciding the question of admissibility, the judge should weigh the probative
value of the evidence against its prejudicial effect. The similar fact evidence is
inadmissible if its probative value was outweighed by its prejudicial effect. The
probative value of similar fact evidence can be derived if it demonstrated that those
other offences and the offence charged have common features of an unusual and

84
#Dr. Jal: need to look at how strong the similar fact evidence [probative value] that one tried to bring in against the accused. If
it is very strong, i.e. probative value is high [can be shown if it is strikingly similar with the current offence charged], then the
prejudicial effect to the accused can be reduced. If that piece of evidence is not strikingly similar with the current offence
committed by the accused, then it may be prejudicial to the accused. Under the principle of striking similarity, the modus
operandi (how the accused commits the offence) shall be the same (between the past misconducts and the current offence) to
bring in the evidence.

#Dr Jal: This case applied the striking similarity test. One can only bring in similar fact evidence that have elements of striking
similarity. It means that the previous conduct and the current conduct are strikingly similar. Why? The argument is that if the
evidence are strikingly similar, we can rule out the issue of mistake, mistaken of identity and so on.

85
[1975] A.C. 421; 461.
45 | P a g e
 striking similarity to such an extent that it would be an affront to common sense to
say that the similarity was a matter of pure coincidence.
: To determine this, the question are how strong such similar facts are and whether
admitting such similar facts would be prejudicial against the accused.86
: In this case, the similarity of the evidence was sufficient to justify the admission.
The testimonies of the 2 boys reflect the similarities in which they were approached
by the accused (as mentioned above) and hence of high probative value. The
possibility of prejudice which might arise if both boys had been conspiring against the
accused was unlikely in the circumstances.

 Subsequent cases adopted the striking similarity test but with further elaboration

[R. v. Smith]87
Facts : The accused was charged with the murder of a woman whom he had married. The
woman was found dead in her bath. But the accused, who stood to benefit financially
from her death, had sought to show that it had been caused by an epileptic fit.
At the trial, previous evidence concerning the death of two other women with whom
the accused had married was admitted. Both women had died in their baths in
circumstances very similar to those surrounding the death of the victim in the instant
case, and that in each case the accused had stood to benefit financially by the
woman’s death.
Held :The said evidence had been rightly admitted at the trial.
: If an accident benefits a person and that person has been sufficiently fortunate to
have that accident happen to him a number of times, benefiting him each time, there is
a very strong and irresistible inference that the occurrence of so many accidents
benefiting him is not coincidence but a designed event.
: In this case, the evidence of the other deaths was admissible as the improbability
relied upon was the improbability that each of his “wives” was by chance accident
prone and, moreover, accident-prone in a “strikingly similar” way and in strikingly
similar circumstances.

[R v. Scarrott]88
Facts :The accused was charged and convicted of buggery, attempted buggery and indecent
assault against eight different boys. The trial judge held that the evidence given by
each boy had a striking similarity to the evidence given by the other boys, and was
admissible on the other counts and would be capable of corroboration. The accused
appealed and contended that the similar fact evidence in this case did not possess that
quality of striking similarity which is necessary to make it admissible.89
Held :The appeal was dismissed.
86
According to Lord Wilberforce, in each case it is necessary to estimate:
(i) whether, and if so how strongly, the evidence as to other facts tends to support, i.e., to make more credible, the
evidence given as to the fact in question; and
(ii) whether such evidence, if given, is likely to be prejudicial to the accused.
Both these elements involve questions of degree.
87
(1915) 11 Cr.App.R. 229 Court of Criminal Appeal.
88
[1978] QB 1016.
89
The accused relied strongly on Boardman for the principle that mere similarity does not suffice, that there must be something
peculiar or striking in the similarities between the evidence of the offence charged and the similar fact evidence sought to be
adduced to make the similar fact evidence admissible, subject always to the trial judge's discretion to exclude evidence the
prejudicial effect of which outweighs its probative value.
46 | P a g e
 : To adduce evidence of similar facts, the test was whether the evidence was
“strikingly similar” to the direct evidence. For an evidence to have “strikingly
similar”, it needs to have positive probative value. If the evidence is admissible, it
follows that it is capable of corroborating.
: This positive probative value is what the law requires to admit a similar fact
evidence. Such probative value is not provided by the mere repetition of similar facts;
there has to be some feature or features in the evidence sought to be adduced which
provides a link. The existence of such a link is not to be inferred from mere similarity
of facts which are themselves so commonplace that they can provide no sure ground
for saying that they point to the commission by the accused of the offence under
consideration.
: In the present case, the evidence does possess that positive probative value, and does
possess striking similarities. The features which are strikingly similar:
- the ages of the boys,
- the way in which their resistance was worn down,
- the location of the offences and the offences themselves.
: Taken together, these similarities are inexplicable on the basis of coincidence. In
short, what has to be determined is whether the similar fact evidence sought to be
adduced possesses a probative value sufficiently positive to assist the court to
determine whether or not the offence charged against the accused was committed by
him.

b. Current Position
 However, the House of Lords later moved away from the law laid down in the Boardman case
relating to the requirement of striking similarity and said that it was inappropriate to single out
striking similarity as an essential element in every case.
 This DPP case stated that to admit a similar fact evidence, the striking similarity test is not the
only criteria. The court still has to look at other facts in the case to support the argument
that the accused has committed the offence.
 In short, under the current position, mere “striking similarity” is not enough but such similarity
must be strong that, by considering the facts as a whole, such similarity “couldn’t not have
happened by coincident.” (the test is very strict)

[DPP v P]90
Facts :The accused was charged and convicted with rape and incest with his two daughters.
Issue :Whether there had to be ‘striking similarities’ before similar fact evidence could be
admitted in a case of alleged sexual abuse.
Held : The essential feature of evidence which is to be admitted is that its probative force
in support of the allegation that an accused person committed a crime is sufficiently
great to make it just to admit the evidence, notwithstanding that it is prejudicial to
the accused in tending to show that he was guilty of another crime.
: Although the probative value of an evidence may be derived from striking similarity
of similar fact evidence, ‘striking similarity’ was not the only prerequisite to
admissibility. What has to be assessed is the probative force of the evidence in
question, the infinite variety of circumstances in which the question arises,
demonstrates that there is no single manner in which this can be achieved.
Whether the evidence has sufficient probative value to outweigh its prejudicial effect
must in each case be a question of degree.

90
[1991] 2 A.C. 447 House of Lords.
47 | P a g e
 : In the present case the evidence of both girls describes a prolonged course of
conduct in relation to each of them. There was a general domination of the girls with
threats against them. The accused seemed to have an obsession for keeping the girls to
himself, for himself. There was also evidence that the accused was involved in regard
to payment for the abortions in respect of both girls.The circumstances of the case
taken together gave strong probative force to the evidence of each of the girls in
relation to the incidents involving the other, and was certainly sufficient to make it
just to admit that evidence, notwithstanding its prejudicial effect.

3) Malaysian Position : Relevant Provisions Under Evidence Act 1950

● Basically, similar fact evidence can be admitted in Malaysia under s.11(b), s.14 and s.15 of the
Evidence Act 1950.
- If the evidence is brought in to show mens rea (state of mind/ knowledge/ intention), it can be
brought under s.14 or s.15.
- If evidence is brought in to establish actus reus, there are arguments that it falls under s.11(b).

Section 14: Facts showing existence of state of mind or of body or bodily feeling
Facts showing the existence of any state of mind, such as intention, knowledge, good faith,
negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of
any state of body or bodily feeling, are relevant when the existence of any such state of mind or body
or bodily feeling is in issue or relevant.

Explanation 1
A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists
not generally but in reference to the particular matter in question.

Explanation 2
But where, upon the trial of a person accused of an offence, the previous commission by the accused of an
offence is relevant within the meaning of this section, the previous conviction of that person shall also be a
relevant fact.

Illustration:91 (refer to footnote. They are illustration (a) –(p) but only some will be included in this note.)

91
ILLUSTRATIONS
(a) A is accused of receiving stolen goods, knowing them to be stolen. It is proved that he was in possession of a particular
stolen article. The fact that at the same time he was in possession of many other stolen articles is relevant as tending to
show that he knew each and all of the articles of which he was in possession to be stolen.

(b) A is accused of fraudulently delivering to another person a counterfeit coin, which at the time when he delivered it he
knew to be counterfeit. The fact that at the time of its delivery A was possessed of a number of other pieces of
counterfeit coin is relevant. The fact that A had been previously convicted of delivering to another person as genuine a
counterfeit coin, knowing it to be counterfeit, is relevant.

(d)The question is whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious. The fact that
A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the
payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person.

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 Section 15: Facts bearing on question whether act was accidental or intentional
When there is a question whether an act was accidental or intentional or done with a particular
knowledge or intention, the fact that the act formed part of series of similar occurrences, in each of
which the person doing the act was concerned, is relevant.

Illustration:92
section 11. When facts not otherwise relevant become relevant
Facts not otherwise relevant are relevant—
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts, they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.

Illustration(b):
The question is whether A committed a crime. The circumstances are such that the crime must have
been committed either by A, B, C or D. Every fact which shows that the crime could have been
committed by no one else and that it was not committed by either B, C or D is relevant.

3.1) Adaptation of Common Law Position

 In Malaysia, the court has adopted the common law principle and held that the Evidence Act
governing similar fact (s11(b), 14 & 15) is to be used together with the Common Law principle
discussed earlier. (it cannot be prejudicial to the accused, the probative value of the similar fact
evidence must be high etc)
 The effect of this would mean that while similar facts are admissible under s11(b), 14 & 15 of the
Evidence Act, the Court must also consider two things:
i. what is the purpose of tendering this similar fact evidence? Is it to conclude that the accused
had committed the present offence or it is use to support or rebut a fact? [laid down in
Makin’s case]
ii. does such similar fact evidence have a strong probative value so as to outweigh the
prejudicial effect of admitting it? [laid down in DPP v P]

 The cases below show how the court applied the common law principle but you may skip them
since they basically just reapplying the common law principles.

(e) A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous
publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A’s intention to harm B’s
reputation by the particular publication in question. The facts that there was no previous quarrel between A and B, and
that A repeated the matter complained of as he heard it, are relevant as showing that A did not intend to harm the
reputation of B.
92
ILLUSTRATIONS
(a)A is accused of burning down his house in order to obtain money for which it is insured. The facts that A lived in several
houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received
payment from a different insurance office, are relevant as tending to show that the fire was not accidental.

(b) A is employed to receive money from the debtors of B. It is A’s duty to make entries in a book showing the amounts
received by him. He makes an entry showing that on a particular occasion he received less than he really did receive.
The question is whether this false entry was accidental or intentional. The facts that other entries made by A in the
same book are false, and that the false entry is in each case in favour of A are relevant.

(c) A is accused of fraudulently delivering to B a counterfeit ringgit. The question is whether the delivery of the ringgit was
accidental. The facts that soon before or soon after the delivery to B, A delivered counterfeit ringgit to C, D and E are
relevant as showing that the delivery to B was not accidental.

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 [Tan Meng Jee v PP]93
Facts : The accused was charged and convicted for drugs trafficking. One of the evidence relied on
by the trial judge in convicting the accused was his previous acts of trafficking. The similar
fact evidence was to support the finding that the accused in the current charge was
transporting the drugs to further the distribution of drugs. The defence counsel contended that
this evidence was inadmissible and highly prejudicial to the accused.
Held : The similar fact evidence has been used to support a finding as to the mental state of the
accused when he was engaged in the physical act of transporting, they are potentially relevant
under s.14 and s.15 of the Singapore’s Evidence Act (in pari materia with s.14 and s.15 of
the Malaysia’s Evidence Act 1950).
: The admission of similar fact evidence under s.14 and s.15 should be governed by the
balancing test adopted by the House of Lords in Boardman. Such an approach is warranted
both in principle as well as on the wording of the legislation itself. As to the Evidence Act, it
has been argued that the rationale of the rule excluding similar fact evidence is so that every
person charged with an offence may only be convicted upon being proved to have committed
the acts within the charge. It would be subverting to allow a conviction based on the
contention that the accused is that type of person who would commit such an offence. On the
other hand, there may be cases where the interest of justice clearly outweighs any prejudicial
dangers inherent in the evidence.94

[Junaidi Abdullah v. PP]95

Facts :The accused was charged and convicted for possession of firearm. The prosecution sought to
adduce the oral testimonies of a witness that the accused was seen in possession of a firearm
in the course of a robbery. The accused contended that he did not possess the firearm at all
material time and the firearm belonged to one Salleh.
Held :Applying the principle laid down in Makin and Boardman, if the purpose of adducing the
similar facts evidence is justifiable on ground of relevancy and necessity to rebut any defence
available to the accused, it is admissible in evidence provided that the probative value of such
evidence outweighs its prejudicial value. There must be a real anticipated defence to be
rebutted and not merely “crediting the accused with a fancy defence”.
: Since the evidence of the armed robbery was an integral part of the defence (the accused
argued that the armed robbery took place prior to his arrest), it would not be in the interests of
justice to exclude it on grounds of bad character evidence. It was a relevant and indeed
necessary piece of evidence for the purpose of establishing that it was Salleh and not the
accused, who was armed with the firearm so as to cast a reasonable doubt in the prosecution
case.
: Since the evidence of the armed robbery formed a vital part of the defence, it must be
agreed in the circumstances of this case that the probative value of such evidence would
outweigh its prejudicial value as evidence of bad character. Hence, the evidence of the
prosecution witness on the armed robbery in which the accused was involved, was admissible
in evidence to rebut that defence raised by the accused.

[Mohammad b. Abdullah v. PP]96

Facts :The accused was arrested on his way to deliver 2 kg of cannabis to one Abang Puchong. The
accused was charged and convicted for drugs trafficking. The prosecution sought to adduce
93
[1996] 2 SLR 422.
94
This judgement is subsequently referred to and adopted by the case of Azahan Aminallah v PP [2005] 5 MLJ 334. It has
become the law in admitting similar fact evidence under s.14 and s.15 of the Evidence Act 1950 in Malaysia.
95
[1993] 4 CLJ 201 Supreme Court.
96
[2011] 2 CLJ 481.
50 | P a g e
 similar fact evidence from the oral testimony of an accomplice (PW7) that the accused had
delivered cannabis to one Abang Puchong in some previous occasions. Defence counsel
objected on the ground that such evidence should not be admitted as it was prejudicial to the
accused.
Held : Cited Public Prosecutor v Mohamad Roslan bin Desa which adopted the test in DPP v P in
terms of probative value as against its prejudicial effect and stated that this test is in line with
s.14 and s.15 of the Evidence Act 1950 as ‘striking similarity’ has never been a requirement
of the said sections.
: In the present case, the evidence was rightly admitted as the probative value of the similar
fact evidence adduced far outweighed its prejudicial effect. The evidence of PW7 was
admissible not because it tends to show that a person committing one offence is likely to
commit another but to show knowledge or intention of the accused and that possession was
not accidental.
#Dr Jal: When you want to bring in similar fact evidence from previous occasion, it is not to show
that the person is likely to commit the current offence, but to show his intention or knowledge, and
the offence is not accidental. You can bring in similar fact evidence provided that it is relevant.

[Azahan Mohd Aminallah v PP]97

Facts : Accused was charged with raping his 15-year old daughter in an oil palm estate. The
daughter gave testimony that he had raped her many times, in 1991 and in 1995. Prosecution
wanted to add to the charge. They amended the charge to 4 counts. The issue is whether the
session court is correct in admitting the similar fact evidence of previous acts of sexual
intercourse?
Held :
▪ Principle: When deciding whether to admit similar fact evidence, court must carry out a
balancing exercise by weighing the probative value of such evidence against its prejudicial
effect as impliedly required by ss. 14 and 15 of the Evidence Act 1950. The court would be
justified in admitting the evidence where its probative value is outweighed by its prejudicial
effect.
▪ Application: There was no balancing exercise dictated by ss. 14 and 15 of the Evidence Act in
the session’s court judgement. This is a serious misdirection and occasioned a serious
miscarriage of justice as the sessions court acted on the similar fact evidence to add three further
charges against the appellant.
▪ Procedure: This was a case where the appellant had come into court prepared to face a single
charge. However, the prosecution in the course of the trial had, without seeking the leave of the
court, adduced highly prejudicial similar fact evidence of previous acts of sexual intercourse.
Once the question was put as to previous acts, the normal course for the sessions court to have
taken is to have intervened at once and asked the prosecuting officer to justify the course he
proposed to embark upon. This was especially necessary since the accused, a layman, was
unrepresented by counsel. We find this to be a most unsatisfactory feature of this case.

[Mohd Roslan Desa v PP]

Facts : The accused was charged for murder. The prosecution sought to adduce evidence in his
previous convictions98 (ID39) to infer his modus operandi in committing the murder in
question, i.e. in the course of committing the robbery, the victim was killed. In the present
offence, based on the testimony of SP11, 1st Respondent had used a knife in puncturing the
tyre of the deceased's car. Besides, 1st respondent has custody of the deceased’s car soon
97
[2005] 1 CLJ 374 (Dr Jal: very important case)
98
The 1st Respondent had in that earlier case admitted to puncturing the tyre of his victim's car; that on the pretext of helping
his victim, to having robbed the victim, and thereafter in driving away in the victim's car.
51 | P a g e
 after her death. There was also evidence that 1st respondent met SP6 to make a false
number plate to replace the existing number plate of the deceased’s car.

COA99 (follow Boardman):

▪ The court considered whether the similarities between the current case and the previous
convictions were unique or striking to reveal an underlying link between the matters such that
common sense makes it inexplicable on the basis of coincidence.
▪ It must go beyond showing a tendency to commit crimes of this kind. It must be positively
probative in regard to the crime now charged.
▪ COA rejected the evidence on the basis that there was no striking similarity between the facts of
the previous incident and the current one. The court does not find the act of stealing previously
can lead to the conclusion the 1st Respondent committed the murder.
FC (unreported100) (follow DPP v P)
▪ The House of Lords in DPP v. P had retracted from the test laid down in Boardman as to the
requirement of "striking similarity" and said that it was inappropriate to single out "striking
similarity" as an essential element in every case.
▪ The test has since been authoritatively laid down in DPP v. P in terms of probative value as
against its prejudicial effect. The decision in DPP v. P is in line with ss. 14 and 15 of the
Evidence Act as "striking similarity" has never been a requirement of the said sections.

[Pendakwaraya v Wong Chee Beng]101

Facts : Accused was charged with drug trafficking. Prosecution submitted that the fact that the
drugs found in the trousers pocket and in the left side shoe of the accused were
methamphetamine and therefore similar to some of the drugs found in the accused’s Perdana
car. As the accused is the driver, an inference can be made on the facts that the accused had
knowledge of the drugs found in the said Perdana.102
Held : admissibility of similar fact evidence does not only cover criminal acts committed previous
to the criminal acts covered by the present indictment, but also cover criminal acts
committed concurrently with those covered in one indictment.
: Regardless of Prosecution’s intention, the undoubted effect would be to prove that the
accused, by concealing drugs of a similar nature in his trouser pocket and shoe, is therefore
likely because of his tendency to such criminal conduct to have also committed the offence
for the drugs found in the car. As a result, the prosecution is bound by the rules on the
admissibility of similar fact evidence.
: Even in cases falling under s11, 14 and 15 of EA 1950, the test of relevancy is whether the
probative value of such evidence outweighs its prejudicial value. The court is not immunized
from having to carry out a balancing exercise on this aspect.

3.2) Important cases

 If the actus rea of an offence is not proven, you can use similar facts/ previous conviction of similar
of same crime to infer the accused has committed the present crime.

99
[2011] 4 MLJ 826
100
Cited in Public Prosecutor v. Bathumalai a/l Krishnan [2018] MLJU 646 (HC).
101
[2016] MLJU 1227 (HC)
102
However, Prosecution submitted that they were not attempting to adduce similar fact evidence and therefore this is not the
case that falls under the rule against similar fact evidence held under Makin, and later reformulated by Boardman and DPP v P
i..e in deciding the question of admissibility, the judge should weigh the probative value of the evidence against its prejudicial
effect.
52 | P a g e
 [R v. Raju & Ors v R]103
Facts :The accused persons were charged for corruption. There was no evidence that the accused
actually received the money. However, evidence of similar facts on other instances where
money has been received by the accused was sought to be adduced. The trial judge held that
these similar facts were relevant and admissible because they showed system.104
Held : A similar fact or previous conviction of a crime cannot be tendered to concluded that a
person has in fact done the current crime charged. It can be used to show the accused’s men
rea (intention, knowledge etc), but to prove the current crime, it must be showed that there is
an actus rea first. (it must be proved that the accused had received the money, which was not
proven in this case). Then, only similar facts evidence can be relevant to prove the accused’s
men rea. Without the actus rea in the present charge, previous conviction cannot be used to
prove that the accused had committed the current crime too even though the current and
previous charge may be of the same type of offence. 105
: Generally similar fact evidence may be relevant for the following purposes: (not an exhaustive list)
i. To negate accident;
ii. To prove identity;
iii. Where mens rea is the gist of the offence, to prove intention (or other mens rea); and
iv. To rebut a defence which would otherwise be open to the accused.
: In the present case, there was no evidence showing the accused received the money and committed
the offences charged, therefore the convictions were quashed.

3.3) Illustrative cases

 You may read the cases below to see how similar facts are considered “similar”

[Jazlie bin Jaafar lwn Pendakwa Raya]106

Facts :The accused was charged for trafficking drugs under s.39B(1)(a) of the Dangerous Drugs
Act 1952. The police found a packet of cannabis in the accused’s pants. Subsequently the
police recovered 2 packets of cannabis from the accused’s bedroom with the same markings
as the packet found in the accused’s pants.
Held :An inference can be drawn from the fact that the drugs recovered from the accused’s
bedroom have the same markings as the drugs found in the accused’s pants, that is, the
accused has knowledge of it.

103
[1953] 19 MLJ 121 High Court.

104
On this point, the court held:
Similar fact evidence prejudicial to the accused should not be admitted without reasonable cause. Evidence of similar facts is
admissible for specific purposes only and not merely because it shows system. In tendering a similar fact evidence, it must be
shown that the evidence is tendered for a specific purpose and if it is admitted, it must be made quite clear for what purpose it
is admitted.

105
On the facts the court held that since no money was proved to have been received by the accused, there was no actus reus
established and so accordingly similar fact evidence cannot be brought in to show the state of mind of the accused. (According
to the court, even if it had been proved conclusively that the accused had received money from other persons in other
occasions, this would not prove that he has in fact received the sums charged from someone at somewhere as alleged. Hence,
cannot bring in such evidence to show that since the accused was in habits of receiving such moneys, he was therefore the sort
of person who was likely to have received the money in question.) The judge said that evidence of the state of mind can only
be brought in after proof of the facts charged, either to show that the sums received as alleged in the charge were received
for a corrupt motive, or to rebut the defence that the sums were received for an innocent purpose. But there is no evidence
adduced to show that the sum charged were ever received by the accused, hence the evidence about other sums received
should be ignored.
106
[2018] MLJU 241.
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 Both common law and s.14 and s.15 of the Evidence Act 1950 allow the admission of similar
fact evidence to show the state of mind and knowledge of the accused that the possession of
drugs was not accidental.
#Dr. Jal: in drug trafficking cases, similar fact evidence is always brought in to show the state of
mind of the accused. In short, similar fact evidence is generally inadmissible. However, such
evidence can still be brought in if it is relevant [under s.5-55 of the Evidence Act 1950].

[PP v Ahmad Firdaus Zulkifli]107

Facts: Drugs were found in a car in which Respondent was the driver. This discovery led to more
drugs found in Respondent’s place. He was then charged before the HC with 2 charges. First
charge is drug trafficking (acquitted) while the second is possession of drug (convicted). PP
appealed against the acquittal of 1st charge.
Held : the COA finds similar fact evidence108 as material. In deciding whether the similar fact
evidence under 2nd offence can be admitted in 1st offence case, the COA decided:
▪ Similar fact evidence, even though circumstantial in nature but nevertheless sufficiently
strong to connect the respondent to the commission of the offence charged. This similar
fact evidence is admissible to show possession and knowledge on the part of the
respondent of the drugs found in the said house.
▪ Appeal was allowed and the order of acquittal and discharge in respect of 1 st offence was
set aside. Respondent convicted for the 1st offence.

[Wong Yew Ming v Public Prosecutor]109

Facts :The accused was charged for drugs trafficking. The prosecution sought to bring in evidence
to show that on previous occasions the accused had sold drugs to others and therefore
had been trafficking in drugs. The trial court held that the said evidence, despite it being
prejudicial to the accused, was admissible to show system and that the accused is known to
have been dealing with drugs.
Held :The similar fact evidence was admitted under s.15 of the Evidence Act 1950. Such evidence
is admissible as it is relevant to show knowledge and that the possession of the drug by
the applicant was not accidental. In this case, the evidence is admissible not because it
tends to show that a person committing one offence is likely to commit another but to show
knowledge or intention of the accused and that the possession is not accidental.

3.4) Application to civil cases

[Mood Music v De Wolf Publishing]110
Facts: The case concerns a copyright infringement dispute. The plaintiff brought an action against
the defendant for infringement of copyright of his musical work and procured evidence which
indicated that in three other cases the defendants had reproduced musical works which were
subject to copyright. The Plaintiffs, having given the defendants notice of their intention,
sought to adduce that evidence at the trial of the action.
Held: In civil cases the courts would admit evidence of similar facts if it was logically probative
and it was not oppressive or unfair the other side to admit the evidence. Since the issue

107
[2017] 1 LNS 113
108
(1) The drugs in both charges were in similar packaging; (2) The type of drugs is similar; (3) The mode of keeping the drug is
similar. The drugs were wrapped with newspaper cutting dated the same day (the newspaper used was of the same date for 1 st
and 2nd charge), bound with rubber band, packed in yellowish paper where each package contained a transparent plastic packet
and each plastic packet contained a plastic packet blueish in colour, each with "WY" pills in various colours
109
[1991] 1 MLJ 31 (SC).
110
[1976] 1 All ER 763
54 | P a g e
 in the action was whether the resemblance between the two works was mere coincidence or
the result of copying by the defendants, the evidence procured by the plaintiffs concerning
the other three cases was of sufficient probative weight to render it admissible.

[Pannir Selvam a/l Sinnaiyah v Tan Chia Foo]111 

Fact : The case concerned a sham SPA. Plaintiff submitted that there were two previous
agreements had been entered with different vendors, were relevant.
Held : The requirement that the evidence has to be probative enough to outweigh its prejudicial
effect is implied in s.15 Evidence Act.
: In civil case, the probative value required is of a lower standard, and not as high as
required in a criminal trial.
: Although striking similarity is no longer a condition for the admissibility of similar fact
evidence, other characteristics which are indicative of the probative value of the similar facts
are still significant, such as the underlying link between the previous incidences and the
current one, a nexus, similarities establishing a system, facts forming part of the same
activity, and similar surrounding circumstances.
: In the present case, the previous agreements were strikingly similar enough to render a very
high degree of probability of a pattern. The surrounding circumstances point to an irresistible
inference that all three agreements are part of a money lending scheme

111
[2019] MLJU 1699 (HC)
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 Chapter 6: Admission & Confession

Part 1: Introduction

An admission and confession can also be a relevant fact. In this chapter, we will examine how an admission
and confession can be admitted as evidence.

