ULV 4612: LAW OF EVIDENCE

TOPIC 2: Burden of Proof and Standard of Proof

2.0 Introduction
1. According to ‘Law of Evidence in Malaysia’ by Mariette Peters, the “burden of proof”
refers to the duty or obligation to prove or to establish a case, while the “standard of
proof” refers to the extent or quantum of proof.
2.1 Burden of Proof
1. Section 101 of the EA reads:
(1) Whoever desires any court to give judgment as to any legal right or liability,
dependent on the existence of facts which he asserts, must prove that those facts exists.
(2) When a person is bound to prove the existence of any fact, it is said that the burden
of proof lies on that person.
2. In Tenaga Nasional Bhd. v Perwaja Steel Sdn. Bhd. [1995], Low Hop Bing J opined
that in construing S. 101(1) of the EA, as far as the plaintiff is concerned, he is to
prove such facts as he desires the court to give judgment as to his right to claim against
the defendant. As for S. 101(2), it essentially means that the burden of proving such
facts (for him to succeed against the defendant) is on the plaintiff.
3. With regard to the phrase “burden of proof”, it has 2 distinct meanings, namely:
(a) Burden of establishing a case (“Legal Burden”); and
(b) Burden of introducing evidence (“Evidential Burden”).
4. Despite absence of the EA in referring to the 2 concepts, cases show that both legal
burden and evidential burden exist in interpreting EA. For instance, Tun Salleh Abas
FCJ in the Federal Court case of International Times v Leong Ho Yuen [1980] held:
‘...for the purpose of this appeal it is necessary to bear in mind the distinction between
the 2 senses in which the expression burden of proof and onus of proof are used. The
first sense, signified by the expression burden of proof such as referred to in S. 101 of
the EA is the burden of establishing a case and this rests throughout the trial on the
party who asserts the affirmative of the issue. The appellant in the present appeal
relied on justification and fair comment (this case was concerning on defamation).
Therefore, the burden of proving these defences rests entirely upon them.
The second sense referred to an onus of proof, relates to the responsibility of adducing
evidence in order to discharge the burden of proof. The onus as opposed to burden is
not stable and constantly shifts during trial from one side to the other according to the
scale of evidence...’
5. The same is also true to criminal case. In Aziz bin Muhammad Din v PP (1996),
Augustine Paul J held that:
 ‘The burden of establishing a case must be contrasted with the burden of introducing
evidence (evidential burden). The former is governed by S. 101 of the EA while the
latter is governed by S. 102 of the EA. The burden of establishing a case rests
throughout the trial on the party who asserts the affirmative. However, the burden of
introducing evidence in a case shifts constantly as evidence is introduced by one side
or the other.’
6. Section 102 reads:
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
7. If the burden is a legal burden, then the party has a positive duty to prove such facts
beyond reasonable doubt (for criminal, the prosecution) or on a balance of probabilities
(for civil, and if criminal, the accused). If the burden is evidential burden, then the
party is merely needed to adduce some evidence to raise a reasonable doubt.
8. Therefore, the concepts of legal burden and evidential burden is crucial in criminal
proceedings as it will lead to drastically different outcome for the accused.
2.2 Legal burden v Evidential burden: The disagreements (In criminal cases)
1. In the Privy Council (appeal from Sri Lanka) decision of Jayasena v R [1970] AC 618,
Lord Devlin commented that:
‘...it is confusing to call it [the evidential burden] a burden of proof. Further it is
misleading to call it a burden of proof, whether described as legal or evidential or by
any other adjective, when it can be discharged by the production of evidence that falls
short of proof...
...it is impossible to suppose that there can be more than one kind of burden of proof or
that the burden imposed by S. 105 can be anything less than proof in accordance with
S. 3.’
2. Lord Devlin in making reference to “proved” under S. 3 of the EA, refers that to only
“legal” burden of proof and of no other.
2.2.1 S. 105: Legal Burden
3. Lord Devlin’s statement in Jayasena at best, is half-correct. Under S. 105 of EA, the
burden is on the accused to establish circumstances to bring his case within the
exceptions of the Penal Code or any other law (to establish statutory defence), and
such burden is indeed a “legal” burden.
