[LAW OF EVIDENCE IN MALAYSIA - MARIETTE PETERS]

A1 RELEVANT FACT
1 A fact is said to be relevant when it is connected to the facts
in issue

2 s.3 Evidence Act 1950:

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 relevance of facts

3 Generally, what is relevant or otherwise is a matter of logic and

common sense.

But relevance in law has been rendered statutory by the

Evidence Act

4 Based on the Evidence Act, a fact which is declared relevant

by any section ranging from s.6 to 55 will be admissible,
unless expressly declared inadmissible by the statute
itself

A2 ADMISSIBILITY
1 The relationship between relevancy and admissibility is
provided by s.136(1) of the Evidence Act:-

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

2 Relevancy and admissibility are neither synonymous nor co-

extensive*. Relevancy is the primary, but not the sole
condition of admissibility
*Co-extensive (adjective) :-
equal or coincident in space, time, or scope

3 A fact may be relevant but yet on grounds of convenience or

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 policy, evidence of it may be inadmissible. Example,
communications between spouses. Although such
communication may be relevant to the facts in issue, it is
generally inadmissible by virtue of s.122 of the Evidence
Act, on grounds of public policy

4 In deciding whether evidence of a fact is admissible:-

“to ask first whether the fact is relevant and thereafter,

whether there are rules or discretion based on convenience
or policy which nonetheless make evidence of the relevant
fact inadmissible” (Phipson on Evidence – 15th edition, 2000 –
p106)

5 s.136(2) states that where the evidence of a fact is admissible

only upon proof of some other fact, such last mentioned
fact must be proved first unless the party undertakes to give
proof of such fact and the court is satisfied with the undertaking

6 It is therefore appropriate to read s.136(2) with s.104

s.104 provides:-

Burden of proving fact to be proved to make evidence

admissible

The burden of proving any fact necessary to be proved in

order to enable any person to give evidence of any other
fact, is on the person who wishes to give the evidence

ILLUSTRATIONS

(a)A wishes to prove a dying declaration by B. A must prove B’s

death.

(b) A wishes to prove by secondary evidence the contents of a lost

document. A must prove that the document has been lost.

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 [LAW OF EVIDENCE IN MALAYSIA - HABIBAH OMAR]
A3 RELEVANCY OF EVIDENCE
1 A fact may be relevant to prove the facts in issue but
because it is hearsay, it is not admissible

2 A fact may become relevant, but because the fact is one

which is privileged, the court has no power to make it
admissible

3 A fact has to be logical to common sense and legally

relevant before it is accepted by the court

4 a)Legally relevant evidence thus comprised the element of

logical relevancy and that the evidence must have a high
degree of probative value (TENDING TO PROVE) as
opposed to its prejudicial effect

b)Probative value is determined by examining:-

i)the time the offence is committed

ii)how remote it is to the facts in issue
ii)its connection to the surrounding circumstances

c)The factors enumerated in (b) are to be balanced with any

prejudicial elements that evidence may have upon
assessment of the whole circumstances

5 Relevancy of evidence is a question of law. In PP v Dato’

Sri Anwar Ibrahim (3) [1999] 2 MLJ 1, the accused
attempted to call certain witnesses to indicate a political
conspiracy to oust him.

The calling of such witnesses was declared irrelevant under

the Evidence Act as it has no connection to the charge of
corrupt practice against the accused

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 [LAW OF EVIDENCE IN MALAYSIA - HABY]
A4 ADMISSIBILITY OF EVIDENCE
1 If the evidence is relevant, the court must admit it

2 Admissibility of evidence refers to accepted evidence where

the judge requires it to prove or disprove a fact

3 Not all relevant evidence is admissible. Nonetheless, in R v

Turner [1975]1 All ER 70, it was stated that relevance is a
condition precedent to admissibility

4 Admissibility like relevancy is a question of law which is

subjected to the Evidence Act 1950

5 a)When evidence is admissible on one ground, it will not be

rejected because it is inadmissible on some other ground –
R v Bond [1906] 2KB 389
b)In Wong Foh Hin v PP [1964] 1 MLJ 149, evidence accepted
to show motive of the accused cannot be denied
admissibility by the general rule in s.54 Evidence Act
–‘Previous bad character not relevant except in reply’

6 In determining relevancy and admissibility, the court is

empowered by s.136 and s.165 Evidence Act

7 Court to decide as to admissibility of evidence

136. (1) 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

8 Judge’s power to put questions or order production

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 165. The Judge may, in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases,
in any form at any time, of any witness or of the parties,
about any fact relevant or irrelevant; and may order the
production of any document or thing; and neither the
parties nor their agents shall be entitled to make any
objection to any such question or order, nor, without the
leave of the court, to cross-examine any witness upon any
answer given in reply to any such question:

[LAW OF EVIDENCE IN MALAYSIA - HABY]

A5 WEIGHT OF EVIDENCE
1 Weight of evidence means the strength or value of evidence.
It is a qualitative assessment of the probative
value(relevant) of admissible evidence

2 Once evidence is admitted (based on relevance and

admissibility), the court has to decide how much weight it
carries. Thus, weight of evidence has the potential of
persuading the court on the truth and probability of fact

3 Weight is not a factor to be considered in determining whether

evidence is relevant or not

4 Weight is a question of fact to be determined on the

circumstances of each case, such as:-
i)The type of evidence tendered

ii)Quality of evidence

iii)Demeanour of witnesses which determine the credibility

of the witnesses

5 No hard and fast rule to determine how much weight to be

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 attached to a particular piece of evidence

6 Since weight is a matter of fact, it seldom becomes the

subject of appeal to the appellate courts. The appellate courts
also would be reluctant to interfere on findings of fact
which is within the purview of the trial judge –
Mohammad b Abdul Kadir v PP [2013] 7 MLJ 684

[LAW OF EVIDENCE IN MALAYSIA - HABY]

A6 CORROBORATION
1 s.134 Evidence Act provides that no particular number of
witnesses shall be required for the proof of any fact

2 Accordingly, the testimony of a single witness, if believed, is

sufficient to establish any fact. The court may act on the
testimony of a single witness, even though uncorroborated.
One single witness outweighs any number of other witnesses
[Vadivelu Thevar v State of Madras AIR 1957 SC 614]

3 s.134 follows the maxim that evidence is to be weighed

and not to be counted

4 Corroborations simply means ‘confirmation’. The rules of

corroborations were introduced and developed to ensure the
jury would determine cases appropriately to avoid
convictions based on insufficient or unreliable evidence

5 a)The rule of corroboration do not apply to all witnesses

b)The nature of corroborative evidence vary according to
circumstances

6 Corroboration therefore means that it would be prudent for the

court to consider the danger of relying on a particular
witness testimony in the absence of supporting evidence

7 What constitutes corroborating evidence was stated in R v

Baskerville [1916] 2 KB 658:-

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 It must be independent testimony that connects or tends
to connect the accused with the crime

It confirms in some material particular the evidence that

not only a crime has been committed, but also that the
accused had committed it

8 The Baskerville principle consists of 2 basic elements on

corroborating evidence:-

i)It must be independent

ii)It must confirm in a material particular that the accused

committed the crime
9 In Malaysia, corroboration takes one of two forms:-

i)corroboration as a matter of practice (usually for witness

who is sexual complainant, accomplice or co-accused)

ii)corroboration as a matter of law (relates to evidence given

by a child witness)

10 Thus, corroboration is concerned with the effect or weight

of evidence as opposed to its admissibility