LAW OF EVIDENCE 2 (LAW 591)

TUTORIAL QUESTIONS
EXPERT AND OPINION EVIDENCE

1. What is expert/ opinion evidence?

Section 45 of Evidence Act 1950 provided that expert opinion is a person who is
specifically skilled in that foreign law, science or art, or in questions as to identity or
genuineness of handwriting or finger impressions in assisting the court that such
evidence are relevant facts.

Court prefers evidence of fact instead of evidence of opinion.

When opinion evidence relevant? When matters arise beyond court’s knowledge.

2. What is the distinction between the evidence of facts and evidence of opinion?

Evidence of facts is where the general rule of relevancy and admissibility comes into
play. When an evidence of fact is relevant, it is admissible in the court of law. However,
the evidence of opinion is generally not admissible even if it is relevant. Nonetheless,
there are exceptions under the Evidence Act 1950 which specifically states that under
Section 45 to Section 50 of the Evidence Act 1950, it is admissible. For example, an
evidence given by the expert upon a point of foreign law.

Furthermore, when the evidence of facts are relevant and admissible, the court has the
duty to accept the evidence. The court is not bound to accept evidence of opinion but
may exercise its discretionary power to accept evidence of opinion by looking at the
reason for the expert's opinion by virtue of Section 51 of the Evidence Act 1950.

Moving on, in accordance with Section 118 of the Evidence Act 1950, all persons shall
be competent to testify unless he 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
other cause of the same kind. For evidence of opinion, the persons who may testify are
experts (Section 45, 46, 51) and non-experts (Section 47-50).

3. What do you understand by ‘expert evidence’. Discuss this in relation to section 45 of the
Evidence Act 1950

Section 45 (1) of Evidence Act 1950 stated that when the court has to form an opinion
upon a point of foreign law or of science or art, or as to identity or genuineness of
handwriting or finger impressions, the opinions upon that point of persons specially
skilled in that foreign law, science or art, or in questions as to identity or genuineness of
handwriting or finger impressions, are relevant facts. Generally, expert evidence is
evidence tendered by an expert either a gazetted expert or experts that come within the
purview of Section 45 of the Evidence Act 1950. Under that provision, there are few
areas in which the Court would consider as expert evidence which are in the area of
foreign law, science or art, handwriting and finger impression.
 In the area of Foreign Law, the court would need an opinion by an expert as the Court
cannot take judicial notice for that except any law passed by the Parliament of the United

Kingdom. For science or art, the Court may call any experts to testify or to tender
evidence when the Judge does not possess any speciality on that subject matter. For
handwriting, the Court cannot rule without the aid of experts but it needs to be
corroborated. So, the court applies triangulation procedures which are expert, familiar
person, and other expert. For finger impression, the Court would need an aid from the
experts to identify the finger impression of the accused or anyone. These areas which
are mentioned under Section 45 of the Evidence Act 1950 are areas where the evidence
tendered by the experts will be considered as expert evidence.

4. When can a person be regarded as an expert?

- Section 45 of Evidence Act 1950 defines that a person with special skill in foreign law, science
or art, handwriting and finger impressions is an expert. However, Common Law cases have
expanded the criteria to experience, certain qualification, training or knowledge.

- In PP V DATO’ SERI ANWAR IBRAHIM [2014] 3 AMR 220 where the experts on behalf of the
plaintiff (PW5) ought to have been held more credible as PW5 had herself carried out various
tests and analysis of the samples as opposed to both DW2 and DW4. Both DW2 and DW4 are
merely “arm chair experts” whose opinions were based on textbooks and journals. Their opinion
thus cannot match the justification given by the prosecution experts. Moreover, the court will
look at in terms of qualifications, which PW5 has impeccable credential, holding a PhD in
Forensic DNA and is the head of the Serious Crime Unit, Chemistry Department Malaysia.

- Also, the court will look at the experience of an expert when there is conflicting opinion
evidence. In NILAI-3 PORCELAIN INN SDN BHD V BERJAYA SOMPO INSURANCE BHD
[2012] MLJU 1330, the court has accepted the expert opinion of a senior officer who had seven
years of experience, had attended 300 courses and had investigated 700 cases over another
expert who did not carry out the investigation on the day of the fire, had not checked the wiring
and had kept the samples for a few days.

5. What are the Court’s duties relating to expert evidence?

- i. Court failure to consider expert opinion in deciding may cause miscarriage of justice.

by virtue of Section 45 of the Evidence Act 1950, experts can be called to form an opinion to
assist the court in making a decision.

