Relevancy

S 8 – S 10 of the Evidence Act 1950

Section 8 - Motive, preparation and previous
or subsequent conduct

(1) Any fact is relevant which shows or constitutes a motive or preparation for any
fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to any suit or proceeding
in reference to that suit or proceeding, or in reference to any fact in issue therein or
relevant thereto, and the conduct of any person an offence against whom is the
subject of any proceeding, is relevant if the conduct influences or is influenced by
any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
 Explanation 1 - The word "conduct" in this section does not include statements
unless those statements accompany and explain acts other than statements; but
this explanation is not to affect the relevancy of statements under any other
section of this Act. (see illustration (k)
 Explanation 2 - When the conduct of any person is relevant any statement made
to him or in his presence and hearing which affects his conduct is relevant.
Public Prosecutor v Erwin Hardy & Anor
[2007] 9 CLJ 334

 Motive is that which induces a person to do a particular act. Every voluntary act has a motive. Motive
and intention must be distinguished. A person's intention is his decision to do or not to do a particular
act, but his motive is the reason for forming that decision. For example, when a poor woman with a
child steals a loaf of bread, her intention is to steal but her motive may be to feed her child. Thus,
motive is the emotion supposed to have led to the act. It is a psychological fact, which can be proved
by the conduct of the accused. However, it is not always possible to discover motive behind an act but
this does not mean that motive was absent.

 Evidence of motive is relevant and material in criminal cases. However, where there is direct evidence
and clear proof that the accused has committed the crime, the question of motive becomes irrelevant to
sustain the conviction. When a case depends entirely upon circumstantial evidence, the issue as to
motive becomes important
ILLUSTRATIONS

 (a) A is tried for the murder of B.

 The facts that A murdered C, that B knew that A had murdered C and that B
had tried to extort money from A by threatening to make his knowledge
public are relevant.

 (b) A sues B upon a bond for the payment of money. B denies the making
of the bond.

 The fact that at the time when the bond was alleged to be made B required
money for a particular purpose is relevant.
WONG FOH HIN v. PUBLIC
PROSECUTOR

The appellant was convicted of the murder of his own daughter. On the day in question, 7 August 1963
according to appellant's wife, appellant had told his daughter she must leave the house permanently After
evening meal, he repeated this. At a later stage he asked his daughter to massage him with eucalyptus oil. He
sent two of his children their mother and was on his own bed with the daughter under his mosquito net. There
was only a small night light in the room. After some time, the wife heard the daughter call out, apparently in
pain. She asked what had happened and, after some time, the daughter answered: "Tidak". The wife opened the
mosquito net, found the bed moving about and saw appellant getting up and pulling on his trousers. Appellant
said he was going outside to defecate and asked the daughter to go with him. The wife said she would go and,
when she passed through the door, appellant stayed inside and shut the door and she could not return. She
reported to the police who returned to the house. The daughter was not there and the police took appellant away.
Two days later the daughter's body was found in a well near the house.

Evidence was admitted of an incident in May, three months before the daughter's death. This was to the effect
that the wife had previously complained to the Orang Tua that appellant had interfered with the daughter and
that the matter had been disposed of by the Orang Tua stating that, if this occurred again, the matter would be
reported to the police. Appellant, the wife and the Orang Tua signed a document which was produced in
evidence, recording, inter alia, the allegation and the warning about reporting to the police if this occurred again.
The grounds of appeal concern solely the question whether the evidence of the
submitted that these pieces of evidence, suggesting, as they did, an incestuous
relationship between the appellant and his daughter, amounted to evidence of bad
character which, in the circumstances of this case, was inadmissible. It was submitted
alternatively that, if it was admissible, the trial Judge should have exercised his
discretion to exclude it on the ground that its prejudicial effect for outweighed its
probative value.

