Presumption

What is presumption under the Evidence Act 1950?

Upon the proof of a fact,

an inference of another fact can be drawn

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Presumption
PP v Ooi Seng Huat [1968] 2 MLJ 168

Accused charged of using vehicle as pirate taxi. One of

the issue raised is whether the 28 days observation of
user must be continuous and the application of the
presumption under section 144 of the Road Traffic
Ordinance, 1958.

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Presumption
Section 144(a) of the Road Trafffic Ordinance 1958

In any proceedings for an offence under Part V of this Ordinance, in so

far as it may be necessary to establish the offence charged, it shall be
presumed until the contrary is proved –

(a) that any conveyance of persons or goods in a motor vehicle was for
hire or reward;"

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Presumption

Upon the proof of a fact,: What fact was that?

Accused has been consistently transporting a number
passengers over a period of time

an inference of another fact can be drawn : What

inference of fact can be drawn?
The conveyance was for hire or reward.

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Presumption
PP v Ooi Seng Huat [1968] 2 MLJ 168

Justice Chang Min Tat (as he was then):

“Now as a matter of law a presumption is a statutory
invention that upon the proof of a fact an inference of
another fact can be drawn. In the circumstances of a pirate
taxi charge, the presumptions under section 144(a) and (b)
are that any conveyance of persons in a motor vehicle was for
hire or reward and that the passengers were carried in
consideration of separate payments made by them.”

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Presumption
Why do we have statutory provisions for the court to make
presumptions?

Why is it important get the court to make a presumption a force of law

that can be acted upon?

How are these presumption raised and who is the party responsible for
raising it?

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Presumption
We will look again at these 3 questions as we move along.
But for today’s lecture we will focus on the following sections of the Evidence Act that
pertains to Presumption :-
a. Section 4 : Meaning and types of Presumption
b. Section 107 : Burden of proving death of person known to have been
alive within thirty years
c. Section 108 : Burden of proving that person is alive who has not been
heard of for seven yeas
d. Section 112 : Birth during marriage conclusive proof of legitimacy
e. Section 113 : Presumption that boy under thirteen cannot commit rape
f. Section 114(g): Adverse Inference

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Presumption - Types
Section 4 of the Evidence Act
(1) Whenever it is provided by this Act that the court may presume a
fact, it may either regard the fact as proved unless and until it is
disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall presume a
fact, it shall regard the fact as proved unless and until it is disproved.
(3) When one fact is declared by this Act to be conclusive proof of
another, the court shall, on proof of the one fact, regard the other as
proved, and shall not allow evidence to be given for the purpose of
disproving it.
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Presumption - Types
Section 4(1) Section 4(2)
Whenever it is provided Whenever it is directed
court may presume a fact, court shall presume a fact
it may regard the fact as proved it shall regard the fact as proved
unless and until it is disproved, or unless and until it is disproved
may call for proof of it.

Section 4(3)
When one fact is declared by this Act to be conclusive proof of another, the court shall,
on proof of the one fact, regard the other as proved, and shall not allow evidence to be
given for the purpose of disproving it.
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Presumption - Types
Section 4 Evidence Act
Syed Akhbar v State of Karnataka AIR 1979 SC 1848

Sarkaria J held :

“…… that presumption are of three types namely

(i) Permissive presumptions or presumptions of fact (rebuttable);
(ii) Compelling presumptions or presumptions of law (rebuttable);
(iii)Irrebuttable presumption of law or conclusive proof .

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Presumption - Types
Section 4 Evidence Act
Applying the case of Syed Akhbar v State of Karnataka
AIR 1979 SC 1848
Section 4 of the Evidence Act provide the following 3 types of presumptions:-
i) Permissive presumptions or presumptions of fact (rebuttable) ;

ii) Compelling presumptions or presumptions of law ( rebuttable ); and

iii) Irrebuttable presumption of law or conclusive proof

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Presumption
Commonly we refer the 3 types as follows:-

1. Rebuttable presumption of fact;

2. Rebuttable presumption of law; and
3. Irrebuttable presumption of law.

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Presumption - Types

ANY QUESTION

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Presumption

We have done section 90 of the Evidence which provides”