- In Syed Abu Bakar bin Ahmad v PP, if a judge is not in the position to provide a correct
judgement over a case, experts with special skill or experience may be called to assist the court.
In this case, the court required help in forming a correct judgement due to a dispute on the
handwriting. Although necessary, the court is not bound to accept an expert's opinion in forming
a judgement but there must be good reasoning as to the rejection. If a judge fails to call an
expert, this can be a ground of appeal because it is a matter of law.
- For example, when it comes to expert opinion involving handwriting, the court has to exercise
its utmost caution in formulating a judgement, whether to rely on the expert’s opinion or to reject
such opinion with valid grounds. As such, an expert's opinion on handwriting is generally not
conclusive and must be supported with corroborative evidence or a detailed explanation on
such evidence to convince the court. For example, in the case of PP v Mohamad Kassim the
court had acquitted the accused as the court held that opinion by an expert over a handwriting
issue can never be conclusive as the expert himself must provide a thorough explanation on
why he held such an opinion. Thus, when there is a conflicting opinion from different experts
who are tasked to assist the court, the court has the discretion to make preference over which
opinion they agree upon, if they can give a reasonable explanation as to why they accept that
one opinion over another. This was supported in the case of Singapore Finance Ltd v Lim Kah
Ngam where the court has the right to choose one opinion over another when there is a conflict
of expert opinion

ii. Court has a duty to assess and evaluate the expert’s opinion. Expert needs to provide a
reason for his opinion.

Dr Shanmuganathan

iii. Whether to accept or reject an opinion, the judge must provide reason, justification.

iv. Court is not obliged to accept expert opinion, even when there is no contrary expert evidence.
(But must provide a reason for rejection).

v. Court has discretion to reject opinion, but discretion must be exercised reasonably and wisely.
If there is no reason to reject it, then the judge should not reject it. Saeng-Un Udom v PP.
QUESTION 6

Chow is charged and convicted of reckless driving contrary to Section 41(1) of the Road
Transport Act 1987. His reckless driving resulted in the death of seven persons. At the trial
Chow said in a shaky voice, “I firmly believe that I have been affected by an epileptic fit at the
time. The fit must have made me lose control of the car. I intended to turn right at the junction,
but before I reached the junction, I suddenly lost consciousness.”

Doctor Eddy, a private medical practitioner, was brought as a defense witness. The doctor
testifies that he had been treating Chow for epilepsy for the last five years. In
cross-examination, the doctor said that the last time Chow was treated for epilepsy fit was about
six months ago. When asked by the DPP, to confirm whether Chow had an epileptic fit at the
time of the accident, the doctor replied, “No, I cannot conclusively say so!”

Later, the prosecution produced in Court, one Doctor Mohd Rani, and a leading neurologist of
10 years standing. Apart from having his own private practice, he is also a consultant
neurologist to many hospitals in the country. He had also published several articles; the latest
was entitled “Central Nervous System Disorders and Driving”.

In his testimony he was of the opinion that epileptics should be discouraged from driving as
epilepsy was one of the disorders which increases the risk of accidents in drivers by impairing
concentration among other things.

In cross-examination by the defense counsel, the neurologist said that epileptics should only be
allowed to drive in certain conditions only, viz. that they should be fit-free for at least two years
or if they got fits only at night.

The trial judge accepted the opinion of the neurologist and sentenced Chow to 4 years in jail
and a fine of RM10,000.
Chow now wishes to appeal against the conviction. Advice him on the possible grounds of
appeal, if any?

Issue: The issue is whether

QUESTION 7

Rumbia was charged with trafficking in raw opium, a dangerous drugs, contrary to section
39(b)(1)(a) of the Dangerous Drugs Act 1952. At the trial, the prosecution called Encik Attap, a
chemist who had analysed the said drugs to give evidence. He is a chemist of 10 years with the
Department of Chemistry.

During the examination in chief, Encik Attap gave a detail account of the procedure taken on the
substance. He has followed the established practice to lump all 4 bags of substance together,
analyse it and conclude that it was raw opium of 500 grammes in weight.

The trial judge ruled that the evidence of Encik Attap was admissible.

Rumbia is now appealing against the decision on the following grounds:-

(i) the chemist evidence should not be accepted on the face value;

(ii) the prosecution has failed to prove the competence of the chemist as it was not shown
that he has the expertise or experience in the analysis of dangerous drugs, in particular, opium;
and

(iii) that there is a break in the chain of evidence.