The evidence objected to is clearly the strongest possible evidence of motive. This
applies to the evidence of both incidents. For the evidence concerning the interview
with the Orang Tua on the first occasion shows how strong the motive must have been
when the wife went off in the night time on the second occasion. It showed that
applicant was likely to be very concerned that this time there would be a police
investigation and the daughter would be the most important person the police would
interview and the most dangerous from his point of view.
Preparation

 Sarkar Pg 181 - Under the head of preparations for the commission of an

offence, may be ranked the purchasing, collecting, or fashioning instruments
of mischief; repairing to the spot destined to be the scene of it; acts done
with the view of giving birth to productive or facilitating causes, or of
removing obstructions to its execution, or averting suspicion from the
criminal.
Illustration to S8 – Preparation

(c) A is tried for the murder of B by poison.

The fact that before the death of B, A procured poison similar to that
which was administered to B is relevant.
(d) The question is whether a certain document is the will of A.
The facts that not long before the date of the alleged will A made
inquiry into matters to which the provisions of the alleged will relate,
that he consulted lawyers in reference to making the will and that he
caused drafts of other wills to be prepared of which he did not approve
are relevant.
PP v. ABU BAKAR MAHAMAD & ANOR
[2021] 1 LNS 102

Preparation
 [120] Pertaining to preparation, the question is whether there was preparation to commit the
offence? The evidence before this court discloses that the first accused had rented a silver
Perodua Alza to be used during the incident. The act of the second accused to make a
telephone call to the deceased to celebrate the deceased's birthday is seen as a bait. The first
accused had instructed the second accused to make the telephone call.
 [121] When the deceased arrived at the first location at Kampung Melayu Majidee, the
second accused walked towards the deceased's car, the red Perodua Alza whilst the first
accused approached the deceased and punched the deceased.
 [122] Furthermore, the first accused had instructed that the rented sliver Perodua Alza which
had the deceased's blood in the back, be cleaned.
 [123] From the available evidence, this court finds that there was a prior preparation and a
common intention between the first and second accused to cause injury to the deceased from
the time they arranged for the deceased to come to the first location at Kampung Melayu
Majidee until the body of the deceased was disposed of at sea.
BALAMURALI MUTHUSAMY v. PP [2011]4
CLJ 128

In brief the facts are that on 6 November 2002 at about 8.30pm at Lot 10352, Jalan Bunga Melur,
Kampung Baru Hicom, Seksyen 26, Shah Alam, Selangor one Saravanan s/o Murali (SP9) was lounging in
his house when the appellant visited him on foot. The appellant said that his motorcycle had run out of
petrol and requested him to purchase petrol for his empty tank. SP9 obliged him. He bought the petrol at a
Petronas petrol station and handed it over to the appellant.
The saga continued one hour later when one Mariammah a/l Suppiah (SP4), when cooking at about
9.30pm, heard shouts and screams and had rushed to the source of the commotion. There she saw Komathi,
wife of the appellant, being drenched with petrol and the appellant attempting to strike a lighter. She saw
Komathi and Sareswathy attempting to prevent the appellant from striking the lighter by embracing him.
Some of the petrol had splashed also on SP4 and Sareswathy. Both Komathi and Sareswathy failed to stop
the appellant and in the course of it were engulfed by fire. The appellant and SP4 were also burnt in the
melee. At about that time one Ganesan a/l Muniandy (SP5) ie, husband of Sareswathy, who was outside the
house also heard SP4's scream and thereupon rushed into the house. There he saw SP4, Komathi,
Sarewathy (the deceased persons respectively), and appellant being engulfed by fire. He saw the appellant
running out, with Komathi running towards the kitchen, and SP4 attempting to put out the fire engulfing
him. Saraswathy was still burning in the lounge. SP4 after successfully extinguishing the fire proceeded to
help extinguish the fire on Saraswathy. SP5 subsequently sent Sarawathy and SP4 to the hospital.
The petrol, like the murder weapon (a club) legislated in illustration (a) in s. 5 of the Evidence Act
1950, is a relevant fact. The procurement of the petrol here, which is a preparatory act is a relevant fact
(Wong Foh Hin v. Public Prosecutor [1964] 1 LNS 219). The relevancy of the request of the appellant
to SP9 to buy the petrol is seen in light of s. 8 of the Evidence Act 1950, which promulgates that any
fact is relevant, which shows or constitutes a motive or preparation for any fact in issue or relevant
fact. As an added explanation, under illustration (c) of s. 8 of the above Act (an example of preparation
of an unlawful act), it is clarified that if A is tried for the murder of B by poison, then the fact that
before the death of B, A procured poison similar to that which was administered to B, is relevant.