“Where any document …….. proved to be twenty years old is produced

from any custody which the court in the particular case considers
proper, the court may presume that the signature and every other part
of that document which purports to be in the handwriting of any
particular person is in that person’s handwriting, and in the case of a
document executed or attested, that it was duly executed and attested
by the persons by whom it purports to be executed and attested.
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Presumption – Continuity of Life
Section 107 Evidence Act
MOHIDEEN KUTTY & ANOR v WONG KIAN CHONG & ANOR [1981]
1 MLJ 228
Respondent had let a shoplot to Kunji Koya (KK). KK later
went to India to visit his wife and children. During his absence
the shoplot was look after and manage by his employees. He
died on 31.01.1971 whilst in India and the respondent sued
the appellants for vacant possession as KK had passed away.
The appellants were employees of KK. The learned trial judge
found in favour of the respondents. The appellants
appealed.Respondent
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Presumption – Continuity of Life
MOHIDEEN KUTTY & ANOR v WONG KIAN CHONG &
ANOR [1981] 1 MLJ 228
HELD : “Attention of this court was obviously not drawn to the
provisions of sections 107 and 108 of the Evidence Act … “. …. It
was certainly not part of respondent/plaintiff's case that the
widow was dead at material times, and indeed if he had, the
burden would be upon him to prove her death.
Therefore on the pleadings, the appellants are entitled to succeed,
for under section 16(2), "the tenant or a member of his family shall
be deemed to have occupied business premises so long as he
uses such premises for his business or trade, notwithstanding
that such … member of his family does not reside therein."

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Presumption – Continuity of Life
MOHIDEEN KUTTY & ANOR v WONG KIAN CHONG &
ANOR [1981] 1 MLJ 228

The landlord (respondent) has alleged Kunji Koya’s

widow too has died 2 years after him. But the allegations
were not supported with any evidence.

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Presumption – Continuity of Life
What is section 107 of the Evidence Act?

Burden of proving death of person known to have been

alive within thirty years

When the question is whether a man is alive or dead,

and it is shown that he was alive within thirty
years, the burden of proving that he is dead is on
the person who affirms it.

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Presumption – Continuity of Life
Section 107 Evidence Act
Sweetie was married to Ben in 1957 in Glasgow. Ben was 29 years old at the
time of the marriage. In 1960 Ben went to Kuala Lumpur to work in a bank.
Sweetie did not follow Ben to Kuala Lumpur as the local weather there is not
suitable for her. Ben did not write to Sweetie and after few queries to Ben’s
office in Kuala Lumpur, she was told Ben had not been coming to the office
since the first day he reported for duty. An inquiry with the British Embassy in
Kuala Lumpur does not produced any result as to Ben’s whereabout. In 1970
Sweetie met and fall in love with Sam. Sam proposed to her and she accepted.
But before she can get married to Sam, what does Sweetie has to do first,
apart from buying a wedding gown and prepare a guest list?

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Presumption – Continuity of Life

???????

(Please read the case of R Muthu Thambi v K Janagi [1955] MLJ 47 for some
inspiration and Chard v Chard [1956] P 259 for more inspiration)

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Presumption – Continuity of Life
In the case of MOHIDEEN KUTTY & ANOR v WONG KIAN
CHONG & ANOR, how was section 107 applied?
Whose burden was it to prove whether …….. is dead or alive?

Why is it important for that person (i.e the person who bears the burden of
proof) to prove …… death?

How can he prove that? Of the Evidence Act?

This section falls under which paragraph of Section 4?

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Section 108 of the Evidence Act 1950
This section is closely related to section 107 of the Evidence Act
Burden of proving that person is alive who has not been heard of for
seven years
“When the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would
naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it.”

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Presumption – Continuity of Life

Any Question

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Presumption of Death
Section 108 Evidence Act

Please read
1. Re Ex Parte Application of Tay Soon Pang @
Yeo Hak Seng [2008] MLJU 928
2. Smt Mathru v Smt Rani AIR 1986 HP
3. In Re Osman bin Bachit [1997] 4 MLJ 445

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Presumption of Death
Section 107 Evidence Act
Re Phene’s Trust (1870) 5 Ch App 139
A testator died on the 05.01.1861, having bequeathed his
residuary estate equally between his nephews and nieces.
One of his nephews, N., was born in 1829, had gone
to America in 1853, had frequently written home till August,
1858, when he wrote from on board an American ship of
war, but from that time no letter had been received from
him, and nothing was afterwards heard about him, except
that he was entered in the books of the American Navy as
having deserted on the 16th of June, 1860, while on leave
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Presumption of Death
Section 108 Evidence Act
Re Phene’s Trust (1870) 5 Ch App 139
A person has not been heard of for seven years, there is a presumption
of law that he is dead; but at what time within that period he died
is not a matter of presumption, but of evidence, and the onus of
proving that the death took place at any particular time within
the seven years lies upon the person who claims a right to the
establishment of which that fact is essential. There is no
presumption of law in favour of the continuance of life, though an
inference of fact may legitimately be drawn that a person alive and in
health on a certain day was alive a short time afterwards.