4. S. 105:
When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal
Code, or within any special exception of proviso contained in any other part of the
 same Code, or in any law defining the offence, is upon him, and the court shall
presume the absence of those circumstances.
5. As such, an accused has a legal burden to prove statutory defences on a balance of
probabilities such as private defence, accident, mistake, intoxication, provocation and
others. General exceptions may be found in Penal Code Chapter 4 (Ss. 76 - 106).
6. As in the case of Jayasena itself, the Privy Council held that in order to establish the
defence of (Private defence?), the accused must, in light of Ss. 105 and 3 of EA, prove
it on the balance of probabilities. The same is also true to the Federal Court case of
Ikau anak Mail v PP [1973] 2 MLJ 153 (provocation). Other instances include PP v
Kenneth Fook Mun Lee [2002] 2 MLJ 563 (insanity) and Murugapillai v PP [2011] 5
MLJ 730 (intoxication).
7. In R v Chanderasekara, it was held that there are 2 types of defence. One is to attack
elements of the case for the prosecution while the other is not. One example of the
former type of defence is alibi, where it attacks the actus reus of an offence (If I’m not
there at the scene, how could I have committed the offence?). The other one includes
accident, where it attacks the mens rea of an offence (If the whole thing was a genuine
accident, how is that possible that I wanted to hurt him?!).
8. For this type of defence, the accused would have secured acquittal if they managed to
cast a doubt on the prosecution’s case because it consequently follows that the
prosecution has failed to prove their case beyond reasonable doubt. For this type of
defence, the burden on the accused is merely an evidentiary one. (See below)
9. However, in the discussion of this context, there is the second type of defence which
does not attack elements of an offence but instead, they justify the action of the
accused. When these independent defences such as private defence, provocation,
intoxication, insanity, etc., which are considered as general exceptions under the Penal
Code are pleaded, the accused is, in fact, conceding to the fact that they did commit the
offence and responsible for the victim’s injury but they should not be convicted for the
offence because they have cogent reason of having committed such offence.
10. In such instance, the statutes would lay down a legal burden on the accused and the
accused bears the burden to adduce additional facts to prove / establish his defence on
a balance of probabilities.
11. Therefore, as mentioned in the Supreme Court decision of Nagappan Kuppusamy v
PP [1988] 2 MLJ 53, s. 105 of the EA should not be read in isolation of the provisions
but must be read in relation to Ss. 101 and 102. S. 105 specifically applies to situations
of statutory defences and the burden on the accused to prove the circumstances falling
under exceptions is a legal one.
2.2.2 S. 103: Evidential Burden
12. S. 103 reads:
 The burden of proof as to any particular fact lies on that person who wishes the court
to believe in its existence, unless it is provided by any law that the proof of that fact
shall lie on any particular person.
13. The application of S. 103 would be relevant in the case of an accused raising alibi as
his defence. Alibi is not a statutory defence, it means, in Latin, elsewhere at other
place. According to the case of Ku Lip See v PP, an alibi is a common law defence that
places the defendant at the relevant time of the crime in a different place than the scene
involved. For this defence to be successful, the burden is on the accused to adduce
evidence (any particular fact) which amounts to such an effect.
14. Illustration (b) to S. 103 of EA perfectly covers alibi situation:
B wishes the court to believe that at the time in question he was elsewhere. He must
prove it.
15. Issue was raised concerning the accused’s burden of proof with regard to alibi. It
depends on the interpretation of “prove” within S. 3 of the EA and in the case of
Jayasena, Lord Devlin totally rejected the concept of ‘evidential burden’ as such
burden could be discharged by merely producing evidence, which has not attained the
purpose of “proving”. Instead, “burden of proof” within the EA should be construed in
accordance with S. 3: “proved”, and as such, even if the defence is alibi in nature, the
burden is on the accused to prove it on a balance of probabilities (legal burden).
16. In Malaysia, where alibi is concerned, the Federal Court case of Dato’ Mokhtar
Hashim v PP [1983] 2 MLJ 232 agreed with the approach laid down by Jayasena that
an accused person bears a legal burden to prove his alibi. However, reference was
made to S. 402A of the Criminal Procedure Code. Abdoolcader FCJ held:
“The concluding words of S. 402A(2) ‘for the purpose of establishing his alibi’ are
significant and would seemingly put a probative burden on an accused...alibi
evidence should be scrutinised very carefully, for it is easy to set up an alibi and not
always easy to prove it, and it must be definitely proved in order to suffice for the
rebuttal of a case made out by the prosecution.”
