1: INTRODUCTION TO THE LAW OF EVIDENCE | LMSM 2020

L1: INTRODUCTION TO THE LAW OF EVIDENCE

GENERAL INTRODUCTION

The objective of legal proceedings is to determine the legal rights and liabilities of the parties. These rights
are in turn determined by facts of the individual case.

Law can be generally divided into 2 main branches:

 Substantive law:
Substantive law is the area of law which
determines what are the rights and liabilities
of the parties; it is dependent upon the facts of
every case.
o Must establish certain rights
o Other party had breach that right i.e.
liabilities
 Adjective law:
Adjective law is procedural and determines
how facts will be established in court. The
Law of Evidence falls under the heading of
adjective law, as it is the branch of law which
regulates the proving of facts in court.

Trial:
 Court trials involves which? Which is more important?
Trial is not only about substantive law. It is a marriage of both substantive and adjective law.
 Why?
Rights and liabilities are determined by applying substantive law to facts of the individual case and how
facts of the individual case and how facts are prove is determined by adjective law.
 Law:
Sir James Fitzjames Stephen – “All rights & liabilities are dependent upon and arise out of facts”.

Generally, adjective law can be divided into 3 parts:

1. Pleadings - to determine what is the dispute
Example:
Civil - Statement of Claim and Statement of Defense (Pleadings)
Criminal - Charge Sheet
2. Procedure - civil and criminal i.e. the trial process
3. Evidence - regulates fact finding / what / how facts can be proved

Note: In general, rights are determined by substantive law i.e. substantive law determines what rights an
individual has. However, rights provided for in substantive law are proven through adjective law i.e. through
facts of the case.

As a general rule, the Law of Evidence applies equally to both civil and criminal proceedings. Evidence
regulates the fact finding process of the court in the following manner:
 it determines admissibility of facts
o only facts that are relevant or of relevancy shall be admitted
o deals with the question of relevancy i.e. what is relevant or of relevancy
 it determines the manner in which a fact may be proved
o facts or information given must be voluntary
Rules of exclusion:
o Hearsay evidence is not admissible, reason being the maker is not there to testify the correctness
of the evidence or the truth of the contents.
o Hearsay is an out of court statement
o The maker of the statement is not the witness
 it determines how much proof will be required to establish a fact
o the burden of proof in civil cases is balance of probabilities while in criminal cases is beyond
reasonable doubt (prasangka yang munasabah)
Thus, the law of evidence is the golden thread which runs through all areas of law.

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Imagine:

A killed B, which of the following is admissible?

(a) I hate the victim - admissible as it show motive
(b) Last person to see the victim alive - admissible - shows opportunity to commit the crime
(c) Knife use to stab the victim and fingerprints is that of A - admissible
(d) I was a bad child - inadmissible as it is irrelevant

Generally, the evidence act will let you determine what evidence is relevant and what is not

X (age 25) charged with murder, committed on 1/7/2020 (10.00am). The victim is Y.
(a) Evidence that when X was 11 he stole durians - not relevant - not admissible
(b) X had threatened the victim (Y) on 30/6/2020 - relevant - admissible
(c) Testimony by Z (a witness in court) that Y had told him that X had threatened her on 30/6/2020 - hearsay
evidence (circumstanstial evidence) - GR not admissible
(d) The Testimony of Z is the only evidence

Evidence Regulates Fact Finding: 3 pillars of Evidence

Relevancy

Admissibility

Weight - how much evidence do we need?

PURPOSE OF THE LAW OF EVIDENCE

1. To regulate proving of facts in judicial proceedings

o Malaysia practices the adversarial system of trial and not inquisitorial system, whereby the parties
to the dispute will bring in evidence to support their arguments or case
o Thus, regulation is needed to determine what evidence is allowable or can be submitted by the parties

2. To ensure like cases are treated alike

3. To limit evidence only to that which is relevant

o To save time and money

4. To provide safeguards against manufactured and unreliable evidence

o Example: hearsay evidence is not admissible as the maker of the statement is not there to prove it

5. To achieve justice and fairness

o Issue: achieving justice and fairness for who?
o Evidence of bad character not allowable

SOURCES AND APPLICATION

The Evidence Act 1950 (EA) is the main source of the law of evidence in Malaysia. It has general application
to all persons regardless to race or religion. It is based on the Indian Evidence Act. The Indian Act is the
codification of the common law.

