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AHMAD IBRAHIM KULLIYYAH OF LAWS

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

Kulliyyah: Department:
AIKOL Public Law Department

Programme Bachelor of Laws (LL.B)

Course Title Law of Evidence 1

Course Code LAW 4110

Status Core

Level 4

Credit Hours 3

Contact Hours 3

Pre-requisite None
(if any)
Co-requisite None
(if any)
Teaching Methodology Lectures, Tutorials & Seminars

Method of Evaluation Test 1 15%


state weightage of each Test 2 15%
type of assessment Tutorial Assessment 10%
Final Examination 60%
Total: 100%

Instructors Coordinator: Prof Dr Haji Mohd Akram Shair Mohamed


Mr. Mohd Shahrizad Mohd Diah
Assoc. Prof. Dr Ismail Yunus
Assoc. Prof. Dr Mohamed Akram
Asst. Prof Dr. Rani Kamaruddin

Semester Offered Semester 1 and 2

Course Objectives 1. That students acquire a basic knowledge of the law of


evidence.
2

2. That students appreciate the relationship between the law of


evidence and substantive law subjects.
3. That students gain experience in applying the law of
evidence to practical problems.
4. That students can acquire and enhance transferable skills
for effective learning and the application of the law of
evidence.

The above objectives aim to equip students to grasp the law of


evidence when he is practicing law as an advocate and solicitor or
as a judge or otherwise dealing with legal matters in his various
positions as a legal advisor.

Learning Outcomes 1. To define the meaning of Evidence


2. To identify the various modes of evidence
3. To employ the theory of evidence into the skills that can be
applied on courts
4. To examine the various relevant evidential issues to
comprehend relevancy and admissibility of evidence.
5. To intergrate the knowledge of evidential and procedural
laws into the areas of substantive laws.
6. To justify the usefulness of the knowledge of evidence laws
into practical skills.
7. At the end of each topics, the students will be able to
identify and provide relevant legal solution on each topics.
8. At the end of the semester the students will have a sound
grasp of evidential laws. They will be freely apply the law to
practical problems.

Course Synopsis “The law of evidence determines how the parties


are to convince the court of the existence of that
state of facts, which according to the provisions of
substantive law would establish the existence of the
right or liability that they allege to exist”.
- J.F. Stephen, A Digest of the law of evidence, 4th
edn. London: Macmillan, 1881, p. 2.

This course aims to provide a basic outline of the law of evidence in


Malaysia, particularly as provided for in the Malaysian Evidence
Act, 1950. This course enables students to appreciate the
theoretical basics of the law of evidence and their relationship with
substantive law. Wherever necessary, the basic principles of Islamic
law of Evidence will be pointed out in so far as they are important
for comparative study.

Main references for the course will be on local authorities.


Authorities from other jurisdictions will also be cited to better
understand the principles of the law of evidence.

As the course is meant for final year law students, it is imperative


that basic knowledge of the technicalities of the law of evidence is
3

imparted first. The first few weeks of the course will be devoted on
the basics of evidence such as mode of evidence, relevancy sections
and similar fact evidence.

The next few weeks will cover important topics like admission and
confession, expert opinion and exceptions to the rule of hearsay.

Finally, this semester will cover the important topic on forensic


evidence and the basics of evidence that will apply. The lecturer
will attempt to explain how specific provisions of evidence will
apply when this type of evidence are used.

COURSE OUTLINES

WEEK TOPICS REFERENCES

WEEK A. Introduction to the Law of The historical background of the


1 Evidence. Malaysian Evidence Act 1950.

Salmond: A. The Principles of Interpretation


“Law is divided into substantive law 1. Bank of England v Vagliano [1891]
and adjective law.” AC 107
2. Yeo Hock Cheng v R [1938] MLJ 104
Substantive law deals with the rights 3. Pakala Narayana Swami v King
and duties of the parties. Adjective Emperor [1939] MLJ 59
law is to gain access to the court of Lord Macmillan held that the Evidence Act
law to vindicate your rights. Need to is a code and we cannot look at the
know procedure to defend your previous state of law. However no code is
clients and to study evidence to prove exhaustive. Some matters can be left out. If
the case to the courts. Adjective law the code is silent we can import common
is lex fori or law of the forum. law to fill in the lacunae.
Foreigners are tried to our procedure
and law of evidence. Other cases:
See Bain v Whitehaven Railway 1. Mohd. Syedol Ariffin v. Yeoh Ooi
Junction [1850] 3 H CL. 1-19. Gark. [1916] 1 ML 165
2. Ainan v. Syed Abu Bakar [1939] MLJ
209

B. The Role of the Common Law


1. PP v. Yuvaraj [1969] 2 MLJ. 89
2. Jayasena v. R [1970] 1 All ER 219,
AC 618.
Deals with the interpretation of the code.
The code is not malleable to that extent the
common law is. Therefore to interpret the
code must look at the code first.

C. Is the Evidence Act exhaustive?


In PP v Sanassi [1970] 2 MLJ 198, Sharma
4

J had on occasion made a pronouncement


whether the Evidence Act is exhaustive or
not. The Code is exhaustive only what is
contained in the Act itself. Many other
matters can be found in other statutes such
as section 113 CPC, Dangerous Drugs Act,
Seditious Act that contained evidential
provision. In that sense it is not exhaustive.

D. Since the Evidence Act is not


exhaustive can we receive the
common law?
The Privy Council in PP v Yuvaraj [1969]
2 MLJ 89 lucidly expressed that no
enactment is exhaustive. The Evidence Act
is part of the general corpus of the law that
is applied by lawyers. On matters where the
act is silent or fails to be explicit, can have
a reference to the common law. The PC
told us that although the Evidence Act is in
the form of a code there is no intention on
the part of the legislature to do away with
well-known concepts of the common law.

1. PP v Glenn Knight Jeyasingam


[1999] 2 SLR 499 at 519
The Singaporean Apex Court brought out a
good part of the law. The code is a
facilitative Act. The code is there but in
matters when the code is silent we can
receive the common law.

E. Scope of the Evidence Act


By virtue of section 2 the Evidence Act
cannot apply to affidavits or to arbitrations.

THE EVIDENTIAL CONCEPTS FACTS IN ISSUE IN CRIMINAL CASES


R v Simms [1946] KB 531, Lord Goddard
A. THE CONCEPTS OF FACT AND FACT IN p.539.
ISSUE Whenever there is a plea of not guilty,
everything is in issue and the prosecution
Bentham mentioned that the has to prove the whole of their case
definition of fact is dual in nature that including the identity of the accused, the
includes physical facts or nature of the act and the existence of any
psychological (mental). necessary knowledge or intent.

Facts in issue mean the subject in FACTS IN ISSUE IN CIVIL PROCEEDINGS


dispute. If a man is charged of killing It is identifiable from the pleadings. The
a man and he pleads not guilty. The whole point of which is to set out the
fact that he denies the charge is an parties’ allegations, admissions and denials
issue in that dispute. In civil matters, so that before the trial everyone knows
5

the facts in issue are matters to be exactly what matters are left in dispute and
decided in pleadings. In a contract, therefore open to proof or disproof.
the terms, implied or express could be
denied or traversed. Matters that are
not admitted become an issue. Must
prove the facts in issue.

B. THE CONCEPT OF RELEVANCY See also:


Section 136: Court to decide as to
Relevancy is a concept that runs admissibility of evidence.
through the Evidence Act 1950. Section 165: Judge has power to put
Section 5 declares what is relevant questions about any fact relevant or
evidence, i.e. only evidence that is irrelevant, but the judgement must be based
declared relevant by the Act and ‘of upon facts declared by the Evidence Act to
no others’. The significance of this be relevant and duly proved.
section is apparent. Whatever is not 1. PP v Dato’ Seri Anwar Ibrahim (No:
provided for in the Act is irrelevant 3) [1999] 2 MLJ 1
and therefore inadmissible. Fact in issue must be relevant to fact in
Consequently, only evidence declared issue
relevant by the Act can be considered
as judicial evidence. 2. PP v. Haji Kassim [1971] 2 MLJ 115
(Federal Court)
Whatever is logically probative is not
necessarily admissible in evidence unless it
is declared so under the Act.

Section 5 is the backbone of the Evidence


Act. It gives evidence of facts in issue and
facts that are relevant to the facts in issue
as herein after declared section 6 – 55 and
of no others. It can be read together with
section 136 where the judge can ask in
what way is the evidence relevant to the
facts in issue – as exercised by Augustine
Paul J in the Dato’ Seri Anwar Ibrahim’s
case. If the judge asked the lawyer about
relevancy under section 136, you should
direct the judge’s mind to section 5.

Section 5 declares what is relevant


evidence, i.e. only evidence that is declared
relevant by the Act and “of no others”. The
significance of this section is apparent.
Whatever is not provided for in the Act is
irrelevant and therefore inadmissible.
Consequently, only evidence declared by
the Evidence Act, 1950 could be
considered as judicial evidence in
Malaysia. Section 5 must be read with
section 136(1) of the Act:
6

Augustine Paul J in PP v. Dato’ Seri


Anwar bin Ibrahim(No3) [1999] 2 MLJ 1,
170 (HC) held:
“Questions of admissibility of
evidence are questions of law and
are determinable by the judge. If it
is the duty of the judge to admit all
relevant evidence, it is no less his
duty to exclude all irrelevant
evidence. Section 5 of the
Evidence Act, 1950 declares that
evidence may be given in any suit
or proceedings of the existence or
non-existence of every fact in issue
and of such other facts as declared
to be relevant under the provisions
of the Evidence Act, 1950. The
judge is empowered to allow only
such evidence to be given as is, in
his opinion, relevant and
admissible and in order to ascertain
the relevancy of the evidence
which a party proposes to give, the
judge may also ask the party
proposing to give evidence, in what
manner the alleged facts, if proved,
would be relevant, and he may then
decide as to its admissibility.

Recommended Reading:
H.M. Zafrullah 1984. Admissibility,
Relevant Evidence and other related Issues:

Some Comments From the Dato Mokhtar’s


Case. Malayan Law Journal xv.

C. The concepts of logical and Chong Siew Fai CJ in Thavanathan


legal relevancy Subramaniam v. PP[1997] 3 CLJ 150 held
that: “The law of evidence, the cardinal
Evidence must satisfy not only the rule relating to relevancy is that, subject to
test of relevance, but Spencer and Flin exclusionary rules, all evidence which is
note: (a) it must be relevant, and (b) it sufficiently relevant to the facts in issue is
must be legally admissible. admissible.”

Other cases:
PP v. Kilbourne [1973] AC 729:
“Evidence is relevant if it is
logically probative or disprobative
of some matter which requires
proof ... “(L)ogical probativeness”
7

... does not of itself express the


element of expedience which is so
significant of its operation in
law ... It is sufficient to say ... that
relevant evidence, i.e. logically
probative or disprobative evidence
is evidence which makes the
matter which requires proof more
or less probable.”
PP v. Haji Kassim (supra)
“ … (W)hatever is logically
probative is not necessarily
admissible in evidence, unless it is
so under the (Act).”

Matters that are logically relevant but not


legally admissible include privileges,
hearsay and character evidence.

WEEK ADMISSIBILITY OF EVIDENCE 1. PP v Saminathan [1937] MLJ


2, 3 ILLEGALLY 39
OBTAINED 2. R v Kuruma [1955] AC 197
3. Gan Ah Bee [1975] 2 MLJ 106
Under the common law as long as the 4. Re Kah Wah Video [1986] 2
evidence is relevantly procured, even MLJ
if you steal it, it will be admissible. It 5. Ramli b. Kecik [1986] 2 MLJ
is not the concern of the court. Lord 33
Goddard emphasized that as long as it 6. Wako Merchant Bank v Lim
is relevant it is admissible. Lean Heng [2000] 4 CLJ 223-226

Discretion to omit illegally obtained


evidence
Noor Muhamad [1949] AC
Where if the evidence was procured
legally, if the prejudicial effect outweighed
its probative value, the judge can exercise
his exclusionary discretion to omit that
evidence.

In R v Sang [1980] AC 402, the door to


exercise the exclusionary discretion was
closed. In Malaysia we follow the common
law. It is of high persuasive value to us.
(Ramli Kecik (supra) did not address this
issue.) This discretion to exclude in
England was restored by statute in the Act
of Parliament (Police And Criminal
Evidence Act 1984).

In Malaysia it is not certain. It is discretion


to be exercised judiciously. Factors will
8

depend on the nature of illegality.

Krishna Rao Gurumurthy [2001] 1 MLJ


274
Kang J addressed his mind that evidence
illegally obtained the judge must
judiciously exercise his discretion to
exclude illegally obtained evidence if the
prejudicial effect will outweigh probative
value.

Other related case:


Cheng Swee Tiang v PP (1964) 30 MLJ
291

Recommended Readings:
1. Yeo. 1981. Illegally Obtained
Evidence. Melbourne University Law
Report. 13. 31.

2. Choo, 1989. Improperly Obtained


Evidence: A Reconsideration. Legal
Studies. 261.

3. Tong, 1994. Illegally Obtained


Evidence and The Concept of Abuse
of Process: A Possible Reconciliation.
Singapore Law Report. 97.

4. Williams G. 1955. Evidence Obtained


by Illegal Means. Criminal Law
Review. 339.

Definition of evidence Lim Soh Meng & Anor v. Krishnan [1967]


1MLJ 8 (Federal Court).
SECTION 5: PROVING CASE BY EVIDENCE Robins v. National Trust Co [1927] AC
515
• Definition of proof and the
difference between evidence Proof is not required in three situations.
and proof. These are; (a) cases of judicial notice; (b)
cases where the admission of facts by both
They are not synonym. Evidence is parties or where the accused pleads guilty
the media to bring about proof. to a charge and (c) cases involving
Evidence brings witnesses, the presumptions such as the common law
counsel prove evidence by presumptions that a guilty man is innocent
documents. Evidence leads/generates until proven guilty or that a man is sane
proof. Evidence is the cause while until proven insane, or to prove fact A, fact
proof is the consequence. Proof is B is presumed. There is another type of
something that brings about a presumption recognised by the Malaysian
persuasion in the mind of the tribunal court called the statutory presumption. One
9

of fact as to the existence or non- example is section 37(1) of the Dangerous


existence of fact in issue. Definition Drugs Act 1984 where possession of a
by Act in 3 forms: required amount of drugs raises a statutory
presumption that the accused is a trafficker
Proved: of drugs.
Disproved:
Not proved: Recommended Reading:
H. Singh. 1972. The Evidence Act: A Case
For Reform. Malayan Law Journal. 2. xxv

Types of Evidence (Media of Proof) Testimonial Evidence (Oral evidence) –


sections 59 & 60 to be read together.
• Oral evidence.
• Hearsay evidence. Malaysia adopted the adversarial system.
• Documentary evidence. There is cross-examination to test the
• Circumstantial evidence. credibility of witnesses. It is the engine for
the discovery of truth. The purpose of re-
• Real evidence.
examination is to repair the damage.
Distinction between Weight and
Section 59 states that all facts, except the
Admissibility of Evidence.
contents of documents, may be proved by
oral evidence. What is perceived by one or
more of the five senses to prove the truth of
assertions. As opposed to giving hearsay
evidence that is repeating a statement in
court made outside court. It is not tested by
cross-examination for the truthfulness of
evidence. If the witness is present in court,
the court can see him, see his demeanour,
how he reacts to questions to appreciate the
evidence.

