Topic: S399 CPC- EXPERT EVIDENCE/ WITNESS

(1) Deliver Copy

(2) 10 clear days
(3) No requirement by defence for expert attendance

 S399 CPC allows re-calling of expert to be tendered as evidence without the need to call the maker when there is
compliance with the requirements in S399 CPC.

 This means that report of expert can be received as evidence of the truth of the content which would otherwise be
no evidence at all – Wong Kok Keong (1995) 2 MLJ 13

 The object of S399 is also to enable the accused to study the report where the view of requiring the expert to be
called as a witness – Ng Yi (1953) MLJ 250

 It would also save the expense to call the expert as a witness (Chong Yik [1953] 72) and to avoid delay and
inconvenience where the expert to testify in person – Mohd Hassan (1998) 2 MLJ 273

 S399 CPC applies equally to the provision by a private person compliance to the requirements of S399 is essential
would render this report admissible – Lee Moh Jun (1970) 2 MLJ 213

 This provision only applies to those person listed in S399 (2) CPC. If they are not listed then S399 would not be
applicable to them – Heng Soon Trading (1998) 1 CLJ Supp 367

 S399 CPC contains of:-

(a) deliver a copy to the accused

(b) deliver the copy not less than 10 clear days before the commencement of the trial
(c) the court or the accused does not require the attendance of the maker

 compliance with the provision is conditional precedent for admissibility –Chiong Yik (1973) MLJ 72

 Failure to comply would render the report inadmissible and this must be satisfy by an oral evidence that the
provision has been duly complied with before the report maybe proved by evidence – Ng Fah (1954) MLJ 150

 There are conflicting decision where there is a need to company with S399 when the accused pleads guilty and the
report of the expert is tendered as part of the facts of the case

 In Hajah Ishak (2000) 4 CLJ 46; there must be compliance with S399 even if the report is tendered. Even if the
report is tendered as part of the case, it must be in compliance with S399CPC

 However, in the case of Tan Lay Chang (2000) 4 CLJ 292; it was stated if the accused pleaded guilty, there was
no question of prosecution proving its guilt and therefore no necessity to have evidence and that requirements of
S399 had been complied with.

 Following the pleading of guilty (PG), the prosecution is only required to give a summary of the facts of the case
that there is no requirements of prove the facts of the case by calling evidence. However, the facts must be facts
which the prosecution can proved if necessary and which are essential to establish a charge.
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(1) Delivery of Copy

 A copy of the report must be delivered on the accused.

 In the case of PP v Lim Soo Booi (2003) 2 MLJ 433; the provision of S399 only applies of the prosecution
intends to use the report. The prosecution has the discretion whether or not to use the documents and should they
decide to do so, then they only must comply with the service between the prescribe time.

 The delivery of the copy is only valid for the original trial but not if there is a re-trial, by which in that case, the
documents must be serve all over again – Ooi Lian Chai

(2) Delivery within 10 clear days

 Delivery must be 10 clear days before the commencement of the trial – Goh Tong (1953) MLJ 167

 Commencement of trial means for the contentious phrase of a trial – Teh Tuan (1953) MLJ 20

 Commencement of the trial was also discussed in the case of Goh Tong (1953) MLJ 57, where it means the
commencement of hearing of the evidence

 While in the case of Lim Cheng Leong (1981) 2 MLJ 41; it was said it does not mean the date on which the
accused was charged.

(3) Maker attendance is not required

 S399 CPC provides that the report is only admissible where the court or the accused do not require the maker’s
attendance

 Where the defence require the maker’s attendance, notice of at least 3 clear days before trial must be given and
where no such notice is given, the report is accepted as conclusive evidence – Lam Pheng Hoa (1996) 3 CLJ 347

 Example: Trial – 2/2/06

 Report served – 1/1/06 10 clear days

 Defence ask for the attendance of the maker of the report – 10/1/06

Q: on the date of trial, the expert is missing and

report is tendered and the defence does not object.
Is the report admissible?

(1) YES – defence is waived

(2) NO – requirement of law

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Inadmissible evidence, remains inadmisble –

 Prosecution on being served a notice by the accused cannot dispense with the calling of the expert.

 In the case of Chah Siew Kok (1987) 1 CLJ 386; although the defence gave notice for the chemist to be called, it
did not raised any objection which the report is admitted in evidence or during submission of notice to answer.
However, the objection only rose in defence’s case. This was overruled and on appeal, prosecution contended that
the defence has waived the requirement for the maker or chemist presence.

 The report was however ruled inadmissible. The court stated that it did not think that a waiver by the accused can
be held against him in regards of rule of procedure and evidence. Any admission of inadmissibility even with
consent and waiver is wrongful. The inadmissible evidence must remain inadmissible.

 Similar situation in Ong Baw Seng (1988) 2 MLJ 203; the accused was convicted based on the expert report,
despite the defence’s notice that the maker were required. The conviction was subsequently quashed.

 However, in the case of Mohd Abdul Rahman (1974) 1 MLJ 252; the report was use despite defence calling for
the maker. On the facts of the case, the court however, held that since the defence did not object, it was taken to
waive the requirement for the maker.

(4) Maker appears in court as a witness

 If the report is not serve, the maker would appear in court as a witness

 The expert is not precluded from being call as a witness.

 Situation where the witness be called:-

(a) where the report was not serve or serve out of time
(b) report is served but the defence requires the maker
(c) report is served but prosecution calls the maker
(d) report is admitted and prosecution calls the maker as evidence

(a) Report is not serve or served out of time

 Non-compliance with the provision of S399 CPC either by report not being served or being served out of time
renders the report inadmissible and the maker of the report then be called to give evidence

 When he does so, he cannot produce the report in lieu of oral evidence. This is because the report is inadmissible
and for non-compliance with S399CPC – Liew Chin Leung (1971) 1 MLJ 127

 The report is only be used if at all to refresh the expert’s memory or to corroborate his oral evidence – Saw Thian
Tik (1953) 19 MLJ 124

(b) Report served but defence require the attendance of the maker

 On being served notice by the defence requiring his attendance, the expert must appear in court to give evidence
and prove the prosecution’s case in ordinary way – Mohd Abdul Rahman (1979) 1 MLJ 252

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 The report cannot be admissible in evidence after due notice is served by the defence – Chah Siew Kok (1987) 1
CLJ 386

(c) Report served – Prosecution calls the maker

 S399 CPC merely enables the report of a maker to be used as evidence. Service of the report does not impose an
obligation on prosecution to use the report.

 Service is no bar to prosecution on deciding to call the expert instead of using his report – Mohd Hassan (1999) 2
MLJ 273; when in court give evidence, it is wrong for an expert to be substitute a report for oral evidence and the
report cannot be use as primary evidence of its content but only to collaborate the maker

(d) report admitted and prosecution call the maker

 When there is due compliance with S399 and report tendered is substantive evidence, maker would not be called
to supplement the report.

 Where this is done it would amount to admitting 2 sets of substantive evidence from the same witness – Lam
Pheng Hoa (1996) 3 CLJ 747