17. In Empati Mat v PP [2010] 1 CLJ 814, the Court of Appeal made reference to Dato’
Mokhtar Hashim and held that for the defence of alibi, the burden is legal one.
However, the court seemed to agree with the trial judge that to secure acquittal, the
burden on the accused is only evidentiary.
18. Be that as it may, the Dato’ Mokhtar Hashim approach was criticized in another
Supreme Court decision of Yau Heng Fang v PP [1985] 2 MLJ 335, where the court
held that the earlier Federal Court had misdirected themselves at law by setting a new
statutory burden on the defence of alibi (not being a statutory defence) based on S.
402A of the CPC.
19. In the words of Mohd. Azmi FCJ:
 “...There is no burden placed on the accused to prove his innocence...defences such as
alibi place merely an evidential burden of introducing some evidence enough to
create a reasonable doubt in the minds of the jury.”
20. However, in prescribing evidential burden, the Supreme Court in the above case did
not make any reference to S. 103 of the EA. Yau Heng Fang was adopted in a
subsequent Supreme Court decision of Illian v PP [1988] 1 MLJ 421, and then by a
High Court in Arumugam Mothiyah v PP [1995] 1 CLJ 58.
21. In Arumugam, the judge held that since the wedding, in which the accused alleged to
have attended, had taken place at the date and time of the crime, therefore the Sessions
Court judge had erred in rejecting his defence of alibi. Following Illian, the High
Court acquitted the accused.
22. Similar position was again adopted in cases such as Mohammad Najidi Abdul Halim v
PP [2011] 1 LNS 172 (Brilliant judgment as claimed by Ms. Mages), and Magendran
Mohan v PP [2011] 1 CLJ 805, FC. However, reference should be made to a recent
Federal Court decision of PP v Azilah Hadri [2015] 1 CLJ 579, in ascertaining where
the law stands currently.
23. In general, trend of case laws shows that with regard to the defence of alibi, the burden
on the accused is merely an evidentiary one. As mentioned earlier, alibi defence is not
a statutory defence and as such, it automatically disqualifies itself from the application
of S. 105 of EA, which places a legal burden.
24. Alibi is to attack elements of prosecution’s case and as long as the prosecution fails to
establish his case beyond reasonable doubt, due to the evidence adduced by the
accused which shows reasonable doubt, then the accused is entitled to acquittal. The
burden for the accused, to secure his acquittal, is to introduce sufficient evidence to
cast doubts on the prosecution, but not to establish a totally independent defence.
Therefore, his burden for maintaining alibi defence is only evidentiary (to introduce
sufficient evidence), but not to establish a whole set of independent defence on the
balance of probabilities to justify his committing of a crime.
2.3 Burden of Proof (Prosecution)
1. Pursuant to S. 101 of EA, it is the general rule that “he who asserts must prove”.
Therefore, in the case of prosecution, since it is them who asserts the guilt of the
accused, following S. 101, it is incumbent upon the prosecution to bear the legal
burden, and to prove every element of the offence beyond reasonable doubt in order to
obtain a conviction. This is supported by Illustration (a) to S. 101:
A desires a court to give judgment that B shall be punished for a crime which A says B
has committed. A must prove that B has committed the crime.
2. By and large, such general principle is derived from the common law concept of
presumed innocence until proven guilty, which was pronounced remarkably in the
 classic English case of DPP v Woolmington. In that case, the accused killed his wife
with a gun, but he pleaded it as an occurrence due to an unforeseeable accident.
3. The trial judge held that once the prosecution succeeded in proving that the accused
had killed (actus reus) his wife, then it will be presumed to be murder unless accused
can satisfy the court that it was an accident. Such decision was criticized by the House
of Lords subsequently.
4. Lord Sankey LC held that it is the prosecution’s duty to prove the accused’s guilt. Not
only must the prosecution proved that the accused had killed the wife, he must proved
that he had done so with malicious intention (mens rea). If there is any reasonable dout
created, then the prosecution failed to make out his case and the accused is entitled to
an acquittal.