Hearsay evidence

Second hand evidence. The witness did not


see the facts. The witness was told
someone out of court that witness to it.
Repeating out of court statement in
court to establish the truth of the
matter is hearsay, it not subject to
cross-examination, not the best
evidence therefore it is unreliable

1. Teper v R [1952] AC 480, 486


Lord Normand summarized the classic
rationale for exclusion as being “It is not
the best evidence and it is not delivered on
oath. The truthfulness and accuracy of the
person whose words are spoken by another
witness cannot be tested by cross-
examination, and the light which his
10

demeanour would throw on his testimony


is lost.” Such evidence can be concocted
and the court has no chance of
appreciation.

2. Ratten v R [1972] AC 378


A question of hearsay will only arise when
the statement is given testimonially, ie
when it is given to prove the truth of the
fact asserted. If that witness is asked to
testify it is not hearsay, and if relevant
under the section of relevancy, it is
admissible.

3. Subramaniam v PP [1956] 1 WLR


965
4. Sparks v R [1964] AC 964

Reception of Hearsay evidence


Section 59: Witness must give direct
evidence.
Section 60: Direct evidence is evidence
perceived by one or more of 5 senses.

1. Subramaniam v PP [1956] MLJ 220


De Silva enumerates the judicial definition
of hearsay. Repetition of statement out of
court through a witness in court. Look at
the purpose of that statement. If the
purpose is to prove the truth of the fact in
issue, to use it testimonially, it is hearsay.
If the purpose to tell the court the fact that
the statement is made, it is not hearsay.
May be admissible if relevant under section
of relevancy.

2. Teper v R [1952] AC 480


3. Re Soo Leot [1956] MLJ 54
4. Salha v R [1959] 25 MLJ 110
5. Ratten v R [1972] AC 378

HEARSAY CAN BE ORAL OR IN WRITING


1. Chandrasekaran & Ors v PP
[1971] 1 MLJ 153
2. Patel v Controller of Customs
[1965] 3 All ER 593

Hearsay can be in the form of conduct or


11

implied assertion.
3. Chandrasekera alias
Alisandiri [1939] AC 220
4. R v Abdullah 1887 All.

Proving the document is subject by the


hearsay rule. You must call the maker of
the document.
Chandrasekaran & Ors v PP [1971] 1
MLJ 153.

DOCUMENTARY EVIDENCE
Definition in section 3: Transaction of
thought of something permanent. Anything
that represent an idea by audio, telex,
computer.

Other sections relevant. Sections 61-65.


Section 61.
The contents of documents may be proved
either by primary or by secondary
evidence.
To be read together with section 64.
Documents must be proved by primary
evidence except in the cases hereinafter
mentioned. Section 64 states the mode of
proving. Documents must be proved by
primary evidence unless you are permitted
to prove by secondary evidence by virtue
of section 65. Section 65 lays down the
reasons that you can use to prove case by
secondary evidence. It is not exhaustive.

Must be able to tell the court the reasons


why you cannot prove by primary
evidence. Section 104: The burden of
proving any fact necessary to be proved in
order to enable any person to give evidence
of any other facts is on the person who
wishes to give the evidence.

CIRCUMSTANTIAL EVIDENCE
Sections relevant: sections 6 –16
(Relevancy section) : Section 45-51
(Opinion evidence)
Circumstantial evidence is inferential
evidence where direct evidence is not
available to be given by witnesses, ordinary
or expert.
12

When a murder is committed and there is


no direct evidence, facts before the murder
at the scene have footprints, or blood on the
weapon, all these are circumstantial
evidence to prove that murder. We can call
an expert to give an opinion, drawing an
inference the existence or non-existence of
a fact.

Sunny Ang v PP [1966] 2 MLJ 195

Wills on Circumstantial evidence.


He is of the opinion that in direct evidence
a witness can lie. Circumstantial evidence
is more superior. It depends, for example a
finger-print. Can plant someone finger
print. He can be convicted.

Dato Mohktar Hashim & Anor v PP


[1983] 2 MLJ 232
A cumulative effect that irresistably point
to the accused.

Real Evidence
The real subject matter itself – ie the
identity of the offensive drug.

Locus in quo.
Visiting the scene of the crime.

Recommended Readings:
1. Ahmad Ibrahim. 1973. Note On
Circumstantial Evidence. Malayan
Law Journal. 1. xlvi.

2. Ahmad Ibrahim. 1961. Conviction on


Circumstantial Evidence. Malayan
Law Journal. 1. xxvi.

3. Mohd Akram. 1987. The Best


Evidence Rule. Current Law
Journal.1. 113.

WEEK Res Gestae – Par in rei gestae (Part 1. Kok Ho Leng v PP [1941] MLJ Rep
4 of the transaction) 119
Section 6: Facts forming part of Charged with gambling. While the
same transaction. authorities raided his premises he took out
the phone. These transaction were relevant
This section refers to those under section 6 and 7.
surrounding and accompanying
13

circumstances, which are inseparable Section 6 a very broad section. See


from facts in issue, and are necessary illustration (b).
to explain the nature of the fact itself.
It is an application of the common 2. Thavanathan a/l Balasubramaniam
law doctrine of Res Gestae, i.e. thing v PP [1997] 2 MLJ 401.
done (including words). It means the 3. R v Bedingfield.14 Cox CC 341.
events that happened in the course of 4. Ratten v R [1972] AC 378 the law
a transaction. took a liberal term.

Under the common law, this doctrine Judges very much mersmerised by Res
will admit evidence not under any gestae doctrine. Under the common law,
head of evidence. However to exclude this principle allows evidence not under
this evidence will cause injustice. any head of admissibility. It must be
This doctrine under the common law legally and logically relevant. To exclude
very restrictive condition and is such evidence will make the evidence
strictly applied. intelligible and unjustifiable. We have
sections 5, 6 – 55 that deal with relevancy.
The evidence may occur at different Section 6 does not explain the concept of
times and place. It is connected by RG.
fact in issue by proximity of time and
place and continuity of purpose and OLD LAW
circumstances. Consist of acts, The action must be contemporaneous and
conduct, statement and statement of spontaneous under the common law.
bystanders. A transaction is a group
of facts to which you give a legal 1. R v Bedingfield (1879) 14 Cox CC
name, crime/ tort. 341

Ratten changed the way of thinking.


Statement and conduct that are not exactly
contemporaneous, are enough to be
proximate and contemporaneous. The
statement done on the pressure of the
moment, when there is no time to concoct,
is a reliable statement.

Bedingfield was overruled by R v Andrews.


(HoL) [1987] 1 All ER 513. Here the
House of Lords referred to Ratten. The
utterance of the statement was so
contemporaneous. Incident dominated his
mind. No chance to concoct his story. It is
unlikely to be unreliable and admissible
under Res gestae. Statement made during
the pressure of the moment.

2. Hamsa Kunju v R [1963] MLJ 228


(Singapore)
3. Mohamed bin Allapitchay & Ors v R
[1958] MLJ 197
4. Leong Hong Khie v PP, Tan Gong
14

Wai v PP [1986] 2 MLJ 206


5. Don Prophinit v PP [1994] 5 SLR
193
6. Sawal Das v State AIR 1974 729.

Illustration (a) section 6. Statement by


bystanders.

1. Nasser Din v E AIR 1945 All 46


2. PP v Sam Chong Hoey v PP [1998]
MLJ

Other relevant cases:


1. Tan Geok Kwang v. PP [1949] MLJ
203 (Court of Appeal, Malaya)
When there is a direct connection
between one fact and another, then the
former is admissible as part of the res
gestae.

2. Jaafar Hussain v. PP [1950] MLJ 154


(Court of Appeal, Federation of
Malaya)
If one act forms a part of the same
transaction with another act that is in
issue, then the former is admissible
even if it discloses that the accused is
guilty of other offences.

3. PP v. Veeran Kutty [1990] 3 MLJ


498

4. Mills v. R [1945] 3 All ER 865 P.C

Recommended Readings:
1. Chin. 1987. Relevancy, Res Gestae
and Hearsay : A Malaysian
Perspective.
Malayan Law Journal. cxxix.

2. Sibley. Specially Admissible Evidence


Res Gestae. Law Quarterly Review.
19. 203.

3. Phipson. Doctrine of Res Gestae in


Law of Evidence. Law Quarterly
Review. 19. 85.

4. Sibley. Doctrine of Res Gestae in Law


of Evidence. Law Quarterly Review.
15

20. 435.

5. Stone. Res Gestae Reagigata. Law


Quarterly Report. 55. 66.

6. Campbell. 1972. Res Gestae and


Hearsay Evidence. 3 Modern Law
Review. 3. 540.

WEEK Section 7 provides: 1. Dr Jainand v R AIR 1949 All 291.


5, 6 Facts which are the occasion, cause
or effect, immediate or otherwise, Per Bhargava J at 299:
of relevant facts or facts in issue, or “The fact in issue was whether
which constitute the state of things Jainand had committed the
under which they happened or murder of Karan Singh. The
which afforded an opportunity for facts that Jainand had taken
their occurrence or transaction, are money and ornaments from
relevant. Karan Singh and had on the day
of murder gone to Jainand to
For any fact in issue to occur, there demand the money and
must be circumstances where the fact ornaments are relevant facts
in issue to occur. There must be cause showing occasion, cause or
for the occurrence and the effect of the fact in issue.”
consequence. Section 7 makes
relevant facts which cause to fact in 2. per Weston J in Sidik Sumar v E AIR
issue that provide the occasion is a 1942 Sind 11:
relevant fact. There must be an “Evidence that there were
opportunity for the occurrence of the footprints at or near a scene of
fact in issue to be relevant. offence or that these footprints
came from a particular place or
led to a particular place, is
relevant evidence under section
7.”

Footprints constitute an effect of a fact in


issue that are relevant.

S7 makes any facts occurrence facts in


issue must be an occasion and an
opportunity for its occurrence. A fact in
issue cannot occur in isolation.

Section 8 provides: Motive


(1) Any fact is relevant which Every act must have a motive. Motive is
shows or constitutes a motive different from intention. Motive is an
or preparation for any fact in emotion that leads that person to do that
issue or relevant fact. act. Motive is the reason why a person does
(2) The conduct of any party, a particular act.
or any agent to any party, to
any suit or proceeding in Premeditation
reference to that suit or
16

proceeding, or in reference to To carry out preparation. To carry out prior


any fact in issue therein or conduct.
relevant thereto, and the
conduct of any person an 1. Boota Singh v PP [1933] MLJ
offence against whom is the 195
subject of any proceeding, is
relevant if the conduct Explanation 1.
influences or is influenced by The word conduct in this section does
any fact in issue or relevant not include statements unless those
fact, and whether it was statements accompany and explain acts
previous or subsequent other than statement: but this
thereto. explanation is not to affect the relevancy
of statements under any other section of
Look at section 8 in two aspects this Act.
1. Motive and
preparation. Explanation 1 adds an important
2. Conduct relevant. qualification to the word conduct in the
Distinguish conduct from section. It does not include statement
statement. unless those statements accompany and
explain acts other than statements.

2. Wong Foh Hin v PP [1964] MLJ 149


The evidence concerning the interview
with the Orang Tua shows how strong the
motive must have been when the wife went
off in the night time to see the Orang Tua
on the second occasion. It showed that
WFH was likely to be very concerned that
this time there will be a police investigation
and the police would interview the
daughter.

Conduct
Can be previous or subsequent conduct.
1. Chandrasekaran & Ors v PP [1971] 1
MLJ 153

COMPLAINT OF SEXUAL OFFENCE


Illustration (j)
If an offence has been committed by the
accused, if the victim as soon as reasonable
makes a complaint to the person in
authority, that complaint will be evidence
of a conduct.
The relevancy of a complaint in sexual
cases was considered by Muhammad
Kamil J in PP v Mohammad Tereng bin
Amit [1999] 1 MLJ 154.
17

The difference between a statement A complaint, evidence as conduct must


and a complaint. have 3 factors
1. made spontaneously.
The value of a mere statement only to 2. must not be result of tutoring or
corroborate the evidence of a witness. inducement.
A statement is something that is 3. made to a person in authority.
stated devoid of feelings. Mere relay Its contents emotive and the intent punitive.
of information.
In Boota Singh, the moment the accused
disturbed the deceased, she made a
FIR under S 107 CPC. That
conduct amount to complaint.
Admissible to show motive and
conduct under s 8 (explanation 1)

1. Aziz Muhamad Din v PP [1996] 5


MLJ 473
The difference between a complaint and a
mere statement in s 8 is that the former is
expressive of feelings, the latter of
knowledge, the former evidences conduct,
but the latter has no such tendency. A
complaint , unlike a bare statement, made
with aview to redress or punish and is
made to someone in authority , such as the
polic3 , but not necessarily to a public
officer.

2. PP v Teo Eng Chan & Ors


[1988] 1 MLJ 156

Section 9: Facts necessary to 1. Karam Singh v PP [1967] 2 MLJ


explain or introduce relevant facts. 25,27 & 28.
These evidence led to the conclusion
Makes relevant 7 facts. that they are more probable and more
1. Facts to explain fact in issue consistent with his innocence under s 9.
or relevant facts. The prosecution case was based
2. Facts to introduce fact in entirely on circumstantial evidence.
issue or relevant facts.
3. Facts which support or rebut Ong Hock Thye FJ:
fact in issue. “In a case where the prosecution
4. Facts which suggest an relies on circumstantial evidence,
inference – s 11(a). such evidence must be
S 11 (a) Facts not otherwise relevant inconsistent with any other
are relevant if they are inconsistent hypothesis than that of the
with any fact in issue or relevant fact. accused’s guilt.”
5. Facts established identity of
person.
6. Facts which established time
and place which fact in issue is
18

relevant under s 7.
Facts show relation of parties in so far
they are necessary for that purpose.

Identity and other matters 1. Girdari Lall & Ors v PP [1946]


Turnbull guidelines. MLJ 87
By Lord Widgery CJ A combined profile photograph is
1. Whenever the case against the inadmissible in evidence because it
accused depends wholly or shows more than identity.
substantially on the
correctness of one or more 2. PP v Kok Heng & Ors [1948] MLJ
identification of the accused, 171
which the defence alleges to The identification of a suspect by
be mistaken, the judge should photograph before arrest is acceptable,
warn the jury of the special but once he is arrested the
need for caution before identification should be by personal
convicting the accused in inspection.
reliance on the correctness of
the identification or 3. Chan Sin v PP
identifications. He should Id parades must be held in the usual
instruct the jury to the and proper manner; the suspect must be
possibility that a mistaken placed with sufficient number of others
witness can be a convincing of the same nationality and age as
one. himself.
2. The judge should direct the
jury to examine closely the 4. PP v Toh Kee Huat [1965] 1 MLJ
circumstances in which the 76
identification by each witness The evidence of fingerprints is
came to be made. admissible to prove identity.
3. Finally, the judge should
remind the jury of any 5. Taylor v Chief Constable of
specific weaknesses which Cheshire [1987] 1 All ER 225.
had appeared in the Evidence of identity from a video tape
identification evidence. recording taken while the crime was in
progress is admissible.

Identification of voice.

Teng Kum Seng v PP [1960] MLJ 225.


Although id of voice on the telephone
is admissible its weight is a matter of
opinion.

Visual id
There is a distinction between
recognition and identification.
Recognition is more reliable than mere
identification.
Dato Mokhtar Hashim v PP [1983] 2
MLJ 232.
19

ID Parade.
ID parade is admissible under s9
Jaafar Ali v PP [198] 4 MLJ 406.