Consider each of these grounds of appeal.

QUESTION 8

Sisi was charged with trafficking in raw opium, a dangerous drugs, contrary to section 39B(1)(a)
of the Dangerous Drugs Act 1952. At trial, the prosecution called Mattop, a chemist who had
analysed the said drugs, to give evidence. He is a chemist of 5 years experience with the
Department of Chemistry.

The prosecution did not lead any evidence that Mattop had the necessary experience or
expertise in the analysis of the dangerous drugs, in particular, opium. The trial judge ruled that
the evidence of Mattop was relevant and admissible.

Sisi wishes to appeal against the decision on the grounds that chemist’s evidence should not be
accepted on its face value and that the prosecution had failed to prove the competence of the
chemist.

Advise him on the following:

(a) who is an expert witness and the nature of evidence given by him;

(b) how expert evidence should be presented at the trial and the admissibility of such evidence

(c) the qualification and competency of an expert witness.

Advise Sisi.

FACT IN ISSUE: Whether Sisi is guilty (If criminal. If civil, “liable”) for trafficking raw opium
contrary to section 39B(1)(a) of the Dangerous Drugs Act 1952.

Evidence here: A chemist of 5 years experience.

a) Whether Encik Mattop is an expert.

GR - opinion, not acceptable, but exception under s. 45. Gazetted or non-gazetted expert.
Bagi contoh dalam s. 45. He is an expert.

Nature of evidence given? Opinion or factual? Khoo Hi Chiang v PP. Opinion because it
is an inference drawn from perceived facts. If what he says is beyond his expertise, then
his opinion evidence will be treated as factual evidence by the court. Factual evidence is
bound to be accepted if it is relevant and admissible. Contoh: air bertukar biru selepas
masukkan titisan iodin. Ini factual evidence because it can be inferred from anyone else
who perceived it using their senses. Therefore, it is not fatal if we fail to prove Mattop
qualifications. Contoh lain: orang yang pernah menagih dadah hidu dadah, dah boleh
putuskan itu dadah apa, tanpa perlu dia ada expert qualification (maka, ini factual
evidence). Mattop evidence is factual evidence therefore the court is bound to accept that
evidence. No reason needs to be given by court as justification.

b) how expert evidence should be presented at the trial and the admissibility of such
evidence

Sisi wishes to appeal against the decision on the grounds that chemist’s evidence
should not be accepted on its face value. Can the judge accept on its face value? Yes.
Khoo Hi Chiang. Unless, it is being contradicted by the other party or secondly, the
opinion is inherently incredible (sukar dipercayai).

PP v Chia Leong Foo. When evidence is factual evidence, can accept it on its face value.
No need to show step by step or go into details of what was done.

PP v Balachandran

PP v Siow Wei Hoong (??) 2008 5 MLJ 173

If the factual evidence is relevant and admissible, then the court is bound to accept it
without the need to give justification.

c) the qualification and competency of an expert witness.

QUESTION 9(a)

Nana was charged for driving in excess of the speed limit. She enters a plea of not guilty and
claims trial. The prosecution produced a computer printout from the Automatic Enforcement
System (AES) database. The printout recorded that Nana was driving at the speed of 180
kilometers an hour in excess of the speed limit of 90 kilometers an hour. The evidence was
tendered by Inspector Malik as the officer in charge of the Automatic Enforcement System
(AES). He holds a basic degree in database management from National University of Malaysia.
The defence questioned the accuracy of the Laser Speed gun used in the Automatic
Enforcement System (AES). The prosecution re-examined Inspector Malik on how the laser
speed gun functioned and to form his opinion on the accuracy of the data recorded by the laser
speed gun. Inspector Malik said, “ that a laser speed gun measures the round-trip time for light
to reach a car and reflect back. Light from a laser speed gun moves a lot faster than sound --
about 984,000,000 feet per second (300,000,000 meters), or roughly 1 foot (30 cm) per
nanosecond. A laser speed gun shoots a very short burst of infra red laser light and then waits
for it to reflect off the vehicle. The gun counts the number of nanoseconds it takes for the round
trip, and by dividing by 2 it can calculate the distance to the car. If the gun takes 1,000 samples
per second, it can compare the change in distance between samples and calculate the speed of
the car. By taking several hundred samples over the course of a third of a second or so, the
accuracy can be very high.” Based on the above facts Inspector Malik formed an opinion that
the data was accurate.