1) Definition and difference between admission and confession

 Admission and confession are defined under S17 EA.
 Differences between admission and confession:
ADMISSION CONFESSION
s.17(1) EA: s17(2)112 EA
“An admission is a statement, oral or “A confession is an admission
documentary, - made at any time by a person accused of
- which suggests any inference as to any fact an offence,
in issue or relevant fact, and - stating or suggesting the inference that he
- which is made by any of the persons and committed that offence.”
under the circumstances hereinafter
mentioned.”(s21 – 23)

Can be a matter of civil or criminal suit. A matter of criminal case

Can be either oral or documentary Must be oral
All confessions may be recognized as admission. Not all admissions are confession
Can be made by a third party -s.19, s.20 Can only be made by the accused himself

2) Outline of sections

a) Admissions
o S18-20 deals with categories of persons who can make an admission
▪ Relates to the circumstances made by different categories of persons which may amount to
admission

o S21 deals with proof of admissions against the person making admission

112
S.17(3): Subsection (2) shall have no application in Sarawak.
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 ▪ Relates to the relevancy of admissions

o S22 deals with oral admission regarding the contents of documents

▪ Exceptions to the admissibility of the admission

o S23 governs admissibility of admissions in civil cases where parties attempted to negotiate -
including without prejudice letters.
▪ Exceptions to the admissibility of the admission

Note: S18 to 21 must be read together with s17.

b) Confessions
o S24 to s31 deals with the admissibility of a confession
o S25 and 26 deal with confessions made by a person in the course of official questioning, namely
to a police officer and to any person while in police custody
o S27- confession leading to discovery
o S28- exception to S.24
o S29- operates to admit a confession obtained under promise of secrecy, in consequences of a
deception, etc
o S30- admission of confession by co-accused
o S31- effect of the admission

Part 2: Admission

1) Introduction
There are 2 categories of admission
i) Formal admission (provided under S58 – will not be discussed)
ii) Informal admission (provided under S17(1))

[Nagindas v Dalpatram AIR 1974 SC 471]

Held : Admissions in pleadings or judicial admissions, which is admissible under section 58 of the
evidence act, made by the parties or their agent at or before the hearing of the case, stand on a higher
footing than evidentiary admissions. The former class of admissions is fully binding on the party that
makes them and constitutes a waiver of proof. They by themselves can be made the foundation of the
rights of the parties.
: On the other hand, evidentiary admissions, which are receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown to be wrong.

[Lam Choon v Lim Yam Hong [1931] SSLR 96]

Held: An admission is a substantive evidence of the fact admitted.

2) Elements of informal admission

 Referring to S17(1), an admission is a statement (oral or documentary which suggests any inference as to
any fact in issue or relevant fact made by any persons mentioned in S18 -S20 and under the
circumstances mentioned in S20 -23. (An admission is an exception to the hearsay rule.)
57 | P a g e
 Under S17(1), these are the element to make an admission:
1. It must be a statement;
2. It may either be oral or contained in document(s);
3. It should suggest an inference as to fact in issue or relevant fact;
4. It may be made by one of the person(s) mentioned under s18, 19 and 20 of EA;
5. It is to be made under the circumstances provided in the Act under s21 to 23 of the EA.

 These elements will be explained below (from heading 3-6) :

3) Element 1 & 2: Statement (oral or document)

 As mentioned, an admission is a statement and it can be oral or written. So, if a person said something
verbally or in writing, this statement may be an “admission” and can be admitted as evidence.
 A police report can be an example of written admission.
[Ma Clyde v Wong Ah Mei]113
Facts : The defendant contended that a police report was not a first information report but a
statement made in the course of police investigation. The issue is whether this police report is
admissible.
Held : The police report was a first information report and was admissible under s17,18 and 21 of
Evidence ordinance 1950.

4) Element 3: “Suggest or Infer a Fact” means admission is not a conclusive prove

 S17(1) says that an admission is a statement “suggesting or inferring a fact”. Thus the words “suggest
and infer” means that an admission is not a conclusive evidence.
 However, if no explanation is provided to prove otherwise, an admission will be the best evidence,
though not as a conclusive evidence.

[Choong Yik Son v Majlis Peguam Malaysia]114

Fact : A lawyer admitted withdrawing money from the client's account for wife’s medical fees.
Held : Admission, unless explained, furnishes the best evidence but it is not conclusive proof
of the matter admitted and may operate as estoppels. The maker of the admission in
question may explain that admission away. And if that admission is not explained away then
it would constitute evidence against the person by whom it was made

[Amer Singh Bhatt v Kelana Resort Sdn Bhd]115

Held : s31 of EA 1950 provides that admissions are not conclusive proof of the matters
admitted, but they may operate as estoppels.
: An admission merely suggests or infers a fact. From a reading of s17 EA, nothing more
can be read into the admission other than what can be inferred from the contents. Even
if a fact can be inferred from the admission, the admission was not conclusive proof of the
fact.

113
[1970] 2 MLJ 183
114
[2008] 7 MLJ 215
115
[2007] 4 CLJ 557
58 | P a g e
 : In the present case, a mere admission of debt cannot be interpreted to mean an admission of
a legal liability to pay. “I will pay” does not necessary imply “I am legally obliged to do so”.

5) Element 4: Who can make an admission? (s18 – 20)

 Those persons mentioned in S18 – 20 can make an admission.

5.1) Section 18
S18 (1) – (3) provides a list of people who can make an admission 116

i. S18(1)
There are 2 categories of people under s18(1)
a. party to a proceeding; or
b. agent of such party who is expressly or impliedly authorized by such party to make the
statement
a) Party to a proceeding
[Dato’ Seri Anwar Ibrahim(No.3)]117
Held:
- The word “proceeding” in s18(1) may be civil or criminal
- An accused is a “party to the proceeding”. In criminal cases, the accused is always a party,
and his admissions are admissible against him
- An out of court statement made by the accused is also admissible since admission is treated
as an exception to the hearsay rule.118

b) Agent of such party who is expressly or impliedly authorized by such party to make the
statement
[Teh Eok Kee v Tan Chian Hook]119
Held : Admissions made personally by the party and by those in privity with the party are
admissible, as exceptions to the hearsay rule.
: The most important examples of those in privity are predecessors in title, referees,
and servants or agents acting within the scope of their authority.
: In this case, it was held that an option holder, had the authority of the Vendor to
authorize solicitor to act for the Vendors in the agreement. 

ii. S18(2): Parties to suits, suing or sued in a representative character

116
Section 18: Admission by party to proceeding, his agent or person interested
(1) Statements made by a party to the proceeding or by an agent to any such party whom the court regards under the
circumstances of the case as expressly or impliedly authorized by him to make them are admissions.
(2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were
made while the party making them held that character.
(3) Statements made by—
(a) persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the
statement in their character of persons so interested; or
(b) persons from whom the parties to the suit have derived their interest in the subject matter of the suit,
are admissions if they are made during the continuance of the interest of the persons making the statements
117
[1999] 2 MLJ 1
118
Rationale: As admissions are declarations against the interest of the maker and is probably true, it is presumed to be
relevant and admissible under EA.
119
[1995] 3 MLJ 613
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 S18(2) : Statement made by a party to a suit, suing or sued in a representative character may
only be regarded as admission if it was made during which such party held that
representative character.

[Re Cohen; Ex p Trustee]120

Fact : A trustee in in a bankruptcy proceeding made an admission in an affidavit. Such
affidavit was filed by the appellant and would be used against the respondent
Held : Such an admission is admissible.

iii. S18(3)
There are 2 categories of people under s18(3)
(a) persons who have any proprietary/pecuniary interest in the subject matter of the
proceeding

[Bee Hock Sdn Bhd v Yuwang Sdn bhd]121

Fact : The Plaintiff affirmed a statement of account which confirmed the
correctness of the disbursement sum in the loan agreement.
Held : It was regarded as an admission of the money received in the proceedings.

(b) persons from whom the parties to the suit have derived their interest in the subject matter of
the proceedings.

5.2) Section 19 & 20

 The effect of s18 is that any admission made by the persons not listed in s18 is inadmissible, but
there are exceptions under s19 and s20 i.e. if the admission is made by an independent third party
and it is relevant.

Section 19: Admissions by persons whose position must be proved as against party to suit
When a statement is made by a person who is not a party to a suit, but his liability or position is
necessary to be proven (ascertained) in the suit, such statement made by such third party is an
admission if it is relevant to the fact in issue.

ILLUSTRATIONS
A undertakes to collect rents for B.
B sues A for not collecting a rent due from C to B
A denies that the rent was due from C to B
A statement by C that he owed B rent is an admission and is a relevant fact, as against A if A denies
that C did owe rent to B

Section 20: Admissions by persons expressly referred to by party to suit

If a third part (a person not a party to the suit) made a statement which a party to a suit expressed
referred to for the matter in dispute, such a statement by the third part is an admission.

ILLUSTRATIONS
The question is whether a horse sold by A to B is sound.
A says to B: “Go and ask C. C knows all about it.”
C’s statement is an admission.

6) Element 5: It is to be made under the circumstances provided under s21 to 23 of the EA.
This element means that admission must comply with the rules in s21 – 23.
120
[1924] All ER Rep 434
121
[2013] 10 MLJ 377
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 6.1) Section 21: Proof of admissions against persons making them and by or on their behalf
There are 2 limbs under s21:

section 21:
limb 1 : Admissions are relevant and may be proved as against the person who makes them or
his representative in interest
▪ Admission is generally admissible if it is against the interest of the person who made
it;
▪ So, admission which is advantageous to the person who made it will be regarded as
inadmissible. This is because it is assumed that the maker would have fabricated to
suit his or her interest.

Illustration
(a) The question between A and B is whether a certain document is or is not forged. A
affirms that it is genuine; B that it is forged.
A may prove a statement by B that the document is genuine, and B may prove a
statement by A that the document is forged; but A cannot prove a statement by
himself that the document is genuine, nor can B prove a statement by himself that
the document is forged.

limb 2 : However, an admission cannot be proved by or on behalf of the person who makes them or
by his representative in interest except in the following cases:
(a) when the admission is such a nature that if the person making is dead, it would be
relevant as between third persons under s32;
(b) When the admission consist of a statement of the existence of any state of mind or body
relevant or in issue, made at or about the time when that state of mind or body existed and
is accompanied by conduct rendering its falsehood improbable
(c) when the admission is relevant otherwise than as an admission

Illustration: (for illustration for the 2nd limb, refer to the EA. It is too long to be included here)

[Low Kian Boon v PP]122

Facts : This is a murder case. One of the evidences relied by the prosecution was a statement made
by the 2nd appellant to SP17 that the he and the 1 st appellant killed someone but with no
intention to cause death.
Held : The statement is admissible under s.21 of EA. S.21 provides that admissions are relevant
and may be proved as against the person who makes them. An admission is treated as an
exception to the hearsay rule and thus admissible. 123
: In view of ss17 and 21 of the Evidence Act, admissions are substantive evidence of the fact
admitted, though they are not conclusive proof of the fact admitted. However, if the
admission is not proved but is used as “previous statement to cross-examine the accused”
under s.145, it does not become substantive evidence but only evidence to challenge the
veracity of the accused as witness.

122
[2010] 5 CLJ 489 (FC)
123
follow PP v Dto Seri Anwar Ibrahim (No.3)
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 ▪ Note: What weight is to be attached to an admission made by a party is a matter
different from its use as admissible evidence.

6.2) Section 22: Admissibility of admission

Section 22 of EA 1950124
Oral admissions as to the contents of a document are not relevant unless
- the party proposing to prove them shows that he is entitled to give secondary evidence of the
contents of the document under the rules hereinafter contained, or
- the genuineness of a document produced is in question.

 s22 provides for oral admission about the contents of the document.
 Since it mentioned secondary evidence, so must be read together with section 65 of EA 1950125

6.3) Section 23: Admissions in civil cases when relevant

Section 23: Admissions in civil cases when relevant
In civil cases, no admission is relevant if it is made either
- on an express condition that evidence of it is not to be given, or
- under circumstances from which the court can infer that the parties agreed that evidence of it
should not be given.

Explanation :
This section shall not exempt any advocate from giving evidence of any matter of which he may be
compelled to give evidence under section 126.

 This is applicable to civil cases only.

 This is usually applied for settlement negotiations where the “without prejudice rule” is
applicable.
 Under the without prejudice rule, the parties would agree that nothing mentioned during the
settlement negotiation can be used against them in court. So, such statement made during the
negotiation process is not admissible as admission unless both parties waived it.

6.3.1) Rationale of without prejudice rule

[Oh Kuang Liang v Associated Wood Industries Sdn Bhd [1995] 4 MLJ 390] (applied Rush case)
Held :The 'without prejudice' rule applied generally to exclude all negotiations genuinely aimed at
settlements whether oral or in writing from being given in evidence. The underlying purpose
of the 'without prejudice rule' is to protect a litigant from being embarrassed by any
admission made purely in an attempt to achieve a settlement.

[Rush v Tompkins Ltd v Greater London Council [1988] 3 All ER 737]

Fact : (not fucking important) 126
124
Section 22: Oral admissions as to the contents of a document are not relevant unless and until the party proposing to prove
them shows that he is entitled to give secondary evidence of the contents of the document under the rules hereinafter
contained, or unless the genuineness of a document produced is in question.
125
Cases in which secondary evidence relating to documents may be given
126
The plaintiffs, Rush & Tompkins, having entered into a building contract with the GLC, the first defendants, and engaged the
second defendants as sub-contractors, commenced proceedings against the GLC for, inter alia, a declaration that the GLC was
liable to re-imburse them the sums for which they might be held liable to pay the second defendant, and against the second
62 | P a g e
 Held : The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded
upon the public policy of encouraging litigants to settle their differences rather than litigate
them to a finish.
: It is to encourage the parties to settle outside the court as litigation should be the last resort.
The parties should be encouraged so far as possible to settle their disputes without resort to
litigation and should not be discouraged by the knowledge that anything that is said in the
course of such negotiations may be used to their prejudice in the course of proceedings.
: The rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in
writing from being given evidence. (it is not only in writing but also orally). However, the
application of the rule is not dependent on the use of the phrase 'without prejudice' but also
from the surrounding circumstances that the parties were seeking to compromise the action.
(need to look at the content of the letter and the intention of the parties)

6.3.2) Who’s protected by the without prejudice rule

[Dusun Desaru Sdn Bhd v Wang Ah Yu [1999] 5 MLJ 449]
Held : The shield of privilege (of without prejudice rule) is for client and not for the lawyer.
: However, it depends on the role of the lawyer in question. If a lawyer representing his client
in an action is said to be "... the agent of his client in all matters that may reasonably be
expected to arise for decision in the cause”, then the shield of privilege may be applicable to
him.
(It depends on how the lawyers play their role. If the lawyer is agent, they have power of
attorney so they might be protected.)

[AB Chew Investment Pte Ltd v Lim Tjoen Kong [1989] 3 MLJ 329]
Held :Section 23 merely states a broad principle and does not specify detailed rules. The privilege
(of without prejudice rule) only applies to statements by the parties and their lawyers
respectively acting for them so that a person which is not involved in the negotiations
personally or through an agent cannot claim the privilege

6.3.3) When does a negotiation agreement become admissible or inadmissible as evidence?

[Malayan Banking Bhd v Foo See Moi [[1981] 2 MLJ 17] (FC)
Held : Letters written without prejudice are inadmissible as evidence for the negotiations
attempted. This is in order to enlarge the scope of the negotiations, so that a solution
acceptable to both sides can be more easily reached.
: However, where the negotiations conducted without prejudice lead to a settlement,
then the letters become admissible in evidence of the terms of the agreement, unless the
agreement has become incorporated in another document which would then be the evidence
of the agreement.

[Wong Nget Thau v Tay Choo Foo [1994]3 MLJ 723]

Held :The case of Malayan Banking Berhad v. Foo Seen Moi does not lay down the proposition
that any letter that is marked "without prejudice" is inadmissible irrespective of the
circumstances in which the letter was issued.

defendants for an account and enquiry as to the amount due from them to the second defendants. Without prejudice
negotiations between Rush & Tompkins and the GLC led to a compromise under which the GLC paid to Rush & Tompkins £1.2
million and Rush & Tompkins undertook responsibility for all claims made by the second defendants. The second defendants
then sought an order against Rush & Tompkins for discovery and production for inspection of the without prejudice documents
that had led to the compromise agreement with the GLC
63 | P a g e
 : The fact that a document is headed "without prejudice" does not conclusively or
automatically render it privileged from admission in evidence in any subsequent proceedings,
and if a claim for such privilege for the document is challenged the Court will look at the
document to determine its nature.
: The Court must in each case, when deciding whether a particular letter marked "without
prejudice" is admissible, consider whether the letter was part of a genuine attempt to settle a
dispute.

Pn Aisyah: it looks at content and nature of the letter rather than looking at the word “without
prejudice”. It must be a genuine effort to come out with a settlement.

[Ted Bates v Balbir Singh [1979] 2 MLJ 257] (FC)

Fact :The respondent admitted in a letter that he owed $250,000 to the appellant, but he asked for
an extension of time to repay the monies.
Held : A letter in which the borrower admitted a debt and requested for time to repay the sum did
not fall under a situation where the letter was to be written under prejudice. Therefore, the
letter was admissible as there was no evidence that the admission was made in the course of
negotiation. The question of prejudice has no application unless a person is in dispute or
negotiation with another at the time.

6.3.2) Letter of acknowledgement

[Johnson Medical Equipment Sdn Bhd v Yeo Eng Lam[2011] MLJU 165]
Fact : The Defendant owed the balance sum of RM251,677.55 to the Plaintiff. There was no
denial of that amount by the Defendant.
: By a letter dated 30/11/04 marked “without prejudice”, a company known as Johnson
Industries Pte Ltd addressed to the Defendant, requested the Defendant to settle her
outstanding debts to the Plaintiff and to the Company. In the letter, the Company also
requested the Defendant to acknowledge the total outstanding amounts owing to the Plaintiff
and the Company by signing and returning the acknowledgment set out at the bottom of page
2 of the letter.
: On 17/12/04, the Defendant signed the acknowledgment. However, the Defendant failed to
pay the sum acknowledged. The Plaintiff then filed the Writ of Summons and Statement of
Claim against him.
: The main issue is whether the acknowledgment by the Defendant on 17/12/04 constituted a
valid admission of the debt to allow time to accrue afresh.
Held :For an acknowledgment of a debt to be held valid, there must be a clear or unequivocal
admission of an ascertained debt that is subsisting at the time of the acknowledgment. In
this case, the acknowledgment by the Defendant was an unequivocal admission of a
subsisting debt as the Defendant did not deny that he had signed the acknowledgment.

Part 3: Confession

1) Introduction
 As s17(2) defines confession to mean an admission which infers that a person has committed a crime, a
confession is therefore a sub of admission. In another words, admission are confession butt not all
confession are admissions.
[R v Wong Ah Kin [1933] MLJ 169]

64 | P a g e
 Held : The Evidence Ordinance defines both an admission and a confession where a confession is
being included under the general definition of admissions. And then under section 21, it
makes admissions relevant.
: The effect of that is that all confessions are relevant and can be proved unless they are
excluded by some other section of the Ordinance or by some other rule of law not perhaps
contained in the Ordinance

[Low Kian Boon v PP]127

Held : Statement is a genus, admission is the species, and confession is a sub-species.

[Pakala Narayana Swami v King Emperor]

Held : A confession must contain an admission of the offence or substantial admission of all the
facts which constitute the offence.
 A confession must only be made by an accused.
 It is governed under section 24-31.

2) Categories of Confession
Section 17(2):
A confession is an admission made at any time by a person accused of an offence, stating or suggesting the
inference that he committed that offence.

Under Section 17(2), there are 2 categories of confession:

i. Plenary confession:
“…stating …. that he committed that offence…”
Eg: “Yes, I killed him.” - expressly

ii. Non-plenary confession.

“…suggesting …that he committed that offence…”
Eg: “ Yes, I was angry with him, he deserved it” – indirect

2.1) Types of confessions

There are two types of confessions:
i. Judicial confession
▪ This is confessions made before the court in due course of a legal proceedings
▪ It is vital that these confessions are made with free will of the parties with full knowledge
and comprehension of the nature and consequences of such confessions. [PP v Law Say
Seck]128

ii. Extra Judicial Confession

▪ This is confession made by parties elsewhere in court
▪ If it is made voluntarily, then it can be admitted as a confession. If not, it wouldn’t be
considered as a confession
▪ It is harder to admit this type of confession compared to judicial confession

127
[2010] 5 CLJ 489 (FC)
128
[1971] 1 MLJ 199
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3) How to determine if a statement is a confession
 For plenary confession, there is no difficulty as it is a direct confession. If an accused person states
expressly that he committed an offence which he is charged, clearly it is confession.
 For non-plenary confession, to determine if it is a confession. The test is objective test as laid down in
Anandagoda v The Queen.

[Anandagoda v The Queen [1962] 1 MLJ 289]

Fact : In this case the appellant was tried for murdering the deceased by running over her with a
motor car. To prove this, the prosecution adduced evidence of certain admissions made by the
appellant to a police officer.
: the appellant argued that those statements did give rise to an inference or inferences
prejudicial to him, or suggested the inference that he committed the offence on which he had
been found guilty, and that they therefore constituted a "confession" within the meaning of
sections 25, 17 of the Evidence Ordinance and were wrongly admitted in evidence.
Held : The test of whether a statement is a confession is an objective one. 129 In deciding this,
(whether a particular statement is a confession), the appropriate question to be asked is:
- whether the statement of admission, in the context, expressly or substantially admit guilt
or taken together in the context, does the admission inferentially admit guilt?130
- Such statement must be looked at as a whole and it must be considered on its own
terms without reference to extrinsic facts.
: Here there was no admission that the appellant was driving the car at the time of the offence
or, if he was driving it, in running over the deceased, he was acting deliberately, which would
both be necessary elements to constitute murder. The statements considered by themselves
did not therefore amount to a confession of guilt within the meaning of section 17(2) of the
Ordinance, and the evidence of the police officer was accordingly properly admitted.

[Lemanit v PP [1965] 2 MLJ 26]

Fact : The appellant was convicted of the offence of causing a bomb to explode with intent to
cause physical injury to persons and property. The evidence established an intent to injure
property but did not establish a clear intent to injure persons. To prove this, the prosecution
relied on a confession made by the appellant. The appellant appealed on the ground that the
statement was not a confession and should not have been admitted in evidence.
: This statement reads as follows:
- "I came from Pulau Langsar, Indonesia. I was arrested by the Indonesian police and
taken to Blakang Padang. On arrival there (Blakang Padang) the Indonesian police
gave to me a bomb and said that if I did not carry it and explode it in Singapore I
would be put in jail for six years.
- I received the bomb. One of their men, named Hasan followed me to Singapore. He
accompanied me to the place where the bomb is to be exploded. If I did not explode the
bomb, this man, Hasan would report back to the Indonesian police and that I would be
shot by them when I returned to Indonesia.

129
Meaning of objective test: whether to the mind of a reasonable person, reading the statement at the time and in the circumstance
in which it was made, the statement can be said to amount to a statement that the accused committed the offence or which
suggested the inference that he committed the offence.

130
Followed in [Abdul Khalid b. Abdul Hamid v PP [1995] 1 MLJ 692]
Held: the appropriate test is: Whether the words of admission in the context expressly or substantially admit guilt or do they
taken together in the context inferentially admit guilt.

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 - I was forced to set fire to the bomb and to throw it at a place where there were no
people. For this reason, I plead to your Honour to allow me to remain in Singapore
because if I go back to Indonesia I will be shot dead.
Held :The statement made by the appellant in this case was clearly inculpatory and therefore
admissible as evidence for a confession. (Inculpatory evidence is a legal term used to
describe evidence that shows, or tends to show, a person's involvement in an act, or evidence
that can establish guilt.)

4) Self- exculpatory statements

 Generally, you can’t rely on a self-exculpatory statement as evidence/ confession to disprove your guilt.
[Herchun Singh v PP [1969] 2 MLJ 209]
Held : No statement that contains self-exculpatory matter can amount to a confession if the self-
exculpatory statement is of some fact which if true, would negative the offence alleged to
have been committed.

4.1) When a statements is partially exculpatory and partially inculpatory

▪ This situation arises when one gives a statement which is partly self-inculpatory and self-
exculpatory.
▪ When a statement is partially inculpatory and partially exculpatory, the court must look at it as a
whole, though the Court may point out the incriminating parts are likely to be true whereas the
exculpatory parts carries no weight.

R v Sharp131:
Held : The whole statement constitutes evidence of the truth of the facts it asserts and the judge
should direct the jury that both the incriminating parts and the excuses or explanations
must be considered in determining where the truth lies, although where appropriate, as it
usually will be, the judge may, and should point out that the incriminating parts are likely to
be true whereas the excuses do not carry the same weight.

Chan Kin Choi v PP132:

Facts : A fight broke out between the deceased and the accused. The accused relied on the defence
that the deceased started it first and the court believed this. Based on the evidence, the
accused was in a dangerous situation while the deceased was joined by his gang during the
fight.
Held : Once the defence is called, the judge must consider the whole statement (the defence
statement), both the incriminating parts and excuses or explanation, in deciding where
the truth lies. The judge may point out that the incriminating parts were likely to be true
whereas the excuses did not carry the same weight.
: In this case, the court came to conclusion that the appellant had stabbed the deceased
without premeditation in a sudden fight upon a sudden quarrel. It was probable that the
accused had armed himself for his own protection.

5) Rules on Admissibility of a confession

This is stipulated under s.24, 25 and 26

131
[1988] 1 ALL ER 65
132
[1991]1 MLJ 260
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 5.1) Section 24(1) 133: Confession caused by inducement, threat or promise are irrelevant
S.24(1) of EA:
A confession made by an accused person is irrelevant in a criminal proceeding if the confession are
made by any
i. inducement,
ii. threat or
iii. promise regarding the charge, from a person in authority, where such a promise would be
reasonable for to accused to think that by making the confession, he would gain any advantage or
avoid harm.

 The words inducement, threat or promise have not been defined in the statute.
 If there is an element of inducement, threat or promise in the confession made by an accused in a
criminal proceeding, it would nullify the admission of the said confession.
 Words uttered by a person in authority may be used to affect the voluntariness of a statement only if
it can be shown that they had an effect on the willingness of the accused to give the statement.
 The important elements under S24, will be explained below:

a. The confession must be made voluntarily

Dato Mokhtar bin Hashim134:
Held : ‘Voluntary’ means the statement has not been obtained by fear or prejudice or hope of
advantage held out by a person in authority.

PP v Law Say Seck:

Held : In examining voluntariness, it is necessary to consider the impact of inducement, threat
or promise on the accused. To decide if an act or omission is an inducement, threat or
promise (ITP), these are the 3 rules to follow:
i. Without such ITP, the person would not have made the statement. The
inducement, threat or promise need not be express but maybe implied from the
circumstances of the case.
ii. The ITP would make the person suppose that the advantage to be gained or harm
to be avoided would be of a temporal nature.
iii. To determine if an ITP would make the accused to think that he would get an
advantage or avoid a harm for making such a confession, it is sufficient if the Court
thinks so in the court’s opinion.
- It is left to the court entirely to form its own opinion as to whether an
inducement, threat or promise was sufficient to lead the person to suppose
that he would gain an advantage of a temporal nature.
- In doing so the mind of the person making the confession has to be
judged rather than that of the person in authority.135

133
S.24(1) of EA: “A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession
appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the
accused person, proceeding from a person in authority and sufficient in the opinion of the court to give the accused person
grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of
a temporal nature in reference to the proceeding against him.”

