BURDEN OF PROOF

• Who has the burden of proof on a particular

fact?
• Why?
• The party who bears the burden of proof is
under a duty to adduce evidence of the
existence or non existence of that fact.
 Where do you find the answer??
• Answer : Law of Evidence
• Primary source : Evidence Act 1950 (Chapter
VII)
• General principle : “He who asserts must
prove”
• This general principle is reflected in :s.101 EA
 Common Law
• Legal Burden of Proof :
• Obligation to satisfy the court of the existence
of a fact according to the standard of proof set
by law.
• Duty not only to adduce evidence but to
adduce enough evidence to reach the
standard of proof required by law
• What is the standard of proof required by
law :
• A. Beyond Reasonable Doubt (BRD)-
Prosecution in a criminal case
• B. Balance of Probabilities(BOP)-
Civil Cases and the Accused in a Criminal Case.
• Evidential burden:
• Duty to adduce some evidence but not
necessary to satisfy any standards of proof .
• “casting a doubt”
 EVIDENCE ACT 1950
• Burden of Proof : Not defined
• Legal burden of Proof and evidential burden
not found in the act.
• “Proved” , “Not Proved” and “Disproved”
• : S.3 Evidence Act
• Q: What is the meaning of “Burden of Proof”
• within the Evidence Act ?
• 2 different approaches:
“Burden of Proof” in Evidence Act

Lord Devlin A.Paul

Jayasena Legal Burden
Legal Burden of Proof & Evidential
Burden
 LORD DEVLIN’S APPROACH
• R V JAYASENA [1970] 1 AER 219
• Self defence : s.105 EA (section on statutory
defences)
• Applying s.3 to interpret s.105: Burden of
Proof in Evidence Act refers to the legal
burden of proof and not evidential burden.
• Statutorily correct.
 A.PAUL’S APPROACH
• Burden of Proof in the EA : has 2 meanings
(same as common law)
a.S.101 – LEGAL BURDEN OF PROOF(burden to
establish the facts)
b.S.102 –EVIDENTIAL BURDEN OF PROOF
(burden to introduce evidence)
 SUPPORTED :

• INTERNATIONAL TIMES V LEONG HO YUEN

[1980] 2 MLJ 86
• TAN KIM KHUAN V TAN KEE KIAT [1998]1 MLJ 697
• AZIZ BIN MUHAMAD DIN V PP [1996] 5 MLJ 473
• COMMON LAW
• The distinction between s.101 & s.102
• The well established principles of evidence
(golden thread)
 WHO IS RIGHT????
• Both are right and can be reconciled .
• How so ?By confining Jayasena to s.105.

• Is the distinction between “legal burden of proof”

and “evidential burden” important ??
• YES DEFENCES in a Criminal case.

• Q. When the Accused in a criminal case raises a

defence ,what is the burden on him ?
 s.105 EA
• Deals with defences in criminal cases
• Applies only to statutory defences:
• i. Defences in the Penal Code.
• ii. Defences in any other statute defining an
offence
• Q:If Accused is relying on a statutory defence
within s.105 (provocation / self
defence/intoxication) What is the burden on
him??
• s.105 + Jayasena + s.3 = Legal Burden of Proof
(balance of probabilities)

• IKAU ANAK MAIL V PP(1973) 2 MLJ

153(provocation)
• PP V KENNETH FOOK MUN LEE (NO.1)
[2002]2MLJ 563(insanity)
•
BURDEN OF PROOF IN CRIMINAL CASES

• Prosecution Accused
• s.101 s.102,103
• s.102 s.105
s.106
• PROSECUTION
• S.101 – LEGAL BURDEN
• S.102 –EVIDENTIAL BURDEN
• “He who asserts must prove”
• As the accused is presumed innocent until
proven guilty . The party who asserts guilt
(Prosecution) shall bear the legal burden of
proof .
• Standard of proof required will be beyond
reasonable doubt.
• Accused need not proof his innocence , he
only needs to cast a doubt as a general rule.
 Case Law
• WOOLMINGTON V DPP[1935]AC 462
• MAT V PP[1963]MLJ 263
• PP V SAIMIN [1971] 2 MLJ 16
• MOHD RADHI YAAKOB V PP(1991) 3 MLJ 169
BURDEN OF PROOF IN CRIMINAL CASES

• Accused
• Although it is the Prosecutor who will bear the
legal burden of proof as a general rule ,in
certain exceptional situations the legal burden
on particular facts can shift to the accused .
• Example: where A raises a defence (he asserts
a fact)
• s.105, s.103 & s.106
 s.105 EA 1950 STATUTORY DEFENCES

• The burden of proof for statutory defences in

criminal cases is determined by s.105 EA.
• What type of defences?
• i) general & special exceptions in Penal Code
• ii) proviso in Penal Code
• iii) any exceptions in any law defining the
offence ( other statutes)
• All defences found in the Penal Code or any
other statute will be governed by s.105
(statutory defences in criminal law).
• If an Accused is relying on a statutory
defence ,what is the burden of proof on him?
• Legal burden of proof