In this case, with the unwitting assistance of SP9, the appellant had managed to purchase/procure
petrol, later to be used to murder the deceased persons. This is an incontrovertible preparatory act and
relevant (Thiangiah & Anor v. Public Prosecutor [1976] 1 LNS 166). Or to use the words of Jwala
Prasad in Lakshmi Prasad v. Emperor AIR [1923] Pat 307/307, the preparation here which came in the
form of the exploitation of SP9, and leading to the petrol procurement was the 'devising or arranging
means necessary for the commission of an offence'.
Conduct

Janab Key to the Law of Evidence

Conduct means behaviour reflecting his state of mind.

Conduct of a man includes what he does and what he omits to
do. A person’s guilt may often be reflected by his conduct.
Aedy Osman v. Public Prosecutor [2011] 1 CLJ 273

On the evidence as presented at the stage of the prosecution case, we

find no error committed by the trial judge in coming to such a
decision.
Regarding intention derived from the struggle between the appellant
and the police officers who apprehended him, this relates to the
appellant's conduct which is admissible under s. 8 of the Evidence Act
1950. This element of conduct has been discussed by this court in
detail in Parlan Dadeh v. PP (supra).
Mohd Zaiham Mislan v. Public Prosecutor
[2010] 1 CLJ 1

Likewise, in the present case I am of the view that the appeal made by the appellant to
SP8 not to take action against him after he was asked whether he had ganja in his car
and his conduct of being uneasy, scared and nervous when SP8 asked him to open his
car boot are relevant and admissible under s. 8 of the Evidence Act. There is also a
connection between the act of pleading to SP8 by the appellant and the smell of ganja
and subsequently the finding of the ganja in the appellant's car.
The appellant must therefore explain his conduct as required by the provision of s. 9 of
the Evidence Act. The appellant has failed to do so in this case. Therefore the inference
to be drawn from the evidence was that the appellant knew what he was carrying. Based
on the evidence adduced by the prosecution it can safely be concluded that the appellant
had mens rea possession of the drugs in the car independent of the statutory
presumption under s. 37(d) of the Act.
Parlan Dadeh v. Public Prosecutor [2009] 1
CLJ 717

The law relating to evidence of conduct is thus patent. If there is no evidence to show that the
conduct is influenced by any fact in issue or relevant fact as required by s. 8 then it is not
admissible as it would then be an equivocal act justifying inferences favourable to the accused
being drawn. If it satisfies the requirement of s. 8 it is admissible. It must be observed that the
degree of proof required to establish evidence of conduct would depend on the nature of the
conduct.
Conduct like the flight of an accused is a more positive act and is easily established. On the other
hand conduct like the accused looking stunned, nervous, scared or frightened is very often a
matter of perception and more detailed evidence may be required. Once admitted the court
cannot resort to any other explanation for the conduct or draw inferences on its own accord to
render it inadmissible. The onus is on the accused to explain his conduct pursuant to s. 9. Such
explanation must not be in their barest possible form, but with a reasonable fullness of detail and
circumstance (see R v. Stephenson [1904] 68 JP 524).
IBRAHIM MOHAMAD & ANOR v.
PP[2011] 4 CLJ 113 (FC)