The defence did not call any witness to contradict Inspector Malik’s statement.

With reference to statutory provisions and decided cases, discuss whether there is a proper
basis for the reception of the above evidence of opinion?

MAIN ISSUE: Whether the trial judge was correct in accepting Inspector Malik’s opinion
evidence.

1) First sub-issue. The opinion from Inspector Malik is opinion evidence and not factual
evidence because it is an inference drawn from the facts observed from the AES. If factual,
anybody can give the evidence. Since this is expert opinion, it needs to be given by an expert
having qualification and skill.

2) Second sub-issue. How to justify a matter is complex matter in nature? By quoting

Inspector Malik said, “ that a laser speed gun measures the round-trip time for light to reach a
car and reflect back. Light from a laser speed gun moves a lot faster than sound -- about
984,000,000 feet per second (300,000,000 meters), or roughly 1 foot (30 cm) per nanosecond.
A laser speed gun shoots a very short burst of infra red laser light and then waits for it to reflect
off the vehicle. The gun counts the number of nanoseconds it takes for the round trip, and by
dividing by 2 it can calculate the distance to the car. If the gun takes 1,000 samples per second,
it can compare the change in distance between samples and calculate the speed of the car. By
taking several hundred samples over the course of a third of a second or so, the accuracy can
be very high.” which can be justified as scientific and complex. PP v Sam Hong Choy.
Must listen to expert opinion first. Junaidi Abdullah case.

Judge is correct to accept expert opinion first involving a complex matter because it is
beyond his knowledge. Syed Abu Bakar’s case.

3) The third sub issue is whether Inspector Malik is a qualified expert.

Raise the issue on whether Inspector Malik is a qualified expert. Explain the law on
qualifications. Is he qualified? He is an officer in charge, and has a degree in database
management. Did he give testimony before in court? Question is silent but if he did not, it
is not a must for him to have him appeared before. Conclusion for sub issue: Therefore,
Inspector Malik is a qualified expert.

4) Fourth sub-issue. s. 51 - Inspector Malik must give reason for his opinion. Khoo Hi
Chiang case. He did give his reason by explaining in detail about the accuracy of the
AES.

5) Fifth sub-issue. Whether the court obliged to accept. No. But if it is a sound opinion as
the one given by Inspector Malik who is not an armchair expert, then the court does not
need to reject the opinion, unless the court has valid reason, as the discretion of the
court is expected to be utilised wisely and reasonably. Saeng-Un Udom v PP case.

6) Whether the data produced by AES is admissible.

Machine, CCTV, computer. Machine like AES - s.90A, documents produced by computers.
Inspector Malik testified for the AES accuracy.

IFFFFFF WE ARE TO ASKED TO FORMULATE A GROUND OF APPEAL (CARI MANA

JUDGE NI SALAH) IN FAVOUR OF NANA? ANSWER: The judge did not provide reason
for him accepting the opinion. And Inspector Malik did not provide reason.

Not to formulate ground but to see whether the reception of the ground is good.

The fact in issue is whether Nana is guilty for driving in excess of the speed limit.

The evidence here is Inspector Malik’s opinion regarding the accuracy of the data recorded by
the laser gun in the Automatic Enforcement System (AES).

MAIN ISSUE: Whether the trial judge was correct in accepting Inspector Malik’s opinion
evidence.

- Generally, opinion evidence is not admissible

- Exception: Section 45
 - Section 45(2) : who is an expert
- Expert opinion becomes relevant and limited only to several categories :
Foreign law, Science or art, Handwriting, Finger impression
- Test in Junaidi Bin Abdullah v PP: For an evidence involving an expert is
tendered in court, the test that need to be considered under s. 45 are:
- does the nature of the evidence requires special skills?
- does the witness that is brought to court have the necessary
skills/knowledge/ experience (expert)?
- the judge has to decide on the weight to be attached to the opinion
evidence of an expert
- Section 51 of EA- whenever the opinion of any living person is relevant, the
grounds on which his opinion is based are also relevant.
- Justification or reason of his opinion
- Case: Lai Yong Koon [1962]:
- EW cannot make BARE ASSERTION. Bare assertion of an Expert
opinion will have no evidential value.

Wong Chop Saow v PP: Expert must also give his qualification too. The 3 things to consider
his qualification is to state his qualification, whether he has given any evidence as an expert in
court before and whether that evidence is accepted by the court.