• What is the standard of proof required to

discharge that burden?
• Balance of Probabilities

• Why??
 • S.3 EA 1950 + Lord Devlin in Jayasena=
• Legal Burden of Proof /On the Balance of
Probabilities
 CASE LAW
• IKAU ANAK MAIL V PP(1973) 2 MLJ 153

• PP V KENNETH FOOK MUN LEE (NO.1)

[2002]2MLJ 563
 s.103
• 103.  Burden of proof as to particular fact.
• 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.
 s.103 EA 1950- Alibi Defence
• Not all defences are statutory .
• Alibi is not a statutory defence.
• Q. Does s.105 apply to Alibi? No
• Alibi is governed by s.103 EA 1950
• Definition of Alibi : assertion made by the
Accused in a criminal case or by a Defendant
in a civil case that he was elsewhere at or
about the time of the offence/incident.
• S.11 EA 1950 – RELEVANCY
• S.402A CPC
 Issue

• Legal burden Evidential

Of Proof Burden
(balance of probabilities) (cast a
doubt)
• DATO MOKTHAR HASHIM V PP(1983) 2 MLJ
232
• YAU HENG FANG V PP (1985) 2 MLJ 335
• ILLIAN V PP(1988)1 MLJ 421
• ARUMUGAM MOTHIYAH V PP (1995)1 CLJ 58
• EMPATI MAT V (2010) 1 CLJ 814  
• ROSLI MD IDRUS v. PP( 2010) 1 LNS 121  
 s.104
• 104.  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.
 s.106 EA 1950
• .  Burden of proving fact especially within
knowledge.
• When any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him.
Exception to the general rule in s.101. Where it
applies the burden of proving a fact which is
within the special knowledge of the Accused will
shift to him.
When does it apply ? When a fact is within the
special knowledge of the accused
• What does that mean?
• Where it would be impossible /difficult for the
prosecution to establish a fact which the Accused can
prove without any difficulty /inconvenience s.106 will
be used to shift the burden on that fact from the
Prosecution to the Accused .
• Note :the burden shifts on an element of the
offence( has an impact on the presumption of
innocence)
• PP V HOO CHEE KEONG (1997) 4 MLJ 451
• Reasoning : to establish a negative averment
which is within the special knowledge would
be difficult and time consuming for the
Prosecution if compared to the Accused. It
was practical to use s.106 to shift the burden
to the Accused.
• Q: does this problem arise in the ICT age?
• R V TURNER 105 ER 1026
• MARY NG V R (1958)MLJ 108
• LIM KWAI THEAN V (1959) MLJ 179
• LEE CHIN HOCK V PP( 1972)2 MLJ 30
• RE TAN KHENG CHENG (1969) MLJ 310
• PP V HOO CHEE KEONG (1997) 4 MLJ 451
• GNANASEGARAN V PP (1997) 3 MLJ 1
•  ATTYGALLE V R(1936) AC 338
 Burden of proof in Civil Cases
• GR: “He who asserts must prove”
• S.101 (applies to both civil and criminal cases)
• - legal burden of proof would be on the
Plaintiff/Claimant in civil cases, to establish
the elements of his claim.
• Standard of proof : balance of probabilities
 Exception
• S.103 : burden of proving particular fact, if he
wishes the court to believe those facts.

• Civil cases: defences : Consent / Contributory

Negligence/ Frustration / Mistake etc.
• Standard of proof: balance of probabilities.
• Note : s.105 does not apply to civil cases.
• Note : s.106 will apply to cases of res ipsa
loquitur in Tort (presumption of negligence)
• Impact : shifts burden on negligence from
Plaintiff/ Claimant to Defendant who must
now rebut negligence on BOP.
• DAVID CHELLIAH V MONORAIL MALAYSIA
TECHNOLOGY [2009] 4 MLJ 253
 Issue of criminal allegations in a civil case

• Civil cases involving a criminal allegation : Eg

:fraud/ forgery – What is the standard of proof
??

• Civil standard Criminal Std

• Balance of Probabilities Beyond
Reasonable Doubt
 Common Law
• HORNAL V NEUBERGER [1957] 1 QB 247
• Criminal allegations in a civil case the standard
of proof will be the civil standard of balance of
probabilities.
• However the more serious the allegation the
higher the degree of probabilities which will
be required, but it need not reach the criminal
standard.
 Malaysia
• GR : the common law principle will apply
• Eastern Enterprises v Ong Choo Kim [1969] 1 MLJ 236

• BOONSOM BOONYANIT V ADORNA PROPERTIES

SDN.BHD [2001] 1 MLJ 241
• Held : allegation of forgery in a civil case the standard of
proof will be the civil standard of balance of probabilities
.

(pg 59 M.Peters)
 Fraud Cases
• YONG TIM V HOO KOK CHEONG [2005]3
MLJ553 (FC)
• - standard of proof for an allegation of fraud
in a civil case will be the criminal standard of
beyond reasonable doubt.
• ASEAN SECURITIES PAPER MILLS SDN.BHD V
CGU INSURANCE BHD[2007]2 MLJ 301
• SINNAIYAH & SONS SDN BHD v. DAMAI SETIA
SDN BHD[2015] 7 CLJ 584 ,FC