Based on the above s. 8(2) of the Evidence Act 1950, there are two types of conduct which is relevant,
namely prior and subsequent conduct. Evidence of conduct is an equivocal act and is capable of more
than one interpretation. Accordingly, evidence of conduct must not be referred to in isolation. Instead,
conduct must be considered with other evidence or circumstances. In the present case it can be argued
that both the accused had no knowledge about there being the said drugs in the vehicle. This is
because they had not attempted to escape when they were in a position to do so upon seeing the
existence of a police road block. Apart from that both the accused did not portray any form of
suspicious behaviour. All these are indication of their state of mind, namely that they had no
knowledge about the presence of drugs in the vehicle.
On this point a comparison can be made with the factual circumstances as in the case of Ridwan v. PP
[2010] 4 CLJ 570. In that case, the appellant was charged for the offence of drug trafficking. The
appellant was seen behaving suspiciously and upon approaching the custom checkpoint, the appellant
started retreating and running towards the immigration counter before he was eventually apprehended
by security officers. The court found the prior conduct of the appellant before being arrested showed
he was behaving suspiciously and therefore it can be inferred that he had the mens rea to commit the
offence.
In the present case both the first accused and the second accused had testified that they
heard the prosecution witnesses saying "ada ganja" during the inspection of the vehicle
and it was only at that moment that both of them ran away. The mere act of them running
away from the scene after they heard the word "ganja" cannot be interpreted to mean that
they had prior knowledge of the said drugs. This is because the conduct is also equally
consistent with the act of an innocent man who was in the state of panic and trying to
evade arrest when wrongly suspected of committing a crime.

We find both the accused in their defence had put forward sufficient explanation as to their
conduct of running away from the scene of the crime. In this regard they had therefore
discharged the onus of explaining their conduct as provided for under s. 9 of the Evidence
Act. (See the case of Parlan Dadeh v. PP [2009] 1 CLJ 717; [2008] 1 LNS 506).
Pathmanabhan Nalliannen v. Public Prosecutor & Other
Appeals [2017] 4 CLJ 137 (FC)

The conduct of the second and fourth accused persons is consistent with them knowing of
the places where the items connected to the crime of murder were disposed of. This view is
consistent with the view held by the learned trial judge where he said:
The only inference that I could make on the conduct of the second and fourth accused
in providing the information in this case was that they were in possession of the items
found and had tried to destroy and conceal these items by scattering and leaving them
at various places.
[131] We are also satisfied that the act of pointing by the second and fourth accused persons
at the spots where items connected to the murder were found is admissible as conduct, as
provided for under s. 8 of the EA.
The acts of the second and fourth accused persons leading SP32 to the location where the
Seiko watch, the logs and the zinc sheets were found, and pointing to the location, are
admissible as conduct under s. 8 and s. 27 of the EA. The conduct and information leading to
the discovery show that the second and fourth accused persons knew of the various locations
where the items had been disposed of. They would not have had such knowledge had they
not participated in the acts leading to the deaths of Sosilawati and the three others.
Muhammad Zamani bin Mat Zin lwn Pendakwa
Raya [2019] MLJU 87

Mahkamah ini juga mendapati terdapat keterangan sokongan yang menunjukkan ada usaha oleh pihak
keluarga perayu untuk menyelesaikan kes di luar mahkamah. Keterangan SP1 (ibu SP2) menunjukkan pada
27/12/2014, beliau telah menerima panggilan telefon daripada seorang lelaki yang disyaki bapa perayu dan
meminta kes diselesaikan di luar mahkamah [rujuk m.s. 96 Rekod Rayuan Jilid 2(a)]. SP1 juga ada melihat
perayu berada di kedai runcit dekat dengan rumah SP1 pada 16/1/2015 dan terus menelefon SP2 supaya
jangan balik dahulu dari sekolah dan SP1 akan mengambil SP2 dengan menaiki kereta dan selepas itu terus
pergi ke Balai Polis Gombak untuk membuat laporan polis [lihat m.s. 98 Rekod Rayuan Jilid 2(a)] dan
Ekshibit P10 [lihat m.s. 229 Rekod Rayuan Jilid 3(a)]. Keterangan SP2 juga di m.s. 141, 142 dan 145
Rekod Rayuan Jilid 2(a) telah menunjukkan bapa perayu ada menelefon ibu SP2 hendak berbincang
mengenai kes perayu untuk kes diselesaikan di luar mahkamah.
[51] Dalam dapatan mahkamah ini perbuatan perayu dan keluarga perayu untuk berjumpa dan berbincang
dengan SP1 (ibu pengadu) bagi penyelesaian kes di luar mahkamah telah menunjukkan rasa kebersalahan
di pihak perayu dan merupakan fakta yang relevan untuk diambilkira oleh mahkamah bicara dan
mahkamah ini di bawah seksyen 8 Akta Keterangan 1950.
Soo Lik Duo v Pendakwa Raya [2019] MLJU 6