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Presumption of Death

RE OSMAN BIN BACHIT [1997] 4 MLJ 445

By a motion dated 30 January 1997, the applicant prayed for an
order that the deceased be presumed to have died in 1938 and
that he be granted leave to depose that the deceased died
in 1945, pursuant to s 108 of the Evidence Act 1950 ('the Act').
The motion was supported by the affidavits of the applicant and
two other persons. The two persons deposed that they had
witnessed the death of the deceased in 1938.

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Presumption of Death

RE OSMAN BIN BACHIT [1997] 4 MLJ 445

Held:
Although a person who had not been heard of for seven years was
presumed to be dead, there was no presumption as to the
time of his death under s 108 of the Act

If it was sought to establish the precise period at which a person

died, then it must be done by actual evidence like the proof
of any other fact.

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Presumption of Death
RE OSMAN BIN BACHIT [1997] 4 MLJ 445

Augustine Paul JC (as he then was), “ … it was stated that the Evidence
Act s. 107 deals with the presumption of continuance of life and s. 108 of
the Act deals with the presumption of death. The Evidence Act s. 107
provides that when a person's existence is in question and he is shown to
have been living at a given time within 30 years and there is nothing to
suggest the probability of his death, the continuance of life will be
presumed and the person who asserts the contrary has the burden to prove
it. The Evidence Act s. 108 must be read as a proviso s.107 as s. 108
provides that if a man has not been heard of for seven years by these who
would normally have heard of him, had he been alive, the presumption of
continuance of life ceases and the burden of proving him to be alive lies on
the person asserting it by denying the death.

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Presumption of Death
Abscond’s case
R MUTHU THAMBI v K JANAGI [1955] 1 MLJ 47
The respondent had in 1929 married a man who after two years
absconded to India. In 1940 respondent went through a ceremony of
marriage with appellant. The learned Magistrate found as a fact that a
marriage did take place between the parties and that consequently the
respondent was the appellant's wife, and he thereupon made an order
for maintenance of $80 p.m. to be paid to the respondent. This was an
appeal against the order made by learned Magistrate.

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Presumption of Death
R MUTHU THAMBI v K JANAGI [1955] 1 MLJ 47
Held:
Unless it was proved either that the first marriage had been legally
dissolved or that the first husband was dead at the time when she
purported to marry the appellant, prima facie, the respondent was not
appellant's wife;
The onus of proving death must rest with person to whose case that
fact is essential. If the circumstances of a man's disappearance are such
that it is unlikely that his relatives would have heard from him in any
event then the Court will not presume his death;
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Presumption of Death

ANY QUESTION

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Presumption of Legitimacy of Birth
Section 112 Evidence Act
Birth during marriage conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid
marriage between his mother and any man, or within two hundred
and eighty days after its dissolution, the mother remaining unmarried,
shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage had no access
to each other at any time when he could have been begotten.

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Presumption of Legitimacy of Birth
Section 112 of the Evidence Act

CHUA KIM SUAN v ANG MEK CHONG [1988] 3 MLJ 231

In this case, the plaintiff sought a declaration that X was not the lawful
son of the deceased and therefore not entitled to the deceased's estate.
The plaintiff also sought an order that the estate be distributed among
herself, one other niece and nephew of the deceased, and the defendant.
The plaintiff contended that X was the son of Y and Z and not the son of
the defendant. The defendant, however, maintained that X was the
lawful son of the deceased and herself.

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Presumption of Legitimacy of Birth
Section 112 Evidence Act
CHUA KIM SUAN v ANG MEK CHONG[1988] 3 MLJ 231
Held : (1) X’s certificate of birth, having been issued under s 14 of the
Births and Deaths Registration Ordinance 1957 and in the prescribed form,
Form A, under s 7 of the Births and Deaths Rules 1958 and it having been
purportedly certified by an officer specified under s 32(2) of the 1957
Ordinance, may be received as evidence under s 33(2)(b) of the Births
and Deaths Registration Act 1957 (Rev 1983) (Act 299) although the
certificate itself will not specifically state that it was certified under s 32(2) of
the 1957 Ordinance.