5. Such position has been transcended into our local courts and being accepted as trite
law. In Mat v PP [1963] MLJ 263, the Magistrate chose to convict the accused with
theft and dishonestly retaining stolen property because on the whole, the Magistrate
was “unable to believe the defence”. Such decision was criticized later on by Suffian J
as he held that even if explanation given by accused was not strong as to secure
acquittal, it does not necessarily mean that the accused is found guilty automatically if
the prosecution fails to prove his case beyond reasonable doubt.
6. If the court accepts explanation given by the accused, then he must be acquitted for
there must definitely be a reasonable doubt on the prosecution’s case. Alternatively, if
the prosecution could not establish it beyond reasonable doubt, even if accused could
not succeed in his defence, the accused should still be acquitted.
7. Similar position was adopted in the case of PP v Saimin [1971] 2 MLJ 16. The
Magistrate convicted the accused because he “partially believed” that the charge had
been established by the prosecution. The appellant court hearing the case later on held
that the proof against the accused depends for its support not upon the absence or
weakness of the explanation on his part but on the positive and affirmative evidence of
his guilt given by prosecution.
8. A conviction cannot be sustained even if the court satisfied that the prosecution’s story
may be true, unless and until it is found that the prosecution’s story must be true. The
burden of proof remains on the prosecution throughout the trial. Regardless of the
accused’s defence or position, it does not alter the preposition that the prosecution
ought to prove his case beyond reasonable doubt.
9. Are there any exceptions to this general rule of burden remains at prosecution at all
time? Yes, when there is a shift of burden through imposition of presumptions via
statutes or law. As seen from the case of Mohd Radhi Yaakob [1991] 3 MLJ 169, Ss.
37(d) and 37(da) of the Dangerous Drugs Act 1952 provides that certain elements of
offence are presumed to be found as against the accused and the burden is shifted upon
the accused to rebut such presumptions on a balance of probabilities.
10. The following remarks from Suffian J in the case of Mat v PP is helpful for judges:
 a. If you are satisfied beyond reasonable doubt as to the accused’s guilt, convict.
b. If you accept or believe the accused’s explanation, acquit.
c. If you do not accept or believe accused’s explanation, do not convict automatically
but consider the steps below:
(i) If the explanation does not raise in your mind a reasonable doubt as to his
guilt, convict.
(ii) If the explanation raises in your mind a reasonable doubt as to his guilt,
acquit.
2.4 Burden of Proof (Civil cases)
1. As a general rule based on S. 101 of EA, he who asserts must prove, and hence in civil
cases, the burden rests on the plaintiff and/or claimant to establish elements to his
claim and such standard of burden is on the balance of probabilities.
2. Similarly, exception is created in S. 103 of EA, where if the defendant and/or
respondent would like to introduce defences such as consent, contributory negligence,
frustration, mistake, etc., he has the burden to prove such particular fact and the
standard is again, on the balance of probabilities.
(You may ask: Why not ‘evidential burden’, as in criminal cases? In my opinion, this is
due to the fact that in civil cases, the standards for either plaintiff or defendant is both
balance of probabilities; while in criminal, the onus on the prosecution is greater, ie.
Beyond reasonable doubt. Since it must be established beyond reasonable doubt, if the
accused manages to cast some reasonable doubt to his guilt, then prosecution’s case
will not be established. That is never the case in civil. Both parties share the same
burden and the burden is to prove on the balance of probabilities.)
3. As mentioned earlier, S. 105 is only applicable to criminal cases, never civil.
4. A question arises then: What if in a civil proceedings, criminal allegations such as
fraud, forgery are raised and what should be the standard then? Beyond reasonable
doubt, or balance of probabilities?
5. Despite all the misdirection of law laid down in the Federal Court in Boonsom
Boonyanit v Adorna Properties [2001] 1 MLJ 241, the court insisted on one right
thing, and it is that in allegation of forgery in civil cases, the standard of proof will be
the civil standard of balance of probabilities.
6. The law is shifting temporarily for in 2005, the Federal Court decision in Yong Tim v
Hoo Kok Cheong [2005] 3 MLJ 553 held that standard of proof for an allegation of
fraud in civil case will be the criminal standard of beyond reasonable doubt. This is
further supported by another Federal Court decision of ASEAN Security Paper Mills
Sdn. Bhd. v CGU Insurance Bhd. [2007] 2 MLJ 301.