134
[1983] 2 MLJ 232
135
In scrutinising a case of this kind, the court has to perform a threefold function:
1. It has to determine the sufficiency of inducement, threat or promise;
2. it has to clothe itself with the mentality of the accused to see whether the grounds would appear to the accused
reasonable for a supposition mentioned in section 24 of the Evidence Ordinance;
3. it has to judge if the confession appears to have been caused in consequence of any inducement, threat or promise.
68 | P a g e
 Selvadurai v PP136
Held : A very slight inducement is sufficient to render a confession inadmissible

 The cases below illustrate how a confession can be made involuntarily:

Aziz Bin Muhd Din v PP137
Facts : This is a rape case, the accused’s father had advised him to confess and such advise
was given in the presence of the arresting officers
Held : The advice to confess was amounted to a threat because what the father told the
accused had played in his mind. A person not in authority (the father) can be
considered as the agent of the person in authority. The fact that the words used
were advisory in nature does not weaken their effect as even the gentlest threat would
taint a confession.

PP v Naikan138
Facts : The accused (Naikan) shot a woman having mistaken her for a pig. He was arrested
twice for the offence. Before his first arrest, Naikan saw his manager at his office and
told him that he was in difficulties and need help from him. There was an interview
session with the manager and Naikan.
: During the interview, the manager said "you had better tell the truth" (which the
manger was not sure of the exact sentence too but he said something like this to
Naikan) and he gave Naikan the impression that he would help him to the best of his
ability. Because of the manager’s words, it made Naikan admitted that he had shot a
woman by mistaken her for a pig, he further admitted that he had dug a pit and shot
the woman. 
: When he was re-arrested later, he made the same confession to the Magistrate. The
issue is whether the 2 confession made by Naikan are admissible or not.
Held For the first confession
: The manager admitted that it was his practice to urge his labourers to speak the truth
in his interview with them. In this case, the words "you had better tell the truth" or
equivalent expressions have acquired a fixed meaning as if a technical term and have
always been held to import a threat or promise. Thus, there was sufficient inducement
to Naikan for making the confession involuntary, hence inadmissible in evidence.

For the second confession

: This is also inadmissible in evidence. There is evidence that the accused on his first
arrest was detained for a period of 2 weeks at the police station which he made no
attempt to volunteer any confession. It is when the accused saw the manager and
asked for help, as a result of the promise given by the manager, the accused made a
statement to him and later confessed to the Magistrate.

The 2 hours interval between the 2 confessions is too short to have removed the
influence he was under at the time he made his confession to the manager.
Besides, after the accused came out from the Magistrate's Chambers, the
accused told the manager that he wanted to destroy the confession. This conduct

136
[1948-1949] MLJ Supp 43, 44
137
[1996] 5 MLJ 473
138
[1961] 27 MLJ 147
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 had clearly indicated that the confession was involuntarily and tainted with
inducement or promise.
.
Md Desa bin Hashim v PP139:
Held : A brotherly affection was considered as a sufficient inducement to have caused the
making of a confession to the police. The police in this case, had provided an
inducement to the accused, named by telling the accused that the accused’s
younger brother who was arrested earlier would be released if the accused gave
a statement to the police. The court found this as an illegitimate pressure to confess.

b. The ITP must come from a person in authority

 What is a “person in authority” is usually subjective and it depends on the point of view of
the accused person (can be anyone as long as it as the said person has the authority in the
eyes of the accused person)
 It can be people the accused ordinarily engaged in the arrest, detention, examination or
prosecution such as police or judge.
 It has also be held to include other people such as parents (Aziz Muhd Din case) where they
can be considered as an agent of the person in authority

c. The ITP must relate to the charge against the accused person
 Eg: if the accused is charged with the murder, and the confession made is on murder, the
inducement, threat or the promise also must be related to the said offence which was
committed by the accused

d. The ITP must, in the opinion of the court, sufficient to give the accused person grounds
reasonable him to think that by making the confession, he would gain any advantage or
avoid any harm of temporal nature in reference to the proceeding against him
 This means the accused honestly believed that they gain an advantage or could avoid a
malevolent or dreadful outcome if he confesses voluntarily

e. Confession by way of oppression

 It is not specifically defined in EA 1950. It is established and discussed by cases.
 Generally, oppression means something which tends to sap and has sapped the free will of the
accused to make a confession voluntarily.
R v Priestley140
H : The term ‘oppression’ bears the meaning as ‘something which leads to sap and
has sapped that free will which must exist before a confession is voluntary. It
refers to a situation where the statement discomforts such as denial of food, rest or
sleep is oppressive.

R v Fulling141
H : Oppression must be given its ordinary dictionary meaning and applied the definition
of that word as it appears in the Oxford Dictionary which says this: Exercise of
authority or power in a burdensome, harsh or wrongful manner, unjust or cruel
treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.

139
[1996]5 MLJ 473
140
[1966] Cr LR 507
141
[1987]1 All ER 65
70 | P a g e
  There is a lack of uniformity or certainty by the Court in determining what amounts to an
oppressive situation. But based on decided cases, these are among the factors/ reasons to
consider if a situation was oppressive:
i. Length of time the accused was in custody, detained or questioned
ii. The manner in which interrogatories was carried out
- whether rest, food, prayer time was given?
- whether the accused was handcuffed?
iii. Individual characteristic of the accused: age, personality

Dato Mohktar Hashim v PP142:

Held : Court found that the trial judge was wrong in failing to exclude the statement
made by the accused because it was the result of prolonged periods of
questioning ranging into the small hours of the morning which 'appeared to
be suggestive of oppression. In short, it was said to be oppressive, as he was
interrogated for long hours.

PP v Chant Choon Keong143

Facts : In this case, it was alleged to be physical oppression where the accused was
put into a room, interrogated the whole night with his hands handcuffed
behind his back upon arrest. In the lock-up:
- he was only allowed to wear underwear,
- sleep on cement floor without blanket or pillow.
- he was also interrogated for 4 days.
- Water poured on his body while facing air-conditioner,
- forced to eat ‘cili padi’,
- request for doctor but was denied unless co-operate with police.
Held : In determining what amounts to oppressive circumstances, these are the
relevant factors to consider:
i. characteristics of the accused
ii. period of time during which he was questioned
iii. length of time during which he was in custody
iv. whether he was given refreshment and opportunities to rest
Based on the fact, there was oppression in obtaining the confession. Thus, it
was not made voluntarily.

PP v Kamde Raspani144
H : the accused was interrogated for 17 hours & such interrogation was after
6.30pm. It was held to be oppressive

 Once a situation is deemed oppressive, the burden of proof is on the prosecution to show that
the confession was made voluntarily (Hasibullah case)
Hasibullah Mohd Ghazali145
H : Handcuffing an accused person is psychologically oppressive. The onus is on the
prosecution that a confession made by the handcuffed accused was voluntary.
142
[1983]2 MLJ 232
143
[1989]2MLJ 426
144
[1988]3 MLJ 289
145
[1993] 3 MLJ 321
71 | P a g e
 5.1.1) Section 28: Confession is admissible if the ITP was no removed
Section 28(1) :
If such a confession as is referred to in section 24 is made after the impression caused by any
such inducement, threat or promise has, in the opinion of the court, been fully removed, it is
relevant.

 These cases illustrate how ITP can be removed so as to make a confession admissible:

R v Smith146
Fact : The accused was a soldier who stabbed one of his comrades during a fight in
an army barracks. When this was known by the sergeant- major, the sergeant-
major threaten the whole troop of soldiers with extra parade duty to make a
confession as to who murdered the deceased soldier. However, the accused
didn’t admit but only made the confession next day later. The issue is whether
the accused had made the confession under threat?
Held : As the confession was made sometime later the threat was imposed, the
thereat was no longer under the influence of this threat when he confessed to
investigating officers. Thus, the accused was convicted for murder.

Abdullah b Awang Bongkok v PP147

Facts : In this case, the magistrate asked the accused if anyone had made him a
promise that if he made a statement to the magistrate, he would be let it off.
The accused replied that a promise was made by an unknown “Malay police
constable”. So, the magistrate advised him that he is not under any duty to
make a statement (confession) unless he wishes to do so. The Magistrate also
advised him that any statement which he makes will be used against him in the
court of law, to which the accused agreed and proceeded to make a statement
to the magistrate.
Held : Such advice, questioning and warning given by the Magistrate was said to
have removed the impression of the promise made by an unknown Malay
constable.

 This case illustrate how the Court should deal with a confession if it is unsure if the
confession was made under ITP.

Lim Sing Hiaw v PP148

Facts : The accused was convicted for unlawful control of a firearm in contravention
of ISA based on a confession he made. However, during the trial, the accused
claimed that was assaulted and threaten to make a confession to one Inspector
Lingam by the soldiers who caught him.
: He claimed that:
- for three days after he was caught by the soldiers, he was in the hands of
members of the special branch
- during this time, the soldiers forced him to make a confession by showing
him the body of his friend who had been killed and threatened him that if
he did not make a confession, he himself would be taken out into the
146
[1959]2 QB 35
147
[1956] 22 MLJ 90
148
[1965] 1 MLJ 85
72 | P a g e
 jungle and shot, then photographs of his body would be taken and his
relatives would be informed that he has been killed.
: Nonetheless, during the trial, no attempt was made to call any police or army
officer who could testify what happened to the accused during the three days
he was in custody before he made the confession. However, this statement is
uncontradicted and there is nothing inherently improbable about it. Therefore,
the Court noted that his claim may or may not have been entirely true, or it
may not have been true at all. The question is whether the court can rely on
such “unsure” confession?
Held : Based on the facts, there might well be some truth in the accused’s
uncontradicted story. Therefore, the onus to on the prosecution to show that
Inspector Lingam had remove any impression that might have be threats or
promises which migh induce the accused to make that confession. However,
this was not done hence the prosecution failed to show that the confession was
voluntary and so it cannot be admitted.
5.1.2) Section 29(1): Confession obtained through deception etc
 A confession obtained in consequence of a deception etc is admissible in line with the
rule that evidence obtained illegally is admissible.
 The courts are not concerned with how the evidence is obtained. If the evidence is
relevant, it is admissible. However, the court will use its discretion to disallow evidence if
it is found to operate unfairly to the accused.

Section 29(1)149:
If a confession is otherwise admissible under section 24, such confession does not
become inadmissible merely because
- it was made under a promise of secrecy, or
- it was made in consequence of a deception, or
- it was made when he was drunk, or
- it was made in answer to questions which he need not have answered, whatever the
form of those questions might be, or
- he was not warned that he was not bound to make a confession and that evidence of
it might be given against him.

Lee Weng Sang v PP150:

Held : If on the instructions given to him, a confession was unlawfully induced or
obtained and the proper time to do this would be when the prosecution seeks
to introduce the statement, it is the duty of Counsel to indicate to the Court his
objection to the admission of any statement by an accused. This objection
would indicate to the Court the necessity to hold a trial within a trial.

5.2) Section 25 and Section 26

Section 25: 151

149
Section 29(1): If such a confession as is referred to in section 24 is otherwise relevant, it does not become irrelevant merely
because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the
purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have
answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make
a confession and that evidence of it might be given against him.

150
[1978] 1 MLJ 168
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 No confession made to a police officer who is below the rank of Inspector by a person accused
shall be proved as against that person.”

Section 26: 152

No confession made by any person whilst he is in the custody of a police officer shall be proved as
against that person, unless it is made in the immediate presence of a Sessions Court Judge or
Magistrate.

 Both S25 & 26 deal with confession made to the police officers.153
[Pakala Narayana Swami v King Emperor]
Held :  Section 25 provided that no confession made to a police officer (who is below the
rank of Inspector) by a person accused shall be proved as against that person. while
section 26 provides that no confession made by a person while he is in police custody
shall be admitted unless the confession was made in front the session court judge or
magistrate.

5.2.1) Application of Section 26

 section 26 provides that no confession made by a person while he is in police custody shall
be admitted unless the confession was made in front the session court judge or magistrate.
 Section 26 mentioned “custody” and not arrest. Thus, it is sufficient to say that a person is
under custody if he is being supervised and prevented from escaping. One doesn’t need to be
arrested to be under custody.

Eng Sin v PP154

Facts :The accused in this case had been taken from prison to the hospital by the police and
had confessed to a doctor (third party) in the hospital. The police did not allow the
accused to go anywhere and he was under police escort along the journey to the
hospital and back to the prison. The question is, whether the confession made to the
doctor is admissible?
Held : Section 26 excludes the admissibility of the confession if it is made in the custody
of a police officer. A person is in custody when he is in a state of being guarded &
watched, to prevent his escape. Section 26 speaks of custody and not arrest. A
man may be in custody without having been formally arrested, it is sufficient
that he cannot go where he likes.
: Hence, the confession is clearly inadmissible by virtue of section 26 EA. This is
because the police officer did not allow the to go anywhere and the appellant was sent
to Hospital and brought back under police escort and afterwards put in the lock-up.

151
Section 25: “Subject to any express provision contained in any written law, no confession made to a police officer who is
below the rank of Inspector by a person accused of any offence shall be proved as against that person.”

152
Section 26: “Subject to any express provision contained in any written law, no confession made by any person whilst he is in
the custody of a police officer, unless it is made in the immediate presence of a Sessions Court Judge or Magistrate, shall be
proved as against that person.”

153
These are written by the note contributor but not such to what extend this is correct as no authority is given:
- section 25 only convers confession made to a police officer before the investigation, or otherwise not in the course of
an investigation.
- s26 excludes a confession made by any person while he is in the custody of a police officer, but it only excludes a
confession made to a police officer who is below the rank of inspector.

154
[1974]2 MLJ 168
74 | P a g e
 Sambu v R155
Facts : The accused was charged of being in possession of 9½ yards of cloth which was
reasonably suspected of being stolen or fraudulently obtained. The charged was based
on his confession ("I took the cloth from inside Godown 14 ") made to the police
while in custody.
Held : Section 26 proviede that "no confession made by any person while he is in the
custody of a police officer, unless it is made in the immediate presence of a
Magistrate, shall be proved as against such person."
: A person is in custody when he is in a state of being guarded and watched to prevent
his escape. In order to answer the question of whether the appellant was in
custody at the time when he is alleged to have made the statement it is only
necessary to consider what would have happened if, at that time, he had tried to
run away
: In this case, since the confession was made under custody, the confession was
inadmissible.

 If a confession is made to a Magistrate/ session court judge through an interpreter. The

confession is admissible under s26 as long as the interpreter did not change the nature of the
confession.

Chong Teng v PP156

Facts : The accused made a confession while in custody to the magistrate which could not
understand Chinese. Thus, an interpreter was used. The issue is whether such an
confession is admissible under section 26.
Held : By reason of section 26 of the Evidence Ordinance, a confession made by a person
while in custody is only admissible if it is made in the immediate presence of a
Sessions Court President or a Magistrate. The taking of such confessions is governed
by section 115 CPC which provides that any Magistrate "may record any statement or
confession made to him" and then goes on to lay down the manner in which such a
statement or confession is to be recorded.”
: Thus, in short, as long as the interpreter does not change the nature of the
confession made to him, it would be admissible as a valid confession.

 (you may ignore this case. Irrelevant for evidence law)

Ng Goh Weng v PP157
Facts : Three accused charged with murder.
Held : A cautioned statement is only admissible if it satisfies the conditions set out in
section 113 CPC where:
i. it should be made to a police officer of or above the rank of Inspector; and
ii. it was made voluntarily.
: If the statement was made to an officer below the rank of Inspector, the Court can
reject it. However, if the voluntariness of the statement is challenged, and in the
unlikely event of the accused's counsel persisting, the Magistrate has the duty is to
listen patiently to the evidence of and submission by both sides. However, if there is
doubt as to the weight and quality of the evidence , the Magistrate should refrain from

155
[1947] 13 MLJ 16
156
[1960] MLJ 153
157
[1979] 1 MLJ 127
75 | P a g e
 assessing the evidence and instead simply commit the accused and leave the duty of
resolving the doubt to the High Court Judge.

6) Section 27(1): Facts leading to discovery/ Discovery Information

Section 27(1)158: How much of information received from accused may be proved
When any fact is discovered in consequence of information received from a person accused while he is in
the police custody, such information, whether amounts to a confession or not, as relates distinctly to the fact
thereby discovered may be admissible.

 Basically, s27(1) provided that while a person is in custody, any information (including confession)
given by the accused leading to discovery of a fact is admissible.

Pulukkuri Kottaya v Empeor

Held : The Rationale of s27(1) is to serve as an exception to the prohibition of s26 EA, and
enables certain statements made by a person in police custody to be admitted.

 The elements under Section 27(1) are:

i. The information must have been received from a person accused.
ii. Such person must have been in the custody of a police officer at the time of giving information;
iii. A fact must be deposed to as having been discovered in consequences of such information
upon proof of these elements
iv. Such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered may be admitted.
 These elements will be discussed below:

6.1) Element 1: The information must have been received from a person accused.
 Such statement can be received indirectly from the accused
 Also, the statement which led to the discovery need not be actual words of the accused. 159
Sum Kum Seng v PP160 (FC)
Facts : In this case the appellant had been tried and convicted of the offence of having under
his control fire arms. At the trial the prosecution relied on the evidence that the
appellant after his arrest and interrogation had admitted burying the weapons
somewhere and had offered to show the place to the police. It was argued that the

158
S27(1): “When any fact is deposed to as discovered in consequence of information received from a person accused of any
offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not,
as relates distinctly to the fact thereby discovered may be proved”
159
there are high court cases which disagreed with this but since Sum Kum Senf is a FC case, this stands as the law for now
Hasamuddin b Talena (HC)
Held: The court held that information under s27 must be in exact words and recorded in the language used by the
accused. This can be easily carried out by the police officers during investigation where the police officers can
jot down the actual words by the accused person.

PP v Hashim bin Hanafi (HC)

Held : The court took a different stand from the case of Sum Kum Seng v PP. The court said that the information
given by an accused under s27 need not be the actual words used. The rationale being that section 27 uses
the word ‘Information’ and not the word ‘statement’. Therefore, the failure to produce the actual words is
not fatal to its admissibility.

160
[1981] 1 MLJ 244
76 | P a g e
 evidence was inadmissible under section 27 of the Evidence Act, 1950, as it was not
in the actual words used by the appellant. 161
Held : It is clear that the statement of the accused in this case was information supplied by
the accused which had lead to the discovery of the weapon. Thus, the accused’s
statement was clearly admissible under s27. The fact that the information was told
by the police officer in the trial court does not itself make it inadmissible, when it
was only in indirect speech.
: Also there is no strict necessity at law to give the actual words used by an accused
person in supplying the information that led to the discovery of a fact or thing and
comes within the provisions of section 27.

 Cases below
Hasamuddin b Talena162 (HC)
Held : The court held that information under s27 must be in exact words and recorded in the
language used by the accused. This can be easily carried out by the police officers during
investigation where the police officers can jot down the actual words by the accused person.

PP v Hashim bin Hanafi163 (HC)

Held : The court took a different stand from the case of Sum Kum Seng v PP. The court said that
the information given by an accused under s27 need not be the actual words used. The
rationale being that section 27 uses the word ‘Information’ and not the word ‘statement’.
Therefore, the failure to produce the actual words is not fatal to its admissibility.

6.2) Element 2: Such person must have been in the custody of a police officer at the time of giving
information;
(no cases)

6.3) Element 3: A fact must be deposed to as having been discovered in consequences of such
information upon proof of these elements
 The word “Discovery” means that the fact discovered must be in consequence of information
received from the accused. In other words, without such information, such fact wouldn’t have
been known by the police, as such information must lead to a “discovery of fact”. 164
 This must be differentiated from Recovery:
- a recovery means that the Police had prior knowledge of the existence of the thing discovered
- In such a situation, section 27 is not applicable because it is not considered as a discovery
- Rationale: to prevent the misuse of section 27 by police

161
detailed fact:
the accused was charged for having under his control firearms and he offered to show the police the placed where he buried the
firearms. During the trail, the police officer said "the accused admitted burying weapons somewhere and offered to show me the
place." The police went to the place the accused brought and in fact found all the firearms. It was based on this sentence and
discovered fact that the accused was convicted. The defence counsel appealed and argued that , the sentenced “the accused
admitted bury…..” was not in the actual words used by the accused, hence doesn’t fall within the meaning of “information
received from a person accused” under s27.
162
[2002] 2MLJ 408
163
[2002] 4 MLJ 176
164
Common sense dictates the desirability for the actual words to be recorded. The words so far as possible in the actual words
of the accused person, thus stated in the first person (but this is not necessary). But this may compromise the prosecution’s
case.

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 Liew Sam Seong v PP165
Fact : In this case the accused was charged with the offence of having under his control
ammunition. Apart from the circumstantial evidence, the prosecution relied on the
information of the accused which led to the alleged discovery of the ammunition.
However, evidence showed that the police had prior knowledge of the existence of the
ammunition but didn’t know where it was. So, during the 10-day interrogation, the police
managed to persuaded/forced the accused to give information leading to the site where
the ammunition was hid.
Held : Given the quantity of ammunition, bombs, etc found on the premises, it is reasonable to
assume that the police must have known about their existence. In this case, the police
attempted to turn an ordinary recovery into a discovery in order to utilize s27 EA. Where
the police had the means of discovering a fact, or had already discovered a fact, the
subsequent finding of the object or item with the assistance of an accused through
the information, cannot make the information admissible under s 27..

PP v Basri Bin Salihin166

Facts : (not important)167
Held : Where the police had the means of discovering a fact, or had already discovered
a fact, the subsequent finding of the object or item with the assistance of an
accused through the information, cannot make the information admissible under
s 27. Therefore, even if the information was proved to have been given by the
accused, the prosecution, on the facts has failed to establish that the police had no
prior knowledge so as to make the information admissible under s 27.

 However, this case took a different approach.

PP v Lim Kee Chuan168 (very wide approach regarding recovery)
Held : The mere fact that the police had knowledge or information that the accused was keeping
certain drugs did not bar the admission of the confession made subsequently by the accused
as to where exactly the drugs were hidden. So long as the police had not actually recovered
the drugs from the place where the accused had kept them, the information given by the
accused was admissible under s 27 EA.
: Even though the police had prior information, as the fact of the discovery of the drugs was
only verified when the exact locality of the drugs was known to them, the police cannot be
said to have earlier discovered the fact.

6.4) Element 4: Such information, whether it amounts to a confession or not , as relates distinctly to
the fact thereby discovered may be admitted.
 Under this element, not the whole statement received from the accused is admissible. Information
sought to be admitted under Section 27 of EA is only admissible in so far as it relates distinctly
to the fact discovered. For those parts of the statement that do not relate to the fact discovered,
such parts may be disregarded.

165
[1982]1 MLJ 223
166
[1994] 2 MLJ 476
167
The accused was charged with drug trafficking. The prosecution's case was that the envelope was found as a result of
information given by the accused to the police during questioning. The defence cast doubts as to whether the police did not
already have knowledge of the existence of the envelope in the bin even before the alleged information was given by the
accused.
168
[1992] 2 CLJ 1160
78 | P a g e
 Pulukkuri Kottaya v Emperor169 (Privy Council)
Held : Under s27(1), if a fact is actually discovered in consequence of information given, such
information will be deemed true true and accordingly can be safely allowed to be given in
evidence IF it is distinctly related to the fact discovered.
: The extent of the information admissible depends on the nature of the fact
discovered to which such information is required to relate. Normally this section is
used when a person in police custody produces some concealment of some object (e.g.
weapons etc) from a place.
- In this case, the statement made was, ‘I will produce a knife concealed in the roof of
my house with which I stabbed A’.
- The court in this case exclude the part ‘with which I stabbed A’ on the basis that these
words did not relate to the discovery of the knife in the house of the informant. It
only admitted the part on ‘I will produce a knife concealed in the roof of my house’
under Section 27.

Krishnan v PP170
Facts : (not important)171
Held : Section 27 is will not admit a confession generally and not even one word not from
the information the accused gave can be admitted as such “information led to
discovery of fact” is strictly limited only to those statements which are connected to
the discovered facts. Thus, if a statement contained more than the information
distinctly relates to the facts discovered, the unrelated parts is not admissible under
section 27 EA.

PP v Norzilan b Yaacob172
Facts : This is a drug trafficking case. In this case, the police raided a house which the accused
and some other people were arrested. The house was accessible by many people besides
the arrested accused. There were 4 spots where packs of drugs were found, namely, in the
middle room , in the kitchen cabinet, in a septic tank behind the yard and 2 holes behind
the yard. These drugs were found in such manner and sequence:
- the police first found drug in the room,
- then the police found drug in the kitchen cabinet. Before the drug was found, the
accused kept looking at the cabinet.
- After the drug in the kitchen was found, the police asked him “Adakah lagi ganja di
simpan mana-mana bahagian rumah tersebut?' he replied, 'Ya saya masih ada simpan
lagi di bahagian belakang rumah.' (1st statement) So, the accused led the police to a

169
[1947]AIR PC 67
170
[1987] 1 MLJ 292
171
the accused in this case was charged for drug trafficking. In this case, the Investigating Officer stated that he went to the
accused’s house after he received information in respect of drugs. He then gave a chase into the accused’s house when the
accused started to run. He then introduced himself as a police officer and started searching the house. 237 packets of suspected
ganja. After that he directed photographers to take photographs of the place i.e. the spot where the suspected ganja was
recovered. He then further asked the accused whether he had any more ganja. He said yes and by pointing to the back of the
house. The IO then, asked him if he could take him to the place and the accused said he could. Then he brought the IO to a small
plantation and when asked him where the thing was and he answered that it was there, by pointing to the plants of ganja,
planted between vegetables. Then he was asked if he had any more. He did not say anything but he pointed to the direction of
one container suspected of containing seedlings of the ganja. Then, beside the container, the IO found seeds suspected to be
seeds of ganja. When the accused pointed to the IO the plants of ganja, he directed the photographer to take photographs.
When the accused pointed to the container, IO also directed the photographer to take photographs of the seedlings found,
ganja plants and the container containing seedlings and also the said seeds. The accused was then arrested..
172
[1989] 1 MLJ 442
79 | P a g e
 septic tank where he hid his drugs. (and he pointed to the tank to tell the police where
the drug was)
- Then, the police notice that there were 2 freshly dug holes near the tank and asked
the accused “apa kesan galian itu?’ (what are the digging marks?) and the accused
replied ‘kalau nak tahu, gali sendiri’.(2nd statement) The inspector dug the holes and
found another packs of drug inside.
The question was whether the 2 statements had led to the discovery of the drugs found
buried in the hole?
Held : First, it must be noted that the house raided was accessible by many people. So, to
convict the accused, it must be shown that the accused had control over the drug. The
Court dealt with each drug found in such manner:
- for the drug found in the room, it can’t be shown that the accused own and had
control over them since the room was accessible by many people.
- for the drug in the kitchen, since the accused kept looking at the cabinet, this means
the accused might know something was in the cabinet but this doesn’t mean he owns
it since the kitchen was accessible by other people who had access to the house.
- for the drug in the tank, since the accused said that he hid some drugs in the yard and
he led the police to the tank (and point to it), his statement “saya masih ada simpan
lagi di bahagian belakang rumah” is admissible under s27 to show that he owns and
had control over the drugs.
- however, for the drugs in the holes, the statement “kalau nak tahu, gali sendiri’
doesn’t mean that he knows there were drug inside. It might be some other people in
the house who hid it there. Neither the first statement that he was still keeping some
drugs in the bank yard shows that he has knowledge about the drugs in the holes.
Thus, this statements can’t be said to have led to the discovery of the drugs in the
holes.