PP v Sam Hong Choy: A Chief Inspector of Police who was also an assistant armourer was
competent to give evidence on the serviceability of a pistol as the evidence he gave was not a
complex and scientific nature which would require special skill.

Sim Ah Song & Anor v Rex [1951] MLJ 150 - where an expert is requested to explain the
nature of a document, the expert should explain its content by explaining the technical and
unintelligible terms contained in it.

Application:

Applying Section 51, the opinion of Inspector Malik may be relevant as he is the officer in
charge of AES. It means that he has expert knowledge in handling the AES system and can be
further supported with his degree in database management to prove his qualification. The act of
Inspector Malik which explains the technicality of the AES in detail when requested by the court
is relevant as in accordance with Sim Ah Song & Anor v Rex [1951] MLJ 150.

Conclusion:

In conclusion, Inspector Malik’s opinion is relevant and admissible under Section 51 of EA 1950.
QUESTION 9(b)

Wani had blocked a ‘right of way’ across her land. The ‘right of way’ was used by her cousins to
pass by from their land to the public road. Ahmad, one of the cousins, brought an action for a
declaration that he and others have a common law easement to use Wani’s land as a ‘right of
way’. He called Pak Musa, the village Penghulu to testify that prior to Wani inheriting land from
her father, her father had created a wakaf for the benefit of his family to use part of his land as a
‘right of way’. The court accepted and acted on the opinion of Pak Musa on the existence of
‘right of way’ for the benefits of Wani’s cousins on her land. Wani appealed against the
decision on the ground that the judge had erred in law for accepting Pak Musa’s opinion.

Advise Wani (appellant).

The fact in issue is whether the judge had erred in law in accepting Pak Musa’s opinion.
Whether Ahmad and others have a common law easement to use Wani’s land as a right of way.

The first issue is whether Pak Musa’s opinion on right of way is relevant and admissible as
expert evidence provided under Section 48 of the Evidence Act 1950.

Whether the trial judge has erred in law for accepting Pak Musa’s opinion.

Section 45 - When the court has to form an opinion upon a point of foreign law or of science or
art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that
point of persons specially skilled in that foreign law, science or art, or in questions as to identity
or genuineness of handwriting or finger impressions, are relevant facts.

Evidentiary value of expert evidence

Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ 217 provides that lack of qualification
or experience on the part of an expert must necessarily affect the weight of evidence rather
than admissibility.

Section 48 - when the court has to form an opinion as to the existence of any general custom or
right, the opinions as to the existence of such customs or right of person who would be likely to
know of its existence, if it existed, are relevant.

The explanation provided under Section 48 states that the expression “general custom” or right
includes customs or rights common to any considerable class of persons. This means that the
provision does not include or apply to any private right or custom.
Section 48 is not applicable because this dispute in issue is about private custom because it
only involves Wani and other cousins who are family members. Wrong to have Pak Musa to give
opinion on general custom.

However, Section 13 of Evidence Act 1950 may apply for private customs.

Nevertheless, the custom or right can be proved by two ways such as adducing expert evidence
or judicial notice.

This can be illustrated in Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262 whereas the
court was satisfied that the expert called was a recognized authority of Foochow custom
pertaining to matrimonial matters in Sarawak.

Besides, in Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ
30 held that judicial notice will be given to any custom or usage which has repeatedly been
recognized by the courts and it passes into the law of land which means that no expert opinion
needed.

Application:

The expert in question is Pak Musa. Applying Section 48 of the Evidence Act 1950, Pak Musa
is the village Penghulu who was called to testify in the court due to his knowledge on the
existence of Wani’s land regarding the wakaf that has been made by her father for the benefit of
their family. Such a provision is applicable in this case because the land is wakaf. Wani cannot
simply block the access across her land since that is the only way that connects Ahmad’s land
to the public road.

In this case, the court seems satisfied and recognizes Pak Musa who has the knowledge on
customs pertaining to the wakaf land by applying Kong Nen Siew v Lim Siew Hong [1971] 1
MLJ 262. However, according to Pembangunan Maha Murni Sdn Bhd v Jururus Ladang
Sdn Bhd [1986] 2 MLJ 30, Pak Musa’s opinion is not relevant in this current case because the
court may apply the judicial notice to the custom with regards to wakaf land which has been
recognized by the courts and it passes into the law of land.

Conclusion:

In conclusion, the opinion of Pak Musa is irrelevant and inadmissible under Section 48 of
Evidence Act 1950.

3
Mansor Rashid