7. However, of more recently, the law has been shifted back to its original position for in
the landmark Federal Court decision of Sinnaiyah & Sons Sdn. Bhd. v Damai Setia
Sdn. Bhd. [2015] 7 CLJ 584 the court held that in law, there are only 2 standards of
proof: BRD for criminal cases and BOP for civil cases. Therefore, even if a claim in
civil is found on fraud (or any other criminal allegations), the standard of proof
remains that as balance of probabilities. There is no such thing as a third standard.
8. The Court of Appeal case of Md Hilmi Md Noor v Azman Ahmad [2016] 7 CLJ 360
can be referred for further confirmation.
2.5 Standard of Proof
1. After discussing on who has the burden to prove, we have to now consider what
standard is required to discharge the burden. The standard of proof refers to the
quantum or extent of proof required to discharge the burden of proof. The issue of
standard of proof only arises after it has been determined, by law, as to who has the
burden of proof.
2. Standard of proof could be inferred from S. 3 of the EA for the term “proved”. The
Privy Council decision in PP v Yuvaraj [1969] 2 MLJ 89 held that the parliament
would not have intended to depart from established common law standards and they
are BRD and BOP.
3. Furthermore, Sinnaiyah (supra) tells us that there are only 2 standards of proof: BOP
and BRD.
2.5.1 Beyond reasonable doubt (Prosecution)
4. Such standard is not determined in the EA, instead, it is prescribed under S. 182A of
the CPC where subsection (1) states that at the conclusion of the trial, the court shall
consider all evidence adduced before it and shall decide whether the prosecution has
proved its case BEYOND REASONABLE DOUBT.
5. The same is also true under S. 173(m) of CPC where it concerns summary trial.
6. Not to forget all the cases mentioned regarding on the prosecution’s burden to establish
a case BRD. However, what is BRD and what does it mean?
7. In Miller v Minister of Pensions, Lord Denning besides cautioning the confuse
between ‘beyond reasonable doubt’ and ‘beyond a shadow of doubt’, prescribes the
meaning of BRD as follows:
‘....It need not reach certainty, but it must carry a high degree of probbility. Proof
beyond reasonable doubt does not mean proof beyond the shadow of doubt...If the
evidence is so strong against a man as to leave only a remote possibility in his favour
which can be dismissed with the sentence ‘of course it is possible, but not the least
probable’, the case is proved beyond reasonable doubt, but nothing short of that will
suffice.’
7A. From the case of PP v Saimin, it was held that:
 ‘...a reasonable doubt is the doubt which makes you hesitate as to the correctness of the
conclusion which you wish to reach...It is a doubt which settles in your judgment, and
finds a resting place there. It must be a doubt so solemn and substantial so as to
produce in the minds of the jurors some uncertainty as to the verdict to be given.’
2.5.2 Balance of Probabilities (Civil cases)
8. Also from the same case of Miller, Lord Denning defines the civil standard of balance
of probabilities as:
‘...if the evidence is such that the tribunal can say ‘We think it more probable than
not’, the burden is discharged, but if the probabilities are equal, it is not.’
9. It means that if the judge thinks that one side’s argument is more probable than the
other, he can then pronounce judgment in favour of the side. In numerical terms, it is
something akin to 51% probability vs 49% probability. The greater 51% of probability
will win. (Numbers are just for illustration, they are never binding.)
2.5.3 Nature of circumstantial evidence (in criminal cases)
10. 2 issues will probably arise in criminal proceedings:
(a) Is circumstantial evidence sufficient to convict an accused?
(b) If so, is there a higher standard of proof on the prosecution if he is to rely on
circumstantial evidence?
11. (A) can be answered affirmatively, yes. Circumstantial evidence is evidence of
relevant facts from which the existence (non-existence) of facts in issue may be
inferred. In the classic judgment by our first Chief Justice Thompson J in the case of
Chan Chwen Kong [1962] MLJ 307, it was held that circumstantial evidence is not to
be considered in isolation, for it will be weak; instead, they should be considered as a
whole, along with the other circumstantial evidence to decide as to whether in totality,
the evidence available is strong enough to convict the accused.