Sandra Margaret Birch v PP173

Facts : In this case, a man named Mohd. Desa was arrested by the police as he was found
possessing drugs with him. The police interrogate him and as a result, Mohd Desa
brought the police to see the accused (an Australian woman). Then, the police interrogate
her and from the result of the interrogation, it lead the police to a to some premises where
drugs were recovered in a green bag in a room after she unlocked the door with a key
placed on a beam above the door. The police seized the packets and took possession of
the padlock, key and a green folder containing an Australian passport and an air ticket
belonging to the accused. The PP sought to rely on her information that she had led the
police to the discovery of the drugs in those green bag.
Held : Under s27, information leading to the discovery must relate distinctly to the object so
recovered and nothing more. Only so much of such information is admissible.
: In this case, the information received from the accused only shows that the accused
knows the the place from which the drugs was produced but do not include her
knowledge as to the objects recovered, ie the drugs.
: Further, the intention of her bringing the police to the premises was not clear. Her
intention to do so could be to confess her guilt or to indicate Mohd. Desa's guilt, which is
still remained uncertain. Since more than one inference of such confession has arisen, the
inference in favour of the defence ought to be accepted.
: Thus, such information is held to be inadmissible and the action of the accused which
directly leads to such discovery in this case the act of the appellant in approaching the

173
[1978] 1 MLJ 72
80 | P a g e
 green bag and opening it, is of little value and ought to be treated with caution as it is
prejudicial to the accused.

 When the statement led to discover something else, it is not admissible.

Goi Ching Ang v PP174 (landmark case)
Fact : In this case, the accused gave statement in relation to the discovery of pistols but
ammunition was discovered instead.
Held : Since the statement lead to the discovery of different things, the fact discovered had
no connection whatsoever to the statement concerned as the accused’s statement was
in relation to the discovery of pistols but ammunition was found instead.
: On the issue of voluntariness, the Court affirmed Md Desa and held that where
although s24 and 27 are independent, the discretion is vested in the judge to exclude
statements which are prejudicial to an accused even though the evidence is technically
admissible. To determine this, the issue is whether such information ought to, in the
interest of justice and fairness, be excluded (including evidence, obtained by trickery,
deception and etc)

6.5) The statement must be made voluntarily and is governed by the rules in s24
 As mentioned, s24 says that statement given under IPT is not admissible. The rules in s24
applies to a statement under s27 as well. Thus, a statement leading to discovery of a fact must
be made voluntarily as well.

MD Desa bin Hashim v PP175 (overruled Wai Chan Leong)176

Held : In order for a confession, statement or information to qualify for admission under s
27, it must have been made voluntarily. A discovery made in consequence of a
confession extracted by illegitimate means in the ways described in s 24 (IPT) is
inadmissible.
- When a challenge as to the voluntariness of the information is taken, the burden of
proving that a confession is voluntary lies upon the prosecution. The prosecution
must prove it beyond reasonable doubt.
: The test to determine voluntariness is partly objective and partly subjective. The
rule permitting admissibility contained in s 27 is an exception to the prohibition in ss
25 and 26 but all these three sections are governed by and are subject to s 24.
: In this case, there was sufficient evidence to create a reasonable suspicion that the
first statement was made under illegitimate pressure and therefore not voluntary; 

 However, this case held something else.

Francis Anthony Samy v PP177
Held : Under s27 EA, it doesn’t mean that a statement must be excluded in all instances
where it was supplied involuntarily.178 The court must take into account the facts of
the case and degree of force or other involuntary factors used.
174
[1999] 1 CLJ 829
175
[1995] 3 MLJ 350
176
Wai Chan Leong v PP [1989] MLJ 356 (was overruled by Md Desa)
Held : even if the accused was forced to make statements, such statement made is admissible. This is because the
word "information" in s 27, unlike a statement, includes knowledge derived by the person informed by the
accused as well as the means taken to impart that knowledge.

177
[2005] 2 CLJ 481
81 | P a g e
 : Such involuntariness must be “extraordinary involuntariness” in order to be held
inadmissible.

6.6) Miscellaneous principles about s27

 The court be very careful when dealing with S27
Pang Chee Meng v Pendakwaraya179
Held : Although s.27 as an exception to other laws, is useful to the detection of crimes,
there can be danger of it being misused by the police to gain information and the
courts must be vigilant about the circumvention of its provisions. S.25 and 26 of EA
which provides for protection of the accused, may be whittled down by the police by
their ingenuity to get the information given by the accused recorded in the diary in a
way it would appear that it led to the discovery of some facts although the police
might have made such discovery from some other sources.
: In short, the court has to exercise cautious or must be vigilant in accepting the
statements under s.27

 If a statement is not made in accordance with the rules governing CPC, such statement even if
it led to any discovery is not admissible under s27.
PP v Tan Keo Hock180
Facts : In this case the accused was charged with having under his control ammunition. The
prosecution case was that the accused made a cautioned statement 181 after his arrest.
The statement was made in Hokkien to a Detective Corporal but there was present an
Assistant superintendent (ASP) who could not speak Hokkien although he said he
understood what was said in Hokkien.
: It was alleged that as a result of what the appellant said the police went to a rubber
plantation where after digging at a number of places in the undergrowth near the
accused's house a Milo tin containing the ammunition was found. The question was
whether the evidence of the statement and of the discovery of the ammunition was
admissible.
Held : In this case, the accused had not made a statement in the hearing of the ASP within
the meaning of the phrase "in the hearing of" as used in Regulation 21(1)(a) of the
Essential (Security Cases) Regulations 1975 and therefore whatever was stated by the
accused to the detective corporal was not admissible.182

Krishnan v PP
Fact : The PP relied on a caution statement made by the accused which lead to the
discovery of drug. However, before such statement was made, no any caution was
administered as required under S113(1) CPC.

178
The Court went along the lines of Md Desa and Goi Ching Ang, but restricted Goi Ching Ang’s principle on fairness and held
so.
179
[1992]2 SCR 1
180
[1982] 2 MLJ 190
181
basically it refers to a statement made during an investigation.
182
other judgments:
: the actual words used by the accused in this case were not proved and therefore whatever was stated by the accused
that led to the discovery of the ammunition was inadmissible;
: there was more than a reasonable doubt as to whether the accused had knowledge of where exactly the rounds of
ammunition were and even of whether it was ammunition that he and the police party were looking for. As there was
that doubt of even knowledge the question of control or possession of the ammunition did not arise;

82 | P a g e
 Hence : Even the statement could have been admitted under s27, since the caution statement
was not in accordance with the requirement of CPC, it cannot be admitted under s27
EA.

6.7) Unimportant cases

 The principles of these cases had been illustrated above, you may skip these:
Hashim v PP183
Facts : Accused told police he could lead them to the place “where the iron pipe used in the
murder was thrown away”.
Held : The court severed the words “used in the murder” and held that these words are
inadmissible as it didn’t relate to the discovery of the knife.

PP v Krishna Rao a/l Gurumurthi184

Held : The test of whether the probative value of the evidence outweighs its prejudicial
effect should be considered, when the judges exercising their discretion referred to in
Goi Ching Ang

7) Statements Obtained Through Entrapment185

 If the police deliberately entraps a person to make any statement, can it be admissible?
 The law is not clear but consider the cases below:

R v Kuruma186
Held : The test to be applied in considering whether evidence is admissible is whether it is relevant
to the matter in issue. If it is, it is admissible and the court is not concerned with how the
evidence was obtained. The rule is that a confession can only be admitted if it is voluntary
and, therefore, one obtained by threats or promises held out by a person in authority is not
to be admitted. The court always has a discretion to disallow evidence in a criminal case if
the strict rules of admissibility would operate unfairly against the accused.

Chong Swee Tiang v PP187

Facts : Appellant was charged with assisting in the carrying on of a public lottery and was later
found guilty. Two police officers entered the appellant’s provision shop with the intention to
entrap the appellant into committing the offence by accepting their stakes in the lottery. The
appellant sold the lottery tickets to the officers and it was later used as evidence against the
appellant.
Held : (The court attempted to lay down a general rule on the basis that the evidence was
unlawfully obtained. Although the court ruled that there is judicial discretion to disallow
evidence which would operate unfairly against an accused, the court fell short of explaining
what is “unfair.”)

R v Sang188
Held : It is no part of a judge's function to exercise disciplinary powers over the police or
prosecution as respects the way in which evidence to be used at the trial is obtained by them.

183
[1956] 22 MLJ 233
184
[2000] 1 MLJ 274
185
the action of tricking someone into committing a crime in order to secure their prosecution.
186
[1955] AC 197
187
[1964] MLJ 291
188
[1980] 2 AC 402
83 | P a g e
 What the judge at the trial is concerned with is not how the evidence sought to be
adduced by the prosecution has been obtained, but how it is used by the prosecution at
the trial.
: Save with regard to admissions and confessions and generally with regard to evidence
obtained from the accused after commissions of the offence, the Judge has no discretion to
refuse to admit relevant evidence on the ground that it was obtained by improper or
unfair means.

8) Confession of Co- Accused- Section 30 of EA

Section 30(1): 189
When more than one persons are being tried jointly for the same offence, and a confession is made by one of
those accused affecting the confessor himself and other accused is proved, the court may take into
consideration the confession as against the confessor and other accused.

Explanation — “offence” in this section includes the abetment of or attempt to commit the offence.

ILLUSTRATIONS
(a) A and B are jointly tried for the murder of C. It is proved that A said: “B and I murdered C.” The
court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B and
that B said: “A and I murdered C.” This statement may not be taken into consideration by the court
against A as B is not being jointly tried.

 S31 allows confession by one co-accused to be admitted against his co-accused.

8.1) Elements Under s31)

 There are 3 elements under s31:
i. The accused persons are tried jointly for the same offence
- Such offence includes abetment and attempt

ii. Confession must be proved

- Confession that is proved = confession free of vitiating factors under ss24, 25, 26 EA
or common law

iii. Confession must affect the maker and the co-accused

- Such an “affect” must be substantial and to the same extent to the accused persons

Dr Jainad v R190

189
Section 30(1) When more persons than one are being tried jointly for the same offence, and a confession made by one of
those persons affecting himself and some other of those persons is proved, the court may take into consideration the confession
as against the other person as well as against the person who makes the confession.

Explanation— “offence” as used in this section includes the abetment of or attempt to commit the offence. ILLUSTRATIONS
(a) A and B are jointly tried for the murder of C. It is proved that A said: “B and I murdered C.” The court may consider the effect
of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B and that B said: “A and I
murdered C.”
This statement may not be taken into consideration by the court against A as B is not being jointly tried.
190
[1949] AIR All 291
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 Held : A confession under s30 must be something that affects the maker as well
as others. If the statement does not affect the maker, or only ascribes him a
part, it is not sufficient to justify his conviction for the offence for which he is
jointly being tried with others, it will not fall under s30 EA

 Once the 3 conditions are fulfilled, the court may consider the confession as against the other
persons. BUT confession of the co-accused should be used as a basis of conviction only when
there is evidence already pointing to the guilt of the accused person.

8.2) Can co-accused confession be used as conclusive or supportive evidence?

 Can the court convict a person based on such a confession by co-accused under s30? There are 2
approaches:

Bhuboni Sahu v R191

Held : A confession by a co-accused is a very weak type of confession and it is not required
to be given on oath, nor in the presence of the accused, and cannot be tested by cross-
examination.
: S30 does not say that the confession amounts to proof. So, it must be supported
by other evidence. Such a confession is only one element in the consideration of all
facts proved in the case. It can be put into the scale and weighed with the other
evidence. It cannot be made as the foundation of a conviction.

Lawrence B Masuni192 (Followed Bhuboni Sahu)

Held : Confession by co-accused is supportive in nature. Though s30(1) EA allows the
court to take the confessions of a co-accused into consideration and thereby make it
evidence, it is not a proof and can only be used in support of other evidence.
Confession per se of a co-accused cannot be made the foundation of a conviction.

Yap Chai Chai v PP193

Fact : This is an appeal against the conviction of the appellants for murder.
Held : The Court was of the view that the second appellant's confessional statement
should not have been used or considered as evidence, against the first appellant, of
common intention.
: In this case, the first appellant's involvement in the robbery was admitted by him in
his own statement from the dock. On this point, corroboration by the second appellant
was superfluous.As to the proof of common intention, their joint involvement in a
carefully planned robbery must lead irresistibly, from the fact of two of the trio being
armed with lethal weapons, as to the inference of the common intention to use those
weapons in case of need.

 However, this case did not follow Bhuboni Sahu which views confession by co-accused as
supportive evidence only. Instead, it took the view that the court can use co-accused’s conviction
to “assure other fact which the court wouldn’t accept without such confession” and convict an
accused based on such a confession. This is against the approach that the court must convict on
evidence other than confession.

191
[1949] AIR PC 257
192
[2011] COA
193
[1973] 1MLJ 219
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 Herchun Singh v PP194
Facts : This is a case of gang robbery. One Ramasamy was jointly charged for the offence
and he made a confession which told of a robbery and of his own participation in the
offence, wholly voluntary.
Held : The confession by Ramasamy is admissible under s30.195
: A confession by a co-accused under s30, if admissible, can be used to assure
other facts and fortify the court to believe in something which, without the co-
accused’s confession, the court wouldn’t accept. Therefore, when the court is not
prepared to convict an accused based on other evidence provided, the court can
sustain a conviction based on a co-accused’s confession under s30.
Chapter 7: Expert Evidence
1) Introduction
 Generally, as we have seen before this in previous topics, we can only adduce facts that are relevant to
our case. These are evidence which are perceived by our senses but there are situations in which we need
the third party opinion and this is when expert evidence is relevant.

1.1) Why Expert evidence is needed.

 This is the first case which accept expert evidence. It explained why expert evidence is permissible.

Folkes v Chadd 3 Doug. 157 (1782) 

Fact : This case concerns an action of trespass. The issue was concerning the cause of a harbor
filling up. The plaintiff produced a well known engineer, Mr Smeatonm whose opinion as to
the cause of the injury was requested. Mr Smeaton did not look at the facts of the case when
he gave his opinion in the court but his opinion was given based on what surrounded the case
(the situation of the bank, the course of tides and the situation of wind). The evidence was
objected to on the verdict of a jury because the verdict should be based entirely on facts.
Held : In the HOL, the court had accepted the evidence given by Mr Smeaton as the evidence
given by Mr Smeaton was a matter of science and the cause of the decay of the harbour was
also a matter of science which he himself is the only person who can judge such matter. The
court therefore, held that the opinion given by Mr Smeaton formed on facts was very proper
evidence. 

 In many lawsuits, an expert witness is one of an important component i.e. when 1 party needs to
establish their case. Without the assistance of an expert providing information on how and why
something went wrong, or what is the generally accepted standard of care is in their particular realm
of expertise, the court may have difficulties to make an informed decision. 

Batu Kemas industri Sdn Bhd v Kerajaan Malaysia [2015] 7 CLJ 849 
Fact : This is a very technical case. The pf operated a brick-producing factory while the 2nd Df
(Tenaga) was an electricity supplier. The entered into a contract where the Df would supply
electricity to the Pf. Before the execution of the contract, Tenaga required the Pf to construct

194
[1969] 2MLJ 209
195
detailed judgment on this point:
A confession, as defined in section 17(2) of the Evidence Ordinance, "is an admission made at any time by a person accused of
an offence, stating or suggesting the inference that he committed that offence". In this case, the statement by Ramasamy was a
confession. Taking this view of the confession, it follows that section 30 of the Evidence Ordinance properly applies in this case,
so that the confession may be taken into consideration as against other persons jointly tried for the same offence who are
affected thereby.

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 a power substation. The substation housed the Pf’s switchgear and relay systems, which
functioned as a protection system against internal faults. 
: Later, the Pf commenced action against the first Df (the gov) and Tenaga for damages of
negligence and breach of contract. 
Held : In this case, it is obvious that the court requires expert assistance because the issues are very
technical in that it requires the assistance from the experts with proper qualifications and an
in-depth and specialized knowledge & experience in the field of electrical power
installations, electrical system disturbance etc.  So, apart from the field of law, the court itself
has no other expertise. 196

Pheh boon keong v Peh Boon Wang [2007] 7 CLJ 616  197
Fact : In this case, there was a land dispute. The Pf and the Df were brothers and were registered
as joint proprietors in an undivided land together with a 2-storey shophouse building. 
Sometime in May 1978, the Df physically occupied the said property and ran his sundry shop
business on the ground floor and the Df occupied the 1st floor of the said property to the
exclusion of the Pf. The Pf averred that the Df occupied one half of the said property as a
trespasser in which the Df said it was a wrongful claim as the Pf was holding the land on trust
for him.
: The Df then requested the plaintiff to produce the original official receipts of the developer
and sought for an expert from the chemistry department Malaysia to examine & analyse the
said receipts.
Held : The court had dismissed the Df’s appeal. 

1.2) Definition of Expert Evidence (falls under the definition of “fact”)

 Expert evidence is the scientific, technical or other specialised opinion of an expert witness who is
qualified to provide an opinion in a particular area. Expert evidence may be admissible as evidence
in court proceedings where there is an issue in question requiring specialist knowledge to be
provided. (Lexie Nexis)
 The reason why expert evidence can be considered an evidence is because it falls under the definition
of “fact” in EA. (section 3, illustration (d))

Section 3: definition of fact

Facts means and includes:
(a) anything, state of things or relation of things capable of being perceived by the senses
(b) any mental condition in which any person is conscious  

Illustration (d):
A man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a
particular word in a particular sense, or is or was at a specified time conscious of a particular
sensation, is a fact.

1.3) Governing Section (s45 – 51 EA)

 The provision for expert evidence is provided under 45 – 51 of EA. These will be explained below.

2) When can an expert be called? (s45)

Section 45: Opinions of experts
196
The HC dismissed the Pf’s claim for damages and the Pf appealed to the COA. The appeal was allowed. 
197
Dr Jal -This case aims to show that if we talk about science, it is very wide and can cover almost everything and this case also
referred to cases from other jurisdictions and this is the reason why s45 of the evidence act does not have much amendment 

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(1) When the court has to form an opinion upon a point of
- foreign law,
- science, (this can include many field and is usually invoked in court)
- art,
- genuineness of handwriting or
- genuineness of finger impressions,
the opinions on that point of persons specially skilled in those things mentioned above are relevant
facts.
(2) Such persons are called experts.

ILLUSTRATIONS (refer footnote, (a) – (c)) 198

 Basically, expert evidence will be admissible when the matter involved is a matter of skills and science
where the court might not have knowledge about thus it requires the opinion of a person who is well
acquainted with such knowledge in order to enable the court to make a decision. 199

Beckwith v Sydebottom 
Fact : This a case involving the seaworthiness of a ship 
Held : Where there was a matter of skill or science to be decided, the court must be assisted by the
opinion of those expert in the particular field. As the truth of the facts stated to such experts is
not certainly known, their opinions may not go for much, but is admissible as evidence.

 There are a few rules governing an expert evidence. These will be discussed below.

2.2) Rule 1: The expert must be a qualified expert in the matter concerned
 An expert is one who is skilled in any particular art, trade or profession being possessed of peculiar
knowledge concerning the same.
 Thus, in order to be a qualified expert to give expert evidence on the matter concerned, the expert
must have the knowledge or skills in the filed of that particular field.

Dato’ Mokhtar bin Hashim v PP [1983] 2 MLJ 232 (FC) 

198

(a) The question is whether the death of A was caused by poison.The opinions of experts as to the symptoms produced by
the poison by which A is supposed to have died are relevant
(b) The question is whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of
knowing the nature of the act or that he was doing what was either wrong or contrary to law. The opinions of experts
upon the question whether symptoms exhibited by A commonly show unsoundness of mind, and whether such
unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do or of knowing
that what they do is either wrong or contrary to law, are relevant.
(c) The question is whether a certain document was written by A. Another document is produced which is proved or
admitted to have been written by A.

199
Sarkar on evidence 12th edition at page 488 
- There are cases in which the court is not in a position to form a correct judgement without help of persons who have
acquired special skill or experience on a particular object such as when the question involved is beyond the range of our
knowledge or common experience (layman’s knowledge and experience), special training and special experience (we
get the knowledge through our working experience)  
- In those cases, the help of experts are required and the expert evidence can be admitted to enable the court to come to
proper decision 
- In other words, in some cases court is required to get opinion from the experts before making decision 

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 Fact : This was an appeal against the conviction of the appellants on a charge of murder.  The
expert involved was ballistic expert
Held : The opinion of an expert possessing particular skill is admissible whenever the subject
matter of enquiry is such that the inexperienced person is unlikely to prove capable of
forming a correct judgement without the assistance of an expert. 
: To qualify to give such evidence, the witness must satisfy the court that he is indeed an
expert, that he is specially skilled in the field of the enquiry carried out by him. The
witness must have made a special study of the subject or have acquired special
experience on the subject. 

 Such skill or knowledge must be strictly a skill or experience in that particular matter and not
the general one. 

Kumaraguru v Public Prosecutor [1994] 2 CLJ 53 

Fact : This case involves the offence of drug trafficking. Then, an officer from the Chemist
Department was called to give evidence based on his 12 years of experience working with the
Chemistry Department. 
Held : Though his 12 years experience at the Chemistry Department may be sufficient for general
analysis purposes, there was no evidence to show that the officer had any experience in the
analysis of drugs including Heroin, he cannot be presumed to be an expert just because he
was a chemist for 12 years. 

 The court suggested on how can the witness be proven to be an expert witness 
Wong Chop Saow v Public Prosecutor [1965] 1 MLJ 247
Held : To prove that a witness is an expert, the expert
i. must state his qualification as an expert 
ii. state that he has given evidence as an expert in such cases and that his evidence has
been accepted by the Courts 
iii. then describe the various documents and give his reasons why in his opinion they relate
to characters lottery 
iv. The trial magistrate must then come to a finding that he either accepts or rejects the
evidence of the expert witness 

2.2) Rule 2: A expert is only needed when the matter disputed requires expert opinion
 An expert evidence is only needed when the matter to be determine is something which involve skills
and scientific knowledge. For example, the cases below shows that not all cases require the
evidence of an expert.

Syarikat Faiza Sdn Bhd v Faiz Rice Sdn Bhd [2019] 8 CLJ 564
Fact : This is a lawsuit concerns copyright and trademark infringement & unauthorised
intervention. The plaintiff sought to call an accountant to to give expert evidence in support
of the Pf’s claim for compensatory damages”
Held : The court held that the Df are liable for copyright & trademark infringement, the tort of
passing off and the tort of unlawful interference with the Pf’s business. However, the court
disallowed the Pf to call an accountant to give expert evidence in support of its claim for
compensatory damages.
: There are many cases such as Taiping Poly, which have awarded compensatory damages
based solely on evidence of "non-experts". Accordingly, the plaintiffs are not required to
adduce an accountant's expert opinion to support this assessment.
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 Dr Jal:
- But we must remember that expert evidence is only one of the evidences and not evidence that
is to be relied solely based on s 45 of the Evidence act.
- The Court is more interested to hear the expert evidence but there are also certain circumstances
where layman’s opinion might be relevant too.

2.3) Rule 3: The expert must have the knowledge or skills in the filed of the matter disputed
 An expert cannot be called to testify a factual evidence but he must be called only to give opinion.
This is because the thing testified is factual, anyone can testify it while for expert opinions, only
expert opinions hold weight. The expert cannot be called to testify something which doesn’t involve
his expertise.

Khoo Hi Chiang v PP [1994] 2 CLJ 151

Fact : In this case, the chemist was called to give evidence in court with regard to the identity of
the drugs
Held : To determine if the chemist’s evidence is necessary. It must be determine if the identity of
the drug is an evidence of fact or opinion.
- If the chemist's evidence is factual, then it follows that he is competent to give evidence
like any other witness and the law on the admissibility of such evidence would apply.
- If the chemist's evidence constitutes an opinion, then his evidence would come under the
category of expertise evidence. In that case the question of his competency to give expert
evidence arises.
: In this case, the chemist was not providing an expert opinion, but an evidence on a factual
point. Although the chemist was called to give evidence on the matter at hand, he was
providing evidence on an issue that did not involve his expertise, rendering it admissible.

P/s : So, we need to look at whether the issues involved are of fact or opinion. If it is based on
facts, then there will be no issue because anyone can talk about facts but not when it comes to
opinion because expert opinion is required. And when that happens, we are the one who need
to prove that we are the expert and once this is proved, only then we can give evidence.)

 Different between an expert and an ordinary witness – (Sarkar on Evidence 15th ed page 864)
- An expert’s evidence is not confined to what actually took place but he can give his opinion
on facts, eg medical man may give his opinion as to the cause of a person’s death or injuries or
effect of a poison, on facts stated by other witnesses at the trial, although he may not have
personally attended the patient and observed things for himself. 
- he can speak to experiments made by him behind the back of other party 
- he may cite text books and may refresh his memories 

2.4) Rule 4: Expert opinion must be support with reasoning

 When an expert is giving his opinion. Bare expression of opinion is not admissible. The expert must
explain more to support his finding.

Sim ah song v rex [1951] 1 LNS 83

Held : The duty of an expert witness is to give his expert opinion based on his knowledge and
experience in order to explain some matter which his experience should qualify him to
understand. He can express his opinion but a bare expression of his opinion has no

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 evidential value at all. It must be supported with explanation which supplies the
understanding of subject which the court lacks 

2.5) Rule 5: Expert Must Be Independent and Has Integrity

 An expert must also be independent and has integrity.
 This case listed down the role and responsibilities of the expert witness.

Batu kemas industri  Sdn Bhd v Kerajaan Malaysia [2015] 7 CLJ 849
Held : The duties and responsibilities of expert witnesses in civil cases include the following:
i. Expert evidence presented to the court should be the independent product of the
expert uninfluenced by the exigencies of litigation 
ii. An expert witness should provide independent assistance to the court by way of
objective unbiased opinion in relation to matters within his expertise 
iii. An expert witness should state the facts or assumptions upon which his conclusions
are based. He should not omit to consider material facts which could detract from his
concluded opinion 
iv. An expert witness should make it clear when a particular question of issue falls
outside his expertise 
v. If an expert’s opinion is not properly researched because he considers that insufficient
data is available, then this must be stated with an indication that the opinion is o more
than a provisional one. (this is in cases where an expert witness who has prepared a
report could not assert that the report contained the truth, the whole truth and nothing
but the truth, without some qualification, the qualification should be stated in the
report) 
vi. If, after exchange of reports, an expert witness changes his view on a material matter
having read the other side’s expert’s report on for any other reason, such change of
view should be communicated through legal rep to the other side without delay
and where appropriate to the court. 
: An expert is assisting the court in matter where the Court has no such expertise to
determine. As an independent aid to the court, it is therefore essential that an expert witness
must possess and retain a standard of absolute personal integrity. Opinions can of course be
different among experts but such differences are usually within a legitimate area of
disagreement. On occasions, and because they are acting on opposing sides, each may give
his opinion from different basic facts.

U Television Sdn Bhd v Comintel Sdn Bhd [2017] 10 CLJ 580 (FC)
Held : For a witness to be an expert, he must be truly independent and skilled in the area in which
he is giving evidence (referred to Batu Kemas Industri) 200

3) Expert Opinions Are Only Assisting The Court

 Except for purely scientific matters, expert evidence are only to assist the judge to make a decision. The
judge shouldn’t be compelled to make a decision merely base on expert evidence nor he can “let the
expert decide the matter”.