Other sources of the Law of Evidence include the following:

1. Criminal Procedure Code (Act 593) Kidnapping Act 1961
2. Rules of Court - for civil cases Malaysian Anti-Corruption Commission Act
3. Other statutes 2009
Example: Sexual Offences Against Children Act 2017
Dangerous Drugs Act 1952 4. Common Law i.e. UK, Australia and India

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 Who the EA 1950 can apply to?
o The EA is application to both civil and criminal cases and to all persons regardless to race or religion.
However, it is not applicable to the matters under the jurisdiction of the Syariah Court. The Syariah
Courts have their own rules and laws to regulate evidence i.e. Syariah Court Evidence Act (Federal
Territories) 1997.

Ainan Bin Mahmud v Syed Abu Bakar [1939] MLJ 209

Held: The Evidence Enactment is a statute of general application and that all the inhabitants of the Federated
Malay States are subject to its provisions whatever maybe their race or religion. In questions of legitimacy
in the case of Muhammadans s.112 Evidence Enactment applies to the exclusion of the rule of Muhammadan
Law.

 What falls within the ambit of the EA 1950?

o Q: Are illustrations part of the law?
o A: Illustrations are not part of the section i.e. not law. Illustration is merely a strong aid in
interpreting the provisions i.e. are examples on how to apply the sections expressly given by
Parliament. It is not exhaustive and can be applied outside the example.

Mohamed Syedol Ariffin v Yeoh Ooi Gark [1916]1 MC 165

Held: Illustration appended to sections of a statute should be accepted, if that can be done, as being of
relevance and value in construing the text. They should only be rejected as repugnant to the section as the
last resort of construction.

* Note: Illustrations are an important aid to statutory interpretation which have been expressly provided by
the legislature and should not be rejected unless in very exceptional and special cases. The application of
sections are not confined to illustrations. Reference can be made to Indian decisions for the interpretation of
provisions of the EA since the Malaysian and Indian EA are in pari materia. Indian decisions are not binding
but should be given highest degree of respect and consideration especially where the provisions are similar.

Khalid Panjang & Ors v PP (No. 2) [1964] 1 MLJ 108

The Federal Court stated: “All we have to say is that the Privy Council were not discussing the law of
England. They were discussing a section in an Indian statute, which is word for word the same as the
corresponding section of a local statute. In then circumstances a decision of their Lordships is binding on
this Court and a fortiori it is binding on every High Court in Malaysia and no Judge is at liberty, whatever
his private opinion may be, to disregard it.”

 Does the Act apply to apply matters in a Civil Court?

o Extent of the EA - s.2 of EA
“This Act shall apply to all judicial proceedings in or before any court, but not to affidavits presented
to any court or officer nor to proceedings before an arbitrator.”
o The word “judicial proceedings” is not defined in EA 1950 but is defined in s.2 of CPC.
s.2 of CPC “judicial proceedings” means “any proceeding in the course of which evidence is or may
be legally taken”

Re Loh Kah Keng (Deceased) [1990] 2 MLJ 237

The deceased was found dead in his house with a telephone wire around his neck. There was no clear cut
evidence to show the cause of his death i.e. whether he was murdered by his wife who had an affair or
whether it was pure suicide.
Issue: Whether the EA applies to an inquest?
Held: An inquest is an investigation as to the cause of death. A juridical proceeding is a trial to determine
rights and liabilities. At the end of a trial, the verdict is on liability. At the end of an inquest, it is cause of
death. An inquest is not a judicial proceeding under s.2 CPC. Consequently, the EA did not apply to it. The
witness could not rely on s.122 of EA (communication during marriage).