Cases in which it is necessary to hold


ID parades.
PP v Sarjeet Singh [1994] 2 MLJ 290
The necessity of holding an id parade
can only arise where the accused
persons are not previously known to
the witnesses. Where the accused is
known to the witnesses, the question of
id parade does not arise.

Procedure of ID parade.
Ong Lai Kim v PP [1991] 3 MLJ 111.
There is no written law regarding
procedure. The practice of holding a
proper id parade is summarized in
Mallal’s Criminal Procedure.

Ong Lai Kim v PP [1991] 3 MLJ 111.


It is proper to hold an id parade by
using a one-way mirror but must be
used with the safeguards enumerated in
Archbold’s Criminal Pleading and
Practice.

PP v Chan Choon Keong & Ors


[1989] 2 MLJ 427.
Where there are two or more suspects,
separate identification parades must be
held.

Jaafar b Ali v PP [1998] 4 MLJ 406.


Where the witness had the opportunity
to see the accused prior to the id
parade, the evidence obtained from
such a procedure has no value.

Other cases:
Girdari Lall & Ors. v. PP [1946]
MLJ (FMSR) 87 (High Court, Malaya)
A combined profile photograph is
inadmissible in evidence because it
shows more than identity.
Loke Soo Har v. PP [1954] MLJ 149
(High Court, Malaya)
It is improper to use photograph of
20

known pickpockets for purposes of


identification as the photographs
show more than identity.
PP. v. Kok Heng & Ors. [1948] MLJ
171 (High Court, Malaya)
(a). The identification of a
suspect by photograph before arrest is
acceptable, but once he is arrested the
identification should be by personal
inspection.
(b). The identification and the
method by which it is held must be
faultless.
PP v. Toh Kee Huat [1965] 1 MLJ 76
(High Court, Malaya)
The evidence of finger-prints is
admissible to prove identity.
Teng Kum Seng v. PP [1960] MLJ
225 (High Court, Malaya)
The evidence of a voice on the
telephone is admissible for the
purpose of proving identity.

See also:
PP. v. Amar Singh [1948-49] MLJ
Supp. 55
Leong Ah Seng v. R [1956] MLJ 225
Ong Lai Kim v. PP and Ors. [1991] 3
MLJ 111
PP v. Chiong Cheng Wah [1988] 3
MLJ 56
11. PP v. Chan Choon Keong & Ors.
[1989] 2 MLJ 427
12. R. v. Turnbull & Ors. [1977] QB
224
13. Yau Heng Fang v. PP [1985] 2
MLJ 315
14. PP v. Hussain bin Sidin [1991] 3
CLJ 2570

Recommended Readings:
1. Mohd Akram. 1989. Identification
Evidence and Turnbull Guidelines :
Should Our CourtsFollow?.
Current Law Journal. 945.

2. Williams. 1963. Identity Parades.


21

Criminal Law Review. 479.Week 4

WEEK Section 10: Evidence of Conspiracy Liew Kaling v. PP [1960] MLJ 306
7 – Things said or done by (High Court, Malaya)
conspirator in reference to common Statements made after the
design. completion of a crime are not
admissible for the purpose of
Things said or done by conspirators proving conspiracy.
are relevant against each other, under
two conditions: Khalid Panjang & Ors. v. PP [1964]
(a). There is reasonable ground to MLJ 108 (Federal Court)
believe that the conspiracy A statement made after the
exists. There was an carrying out of a conspiracy is
agreement between two or inadmissible to prove the
more persons to commit an conspiracy; ‘common intention’
offence or an actionable signifies a common intention
wrong. existing at the time when the
(b). It must be in reference to the statement was made.
common intention existing at See also:
the time, when the thing was,
said or written by one of Nik Hassan bin Nik Hussain v. PP
them. [1943] 14 MLJ 74
PP. v. Ng Lai Huat [1990] 2 MLJ 427
5. Mirza Akhbar v. K.E. [1940] AIR
(P.C.) 176
6. Chandrasekaran v. PP [1971] 1
MLJ 153
7. Sardul Singh v. State of Bombay
[1957} AIR (S.C.) 747

S 11: When facts not otherwise 1. Ismail v Hasnul/ Abdul Ghafar v


relevant becomes relevant Hasnul [1968] 1 MLJ (FC)
(a) If they are inconsistent with Section 11 does not admit collateral
any fact in issue or relevant facts, which are neither conclusive nor
fact. connected with the fact in issue.
(b) If by themselves or in
connection with other facts This case is important because it limits the
they make the existence or areas of relevancy. Have to ensure the
non- existence of any fact in collateral facts are relevant, then can admit
issue or relevant fact highly it.
probable or improbable.
(a) There is always the
Can only admit facts under s 11 fear that certain aspects
within the confines of the section of relevant evidence at
relating to relevancy. common law may not be
Example: Privilege information provided for in the Acts.
between husband and wife/ However, the provisions
solicitor and client. Cannot of section 11 may be
disclose even if relevant. wide enough to cover
22

any situations not


provided for or dealt
with by the other
sections in the Evidence
Act, 1950. From the
wordings of section 11,
it may seem that
anything at all may be
adduced under the
section.

Raja Azlan Shah J (as he was then) held


that section 11 could not be so widely read
as to include collateral matters that have no
bearing at all on the fact in issue or relevant
facts. There must be some proximate
connection between the collateral maters
and the issues before these matters can be
adduced under section 11.

Section 11 is also limited in its operation


by section 54 Evidence Act 1950.
PP v. Dato’ Seri Anwar
Ibrahim(No.3) [1999] 2 MLJ 1,
174-175

R v Parbhudas Ambaram (1874) 11 Bom


HCR 90

Alibi
Section 11, illustration (a).
Section 402 CPC to give notice within 10 days.
Absence of motive under s 8. Absence of
opportunity under s 7.

S 103: Burden of proof as to particular


fact + illustrations.
Dato Mokhtar Hashim [1985] 2 MLJ 335
If the accused relies on the defence of alibi,
he should create a doubt. He has the legal
burden to prove his defence.

WEEK Similar Fact Evidence Relevant provisions – sections 14, 15 and


8 Definition 11(b).
Similar Fact Evidence is evidence that
renders the existence or non- Section 11 provides:
existence of a fact in issue Facts not otherwise relevant are
probable by reason of its relevant -
resemblance thereto and not by if they are inconsistent with
reason of it being connected any act in issue or
23

therewith. Generally such relevant fact;


evidence is inadmissible. When if by themselves or in
a person is charged with an connection with other
offence, the fact that he has a facts they make the
disposition to commit an act, existence or non-
means that he has committed existence of any fact in
the similar act. issue or relevant fact
highly probable or
improbable.
(It is highly probable that he did it or
improbable that he did not do it.)

Cases:
1. Abu Bakar bin Ismail v. R [1954] MLJ
67 (High Court, Singapore)
(a). Similar fact evidence is
admissible to prove knowledge.
(b). Propensity evidence is not
admissible under section 11(b).

Ismail v. Hasnul; Abdul Ghafar v.


Hasnul [1968] 1 MLJ 108 (Federal Court)
Section 11 does not admit
collateral facts which are neither
conclusive nor connected with the
fact in issue.
Poon Soh Har & Ors. v. PP [1977] 2
MLJ 126 (Criminal Court of Appeal,
Singapore)
The evidence of past criminal
activities is inadmissible if it is
merely intended to show that the
accused has been guilty of other
criminal acts.
See also:
4. R v. Parbhudas (1874) 11 Bom HC
90
PP v. Lim Chen Len [1981] 2 MLJ 41
Chee Chin Tiam v. PP [1982] 1 MLJ
88
Rangapula & Ors. v. PP [1982] 1 MLJ
91
Hussain bin Sillit v. PP [1988] 2 MLJ
232

14. Facts showing existence of Section 14 makes the state of mind


state of mind or of body or relevant. (see Subramaniam v PP)
bodily feeling. Also state of body or bodily feeling
Facts showing the existence of relevant.
24

any state of mind, such as


intention, knowledge, good Cases:
faith, negligence, rashness, ill- 1. Maidin Pitchay & Ors. v. PP [1968] 1
will or good-will towards any MLJ 82 (High Court, Malaya)
particular person, or showing (a). Section 15 of the Evidence
the existence of any state of Act was designed to enable
body or bodily feeling, are the prosecution to offer
relevant when the existence of evidence in advance to
any such state of mind or body rebut a defence which
or bodily feeling is in issue or would otherwise be open
relevant. to the accused.
(b). The mere fact that the
Section 15 to rebut similar evidence adduced tends to
fact. Facts bearing on show the commission of
question whether act was other offences, does not
accidental or intentional. render it inadmissible if it
When there is a question whether be relevant to an issue
an act was accidental or intentional before the jury.
or done with a particular 2. Datuk Haji Harun bin Haji Idris v. PP
knowledge or intention, the fact [1977] 2 MLJ 155 (Federal Court)
that the act formed part of a series Evidence of ‘system’ may be
of similar occurrences, in each of adduced to rebut a defence which
which the person doing the act was is open to the accused.
concerned, is relevant.

Section 15 is application of general


rule as laid down under section 14.

Section 54 provides that bad character Rule as laid down in Lord Herschell’s
is not admissible unless it is relevant. proposition No. 1 in Makin v. AG for NSW
When the accused is charged of an [1894] AC 57 at 67:
offence, the prosecution must try him “ It is undoubtedly not
with evidence. If there is sufficient competent for the
evidence he will be convicted. The prosecution to adduce
accused will not be tried by his bad evidence tending to show
history, bad disposition or propensity that the accused has been
to commit the bad act to prove a guilty of criminal acts
charge against him because evidence other than those covered
of bad character is prejudicial and by the indictment, for the
have no connection with the fact in purpose of leading to the
issue. The bad character is irrelevant. conclusion that the
Res alios acta. (Limb 1 of Makin) accused is a person likely
from his criminal conduct
or character to have
committed the offence for
which he is being tried.”

Evidence of similar facts is not admissible,


if it shows nothing more that bad
disposition or propensity. The rule is
25

confined to misconduct on other occasions.


Cases:
1. Yong Sang v. PP [1955] MLJ 131
(High Court, Malaya)
Evidence showing that the accused
is the sort of person who is likely
to have committed the offence for
which he is charged is
inadmissible.
2. Chew Ming v. PP [1960] MLJ 11
(High Court, Malaya)
Propensity evidence is
inadmissible for the purpose of proving
identity.
3. Kan Sik Fong v. PP [1961] MLJ 163
(High Court, Malaya)
Similar or non-similar fact
evidence is not admissible if its
prejudicial effect outweighs its
probative force.
4. Nahar Singh v. Phang Hon Chun
[1986] 2 MLJ 141 (High Court, Malaya)
Evidence of similar frauds on the
part of the defendant is admissible
to rebut a defence raised.

The fact that the accused has a


Exception as laid down in Lord Herschell’s
disposition to commit the act is
proposition No. 2:
irrelevant because it is prejudicial (see
section 54). To show that he has a “On the other hand, the mere fact that the
disposition to do so or commit a evidence adduced tends to show the
similar act need not necessarily be commission of other crimes does not
inadmissible if we can make it render it inadmissible if it be
relevant, to rebut a defence, to show (a). relevant to an issue before the
act was accidental or to rebut mens jury, and it may be so relevant, if
rea. For character evidence to be
admissible it must be relevant. How (b). it bears upon the question whether
can we show character evidence is the acts alleged to constitute the
relevant. Can if we can show crime charged in the indictment
character evidence to show mens rea, were designed or accidental, or
state of mind. Character evidence is (c). to rebut a defence which would
relevant if the prosecution to rebut a otherwise be opened to the accused.”
defence open to the accused, defence
of accident, common design or
purpose or the accused defence of not
guilty. (Limb 2 of Makin)
26

The Makins approach was applied 1. X v. PP [1951] MLJ 10 (Court of


in the Malaysian cases below: Appeal, federation of Malaya)
Evidence which is indicative of the
state of mind is admissible under
sections 11(b) and 14.
2. R. v. Raju & Ors. [1953] MLJ 21 (High
Court, Malaya)
(a). Similar fact evidence
should only be admitted if
it has a real material
bearing to the issues as it
would be unjust to admit
highly prejudicial evidence
merely because it is
technically admissible.
(b). Sections 11, 14 and 15 of
the Evidence Act permit
similar fact evidence to be
admitted for the purposes,
inter alia, of negativing
accident; proving identity;
proving mens rea; and
rebutting a defence.
3. PP. v. Ang An An; PP. v. Eng Hock
[1970] 1 MLJ 217 (High Court,
Malaya)
Past acts are admissible if (a) it is
shown that such past acts are of
the same specific kind and (b) they
form part of a series of
occurrences.
4. Kan Sik Fong v PP [1961]
MLJ 163
5. Rauf Hj Ahmad v PP [1950] MLJ
190.

If the evidence is normally lawfully


Restatement of the law in obtained, it must satisfy the test of
Boardman [1975] AC 421 relevancy to be admissible. If a person is
charged with an offence, the prosecution
must have evidence and not by his bad
character. Even if it is logically and
relevant but if the prejudicial effect
outweighed its probative value then a trail
judge has discretion to exclude such
evidence. This is known as exclusionary
discretion. This dictum was reinforced by
Lord Du Parq in the PC case of Noor
Muhamad [1949] AC, where if the
27

evidence was procured legally, if the


prejudicial effect outweighed its probative
value, the judge can exercise his
exclusionary discretion to omit that
evidence.

The decision of Noor Mohamad influences


the thinking of the common law judges and
this in turn influences the outcome of
Boardman, whether the evidence is of
probative value, to shut out prejudicial
effect that would create injustice to admit
that evidence of previous act. The principle
of Boardman was that the similar fact
evidence of other offences must be
strikingly similar with that evidence given
in. Because of high probative value you can
get it admitted. If this similar fact evidence
was not allowed, it would be an insult to
common sense.

In the House of Lords Lord Hailsham


admitted similar fact evidence provided the
way the offence was committed was
strikingly similar, bound to have high
probative value despites its inevitable
prejudice. If there is no strong evidence
aliunde, cannot admit similar fact evidence.

Malaysian cases adopting Boardman’s


principle
1. PP v Veeran Kutty [1990] 3 MLJ
498.
2. Junaidi bin Abdullah v PP [1993]
3 MLJ 217.

