BURDEN OF PROOF

22.09.2010
1
S. 3 EA
PROVED
DISPROVED
NOT PROVED
Sarkar: the words proved, disproved and not proved are
actually different degrees of certainty, which the court
has to decide on before giving judgment.
2 types of burden:
Persuasive burden (legal burden)
Evidentiary burden
International Times & Ors v Leong Ho Yuen [1980] 2
MLJ 86 (burden of proof has 2 meanings)
The burden of establishing a case (s.101 EA)
The burden of introducing evidence (s.102 EA)

2
International Times & Ors v Leong Ho
Yuen [1980] 2 MLJ 86
Salleh Abas FJ : For the purpose of this appeal, it is
necessary to bear in mind the distinction between
the two senses in which the expressions burden of
proof and onus of proof are used.
The first sense, signified by the expression burden of
proof such as referred to in S. 101 of the EA is the
burden of establishing a case and this rests
throughout the trial on the party who asserts the
affirmative of the issue. The appellants in the present
appeal relied on justification and fair comment.
Therefore, the burden of proving these defences
rests entirely upon them
International Times & Ors v Leong Ho
Yuen [1980] 2 MLJ 86
The second sense referred to as onus of proof, on the other
hand, relates to the responsibility of adducing evidence in
order to discharge the burden of proof.
The onus as opposed to burden is not stable and constantly
shifts during trial from one side to the other according to the
scale of evidence and other preponderates.
Such shifting is one continuous process in the evaluation of
evidence
According to S. 102 & 103 of EA, if the party with whom this
onus lies whether initially or subsequently as a result of its
shifting does not give any further evidence or gives evidence
which is not sufficient, such party must fail
Legal Burden
A burden of persuasion / heavier burden
An obligation that remains on a single party
throughout the claim
Once the burden has been entirely discharges
to the satisfaction of the trier of fact, the party
carrying the burden will succeed in its claim
s. 101 EA
He who alleges must prove
Persuasive burden
Criminal case: beyond reasonable doubt
Proof to a high degree of probability but not proof
beyond a shadow of a doubt
Civil case: balance of probabilities
That an allegation is more probable than not

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Tenaga Nasional Berhad v Perwaja
Steel Sdn Bhd [1995] 4 MLJ 673
The plaintiff must prove such facts as the
plaintiffs desires the court to give judgment as
to its right to claim against the defendant or
the defendants liability to pay the plaintiff.
The burden is on the plaintiff, in order to
succeed here, the plaintiff must prove its
claim affirmatively
Wong Sieng Ping v. PP [1967] 1 MLJ 56
Charged with cheating and Magistrate held : I am satisfied
beyond reasonable doubt that accused failed to establish a
case which at least would raise doubt as to his guilt and
entitle him to an acquittal.
Contention : it was wrong to say the burden of proof had
shifted to the appellant
Legal Burden never shift to the accused
The onus of proving everything essential to the establishment
of the charge against the accused lies upon the prosecution
who must prove the charge substantially as laid.
The onus never change to the accused to give an explanation
or to establish a case which would be inconsistent with the
presumption of innocence

Burden of Proof in criminal cases
Mat v PP [1963] MLJ 263 : The general rule is that
the prosecution bears the legal burden of proof

Choy Hon Song v PP [1967] 1 MLJ 210 : The accused
generally has only the evidential burden of raising a
reasonable doubt in the mind of the trial court

Woolmington v DPP [1935] AC 462 : The burden of
proof on the prosecution to prove guilt, no such
burden laid on the accused to prove his innocence,
sufficient to raise doubt as to his guilt
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CRIMINAL CASES
Haw Tua Tau v PP [1981] 1 MLJ 49
Nadaraso v PP [1972] 2 MLJ 47
A Ragunathan v PP [1982] 1 MLJ 139
Munusamay v PP [1987] 1 MLJ 492
Dato Mokhtar Hashim & Anor v PP [1983] 2
MLJ 232
PP v Lee Poh Chye & Anor [1997] 4 MLJ 578
Aziz Muhamad Din v PP [1997] 1 CLJ 523
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Evidential Burden
Burden of leading evidence / lighter burden
An obligation that shifts between parties over
the course of the hearing / trial
A party may submit evidence that the court
will consider prima facie proof of some state
of affairs
This create an evidentiary burden upon the
opposing party to present evidence to refute
the presumption
Evidential Burden
Criminal the evidential burden of proof is
often on the prosecutor to prove each
essential elements of the offence
Civil the burden requires the plaintiff to
convince the judge that he is entitled to the
relief sought
Ei incumbit probatio qui dicit, non que negat :
the burden of proof rests on who asserts, not
on who denies
s. 102 EA
Burden of proof lies on a person who should fail if
no evidence were given : Evidential burden
Establishing prima facie case if the judge is
convinced that there is some evidence (not
inherently incredible) if he were to accept it as
accurate, would establish each essential
ingredient of the offence. If these evidences are
not rebutted the accused is guilty (convicted)

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Aziz bin Muhamad Din v PP
[1996] 5 MLJ 473
The burden of establishing a case must be contrasted
with the burden of introducing evidence (the
evidential burden)
The former is governed by S. 101 and the latter by S.
102 EA
The burden of establishing a case rests throughout
the trial on the party who asserts the affirmative
However, the burden of introducing evidence in a
case shifts constantly as evidence is introduced by
one side or the other
Tan Kim Khuan v Tan Kee Kiat (M) Sdn
Bhd [1998] 1 MLJ 697, at 706

