LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

TOTAL : /40
NAME SAK KWAI PENG
ID 20200433-01-21166
CLASS A20

SAITO SECURITY ACADEMY

BACHELORS IN LAW ENFORCEMENT (INVESTIGATION)
JUNE-JULY’2020

COURSE : LAW OF EVIDENCE

COURSE CODE : LEI 3024
RELEASE DATE : 13.07.2020
DUE DATE : 17.07.2020 AT 5.00 P.M
ONLINE SUBMISSION TO
RESPECTIVE LECTURER : assessment.wco@gmail.com
LECTURER: : MS.PAVITRA KALAISELVAN

FINAL ASSESSMENT ANSWER

This assessment carries 40% of the total grading marks
( This Assessment Examines CLO 3 & CLO 4 )

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

SECTION A
QUESTION 1:

(i) Explain on whom the evidential burden lies, and the standard of proof placed on the
same.

According to Section 102 Evidence Act, evidential burden can define as a burden at
one of the party to prove the case by introduce the evidence in court. 1 Furthermore, if either
side fail to introduce the burden of proof and it will be given on another side. Moreover, The
burden of introducing evidence in a case will shifts constantly by one side or the other sides.
For the standard of proof is depend of one of the party that the prosecution or accused and
this means that probative forces for one of the party to raises the exception and defences. In
this case, the evidential burden lies is on prosecution side to introduce evidence for prove the
criminal action of the Robin and Remo. And also, the standard of proof is relies on accused
that is Robin and Remo to raises their defences.

(ii) However, the prosecution did not call Mamat to testify or produce the pay cheques
to court and relied heavily on Remo’s testimony. Advise the prosecution on the
admissibility of Remo’s testimony.

After accused had been arrested, Remo had been identified as a accomplice which
helping Robbin to commit crime. Refer to Section 133 EA, if Remo can prove himself with
corroborated with some material evidence, so court may presumed the accomplice to be
‘unworthy of credit’2. And also, it is important for a significant point of evidence the
accomplice brought in not for every word that he is utter. The reason for the evidence of an
accomplice is not reliable is because of an accomplice is likely to swear falsely in order to
shift the guilt from himself and disregard the sanction of an oath. Hence, the court must first
decide whether the witness is an accomplice with consider the statement provide by Remo
and assess his credibility. Moreover, the court also has to decide whether the evidence of
Remo as a accomplice may be accepted with or without corroboration. Thus, Remo need to
corroborate with others evidence which is the testification of Mamat witness and the pay
cheques and present at the court to get the worthy of credit from court to convict the accused
Robin on no corroboration evidence of Remo.

1
Section 102 Evidence Act
2
Section 133 Evidence Act

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

(iii) Halfway through the Examination-in-chief, Remo looked tensed up and was not co-
operative. The prosecution continued to ask leading questions to Remo. However,
Robin’s counsel objected to such questions being asked to the witness. Advise the
prosecution if such question can be asked to the witness.

The process of examination of witness, there will be question to ask to the witness to
testify the truth and the question need to ask with clearly but not lead the witness to answer
some fact. Refer to S. 141 EA, the leading question means that the question had suggested the
answer or had prepare the answer such as witness only need to answer yes or not to the
question3. For example, the question should be is ‘Can you tell the court what was the colour
of the car on the day of incident?’ and not ‘was the colour of the car is blue colour on the day
of incident?’. Therefore, according to S.142 EA, the leading question is not allowed to ask in
some situation4. It may not be asked if objected by adverse party, in examination in chief, re-
examination except with permission of court. The court will permit leading question as the
matter when the statement of witness is undisputed or which had sufficient opinions.

Moreover, there also had some situation that the leading question can be asked by
referring to S.143 EA. Based on this section, it is can be asked to subject during the cross
examination but The questions shall not be framed that the very answers that the witness is
required to give and it also shall not be on the assumption that facts when they not been
proved or particular answers had given to fact5. Thus, the court had discretion to prohibit
leading questions from being put to a witness who shows a strong interest or bias in favour of
cross examination party. So, refer to the situation as above in examination in chief, the
leading question is not allowed to ask.

QUESTION 2:

(i) Explain the burden of proof and standard of proof placed on Syarikat Segar
Sdn.Bhd in proving its claim against Syarikat Roti Sdn.Bhd.

According on S.101 EA, the judgement from court is depends on legal right, liability 6,
and the existence of fact which the plaintiff must prove that such facts as the Syarikat Segar
Sdn.Bhd desires the court to give judgement as to its rights to claim against the Syarikat Roti
Sdn.Bhd’s liability to pay the Plaintiff. So, we can know the burden of proof is on the
3
Section 141 Evidence Act
4
Section 142 Evidence Act
5
Section 143 Evidence Act
6
Section 101 Evidence Act

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

Syarikat Segar Sdn.Bhd, plaintiff and he need to prove its claim affirmatively for succeed.
Thus, Syarikat Segar Sdn.Bhd must prove that the formed of contract with Syarikat Roti
Sdn.Bhd, the breached of contract and the loss when the breach happen. The standard of
proof is depends of balance of probability and also known as the preponderance of the
evidence. In this case, the standard of evidence which a plaintiff, Syarikat Segar Sdn.Bhd
must adduce in a trial in order to win the case.