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Malaysia Building Society Bhd v Univein Sdn Bhd [2003] 5 MLJ 394 - affidavits
s.2 was considered in this case where Suriyadi J (as he then was) observed that there are 2 parts to s.2 of EA.
The first part ‘…to all judicial proceedings in or before any court’ depicts the application of the EA to all
judicial proceedings in any court. On the other hand, the second part ‘not to affidavits presented or
proceedings before an arbitrator’, shows situation in which the EA is not applicable.
A hearing would qualify as a judicial proceedings. Likewise, any affidavit tendered in court in the course of
a judicial proceeding is not subjected to the provisions in the EA.

 What is an affidavit?
o Statement in writing which is made under oath / affirmation (sworn statement in writing)
o Made before an authorized person = Commissioner for Oaths / Magistrate
o Person making an affidavit = deponent
o Affidavits may be tendered in evidence during judicial proceedings

* Note:
 Many civil proceedings can be disposed off based on affidavit evidence alone e.g. family law matters,
guardianship, interlocutory matter etc
o Advantages: saves time, cost and minimizes emotional stress
o Disadvantages: not tested under cross examination, no opportunity to see the demeanour only dead
letters
o Not appropriate for a judge to resolve conflicts of facts based on affidavit evidence
 Exception: O 14 ROC summary judgement application - if there is a conflict of facts, defendant
will be given leave to defend the whole claim or part of the claim as it may be, unconditionally
or conditionally as the court sees fit
 EA 1950 does not apply to affidavits but this does not mean that any affidavit cannot be tendered in
evidence. Although as a general rule, evidence before the court should be oral evidence given by witness
in open court. (See O 38 r 1 ROC / s 59 + s 60 EA)
o Exception:
 Affidavit evidence can be admitted under the provisions of the ROC under certain circumstances
= O 38 ROC
 Evidence in Chief can now be given by witness statements provided all parties agree and are
given copies = O 38 ROC
 Interlocutory applications
 Court has the power to order the affidavit of any witness to be read in court with discretion to
call him as a witness if necessary = O 38 r 2 ROC

 Although the EA expressly excludes affidavits from its operation, the rules of evidence / law of evidence
will continue to operate through procedural rules derived from other sources will apply to affidavits =
ROC + CPC etc
o Example: GR, no evidence of hearsay or opinion in affidavits = O 41 ROC
o Exception: Affidavits containing hearsay is allowed for interlocutory matters.

 Evidence of an inadmissible nature and cannot be tendered in court through the back door by way of
affidavits e.g. hearsay.
o A. Paul (pg 9) stated that the general rule is that an affidavit cannot be admitted if the deponent is
not called as a witness.

Marneedi Satyam v Venkateswani (1949) AIR (Mad) 689

If an affidavit is used at trial, the maker must be subject to cross examination unless section 32
applies.

o Exception: It falls under s 32 of EA 1950

 The Act does not apply to affidavits.

o Exception: s 32 + s 73A + s 91 + s 92 (judicial interpretations)
Citibank NA v Mohd Abdullah Ang Swee Kang [1992] 1 CLJ 116
An affidavit used in court proceedings cannot run foul of the Act in particular ss 91 or 92.

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PP v Forster [1988] 2 MLJ 594
The provision of section 32(1)(c) of the Act was considered. Edgar Joseph Jr J (as he then was):
“The first question which arose for decision, as regards this part of the case, was whether the
affidavit of a living person could come within the ambit and meaning of the word “statement” under
s 32. I was satisfied that it could provide that it compiled with the conditions laid down in the section:
see Marneedi v Venkataswami AIR 1949 Mad 689.”

 To what extent can reference be made to the Common Law?

o EA to take precedent over common law.

Rajapakse Pathurange Don Jayasena v R [1970] 1 All ER 219, PC

Lord Devlin:
“The common law is malleable to an extent that a code is not… The code embodied the old criminal law and
cannot be construed in the light of a decision that has changed the law.”

According to the PC, if the act is clear and unambiguous, no reference can be made to the common law.
Thus, if there is conflict between the two, EA will prevail while common law decisions merely serve as
valuable guides. However, if the Act is silent or fails to be explicit on any matter, then it may be open to the
court to seek the guidance from the common law, provided that it is not inconsistent with the EA. Upon the
meaning of particular words, common law decisions are of little or no assistance especially when those words
have been defined in the EA. Nevertheless, common law may be resorted to as an aid to interpretation where
the EA is silent.