Wong Swee Chin v Public Prosecutor [1977] 1 LNS 156 

Held : When deciding a case, some matters must be assisted by experts while some matter have to be
decided by the judge alone. Therefore, in appropriate cases, experts can be called but except for
200
In accepting the plaintiff's case the learned High Court Judge relied in particular on the testimony of PW2, the plaintiff's Senior
Manager who was personally involved in the technical aspects of the project and who coordinated and oversaw the
implementation of the project and participated in the discussions to finalise the test protocol for the POC SAT with the first
defendant. Reliance was also placed on the evidence of PW3, the CEO of the plaintiff's company.
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 purely scientific matters, expert evidences can only be used to assist the judge to decided a
matter. It cannot compel the judge to make a decision purely on such expert evidence. In the
deciding a case, the Court must weight such expert evidence against other evidences and made
the decision based on the judge’s own opinion. It cannot transfer the task of deciding to the
expert.

Pheh Boon Kheong v Peh Boon Wang [2007] 7 CLJ 616 

Held : The function of the expert is not to present ready-made conclusion but rather to provide the
tribunal of fact with the necessary material on which it can reach its own conclusion (their
function is just to assist). The court will deciding a matter requiring such expert opinion, will
have to know how the expert reached such a conclusion and from such conclusion, the
judge will have to form its own judgment considering other evidences.
: Judges have their own functions and the expert have theirs. The experts must not usurp the
function of the judges. If the experts usurp the function of the judges, they cease, in law, to
assist. 

Merck Sharp & Dohme Corp v Hovid Bhd [2019] 3 CLJ 339 
Fact : (not important)201
Held : While expert evidence is of great assistance to the court, evidence Expert evidence may not
necessarily be conclusive and binding on the presiding judge. Even in the subject matter of
expert evidence, the court shall be the ultimate decider, not the expert. 

 Therefore, if the disputed matter is something which ordinary people can judge, the Court doesn’t need
an expert to express his opinion.
Wong Kim v Loh Kim Foh [2003] 8 CLJ 813
Held : The opinions of experts are of course relevant facts under s. 45(1) of the Evidence Act and
may be admissible to furnish the court with, as in this case, scientific information which is
likely to be outside the experience and knowledge of a judge.
: If however, the judge can form his own conclusion without help, then the expert
opinion is unnecessary. (Dr Jal - But, still need to look at the matter involve because if the
field of the matter in issue is beyond the knowledge of the judge it would be good to have the
expert assistance but if it is a straight cut case then expert evidence is not required.)

For example :
Ong Chan Tow v. R [1963] MLJ 1960
Held : In this case, it was held that expert opinion evidence of a psychiatrist to show how an
ordinary person who was not suffering from mental illness was likely to react to the
stresses and strains of life is not admissible as they are within ordinary human
experience.

 Qualification and experience of the expert can affect the weight of the expert evidence depending on the
scientific and complexity of the matter.
Junaidi bin Abdulah  v Public Prosecutor [1993] 3 MLJ 217 
Held : In order to determine the weight of an expert evidence, it depends on the complexity and
scientific nature of the matter sought to be proved. The more complicated the issue involved,
the more experience the expert witness is required. However, the judge will still have the
201
The appellant is a manufacturer of a pharmaceutical product known as fosamax that contained alendronate which was  a drug
used in the treatment of osteoporosis and Pegt’s disease of bone in humans. The appellants sued the respondent for infringing its
patent over the alendronate dosing regime.
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 final say in order to determine the weight to be attached to such evidence notwithstanding the
outstanding qualification or experience of the expert. 
: Thus, whether the lack of qualification or experience of the expert can render an
expert evidence inadmissible depends on the case as well. If the matter is something which
is not so complicated and not very scientific, the low qualification of the expert will only
affect its weight rather than admissibility as the judge will still be the one who decides the
case. However, if the matter is very complicated where high reliance must be put on expert
opinions, the qualification and experience of the witness must be very high and such lack or
experience or qualification will affect the opinion’s admissibility.

 Also, expert evidence may be a week evidence as human judgment is fallible and human knowledge is
limited & imperfect. The expert can also be unconsciously prejudiced when making the conclusion. So
the Court must always be cautious when relying on expert opinions.

Datuk Mokhtar Hashim v Public Prosecutor

Held :The evidence of experts is nearly always a "weak type" of evidence and to be received with
caution. This is because human judgement is fallible and human knowledge is limited and
imperfect.
: Moreover it is not uncommon that an expert witness, however impartial he may wish to be,
is likely to be unconsciously prejudiced, in favour of the side which calls him. This is the area
of caution that the court must always bear in mind in assessing the evidence of an expert.

4) Conflict of Expert Evidence

 In the court, both parties can call their own expert witness to give evidence. The witness that is called
will definitely give evidence to support each other’s case. So there will be high possibilities that there
will be inconsistency between the evidence given by the experts.
 In such a case, the opinion which is corroborated with direct evidence will be adopted, subject to the
general circumstances of the case.

Piara singh v State of Punjab 1977 AIR 2274

Fact : In this case, two medical experts gave different opinions.
Held : Where the opinion of an expert witness is conflicting with another expert opinion and both are
equally competent to form such opinion, the court should normally accept the evidence of the
expert which is corroborated by direct evidence.
.
Dr Jal :
An expert witness must give reasoning how he can come to that particular reasoning or opinion. On top
of that, since s45 talks about the relevancy,  when there is expert evidence, there must also be other
relevant evidence brought in to support the expert evidence. And if there is any conflicting view with
regards to the evidence given by the expert witness, the court will decide which view will prevail over
the other. 

Jitweer singh A/L Ojagar Singh v PP [2016] 4 MLJ 525

Held : When there is conflicting expert opinion, a judge should test it against the background of
all the other evidence available in that particular case in order to decide which expert
evidence is to be preferred.
: In particular, a judge must have regard to the direct evidence, whether in the form of oral
evidence or contemporaneous documents, and the overall circumstances material to the
issue at hand. The version more consistent with these ought to be accepted as being more
trustworthy and reliable.

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 Singapore Finance Ltd  v lim Kah Ngam (S’pore) Pte Ltd & Eugene Hl Chan Associates (Third
Party) [1984]  2 MLJ 202
Fact : In this case, there were conflicting expert opinions on how some cracks could happened on
a building.202
Held : In this case, the court evaluated the conflicting expert report by examining the scientific
grounds on which the experts relied on such as the permeability of the first stratum of the soil
in the vicinity, the behaviour of underground water in the de-watering process etc.

5) Section 51: Ground of opinion

Section 51: Grounds of opinion when relevant
Whenever the opinion of any living person is relevant, the grounds on which his opinion is based are also
relevant.

ILLUSTRATION
An expert may give an account of experiments performed by him for the purpose of forming his opinion.

 Under this section, if an expert opinion is admitted, the grounds on which his opinion is based will also
be admitted as evidence, such as the experiment the expert performed to support his ground.
 This is why opinion by an expert must be supported by other evidence as to the reason why he/she
formed such an opinion so that the court knows what are the basis of that particular evidence.

6) Section 45: Categories of Expert Evidence

Under s 45, there are 5 categories of expert evidence:
i. Foreign law
ii. Science 
iii. Arts 
iv. Handwriting 
v. finger impressions

 As mentioned earlier, there are a few categories of field on which s45 provided that an expert can give
expert opinions.
 However, these doesn’t mean that only these fields are permitted to summon an expert to give expert
evidence. The Court had been very liberal in interpreting these categories, particularly “science” as it is
wide enough to cover most of the things.
 Dr Jal:- Even though s45 does not specifically mentioned about the evidence that we are dealing with,
we need to determine whether such evidence can falls under any of the categories stated under s45
 The cases below will how the court interpreted such categories:

6.1) “foreign law”

Foreign law:
Public Prosecutor v Forster Edald Heinrich [1988] 2 MLJ 594 

202
The defendants were excavating their site enclosed within a cofferdam for 3 basement floors. They were in the course of
erecting a 13-storey building. During this period, the owners of buildings in the neighbourhood complained that cracks had
appeared in their buildings. The plaintiffs whose building suffered extensive cracks claimed damages for loss of support,
nuisance as well as negligence against the defendants. 

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 Fact : The accused who was a German tourist was arrested and charged for the possession of
cannabis resins. In this case, one of the issues was reagrding German Law. The evidence was
given by Mr Peter Rawert:
i. he is a pupil reading in the chambers of a German legal firm , Messrs Thummel Schuts
and Partners.
ii. He also holds the degree of LL.M. and a degree awarded by the COA in West Germany ,
equivalent to an english LL.B.
iii. He had earlier been attached to the office of the PP in West Germany for a period of 4
months.
iv. His work then involved representing the PP in court and the drafting of charges.
Held : Looking at all the qualifications stated above, the court is of the opinion that he is competent
to give evidence under s 45 with regards to foreign law.

Local customs:
Re Siew Guan
Fact : Chan Hong Neo alias Chan Siew Teck was admitted to be the principal wife of the deceased
who died intestate in Singapore. She petitioned for Letters of Administration. Tan Sai Im
claimed to be a lawful secondary wife of the deceased and as such be entitled to a share in his
estate. She entered a caveat against the petition of Chan Hong Neo.
Held : Since court does not have the knowledge and expertise in the custom, expert evidence is
required when it comes to the matter of Chinese custom regarding marriage and divorce. In
this case the expert was the Consul-General of China.

Law alien to the practice of a country.

Sivagami Achi v PRM Ramanathan Chettiar [1959] MLJ 221
Fact : The evidence concerned is with regards to foreign law (Hindu Law) 
Held : Expert evidence is not only limited to the law of a foreign country, but also includes the law
alien to that practised in the country. Since the court does not have knowledge on Hindu
law, expert evidence is a requirement.

6.2) “science & art”

Chandrasekaran v PP [1971] 1  MLJ 153
Fact : (not important)203
Held :The expression science or art is elastic enough to be given a liberal interpretation. 204

6.3) “Handwriting”
 Handwriting can include anything written such as signature.
 This category is subjected to section 47

Section 47: Opinion as to handwriting when relevant 

203
This was an appeal against the conviction of the appellants on charges under the Prevention of Corruption Act 1961 (Act 57).
The evidence showed that there was a conspiracy to defraud the government by means of forged vouchers. The appellants were
charged with and convicted of abetment of the offence of defrauding the government.

204
The court explained: If the Hanumanth decision was based on the premise that typewriting was not specifically mentioned
in  section 45, then equally there is no mention of handwriting or foot-print or telephony and yet the evidence of handwriting,
foot-print or telephonic experts has been held admissible. So also of ballistic or medical experts who too have not been
mentioned in  section 45.”

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 When the court has to form an opinion as to the person by whom any document was written or signed,
the opinion of any person acquainted with the handwriting of the person by whom it is supposed to
have been written or signed, that it was or was not written or signed by that person, is a relevant fact. 

Explanation—
A person is said to be acquainted with the handwriting of another person when
- he has seen that person write, or
- he has received documents purporting to be written by that person in answer to documents
written by himself or under his authority and addressed to that person, or
- in the ordinary course of business, documents purporting to be written by that person have been
habitually submitted to him.

ILLUSTRATIONS (refer footnote)205

 Dr Jal: if we looked at s 47, one doesn’t have to be an “expert” to give evidence but any person who
is acquainted with the handwriting can give evidence. But of course, there will be certain situations
where expert evidence with regards to handwriting will also be needed. 
 So, when it comes to handwriting, both expert and non-expert can give evidence where
- expert can give evidence under section 45
- for s47, both expert and non-expert can testify under this section.

 Opinion in respect of the identity of handwriting by ordinary witness as opposed to expert witness as
stated in s 45 is made relevant. 

Sembagavally Murugason v Tee Seng Hock [2019] 1 LNS 1086  

Fact : The Pf, a vendor and df, a purchaser had signed the SPA and Form 14A for the sale of land.
On 27th November 2017, the df redeemed the property from the chargee, Maybank Bhd and
on 2nd January 2018, the land was registered under the df’s name.
Then, the pf claimed that after the signing of the SPA, no payments were paid by the
defenddant and further lodged a police report, claiming that her signatures were forged on
certain documents to facilitate the transfer of the land to the df.
Held : The opinion evidence of an expert witness via s45 is not the only method of proving or
disproving a disputed signature. In giving opinion evidence on handwriting, the court may
accept the evidence of a person acquainted with the person whose handwriting is being
disputed and this is provided in s 47. 

Teng Kum Seng v Public Prosecutor [1960] 1 MLJ 225 

Fact : In this case, the appellant was convicted on 3 charges of putting persons in fear of injury in
order to commit extortion contrary to s 385 of Penal Code. In each case, it was alleged that
the appellant’s method of operation had been to write a letter (in Chinese characters) to his

205
The question is whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Kuala Lumpur, who has written letters addressed to A and received letters purporting to be written
by A.

C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising him thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though
neither B, C nor D ever saw A write.
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 intended victim demanding the money and also make telephone calls (spoke in Chinese)
referring to the letter. 
Held : What weight to be attached to the evidence of the identity of voices (the phone calls),
particularly in the case of Chinese, may be a matter of opinion. It was a matter on which the
Court is entitled to form his own opinion. As to its admissibility, the court has no reason to
quarrel with it and evidence of handwriting experts is always of very questionable area,
particularly in the case of chinese characters. 

 Dr Jal:- The weight given to those particular evidence is important to be looked at 

6.4) Examples
 This part is merely to show the example cases where experts were summoned under s45.  
- Alcim Holding Sdn bhd v Tarold Mueller [2015] 1 LNS 138 :
expert evidence is admitted in order to assist the court to come to a just and proper decision. It is
said that calling an expert is one of necessity 

- Bluefire Development Sdn Bhd v Tan Mei Li [2018] 1 LNS 1877 :

Expert summoned: chartered surveyor and registered valuer with the Board of Valuers Malaysia 

- Aldar for construction and architecture v Majlis Agam Islam Negeri Johor [2019] 1 LNS 1977
Expert summoned: a qualified lawyer from Jordan 

- Tenaga Nasional Berhad v Panareno Sdn Bhd; Vital Projects Sdn Bhd (Third Party) &
Semantra No-dig Engineering Sdn Bhd (Furth Party) [2019] 4 CLJ 239
Expert summoned: a licensed land surveyor was required to form an opinion as to the depth of the
jacking pit and receiving pit and of the pipe works 

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 Chapter 8: Character evidence (s52, 53,54 &55)
1) Introduction
 Character evidence is any testimony or document used to prove that a person acted in a particular way on
a particular occasion based on the character or disposition of that person.
 The general principle in evidence law is that a particular witness can only give evidence as to what he
can perceived by his senses and can only give evidence relevant to the facts in issue. 
 However, character evidence is a type of evidence where the evidence adduced is based on opinion or
perception against the other party. Thus, the weight of character evidence is very weak. We cannot rely
on character evidence only.
 The governing sections for character evidence are sections 52 – 55 of EA. (will be explained later)

2) Character include reputation and disposition

 The explanation in section 55 provided that the word “character” includes both reputation and
disposition.

Explanation of Section 55:

In sections 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.

 Thus, a character evidence can be formed based on these 2 evidential aspects

i. Reputation
- Reputation means what others think about a oneself.
- It is a question of public estimation 

ii. Disposition
- Disposition means the inner qualities, traits, integrity, honour, or natural tendency in a
person which can be inferred from his act (exp: based on the act of the other party - he
committed the act repeatedly) 
- Disposition relates more to the individual’s inherent personality and habitual behavior
- Disposition becomes an issue in attempt to offer similar fact evidence. For example, the fact
that an individual has been convicted of a series of similar offences could be considered

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 sufficient (although usually it is not) to prove a disposition in that person to commit such
offences,

R v Norton [1910] 2 KB 496 

Held : Disposition cannot be ascertained directly. It is only to be ascertained by opinion
formed concerning a person which must be founded either by personal experience or
the expression of opinion by others whose opinion ought to be founded based on
their personal experience. 

3) Character evidence in Civil Cases.

 Provisions for evidence characters in civil cases: Section 52 & 55

Section 52: In civil cases character to prove conduct imputed irrelevant

In civil cases, the fact that the character of any person concerned is such as to render probable or
improbable any conduct imputed to him is irrelevant, except so far as his character appears from facts
otherwise relevant.

Section 55: Character as affecting damages.

In civil cases, the fact that the character of any person is such as to affect the amount of damages
which he ought to receive is relevant.

Explanation—
In sections 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.

3.1) Previous convictions is irrelevant in civil cases to show the bad character of a person.
 Under section 52 & 55, you can rely on one’s previous convictions to show that a person is of bad
character.
 Also, under the explanation of section 55, you can only adduce general reputation or disposition of a
person to prove his character. you cannot rely on just one fact to prove one’s character.

Datuk S Nallakaruppan v Datuk Seri Anwar bin Ibrahim [2015] 4 MLJ 34 
Fact : The plaintiff sued the plaintiff for defamation for publishing an article saying that he is
bisexual and unfit to be leader of the Opposition in Malaysia. The defendant on the other
hand defendant relied on the plaintiff’s previous convictions for sodomy to show general
reputation and general disposition of the plaintiff.
Held : In civil proceedings, s 52 and s 55 are the relevant provisions for character evidence. Under
these provisions, conviction for criminal offence is not relevant as evidence of bad
character.
: Furthermore, the explanation to s 55 makes it very clear that only evidence of general
reputation and general disposition is admissible to prove bad or good character, hence
such bad or good character cannot be concluded based on 1 particular act.
- In this case, the defendant relied on the conviction of the plaintiff in previous
convictions for sodomy is in fact relying on particular acts to show general reputation
and general disposition of the plaintiff. This is not permissible under the explanation
to s 55.

4) Character evidence in Criminal Cases.

 Provisions for evidence characters in criminal cases: Section 53 & 54

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 Section 53: In criminal cases previous good character relevant.
In criminal proceedings, the fact that the person accused is of a good character is relevant.

Section 54: Previous bad character not relevant except in reply.

(1) 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.
(2) A person charged and called as a witness shall not be asked, and if asked shall not be required to
answer, any question tending to show that he
- has committed, or been convicted of or been charged with, any offence other than that
wherewith he is then charged, or
- is of bad character, unless—
(a) the proof that he has committed or been convicted of that other offence is admissible evidence
to show that he is guilty of the offence wherewith he is then charged;
(b) he
- has personally or by his advocate asked questions of the witnesses for the prosecution
with a view to establish his own good character, or
- has given evidence of his good character, or
- the nature or conduct of the defence is such as to involve imputations on the character
of the prosecutor or the witnesses for the prosecution; or
(c) he has given evidence against any other person charged with the same offence.

Explanation 1 : This section does not apply to cases in which the bad character of any person is
itself a fact in issue.
Explanation 2 : A previous conviction is relevant as evidence of bad character.

4.1) Overview of character evidence in criminal cases (you may skip this part)
 In criminal cases, the evidence of good character and bad character are relevant to the accused’s
credibility and guilt or innocence.
 Evidence of good character may be used to bolster the df’s credibility and to persuade the court that
the df is unlikely to have committed the offence charged. For example, such evidence can be
produced by an employer’s testimony on the witness’s reliability and honesty but the weight is still
very weak.
 On the other hand, evidence of bad character seeks to establish the witness’s lack of credibility or an
increased probability that the df committed an offence. However, such a bad character evidence is
only admitted only under strict conditions. (This will be explained below.)
 The reason why bad character evidence is only allowed is certain situation is because such bad
character evidence or previous convictions would affect the independent judgment of the judge
against the accused hence is not fair for the accused:

Stirland v Director of Public Prosecutor [1944] AC 315

Fact : In this case, the prosecution asked the accused if his former employer had suspected him of
forgery to porve his case. 206
Held : Such a question, if answered in affirmative, suggests that the accused had in trouble before.
Although it cannot be admitted as evidence for the present charge, it affect the independence

The accused was convicted for forgery. Through cross-examination of prosecution witnesses, he put his good
206

character in issue. He then gave evidence. In cross-examination he was asked if he quit his employment after being
questioned about a signature and a forgery. That was denied
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 of the judge as it suggest that the accused is of bad character. Thus, such a question should
not be asked and if asked, should not be allowed. 207

4.2) Relevancy of character evidence in Criminal Cases.

 Effect of Sections 53 & 54 EA:
- As mentioned above, the relevancy of character evidence for CRIMIAL cases is provided under
sections 53 & 54.
- The effect of these 2 sections generally provided that bad character of an accused is irrelevant
(section 54) but his good character is relevant in a criminal proceeding (section 53).
 Thus, just because a person has a bad character, it doesn’t mean any evidence against him should be
blindly admitted as character evidence is a weak evidence and the prosecution still has to prove his
case beyond reasonable doubt. However, if the accused can display good character, this is relevant
when the Court determine if there is a reasonable doubt in the prosecution’s case.

Syed Ismail v PP [1967] 2 MLJ 123

Fact : The accused was a District Officer and was charged together with one penghulu for
offences contrary to section 4(c) of the Prevention of Corruption Act, 1961. During the
appeal, the accused argued that the Judges should not have placed weight on the evidence of
the Penghulu because the accused’s character was better than the Penghulu's.
Held : Evidence of good character is not a positive proof of excellent character and in that case the
accused had not actually produced positive proof of his good character. The court can take
into account with regards to the character evidence but there is a need to take into account
other evidence as well because character evidence possessed a weak weightage.
: In all criminal cases, the accused person cannot be convicted unless the court is satisfied
beyond reasonable doubt that he is guilty. The person cannot be convicted solely because of
the character of the accused or the witnesses who gave such evidence. Thus, just because a
person is of bad character, any evidence against the accused shall be blindly relied on to
convict the accused.
: However, when the accused can produce evidence of good behaviour and the court thinks
that the accused may not commit such a crime based on his good character, the court must
take his good character into account when determining whether there is a reasonable doubt in
the prosecution’s good behaviour.

 Even so, although good character is relevant in criminal cases, it has very low weight.
Thankgod Chukwujindu Enenmuo v Public Prosecutor [2018] MLJU 688
Fact : The appellant was charged for the offence of drug trafficking under s 39B (1) DDA. At the
end of the trial, the High Court Judge found the appellant guilty, convicted him on the charge
and sentenced him to death. Being dissatisfied with the impugned decision, the appellant
appealed to this Court.
Held : Under section 53 of the  Evidence Act,208 in criminal proceedings, the fact that the person
accused is of a good character is relevant. Thus, the innocence or criminality of an accused
can easily be judged by looking at his character and the accused must be allowed to prove his
innocence with the help of his good character.

207
The Lords concluded that the cross-examination was irrelevant and not fair. Nevertheless there was no miscarriage of justice
and the appeal was dismissed. (it can be seen that where an accused introduces evidence of his own good character, the
prosecution can rebut that evidence subject to the discretion of the trial judge to disallow or confine such rebuttal.)

208
“No doubt good character is a good defence, but it is very weak evidence; it cannot outweigh the positive evidence in regard
to the guilt of a person”
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 : However, although good character is a good defence, it is a very weak evidence, it
cannot outweigh the positive evidence of his guilt. Even though his good character is a
relevant evidence, the weight is very low.

4.3) Exception where bad character of an accused is relevant - Previous bad character not relevant
except in reply
 As mentioned, under section 54, previous convictions of an accused is irrelevant (not admissible).
Section 54 serves as a protection to the accused person because this provision does not permit the
admissibility of bad character but it can be admissible if the accused has good character (under
section 53)
 However, such a general rule doesn’t apply when the situation falls under section 54(2)(a)-(c). (this
can be supported with Explanation 2 of s54 which provided that a previous conviction is relevant as
evidence of bad character)
 In short, these provisions provided that previous bad character of an accused is not relevant
except in reply:

Exception 1: section 54(2)(a)

The proof that the accused has committed or been convicted of other offence(s) is admissible
evidence to show that he is guilty of the offence which he was then charged.
- in simpler terms, this is  referring to similar fact evidence, if such previous character can fall
under similar fact evidence, then bad character can be brought in. (refer to Wong Foh Hin v PP
in heading 4.4)

Exception 2: section 54(2)(b)

When the accused
i. has personally or by his advocate, asked questions of the prosecution’s witnesses to establish
his own good character, or

ii. has given evidence of his good character, or

R v Butterwasser
Held : When the accused himself puts his character in issue, evidence in rebuttal can
be given by the prosecution to show that he is in fact of bad character. However,
when he mkerely attack the the character of the prosecution’s witness, he is not
putting his own charcter in issue but put those witnesses’ character in issue.
Therefore, in this situaiton. he can only be crossed-examine but no bad character
evidence can be admissible against the accused.

Shamnugam v Public Prosecutor [1963] 1 MLJ 125 

Held :The fact that an accused person has a bad character is irrelevant unless
evidence has been given that he has a good character.
: When an accused has not put his character in issue, but has merely attacked the
character of the prosecutor in cross examination, evidence cannot be called by the
prosecution to prove that the accused is a man of bad character.209

PP v  Choo Chuan Wong

209
The court explained: “In this case, during the cross-examination of the appellant questions were put to him designed to
establish the fact that he had been summoned for assault on a previous occasion and that he was a man who assaulted women
in public places. These questions were directed against the character of the appellant and were presumably allowed because
counsel appearing on behalf of the appellant had cross-examined some of the prosecution witnesses as to their characters”
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 Fact : The accused was charged for an offence of attempted robbery. The prosecution
asked the accused if he was a gangster on the basis that an affirmative answer would
be evidence of bad character and it is inadmissible by virtue of s 54. 
Held : The Court disallowed the question as that the question, if answered in the
affirmative, would be evidence of bad character and such evidence would be
inadmissible as the defence had not adduced evidence of good character of the
accused nor had the defence impugned the character of any prosecution witness.

iii. the nature or conduct of the defence is such as to involve imputations on the character of the
prosecutor or the prosecution’s witnesses

Exception 3: section 54(2)(c)

When the accused has given evidence against any other person charged with the same offence 
- Example : the co-accused says “rakan saya ini telah paksa saya bersama-sama pergi ke tempat
tu dan melakukan kesalahan itu”
- In such a situation, the evidence given by the person support the prosecution’s case or the
evidence will weaken the defence of the accused. Thus, such statement is admissible under (c).

Murdoch v Taylor
Held : The phrase “evidence against any other person charged with the same offence ”
means evidence which supports the prosecution's case against the co-accused in a
material respect or which undermines the defence of the co-accused 

4.4) Bad character can be admissible under other headings of evidence

 Although a previous incident may not be admissible as character evidence, it may nonetheless be
admitted under other heading of evidence, such as a similar fact evidence. A “bad incident” of a
person may not be accepted to show his bad character but it can be a similar fact evidence:

Wong Foh Hin v PP [1964]  MLJ 149 

Fact : The accused was convicted of the murder of his daughter. The evidence which the trial
court relied on was an incident three months before the daughter’s death where the wife had
complained to the village headman that the appellant had ‘interfered’ with his daughter and
that the matter had been disposed of by the village headman stating that if this occurred again
the matter would be reported to the police.
Issue : Whether the evidence of the above incident and also evidence of a similar incident just
before the daughter’s death were properly admitted.
Held : the evidence of the incidents was admissible. It was not rendered inadmissible merely
because it tended to show bad character or the commission of another offence;
: in this case, as there was only circumstantial evidence of the murder, strong and
convincing evidence of motive would probably have high evidential value. The trial judge
was therefore correct in not exercising his discretion in favour of excluding evidence of the
incidents on the ground that its prejudicial effect would be out of proportion to its evidential
value.
: Evidence which is otherwise relevant cannot become irrelevant merely because, besides
being relevant on the point on which it is tendered, it incidentally shows the accused to be of
bad character. If the evidence of motive incidentally discloses the bad character of the
accused, the evidence does not, for that reason, become irrelevant.