12. The judgment from Thompson J is illuminating because in reality, it is very rare that
an accused can be convicted solely based on direct evidence (evidence establishing fact
in issue) because they would normally be absent. Therefore, requiring direct evidence
would be too much of a burden on the prosecution and it impedes the crimial justice
process.
13. Consider the case of Sunny Ang [1966] 2 MLJ 195, FC. The accused was charged and
convicted for murder despite the fact that the body of the deceased was never
discovered. (No direct evidence) The Federal Court, based on circumstantial evidence,
convicted the accused:
- The accused was declared bankrupt earlier and remained so until the event;
 - The deceased was insured against accidents with several companies and the accused’s
mother was named as beneficiary in some of the insurance policies. The deceased in
her will named the mother as sole beneficiary;
- The accused allowed and encouraged the deceased to dive in dangerous waters
despite the fact that the deceased was only a beginner;
- The accused did not go down to the water himself when deceased failed to resurface,
and he remained calm throughout.
- Less than 24 hours after deceased’s disappearance, the accused made a formal claim.
(Convict or not to convict? Convict of course!)
14. Furthermore, consider the infamous Mona Fandey case of Juraimi v PP [1998] 1 MLJ
537 which involved the murder of one Dato’ Mazlan:
- The decapitated body of the deceased was recovered from the house occupied by the
3 accused;
- The death of the deceased was caused by severance of his head by a weapon similar
to the axe recovered in the same premise;
- Certain items belonging to the deceased was found in the same premise;
- Deceased was last seen alive in his car with the 2nd accused.
- The accused were facing financial difficulty but soon after the deceased’s death, they
went on a spending spree.
(Convict or not to convict? Convict.)
15. However, the case of PP v Sarjit Kaur Najar Singh [1998] 1 MLJ 184 held that the
circumstantial evidence were not sufficient to convict the accused for murdering her
husband. The evidence include:
- The accused was an unfaithful wife;
- The accused was ill-treated;
- The accused was in a position to benefit financially from the death of her husband;
- Blood stains were found on accused’s dress; and
- Accused insisted the maids and children to go to bed earlier than usual.
Visu Sinnadurai J held that:
‘...the entire string of strands do not withstand the weight, but merely snap through
lack of sufficient evidence, leaving the prosecution merely to be clutching at straws,
not ropes...’
(In my opinion, I feel the circumstances are rather similar with Sunny Ang, however,
the court decided the otherwise was probably because there was a lack of firmer
 circumstantial evidence which points to the effect that it was indeed the wife who
committed murder against the husband.)
16. Consider also PP v Hanif Basree Abdul Rahman:
- No signs of break-in into the deceased’s house, thereby suggesting that the killer was
someone known to the deceased. The accused had intimate relationship with the
deceased and had access to her house.
- The accused was the last person seen with the deceased and was last person to have
sexual intercourse with her;
- DNA profile of the accused was found on the face towel;
- The accused’s height suggested that he could climb over the wall to escape after the
murder and that he had shaved his pubic hair clipped his fingernails showing signs of
anxiety and fear.
The court held that viewing all the evidence in totality, there was too many doubts in
the prosecution’s case and that the inferences made had rendered an appearance more
favourable to the accused.
17. For a more recent case on circumstantial evidence convicting accused, see the Federal
Court case of Pathmanabhan Nalliannen v PP [2017] 4 CLJ 137.
17A. In Chandmal v State of Rajasthan, a 3-step test was prescribed for the admissibility of
circumstantial evidence:
(i) The circumstances from which an inference of guilt is sought to be drawn, must be
cogently and firmly established.
(ii) Those circumstances should be pointing to a definite tendency towards the guilt of
the accused.
(iii) Those circumstances, taken cumulatively, should form a chain so complete that
there is no escape from the conclusion that within all human probability the crime was
committed by the accused and no one else.
17B. Therefore, the above suggestion seems to be that the prosecution had to comply with
what was then known as the ‘irresistible conclusion test’ when relying on
circumstantial evidence, a standard higher than beyond reasonable doubt. Such stance
was adopted by the English case of R v Hodge.
18. (B) Is there then a higher standard of proof to be imposed upon the prosecution if he is
to rely on circumstantial evidence?
19. Lord President Tun Suffian in the case of Jayaraman v PP [1982] 2 MLJ 306 held
that the ICT test was rather similar with BRD. The use of ICT was merely a ‘play of
words’. Such position was affirmed by Gopal Sri Ram J in Juraimi.