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Presumption of Legitimacy of Birth
Section 112 Evidence Act
CHUA KIM SUAN v ANG MEK CHONG[1988] 3 MLJ 231
The entries in X’s certificate of birth constituted strong presumptive
evidence that the deceased and the defendant were parents of X and
they corroborated the evidence of the defendant that X was the child of the
deceased and that she gave birth to him. Indeed, these entries showed that
Y and Z were not X’s parents;
s 112 of the Evidence Act 1950 had no application in the instant case as the
issue was not concerned with the legitimacy of X but whether X was the
issue of one or another set of lawfully wedded parents;

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Presumption of Legitimacy of Birth
What About DNA Evidence?
CAS v MPPL & Anor [2019] 4 MLJ 243
The first defendant, a flight attendant ("D1"), and the second defendant, a pilot
("D2"), were in a valid marriage when the child ("C") was born. The plaintiff, another
pilot ("P"), in his originating summons claimed that C was born as a result of his
alleged affair with D1. Plaintiff applied for a DNA test to be carried out to determine
whether he was the biological father of C, and if the test were to show that Plaintiff
was indeed the biological father of C, then Plaintiff applied to be declared as such.
The High Court dismissed originating summons on the ground inter alia, that section
112 provides a presumption that the fact of marriage is conclusive proof of a child's
legitimacy and the only way to rebut the presumption is by showing non-access
between the spouses, not by a DNA test. Plaintiff appealed.

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Presumption of Legitimacy of Birth
CAS v MPPL & Anor [2019] 4 MLJ 243
Held :
Section 112 does not bar enquiry into the paternity of a child. Paternity
and legitimacy are two distinct, though interrelated concepts." ……….
"the concepts of "paternity" and "legitimacy" should necessarily be
separated. The former concerns a question of fact; the latter a question
of law. Section 112 of the EA constitutes adjectival law, and it is trite
that adjectival law must be interpreted liberally so as not to defeat the
rights of parties."

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Presumption of Legitimacy of Birth
Section 112 of the Evidence Act

• See also the case of AINAN BIN MAHAMUD v SYED

ABU BAKAR BIN HABIB YUSOOF [1939] 1 MLJ 209

Which paragraph of Section 4 of the Evidence Act, this section refers

to?

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Presumption of Culpability
Section 113 of the Evidence Act
Presumption that boy under thirteen cannot commit rape

It shall be an irrebuttable presumption of law that a boy under the

age of thirteen years is incapable of committing rape.

Which paragraph of Section 4 of the Evidence Act, this section refers

to?

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Presumption For Adverse Inference
Section 114(g) of the Evidence Act
Court may presume existence of certain fact
The court may presume the existence of any fact which it thinks likely to
have happened, regard being had to the common course of natural
events, human conduct, and public and private business, in their relation
to the facts of the particular case.

The court may presume

(g) that evidence which could be and is not produced would if produced be
unfavourable to the person who withholds it;
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Presumption For Adverse Inference
CHUA KIM SUAN v ANG MEK CHONG [1988] 3 MLJ
231
In this case, the plaintiff sought a declaration that X was not the
lawful son of the deceased and therefore not entitled to the
deceased's estate. The plaintiff also sought an order that the estate
be distributed among herself, one other niece and nephew of the
deceased, and the defendant. The plaintiff contended that X was
the son of Y and Z and not the son of the defendant. The
defendant, however, maintained that X was the lawful son of the
deceased and herself. The Plaintiff did not call Y and Z to testify on
her assertion.
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Presumption For Adverse Inference

CHUA KIM SUAN v ANG MEK CHONG [1988] 3 MLJ

231

Why didn’t Plaintiff call Y and Z to testify that the Defendant is their
child and not of the deceased and the Defendant?

Had Plaintiff called Y and Z to testify, what would be their likely

testimony? That X is their child or that X is not their child?
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Presumption
Why do we have statutory provisions for the court to make
presumptions?

Why is it important get the court to make a presumption a force of law

that can be acted upon?

How are these presumption raised and who is the party responsible for
raising it?

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 The End

Next Change : Opinion

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