Lim Kong v Public Prosecutor [1962] 1 LNS 89  

Held : Evidence of financial embarrassment is NOT necessarily evidence of bad character within
the meaning of s 54. Furthermore, the evidence of financial instability supported equally the
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 case for the defence as evidence of motive for the prosecution. Where a crime is financial, as
in this case, evidence that the accused was being pressed to find money to satisfy his debts is
relevant as tending to show a possible motive.

5) Unimportant cases
These are the cases which are not so important but were in the lecture slides:
Girdari Lal v PP [1946]MLJ 87
Fact : The appellant was convicted under S 392 of the Penal Code for the offence of robbing
money from one Chan Hock Seng. At the trial,a police photograph of one of the accused was
put in evidence. It bore a police number and was a combined profile and full face
photograph. 
Held : that the production of the photograph would be apt to prejudice a jury and to embarrass a
judge. It was obviously a police record and putting it in evidence was tantamount to saying
that the man was of bad character. On the facts of the case, the evidence pro and con of
robbery was fairly evenly balanced and in the circumstances it would be unsafe to convict.
 Dr Jal:-  The reason why bad character evidence is not allowed is because in a way it will affect our
perception towards the accused which will then cause unfairness to him 

Mohd Soffian Mohd Yusof v Pendakwa Raya [2015] MLJU 235

Fact : The 1st appellant in this case was an Inspector from the Special Unit of Bukit Aman. He
was charged under s 326 of Penal Code . The 2nd appellant was the father of the 1st appellant
and he was charged with the offence under s 203 of the Penal Code for providing false
information about the incident that took place.
Held : The court held that the conviction of the appellants was not safe and the conviction was set
aside. If the evidence on the accused’s good character was not brought in, then the evidences
about his bad character cannot be brought in. But, this principle of law is not applicable to a
person who is called as a witness. The provision (s54) is only applicable to the accused
person and not any other witnesses who were not charged. 

Maxwell v Public Prosecutor [1935] AC 309210

The provision discussed in this case is in pari materia with exception s54(2)(a) of our Evidence Act
1950. It is stated that this provision deals with evidence falling within the rule that where issues of
intention or design are involved in the charge or defence, the prisoner may be asked questions
relevant to these matters, seen though he has himself raised no question of his good character 

R v Bishop [1939] QB 207211

 This case involves homosexual tendencies of the prosecution witness was exposed
 The appellant in this case had appealed on the ground that the jury were wrongly allowed to hear
evidence from the appellant in cross-examination of his previous convictions. This is an example
of case which deals with s 54(2)(b) even though it is a common law case, but the provision dealt
with in this case is in pari materia with s1(f) of Criminal and Police Evidence Act in UK 
 This  evidence that exposed the prosecution witness of having a relationship with the defendant is
treated as imputation on the character of the prosecution witness. 

210
Held :”Exception (i) deals with the former of the two main classes of evidence referred to above, that is, evidence falling
within the rule that where issues of intention or design are involved in the charge or defence, the prisoner may be asked
questions relevant to these matters, even though he has himself raised no question of his good character.”

211
In this case, the court dismissed the appeal as the character of a witness was impugned by an allegation of homosexual
conduct made against him
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  Dr Jal:- So, when this happens there is no longer a protection and bad character evidence can be
brought in 

Murdoch v Taylor [1965] AC 574

 The provision discussed in this case s 1(f)(iii) of the Criminal Evidence Act 1898 is in pari
materia with our s 54(2)(c) 
 It refers to evidence which supports the prosecution’s case against the co-accused in a material
respect or which undermines the defence of the co-accused (in other words, the blame was put on
the co-accused which then will strengthen the case for the prosecution or weaken the case for the
defence). Then there will be no longer a shield and bad character of the accused person can be
brought in 

Chapter 9: Documentary Evidence

 
1) Definition of Documentary Evidence
 There is no definition of “documentary evidence” in the Evidence Act but its definition can be derived
from the definition of “document” and “evidence”.

1.1) Definition of Document

 S.3 has provided a wide scope to the definition of documents to even include the latest development
in the field of evidence. The definition of document as provided in the Evidence Act 1950 includes
any information or content in any substance, which now includes documents that can be easily
tampered with.
 Definition of documents as provided under s.3

Section 3: Interpretation

“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),
 

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 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;

ILLUSTRATIONS
 A writing is a document.
 Words printed, lithographed or photographed are documents.
 A map, plan, graph or sketch is a document.
 An inscription on wood, metal, stone or any other substance, material or thing is a document.
 A drawing, painting, picture or caricature is a document.
 A photograph or a negative is a document.
 A tape recording of a telephonic communication, including a recording of such
communication transmitted over distance, is a document.
 A photographic or other visual recording, including a recording of a photographic or other
visual transmission over a distance, is a document.
 A matter recorded, stored, processed, retrieved or produced by a computer is a document;
 
1.2) Definition of evidence
 Definition of "evidence" as provided in s.3:
Section 3:
"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
1.3) Example of documentary evidence admitted as evidence by court  
i. Tape recording : Mohd Ali bin Jaafar v PP [1998] 4 MLJ 210
ii. Facsimile Letter : Tempil Perkakas Sdn Bhd v Foo Sex Hong (t/a Agrodrive
Engineering) [1996] 5 MLJ 542
iii. CCTV, snapshot photos : Ahmad Najib Aris [2009] 2 MLJ 613
iv. Computer Generated Document : Gnanasegaran
v. Computer-generated documents : (parking ticket) Ahmad Najib Aris v PP [2009] 2 CLJ 800
vi. Bus ticket : Hanafi Mat Hassan v PP [2006] 4 MLJ 613
vii. ATM Slips, account statement
viii. Emails
ix. Document of telecommunications : Prabakaran a/l Periasamy v pp [2013] 1 MLJ 304 –
Pathmanabhan a/l Nalliannen & v pp [2013] 5 MLJ 867
x. Itemised bills
xi. Whatsapp : Bergamo Development (M) Sdn Bhd v Eck Development Sdn
Bhd [2018] MLJU 555
iv. Faxed documents :
PP v Jawan Empaling [1996] 2 CLJ 328
Held : A copy of a document in whatever form in most cases has been accepted and widely
used as documentary evidence in court in cases where the original is not readily
available.
: An illustration to s 3 of the Evidence Act 1950, in addition, states that a
photographic or other visual recording including a recording of a photographic or
other visual transmission over a distance, is a document.

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 : In the light of these, a fax copy of the petition of appeal here is a document
within the meaning of s 3 of the Evidence Act too

2) Best evidence rule

 Documentary evidence, like any other evidences, is subjected to the best evidence rule.
 Under the best evidence rule, there are 2 general requirements:
i. When the content of the document is sought to be proven, the maker of the documents must be
called to testify the contents (this is to avoid hearsay objection)
ii. The original documents must be tendered
 This rule will be explained below.

3) Requirement 1: Maker of the document must be called, if content is sought to be proven

● Under the Best Evidence Rule, the maker of the document must be called if the parties seek to prove the
content therein. (if they merely want to prove the existence of a document, maker is not needed)
● Otherwise, oral evidence made based on the contents of such document will be deemed as hearsay and
inadmissible by virtue of s.60 EA, 212 unless if the case falls under the exceptions to this rule (these
sections were covered in previous chapters):
- section 32213
- section 33214 and
- section 73A EA215
 When a document is sought to be admitted as evidence, the maker must be called or the document will
be regarded as hearsay.

Alliedbank v Yau Jiok Hua [1998] 6 MLJ 1

Held : Where a document is sought to be proved in order to establish the truth of the facts
contained in it, the maker has to be called. Non-compliance with this rule will result in the
contents of the documents being hearsay. (The court went to further differentiate between
s.32 and s.73A.216)

Kesang Leasing Sdn Bhd v Dato’ Hj Mat No. 2 [2009] 1 LNS 74

Fact : The defendant was sued to bankruptcy but he was unable to attend the court. The
defendant’s counsel (who appeared as amicus curia217) tendered a medical certificate as
evidence to justify the defendant’s absence.
Held : The medical certificate was held unacceptable as documentary evidence as they lacked
credibility due to the reason below:
- the medical certificate was not clear as to the nature of the defendant's alleged illness
and
- the doctor who issued it was not called upon to explain why the defendant was
unfit to attend court.
- the medical certificate itself was ambiguous and did not say whether the defendant was
unfit to attend court.
- the medical certificate was not tendered through the Director General of Insolvency
who was the most appropriate person to hand over the medical certificate but through
an amicus curiae which is another questionable factor.

212
Section 60: Oral evidence must be direct
213
Section 32: Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant
214
Section 33: Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated
215
Section 73A: Admissibility of documentary evidence in civil cases (applies to civil cases only)
216
Refer to notes under the topic Hearsay.
217
not a party, offers information that bears on the case, not solicited by any party
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 Sony Electronics (M) Sdn Bhd v Direct Interest Sdn Bhd [2007] 1 CLJ 611
Fact : In this case, the document concerned is an audited statements of account. The appellant's
counsel argued that the audited statements of account are inadmissible due to the respondent's
failure to comply with s64 EA requiring that when documentary evidence is tendered,
primary evidence of the document ie the production of the documents itself is essential.
Held : The mere fact that the summary of the particulars was made could never be taken as proving
that the contents were correct. It has to be proved by calling the maker to explain the facts
and the basis of the calculation of the amount claimed. Moreover, the record book on
which the maker based her summary must be in evidence.

KBB Properties Sdn Bhd v Yong Chon Chiang [2006] 6 CLJ 421
Fact : In this case, the plaintiff sought to relied on an invoice some receipts to claim for re-
instatement costs. The defendant disputed the documents and put it in the "Non-Agreed
Bundle of Documents".
Held : Since the plaintiff failed to formally prove the documents, P’s claim on reinstatement costs
are disallowed on the ground that there was no admissible evidence to support it. They must
be proved formally.

4) Requirement 2: The original (primary) document must be produced

● They are 2 types of documents218 in evidence law: primary and secondary documents

Lucas v Williams & Sons [1892] 2 QB 113:

Held :
Primary evidence = evidence which the law requires to be given first
Secondary evidence = 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.

 Section 61 of the Evidence Act provided that the contents of documents may be proved either by
primary or by secondary evidence. 219
- However, the “may” in section 61 must be read together with section 64 which says that
documents must be proved by primary evidence except “in the cases hereinafter mentioned”
- the “cases hereafter mentioned” refers to s.65(1) EA, where secondary evidence can be produced.
220

Section 61: Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence

Section 64: Proof of documents by primary evidence

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

218
The question of admissibility of doc is a question of law. Like other evidences, a party seeking to produce a document needs
to show that it is relevant and thus admissible in law. The document must first be relevant to prove the facts in issue or any
relevant facts.

219
Refer to s.62 (for primary evidence) and s.63 (for secondary evidence).
220
Secondary evidence of a document is allowed to be tendered if a party can prove that the document falls under one of the
circumstances mentioned in s.65.
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  Thus, generally, when tendering a documentary evidence, only the primary evidence of the document
(ie the original document itself) is can be accepted.221
- To tender a secondary documentary evidence in substitution of the primary evidence, this is only
allowed when the situation falls under s.65(1) EA (which serve as the exceptions to the rule that
only primary evidences should be tendered). 222

PP v Datuk Hj Sahar Arpan [1999] 3 CLJ 427

Held : Under s.61 of the EA, the contents of document may be proved either by primary or
secondary evidence.
: When documents are to be tendered, these relevant documents must be primary evidence,
unless they come within the legislated exceptions which are sufficiently provided for under
s.65, with the burden resting on the party that wishes to introduce the secondary evidence, ie,
the existence of those special reasons.223

Darahman bin Ibrahim v Majlis Kerajaan Negeri Perlis [2008] 4 MLJ 309
Held : S.64 of the EA 1950 is certainly based on the best evidence rule in which documents must
be proved by primary evidence. S.62 of the EA 1950 enacts that primary evidence means the
document itself produced for the inspection of the court while s.65 provides the exception to
this rule.

KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 3 CLJ 1

Fact : The respondent brought an action against the appellant for the recovery of a sum of
RM1,581,870.90, which the respondent claimed was the sum due to him for works done
under certain agreements.
: The respondent proved his claim based on a summary account prepared by Ah Lian, a clerk
(who was never called to the court to testify). The summary account was taken from the
respondent’s own record book and the record book was never produced by the respondent in
court.
Held : The summary of accounts cannot be relied on as:
- it was prepared by Ah Lian, who was not called as a witness.
- the record book of the respondent, which was the source document upon which the
summary account was prepared, was never produced and
- the respondent had not been called to explain the facts and the basis of the calculation
of the amount claimed.
: When a documentary evidence is tendered, primary evidence of the said document
must be adduced except in the cases under s.65 of the EA 1950.224
: The summary of accounts does not prove the facts and particulars stated therein. The mere
fact that the summary of the particulars was made could never be taken as proving that the
contents were correct and it has to be proved by calling the maker to explain the facts and the
basis of the calculation.
: In this case, since the respondents claimed that the record book upon which the summary
accounts were made was lost, the burden of proving so lied on the respondent. The court
221
Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360.
222
Likewise, to tender a secondary evidence, it must also be shown that the original or primary document is in itself relevant and
admissible.
223
s.104 of the EA; Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1990] 1 CLJ 133 (refd) [1989] 3 MLJ 360
224
Sarkar on Evidence (14th Ed, 1993) at p 961:
When a given matter has been expressed in writing, the primary evidence of it is the writing itself and subject to provisions in
s.65, the writing, unless admitted by the other side, must be produced if it is desired to prove the matter expressed in it.
109 | P a g e
 found that the respondent had not satisfied the requirement so as to bring the summary
accounts within s.65(1)(c) of EA 1950.225

Ktl Sdn bhd v Leong Oow Lai [2014] MLJU 1405

Held : O.34 r.2 ROC provides that there are three Parts to the bundle of document (Part A, Part B, and
Part C). If a document is put under Part C Documents, both the authenticity and contents of the
documents to be adduced and used at trial are disputed.
: Thus, if the document is classified as Part C Document, the party adducing the documents must
fulfil 2 conditions of admissibility of that documents:
i. In accordance with the rule against documentary hearsay, the maker of the Part C
Document has to be called as a witness; and
ii. “primary evidence” of the Part C Documents as understood in s.62 EA 1950 must be
adduced in court as required by s.64 EA 1950. If “primary evidence” of a Part C
Document is not available, s.64 EA provides that “secondary evidence” (within the
meaning of s.63 EA 1950) of the Part C Document can only be admitted as evidence
if there is proof of the application of any one of the paragraphs in s.65.

4.1) Primary Evidence

 As mentioned, under s64, a document must be proved with the primary evidence in line with the
best evidence rule, unless the situation falls under section 65.
 What is a “primary evidence”? It is defined under section 62.

Section 62 of EA 1950: Primary Evidence

Primary evidence means the document itself produced for the inspection of the court.

Explanation 1
- Where a document is executed in several parts, each part is primary evidence of the
document.
- Where a document is executed in counterpart,226 each counterpart being executed by one or
some of the parties only, each counterpart is primary evidence as against the parties
executing it

Explanation 2
Where a number of documents are all made by one uniform process, as in the case of printing,
lithography or photography, each is primary evidence of the contents of the rest; but where they
are all copies of a common original they are not primary evidence of the contents of the original.

ILLUSTRATION
A person is shown to have been in possession of a number of placards, all printed at one time
from one original. Any one of the placards is primary evidence of the contents of any other,
but no one of them is primary evidence of the contents of the original.

Explanation 3
A document produced by a computer is primary evidence.

i. Explanation 1:
225
The exception that allows secondary evidence to be brought in lieu of the primary evidence.
226
Executed in counterparts means that each party to the contract will sign separate but identical copies of the same document.
The signed copies will together form a single binding agreement. Simple contracts and deeds are often executed in counterparts.
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 This explanation is divided into two parts
First part:
- This part concerns documents which are prepared in more than one copy, and all parties
have executed all copies.
- Eg: four parties to a contract signed four identical copies of the contract and all of them
retained one copy each. All the copies are primary evidence. [Forbes v Samuel] 227

Second part:
- this part concerns documents which are executed in counterpart where the documents
may be prepared in duplicate or triplicate but is not executed by all parties to it.
- If the party executing the document delivered the document to the other party, the
document in the possession of the other party becomes primary evidence against the party
executing the document.
- Eg: A and B signed a contract. A signed the contract in duplicate and delivered it to B.
The copy which B retains now is primary evidence against A. If A retains the copy of the
contract which is not executed by B, then the contract in A’s possession is secondary
evidence as against B.228

ii. Explanation 2:
● The illustration to s.62 describes what explanation 2 means.
● If the documents are the product of a uniform process, they are only considered as primary
evidence of the reproductions, not of the original documents from which they originate.
● Carbon copy also fit the meaning of primary evidence under Explanation 2. In order for
carbon copy to qualify as primary evidence, the signature must have also been produced in
the same uniform process.

Ooi Thean Chuan v Banque Nationale De Paris [1992] 2 CLJ 1225

Held : There can be more than one original copies of a document. Besides the original
copy, the signed carbon copies may also be deemed original.
: This is because a carbon copy of the original contains everything that was in the
original including the signature. 229
- Both the original can carbon copy of the document are produced by the same
hand using the same pen and the writing are produced at the same time.
- the writing on the original was left by the ink from the pen but for carbon
copy, it was left by the carbon from the carbon paper.

PP v Renjasamy [1974] 1 MLJ 223

Fact : In this case, the documents concerned are carbon copies of some analysis cash
books.
Held : Carbon copies of the analysis cash books are not secondary evidence under section
63(b) of the Evidence Act as they are documents made by one and the same
uniform process as the top copies and therefore they are admissible as primary
evidence under section 62.
227
Forbes v Samuel [1913] 3 KB 706: The partnership deed executed by all of the partners on which each of them is in possession
is primary evidence.
228
S.63(d) EA: Secondary evidence includes counterparts of documents as against the parties who did not execute them
229
The court referred to Durston v Mercuri for the explanation of why carbon copies are deemed as original.
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 iii. Explanation 3
 This part refers to computer generated documents. Basically, all computer-generated
documents are considered original. (Refer to Chapter 3)

5) Secondary Evidence
 As mentioned, s65 provides for the exception to beast evidence rule where secondary evidence is
allowed.
 S.63 EA 1950 defines what is “Secondary Evidence”. (though the word ‘includes” in section 63 suggests
that the types of secondary evidence listed are not exhaustive.)

Section 63: Secondary Evidence

Secondary evidence includes—
(a) certified copies given under the provisions hereinafter contained;
(b) copies made from the original by mechanical processes, which in themselves ensure the
accuracy of the copy, and copies compared with such copies;
(c) copies made from or compared with the original;
(d) counterparts of documents as against the parties who did not execute them;
(e) oral accounts of the contents of a document given by some person who has himself seen or
heard it or perceived it by whatever means.

Illustration
(a) A photograph of an original is secondary evidence of its contents, though the two have not been
compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of
the contents of the letter if it is shown that the copy made by the copying machine was made
from the original.
(c) A copy transcribed from a copy but afterwards compared with the original is secondary
evidence, but the copy not so compared is not secondary evidence of the original, although the
copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original nor an oral account of a
photograph or machine copy of the original is secondary evidence of the original.

Dato’ Mohd Anuar Embong v Bank Bumiputra (M) Bhd [1997] 2 CLJ 475
Fact : The appellants needed to prove the amount of the projected net profit that they had lost. The
appellant replied on the report to prove the amount of their loss, but unfortunately, they could
not produce it as they had lost their copy in a flood.
: In the absence of the report, the maker was also not called to testified or identified. Instead,
PW8 was summoned in an attempt to lead secondary evidence of the contents of the report,
by saying the expected income to be derived from the project in the court.
Held : S.63(e) states that secondary evidence includes oral accounts of the contents of a document
given by some person who has himself seen it.
: For secondary evidence to be made admissible under section 63(e), there must be some
ground work to establish that the witness giving such evidence had not only seen the original
document but had also read it (Meaning that the witness must not only know of the existence,
but also the content of the document).

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 : In this case, PW8 had never seen or read the report and hence his evidence could not be
admitted.

PP v Khiew Bu Poh [2019] 4 CLJ 660

Fact : This case involved a murder case. The PP produced 2 evidences to prove this murder:
- Some DVD disc. The DVD is a CCTV footage copied from the recorder to a pen drive,
THEN copied to the DVD disc.
- A report testifying that the CCTV was in good condition, which contains the PICTURE
obtained from the DVD disc. This report was produced by an officer from “unit siasatan
audio dan video di makmal forensik PDRM” (SP14).
Held : In this case, both the evidences were secondary evidence:
▪ Contents in the DVD disc was secondary because it was copied from the recording device
found at the crime scene.
▪ The picture from the reports SP14 were secondary evidence as they were printed from the
DVD disc.
: Only the original content of the recording device are considered as primary evidence as per s.62
of EA 1950 read together with the explanations provided in the section.
: Given that the two evidence were secondary, they can only be admitted if they fulfilled s.65 EA
1950. In this case, the court only allowed the documents to be marked as exhibit for limited
purpose which was to show that the documents were produced by SP14, but not for the purpose
of proving that the accused has committed such crime.

5.1) Situations where secondary evidence can be adduced.

● As mentioned, s.64 of EA 1950 provides that only the primary evidence can be adduced except in
cases mentioned in s.65
● S.65(1) of EA 1950 deals with the instances when secondary evidence may given of the existence,
condition or contents of a document.
● S.65(2) of EA 1950 deals with the admissibility of secondary evidence adduced for each instances in
subsection (1).

Section 65: Cases in which secondary evidence relating to documents may be given
(1) Secondary evidence may be given in the following cases to prove the existence, condition or
contents of a document admissible in evidence:
(a) when the original is shown or appears to be in the possession or power—
(i) of the person against whom the document is sought to be proved;
(ii) of any person out of reach of or not subject to the process of the court; or
(iii) of any person legally bound to produce it, and when after the notice mentioned in
section 66 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted
in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its
contents cannot for any other reason not arising from his own default or neglect produce
it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;

Section 65(2)

113 | P a g e
 (a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the
contents of the document is admissible.
(b) In the case referred to in paragraph (1)(b) the written admission is admissible.

(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act or by any
other law in force for the time being in Malaysia to be given in evidence;

Section 65(2)(e)
In the case referred to in paragraph (1)(e) or (f), a certified copy of the document but no
other kind of secondary evidence is admissible.

(g) when the originals consist of numerous accounts or other documents which cannot
conveniently be examined in court, and the fact to be proved is the general result of the
whole collection.

Section 65(2)(g)
In the case referred to in paragraph (1)(g) evidence may be given as to the general result
of the documents by any person who has examined them and who is skilled in the
examination of such documents.

 If a person wishes to adduce secondary evidence, he must prove that those situations mentioned in
s65 has been satisfied.
Popular Industries Limited v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360
Held : The exceptions to the rule requiring that when documentary evidence is tendered, primary
evidence of the document is essential is governed under s.65(1) EA 1950.
: Clearly, the burden of proving the existence of any circumstances bringing the case within
any of these exception lies upon the party seeking to adduce secondary evidence of the
contents of the document (see s.104 illustration (b) of EA 1950)

 Some of the subsections(c) & (e) will be discussed below in heading 6 & 7.

6) Section 65(1)(c): when the original is destroyed, lost or cannot be produced in a reasonable time
 To invoke this section, it must be shown that the document has really been
- destroyed,
- lost or
- cannot be produced in a reasonable time NOT due to the fault or negligence of the person who
sought to produce it

Wong Choon Mei v Dr Kuldeep Singh [1985] 2 MLJ 373

Fact : This case involved a medical negligence suit in which the appellant sued the respondent for
negligence in failing to properly examine or diagnose the extent of the deceased’s injuries or
prescribe the proper and appropriate treatment.
: There were 4 x-rays taken of the deceased but the respondent failed to produce any of the x-
rays and he stated that they were misplaced by the Record Office of the General Hospital.
Hence, the respondent himself gave oral testimony as secondary evidence in lieu of the
primary evidence.

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 Held230 : Before secondary evidence could be received, the condition laid down in s.65(1)(c), ie
that the original has been destroyed or lost, must be satisfactorily proved by admissible
evidence (like calling in the officer in charge of the Record Office).
: It is highly undesirable to allow the respondent who is an interested party to give hearsay
evidence about the loss of the x-rays.
: Unless s.65(1)(c) is enforced strictly, secondary evidence may be able to come in by the
back door and an opportunity for a cover-up is provided. Such a practise would be most
unfortunate and should not happen.
: By insisting on a strict compliance with the law of evidence, only admissible evidence
should be allowed in a court of law and that secondary evidence may be admitted if the
conditions set out in s.65 has been satisfied.

Ganad Corporation Bhd v Flobright Trading Sdn Bhd [2000] 1 LNS 117
Fact : The plaintiff carried on the business of letting out advertising space on its outdoor
billboards. The defendants were responsible in manufacturing and erecting the billboards.
The unipole (place where the advertisement sets) collapsed and hence the plaintiff sued the
defendants. One of the evidences adduced was a photocopy of the footing details of the
collapsed unipole and the court had to consider the admissibility of the drawing (P3).
Held : In order for s.65(1)(c) EA 1950 to apply, the plaintiff must show to the satisfaction of the
court that its inability to produce the original/primary evidence did not arise from his own
fault or neglect.
: Although it is the plaintiff’s case that both the plaintiff and DBKL had lost the original
drawings, no witnesses testified that P3 was indeed a photostat copy of the original.
Furthermore, P3 also did not even state the location where the unipole was to have been sited
(DBKL would not have issued license if no location is written on P3).
: In addition, the mere fact that the plaintiff’s witnesses were merely content with saying that
they have either lost the originals or had misplaced them, and had given no further
explanation means that they have not satisfied the court that the non-production of the
original was not due to their default or neglect. Hence, the evidence could not have been
admissible under s.65.

Kerajaan Malaysia v Eng Sim Leong @ Ng Leong Sing [2010] 1 LNS 145
Held : S.65(1)(c) requires satisfactory account is given for its non-production. In this case, there is
no evidence adduced to say that the letter is lost or destroyed. Furthermore, there was no real
efforts made by the defendants as to retrieve the letter.
: Considering that this letter was the crux of his whole case against the plaintiff, it seems
quite illogical that the defendant would adopt a nonchalant and cavalier attitude towards
obtaining it. Hence, the court held that the defendant failed to satisfactorily account for the
non-production of the original letter and hence the copy of the letter was inadmissible.

7) Section 65(1)(e): Public Documents

● S.65(1)(e) EA 1950: when the original is a public document within the meaning of s.74, secondary
evidence can be brought.
● Definition of public documents:

Section 74 EA 1950: Public Documents

The following documents are public documents:

230
note: Dissenting judgement by Seah SCJ
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 (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 records kept in Malaysia of private documents

Kamal Hisham bin Jaafar v Pendakwa Raya [2018] MLJU 115

Held : s.74 only provides the categorising of a public document and nothing more than that. The
purpose of categorising is to make it easier for its production without the necessity of calling
the maker or the keeper of such document to give in evidence to prove the existence of such
document. The relevancy and admissibility of such a document is governed by the provisions
of other sections of the Act or other laws, (inter alia Section 65 EA)231
: reading of s.65 and s.74 together, where the document is a public document, the Best
Evidence Rule is inapplicable.232

Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia [1994] 1 LNS 100
Held : Careful reading of s.65 and s.74 compelled the court to the conclusion that where document
is a public document, the Best Evidence Rule is not applicable.
: Secondary evidence may be adduced not only as to the existence of such document but also
as to its contents.