20. The short answer to the issue is, no. ICT = BRD, and we only use BRD.
 2.6 Miscellaneous (S. 106 of EA)
1. S. 106 reads:
When any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him.
(b) A, is charged with travelling on a railway without a ticket. The burden of proving
that he had a ticket is on him.
2.6.1 Criminal cases
2. The rationale of S. 106 was explained in the case of PP v Hoo Chee Keong [1997] 4
MLJ 451 by Augustine Paul J:
‘...it is an exception to S. 101 of the EA...It is designed to met certain exceptional cases
in which it would be impossible, or at any rate disproportionately difficult for the
prosecution to establish facts which are ‘especially’ within the knowledge of the
accused and which he could prove without difficulty or inconvenience.
...When a person is found travelling without a ticket and is charged with so travelling,
the prosecution need not and indeed cannot prove that the man never had a ticket.
Once it is proved that he was travelling without a ticket, a case against him is
established. If the accused person once had a ticket and lost it, then such a fact is
especially within his knowledge and it is for him to prove such a fact...’
3. In the case itself, the accused was charged with possession of 3 forged credit cards and
the court ruled that if the accused did not have any knowledge that they were forged,
that was a matter especially within his knowledge and it was for him to prove such fact
under S. 106.
4. Further examples include:
- Accused had the burden to prove that he had a firearm’s license (PP v Ang Ah Hoe,
the accused was charged with possession of firearm without authority.)
- Accused had the burden to prove that he was one of the persons exempted within the
Act from carrying a identity card. (PP v Lim Kwai Thean, accused was charged with
not possessing an identity card)
- Accused has burden to prove that he had lawful excuse for possessing certain
prohibited documents (Lee Chin Hock v PP, the accused was charged under S. 25 of
the ISA for possessing prohibited documents without lawful excuse.)
5. S. 106 is usually invoked by prosecution when there is a negative averment, such as
hunting without lawful authority, possessing illegal documents without lawful excuse,
etc. and it would be easier for the accused to demonstrate that he had such authority.
The prosecution’s task is completed once he had proved that the accused did that thing
without the necessary requirement.
6. However, it was warned that S. 106 should never be used as a mechanism of
convenience to arbitrarily shift the burden of proof to the accused. In Mary Ng v PP
[1958] AC 173, the accused was charged with attempting to cheat, a main ingredient of
which is dishonesty. Privy Council held that it was not the burden of accused to prove
that she had not acted deceitfully, instead, it should be the burden of prosecution to
establish that she had acted so.
7. Mary Ng cited the case of Attygalle v The King, where Viscount Hailsham held that it
was not the law of Ceylon (and the other common law jurisdictions) that the burden is
cast upon an accused person of proving that no crime has been committed.
2.6.2 Civil cases (Res Ipsa Loquitor)
8. Res ipsa loquitor may be pleaded in the context of S. 106. This doctrine is a rule of
evidence that facilitates the burden of proof by invoking the presumption of
negligence. The operation of the rule was explained in the Federal Court case of MA
Clyde v Wong Ah Mei [1970] 2 MLJ 183:
‘...the rule that it is for the plaintiff to prove negligence and not for the defendant to
disprove it, may cause hardship to the plaintiff, if it is impossible for him to show what
precise acts or omission led to his damage, and this is most obviously so where the
cause of the damage is peculiarly within the means of knowledge of the defendant who
caused it. This hardship can sometimes be avoided by the application of the maxim res
ipsa loquitor...’
9. In David Chelliah @ Kovipillai Chelliah David v Monorail Malaysia Technology
Sdn. Bhd., the plaintiff was struck by a safety wheel falling from a monorail train. In
invoking the doctrine of res ipsa loquitor, the court held that the ‘safety wheel of a
monorail train does not, in the ordinary course of things, fall off and hit persons on the
ground below.’ The plaintiff had, therefore, made out a prima facie case of negligene
against the defendant and the latter has the legal burden now to rebut the otherwise.
10. The rationale of shifting burden is partly because the defendant possessed specific
knowledge of the management of the situation. Therefore, S. 106 would also be
applicable if there is ‘special knowledge’ requirement.