Cases that followed DPP v P


The approach in DPP v P PP v Teo Ai Nee & Anor [1995] 2 SLR 69
In DPP v P [1991] 3 WLR 161, the Lee Kwang Peng [1997] 3 SLR 278, 290
accused committed incest with his 2 Tan Meng Jee v PP [1996] 2 SLR 422,
daughters. The mother made a police 434-435
report and the accused was charged
with statutory rape. In this case the In PP v Teo Ai Ni & Anor, Yong Pung
similarity was not striking but the How CJ held:
system was there. The trial court “With the abandoning of
admitted the similar fact evidence. the requirement that such
ON appeal it was held that according evidence should have
to Boardman for similar fact evidence ‘striking similarity’ in the
to be admissible, it must be strikingly modern test set out in DPP
similar. In this case the evidence were v P, the test for admissible
‘similar fact’ evidence is
28

not strikingly similar. that its probative force in


support of the allegation
The House of Lords reviewed over 70 that an accused person
cases and concluded that it is not committed a crime must be
necessary for similar fact evidence to sufficiently great to make
be strikingly similar, provided that the it just to admit the
probative value of such evidence evidence, and sufficiently
outweighs its prejudicial value. No great to outweigh any
reason to exclude similar fact prejudice to the accused in
evidence, goes to weight not tending to show that he is
admissibility. guilty of another crime.”
Note that Singapore Evidence Act has
section 2(2) that receives principles of
English Common Law, which is absent in
the Malaysian Ordinance. If we accept that
the Malaysian Evidence Act is a facilitative
Act, the courts can readily receives new
principles at Common Law. At the moment
our courts are stuck at Veeran Kutty and
Junaidi. Maybe we can receive the
Singapore decisions that endorse DPP v P
in the future. Our lawyers have to make our
judiciary aware of these new developments.
1. Mood Music
Similar fact evidence also applies to Publishing Co Ltd v De Wolfe
civil cases Ltd [1976] 1 All ER 763.
2. Hales v Kerr [1908] 2
KB 601
3. Nahar Singh v Pang
Hon Chin [1986] 2 MLJ 141

Recommended Readings:
1. Jeffrey Pinsler. 1989. Similar Fact
Evidence: The Principles of
Admissibility. Malayan Law
Journal. 2. lxxxi.

2. Chu Fai. 1987. Approaches to the


Admissibility of Similar Fact
Evidence. Singapore Law Review.
206.

3. Peiris. 1984. Evidence of System


in Commonwealth Law. Malaya
Law Review. 26. 34.

4. Ahmad Ibrahim. 1977. Evidence of


System. Journal of Malaysian
Comparative Law. Part 1. 175
29

5. Ahmad Ibrahim. 1978. Evidence of


System. Journal of Malaysian
Comparative Law. Part II. 199

6. Stone, 1932. The Rule of Similar


Fact Evidence. Havard Law Review. 46.
954

7. Hoffman, 1975. Similar Facts after


Boardman. Law Quarterly Review.
91. 193

8. A.B. Munir. 1994. Similar fact


Evidence: Probative Value vs
Prejudicial Effect. Malayan Law
Journal. 3. xxxi.

WEEK
9, 10 SECTIONS 17 TO 31: ADMISSION & S 17(1) reads with 18 & 21. S 17(1) gives
CONFESSION partial definition of admission. It is
completed by s 18. Under s 17(1) an
Provisions for Admission: Sections admission is a statement, oral or
17(1), 18-21, 31. documentary stating or suggest a fact in
Provisions for Confession: Sections issue or relevant fact made by people under
17(2), 24,25,26,27,28,29 &30. the circumstances found in s 18:
1. by parties to a proceeding
Admission is informal admission 2. by authorized agents
under sections 17 to 31. It is extra- 3. by representation
judicial admission or admission made 4. persons who have any proprietary
out of court. Formal admission in s 58 or pecuniary interest
– only applicable in civil cases. 5. persons from whom the parties to
Although the Malaysian Evidence Act the suit have derived their interest
owes its inspiration from India, it is in the subject matter of the suit.
slightly different. India does not have
s 17(2). Ours is similar in Sri Lanka, 1. Datuk Seri Anwar Ibrahim
Singapore & Brunei. (No 3) Paul J.
Proceedings include criminal
Section 17: proceeding.
An admission is a statement, oral or
documentary, which suggests any 2. Mary Clyde v Wong Ah
inference as to any fact in issue or Mei (1970) 2 MLJ 163
relevant fact, and which is made by
any of the persons and under the
circumstances hereinafter
mentioned.

Cases:
MEANING AND PRINCIPLES OF CONFESSION 1. Seyadu v King [1951] 53 NLR
According to Stephen, confession is 251.
an admission made at any time, by a Direct admission of stabbing.
30

person charged with a crime, stating Read all the statements together. Does this
or suggesting an inference that he give rise to inference that he actually did
committed the crime. the offence. Use the objective test. Section
17(2) is much broader than the Indian law.
17(2): A confession is an admission
made at any time by a person 2. Pakala Narayana Swami v R
accused of an offence, stating or [1939] MLJ 48.
suggesting the inference that he Sir John: An admission of an incriminating
committed that offence. It has no fact is not a confession. To amount to
application in Sarawak. admission, it must be plenary in nature.

This definition of confession has 2


parts.
1. Where he makes an
admission stating the fact in
issue. A direct admission is
relevant.
2. Suggesting the inference.

In the police station he told everything.


3. Anandagoda v R [1962] 1 These are pieces of cumulative evidence.
WLR 817. The objective No-where in the statement suggests he had
test. run over her with the car. Only read at the
totality of the evidence. At the trial court
these statements were admitted and he was
convicted. His appeal was rejected.

At the Privy Council the major plead of


defence was that the court had erred in law
(s 25 & 26). Crown counsel argued that
what the learned brother had said is true. If
the statement is a confession, it should not
be admitted.

BUT

Was that a confession? Look at the


definition of confession. S 17(2) stating or
suggesting – was there a direct admission?
Can you draw an inference? It is not a
confession but still admissible as an
admission under s 17(1), 18 & 21. His
appeal was dismissed.

Lord Guest:
“Whether a statement
amounts to a confession or
not must be decided
objectively, taking the
statement as a whole and
without reference to
31

extrinsic facts.”

Lord Guest said that the test whether a


statement is a confession is an objective
one, whether to the mind of reasonable
person reading the statement at the time
and in the circumstance in which it was
made it can be said to amount to a
statement that the accused committed the
offence or which suggested the inference
that he committed the offence.
Cases:
1. Lemanit v. PP [1965] 2 MLJ 26
(Federal Court, Singapore)
2. Lam Choon v. Lim Yon Hong
(1931) SSLR 96
2. Simirah v. Chua Hock Lee [1963]
MLJ 239
3. Ling Ngau Leng v. PP [1964] MLJ
20
4. Re Sunshine Securities [1978] 1
MLJ 57
Confession to be an admission 1. Dato Mokhtar Hashim & Anor
1. Must be a confession s 17(2). v PP [1983] 2 MLJ 232).
2. Made voluntarily s 24. 2. Hasibullah bin Mohd Ghazali v
PP [1993] 3 MLJ 321
The objective test in Anandagoda – 3. Aziz Mohamed Din v PP [1996]
the inferential admission of guilt by 5 MLJ 473
the accused charged – took at the 4. R v Thompson [1893] 2 QB 12,
statement in totality. This was applied 18 dictum of Cave J
in Lemanit v PP [1965] 2 MLJ 26. A 5. Ibrahim v R [1914] AC 599,
confession is a statement, taken as a
609 per Lord Sumner.
whole without reference to extrinsic
facts, which states or suggests the
inference that the maker committed
the offence. If the inferential
statement was a confession made
involuntary, it is inadmissible. Once a
statement a confession by applying
the Anandagoda objective test, the 2nd
stage must be covered –to be
admissible it must be relevant and
voluntary. (s 24).

A confession in a cautioned statement


tendered by the prosecution, the
defence must straight away object, it
is not voluntary. If the counsel did not
object, the cautioned statement is
presumed to be voluntary. How much
evidence must be tendered to say that
32

the evidence is involuntary It is not


necessary to have a lot of evidence to
activate voir dire. Mere bald
statement will not suffice. The
defence must submit a well reason
premise, probable that the statement
was made involuntarily. Need not be
evidence under section 3. Here the
prosecution has to prove statement
was voluntary beyond reasonable
doubt.

Section 24 If a confession is a result 1. Dato Mokhtar Hashim v PP


of inducement, threat, promise [1983] 2 MLJ 232
held out by a person in No statement by the accused is
authority (someone who can admissible in evidence against
influence the outcome of the him unless it is shown by the
trial), which give rise to a prosecution to have been a
believe in the mind of the voluntary statement.
accused and which in the 2. DPP v Ping Lin [1975] 3 All
opinion of the court he will get ER 175.
an advantage or suffer an evil 3. Most recently followed by
of a temporal nature, that Dato Seri Anwar Ibrahim &
confession is not voluntary. Anor v PP [2001] 3 CLJ 313,
opinion of Ariffin Jaka.
The voluntariness of statement relies
on section 24. That inducement caused the confession.
The court will determine that inducement.
Also accepts the element of oppression.
4. Dato Mokhtar Hashim v PP
[1983] 2 MLJ 232
5. DPP v Ping Lin [1975] 3 All
ER 175
6. Aziz Mohamed Din [1996] 5
MLJ 473
7. Hasibullah Mohd Ghazali v
PP [1993] 3 MLJ 321.
8. PP v Law Say Seck & Ors
[1971] 1 MLJ 199,
per Sharma J: A slight
inducement will suffice to render
the confession involuntary.

Other cases:.
R v Priestly (1965) 51 Cr App R 1
R v Prager [1972] 1 WLR 260.
R v Wilson [1981] 1 NZLR 316
33

Recommended readings.
In Datuk Mokhtar Hashim, 1. Windslow. 1977. The Admissibility of
Abdoolcader FJ said at p 272 that it Testimony at a Trial Within a Trial
appears from DPP v Pin Lin [976] : Not The Whole Truth. Malaya
AC 574 that the classic test of Law Review. 19. 312
admissibility of the accused’s
confession should be part objective 2. Winslow. 1988. Fair Trails : New
and part subjective. The objective Buttresses for Accused Person.
limb is satisfied if there is a threat, Malaya Law Review. 378
inducement or promise – in the
opinion of the court that the nature of
inducement caused the confession.
The subjective limb when the threat,
inducement or promise operates on
the mind of the accused through the
hope of escape or fear of punishment
connected with charge – If the
inducement leads to confession.

CONFESSIONS MADE TO THE 1. Datuk Mokhtar Hashim &


POLICE: SECTIONS 25 AND 26 Anor [1983] 2 MLJ 232
S 24 makes a confession made by an 2. Ibrahim v R [1914] AC 599,
accused to a person in authority 609 per Lord Sumner
irrelevant if it was made by 3. DPP v Ping Lin [1975] 3 All
inducement, threat, promise or ER 175)
oppression. 4. Chua Beow Huat v PP [1970]
2 MLJ 31
. 5. Pakala Naraya Swamy v E AIR
1934 PC 47

6. Chua Beow Huat v PP [1970]


2 MLJ 29,
The word police officer is not defined in
the EA or CPC. The Police Act 1967
defines him as a member of the Royal
Malaysian Force
7. Barret v PP [1982] 2 MLJ 284,
285.
A probationary Inspector is a person below
the rank of an Inspector.

Statement of accused while in 1. Eng Sin v PP [1974] 2 MLJ


custody of police: section 26. 168
S 26 is to prevent the police from 2. Sambu v R [1947] MLJ 16
abusing their powers. It provides 3. Nazir Ahmad v KE AIR 1936
further safeguard to the accused. No PC 253
confession made by a person in police 4. Chong Teng v PP (1960) 26
custody shall be admissible unless MLJ 153
made to a Session Court Judge or
magistrate. For s 26 to apply it is not When an accused makes a confession under
necessary to show formal arrest. If he
34

cannot depart at his own free will s 26, the Session Court Judge or magistrate
suffice to constitute custody. is required to comply with the procedure in
s 115 CPC when recording down such a
confession.) To ensure the accused gives
his statement freely without any
inducement or pressure. This is to
guarantee their voluntary nature.

Winslow. 1982. Confessions, Confirmation


Sections 25 and 26 compared. and Resurrection: The Rescue of
S 25 applies to confessions made to Inadmissible Information to the Police.
the police. Malaya Law Review. 28. 88.
S 26 governs confessions while the
accused was in police custody, made Cases:
to any persons other than the police.
1. Eng Sin v. PP [1974] 2 MLJ 168
They are not identical. There are 2 (Federal Court)
clear and definite rules. The term ‘custody’ in section 26
S 25 prohibits a confession made to a does not necessarily mean formal
police officer whether the confessor is arrest; it is sufficient that the
in police custody of police or not. accused cannot go as he wishes.
S 26 goes further. Confession made to
any person, eg fellow prisoner, friend
2. PP. v. Ng Goh Weng [1979] 1 MLJ
or doctor while he is in police custody
127 (federal court)
is inadmissible unless made in the
Section 26 does not invalidate
presence of Session Court judge or
statements admissible under
magistrate.
section 113 of the Criminal
Procedure Code.
Under s 25 the relevant question is
“To whom was the question made?”
If the answer is that it was made to a 3. Koh Jok Sim v. PP [1966] 2 MLJ
police officer below the rank of an 50 (High Court, Malaya)
Inspector it is excluded. Under s 26 Sections 25 and 26 of the Evidence
the question is “Under what Act and section 113 of the
circumstances was the confession Criminal Procedure Code do not
made?” If the answer is that the apply to statements made to an
confession was made while the excise officer or a customs officer.
accused was in police custody, such a
confession shall be excluded unless it
was made in the immediate presence 4. Chong Teng v. PP [1960] MLJ
of the Session Court Judge or 153 (High Court, Malaya)
magistrate. These 2 sections have 2 A confession made through an
different roles to protect the accused. interpreter is admissible under section 26.
Recommended Reading:
See also:
5. Abdullah b. Awang Bongkok
(1956) 22 MLJ 90
6. Lim Sing Hiaw v. PP [1965] 1
MLJ 85
7. PP v. Tan Keo Hock [1982] 2 MLJ
35

190
8. Muka bin Musa v. PP [1964] 30
MLJ 275
9. Wai Chan Leong v. PP [1989] 3
MLJ 356
10. Abdul Ghani v. PP [1981] 1 MLJ
25
11. PP v. Norzilan bin Yaakob & Anor
[1989] 1 MLJ 442

Recommended Reading:
Chin. 1988. Statements by Accused
Persons in Custody. Malayan Law Journal.
3. clii.

Section 27: Discovery statement. 1. Pulukuri Kotayya & Ors v E AIR


How much of information received 1947 PC 67
from accused may be proved.
When any fact is deposed to as 2. Chandrasekaran & Ors v PP
discovered in consequence of [1971] 1 MLJ 153 (HC)
information received from a person Raja Azlan Shah:
accused of any offence in the “Section 27 appears to be a
custody of a police officer, so much concession to the
of that information, whether the prosecution. If the accused
information amounts to a was in the custody of the
confession or not, as relates police and gives
distinctly to the fact thereby information to the police
discovered may be proved. that leads to the discovery
of he fact, so much of that
When the accused in the custody of information that distinctly
the police, gives information to the relates to the discovery of
police, and that information leads to the fact, can give evidence
the discovery of fact (weapon), can of that information. It is an
give evidence of fact, so much of that exception to s 24, 25 &
information. If the information leads 26.”
to the discovery off the fact, the thing
was hidden (physical fact), the Discovery – consequence
accused knew it was there Information – cause.
(psychological fact), to his knowledge
he knew it was there, it is relevant 3. PP v Krishna Rao a/l Gurumurthi
fact (s 5) – the fact the knife was & Ors [2000] 1 MLJ 274
connected to the stabbing.

Meaning of the word information.


1. Yee Ya Mang v PP [1972] 1 MLJ
120 )HC)

2 ideas:
36

1. Somebody derives knowledge.


Derivation of knowledge from the
accused to a person in authority.
2. Imparting of knowledge.