● Example of public documents:

- The Hansard (Mohd Sobri bin Che Hassan v Pihak Berkuasa Tatatertib Majlis Perbandaran
Seberang Perai [2018] 3 MLJ 784)
- Medical reports (Toh Kong Joo v Penguasa Perubatan Hospital Sultanah Aminah [1990] 2 MLJ
235. )
- A certification by a government medical officer or registered medical practitioner that a person is
a drug dependant; (Gopinathan A/L Subramaniam V Timbalan Menteri Dalam Negeri [2000] 1
MLJ 65)
- First Information Report (Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24)
- Statement made by witnesses in the course of police investigation (Husdi v PP [1979] 2 MLJ 304)

7.1) Certified copies of public documents (s76 EA)

S.76 of EA 1950: Certified copies of public documents

Every public officer having the custody of a public document which any person has a right to
inspect shall give that person on demand a copy of it on payment of the legal fees therefore,
together with a certificate, written at the foot of the copy, that it is a true copy of the document or
part thereof, as the case may be, and the certificate shall be dated and subscribed by the officer
with his name and his official title, and shall be sealed whenever the officer is authorized by law
to make use of a seal, and the copies so certified shall be called certified copies.

231
Referred to Dato Yap Peng v PP
232
Referred to Ng Hong Choon v PP
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Explanation—Any officer who by the ordinary course of official duty is authorized to deliver the
copies shall be deemed to have the custody of the documents within the meaning of this section

● Under s.76 of EA 1950, any person is entitled to inspect public documents and obtain a
certified copy of them if there is a right to inspect them.
- This provision presupposes the right to inspect but does not itself confer such right.
- An applicant needs to prove that his interest outweighs the interest that needs to be
protected in the document

Husdi v PP [1979] 2 MLJ 304:

Held : Section 76 of the Evidence Act merely relate the manner of certification. It is not an
enactment which confers any right. It presupposes the existence of the right to inspect.
: The opening part of the section reads “Every public officer having the custody of a
public document which any person has a right to inspect...”. The right to inspect a
police statement, which is a statutory, not common law, creature, would depend on
the construction of the relevant provisions, particularly those under the Criminal
Procedure Code.

Dato Yap Peng v PP [1993] 1 MLJ 337

Held : s 74 only provides the categorizing of a public document and nothing more than
that.  Section 76 of the Evidence Act 1950 is only for the purposes of certification of a
public document. The purpose of categorising and the certificate is to make it easier
for its production without the necessity of calling the maker or the keeper of such
document to give in evidence to prove the existence of such document. That is the
only purpose of ss 74 and 76 of the  Evidence Act 1950. 
: The relevancy and the admissibility of such a document is governed by the
provisions of other sections of the Act or other laws. Before such document could be
admitted, the conditions and prerequisites of the section under which it is to be used
must be satisfied.
● To inspect a public document, a person must satisfy 3 conditions:
i. the document must be a public document under s74
ii. the person has right to inspect it. In order to have such a right, one must have interest in
that document but the interest should be a direct and tangible one. A mere curiosity or
even an interest in some other matter which could perhaps be better served by the
inspection would not be sufficient.
iii. if fee is applicable, such a fee has been paid.

Dr Munawar Ahmad Anees v Ketua Pengarah Penjara, Malaysia [1999] 2 MLJ 289
Held : From the words of s.76 of EA 1950 , it is clear that it applies only to a public
document which the applicant has a right to inspect, and upon the payment of the
legal fees thereof. Hence, to invoke s76,
- firstly it must be shown to be a public document,
- secondly, that the applicant has a right to inspect it, and
- thirdly, he tenders the legal fees therefor.
: On the aspect of the applicant’s right to inspect, there is nothing in the Prisons Act
and Rules that confers a right upon the applicant to inspect those records. Reliance is
entirely upon s.74 and s.76 EA. This, the common law right as a person having
interest in the record is relied upon.

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 Khoo Siew Bee v Ketua Polis [1979] 2 MLJ 49
Fact : The applicant was charged for an offence under DDA. Before being charged, he
made a cautioned statement to the police under s.113 of CPC. The defence counsel
requested for a certified copy of the cautioned statement and the police refused.
Held :From s.76 of EA 1950, it is clear that every public officer having the custody of a
document must give a certified copy of it provided that:
i. the document is a public document AND
ii. the person who asks for a copy has a right to inspect it.
: The court then determine if the caution statement satisfied thee 2 requirements
above:
i. For the first element, a cautioned statement made under s.113 CPC is a
public document because it formed the act or record of the act of a police
officer who was under a duty to record the statement.
ii. For the second element:233
▪ One must have interest in that document but the interest should be a direct
and tangible one. A mere curiosity or even an interest in some other
matter which could perhaps be better served by the inspection would not
be sufficient.
▪ In this case, the accused was kept in remand. Thus itself would be
sufficient to show that he has a substantial interest in the statements or
confessions which presumably have implicated him. Such application is
only applicable for statements made by the accused himself and not by
other implication the accused because saying otherwise would cause fear
of the accused tampering with the potential witness.

 These cases explained the application of section 76, but they almost illustrate the same
principle as the ones above:
Gopinathan Subramaniam v TMDN [2000] 1 MLJ 65
Held : As the report and the certificate in this case were prepared by public servants in
the discharge of their official duties, they were public documents as defined in s.74
of EA 1950.
: S.76 however contemplates a class of public documents which persons who do not
have the right to inspect with the result that it does not require the condition of a
public access to the document to render it a public one. Thus, even when the right to
inspect is not permitted, a document may still be a public document.

Husdi v PP [1979] 2 MLJ 304

Fact : The petitioner was charged for the offence of house breaking by night. The counsel
applied to the DPP for copies of the cautioned statement made by the petitioner to the
police and the statements recorded by the police from witnesses in the course of
investigation (police statements). The DPP denied and the court dismissed the
petitioner’s application.Upon revision of the dismissal, the petitioner only pursues the
application of the police statements.
Held :The right of an accused person to the FIR is nothing more than but a consequence of
his right to be informed as soon as may be of the grounds of his arrest, under Article
5(3) of the FC and this Article is an offshoot of the common law.

233
the court referred to Krishnan AIR 1961 Mad 92 which was followed in Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2
MLJ 24:

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 : The right to inspect a statement to the police made in the course of police
investigations, which is a statutory, not a common law, creature, would depend on the
construction of the relevant statutory provisions, particularly those under the Criminal
Procedure Code. There is no provision in the Criminal Procedure Code or the
Evidence Act, which is construable as giving a right to inspect such a statement
: For police statement, it is absolutely privileged and hence there can be no right to
inspect. Furthermore, as a matter of public police, it is undesirable for the prosecution
to supply the defence with the police statements, as there is a real danger of tampering
with the witnesses.

Hj Abdul Ghani v PP [1980] 2 MLJ 196

Fact : The applicant was charged with the offence of committing corrupt practices and an
application was made that the PP:
▪ Furnish him with copies of statements made by him whether cautioned or
uncautioned;
▪ Furnish him with copies of similar statements made by his co-accused; and
▪ Offer him the opportunity to inspect and make photostat copies of the
documents seized by the B.S.N in connection with the trial
Held :The statements made by the applicant (whether cautioned or uncautioned) were
public documents and he had a tangible interest in them. Hence, the applicant was
entitled to such copies of the documents.
: The applicant was not entitled to the copies of the statements by his co-accused, as
the co-accused was a competent witness against him.
: The applicant was entitled to inspect the documents seized by the B.S.N and to make
copies of them

8) Parol Evidence Rule/ Exclusion of Oral Evidence by Documentary Evidence

 Under Chapter VI of the EA, it provides for the principle of “exclusion of oral evidence by
documentary evidence” which incorporated the parol evidence rule.
 Under this principle, generally, one cannot contradict, vary, add or substrate the content of a document
based on prior oral statements made by parties. For example, if you have signed a contract, if you
cannot claim that the terms are not correct based on the statements made by the other party during oral
negotiation.
- In another words, extrinsic evidence cannot generally be given to contradict, alter or vary the
terms of a written document, unless there are allegations of mistake, illegality or fraud.
‘Extrinsic’ means evidence relating to matters in dispute which itself is not included in the same
written document.

 Such a rule is provided under s91 to 99 of the Evidence Act, though the main one being Section 91 and
92 (only these two will be discussed in this note) :
S.91 : the contents of a contract must be proved by the contract itself;
S.92 : subject to certain provisos, no evidence of any oral agreement or statement shall be
admitted to contradict, vary, add or subtract any terms of an agreement
S.93 : when the language used in a document is on its face ambiguous or defective, evidence may
not be given of facts which would show its meaning or supply its defects.234

234
ILLUSTRATIONS
(a) A agrees in writing to sell a horse to B for RM500 or RM600. Evidence cannot be given to show which price was to be
given.
(b) A document contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

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 S 94 – 99 : (not important for this chapter)

 This case laid down how the court should interpret a document under the paral evidence rule.

Kheng Huat Film Co. v Mahkhanlall [1984] 1 MLJ 243

Held : The exclusion of oral by documentary evidence is governed by s.91 to 99 of EA 1950.
: When constructing a written agreement, the rules is that
i. Firstly, exclude evidence of negotiations leading up to the contract as only the
final agreement which records a consensus and such evidence of negotiation is
unhelpful;
ii. Secondly, exclude evidence of the parties’ subjective intentions so that any
individual purpose which either of them hopes to achieve by the agreement and their
own interpretation and understanding of the agreement is not admissible. As against
this, evidence of surrounding circumstances and factual background have always
been admissible.

 As mentioned, the main sections under this part is section 91 and 92, which both are usually used
together. Read thru these provisions first and we will discuss how these two sections should be applied.
Otherwise, it will be very confusing:

8.1) section 91: Evidence of terms of contracts, grants and other dispositions of property
reduced to form of document

Section 91 : When a document (contract or of a grant or of any other disposition of property) is

required by law to be reduced into writing and in fact has been reduced into writing, such a
document is required by law to be reduced into writing, no other evidence can be used to prove its
content other than the contract itself. 235

Exception 1—
When a public officer is required by law to be appointed in writing, and when it is shown that any
particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2—
Wills admitted to probate in Malaysia may be proved by the probate.

Explanation 1—This section applies equally to cases in which the contracts, grants or dispositions
of property referred to are contained in one document and to cases in which they are contained in
more documents than one.

Explanation 2—Where there are more originals than one, one original only need be proved.

Explanation 3—The statement in any document whatever of a fact, other than the facts referred to in
this section, shall not preclude the admission of oral evidence as to the same fact.

ILLUSTRATIONS

235
Section 91: Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
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.

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 (a) If a contract is contained in several letters, all the letters in which it is contained must be
proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts in writing with B for the delivery of pepper upon certain terms. The contract
mentions the fact that B had paid A the price of other pepper contracted for verbally on
another occasion. Oral evidence is offered that no payment was made for the other pepper.
The evidence is admissible.
(e) A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The
evidence is admissible.

 Requirement of this section:

- When terms of a contract, or of a grant, or of any other disposition of property have been
reduced to the form of a document;
- When any matter is required by law to be reduced to the form of a document;
- In such cases proof of the terms shall be by the document itself or by secondary evidence.

 Sample cases:
IGP v Alan Noor b Kamat [1988] 1 MLJ 260
Held : Under s.91 EA 1950, no evidence can be given in proof of any matter which is
required by law to be reduced to a form of a document. Then, S.92 EA 1950 prohibits
the giving of oral evidence to contradict or vary or explain the terms of such
document.
: Thus, in this case, the document concerned (show cause letter) has to be in the form
of a document because paragraph (2) of G.O.D. 30 required such letter to be in
writing.

 Section 91 must be read with section 144 of EA (Court may presume existence of certain fact).

8.2) section 92: Exclusion of evidence of oral agreement

Section 92: Exclusion of evidence of oral agreement
When the terms of a document (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 between the parties (or their representatives)
to any such document can be admitted for the purpose of contradicting, varying, adding to, or
subtracting from the terms of such documents, provided that …. (exceptions added, will be
discussed later)236

ILLUSTRATIONS
(a) A policy of insurance is effected on goods “in ships from Penang to London.” The goods are
shipped in a particular ship, which is lost. The fact that that particular ship was orally excepted
from the policy cannot be proved.

236
Section 92: 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

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 (b) A agrees absolutely in writing to pay B RM1,000 on 1 March 1893. The fact that at the same
time an oral agreement was made that the money should not be paid till 31 March cannot be
proved.
(c) An estate called “the Kranji Tea Estate” is sold by a document which contains a map of the
property sold. The fact that land not included in the map had always been regarded as part of
the estate and was meant to pass by the document cannot be proved.

 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 s.91 unless the evidence sought to be introduced falls within one of
the provisos of the section.
 Elements of section 92:
▪ 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 s.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;
▪ Unless it falls within any of the provisos to section. 

Chase Perdana Bhd v Md Afendi Hamdan [2009] 6 CLJ 501

Held : The trial judge misdirected herself when she accepted the plaintiff's evidence that
the USD250,000 was also a 'personal loan' to the first and second defendants when
such evidence was clearly parol evidence as they contradicted and was
inconsistent with the clear terms of the said agreement, and therefore
inadmissible.

9) Parol evidence rule – application of section 91 & 92237

 Based on the wordings of section 91 and 92, the application of these sections are in such a way:
- Sections 91 requires the production of the document itself for proof of its contents.
 It is regarded as embodying the parol evidence rule that where a contract has been reduced to
writing, the writing that must be looked at for the whole of the terms made between the
parties.
 The section therefore represents the ‘best evidence’ rule.
- Then, section 92 provided that when a document has been produced under section 91, no oral
evidence can be adduced to contradict, vary, add to, or to subtract from its terms subject to its
exceptions.
 Therefore, the effect of these two provisions is that,
- if you want to depart from the parol evidence rule under section 92, you must satisfy section 91
first by producing the document to prove the term that you wish to change (alter, contradict etc).
- Once you have produced the document, then only you prove your case under the exceptions
(which will be explained later).
- If such a document is not even produced, the term of the document is also unproved, thus you
can’t claim want you want with oral evidence in regard to the terms of the document.
 The cases below held this principle (all talk about the same thing, pick some, skip the rest):

PP v Sulaiman bin Mohamad Noor [1996] 1 MLJ 196

Held : Sections 91 and 92 EA supplement each other. Section 91 prohibits the admission of oral
evidence to prove the contents of the document.
237
Rationale of s.91 and s.92: If the parties had agreed to the terms in the written document, then there is no need to allow oral
evidence to prove the agreed terms.
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 : Only when a document has been produced to prove its terms under s 91 that the
provisions of s 92 come into operation for the purpose of excluding evidence of any oral
agreement or statement for the purpose of contradicting, varying, adding to or
substracting from its terms.

Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329:
Held : The best evidence about the contents of a document is the document itself and it is the
production of the document as required by s 91. 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 .

Keng Huat Film v Makhanlall

Held : s.91 provides that the content of a document must be proved by the document itself while
s.92 provides to certain circumstances where oral evidence can be adduce to contradict, vary,
add to or subtract from the terms of the written agreement

Chong Choi Keow v Tengku Reza Shah [2009] 9 CLJ 621

Held : Once a document has been produced to prove its contents under section 91, evidence of any
oral agreement to contradict, vary, add to or subtract from its terms are inadmissible unless it
falls under the six provisos in section 92.

PP v Robert Boon Tech Chua [1995] 1 CLJ 102

Held : In this case, the document concerned, a police report was not been ‘proved’, thus was not a
‘document’ under s.91 and s.92 of EA.

 Therefore, although a document is not a conclusive evidence. A party can still admit oral evidence to
disprove the content of a document but the onus is on him to prove his claim.

Ganam v Somoo [1984] 2 MLJ 290

Held : S.91 of Indian EA (similar to our EA) does not preclude oral evidence to contradict a
recital of fact in a written contract. In this case, notwithstanding an admission in a sale
deed that the consideration has been received, it is open to the vendor to prove that no
consideration has been actually paid. If it was not so, facilities would be afforded for the
grossest fraud.

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Chase perdana v Md Afendi Hamdan (refer above):
Issue : Can an oral agreement between P and D which alters terms in letter of undertaking
acknowledged according to s.91 and s.92
Held : Oral evidence, in order to be admitted must be consistent with the content of the written
document under s.92 (b) of the Act.

9.1) When document is partially written and partially oral

 Section 92 provided that oral evidence is generally precluded “when the terms of the document”
has been reduced into writing. Therefore, the phrase would mean that section 92 only applies
when ALL the terms have been reduced into writing.
 So, even a document is partially written and partially oral, section 92 will not be applicable.
Hence, oral evidence can still be admitted for the oral part of the agreement.

Tan Chong v Alan Mokwight [1983] 1 MLJ 220

Held : The prohibition against admissibility of oral evidence under section 92 only applies
when all (as opposed to some only) the terms of the contract are written into the
agreement. Thus, where some terms are given orally and some in writing, oral
evidence can be given to prove the terms agreed to orally
: Where some terms are given orally and some in writing, oral evidence could be
given to prove the terms agreed to orally. The expression “When the terms of any
such contract” at the beginning of s.92 must be read to mean “When all the terms of
any such contract”

Lee Wah Bank ltd v Ng Kim Lek [1979] 1 MLJ 21:

Held : S.92 of course applies where upon the face of it the written document appears to
contain the whole terms of the contract. But where it appears that there are oral
conditions which are not inconsistent, oral evidence is admissible.

PP v Datuk Harun b Idris [1977] 1 MLJ 180

Held : In this case, although minutes of board meetings or general meetings are required to
be reduced in writing pursuant to By-law 50, s.91 and 92 should not be applicable.
: This is because the terms of By-law 50 are clear that only matter deliberated or
decided upon are to be recorded. The minutes therefore, cannot be fully exhaustive of
everything that transpired at such meetings.
: In the context of the wording in s.92 EA 1950, the clause ‘any matter required by
law to be reduced to the form of a document” would appear to refer to bilateral
instrument and dispositive documents only, such as contracts, grants or disposition
of property which the law requires to be reduced to writing, and not to every and all
matters which the law requires to be reduced into a document, For example,
depositions of witnesses which, though required by law to be reduced to the form of a
document, would not come within this section and oral evidence is therefore
admissible to contradict such deposition.

9.1.1) The legal loophole of this position

 Cases have held that if a document can escape from the parol evidence rule merely
because not all the terms were reduced into writing, any party can change, add, or subtract
the terms of the document on the basis that not all terms were written down.

Tindok Besar Estate Sdn Bhd v Tinjar co [1979] 2 MLJ 229

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 Fact : In this case, the document concerned in an agreement. The trial judge, by
relying on oral evidence, found fraud and deceit on the part of the appellant.
The trial judge held that paral evidence rule is not applicable to the agreement
as not all terms in the agreement had been reduced in writing and hence parol
evidence rule is not applicable.
Held (on appeal)
: The Federal Court disagreed on the basis that if the trial judge’s approach was to be
taken, it would be open to any party to an agreement to say that the agreement did not
contain all the terms thereof, hence would seek to add new terms which might not even
have been within the contemplation of the other party.
: When the terms of a contract have been reduced to writing, as in this case, the contract
could only be proved by the document itself, and it is not open to the respondent to seek
to introduce and the judge to admit evidence that would, inter alia, add new terms to it.
: The provisos in s.92 qualify but do not eliminate the main provisions of the section, so
that unless the additional evidence sought to be adduced falls within the scope of any of
the provisos, it should not be allowed to be introduced as it would be to contradict, vary,
add to or subtract from the terms of the agreement.

9.2) When proving the existence vs content of a document

 When it comes to proving a contract, it must be distinguished between proving the existence and
content of the document.
 This is because whether the contract itself (primary or secondary) must be produced or not
depends on what you want to prove:
i. To prove the contents/terms of a document, the contract itself (primary or secondary)
must be produced
Section 92:
When there is a written document, the content of the document must be proven with the
production of the document itself.

ii. To prove the existence of the document: oral evidence is acceptable

Goh Leng Sai v Regina [1959] 25 MLJ 121.

Held : The proof of the existence of a contract must be distinguished from proof of the terms of
a contract:
- Under s.92 of the Evidence Ordinance, the terms of a contract, which has been written
in the form of a document, can only be proved by production of the document (or
secondary evidence in a proper case).
- However, the existence of a contract or a contractual relationship may be proved by
oral evidence.

Ng Kong Yue v Regina [1962] 1 MLJ 67

Fact : The appellants were convicted for corruption in that they had given the sum of $200
to a servant of the War Department as an inducement for showing favour in relation to
his principal’s affairs. There was a written contract between the War Department and
Sin Sin Furniture Co. of which the appellants were representatives and oral evidence
was given of this contract and the period over which it subsisted.
The appellant appealed on the ground that the oral evidence of the contract was
inadmissible and that the document itself should have been produced. The prosecution
argued that there was no necessity to prove the terms of the contract, instead only the
existence of the contract is required to be proven. Hence, this could be proved orally.
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 Held : appeal allowed
: In this case, it is not merely the existence of the contract that the prosecution has to
prove; the prosecution has to prove the date of the alleged offence (ie 15.6.1960),
there was a contract subsisting between Sin Sin Furniture and the War Department.
: The names of the parties and duration of the contract are terms of the contract
and hence production of the contract itself is necessary. By virtue of s.92 of
Evidence Ordinance, the terms of written contract in evidence cannot be produced
without the contract itself being produced.

9.2.1) Existence of document can be proven by oral evidence

The King v The Inhabitants of Holy Trinity, Hull (1827) 7 B. & C. 611
Fact : In this case, the issue was whether there was a tenancy agreement which was not
produced in court.
Held : Generally, the contents of a written instrument cannot be proved without producing
it. But although there may be a written instrument between the landlord and the
tenant, defining the terms of tenancy, the fact of tenancy may be proved by parol
evidence,238 without proving the terms of it. It was unnecessary in this case to prove
by the written instrument, either the fact of tenancy or the value of the premises.239

Alderson v Clay (1816) 1 Stark 405

Held : In this case , the court held, the fact of partnership may be proved by parol evidence
of the acts of the parties without producing the partnership deed.

9.3) Whether Section 91 & 92 is applicable to criminal cases – specifically police report.
 There are two approaches.
 This case says yes:

Ah Mee v PP [1967] 1 MLJ 220 (FC)

Held : S.91 and 92 apply to both criminal and civil cases. Thus, oral evidence is
inadmissible to contradict a police report (which is required by the law to be reduced
to the form of a document).

 This case says no: (but note that this is a high court case. So, Ah Mee which was decided by
federal court is the position)
Tng Tien Chai v PP [1995] 3 CLJ 292 (HC)
Held : S.92 did not apply to documents such as police report.
: The word “document” in s.91 of EA 1950 must necessarily meant to be “any
document” relating to the “terms of contracts, grants and other dispositions of
property” as intended by the very title of s.91.
: Thus, a police report does not fall within the ambit “a document relating to any
terms of contract, grant or disposition of property” and this should not be within the
intended ambit of s.91 EA 1950. Thus, oral evidence can be used to contradict etc the
police report.

10) Exception to parol evidence rule under section 92

238
Refer to Parol Evidence Rule below.
239
in this case, the question was whether a pauper had gained a settlement in a certain parish by the occupation of a tenement.
Parol evidence was admitted to prove the mere fact of a tenancy, although it had been created by a written document.

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 As mentioned, the exceptions to the parol evidence rule are provided under section 92.
 There are six exceptions (a) – (f). Section 92 provided that when a fact (oral evidence) falls under the
situations in (a) –(f), it may be proved. These will be explained below.

10.1) S.92(a): When the fact would invalidate the document

S.92(a): A fact can be proved if it would
- invalidate any document or
- 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;

● Illustration (d) and (e) explain the application of this paragraph:

(d) A enters into a written contract with B to work certain mines, the property of B, upon
certain terms. A was induced to do so by a misrepresentation of B as to their value. This fact
may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that
the contract may be reformed as to one of its provisions on the ground that that provision
was inserted in it by mistake. A may prove that such a mistake was made as would by law
entitle him to have the contract reformed.

Ganam v Somoo [1984] 2 MLJ 290

Fact : P and D entered in sale and purchase agreement and D default in payment. P applies to
rescind the contract and P denied that he had received the deposit. It was argued that P even
he had admitted that he deposit the payment in the document but P was not barred from s.91
and s.92 to deny that he had accepted the deposit.
Held : The court agreed with the above argument and held that the trial judge had erred for
disallowing plaintiff from adducing oral evidence that the plaintiff denied the recipient of the
deposit

Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1993] 1 SCR 61
Fact : A scheme was devised by a tax consultant to avoid payment of estate duty payable in regard
to the said land if the appellant/landowner died.
Held :The evidence of professed intention to avoid paying estate duty is evidence which tends to
contradict or vary the document prepared and signed. Nonetheless, such extrinsic evidence is
always admissible to defeat a contract on the ground of illegality even if such extrinsic
evidence may vary or contradict the contract. S.92(a) has provided for this.

10.2) S.92(b): When there is a separate oral agreement which is not in consistent with the
document
S.92(b) : 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;

● Illustration (f), (g) & (i) explain the application of this paragraph
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and
accepts the goods on delivery. B sues A for the price. A may show that the goods were
supplied on credit for a term still unexpired.

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 (g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: “Bought
of A a horse for RM300.” B may prove the verbal warranty.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt
and does not send the money. In a suit for the amount A may prove this.

Eushun Properties Sdn Bhd v MBF Finance [1992] 2 MLJ 137

Fact : In this case, the appellants had made certain averments regarding the arrangement of the
parties for a loan and the intent of the initial drawdown of $1.5m.
Held : These averments were questions of fact which cannot be determined on affidavit evidence
alone. Evidence of the surrounding circumstances and factual background were admissible
and a collateral agreement and could exist side by side with the main agreement.
: The law on collateral oral agreement was clearly spelt out in s.92 of the Act. It was
recognized as one of the exceptions to the general rule forbidding extrinsic evidence to
be adduced to contradict, vary , add to or subtract form, the terms of an agreement
which had been reduced into the form of a document.

Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16

Held : The device of collateral contract does not offend the extrinsic evidence rule because the oral
promise is not imported into the main agreement. Instead, it constitutes a separate contract
which exists side by side with the main agreement.

 In considering whether such a collateral agreement could have existed, the Court must consider the
nature of the written agreement and the surrounding circumstances.

Kluang Wood Products Sdn Bhd v Hong Leong Finance Bhd [1999] 1 MLJ 193
Held : In considering whether s.92(b) applies, regard is to be made to the nature of the written
agreement and its surrounding circumstances.

Chong Choi Keow v Tengku Reza Shah [2009] MLJU 100

Held : SPA is a comprehensive agreement embodying all terms and conditions. Thus, when
considering if collateral contract can exist with an SPA, the Court must also consider the
degree of formality of such SPA. It’s a written agreement drawn up by solicitors. Thus, the
more formal the written document is the more suspicious the court must be as to the existence
of a collateral contract, and if the contract is informal less suspicion attaches to the attempt to
set up a collateral contract.

Malek & Joseph Au v Bank Bumiputra [1998] 4 MLJ 608

Held : In this case, the appellant proposed to reduce the floor space and that proposal only emerged
eight months after the tenancy agreement had been executed, when the appellant found itself
to be in financial problems. Therefore, the appellant could not rely on the protection of s
92(b) of the Evidence Act 1950.

10.3) S.92(c): Separate oral agreement for precondition

S.92(c) : 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

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Illustration:
(j) A and B make a contract in writing to take effect upon the happening of a certain
contingency. The writing is left with B, who sues A upon it. A may show the circumstances
under which it was delivered.

