Introduction

Evidence Act 1950 is modelled after the Indian Evidence Enactment 1872 that codified the
common law of evidence (Looi Wooi Saik v PP)
As the Evidence Act is not a comprehensive Code, the Malaysian law of evidence is
complemented by other sources of law.
- Common law:
- If the Evidence Act specifically defines and provides a certain proposition of
law, reference to the common law is not allowed.
- Saminathan v PP: English decisions serve as valuable guides and indeed
are binding where the English law has been followed in the Act, but
such decisions are of little assistance when those words have been
specifically defined in the Act.
- The acceptance of a rule or principle derived from English law is not
permissible if it changes, varies or denies the true and actual meaning of the
statute.
- PP v Yuvaraj: Courts must give effect to the relevant provisions of the
Act, whether or not they differ from the common law.
- Where the Act is silent on a particular matter, principles of common law may
be resorted to provided that the cut-off date under Sec. 3 & 5 of the Civil Law
Act is observed.
- Ghouse bin Haji Kader Mustan v R: For matters in which the Act is silent,
the Act must be construed in light of its common law background.
- Indian decisions:
- Khalid Panjang v PP: If a court is discussing a provision which is in pari materia
with a provision in the Indian statute, a decision of the Indian court is binding.
- Dorai Manickam v R: If the Act is clear, it would be wrong to look to Indian
authorities to supplement or restrict the natural meaning of the provisions.
- Other jurisdictions:
- Ghouse bin Haji Kader Mustan v R: Although the decisions of courts of other
jurisdictions (e.g: East African decisions) are not binding on Malaysian courts,
they remain persuasive in nature.
Extent of application of the Evidence Act:
- The Act does not apply in a preliminary inquiry or inquest
- A process performed by the magistrate to determine the cause of death.
- PP v Shanmugam: The duty of the magistrate is to inquire when, where how
and after what manner the deceased came by his death, and whether any
person was criminally concerned in the cause of death.
- Re Loh Kah Kheng: It is not a legal proceeding, but only a judicial proceeding in
which the Act does not apply.
- The magistrate is not bound to follow the strict law of evidence in the process.
 - The Act does not apply in the Syariah courts
- Initially, the court in Ainan v Syed Abu Bakar ruled that the Evidence Act applies
to all inhabitants regardless of race or religion.
- However, where it has been established that Syariah matters is a State matter,
the Syariah Evidence Enactment of each State applies accordingly where the
proceeding takes place in the Syariah courts.
- Any form of lacuna in the Syariah evidence law will cause reference to be made
to hukum syarak.
- The Act does not apply to affidavits
- Riedel-de Haen Ali v Liew Keng Pang: The Act does not apply in respect to
affidavits presented to any court or officer.
- However, an affidavit may be admissible in evidence as a statement if it is
capable of being regarded as a statement in writing in compliance with the
conditions prescribed by Sec. 32 (statement of relevant fact by a dead person)
‘Evidence’
- Derived from “evident evideria”
- Literally: To show clearly; to prove.
- Something which tends to prove the existence or non-existence of some fact.
- It includes the use of:
- Testimony
- Exhibits
- Documentary evidence
- PP v Sanassi: Evidence signifies only the instruments by means of which relevant facts
are brought before the court by witnesses and documents.
‘Law of evidence’
- Derived from “lex fori”
- Evidence shall be governed by the law of the place where the dispute arises
- Comprises of rules governing the presentation of information concerning facts in
dispute and proof in proceedings before a court
- Rules governing the relevancy and admissibility of evidence
- Sets out how parties to a dispute are required to convince the court of the existence
of a state of facts
Concepts
‘Relevancy’: The degree of connection between a fact that is given in evidence and the issue
to be proved (question of law)
Sec. 5: Only relevant facts can be produced as evidence.
- A fact is said to be relevant when it is connected with another fact so as to make the
other more or less probable (Sec. 3)
- E.g: In crime, facts that can prove intention and motive would make its relevancy more
probable.
Relevancy of evidence can be divided into:
- Logical relevance: Evidence that has the tendency to make a material fact more or
less probable than it would be without the evidence
- A fact that has the tendency to make another fact more or less probable
through logical deductions.
- In order to determine the logical relevancy of evidence:
- Step 1: Review the substantive law
- Look into its pleadings or allegations depending on whether it is
a civil or criminal case
- Step 2: Determine whether the evidence tendered bears a logical
relation to any fact as a consequence of the logical deductions
- Legal relevance: Evidence where the probative value (degree of believability) of the
evidence outweighs its prejudicial effect (probative danger; unfairness created by the
fact)
- In order to determine the legal relevancy of evidence:
- Step 1: Assess its probative value
- Probative value is determined by looking at the time the offence
is committed, how remote it is to the facts in issue and its
connection to the surrounding circumstances.
- Step 2: Identify its prejudicial effect
- If a fact can produce many inferences, there is prejudicial effect.
- If a fact cannot be disputed, there is no prejudicial effect.
- Step 3: Balance its probative value against its prejudicial effect
- Evidence is legally relevant and admissible only when its
probative value substantially outweighs its prejudicial effect.
- The outcome is dependent on the judge’s discretion.
- The court will only admit evidence that is legally relevant
- Legally relevant evidence must be logically relevant, but not vice versa
- E.g: Hearsay evidence is inadmissible as it is logically relevant, but not legally
relevant.
‘Admissibility’: Evidence the judge finds useful in helping prove or disprove a fact and admits
in court (question of law)
- All admissible facts are relevant, but not all relevant facts are admissible.
- Relevancy is a precondition to admissibility of evidence
- Evidence must be proven to be relevant first before it can be admissible.
- Thavanathan Balasubramaniam v PP: All evidence which is sufficiently
relevant to the facts in issue is admissible.
- Once evidence is admitted, it cannot be rendered inadmissible on another
ground.
- Sec. 136(1): The court may inquire any party into the relevancy of the evidence
tendered and shall admit it if it is proven to be relevant.
- Sec. 165: The court may question witnesses or parties as to the relevancy of evidence.
‘Weight’: The strength, value and believability of evidence presented on a factual issue by one
party as compared to evidence introduced by the other party (question of fact)
- An assessment of the probative value which admissible evidence has in relation to the
facts in issue, also known as sufficiency of proof.
- Can only be done once evidence has been rendered relevant and admissible.
- It is a question of fact to be determined based on the circumstances of each case.
- The court will look into the
- Type of evidence
- Quality of evidence
- Demeanour of witnesses
- Evidence which carries more convincing and probable truth bears more weight
upon the case.
Relevancy and weight of evidence are distinct matters:

- R v A: A woman who was living in the same flat with her boyfriend and the accused, a
friend, had allegedly been raped by the accused along a riverbank. The accused alleged
that the intercourse was consensual as the pair had supposedly been having an affair.
The issue was in regards to the tendering of two forms of evidence:
- Evidence of sexual history with other men
- Irrelevant to the issue whether the victim consented to sexual
intercourse on the occasion alleged in the indictment or to her
credibility, thus bearing no weight on the case.
- Evidence of sexual history with the accused
- Though it is logically relevant to the issue, it cannot prove that the
victim consented to the rape in question.
- Relevance and sufficiency of proof are different things.
- To be relevant the evidence need merely have some tendency
in logic and common sense to advance the proposition in issue.
- Although the evidence is relevant and admissible, it is not sufficient to
prove that that the victim consented to the sexual intercourse merely
because of a supposed sexual history with the accused.
Distinction between concepts:
- Relevant evidence are facts that makes the existence or non-existence of another fact
more or less probable.
- Admissible evidence is evidence that is legally relevant in proving or disproving a fact.
- Inadmissible evidence is evidence that cannot be considered by the court.
- Weight of evidence is the satisfaction of evidence that has been admitted to a
standard determined by the judge.
‘Fact’:
- External/Physical facts: Any thing, state of things or relation of things capable of being
perceived by the senses.
- Internal/Psychological facts: Any mental condition of which any person is conscious.
‘Fact in issue’:
- Facts which parties are disputing, necessary to establish claims, liability, and defences.
- Do not exist in isolation; are preceded by other facts which makes it more or
less probable.
- In criminal cases: It is the ingredient of the offence that must be proved found in the
charge.
- In civil cases: It can only be pointed out by the court after considering the pleadings
filed by the parties.