The burden of proof rests throughout the trial
on the party on whom the burden lies.
Where a party on whom the burden of proof
lies has discharged it, then the evidential
burden shifts to the other party
What shifts is the responsibility of adducing
evidence to discharge the burden
If he does not adduce any evidence when the
burden has shifted to him, he will fail
Selvaduray v Chinniah [1939] MLJ 253
Plf was a clerk working for the Def
Plf claimed for arrears in salary but Def contended
that Plf came to him to study where he provide for
food, shelter, cloth with no agreement as to salary
Ct : The burden of proof never shift to the Plf, the
onus is on him to prove his case
If the position at the conclusion of the trial is exactly
even, then Plfs action must fail because he has not
discharge the onus which is on him
s. 103 EA
The burden of proof in a fact lies on the
person who wishes the court to believe in its
existence, unless it is provided by any law that
the proof of that fact shall lie on any particular
person
When a person on whom a burden lies fails to
discharge it, there is no burden on the
opposing party to disprove it
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s. 103 EA
Eastern Enterprise Ltd v Ong Choo Kim
[1969] 1 MLJ 236 : Plf has not proved his case
against Def, thus no burden shifts to Def to prove the
premise being used for immoral purpose. Def would not
have to disprove something which has not been proved
against him
Tan Kim Khuan v. Tan Kee Kiat (M) Sdn Bhd
[1998] 1 MLJ 697 : WSS filed by Resp vs prop of App
but no evidence adduced to prove ownership. App must
show that he is the lawful owner of the property at time
of attachment. The burden of proof was thus on the App
but he had failed to discharge that burden. In such
circumstances, there is no onus on the Resp to lead any
evidence.
Scope of S. 103
Burden of proof as to a particular fact lies on
that person who wishes the court to believe in
its existence
Karam Singh v. PP [1967] 2 MLJ 25 : A murder
charge in a fighting over the use of stand pipe
in hospital quarters. Threats were uttered in
the presence and hearing of 30 40 persons
but none was called by prosecution.


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Scope of S. 103
Burden of proof prescribed by law to lie on a particular
person
Eg : to rebut the presumption of trafficking under S. 39B
DDA 1952
Mohamad Radhi Yaakob v. PP [1991] 3 MLJ 169 :
In the course of the prosecution case, the prosecution may
of course rely on available statutory presumptions to prove
one or more of the essential ingredients of the charge.
When that occurs, the particular burden of proof as
opposed to the general burden, shifts to the defence to
rebut such presumptions on the balance of probabilities
which from the defence point of view is heavier than the
burden of casting a reasonable doubt, but it is certainly
lighter than the burden of the prosecution to prove beyond
reasonable doubt.

Scope of S. 103
Manner of discharging a burden placed on any
person by law
PP v. Mohamed Noor Jantan [1979] 2 MLJ 80 : the
burden is only a light one and this can be
discharged by evidence of witnesses for the
prosecution and defence
Duty of a party alleging a fact
Juahir bin Sadikon v. Perbadanan Kemajuan
Ekonomi Negeri Johor [1996] 3 MLJ 627 : The party
who alleged a fact must produce the necessary
evidence in proof of it

Scope of S. 103
Alibi (illustration b) the burden of proof in a
defence of alibi is on the person who relies on such
defence
cr Sec 11 and Sec 402A CPC
Yau Heng Fang v. PP [1985] 2 CLJ 22 : the
words establishing his alibi in s. 402A(1) CPC means
a statutory burden placed on the accused to prove
his alibi on the balance of probabilities. What the
learned Judge should consider is whether the
evidence adduced by the appellant for the purpose
of establishing his alibi had raised a reasonable
doubt in the prosecution case, and not whether such
evidence had created a reasonable doubt as to the
appellant's innocence.
s. 104 EA
Burden of proving fact to be proved to make
evidence admissible
Prior facts (contingent fact)
A wishes to prove a dying declaration made by
B. A must prove Bs death
Cr 136 (2) EA
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s. 105 EA
2 parts :
Burden of proving that case of accused comes
within exceptions
Presumption by the court of the absence of the
circumstances
Applies only in criminal cases
Accused must prove the existence of circumstances bringing the case
within any of the general exceptions in the Penal Code
Court will presume the non-existence of the said circumstances bringing
the case within an exception (once prosecution successfully proved
accused person is guilty, it is presumed that he has no defence)
If the accused wants to, he must rebut the presumption on the balance of
probabilities

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s. 105 EA
Ikau anak Mail v PP (1973) 2 MLJ 153
Defence of provocation in murder trial and ct held
the burden of proving accident, provocation, or
self-defence rested upon the accused to prove on
the balance of probabilities

N Govindasamy v PP (1976) 2 MLJ 49
Defence of provocation in murder trial
The burden of proof on the issue of grave and
sudden provocation was the burden in civil cases
on a balance of probability. The burden of proof is
governed by s. 105
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s. 106 EA
Burden of proving fact especially within knowledge
Exception to s 101
If the matter is within the knowledge of the accused
he must prove it the burden is on him to prove.
Illus (b) : only he knows wt he has a ticket or not
PP Hoo Chee Keong [1997] 4 MLJ 451 : It is designed
to meet certain exceptional cases in which it would be
impossible or disproportionately difficult for the
prosecution to establish facts which are especially
within the knowledge of the accused and which he
could prove without difficulty or inconvenience
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s. 106 EA
PP v. Lim Kwai Thean [1959] MLJ 179 : an offence of
having in possession prohibited documents without
lawful excuse / authority. If he had a lawful excuse,
that fact would be especially within his knowledge.

Re Tan Kheng Cheng [1962] MLJ 310 : an offence of
carrying goods without haulage permit and valid
certificate of insurance. Although the fact that the
vehicle is insured, is in the knowledge of the
defendant or his employer and therefore s. 106
applies