PP v Yuvaraj [1969] 2 MLJ 89

Lord Diplock:
In Malaysia, as in India, the law of evidence has been embodied in a statutory code: the Evidence Ordinance.
In so far as any part of the law relating to evidence is expressly dealt with by that Ordinance the courts in
Malaysia must give effect to the relevant provisions of the Ordinance whether or not they differ from the
common law rule of evidence as applied by the English courts. But no enactment can be fully comprehensive.
It takes its place as part of the general corpus of the law. It is intended to be construed by lawyers, and upon
matters about which it is silent or fails to be explicit it is to be presumed that it was not the intention of the
legislature to depart from well-established principles of law.

In practice, local courts have made frequent reference to the common law. Hence, common law plays a
significant role in the law of evidence. However, it is also submitted that courts should seek answers in the
EA first and should only refer to common law where it is absolutely necessary, that is where there is an
ambiguity or lacuna.

FACTS

The law of evidence will determine which facts are admissible. Facts will then be applied to the law. Once
applied, the rights and liabilities of the parties can be determined.
Evidence will determine  Facts will be applied to  Laws will give rise to  Rights & liabilities
s.3 of EA “fact” means and includes-
(a) Any thing, state of things or relation of things capable of being perceived by the senses;
(b) Any mental condition of which any person is conscious;

s.5 of EA Evidence may be given of facts in issue and relevant facts

Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and
of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to
prove by the law relating to civil procedure.

Generally, there are 2 main types of facts:

1. Fact in issue = direct evidence
2. Relevant facts - fact relevant to fact in issue = circumstantial evidence
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Other facts which are not ‘fact in issue’ or ‘relevant facts’
1. Introductory facts - prelude to the putting in evidence of facts in issue or relevant facts
2. Collateral or subordinate facts
Facts that arise owing to the law of evidence and not on account of substantive law or pleadings.
Although not evidence of fact in issue or fact relevant but will still be allowed. 2 forms of collateral
facts:
a. Facts affecting the credibility of witness
s.146 of EA - a witness may be cross examined on any question which tends to
 Test his accuracy or veracity
 Discover who he is and what his position in life
 Shake his credit by injuring his character
b. Facts affecting the admissibility of evidence
Sometimes certain facts have to be proven before a piece of evidence is admissible. It may be said
that proving these facts are pre-conditions to the admissibility of the evidence.
s.32 of EA - hearsay
s.64(1)of EA - pre-conditions for admissibility of secondary evidence

CLASSIFICTION OF EVIDENCE

Evidence can be classified into the following categories:

1. Oral / Documentary Evidence

 Oral Evidence
 s.59 of EA - Proof of facts by oral evidence
 s.60 of EA - Oral evidence must be direct
 direct / indirect (hearsay) or opinion
 Documentary Evidence
 s.3 of EA - “document”
 primary evidence - original document
 secondary evidence - copy / oral evidence about its contents
 See also s.61 - s.100 EA

2. Direct / Circumstantial Evidence (i.e. Fact in Issue & Relevant Facts)

 This classification is concern with the principle or relevancy. The cornerstone of this principle in the
law of evidence on Malaysia is
s.5 of EA - Evidence may be given of facts in issue and relevant facts. It specifies facts which may
be given in evidence i.e. facts in issues and relevant facts
 Direct evidence i.e. fact in issue
o s 3 EA 1950: ‘fact in issue’
o Sir Rupert Cross: fact is issue are all those facts that :
a) a Plaintiff in civil action or a Prosecutor in criminal proceeding must establish in order to
succeed; and
b) any further facts that the Defendant / Accused must establish to rely on a defence.