2. Wai Chan Leong v PP [1989] 3


MLJ 356, 358.
“It must also be observed
that the legislature had
sued the expression
‘information’ in s 27 and
therefore did not intend it
to have the same meaning
as a statement. Although
that expression is not
defined in the Act, unlike a
statement, it includes
knowledge derived by the
person informed by the
accused as well as the
means taken to impart that
knowledge.” Per Gunn
Chit Tuan SCJ

PP v Liew Sam Seong [1982] 1 MLJ 223


Meaning of discovery S 27 cannot be used to turn an ordinary
Connotes the idea of concealment. recovery into a discovery of fact.
With the assistance of the accused it
is discovered. If the police already
know of the facts it is not discovery.
It is recovery.

A discovery statement being taken PP v Basri bin Salihin [1993] 1 AMR 111.
must be recorded Sinnadurai J was of the opinion the
contemporaneously (matter of fact statement be tape recorded and videotaped
very difficult) (if possible). Follow Police A Criminal
Evidence Act 1984 in England
. Raja Azlan Shah J in PP v Er Ah Kiat
Must the information given in s 27 [1966] 1 MLJ 9, 10 held that even if the
given voluntarily? information was given involuntarily, it is
S 27 appears to be an exception to s still admissible under s 27. Cited Thurthell
24, 25 & 26. See statement of RAS in and Hunt that was referred to with
Chandrasekaran, approved in Goi approval by Viscount Radcliffe in Queen v
Ching Ang v PP [1999] 1 MLJ 507. Murugan Ramasamy [1964] 3 WLR 632,
636 (PC):
“It is worthwhile to make
the observation at this
point that the reason given
for allowing it to be proved
37

that accused person gave


information that led to the
discovery of a relevant fact
is not related in any special
way to the making of a
confession. It qualifies for
admission any such
statement or information
that might otherwise be
suspected on the ground of
a general objection to the
reliability of evidence of
that type.”

Raja Azlan Shah in Chandrasekearan


(HC)
S 27 is a concession to the prosecution. It is
the express intention of the legislature that
even though such a statement is otherwise
hit by section 24-26, any portion thereof is
nevertheless admissible in evidence if it
leads to the discovery of a relevant fact.
The reason is that, since the discovery itself
provides the acid test, the truth of the
statement that led to the discovery is
thereby guaranteed. Admissibility of
evidence under s 27 is in no way related to
the making of the confession; rather, such
evidence is admitted on clear grounds of
relevancy or directly connecting the
accused with the object recovered.

Mohamed Desa Hashim v PP [1995] 3


MLJ 350 (FC)
Sri Ram wore the legislature robe – legal
fiction. S 27 is subject to s 24. (none of the
cases say). It must be voluntary. It should
be the policy of the law when such
discovery statement must be voluntary.
“ … in a number of Indian
cases it has been held that
the rule permitting
admissibility … in s 27 is
an exception … (to section
25 &26), but it does not
qualify the all pervading
qualification enacted in s
24. (Vijay Kumar [1978]
Crim LJ 1619.) … in order
for a confession or other
statement or information to
38

qualify for admission


under section 27, it must
have been made
voluntarily.

In Goi Ching Ang v PP (supra) a different


panel of the FC reinstated s 27 as an
independent provision. Chong Siew Fai CJ
at 524,
“… we are in complete
agreement, as a matter of
policy, with the view
expressed in the judgement
of this court in Md Desa,
of the desirability as to the
voluntariness of s 27
information. However, due
to the lack of language
nexus between s 27 and s
24 …. Any departure from
the entrenched judicial
interpretation laid down …
would be a policy issue …
be left to the
legislature….”

The Federal Court say that by looking at


authority RAS in Chandrasekaran on s 27
being a concession to the prosecution and
an exception to s 24-26, it has been decided
by local cases that the statement is not
subject to s 24. No nexus between 24 and
27. S 27 not subject to s 24. The FC did not
want to disagree with Sri Ram who
contemplated that the statement be
volunteered. We have s 3 & s 5 of the Civil
Law Act:
“ …. There is a vested
discretion in the trial judge
to exclude evidence which
is prejudicial to an accused
even though the said
evidence may be
“technically admissible”.

Juraimi Husin v PP [1998] 1 MLJ 537


(CA)

In PP v Krishna Rao a/l Gurumurthi &


Ors [2000] 1 MLJ 274 Kang J said while
the FC was minded to leave it to the
39

discretion of the trial judge whether to


exclude any evidence that may have been
obtained improperly from the accused, no
yardstick was prescribed to enable the
judge to decide when such evidence should
be excluded. It ids therefore clear that the
test of admissibility of evidence under s 27
when voluntariness is in issue is whether
the prejudicial effect of its admission
would outweigh its probative value.

1. Pulukuri Kottaya v. King Emperor


(1947) AIR PC 67
The fact discovered embraces the
place from which the object is
produced and the knowledge of the
accused as to this. Once the facts
discovered are identified, then
information relating specifically to
such facts may be adduced.
2. Tan Hung Song v. R [1951] MLJ
181 (Court of Criminal Appeal,
Singapore)
Section 27 is not intended to admit
a confession generally, only so
much of the information as
distinctly relates to the fact
discovered.
3. PP v. Sandra Margaret Birch
[1977] 1 MLJ 129 (High Court,
Malaya)
Section 27 stands by itself and is
not abrogated by section 113 of the
Criminal Procedure Code.
4. PP. v. Liew Sam Seong [1982] 1
MLJ 223 (High Court, Malaya)
Section 27 cannot be used to turn
an ordinary recovery into a discovery of
fact.
5. Krishnan v. PP [1987] 1 MLJ 292
(Supreme Court)
A statement is not admissible
under section 27 if it shows more
than information which distinctly
relates to the facts discovered.
6. Wai Chan Leong v. PP [1989] 3
MLJ 356 (Supreme Court)
40

For section 27 to apply, the


information must be such as has
caused discovery of fact.
See also:
7. Queen v. Murugan Ramasamy [1965]
A. C. 1
8. Sum Kum Seng v. PP [1981] 1
MLJ 244
9. Packiam & Anor v. PP [1972] 1
MLJ 247
10. Tan Hung Sung v. R. [1951] 17
MLJ 181
11. Hashim & Anor v. PP [1956] MLJ
233
12. PP v. Jamali b. Adnan [1985] 2
MLJ 392
13. Chong Soon Koy v. PP [1977] 2
MLJ 78
14. PP. v. Norzilan Yaakob & Anor
[1989] 1 MLJ 442
15. Satish Chandra Seal & Ors. v.
Emperor [1945] AIR Cal. 137
16. PP v. Tan Keo Hock [1982] 2 MLJ
190
17. Lan Kee Ho v. PP [1984] 1 MLJ
110
18. Lum Kum Seng v. PP [1981] 1
MLJ 244 Choo Yoke Choy v. PP
[1992] 2 MLJ 632
19. PP. v. Sharif Saad [1992] 2 MLJ
770
20. PP. v. Basri Salihin [1993] 1 CLJ
420
21. Pang Chee Meng v. PP [1992] 1
MLJ 137

Recommended Readings:
1. Mohd Akram. 1990. The Scope of
Section 27 of the Evidence Act.
Current Law Journal. 1. Part 1. xx.
2. Mohd Akram. 1990. The Scope of
Section 27 of the Evidence Act.
Current Law Journal. 1. Part II.
xxxiii.

WEEK
11 ADMISSION & CONFESSION: Case law:
PART 2 Per Buhagiar J in Noor
Mohamed v Palanivelu &
41

When a person is charged with Anor [1956] MLJ 114, 116:


reckless driving and he makes an Hollington v F Hewthorn &
admission and he was found guilty, he Co Ltd [1943] KB 587,
is convicted by his admission. If 600.
occurs a major injury and the plaintiff She Eng Gek v DA De Silva
brings a civil suit for an action on [1957] MLJ 55
negligence, the plaintiff wants to
admit the plea of guilty as evidence. The conviction of one of the defendants for
The plea is in a different court. The careless driving was held to be
conviction is not relevant. If the plea inadmissible as evidence of his negligence
is based on the admission, it is in proceedings for damages on that ground
relevant on fact in issue or relevant against him and his employer. The main
fact under s 17(1), 18, 5 & 21. reason for the decision was that the
conviction merely proved that another
court, acting on evidence that was
unknown to the tribunal trying the civil
proceedings, was of opinion that the
defendant was guilty of careless driving.
(For more reference see Cross & Tapper at
pp. 95-96.)

Section 28: Confession made after Case:


the impression caused by
Abdullah bin Awang Bongkok v. PP
inducement, threat or promise has
[1956] MLJ 90 (High Court, Malaya)
been fully removed.
A confession is admissible if it is made
after the inducement is removed.

Chong Ten v. PP [1960] 26 MLJ 153


1. PP v. Tan Seaw Chuan [1985] 1 MLJ
Section 29: Confession otherwise 318
relevant does not become irrelevant 2. PP v. Neo Wan Kee [1985] 1 MLJ 368
if it is made: 3. Nazir Ahmad v. King Emperor [1936]
• Under promise of secrecy, AIR PC 253
• Under deception,
• When accused was drunk whether
voluntarily or involuntarily,
• In answer to question which he
need not have answered, and
Without warning that he was not
bound to make it and his evidence
might be used against him.
Rush & Tomkins Ltd v Greater London
WITHOUT PREJUDICE Council & Anor [1988] 3 All ER 737, 740.
COMMUNICATION “The without prejudice
A kind of privilege that is important rule is a rule governing the
to know. It has a special meaning for admissibility of evidence
lawyers. In the public interest if there and is founded on the
is a real dispute between the parties, public policy of
try to settle out of court. When there encouraging litigants to
42

is actual litigation contemplated settle their differences


between the parties, conduct to rather than litigate them to
negotiate a settlement. During a finish.”
negotiations parties made a lot of
damaging admission with a view to 2 conditions:
settle out of court. If that negotiation 1. Litigation contemplated/ dispute
fails and then go to court, if want to 2. Intention to settle.
admit damaging statements made
during negotiation, these statements Once negotiation successful, to decide the
are protected by section 23, without terms or the cost occurred, can give
prejudice statements. Without evidence of such terms.
prejudice to the rights of the parties S 23 will apply when there is negotiation
concurred. The court is not aware of between disputing parties with the aim of
these statements at the time. genuine settling the dispute.
For s 23 to apply there must be a dispute
Section 23: Admission in civil cases and a communication to settle that should
when relevant suggest terms for the settling the dispute.
In civil cases no admission is relevant The use of the word without prejudice is
if it is made either upon an express not conclusive. May use it as a threat with
condition that evidence of it is not to no serious attempt to settle. This will
be given, or under circumstances depend on the intention of negotiations.
from which the court can infer that
the parties agreed together that Per Chang Min Tat FJ in Malayan
evidence of it should not be given. Banking Bhd v Foo See Moi [1981] 2
Explanation – Nothing in this section MLJ 17, 18.
shall be taken to exempt any advocate Per Abdul Malik Ishak J in Oh Kuang
from giving evidence of any matter of Liang v Associated Wood Industries Sdn
which he may be compelled to give Bhd [1995] 4 MLJ 390, 394:
evidence under section 126. Per Abdul Malik Ishak J in Dusun Desaru
Sdn Bhd v Wang Ah Yu [1999] 5 MLJ
449, 454-458.

Lim Tjoen Kong v A-B Chew Investments


Pte Ltd [1991] 3 MLJ 4.
Rush & Tomkins Ltd v Greater London
Council & Anor [1988] 3 All ER 737, 740.

Waiver of the privilege


Per Coomaraswamy J in A-B Chew
Investments Pte Ltd v Lim Tjoen Kong
[1989] 3 MLJ 328, 331-332.

McTaggart v McTaggart [1949] P 94.


“The privilege may be waived by the
person entitled to claim it, either expressly
or by allowing evidence to be given of
matters in respect of which privilege might
have been claimed: 17 Halsbury’s Laws of
England (4th ed) para 235…”
43

Section 30. Confession against co- 1. Noliana bte Sulaiman v PP [2000] 1


accused CLJ 36
Confession by one person is taken 2. PP v Dato’ Seri Anwar Ibrahim &
into consideration against Anor [2001] 3 CLJ 313, 377-385.
another if: 3. Shankaria v State of Rajasthan AIR
both are tried jointly, [1978] Supreme Court 1248, 1252.
• they are tried for the same 4. Abdul Rashid & Anor v PP [1994] 1
offence, SLR 119
• confession is legally proved, and 5. Lee Yuan Kwang & Ors v PP [1995] 2
• confession of the guilt affects the SLR 349
maker and the others. 6. PP v Rozmaan bin Jusoh & Anor
[1999] 2 SLR 181
The current position: 7. Dato’ Mokhtar hashim & Anor v PP
As against an accused person, the [1983] 2 MLJ 232, 266.
confession of a co-accused could play 8. Lim Chow Yoon v PP [1972] 1 MLJ
a supportive role and can form a basis 205
of a conviction. It was held that the 9. Bhuboni Sahu v The King AIR [1949]
natural interpretation of section 30 sis PC 257
that it allows the conviction of an 10. Herchun Singh & Ors v PP [1969] 2
accused to be sustained solely on the MLJ 209
basis of a confession by his co- 11. Juraimi Husin v PP [1998] 2 CLJ 383
accused, provided the evidence 12. Yap Chai Chai & Anor v PP [1973] 1
emanating from the confession MLJ 219
satisfies the court beyond reasonable 13. Chin Seow Noi & Ors v PP [1994] 1
doubt of the accused’s guilt. In SLR 135
section 3 of the Evidence Act 1950 14. Ramachandran a/l Suppiah & Anor v
which uses the word includes makes PP [1993] 2 SLR 671
the definition of evidence an PP. v. Nordin Johan [1983] 2 MLJ
extensive one. In contrast to the 221 (Federal Court)
situation in India, in Malaysia 15. Kashmira Singh v. state of Madhva
confessions by co-accused persons Pradesh (1952) AIR SC. 159
may be included in the whole body of 4. PP. v. Yeoh Tech Chye and Lim Hong
what is understood to be evidence & Anor. [1981] 2 MLJ 176
within the perimeters set by our 5. Matassan Hj. Serudin & Ors. v. PP
Evidence Act. ( PP v Dato’ Seri [1987] 1 MLJ 524
Anwar Ibrahim & Anor [2001] 3 CLJ 6. Param Hans Yadas v. State of Bihar
313, 377-385.) [1987] 2 SCC 201
7. PP. v. Mustari Suri [1989] 2 MLJ 77
8. Sim Ah Cheoh & Ors. v. PP [1991] 2
MLJ 353
9. Lim Kheng Boon & Ors. v. PP. [1991]
2 MLJ 78

Recommended Reading:
Mohd Akram. 1989. The Evidential Value
of a Retracted Confession, and Confession
of a Co- Accused Under Section 30 of The
Evidence Act. Current Law Journal. 2.
335.
44

1. Yap Sow Keong v. PP [1947] MLJ 90


Retracted Confession. 2. Osman & Anor. v PP [1967] 1 MLJ
137
Retraction of confession does not 3. Santhiadas v. PP [1970] 2 MLJ 241
invalidate the original confession. It 4. Abdul Ghani v. State of UP [1973]
puts the court on inquiry as to the AIR SC 264
value and weight of the original 5. PP. v. Mustari Suri [1989] 2 MLJ 77
confession, its voluntary character,
and probability of its being true. Recommended Readings:
1. Mohd Akram. 1989. The Evidential
Value of a Retracted Confession,
and Confession of a Co- Accused
Under Section 30 of The Evidence
Act. Current Law Journal. 2. 335.