Soo Lik Duo (perayu) telah dituduh, dibicarakan dan didapati bersalah atas kesalahan membunuh anak
teman wanitanya yang berumur lapan bulan
Sebaik sahaja SP8 tiba di rumah pada jam lebih kurang 7.00 petang, OKT terus memberitahunya
simati ‘OK’ sahaja tiada sebarang masalah dan telah memberi susu serta sedang nyenyak tidur. Hal ini
kemudiannya didapati tidak benar dan akan dizahirkan fakta apa sebenarnya terjadi pada simati.
Perlakuan OKT sebegitu perlu dititik beratkan di bawah seksyen 8 Akta Keterangan 1950 dan sudah
pasti beliau kena perjelaskan sepertimana kehendak peruntukkan di bawah seksyen 9 Akta yang sama
Turutan daripada peruntukkan seksyen 8 dan seksyen 9 Akta Keterangan 1950 itu SP8 semasa
mengambil simati yang sedang menangis di tingkat atas rumah tersebut mendapati kepala simati
mengalami bengkak dan di sebelah kanan dahinya terdapat lebam kecil. Apabila ditanya oleh SP8
perkara menimpa simati itu OKT sekadar berkata hal sebegitu biasa terjadi pada ‘baby’ dan mula
memarahi SP8 kerana mengesyaki beliau menyebabkan simati berkeadaan sedemikian. Perlakuan
OKT itu amat aneh dan menimbulkan pelbagai soalan. Sekiranya OKT orang yang tidak bersalah
kenapa cuba mengelak kenyataan dan tidak menjawab secara tulus serta ikhlas apa sebenarnya terjadi
pada simati dan tidak perlulah memarahi SP8.
Alsar Imagu v Public Prosecutor [2017] 1
LNS 1837

The evidence of PW9 who testified that the appellant had surrender himself and
handed over the bloodstained knife, which evidence as to the conduct relevant
and admissible under section 8 of the Evidence Act 1950, corroborates PW11's
evidence in pointing to the guilt of the appellant.
Section 9 - Facts necessary to explain or introduce relevant facts

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an
inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or
person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact
happened or which show the relation of parties by whom any such fact was transacted, are relevant so
far as they are necessary for that purpose.
ILLUSTRATIONS
(a) The question is whether a given document is the will of A.
The state of A's property and of his family at the date of the alleged will may be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be
libellous is true.
The position and relations of the parties at the time when the libel was published may be relevant facts
as introductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with the alleged libel are
irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between
A and B.
DORAI PANDIAN MUNIAN & ANOR v. PP [2012] 10
CLJ 22 (CA)

The holding of an identification parade is a part of the investigation process

carried out by the investigating authority.

The evidence of the identification parade is relevant and admissible under s.

9 of the Evidence Act 1950, and can be used to corroborate the substantive
evidence given by the witnesses in court on identification of the accused as
the perpetrator of the alleged crime. It is well settled that the substantive
evidence is the evidence of identification in court.
Salehoddin Ahmad v. PP [2011] 6 CLJ 542

In the instant case there were evidence that the appellant attempted to run away even
after PW4 identified himself as a police officer. The appellant, while running away,
threw the bag P11 which contained the proscribed drugs and while he was being
apprehended by the police officers he put up a struggle.
The explanation for his conducts must be given by the appellant pursuant to s. 9 of the
Evidence Act 1950. The appellant's conducts when taken together, in our view, lends
strength to the prima facie inference that he had mens rea possession of the proscribed
drugs. We therefore agreed with the finding of the learned trial judge that the appellant
had mens rea possession of the proscribed drugs.
KHAIRUDDIN HASSAN v. PP [2010] 7 CLJ
129

Since the appellant's act of flight had a direct bearing on the offence he faced,
he must satisfy the trial court why he reacted in that manner. The trial court,
having had the advantage of seeing and hearing the appellant's explanation is
the best forum for determining whether such an explanation is credible or
believable.
This explanation to rebut any inference detrimental to his defence becomes a
relevant fact under s. 9 of the Evidence Act, and necessary for the trial court in
its evaluation of the case in totality.
Section 10 - Things said or done by conspirator in
reference to common design