How to determine what are the facts in issue? Whether a fact is in issue depends on:
o Substantive law - for example, in murder cases, substantive law refers to the AR and MR. Some
cases can be entirely on question of substantive law
o The state of pleadings in civil cases or the charge in criminal cases
o Admission and denials - whether the evidence of the fact in issue is asserted by one party and
denied by the other party

 Circumstantial evidence i.e. relevant facts

o s 3 EA 1950: ‘relevant fact’
o Sir Rupert Cross: Fact not itself in issue but from which the existence or non-existence of the
fact in issue may be inferred.
o Relevant facts - Facts which are not themselves in issues but from which the facts in issue or
other relevant facts may be inferred

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The relevancy provisions are in Part 1 Chapter 2 Relevancy of Fact, s.5 - s.55 of EA
o Declare ways in which one facts may be related to another so as to become relevant. Hence, to
find out what are ‘relevant facts’, refer to s.5 - s.55. If the fact sought to be proved is connected
to the facts in issue in any of the ways referred to in s.6 - s.55, then it is relevant and evidence
may be given of it provided the mode or proof is satisfied.

Evidence of relevant facts = circumstantial evidence

o Not direct evidence, but evidence of circumstances surrounding an event or offence from which
a fact in issue may be inferred.
o Evidence of a fact from which the judge will have to decide whether or not to infer the existence
or non-existence of the facts in issue i.e. indirect evidence of the fact in issue via relevant facts.

PP v Dato' Seri Anwar Ibrahim (No 3) [1999] 3 CLJ 313

The accused, the former Deputy Prime Minister and Minister of Finance, Malaysia, was charged with four
counts of corrupt practices under s. 2(1) of the Emergency (Essential Powers) Ordinance No. 22 of 1970
('the Ordinance'). In essence, the charges, as amended, alleged that the accused, while being a Member of
the administration, had unlawfully used his public position to his advantage, in that he had directed two
senior police officers to obtain four written statements from Azizan Abu Bakar ('Azizan') and Ummi Hafilda
Ali ('Ummi') denying their allegations of sexual misconduct and sodomy against him, and had by that saved
himself from embarrassment and from criminal proceedings in contravention of s. 2(1) of the Ordinance

Held: The truth or falsity of the allegations of sexual misconduct and sodomy is not a fact in issue. No
evidence can thus be led to establish that the allegations are true or false, as such evidence is irrelevant and
not admissible under ss. 5, 7, 8 and 9 of the Evidence Act 1950. Accordingly, the onus on the prosecution is
only to prove that Ummi and Azizan had made the allegations in P14A, B and C, and that the accused, while
being a Member of the administration, and in such capacity, had directed Dato' Mohd Said and Dato' Amir
Junus to obtain the denial letters with regard to the allegations and the advantage he obtained therefrom.
It was stated that the court has powers to exclude evidence which it considers to be irrelevant pursuant to
section 136 of the Act. However, it must be emphasised that section 136 only becomes operative upon the
witness taking an oath in the witness box and cannot be to pre-empt a witness from coming to court to give
evidence.

3. Original / Hearsay Evidence

 Prima facie evidence
 Original - anything not hearsay
 Hearsay - out of court statement, maker of the statement not in court (maker needed to prove the
truthfulness of the statement)
 S 60 EA 1950

BEST EVIDENCE RULE

The best evidence rule refers to the principle that the court admits the best evidence available.

The classic illustration of the rule can be found in Omychund v Barker [1745] 26 ER 15, 33
Lord Hardwick’s statement:
“the judges and sages of the law have laid down that there is but one general rule of evidence ,the best that
the nature of the case will admit”

The application of this rule gives rise to the question as to whether only the best evidence can be admitted,
excluding all other evidence. What is the distinction between admissibility and weight?
 Admissibility:  Weight:
If it is not the best evidence, it is not 2nd best can be admitted but will be given less
admissible weight

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Early approach:
R v Quinn & Bloom [1962] 2 QB 245
The prosecution arose out of a striptease performances allege to be conducted on the premises where the
appellants carried on their business as club proprietors. One of the exhibits was a reconstruction of the
striptease performance.
Held: The film was a reconstruction of the alleged crimes. Its exhibition was properly rejected as it is
inadmissible as it was not the best evidence.