2. Heong. 1981. Admissibility and Effect


of Exculpatory Statements in
Criminal Cases. Malayan Law
Journal. 2. xxi.

3. H. Singh. 1974. Anamolies in the


Law on Confession. Malayan Law Journal.
2. xlv
Section 31: Admissions not Admissions are not conclusive, but can
conclusive proof but may estop. rebut. Parties relied on that admission,
Admissions are not conclusive proof change his position, may estop that person
of the matters admitted, but they may from denying the contrary. You are
operate as estoppels under the estopped from denying that fact if other
provisions hereinafter contained. party suffer a detriment.

Under section 31, admissions are not


conclusive proof of the matter admitted but
may operate as estoppels under sections
115 and 117 of the Evidence Act 1950.

WEEK It is important to determine whether an out-


12 The Rule Against Hearsay. of-court statement is hearsay or not as
• Meaning and Rationale for demonstrated in Subramaniam v. PP[1956]
Exclusion. 1 WLR 965
The Rule Against Hearsay excludes In this case the statements in issue were
out-of-court assertions where such threats allegedly made by terrorists to the
evidence is used to affirm the truth of accused who pleaded duress to the charge
facts contained in them and where the of unlawful possession of firearms. The
makers are not witnesses. The trial judge excluded the threats as being an
objection to hearsay is that the out-of-court assertion and thus, hearsay.
evidence cannot be tested in court, the The Privy Council declared that the threats
makers not being available to give were wrongly excluded for they were not
45

evidence. However, the rule is subject hearsay. They ruled:


to a number of exceptions. “Evidence of a statement made to a
witness by a person who is not himself
The Evidence Act 1950 does not called as a witness may or may not be
define hearsay although Stephen hearsay. It is hearsay and inadmissible
clearly intended to exclude such when the object of the evidence is to
evidence. Instead, the Act stipulates establish the truth of what is contained
the circumstances where out-of-court in the statement. It is not hearsay and
statements are admissible, that is, it admissible when it is proposed to
declares ‘relevant’ certain types of established by the evidence, not the truth
out-of-court statements such as of the statement, but the fact that it was
admissions, confessions, dying made.”
declarations and business records.
Since only ‘relevant’ facts are It is admissible provided that it is
admissible, it follows that an out-of- relevant.
court statement that does not fall into
any of those categories is ‘irrelevant’ Cases:
and inadmissible. (See also section 60 1. Re Soo Leot [1956] MLJ 54 (High
of the Evidence Act 1950.) Court, Malaya)
2. Leong Hong Khie v. PP; Tan Gong
Wai v. PP [1986] 2 MLJ 206
(Federal Court)

See also:
3. Ng Lai Huat v. PP [1990] 2 MLJ
427
4. Ratten v. R [1972] AC 378
5. Walton v. Queen [1989] 63 ALJR
226
6. Teper v. R [1952] AC 480
7. Nahar Singh v. Pang Hon Chin
[1986] 2 MLJ 141

Recommended Readings:
1. Chang Min Tat. 1977. The Hearsay
Rule. Malayan Law Journal. 2. Vi
2. C. Singh. 1981. Hearsay Evidence.
Malayan Law Journal. 2. clxxxviii.
3. Mohd Akram. 1990. Hearsay
Evidence. Current Law Journal. 2. iii.
4. Odgers, The Hearsay Rule: A doctrine
in Retreat? A Reappraisal of the
Hearsay Rule in Singapore (1990)
32 Malaya Law Review 239
5. Mohd Akram. 1990.Hearsay Rule and
the Evidence Act 1950. Current
Law Journal . 1. i.
6. Campbell. 1971. Note Hearsay
Evidence of Conspiracy. Malaya
Law Review. 34. 217
46

Exceptions: Sim Tiew Bee v PP [1973] 2 MLJ 200.)


Section 32. Statements of Persons Before evidence can be adduced under
Who Cannot Be Called as section 32, the legal foundation must be
Witnesses. laid.

Before we can admit hearsay Other relevant case: Satish Chandra Seal v
evidence under section 32, must lay a Emperor (1944) 2 Cal 76.
foundation.
4 reasons to admit hearsay evidence.
1. Maker who has since died.
(To prove death – to bring the
death certificate, or the
witness has seen him die, or
under s 108, if the person had
not been heard of in not less
than 7 years by the people
whom he would have
communicated, the court can
draw a presumption).
2. Maker cannot be found after
diligent search.
3. He has been incapable of
giving evidence because of
his illness of body and mind.
4. He is out of jurisdiction and
to call him would cause
unduly delay and expense.

Statements made by such persons are


relevant in the cases outlined in paras
(a) to (h) of the Act. Before a
statement can be adduced under any
of the said paras (a) to (h), one the
four preconditions, mentioned above,
must first be satisfied. If this is not
satisfied, then the out-of-court
statement cannot be adduced.

1. Yeo Hock Cheng v R [1939]


Section 32(a) Dying declaration MLJ 91
The concept under the code is wide 2. Pakala Narayana Swami v
than in common law. It includes King Emperor.” [1939] MLJ
statements made by the deceased as to 59
cause of death or circumstances of
transaction relating to his death. It Per Abdul Malik Ishak J in Yong Kong Tai
also applies to civil and criminal v Salim bin Jalal & Anor [1997] 2 MLJ
cases. 380, 388-389, a common sentiment was
47

expressed where the judge pointed out the


The local law is broader in 3 ways. difference between the common law and
1. Under common law, dying the Evidence Act with respect to dying
declaration relates to declaration. Under the common law, the
homicide dying declaration only in homicide case
2. Circumstances of transaction and if the victim is labouring under a
that relates to cause of death settled hopelessness of death and if the
is not covered under common victim entertain an iota of doubt of his
law. death, that would not be a dying
3. Under common law for dying declaration. The difference only goes to
declaration to be admitted, weight. Illustration (a) shows that it is
the statement must be made receivable in civil as well as in criminal
the declaration labouring cases.
under hopeless imminent of
death. But if entertain a little Section 32(a) is broadly worded vis-à-vis
bet of hope, that is not a the common law. If the statement relates to
dying declaration. the cause of his death or relates to the
circumstances of the death is also
considered making a dying declaration.

In Yeo Hock Cheng v R [1939]


MLJ 91 the admissibility of the 2
statements alleged to have been
made by the deceased was in issue.
One was made 11 days before her
death, to her father and the other on
the evening of her death to her
sister.The first statement was
deemed to be inadmissible because
it is too remote and not connected
with the death. It is not proximately
related. The connection is too far
and irrelevant. The statement on the
eve of her death form the
transaction that relates to the
circumstances of her death. The
statement was proximately related
to her death and relevant to the fact
in issue, and relevant under section
32(a).

Relying on a leading Indian case of Pakala


Narayana Swami v King Emperor [1939]
MLJ 59, it was held that the circumstances
of the transaction were proximately
connected, ie the fact in issue were relevant
under section 32 where the circumstances
constituting the transaction of the cause of
death is relevant to the admissibility of the
dying declaration. The scope is wider than
the common law.
48

In Boota Singh v PP [1933] MLJ 195, after


the accused had disturbed HK, the wife
made a police report 9 months before her
death. The prosecution tendered that the
evidence is relevant under section 32
because it was a transaction that relates to
the cause of death. However, it was held
that the statement made 9 months before
was terribly remote, so in what way is the
statement connected?

A dying declaration can be made in 1. Chandrasekera alias


any form. It can be in the form of Alisandiri [1939] AC 220
conduct or implied assertion. 2. R v Abdullah 1887 All

A dying declaration to be in
writing, the actual words of the Where a dying declaration is made in
deceased must be recorded. answer to questions then the questions
should be recorded. If the statement is
taken down in writing by person such as
the police or a nurse, as far as possible
should be in Q & A form (ipsissima verba)
because or not the writer is bound to
introduce his own opinion, which is
hearsay.

Per Briggs Ag J in Naranjan Singh v PP


[1949] MLJ 122, 123:
“We desire to stress once
more that it is desirable
that, where a deposition is
made in answer to
questions, the record
should show the questions
asked and the answers
given. If this is not done,
the value of the deposition
may fairly be questioned,
although a detailed record
might show the criticism to
be unjustified.”

1. R v Santokh Singh [1933]


MLJ 178)
2. R v Waugh [1950] AC 203
R v Bottomley [1903] 38 LJ Newsp 311
A dying declaration need not be If the oral statement is the last dying words
proved by writing at all. However, of the deceased, there is no reason why we
the exact words spoken by the cannot admit those dying declaration. It
49

deceased must be given. only goes to weight.


1. Toh Lai Heng v R [1961] MLJ
53
2. Ong Her Hock v PP [1987] 2
MLJ 45

In admitting a dying declaration the court


must bear in mind the fact that it was a
statement not made on oath and which had
not been submitted to the test of cross-
examination.
1. Mohamed bin Allapitchay &
Ors v R [1958] MLJ 197, 199.
2. Nembhard v R [1982] 1 All
ER 183 (PC) shared the same
sentiment.

When a dying declaration was put in


evidence, the judge must be aware of the
pertinent fact that a dying declaration is not
made on oath and is not subject to cross-
examination. The judge must be conscious
of this fact that the credibility of the
deceased is not tested and because of this it
is also a requirement that the dying
declaration must be credible.

It is essential that the court assess Chan Phuat Khoon v PP [1962]


the credibility of the deceased MLJ 127, 128
before relying on the statement The dying declaration that seeks to be
made by him. admitted must be made by a credible
witness. If the witness is not competent, the
court cannot receive such dying
declaration.

A DYING DECLARATION MUST BE COMPLETE 1. Abdul Sattar v State AIR 1956


SC
2. Muniappan v State of Madras,
Must a dying declaration be AIR 1962 1252.
corroborated?
According to the legal sense there is no
requirement that a dying declaration must
be corroborated.

1. Nembhard v R [1982] 1 All


ER 183 (PC)
2. State of Uttar Pradesh v Chet
Ram & Ors [1990] 1 CLJ 1079
50

3. Khushal Rao v State of


Bombay (1958) SCR 552
It is neither the rule nor practice
that we need to corroborate a dying
declaration. It will depend on the
circumstances of the case.

1. Boota Singh v. PP [1933]


MLJ 195 (High Court, Malaya)
The out-of-court assertion must
have proximity to the cause of the
maker’s death, or to any of the
circumstances that resulted in his
death.
2. Mary Shim v. PP [1962]
MLJ 132 (High Court, Malaya)
The history of her illness as related
by the deceased to the doctor
before she died is admissible under
section 32.
3. Ong Her Hock v. PP
[1987] 2 MLJ 45 (Court of
Criminal Appeal, Singapore)
The recollection of the last words
of a dying man by a witness who
heard the actual words at the
scene may properly be received in
evidence.
4. Chan Phuat Khoon v. PP
[1962] 28 MLJ 132 (High Court,
Malaya)
For a statement to be admissible
under section 32, the maker, if
alive, should be a credible witness.
5. Toh Lai Heng v. R (1961)
27 MLJ 104 (Court of Criminal
Appeal, Singapore)
If a dying declaration is reduced to
writing, then the actual words of
the deceased must be recorded.
See also:
6. Chandrasekaran v. R [1937] AC 220
7. Kusa & Ors. v. State of Orissa (1980)
AIR SC 559
8. Abdul Sattar v. State of Mysore (1956)
AIR SC 168
51

Recommended Reading:
Jeffrey Pinsler. 1988. The Problem of
Recollection Concerning Statements of
Deceased Persons. Malaya Law Review.
30. 178.

Cases:
Section 32(b): Statements made in
ordinary course of business, and
1. Sim Tiew Bee v. PP [1973] 2 MLJ 200
consisting, of the following:
(Federal Court)
An out-of-court statement made in
a) Entry in books which are kept
the course of business is
in ordinary course of business
admissible if it is proved that the
or in discharge of
maker of it is dead, or cannot be
professional duty;
found, or has become incapable,
or whose attendance cannot be
b) Acknowledgement of receipt
procured.
of money, goods, securities or
property of any kind written 2. Syarikat Jengka v. Abdul Rashid
or signed by him. [1981] 1 MLJ 201 (Federal Court)
Before a statement can be
c) Documents used in commerce admissible under section 32(b), it
usually dated, written or must be proven to have been made
signed by him. in the ordinary course of business.
See also:
For example, see illustrations
(b) , (c) , (d) , (g) and (j). 3. PR v. Lin Ah Hoi [1992] CLJ 1375
4. Ng Yiu Kwok & Ors. v. PP [1989]
3MLJ 166

Section 32 (c) - Statements against Cases:


the interest of the maker.
1. R v. O`Brien [1978] 1 S.C. 591
2. Higham v. Ridgway [1808] 10
Self-interest induces a man to be
East 108
cautious and he is not likely to make a
3. PP v. Forster Frank Edald
statement to his own detriment ,
Heinrich [1988] 2 MLJ 594
unless it is true.
4. Sussex Peerage’s Case [1843-60]
All ER 55
Interest against which declarations are
5.
made:

(a) Pecuniary interested;


(b) Proprietary interest;
(c) Interest in escaping criminal
prosecution , e.g., confession of
accused who is dead implicating
himself and an accomplice in a
52

crime;
(d) Interest in escaping suit for
damages.

For example, see illustrations (e)


and (f).

Section 32(d): Statements giving


opinion as to:

(a) public right;


(b) custom;
(c) matters of public or general
interest.

Conditions for relevancy are:

(a) the declarant was aware of the


existence of such right;
(b) statement was made before any
controversy as to right or custom
arose.

For example, see illustration ( I )

Section 32 (e): Statement relates to


existence of :

(a) relationship by blood ;


(b) relationship by marriage;
(c) relationship by adoption;

Conditions for relevancy are:

(a) person making the statement had


special means of knowledge
about the relationship;
(b) statements must have been made
before the question in dispute
was raised.

For example, see illustrations (k) and


(l)

1. Mohamed Syedol Ariffin v. Yeoh Ooi


Section 32 (f): Statement in will or Gark [1916] 1 M.C. 165 (Privy
deed relating to family affairs. Council)
(a). The application of section
For example, see illustration (m). 32(e) and (f) is not limited
53

by the common law


restrictions.
(b). The illustration given in
the statute does not in fact illustrate the
section.
2. In Re Estate of Chan Chin Hee [1948]
SCR 6 (Supreme Court, Borneo)
The entry of a son’s name on a
tombstone of the deceased is
admissible evidence of pedigree
relationship.
3. Lee Kim Luang v. Lee Shiah Yee
[1988] 1 MLJ 193 (High Court,
Malaya)
The inscription in Chinese
characters on the tombstone of the
deceased was admissible as it
showed a father-son relationship
of two deceased persons within the
meaning of section 32(f) of the
Evidence Act 1950.

Section 32 (g): Statements contained


in any document relating to a
transaction mentioned in section
13(a).