Ganesan v Baskaran [1986] 2 MLJ 26

Held : In this case, the court allowed the separate oral agreement between the appellant and the
respondent to be admitted as evidence. There was a condition precedent that the respondent is
under a duty to get the consent of the Ruler before the land could be transferred to the
appellant. Since the respondent had not obtained the condition precedent, the respondent
could not rescind the contract and forfeit the deposit that had been paid by the appellant.

10.4) S.92(d): Subsequent oral agreement to rescind or modify the contract

S.92(d)
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;
Illustration:
(h) A hires lodgings of B and gives B a card on which is written: “Rooms RM80 a month.” A may
prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement drawn up by an attorney
is made between them. It is silent on the subject of board. A may not prove that board was
included in the terms verbally.

Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241

Fact : The respondent was a lessee of a premise in Kota Kinabalu. The lease was in writing and
registered in accordance with the Sabah Land Ordinance. The lease provided for the
possibility of renewal by written request. At the expiration of the lease, the respondent only
delivered part of the premises to the appellant and retained the ground floor as he alleged that
there was an oral agreement for a new lease.
Held :This fact can fall under proviso (d). However, it was inadmissible as it applied only to
limited cases and was not applicable where the documents needed to be reduced in writing or
registered under any existing law.

10.5) S.92(e): usage or custom not expressly mentioned in any contract (but) are usually
annexed to contracts
S.92(e):
any usage or custom by which incidents not expressly mentioned in any contract (but) 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;

Cheng Keng Hong v Govt of the Federation of Malaya [1966] 2 MLJ 33

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Fact : The applicant had tendered for the erection of school issued by the MOE. A contract was
subsequently entered into between the applicant and the government. The applicant however
discovered that the specification for electrical service was at variance with the layout and
drawings.

The applicant wrote to the Chief Architect and he received a reply from one Mr Hewish who
wrote on behalf of the Chief Architect stating that extra payment would be paid for any extra
fittings. Subsequently, the government refused to pay any extra payment and the matter was
referred to arbitration.
Held : This so-called practice, more correctly in law called trade usage or custom, may possibly
form part of a contract although not expressly incorporated in the written agreement. The
incorporation of a trade usage is, however, subject to well defined principles of law and that
is it must be reasonable and not so as to contradict the tenor of the contract as a whole.
:Consistent with the above principles, proviso (e) of section 92 of the Evidence Ordinance,
1950, enacts that oral evidence is admissible to establish a trade usage to be annexed to
the written contract, but as has been noted above, such usage must be consistent with the
terms and tenor of the written contract.

10.5) S.92(f): Language of a document

S.92(f) : any fact may be proved which shows in what manner the language of a document is
related to existing facts.

Faber Merlin v Lye Thai Seng [1985] 2 MLJ 380

Held : The general rule is that extrinsic evidence is not admissible for the construction of a written
contract; the parties’ intentions must be ascertained on the legal principles of construction,
from the words they have used.

Tan Suan Sim v Chang Fook Shen [1980] 2 MLJ 66

Held : The case concerns an agreement for the sale of land stipulated for complete “at a later date”.
: Evidence given to explain that “at a later date” = a date, if not earlier, at least before the
recession of the agreement”. This evidence, admitted as we have said without objection, is
clearly admissible under sections 92(f) and 95 EA 1950 to explain the latent ambiguity in the
agreement.

Haji Aminah Bakri v Manisah Bakri [1989] 1 MLJ 350

Held : “The facts deposed to by J are clearly admissible. Far from altering what is in cl 15, they
help to clarify the intention of the parties and the meaning of that clause. The rule against
parol evidence embodied in s 94 is not absolute and one of the exceptions is that 'any fact
may be proved which shows in what manner the language of a document is related to existing
facts'. The present matter falls within that exception.”

Tan Ah Chin & Sons v Ooi Bee Tat [1993] 3 MLJ 633
Held : It was obviously the intention of the parties, judged purely from the words appearing in cl
22, that both the parties to the agreement were to be at liberty to assign their right, title and
interest under it without the need for consent by the other party.
: As the words of cl 22 were unmistakably clear and unambiguous, any attempt to introduce
extrinsic or oral evidence in contradiction of cl 22 would be inadmissible under ss 91 and 92

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 EA. Therefore, the testimony of the solicitor who prepared the joint-venture agreement, as to
the interpretation of cl 22, must be disregarded.

11) Other Specific Type of Document

This part will examine how some specific types of document should be administered.

11.1) Stamped Document

 If a document is legally required to be stamped, not stamping it would make it inadmissible.
 Due consideration must be given to the admissibility of unstamped documents:

Section 2 of the Stamp Act 1949:

“duly stamped” is defined as:
… as applied to an instrument, means that the instrument bears an adhesive or impressed
stamp of not less than the proper amount or the mount of initial duty or the amount of
advance duty paid under subsection 37(1) and that such stamp has been affixed or used in
accordance with the law for time being in force…

Section 52 of the Stamp Act 1949

(1) No instrument chargeable with duty shall be admitted in evidence for any purpose by any
person having by law or consent of parties authority to receive evidence, or shall be acted
upon, registered or authenticated by any such person or by any public officer, unless such
instrument is duly stamped

● Under s.52 of Stamp Act 1949, unless an instrument is duly stamped, 240 it shall not be admitted
in evidence for any purpose until payment of the duty and penalty, if any, chargeable under the
law has been made.
● The instrument however is admissible for the purpose of any evidence in a criminal court or
when the instrument has been executed by or on behalf of the government

Chew Vui kiet v Chong Fook Thien [1971] 2 MLJ 158

Held : There was an action claiming an account of a partnership. The 1st and 2nd
respondents denied that they were partners of the firm. The crucial evidence in this
case was the partnership agreement which was written in Chinese. The evidence
showed that the original of this document was unstamped. Despite a notice to
produce, the original document was not produced and the appellants produced a
photostat copy of the document, which was admitted in evidence. In the trial judge’s
judgement, the trial judge stated that he was wrong in admitting the document and he
gave judgement for the respondents.
Held (on appeal): Appeal dismissed
: As the original document was not stamped, no secondary evidence (in this case, the photostat
copy of the document) could be offered of its terms.
: If the copy of the agreement was excluded, there are no other evidence to show the link
between the respondents as the partners of the firm.

American Express v Tan Loon Swan [1992] 1 SCR 153

Held : Although the guarantee document had not been stamped, the non-stamping of the
document did not provide a triable issue. The court has power and the responsibility
240
Limited to documents that are chargeable with stamp duty. See s.4 and First Schedule of Stamp Act 1949.
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 to impound unstamped documents, if produced, and to admit them on payment of
stamp duty or penalty, if any, under proviso (a) to s.52(1) of the Stamp Ordinance
1949.

11.2) Tap recording

 These cases specifically talked about how a tape recording can be admitted as evidence.
Mohd Ali Jaafar v PP [1998] 4 MLJ 210
Fact : The appellant was found guilty at trial for the offence of soliciting sexual favours
from the complainant at the Immigration Office. One of the grounds of appeal was on
the admissibility of several tape recordings and transcripts adduced at the trial.
Held : In this case, the prosecution tendered in 3 tape recordings. It is irregular to hold a
trial within a trial in order to admit a tape recording in evidence. It is admissible upon
being tendered through its maker after proof of the matters referred to in Parsons
(proof of its integrity, accuracy and continuity of the tapes). A trial within a trial is
only needed to admit a tape recording if its admissibility is subject to conditions like,
for example, voluntariness.
: The proof of a tape recording, being a document within the meaning of s 3 of
the Evidence Act 1950, is governed by ss 61 to 66 of the EA pursuant to which
the recording must be proved by being produced for the inspection of the court
or by secondary evidence. Thus, the tape recording must be played over in court
before it can be admitted in evidence.
: In determining the admissibility of a tape recording, it is necessary to bear in mind
what it is that is being sought to be admitted. These are the matters that must be
established when introducing evidence of a tape recording:
▪ The tape was run through and found to be clean before the recording was made;
▪ The machine was in proper working order;
▪ The tape was not tampered with or altered in any way — it should be established
in whose possession the tape was at all times;
▪ The officers (or other witnesses) played the tape over after making the recording
and heard voices which they can identify;
▪ A transcript was prepared of the voices; if it was just taken down in shorthand
and the typed transcript prepared from the shorthand notes then the notes should
be saved;
▪ The officers (or other witnesses) played over the recording and checked it with
the transcript as to the identity of the voices and as to the conversation.
Also, the following precautionary steps ought to be followed:
▪ Uttering of the introductory and closing words;
▪ Breaking of the safety tabs after the recording; and
▪ Placing identification marks on the tapes.

Ghazali Salleh v PP [1995] 3 CLJ 638

Held : Since the tape–recorded conversation is susceptible to interference, and can be
easily altered, there must be evidence to show that it is well guarded. This
includes physically guarding the disc or tape as soon as a recording has been made on
it and making sure that it is under guard until it is needed for a lawful occasion or
until it is brought to the Court.

R v Maqsud Ali [1966] 1 QB 688

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 Held : Recordings can be admitted as evidence provided that
- the accuracy of the recording can be proved and the voices recorded properly
identified;
- the evidence is relevant and otherwise admissible.
: Such an evidence should always be regarded with some caution and assessed in the
light of all the circumstances of each case. There is no any exhaustive set of rules by
which the admissibility of such evidence should be judged.

Chapter 10: Witness

1. INTRODUCTION
 How a party establishes a case is by calling a witness or producing documentary evidence
 Everything that we have looked at for the past 2 semesters, establishing their case, this is where
witnesses are important
 Witnesses are very important as they will assist the party to establish their case
 
1.1. Definition of Witness
 A witness is a person who gives testimony or evidence before an adjudicating body, that is, in a
court, tribunal etc
 
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 1.2. Compellable Witnesses
 There is this concept called compellable witnesses
 Whether you can compel a witness to disclose information or not in court
 
2. GENERAL RULE
 All persons are competent to testify
 Exceptions
o They are prevented from understanding the questions put to them or from giving rational
answers
 Tender years
 Extreme old age
 Disease of body
 Disease of mind
 Any other cause of the same kind

 Section 118 Evidence Act 1950: Who may testify

o 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 cause of the same
kind.
o 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.

 Sarkar Law of Evidence, page 1954

o Under Section 118, all persons are competent to testify, unless the court considers that by
reason of tender years, extreme old age, disease, or infirmity, they are incapable of understanding
the questions put to them and of giving rational answers
o All grounds of incompetency have been stripped away by this section, under which
competency of witnesses is the rule and their incompetency is the exception.
 Note: We dealt with this provision in detail when we were discussing corroboration last semester
o We look at the state of mind of witnesses
 Note: All the cases stated in this lecture can be found on Spectrum

[Tong Soon Tiong v FA Securities Sdn Bhd] [2013] 2 CLJ 448 FC

o Note: this case is about a bankrupt being a witness
o Held
 Section 118 of the Evidence Act 1950 is a specific provision that deals with issues of
witnesses and highly relevant in shedding some light on the matter at hand.
 The above provision refers to categories of witnesses who may be disqualified from
giving evidence by reason of tender age, extreme old age, incapacitated by diseases whether
of body or mind, or any other cause of the same kind. The sole test of competence under
this section is his intellectual capacity, that is, his understanding (Evidence Practice and
Procedure by Augustine Paul 3rd Ed. p. 915; Sidek bin Ludan v PP [1995] 1 LNS 219)
 Under the illustration of Explanation a mentally disordered person or lunatic is not
incompetent to testify unless he is prevented by his condition from understanding the

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 questions put to him and giving direct rational answers to them. Even a dumb witness is a
competent witness if he can give evidence in an intelligent manner, that is, by writing or by
signs (Chai Kor v PP [1965] 1 LNS 16). But eventually the court must ascertain their
competency (Kee Lik Tian v Public Prosecutor [1984] 1 LNS 55)
 Within the context of Section 118 of the Evidence Act 1950 a bankrupt, unless falling
within the above legislated restricted categories, surely cannot per se be equated with lack
of intellectual capacity to understand. And neither is bankruptcy a disease. To wind it up,
under the Evidence Act 1950 a debtor's status as a bankrupt is not a disability that will
dilute his competency to testify, especially if all the rules of evidence have been complied
with. That being so the sixth plaintiff's evidence under the Evidence Act 1950, and despite
being a bankrupt, is admissible.

[Sidek bin Ludan v Public Prosecutor] [1995] 3 MLJ 178

o Facts:
 A divorcee and two infant daughters (one of whom is the victim) rented a house
belonging to the accused. The house was not far from the accused. The divorcee left two
infant daughters at home while working. The accused developed a liking for the victim.
Accused was then charged with two counts of rape.
 Testimonies of three children aged 9 and 10, mother (interested witness) and two
medical experts (independent testimonies).
 Defence challenged the credibility of the children
 The trial court's fatal failure to frame and record preliminary examinations of
the children for the purpose of ascertaining their capacity to understand and give
rational answers
o Held:
 The competency of any person (child witness included) to testify as a witness is a
condition precedent to the administration to him of an oath or affirmation, and, clearly, it is
a question distinct from that of his credibility when he has been sworn or affirmed.
 In determining the question of competency, the court acting under Section 118 of the
Act, is entitled to test the capacity of a witness by putting proper questions
 Note: putting proper questions = preliminary enquiries when dealing with
child evidence
 To test the competency of the child as a witness
 
3. DUMB WITNESSES
 They are competent, just method of giving witness is different
 Section 119 of the Evidence Act 1950: Dumb witnesses
o (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.
o (2) Evidence so given shall be deemed to be oral evidence.
 
4. JUDGES AS WITNESSES

4.1. Introduction
 Generally, judges cannot be compelled to answer any questions as witnesses unless
o Special order by the High Court

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 o It is regarding other matters which occurred in their presence while they are acting as judges
or magistrates
 Note: read the illustrations provided under Section 121 EA for better understanding
o Section 121 of the Evidence Act 1950: Judges, Sessions Court Judges and Magistrates
 No Judge and, except upon the special order of the High Court, no Sessions Court
Judge or Magistrate shall be compelled to answer any questions as to his own conduct in
court as Judge, Sessions Court Judge or Magistrate or as to anything which came to his
knowledge in court as a Judge, Sessions Court Judge or Magistrate; but he may be
examined as to other matters which occurred in his presence whilst he was so acting.
 Illustrations
 (a) A, on his trial before the High Court, says that a deposition was
improperly taken by B, the committing Magistrate. B cannot be compelled to answer
questions as to this except upon the special order of the High Court
 (b) A is accused before a Sessions Court of having given false evidence before
B, a Sessions Court Judge. B cannot be compelled to say what A said except upon the
special order of the High Court
 (c) A is accused of attempting to murder a police officer whilst on his trial
before B, a Judge of the High Court. B may be examined as to what occurred.

[Pavine v Public Prosecutor] [1986] 1 MLJ 72

o Held:
 Section 121 of the Act is based on general grounds of convenience and public policy .
Obviously, it would cause great inconvenience and perhaps, embarrassment, if Magistrates
or Presidents are withdrawn from their own Courts to answer questions as to their own
conduct at trials at which they have presided.
 It follows that it is only in altogether exceptional circumstances that a Special Order
will be made under the Section and that too only when it appears essential to the just
decision of a case.

[Mohd Shahriman Mohd Khairil v Public Prosecutor] [1998] 2 CLJ 855

o Held:
 As regards judicial officers being required to answer questions, as to their own
conduct at trials in which they have decided, the current view is that only in exceptional
circumstances may they be ordered to do so. The relevant provision concerning this issue is
under Section 121 of the Evidence Act
 
4.2 Arbitrators are not included under Section 121

[Bauer (M) Sdn Bhd v Embassy Court Sdn Bhd] [2013] MLJU 208
o Whilst all persons are competent witnesses, Section 121 of the Evidence Act 1950 provides
for the non-compellability of High Court Judges, Sessions Court Judges and Magistrates to
answer questions as to their conduct in court.
o It cannot be denied that Section 121 of the Evidence Act 1950 does not include arbitrators in
the list of persons who cannot be compelled to answer questions as to their conduct in court. The
reason for this is obvious. That section was meant for those who adjudicate in a court of law. As
an arbitrator cannot be said to preside over such a court, hence the reason for their exclusion in
that section.
 
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5 SPOUSES AS WITNESSES
 Everyone is a competent witness, even a husband or a wife
o Section 120 of the Evidence Act 1950: 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 life 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.
 However, there are limitations where the evidence is regarding communications between husband
and wife during their marriage
o Section 122 of the Evidence Act 1950: communications during marriage
 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.

[Public Prosecutor v Abdul Majid Md Haniff] [1994] 4 CLJ 172

o Facts:
 An application by the Public
Prosecutor for a revision of the order of the Magistrate who had ruled, in the course of a
preliminary enquiry in respect of a charge of murder under s. 302 Penal Code, that the wife
of the accused, being a spouse witness albeit an unwilling one, though a competent witness,
could not be compelled to testify for the prosecution.
 Magistrate relied upon and in
fact adopted the decision of the House of Lords in Hoskyn v. Metropolitan Police
Commissioner [1979] AC 474 which held, in essence, that a wife or a husband is
incompetent to give evidence against the other on the policy grounds that such allowance
would give rise to discord and perjury and would be repugnant to ordinary people.
o Held:
 By Section 120 of the
Evidence Act 1950, it is clear that a spouse witness becomes a competent witness in
criminal proceedings against any person. However, by Section 122 of the Act, more
specifically by the insertion of the world "compelled" there into, it appears that the
legislature had pre-accepted the general principle that a competent witness is also a
compellable witness. This must be the intention of the Legislature as otherwise there is no
necessity for the inclusion of this word, for even without the word "compelled" therein,
Section 122 would read just as well and without any ambiguity whatsoever
 In other words, there must
have been a special purpose of the inclusion of the word "compelled" into Section 122, and

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 what more could it be than a direct reference to the compellability of all spouse witnesses to
give evidence with the exception of communications from one spouse to another except
with consent
 It ought to be noted that the
Court in this case is dealing not merely with a domestic dispute but with a crime where
violence is involved. This being the case it is in the interest of the state and members of the
public, therefore, that evidence of that crime should be made freely available to the Court.
 In the circumstances, the
accused's wife in this case is bound to give evidence unless she can point to any exception
in the law relieving her from the obligation
 The Court below will proceed
with the enquiry and record the evidence of the accused's wife, and if she is unwilling to
testify, 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.

[Public Prosecutor v Gurdial Singh Get Singh] [2005] 6 CLJ 272

 Under Section 118 of the
Evidence Act 1950, all persons are competent to testify provided that they are able to
satisfy the test that they understand the question put to them and are in the position or
situation to give rational answers to them.
 In a criminal proceeding, a
husband or a wife is a competent witness to the suit, with the exception that the spouse shall
not a be a compellable witness with regard to the communication made between them and
their spouse during marriage unless with the consent of the person who made such
communication or his representative in interest.
 This court is also of the
opinion that there is no universal restriction against the testimony of a wife of the accused
in relation to its admissibility or its truthfulness unless the evidence or credibility of a
spouse is challenged, or the spouse is successfully discredited to the point that it raises
doubt as to the truthfulness of the statement, or it shows that the spouse is giving evidence
with the purpose of assisting the accused's release. Even so, this will only affect the weight
of the statement and not its admissibility.
 Merely because SP9 is the
wife of the accused by itself is not sufficient to mechanically discard or reject her evidence
unless her evidence is shown to suffer from serious infirmities or is tainted raising
considerable doubt, and it is not the case here.

[Pendakwa Raya lwn Muhammad Yusof bin Mohd Azam dan lain-lain] [2019] MLJU 151
o Facts:
 Murder case.
 SP3 is the wife of the first
accused
o Held:
 Based on the reasonings in
PP v Abdul Majid, under Section 120 of the Evidence Act SP3 is a witness competent to
testify against any person in a criminal proceeding, including her own husband as it is in
this case

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  However, SP3 shall not be
compelled to disclose any communication made to him during marriage by the first
accused, and SP3 is also not permitted to disclose any such communication unless the first
accused consents, where the exception is the one provided in Section 122 Evidence Act
does not apply in this case.
 
6 OFFICIAL RECORDS AND COMMUNICATIONS
 Section 123 of the Evidence Act 1950: Evidence as to affairs of State
o 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 int eh case of a department of a State Government.
 Section 124: Official communications
o 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:
 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.
 Section 125 of the Evidence Act 1950: Information as to commission of offences
o No Sessions Court Judge, Magistrate or police officer shall be compelled to say whence he
got any information as to the commission of any offence, and no revenue officer shall be
compelled to say whence he got any information as to the commission of any offence against the
public revenue or the excise laws
o Explanation—"revenue officer" in this section means any officer employed in or about the
business of any branch of the public revenue.
 
7 ADVOCATES AS WITNESSES
 Note: Important for us as future lawyers
 Generally, advocates cannot be compelled to disclose communications between them and the clients,
as these are considered as privileged communications. However, there are also exceptions
o Section 126 of the Evidence Act 1950: Professional communications
 (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:
 Provided that nothing in this section shall protect from disclosure-
 (a) any such communication made in furtherance of any illegal
purpose;
 (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.
 (2) It is immaterial whether the attention of the advocate was or was not directed to
the fact by or on behalf of his client.

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  Explanation—The obligation stated in this section continues after the employment has
ceased.

[Reg v Derby Magistrates' Court ex parte B] [1996] AC 487

o Held:
 The principle which runs through all these cases, and the many other cases which
were cited, is that a man must be able to consult his lawyer in confidence, since otherwise
he might hold back half the truth.
 The client must be sure that what he tells his lawyer in confidence will never be
revealed without his consent.
 Legal professional privilege is thus much more than an ordinary rule of evidence,
limited in its application to the facts of a particular case. It is a fundamental condition on
which the administration of justice as a whole rests.

[Dato Au Ba Chi v Koh Kheng Keng] [1988] 1 LNS 188

o Held: 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. (See Sarkar on Evidence (10th Ed) p 1080.)
o 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).
o 'Unless with his client's express consent', appearing in s 126. The privilege is that of a client ;
he may expressly waive the privilege under s 126 or impliedly under the latter part of s 128 by
calling the barrister, pleader, etc, as witness and questioning him on matters which, but for such
question, he would not be at liberty to disclose. But he does not lose the privilege if he gives
evidence in the suit either at his instance or at the instance of the opposite party. (Sarkar on
Evidence (10th Ed) p 1082.)
 
8 CREDIBITLITY OF WITNESSES
 You need to be able to rely on your evidence, but there are instances where the witnesses give
contradicting evidence, and this affects their credibility.
 
8.1 Impeachment of Witnesses
 Where their evidence is contradictory, this is when you may want to impeach the witness
 Section 145 of the Evidence Act 1950: Cross-examination as to previous statements in writing
o (1) A witness may be cross-examined as to previous statements made by him in writing or
reduced into writing, and relevant to matters in question in the suit or proceeding in which he is
cross-examined, without the writing being shown to him or being proved; but if it is intended to
contradict him by the writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.
o (2) If a witness, upon cross-examination as to a previous oral statement made by him relevant
to matters in question in the suit or proceeding in which he is cross-examined and inconsistent
with his present testimony, does not distinctly admit that he made such statement, proof may be
given that he did in fact make it; but before proof can be given, the circumstances of the

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 supposed statement, sufficient to designate the particular occasion, shall be mentioned to the
witness, and he shall be asked whether or not he made such statement.

[Husdi v Public Prosecutor]

o Held: Nevertheless in our view as Sections 145 and 155(c) of the Act have not been repealed,
they must be given effect to, and cannot be treated as dead letters. Otherwise, Counsel who has a
hunch that a prosecution witness has in his oral evidence departed from his police statement may
not be able to take advantage of the Evidence Act which allowed—and still allows—the defence
to impeach his credit.
o Also, in the interest of justice the Court would want to know if a witness has departed
significantly from his police statement

[Krishnan v Public Prosecutor] [1981] 2 MLJ 121

o Held: One of the methods to impeach the credit of a witness is by proof of his former
statement inconsistent with the evidence which is liable to be contradicted. This is enacted by
Section 155(c) of the Evidence Act, according to which impeachment essentially consists of two
elements:
 contradicting the witness' evidence; i.e. confronting him with the inconsistent
statement; and
 proof of the statement.
o As regards contradicting, the second limb of Section 145(1) of the Act requires the party who
conducts the impeachment to draw the witness' attention to the inconsistent part of his statement,
before confronting him with it. (Note: you have to give chance to the witness first before you
confront them); its intention being to give the witness an opportunity of either explaining away
the inconsistent part of the statement or correcting his evidence so as to remove the
inconsistency. If as a result of his explanation or correction, there is no more inconsistency, the
matter ends there, otherwise the witness is liable to be contradicted. Thus as a first step it is
essential that the Court should be given the discretion to determine a preliminary question
whether the witness' former statement is inconsistent with his evidence, otherwise much time will
be wasted if it is found later that his former statement is not really irreconcilable with his
evidence. We therefore think that it is a good procedure that a Judge should be shown the
statement as a first step in the impeachment procedure.
 
o Section 155 of the Evidence Act 1950: Impeaching credit of witness
 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:
 (a) by the evidence of persons who testify that they from their knowledge of the
witness believe him to be unworthy of credit;
 (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;
 (c) by proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted;
 (d)(Deleted by Act A729).
 Explanation—A witness declaring another witness to be unworthy of credit may not, upon his
examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-
examination, and the answers which he gives shall not be contradicted, though, if they are
false, he may afterwards be charged with giving false evidence.

[Muthusamy v Public Prosecutor] [1948] MJ 57 [important case for this topic]

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 o Differences may be divided into four classes
 (a) Minor differences, not amounting to discrepancies;
 (b) Apparent discrepancies;
 (c) Serious discrepancies;
 (d) Material contradictions.
o Minor differences are attributable mainly to differences in interpretation and the way in
which the statement was taken and sometimes to differences in recollection. A perfectly truthful
witness may mention a detail on one occasion and no remember it on another. A mere omission
is hardly ever a discrepancy. The police statement is usually much briefer than the evidence.
Both the statement and the evidence are usually narratives reduced from question and answer.
The witness is not responsible for the actual expressions used in either, and all the less so where
he does not speak English.
o If the police statement gives an outline of substantially the same story there being no
apparently irreconcilable conflict between the two on any point material to the issue, the
magistrate should say at once. “The difference is not such as to affect his credit” and hand the
statement back.
If, however, the difference is so material as probably to amount to a discrepancy affecting the
credit of the witness, the Court may permit the witness to be asked whether he made the alleged
statement. If he denies having made it, then either the matter must be dropped or the document
must be formally proved, by calling the writer or, if he is not available, by proving in some other
way that the witness did make the statement.
o If the witness admits making the former statement, or is proved to have made it, then the two
conflicting versions must be carefully explained to him, preferably by the Court, and he must
have a fair and full opportunity to explain the difference. If he can, then his credit is saved,
though there may still be doubt as to the accuracy of his memory. This procedure is cumbersome
and slow and therefore should not be used unless the apparent discrepancy is material to the
issue.

[Pathmanabhan Nalliannen v PP] [2017] 4 CLJ 137

o Held: In light of the foregoing discussion, we therefore prefer the view of the Court of
Appeal that the police reports being former statements made by SP32 could be used to impeach
his credit under Section 155(c) read together with Section 145(1) of the Evidence Act.
 In the end of the day, you have to give opportunity to the witness to check their statement before you
impeach them.

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