Where there is reasonable ground to believe that two or more persons have conspired together to
commit an offence or an actionable wrong, anything said, done or written by any one of those
persons, in reference to their common intention after the time when the intention was first entertained
by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as
well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any
such person was a party to it.
ILLUSTRATION
Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Yang
di-Pertuan Agong.
The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in
Malacca for a like object, D persuaded persons to join the conspiracy in Province Wellesley, E
published writings advocating the object in view at Singapore, and F transmitted from Singapore to G
at Djakarta the money which C had collected at Malacca, and the contents of a letter written by H
giving an account of the conspiracy are each relevant, both to prove the existence of the conspiracy
and to prove A's complicity in it, although he may have been ignorant of all of them, and although the
persons by whom they were done were strangers to him, and although they may have taken place
before he joined the conspiracy or after he left it.
1. reasonable ground must exist to believe that two or more persons have conspired to
commit an offence or an actionable wrong.
2. anything said, done or written by anyone of those persons must have reference to their
common intention
3. such thing should be said, done or written after the common intention was first
entertained by one of them
4. such thing said, done or written by one of them is relevant against every other member
to prove:
 (i) the existence of conspiracy and
 (ii) to prove that any particular person is member thereon.
Janab's Key to Law of Evidence, 3rd edn (Revised
by Dato' Mah Weng Kwai) at p. 280

The condition precedent for invoking section 10 is that there should be reasonable ground to
believe that two or more persons have conspired together to commit an offence or an
actionable wrong. Further, two conditions must be satisfied that is the statement or act must be
done after the common intention was first entertained by the conspirators and it must have
reference to their common intention. If this condition is satisfied a wide variety of facts is
made admissible under section 10.

Section 10 deals relevancy of facts in relation to actions for conspiracy. Conspiracy is an

agreement between two or more persons to do an unlawful act or to do a lawful act by
unlawful means. It may be both a crime as well as tort. The principle on which section 10 is
based is the theory of agency, which is based on the maxim, 'qui facit per alium facit per se' ie,
he who does by another does it himself. Each conspirator is the agent as well as the principal of
the other conspirators. Statement made in the absence of one conspirator will be taken in
evidence as an exception to 'res inter alios acta principle ', ie, transaction that happened
between strangers are inadmissible.
KHOO TENG CHYE v. CEKAL BERJASA
SDN BHD & ANOR[2015] 6 CLJ 449

There was one common director by the name of Amir Hussain (DW1) and/or
representative of the first and second respondent acting on behalf of the second
respondent who had played a major role to deprive the appellant of its right to
recover the judgment sum or part thereof against the first respondent by way of
winding up proceedings.

Amir Hussain and the second respondent benefited out of the land transaction of
the first respondent herein, to the detriment of the appellant. The first appellant's
land was transferred to the second respondent.
The learned trial judge had accepted the evidence of the appellant that it did not enforce the judgment
expeditiously because of the first respondent's representation that it will be settled and that the appellant had been
induced to withhold the enforcement of the said judgment. The learned counsel for the appellant reproduces the
relevant part of the judgment as follows:
 60. Essentially the oral evidence of the plaintiff is the same as the factual background of the case narrated
above. Additionally, he said when Mr. Loh Eng Wee approached him for the second time for the settlement of
the said judgment, he came together with Mr. Khoo Boo Tee. He said, although Mr. Khoo Boo Tee was then
no longer on record the director of the first defendant due to his bankruptcy status, but he who was still
involved in the affairs of the first defendant company had urged him to withhold all execution proceedings as
financially insolvent first defendant was in the midst of seeking assistance from the third party to revive the
development project to which he agreed. He further said that he was aware of the first defendant being
presented with a winding up petition by Public Bank Bhd in 2007.
On the facts of the instant case, it is abundantly clear that the conduct of the first and second respondents through
Amir Hussain as well as the common solicitor by conduct as well as correspondence clearly will attract s. 10 of the
Evidence Act 1950. The learned trial judge had failed to consider the said section and its relevance to the facts of
the case. In consequence, the integrity of the decision making process has been compromised.