See also:
Section 32 (h): Statement by several
1. PP v. Forster [1988] 2 MLJ 594
persons, expressing feeling.
2. Lim Kim Luang v. Fee Shiah Yee
[1988] 1 MLJ 193
For example, see. Illustration (n).
3. Mohamed Abu Bakar v. Syed Abu
Tahir [1990] 1 MLJ 26
4. PP v. Abdul Rahim [1990] 3 MLJ
188
5. Shanmugan v. Pappa [1994] 2 CLJ
265
6. PP v. Robert Boon Teck Chua
[1995] 1 CLJ 102
7. Michael Anayo Akaboyk [1995] 3
MLJ 42
8. Nembard v. R - [1982] 1 All ER.
183
9. Tucker v Oldbury KDC [1912] 2
KB 317
10. Ward v. Pitt [1913] 2 KB 130
11. Du Bost v. Benesford [1810] 2
Camp 511
12. PP v. Mohd Fairus b. Omar [1997]
54

5 MLJ 57

Section 33: Evidence in previous 1. Kee Saik Kooi & Anor .v.
judicial proceedings. Regina[1955] MLJ 57 (High Court,
Malaya)
Depositions in former trials are Before any evidence can be
admissible when the witness: adduced under section 33, it is
(a) is dead , or incumbent on the party adducing
(b) cannot be found; or such evidence to prove the
(c) becomes incapable of giving prerequisite that the witness is
evidence; or dead or cannot be found or is
(d) is kept out of the way by the incapable of giving evidence.
adverse party; or
(e) cannot be produced without an
2. Mohamed Kunju v. P.P [ 1966] 1
amount of delay or expenses,
MLJ 271 (Federal Court)
which court considers
Evidence is admissible under
unreasonable.
section 33 when the court is
satisfied that the circumstances
Depositions by such witnesses:
contemplated in that section have
(a) in a judicial proceeding; or
been proved.
(b) before any person authorised by
law to take them.
See also:
Are relevant in a: 3. Duncan v. P.P [1980] 2 MLJ 195
(a) subsequent judicial proceeding: 4. Dato` Yap Peng v. P.P. [1993] 1
or MLJ 337
(b) later stage of the same 5. Union Alloy (M) Sdn. Bhd. v.
proceeding. Sykt. Pembenaan Yeoh Tiong
Lay Sdn. Bhd.[1993] 3 MLJ 167
Conditions of relevancy of such 6. P.P. v. Mohd. Jamil bin Yahya &
evidence are: Anor [1993] 3 MLJ 702
(a) if the proceeding was between 7. Lim Peng Rooi v. R [1952] MLJ
the same parties or 26
representatives; 8. See Yew Poo v. PP [1949] 15 MLJ
(b) if the adverse party in the first 131
proceeding had right and
opportunity to cross examine; Recommended Reading:
and
(c) if the question in issue were the
same in the first and Mohd Akram. 1991. Admissibility of
subsequent proceedings. Evidence in Former Proceedings under
Section 33 of the Evidence Act 1950.
Evidence given on a different Current Law Journal. 2. xxl.
occasion is also admissible to
contradict a witness, under section
155 or to corroborate a witness, under
section 157.
55

WEEK OPINION EVIDENCE An expert is especially skilled on those


13 Relevant provisions: sections 45-51. points on which he is asked to give
opinion. An expert is a person who is an
expert in matters of science or art. What is
General principle science or art is not defined but the court
When a witness is called to give has given them a wide meaning. In
evidence, he must give evidence of Chandrasekaran v PP [1971] 1 MLJ 153,
fact of what he has perceived. The 159, Raja Azlan Shah gave them a flexible
witness cannot give opinion of the meaning. (supra at p 159):
facts. Only the court or the judge can “ The expression ‘science
give an inference of the facts. In or art’ is elastic enough to
many matters such as scientific or be given a liberal
medical matters, the court cannot give interpretation”
proper judgment. The court can call
persons to give opinion to assist the Leading cases:
court in informing the judge. 1. Junaidi v PP [1993] 3 MLJ
217
Major section, section 45: 2. PP v Muhamed bin Sulaiman
1. When the court has to form [1982] 2 MLJ 320
an opinion upon a point of 3. PP v Virammal AIR 1923 Mad
foreign law or of science or 178.
art, or as to identity or 4. Khoo Hi Chiang v PP [1994]
genuineness of handwriting 1 MLJ 265, 270-
or finger impressions, the
opinions upon that point of
persons specially skilled in
that foreign law, science or
art, or in questions as to
identity or genuineness of
handwriting or finger
impressions, are relevant
facts.
2. Such persons are called
experts.

Question of identity, relevant under


section 9.
Section 45: Opinion of experts is
relevant upon a point of:

• Foreign law;
• Science;
• Art;
• Identity of handwriting; or
• Finger impressions.

When the need for expert evidence Expert evidence is only admissible to
arises furnish the court with scientific
information, which is unlikely to be outside
56

the experience and knowledge of a judge.

1. Syed Abu Bakar v PP


[1984] 2 MLJ 19, 23

An opinion of an expert must be supported.


2. UAB v Tai Soon
Construction Sdn Bhd [1993] 1
MLJ 182, 187-188

When the witness gives evidence of the


fact, the court will draw an inference
whether the fact is proven or not. It is not
admissible for a witness to give an opinion
because opinion evidence is less probative
and not relevant. Secondly if the witness is
allowed to give opinion evidence it will
usurp the function of the court. Giving
opinion is only the role of the judge.

There are 2 exceptions.


1. When the witness observes the
facts, sometimes there is a total
mix-up between opinion and facts.
Facts and opinion becomes
intertwined. Law in its wisdom will
allow opinion evidence. For
example when the witness is to
give an opinion on the speed of a
vehicle, the witness shall perceive
that it is fast or not. In this instance
the opinion of a layperson can be
received. Other examples would be
the state of the weather, or state of
drunkenness. In these situations
facts and opinion intertwined. Not
fair to cogent justice to preclude
such opinion evidence of a
layperson. In these circumstances
the court can receive non-expert
evidence. The question will be on
how much weigh does such
evidence have and it will depend
on circumstances.
2. Opinion of an expert. Section 47 is
an example of a non-expert
opinion. It deals with handwriting
opinion.
57

The judge has to enquire the Whether he had acquired the expertise by a
person’s qualification as an expert systematic academic study, or has an
in that particular field. exception in that field. He court can
determine by his knowledge and how he
acquired it. The rationale is that when the
court does not have the expectation on the
subject matter of that enquiry, and the court
cannot form an opinion without an expert,
the court can ask an expert to assist the
court.

Case law
Folkes v Chadd 99 ER 589

Case law:
An expert may base his opinion on a R v Mason (1911) 7 Cr App R 67.
description given to him.
A medical witness who had not seen
the body of a deceased person might
be asked whether, in his opinion,
assuming that the facts described by
another witness who had seen the
body are true, the wounds could have
been self-inflicted.

Experts should not give conclusions R v Turner [1975] 1 All ER 70


on matters that are eminently
The difficulty is whether the opinion is
matters for the court to decide.
necessary or not necessary. If the court can
form an opinion, it is not necessary for the
court to call an expert. Based on the court
own experience there is no need to rely on
expert opinion. The court would have
perceived the facts without the assistance
of an expert.

R v Masih [1986] Crim LR 395


R v Weightman (1990) 92 Cr App Rep 291
Lim Ting Hong v PP [1966] 2 MLJ 119

Jayaraman & Ors v PP [1982] 2 MLJ 306


Dato Mokhtar Hashim v PP [1983] 2 MLJ
232
In the Federal Court, the FC state that must
make a distinction between an opinion of
an expert and an opinion of a non-expert.
In this case the court can form its own
opinion, and it is not necessary to call an
expert. It was clear that the injuries were
caused by blunt or sharp instruments.
58

1. Mary Shim v PP [1962] MLJ 132


2. PP v. Mohamed Sulaiman [1982] 1
MLJ 320 [1982] 2 MLJ 320
(Federal Court)
The expert must be ‘skilled’, he
need not be so by special study; he
may be so by experience.
2. PP. v. Mohamed Kassim bin Yatim
[1971] 1 MLJ 64 (High Court, Malaya)
Expert evidence, especially of
handwriting, is merely opinion
evidence and is not conclusive.
3. Syed Abu Bakar bin Ahmad v. PP
[1984] 2 MLJ 19 (Federal Court)
It would be erroneous for a judge
to form his conclusion on a matter
such as disputed handwriting
without the aid of expert evidence.
4. Kong Nen Siew v. Lim Siew Hong
[1971] 1 MLJ 262 (High Court,
Borneo)
A semi-skilled or a semi-
professional may be accepted as an
expert witness under certain
circumstances.
5. Munusamy v. PP [1987] 1 MLJ 492
(Supreme Court)
The court is entitled to accept
expert opinion on evidence that is
of an elementary nature.
6. Chandrasekaran v. PP [1971] 1 MLJ
153 (High Court, Malaya)
Expert opinion on typewriting is as
much a matter of science study as
handwriting and fingerprint
evidence and is therefore
admissible.
7. Shriro (China) Ltd & Ors. v. Thai
Airways International Ltd [1967] 2
MLJ 91 (F.C.)
It is the duty of counsel, who
wishes to submit that the meaning
of words in a foreign language is
ambiguous, to call expert evidence
on the part.
8. Sivagami Achi v. P RM Ramanathan
Chettiar & Anor. [1959] MLJ 221
(H. C.)

Expert evidence is needed to prove a


59

foreign law.

9. U.
Viswalingam v. Viswalingam
[1980] 1 MLJ 10.
English court had to have expert
evidence given on certain questions
regarding Muslim family law in
Malaysia.
10. Teng Kum Seng v. PP [1960] MLJ 225
(High Court, Malaya)
The evidence of an expert on handwriting,
especially Chinese characters must be
treated with caution.
Section 46 Facts bearing upon For example see, illustrations (a) and (b).
opinions of expert
Facts not otherwise relevant are Collector of Land Revenue v. Allapa
relevant if they support or are Chettiar [1971] 1 MLJ 43
inconsistent with the opinions of Singapore Finance Ltd. V. Lim Kah
experts when such opinions are Ngam [1984] 2 MLJ 202
relevant. Syarikat Perkapalan Timor v. UMBC
[1982] 2 MLJ 193
Facts not otherwise relevant, are
relevant:
if they support opinions of
experts, or
if they are inconsistent with
opinions of experts.

This is by opinion of an expert against


an expert.
In PP v Mohamed Kassim [1977] 1 MLJ
OPINION OF HANDWRITING 64, 66 the learned judge held that
EXPERT handwriting opinion of a handwriting
expert is not conclusive, poor and requires
corroboration.

In Dalip Kaur v Pegawai Polis Daerah,


Bukit Mertajam [1992] 1 MLJ the opinion
of a handwriting expert must be viewed
with caution. The court is entitled to give it
proper credit. It goes to weight.

Dr Shanmuganathan v Periasamy s/o


Sithambaram Pillai [1997] 3 MLJ 61
followed the leading SC case of Murarilal
v State of MP AIR 1980 SC 531, 534. This
case involves forgery of a document. The
court needed a handwriting expert to assist
the court because it was not within the
expertise of the judge. The judge relied on
the opinion of a handwriting expert and
60

found that the documents were forged. On


appeal of the major ground was the judge
had erred in law because he had relied on
the opinion of a handwriting expert. It is
not conclusive and must be corroborated.

MUST THE OPINION OF A HANDWRITING Although a handwriting expert is third


EXPERT BE CORROBORATED? class, of very low expertise, before the case
of Murarilal v State of MP the opinion of
handwriting expert need to be corroborated.
Murarilal v State of MP reviewed this
position and stated that it is neither a rule
of law or promise that the opinion of a
handwriting expert is subject to a special
category.
Handwriting can be proven by a Fakhruddin v State of Madhya Pradesh
non-expert. AIR 1967 SC 1326 held that there is
nothing technical about proving
handwriting.
Section 67: Proof of signature and To prove handwriting:
handwriting of person alleged to
1. By calling the maker – direct evidence
have signed or written document
produced. 1. Or by his admission – no need to
If a document is alleged to be call him (sections 17,18 & 21).
signed or to have been written 2. By indirect or circumstantial
wholly or in part by any person, the evidence – Datuk Harun Idris v
signature or the handwriting of so PP [1977] 2 MLJ 155: Eusof
much of the document as is alleged Abdoolcader held that it could be
to be in that person’s handwriting proved by circumstantial evidence.
shall be proved to be in his 3. By the opinion of an expert –
handwriting. section 45, 46 (Dr
Shanmuganathan v Periasamy s/o
Sithambaram Pillai [1997] 3 MLJ
61) & section 51: Grounds of
opinion when relevant:- (Whenever
the opinion of any living person is
relevant, the grounds on which his
opinion is based are also relevant.)
Opinion of a non-expert.
When the court has to form an opinion as
Section 47 is an example of a non- to the person by whom any document was
expert opinion. It deals with written or signed, the opinion of any
opinion as to handwriting when person acquainted with the handwriting of
relevant the person by whom it is supposed to have
been written or signed, that it was or was
no written or signed by that person, is a
relevant fact.

For example the secretary of the person


61

may be familiar with his handwriting, and


she can be called to give opinion on the
handwriting. However, in this respect I
don’t agree that the secretary gives an
opinion of a non-expert. If the person is
already familiar with her boss’s
handwriting, she is an expert and to
determine whether she is an expert, is a
preliminary question. It is the question for
the judge to decide whether she is peritus.
(an expert). How much weight to give on
such evidence depends of the standing of
the witness.
Section 73: Comparison of Other mode:
signature, writing or seal with If the handwriting is in issue, can ask the
others admitted or proved. writer to write a specimen and the court
will compare. In this situation, still use
section 45 for expert opinion. It is quite
imprudent not to use section 45. It is useful
to require an expert. Is the judge clever
enough to compare the specimen? (see
Fakhruddin v State of Madhya Pradesh)

Opinion of person as to handwriting is


relevant if he is acquainted with the
handwriting. A person is acquainted with
the handwriting if:

a. he has seen the person writes;


b. he has received documents in answer;
c. documents are habitually submitted to
him in the ordinary course of
business.

1. R. v. Lim Chin Shang [1957] MLJ


125 (High Court, Singapore)
Experience may be a basis for
accepting a witness as an expert.

2. Lim Ting Hong v. PP [1966] 2


MLJ 119
In matters relating to secret
societies, the courts are prepared to
accept a witness’s personal
experience as the basis of his
expert knowledge.

Ultimate issue rule For example:


When a witness comes to court he A commits murder and claims that he has
gives evidence of fact relevant to fact non compos mentes, he did not know the
in issue. Witness cannot give opinion nature of the act. The judge cannot form an
62

of ultimate issue. For example when opinion. To prove it, a psychiatrist is


the prosecution wants to prove a called. When he gives evidence he cannot
negligent act, the prosecution only say, “The accused has non compos
gives evidence to prove these issues. mentes”. He should say,” From my
Section 5 and 136 makes only observation, I noted that he behaved in the
relevant fact or relevant fact in issue way more consistent with his insanity.”
and of no other. The court is to form From this the court will agree or disagree.
an opinion or to draw an inference as The court will draw an inference that the
to the ultimate issue. This is the role accused is insane. The judge will give an
of the court. Only the court decides. opinion from the expert’s observation. The
Opinion evidence never decides the judge is to decide whether the accused is
ultimate issue. insane.

The ultimate issue rule is already


entrenched in the legal system. The rule is
seen more in breach than in performance.
The judge is seen to merely adopting the
expert’s opinion in the notes of evidence.

per Raja Azlan Shah CJ in Wong Swee


Chin v PP [1981] 1 MLJ 212, 214:
“But except on purely
scientific issues, expert
evidence is to be used by
the court for the purpose of
assisting rather than
compelling the formulation
of the ultimate judgments.
In the ultimate analysis it is
the tribunal of fact, whether
it be a judge or jury, which
is required to weigh all the
evidence and determine the
probabilities. It cannot
transfer this task to the
expert witness, the court
must come to its own
opinion.”