PP v Yuvaraj: The degree of probability of the existence or non-existence of a fact which is

required in order for it to be ‘proved’ or ‘disproved’ depends upon the nature of the
proceedings and what will be the consequence in those proceedings of a finding that a fact is
‘proved’ or ‘disproved’.
- In a civil case: The determination of the suit in favour of one party on a balance of
probabilities.
- In a criminal case: The conviction of the accused beyond reasonable doubt.
‘Proved’: A fact is said to be proved when
- After considering the matters before it, the court believes it to exist, or
- Its existence is so probable that a prudent man ought, under the circumstances of the
case, to act upon the supposition that it exists.
‘Disproved’: A fact is said to be disproved when
- After considering the matters before it, the court believes that it does not exist, or
- Its non-existence is so probable that a prudent man ought, under the circumstances
of the case, to act upon the supposition that it does not exist.
‘Not proved’: A fact is said to be not proved when
- The court does not believe that the fact does or does not exist, or
- A prudent man does not believe that its existence or non-existence is probable.
Classification of evidence:
Oral and Documentary evidence:
- Oral evidence/Testimony
- Sec. 59: All facts, except for the contents of documents, may be proved by oral
evidence.
- Contents of documents can only be proved by presenting the
document itself before the court
- Evidence offered by a competent witness under oath, which is used to
establish some fact or set of facts.
- A witness who has been subpoenaed must testify, if not he will be guilty
for contempt of court
- Sec. 60: All oral evidence must be direct in that it must relate with what the
witness knows through the use of his own sense
- A witness must testify based on what he knows, his perception or
opinion
- Oral evidence that is not direct is hearsay evidence, and thus
inadmissible

- Documentary evidence
- Any evidence introduced at a trial in the form of documents.
- Sec. 3: Any matter embodied in a disc, tape, film, sound track.
- Documents include all material substance on which the thoughts of man are
represented by writing, marks, or symbols.
- Tape recording (Mohd Ali Jaafar v PP)
- Facsimile letter (Tempil Perkakas Sdn. Bhd. v Foo Sex Hong)
- The display on a video display unit and the printout (Gnanasegaran
Pararajasingam v PP)
- If a document is tendered not to prove its content, but to prove something
else, it is not documentary evidence.
- If a document is tendered to prove motive through its contents, it is
documentary evidence.
Direct and Circumstantial evidence:
- Direct evidence
- Evidence from which the court does not need to draw an inference
- Sec. 60: Evidence proved either by its actual production, or by the testimony
of a witness who has himself perceived it.
- A fact which could be seen, heard, or perceived, or an opinion
- The provision disallows the admissibility of any hearsay evidence
- Sec. 5: Evidence which may directly prove facts in issue
 - Circumstantial evidence/Presumptive evidence
- Evidence from which the judge may infer the existence of a fact in issue.
- Facts proved by inference or presumption from circumstances
surrounding it, not from direct observation
- A series of facts, which when examined as a whole, and not
individually, can determine the liability or non-liability of a party.

- All circumstantial evidence must be direct as under Sec. 60

- For cases based purely on circumstantial evidence: All circumstantial evidence
tendered must be capable of leading to one irresistible conclusion.
- Sunny Ang v PP: Where the accused was charged and convicted of the
murder of his girlfriend despite the fact that the body of the deceased
was never discovered.
- The irresistible conclusion test is where no other conclusion can
be arrived at despite there only being circumstantial evidence.
- Mokhtar Hashim v PP: The test of beyond reasonable doubt is
equivalent to that of the irresistible conclusion.
- Where the circumstantial evidence, when looked at as a whole,
can only produce one conclusion, thus the accused has been
proven to be guilty beyond reasonable doubt.
Original (direct) and Hearsay evidence:
- Hearsay evidence
- An out-of-court statement repeated in court by a witness who is not the maker
of the statement as evidence to prove the truth of the matter asserted.
- It is inadmissible in court as its prejudicial effect outweighs its probative value
- The statement repeated by the witness in court could be concocted,
fabricated and tailored to suit the witness’ testimony.
- It is hearsay and inadmissible only when the object of the evidence is to
establish the truth of what is contained in the statement.
- It is not hearsay and admissible when it is proposed to establish:
- That the statement was made
- The state of mind of the person who made the statement
- E.g: Where the evidence is used to prove that the person who made
the statement was still alive at that particular time.
Best evidence rule:
- No evidence is admissible unless it is “the best proof that the nature of the case will
allow” (Omychund v Barker)
- If there exists two ways of proving a matter, the more cogent method must be
adopted.
- E.g: Circumstantial evidence should not be adduced if direct evidence is
available
- Garton v Hunter: Secondary evidence is only admissible when the party is
unable to produce primary evidence (best evidence). Thus, if an original
document is available in one’s hands, one must produce it.