Current law:
Kajala v Noble [1982] 75 Cr App Rep 149, CA
The facts were that the appellant was convicted of using threatening behavior. Only a copy of a video-
cassette showed the appellant behaving in threatening manner was admitted in evidence. The original was
in the possession of BBC, who as a matter of policy did not allow the originals to leave their premises.
Held: The best evidence rule no longer apply and is only limited to written documents and had no application
to modern forms of recordings. The court is not confined to the best evidence but could admit all relevant
evidence. The goodness and badness of it went to weight and not admissibility. Accordingly, the prosecution
was entitled to rely on the copy which the justices were satisfied was an authentic copy of the original film.

Malaysian Cases:
PP v Lim Kuan Hock [1976] 2 MLJ 114
The accused along with another person, K was charged with committing a robbery. The accused claimed the
defence of alibi. He called a witness who testified that he was with her at work. The accused failed to produce
the best evidence i.e. K who has already been convicted and was identified by the accused in court.
Issue: Whether the evidence given by the accused in relation to his defence of alibi was the best evidence?
Held: Although the best evidence was not produce or tested, the court admitted the testimony of a co-worker
who testified that on the day of the offence was allege to have been committed, the accused was at work.
But in weighting the credibility of the evidence, it was weak and therefore a conviction was warranted.

Application of best evidence rule with regard to documentary evidence:

KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627
Admissibility of summary accounts which was tendered as proof that the appellant had owed the respondent
a sum of money for works completed. The summary of accounts was taken from the respondent’s record
book but the respondent was unable to produce the book in court as he claimed that he did not know about
its whereabouts due to long lapse of time.
Held: s.64 of EA provides the general rule that proof of the contents of documents must be primary evidence
unless the party seeking to tender the secondary evidence can satisfy one of the situations on s.65(1) of EA.
Secondary evidence rejected as the respondent had not proved any of the circumstances in s.65(1).

Computer evidence:
s 90A EA 1950 allows computer print outs to be used in evidence thought they may not strictly qualify as
primary or secondary evidence.

Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, CA

The Court of Appeal asserted that section 90A was enacted to bring the realities of the electronic age. And
the court held that it was no longer necessary to call the actual teller or bank clerk who keyed in the date to
come to court provided he did so in the cause of the ordinary use of the computer.

The best evidence rule is necessary to avoid forgery, malpractices or significant chance of error or fraud.
Thus, court should not ordinarily give high probative value when objections are taken in instances where by
statute the evidence is admissible as of right.
PP v Nolose Albert Raleshome [2014] 6 MLRA 455
The Federal Court was of the view that the oral testimony of the chemist would constitute the best evidence
where the words in her chemist report could give rise to two possible interpretation.

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ADMISSIBILITY & WEIGHT

Briefly, there are 3 lines of defence to challenged evidence.

 Relevancy - Only if it is a fact in issues or fact relevant otherwise, it will be rejected

 Admissibility - Rules of evidence or exclusionary rules of evidence

It is a question of law - Whether evidence may be tender on a fact in issue, or relevant fact, or collateral
fact. Evidence which is admissible may be relevant to the issues or relevant to the collateral matters

Example: Hearsay & bad character - rules of evidence not satisfied (facts will be rejected)

* Note: exception under hearsay

 Weight of evidence - Credibility

Generally, a question of fact - The value given to evidence which is admitted
The value or weight that is given to the evidence by the trier of fact i.e. judge

Example:
s.157 - Admissibility of former statements in order to corroborate the testimony of a witness (rules of
corroboration have to do with weight then on admissibility of evidence)
s.90B - Weight to be given to documents produced by computers
s.158 - Weight to be given to statements admitted under s.32 and s.33
s.146(c) - Cross-examination (attack on credibility of witness)
s.73A(6) - Weight to be given to documents admitted under s.73A

Admissibility is a question of law and appellate courts are more likely to intervene in there is an error.
Appellate courts are reluctant to intervene where the issue is whether the trial judge has correctly weight
the evidence as it is a trial judge who observes first-hand the demeanour or the witness and the manners
in which the evidence is given.

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