(ii) Mr.Alex Tham, the director of Syarikat Segar Sdn.Bhd will testify as their witness.
Advise Mr.Alex Tham on the manner of examination of witnesses in court.

According to S.137 EA, the examination of witness had separate to three manner
which is examination in chief, cross examination, and re-examination 7. Refer to S.138 EA,
witness shall be first examined-in-chief with giving the evidence and the examination must
related to the fact8. This examination is tasked to obtain all the facts supporting that party's
case that are within the personal knowledge of that witness. After examination in chief,
witness may be cross-examined by the opponent counsel with purpose to damage the
testimony and the credibility of the witness. After this two examination, the re-examination
will be started with directed to the explanation of matters to in cross-examination. If the re-
examination is on new matter, then it can be done with the permission of the court. When
the new matter is introduced in re-examination, the opponent counsel may able to cross-
examine again with witness upon that matter.

Moreover, in the process of civil trial, with follow the general rules the witness will
be examined by oral and he will be given by way of witness statement. And also, if needed
the witness will be attend the cross examination and re-examination. Therefore, the function
of this witness statement is to speed up the trial process with saving the time and also can
give the chance to the opponent counsel to prepare question for cross examination to examine
the witness.

(iii) Syarikat Segar Sdn.Bhd have produced a photostat copy of the contract between
Syarikat Segar Sdn.Bhd and Syarikat Roti Sdn Bhd. Advise Syarikat Segar Sdn.Bhd on
the admissibility of the same.

7
Section 137 Evidence Act
8
Section 138 Evidence Act

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

Refer to S.61 EA, proof of the content of documentary evidence can define to two
type which is primary evidence means the original writing and non-testimonial evidence and
also the secondary evidence is a copy of a original document 9. Thus, according on S.64 EA,
the document evidence must proved by primary evidence based on the best evidence rule 10.
So, Syarikat Segar Sdn.Bhd should provide the original of contract to prove their contract is
really existence. But the exception is existence which primary document cannot be provide
and the secondary evidence will be admissible in court.

Furthermore, the secondary evidence had been includes certified copies, made from
the original by mechanical processes and counterparts of document. Hence, secondary
evidence of document can be given but need some conditions to satisfy which is the original
contract must be admissible in court and it must be proof of execution before secondary
evidence given to the court. Moreover, witness need to prove that the original document was
been properly stamped. So, in the trial, Syarikat Segar Sdn.Bhd must prove that his contract
is an admissible document before he produce the photostat copy of the contract as a
secondary document in court.

SECTION B

QUESTION 3:

With reference to the above, examine the admissibility of entrapment in Malaysia.

9
Section 61 Evidence Act
10
Section 64 Evidence Act

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

Refer to our law of Malaysia, illegally obtained evidence is a one of the evidence will
be exist in court and this evidence can be defined as the evidence that had obtained by a wide
range of irregularities ranging from criminal offences to methods that exclude only fair
competition. Thus, this type of evidence actually is admissible in Malaysia because the court
much interested to the relevancy and admissibility of the evidence pursuant to Evidence Act
1950.

Therefore, the entrapment or through the agency of an agent provocateur is the way
that always apply to obtain the illegally obtained evidence. First, to determine entrapment a
line thus needs to be drawn between trapping an “unwary innocent” and “an unwary
criminal”. An unwary criminal who readily avails himself of an opportunity to commit an
offence, betrays his criminal predisposition. He would not be able to take advantage of the
defence. As refer to case R v Looseley, we can know it the entrapment will occur when the
law enforcement officer such as police or a controlled informer causes someone to commit an
offence with purpose to prosecute that person. Hence, for get on this entrapment, the accused
was framed by an agent provocateur to commit an offence. And also, the agent provocateur is
an officer who had set up a trap to get the accused to commit an offence. Furthermore, the
admissibility of the evidence obtained to be raised when the state of an accused been
entrapped. So, this evidence obtain in activities of agent provocateur is admissible in our
country but entrapment is not valid defence to charge. Besides, according to Black Law
Dictionary that had state about an agent provocateur is an undercover agent which had
mission to instigates or participates in a crime with purpose to infiltrating the criminals or a
group that had involves in suspected illegal conduct and expose and punish the criminal
activity. Thus, the agent provocateur also may be defined as one who provokes or suggests
the commission of an offence to another person hoping that the latter will go along with his
suggestion so that the other person may be convicted of the offence the agent provocateur
suggested Also, the function of agent provocateur is be a lawbreaker to entices another to
break the law and then informs crminals the others.