UAB v Tai Soon Heng Construction Sdn


Bhd [1993] 1 MLJ 182
Zakaria Yatim J held that in the law of
opinion, an expert only to assist and cannot
decide the ultimate issue on the forged
cheque.

When the witness gives evidence of the


fact, the court will draw an inference
whether the fact is proven or not. It is not
admissible for a witness to give an opinion
because opinion evidence is less probative
63

and not relevant. Secondly if the witness is


allowed to give opinion evidence it will
usurp the function of the court. Giving
opinion is only the role of the judge.

See also:
16. Syed Abu Bakar bin Ahmad [1984] 2
MLJ 19
17. PP v. Mohamed Kassim Yatim [1977]
1 MLJ 64
18. Chandrasekaran & Ors. v. PP [1971] 1
MLJ 153
19. Teng Kun Seng v. PP [1960] 26 MLJ
225
20. R. v. Lim Chin Sheng [1957] 23 MLJ
125
21. PP v. Lee Ee Teong [1953] 19 MLJ
244
22. Chin Sen Wah v. PP [1958] 24 MLJ
154
Wong Swee Chin v. PP [1981] 1 MLJ 212
OTHER RELEVANT MATTERS. (a). The role of the expert witness.
Ong Chan Tow v. R [1963] MLJ 160
(High Court, Singapore)
Experts should not be asked to give
conclusion on matters which are
eminently matters for the court to
decide.

Chin Sen Wah v. PP [1958] MLJ 154


(High Court, Malaya)
The ultimate decision on any issue
is with the court.

Wong Swee Chin v. PP [1981] 1 MLJ


212 (Federal Court)
It is the tribunal of fact that decides
on the ‘ultimate’ issue and the
value of any evidence, including
the expert’s.

Wong Chop Saow v. PP [1965] MLJ


247 (High Court, Malaya)
Stipulates the procedure to be
followed when an expert gives
evidence.

See also:
PP v. Chong Wei Khan [1990] 3 MLJ
165
PP v. Lin Lian Chen [1991] 1 MLJ 316
64

(b). Conflicting opinion evidence.


1. Collector of Land Revenue v.
Alagappa Chettiar [1971] 1 MLJ
43 (Privy Council)
Where there is a conflict between
the opinions given by more then
one expert, the judge has a right to
prefer one opinion to the others.

2. Singapore Finance Ltd v. Lim Kah


Ngam (S’pore) Pte Ltd & Eugene
HL Chan Associates [1984] 2 MLJ
202 (High Court, Singapore)
In evaluating the conflicting expert
evidence, the court may examine
the scientific grounds and bases on
which they rely.

3. Pavone v. PP (No.2) [1986] 1 MLJ 423


(High Court, Malaya)

When there is a difference in the


evidence between two witnesses on
scientific matters, such as drugs,
then it is incumbent on the party
concerned to have expert testimony
to explain the difference.

4. Dato Mokhtar Hashim & Anor v. PP


[1983] 2 MLJ 232.
The court preferred the evidence of
one expert to that of another on
questions regarding the alleged
murder weapon.

Recommended Readings:

1. Ganeson. 1984. What Blood Can


Tell And How?. Current Law
Journal. 2. 262.

2. Zafrullah. 1980. Expert Testimony


– Some Reflections From
Malaysia. Journal of Malaysian
Comparative Law. 243.

3. Raja. 1978. On Disproving Finger-


Print Evidence. Malayan Law
Journal. 1. xxxix.
65

4. Doyle QC. Admissibility of


Opinion Evidence. Australian Law Journal.
61. 687

5. Jackson. 1984. The Ultimate Issue


Rule. Criminal Law Review. 75.

6. Peter Gillies. 1986. Opinion


Evidence. Australian Law Journal. 60. 597.

7. Zafrullah. 1990. Expert Testimony.


Journal of Malaysian Comparative Law.
243

8. Eddy Q.C. 1955. The Infallibility


of Fingerprints. Criminal Law Review. 34

9. Wilson. 1958. Detection of Fingerprint


on Documents. Criminal Law
Review. 591

Section 48: Opinion as to general


custom or right.
“General customs or rights” include
those common to any considerable
class of persons.

Section 49: Opinion as to usages


and tenets.
Opinions of persons are relevant if
they are with special means of
knowledge, as to:
• usages and tenets of any body of
men or family;
• constitution and government of
any religious or charitable
foundation; or
• meaning of words or terms used
in particular districts or by
particular classes of persons.

Section 50: Opinion on relationship.

Case:
Dolgobinda Paricha v. Nimai Charan
66

Misra and Ors (1959) AIR SC 914.

1. Sim Ah Oh v. PP [1962] 28 MLJ 42


Section 51: Grounds of opinion. (High Court, Malaya)
The opinion of an expert may be An expert must give the reasons in
supported by a clear statement of support of his evidence.
what he noticed and on what basis he
has formed his opinion. 2. Pacific Tin Consolidated Corp. v. Hoon
See also section 60 (1) (d) Wee Thim [1967] 2 MLJ 35 (Federal
Court)
(a). Where the opinion of
experts is based on reports
of facts, those facts, unless
within the experts’ own
knowledge, must be
proven independently.

(b). In all cases of opinion


evidence, the grounds or
reasoning upon which such
opinion is based may be
inquired into.

See also:
3. Lai Yong Koon v. PP [1962] MLJ 327

WEEK EVIDENCE OF BAD CHARACTER.


14 1. Kong v. PP [1962] MLJ 195 (High
See sections 52 to 55. 146, 146A Court, Malaya)
Evidence Act 1950
The fact that a person is unable for
See also section 170 Criminal
the time being to satisfy his
Procedure Code
creditors is not evidence of bad
character.

2. OK Nair v. R [1954] MLJ 206


(High Court, Singapore)
Character evidence of the accused
is generally inadmissible.

3. Habee Bur Rahman v. PP [1971] 2


MLJ 194 (High Court, Borneo)
Character evidence is generally
inadmissible because of its
prejudicial nature.
67

4. Wong Foh Hin v. PP [1964] MLJ 149


(Federal Court)
Section 54 does not make
inadmissible any character
evidence which is otherwise
admissible under some other
sections of the Act.

5. Lim Baba v. PP [1962] MLJ 201


(High Court, Malaya)
Character evidence is admissible if
it relates to a fact in issue or the
credibility of a witness.

See also:

6. R v. Butterwasser [1948] 1 KB 4
7. R v. Winfield [1939] 4 All ER 164
8. Jones v. DPP [1962] A.C. 635
9. Maxwell v. DPP [1935] A.C. 309
10. Murdoch v. Taylor [1965] A.C.
574
11. Selvey v. DPP [1970] AC 304
12. Loke Soo Har v. PP (1954) MLJ
149
13. Girdari Lall v. PP [1946] MLJ 87
14. PP v. VeeranKutty [1990] 3 MLJ
498
15. PP v. Choo Chuan Wang [1992] 2
CLJ 1242

Judicial Notice and Formal Cases:


Admissions 1. Ramah v. Laton [1931] 6 FMSLR
See sections 56, 57 and 58. 128 (SC, FMS)
Islamic Law is not foreign but
General Rule: All facts in issue and local law and therefore, the courts
relevant facts must be proved. must take judicial notice.
Exceptions: Sections 56 and 57. 2. Samivelu v. PP [1972] 1 MLJ 28
(High Court, Malaya)
Section 56: Facts judicially noticeable A court is only bound to take
need not be proved. The court finds judicial notice of any regulations
that the fact exists, although no when the relevant Gazette
evidence of it is given. Certain notification is either quoted in the
matters are so notorious or clearly charge or adduced in evidence.
established that evidence of their
existence is deemed unnecessary. It is 3. Yong Pak Yong v. PP [1959] MLJ
based upon convenience and 176 (High Court, Malaya)
68

expediency. It expedites hearing of In passing a sentence, the court


many cases and produces uniformity may take judicial notice of what is
of decision on matters of fact. notorious and what everybody
knows.
Section 57: Facts of which court
4. Lee Chow Meng v. PP [1976] 1
must take judicial notice.
MLJ 287 [1976] 1 MLJ 287 (High
Court, Malaya)
Section 58: Facts admitted need not
The court may take judicial notice
be proved.
that there has been an increase in
the commission of offences in
Kuala Lumpur involving firearms.
5. Pembangunan Maha Murni v.
Jururus Ladang [1986] 2 MLJ 30
(SC, Malaysia)
The payment of a 2% commission
to a broker has not developed into
a recognised custom or usage so
as to entitle it to be judicially
noticed.
6. Plaza Singapura (Pte) Ltd v.
Cosdel (S) Pte Ltd & Anor. [1990]
3 MLJ 199 (COA, Singapore)
When a court may take judicial
notice of a trade custom or usage.
See also:
7. N. Madhavan Nair v. Govt. of
Malaysia [1975] 2 MLJ 286
8. Re KO (an infant) [1990] 1 MLJ
494
9. Balakrishnan v Swantine [1991] 1
CLJ 503
10. Re Gun Soon Thim [1997] 2 MLJ
351
11. PP. v. Lin Lian Chen [1991] 1 MLJ
316.

Recommended Readings:
Mohd Akram 2002. Judicial Notice and
the Judge’s Personal Knowledge: Current
Law Journal 4. liii.
Mohd Akram. 1986. Judicial Notice Vis-
A-Vis Personal Knowledge: Malaysian
Experience. Current Law Journal. 2. 288.
MODERN FORENSIC The component of forensic science is
TECHNOLOGY AND THE LAW incorporated in the course of Evidence
OF EVIDENCE both in the first and second semester
courses
69

1. Development of forensic
technology In the first semester – when dealing
Forensic science and with sections 9, 11 and 45-51 – identity
techniques of things, persons places etc, fixing
time and place of occurrence of the
2. Forensic Evidence a class of subject matter, of trial, opinion thereto,
Real Evidence by DNA profiling, fingerprint and palm
a. Fingerprint identification – the tests involved in
b. Blood samples, blood identification of drugs, how to prove
alcohol levels, handwriting, and many related matters
grouping of blood – under sections 7 – cause, effect of
stains. fact in issue, section 10 – evidence of
c. Bodily samples conspiracy – are dealt in semester 1, in
d. DNA profiling Evidence 1. In Evidence II, particularly
e. Footprint when discussing documentary
f. Ballistic test computer generated documents, tape
g. Investigation of arson and video recording evidence – where
h. Visual images of the provence principle is important –
suspects – fotofit, essentials of forensic evidence is taught
subject to Turnbull in the context.
warning.
When discussing the law relating to
3. Legally and illegally obtained defences under the Evidence Act –eg.
forensic evidence Alibi, provocation, self defence
a. Consent to take non- drunkenness – and quantum of
intimate samples evidence required. At the very
b. Consent to take beginning of the course when dealing
intimate samples types of evidence elements of forensic
c. Police procedures in science are touched upon – especially
taking samples. in the area of ‘real evidence’ eg.
Resemblence, crime science visits,
4. Fingerprint border dispute on sea or land, motor
a. Breach of safeguard vehicle accident, arson –identification
b. Refusal of consent/ of the cause.
without consent
c. Destruction of Generally forensic law – involves
samples obtaining opinion of expert and non-
d. Expert evidence experts – under sections 7,9, 45-51 of
e. Identification the Evidence Act. This will be the
f. Standard for match calling of the experts.
g. Availability of
database of REFERENCES:
fingerprint samples. Phipson on Evidence – 15th Edition,
London: Sweet & Maxwell 2000
5. DNA profiling
DNA profiling technique Chapter 14 – Expert Evidence Law and
Restriction Fragment Length Practice by Tristam Hodgkinson,
Polymorphison (RFLP) London: Sweet & Maxwell 1990.

Polymerase Chain Reaction (PCR) Chapter 13 p. 436; The law of expert


Analysis evidence – Ian Freckelton, Hugh Selby;
70

LBC Information Services 1999.


Development of Forensic
DNA profiling CASE LAW:
Application of DNA profiling PP v Ahmad Najib Aris 2004 CLJ 21
to the law (The Canny Ong’s Case)
Limitation of DNA profiling.
a. Expert evidence PP v Hanif Basree Abdul Rahman
b. Guideline to deal 2004 3 CLJ 34
with DNA evidence (The Noritta Case)
c. Identification of
DNA PP v Mohd Abbas Bin Danus Baksan
d. Collection of samples [2004] MLJ 160
e. Likelihood of stains
being left at the crime
scene
f. Matches
g. The challenge of
presentation of DNA
evidence.
h. Prosecution fallacy
i. Random occurrence
ratio
j. Statistical evidence
k. Weight of evidence
l. The future of the
admissibility of DNA
profiling evidence

6. Blood samples
a. Inferences to be
drawn for refusal to
consent
b. Intimate samples
c. Production of
evidence
d. Blood tests- expert
evidence
e. Blood and other
scientific test of
paternity

7. Bodily Samples
a. Blood and body
tissues
b. Dental Impression
c. Hair
d. Intimate samples
e. Order for taking of
samples
f. Samples taken at
police station
71

g. Destruction of
samples

8. Drugs
2 methods of identifying
cannabis, ganja, heroin exhibit
Fingernails – chipping exhibit

Essential Readings 1. Pinsler J. 1992. Evidence Advocacy and the Legal Process.
Singapore: Butterworths.
Basic Text Books:
2. Chin Tet Yung. 1988. Evidence. Singapore: Butterworths.

3. S. Augustine Paul. 2003. Evidence: Practice & Procedure.


Kuala Lumpur: Pelanduk Publication.

4. Rafiah Salim. 1994. Evidence in Malaysia and Singapore:


Cases, Materials and Commentary. 2nd edition. Kuala
Lumpur: Butterworths.

5. Sarkar. 1999. The Law of Evidence. 15th edition. India:


Wadhwa & Co.

6. Ratanlal & Dhirajal. 1987. The Law of Evidence. India:


Wadhwa and Co.

7. Cross and Tapper. 2000. Evidence. 6th edition. London :


Butterworths.

8. Phipson. Evidence. 2000. Evidence. 12th edition. London:


Sweet and Maxwell.

9. Hamid Sultan. 1994. The Law of Evidence in Malaysia and


Singapore. Kuala Lumpur: Janab.

10. Mohd Akram, 2004. The Law of Confessions. Kuala


Lumpur:

Recommended Books 1. Hamid Ibrahim, 1993. The Law of Evidence. Kuala


For Further Readings: Lumpur: Central Law Book Corporation Sdn. Bhd.

2. Stephen J.F. 1904. A Digest of the Law of Evidence. New


York: MacMillan & Co. Ltd.

3. R.K. Nathan. 1993. A Practical Approach to Evidence in


Malaysia and Singapore. Kuala Lumpur: Malaya Law
Journal.

4. J.D. Heydon. 1996. Cross on Evidence. 5th edition.


72

Australia: Butterworths.

Statutes: 1. The Evidence Act 1950 (revised (2003)


2. The Oaths and Affirmation Act 1949.
3. Criminal Procedure Code.

Proposed Start Semester 1, 2006/2007


Date (Semester)

Batch of Students to be Semester 1, 2006/2007


Affected

Prepared by:
Prof. Dr. Hj. Mohd. Akram Shair Mohamad
Mr. Mohd Shahrizad Mohd Diah