- How Chien v PP: The appellant’s conviction for smuggling 40 packets of cigarettes was
quashed due to the prosecution’s failure to produce the smuggled objects themselves.
- Chow Siew Woh v PP: The appellant’s conviction for murder was quashed as the
victim’s dying declaration, which was the best available evidence, revealing the
murderer’s name was not adduced in court.

- Incorporation of the rule in Sec. 64: Documents must be proved by primary evidence.
- KPM Khidmat Sdn Bhd v Tey Kim Suie: So long as the original exists and is
available, it being the best evidence, must be produced. If it cannot be had on
account of its loss, destruction, detention by the opponent, or third person
who does not produce it after notice, physical or legal irremovable, or any
other cause, secondary evidence is admissible.

- As under Sec. 5, even though the tendering of the best evidence is not necessarily
required as long as relevant evidence is available, non-tendering of the best evidence
could be fatal to a case.
- Sec. 114(g): Failure to apply the best evidence rule may cause the court to produce an
adverse (unfavourable) presumption against the counsel or party.
Sec. 5: General relevancy provision
- Evidence may be given of
- Facts in issue
- Relevant facts (which relate to the facts in issue)
In order to admit any fact as evidence, it must be receivable under the Evidence Act or by
virtue of a specific provision in any other Act (PP v Haji Kassim).
If the evidence is relevant, it can be admitted regardless of how it was obtained.
- The court is not concerned as to
- When the evidence was obtained
- Whether the evidence was illegally obtained
- However, the court has the discretion to exclude relevant evidence, especially if the
strict rules of admissibility work unfairly against the opposing party/ the accused.
 - Kuruma v R: The accused was charged with unlawful possession of ammunition, and
the court admitted evidence that was obtained illegally as a result of a body search
done by police below the permissible rank.
- R v Sang: The accused were charged with conspiracy to forge bank notes and
possession of such notes. The evidence obtained by the police, despite the offence
being committed by way of entrapment (inducement by a police officer), was
admissible as long as it was relevant.
- If the prejudicial effect of illegally obtained evidence outweighs the probative value,
the court can exercise the discretion to not admit such evidence.
Facts declared relevant:
- Sec. 136(1): The court has the discretion to question the relevancy of the evidence
tendered and exclude it if it is found to be irrelevant.
- PP v Dato’ Seri Anwar Ibrahim (No 3): Where the accused was charged for corrupt
practices, the attempt to call certain witnesses in order to prove political conspiracy
was refused as evidence on conspiracy is irrelevant due to its political nature.
- If it is the duty of the judge to admit all relevant evidence, it is no less his duty
to exclude all irrelevant evidence.
Burden of proof:
- Two distinct meanings:
- Sec. 101 (Legal burden): The burden of establishing a case
- The party that alleges a claim has the burden of proving such allegation.
- In a criminal case: The burden of proof lies on the prosecution alleging
that a crime has been committed.
- In a civil case: The burden of proof lies on the plaintiff making an
allegation of a civil wrong against the defendant.
- E.g: The failure of the prosecution alleging a crime to adduce sufficient
evidence in support of a fact in issue constitutes a failure to discharge
his legal burden.
- Sec. 102 (Evidential burden): The burden of introducing evidence
- The burden of proof lies on the person who would fail if no evidence at
all were given on either side.
- E.g: An accused will discharge his evidential burden by casting a doubt
on the prosecution’s case.
Standard of proof: Quantum of proof required
- In a criminal case: Beyond reasonable doubt
- In a civil case: On the balance of probabilities
Facts that need not be proved (where a burden of proof is not imposed):

- Sec. 56 & 57: Facts which the courts have given judicial notice
- Sec. 58: Facts which the parties (in a civil suit) have agreed to admit