Thus, the admissibility of entrapment in Malaysia had state by refer to S.40 A(1)
Dangerous Drug Act (DDA) 1952 and S.52(1)(b) Malaysia Anti-Corruption Act (MACC)
200911. Hence, this two section had explained the same thing that is the agent provocateur
can’t presumed to be unworthy of credit because of he would attempted to abet or had been
engaged in a criminal conspiracy to commit such offence under two act with main purpose
11
S.40 A(1) Dangerous Drug Act (DDA) 1952

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

which is securing evidence against the accused12. In addition, the agent provocateur as a
undercover agent which sneak into a criminal group and involve in criminal activities, so the
agent will be under protection of this two act. Moreover, if the agent had really commit such
offence, so he must assume for the purpose to secure the evidence for charge the criminals.

By a way of illustration, there is the case that had related to entrapment in Malaysia
which case Wan Mohd Azman Hassan @Wan Ali v PP13. This is mission of undercover agent
of Royal Malaysia Police to collect the evidence for purpose to arrest unsuspecting drug
traffickers. In this case, the accused, Wan Mohd Azman Hassan @ Wan Ali and a co-
accused (one Pak Ya, now deceased) were convicted for a trafficking of drugs charge under
s.39B of the Dangerous Drugs Act 1952 . On appeal, the Court of Appeal upheld the
conviction. Subsequently, the facts relevant to this case is Police Detective Kpl. Mahmood
bin Nor (SP3) acted as an agent provocateur and posed as a drugs purchaser. SP3 was
introduced by another police personnel to an informer who in turn introduced him to a second
informer. The second informer introduced SP3 to the accused on 12.04.1999. Besides, the
agent provocateur had a mission to purchase the drugs that is ganja from accused and set up a
trap for accused which he gave the pre arranged signal to the police ambush team who had
taken position in the vicinity when SP3 promise with accused to do deal for drugs at the
appointed delivery place. However, unlike the evidence under those two circumstances, the
evidence of an agent provocateur is actually direct evidence on the commission of an offence.

Moreover, the Federal Court in Wan Mohd Azman Hassan @ Wan Ali v PP held that
in the case of an agent provocateur’s evidence, the statutory approval for the admission of
such evidence as governed by S.40A of the Act, is indisputable. The law is silent on the need
to subject such evidence to a balancing exercise although it was argued by the counsel of the
appellant to apply such requirement in the interest of fairness, like the position in England.
The Federal Court also highlighted that the principle of fairness is a double-edged sword. In
the fight against the drug menace, Parliament has deemed it fit that such evidence of an agent
provocateur is admissible without any restrictions. The trial judge is no longer vested with a
discretion to exclude such evidence. Hence, there is no need to corroborate the evidence of an
agent provocateur. The court’s role is to only interpret legislations and not adding new
elements especially when the words in statutes are clear and unambiguous. In foreign

12
S.52(1)(b) Malaysia Anti-Corruption Act (MACC)
13
Wan Mohd Azman bin Hassan @ Wan Ali v PP
[2010] 2 AMR 834

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LAW OF EVIDENCE ( LEI 3024 ) FINAL ASSESSMENT

jurisdictions, agent provocateur is discussed conjointly with the defence of entrapment.

Specific provisions in Malaysian statutes have not altered, but reaffirmed the substantive rule
of law that entrapment or use of agent provocateur does not afford a defence to a criminal
charge. The Federal Court in Wan Mohd Azman Hassan @ Wan Ali v PP held that the
common law position that entrapment is not a substantive defence remains the law. Lastly,
the court dismiss the appeal and affirm the conviction and sentence.

Furthermore, refer to the case as above, we can know it the essence of entrapment is
admissible in Malaysia in relation to offences pursuant to Dangerous Drugs Act 1952 and
it’s a regulatory method which collect more evidence with more effective to arrest more
criminals that had involved drug related offences. Moreover, it was a test for criminal’s mind
because the person that had entrapped is censurable if the action that the person had been
framed by other person to commit the offences is the one that hypothetical ethically
upstanding. And also, the person would be unlikely to have been led in the circumstances of
agent’s that had the plan to attempt to procure the action. In addition, when an agent
provocateur is called upon to testify in court, he is just another witness, and his evidence is
therefore subject to the general rules of evidence and procedures, both statutory and common
law. However, when it is provided for a manner in approaching particular category of
evidence or witness in a particular statute, then such a provision is a variation or exception to
the general rules of evidence and procedure. Therefore, corroboration warning for agent
provocateur has been dispensed with in certain statutes. The evidence given by such agents
shall also be admissible in trial and that 'admissibility' as opposed to 'weight' is of prime
importance.

In conclusion, the manner that entrapment and agent provocateur only allow to use in
Malaysia and it is admissible in court. But, those agent had taken the risk to complete their
mission because if the action had exposed, the evidence had been inadmissible. Also, this was
a great method that had used by RMP for the purpose of collecting information or evidence
against them or other persons that had involved in criminal activities such as drug and
corruption.