EVIDENCE LAW I
denies the true and actual meaning of the statute.
CHAPTER ONE : INTRODUCTION TO EVIDENCE LAW
Historical Development
Malaysian Evidence Act 1950 is based on the Indian
Evidence Act 1872 which is the codified form of the
English law.
Case : Looi Wooi Saik v Public Prosecutor
The court held that Malaysia is governed by
Evidence Ordinance which is based on Indian
Evidence Act. Indian Evidence Act was drafted by Sir
James Stephen, with the intention of codifying
English law.
Sources of Law of Evidence in Malaysia
1. The Evidence Act 1950
The sources of evidence law in Malaysia is embodied
in the Evidence Act 1950. It should be noted that the
Illustrations in the Evidence Act need not be applied
strictly. As the Evidence Act is not a comprehensive
code, the Malaysian Law of Evidence is
complemented by other sources of law.n
2. Common Law
The general rule is that the Act must not be
construed against the background of the common
law because the Act has its origin from the common
law.
Case : Ghouse Bin Haji Kader Mustan v R
The court held that the Evidence Ordinace must be
construed in relation to its background, the common
law.
Principles of English Laws have for many years been
accepted in the Malay States where no other
provision has been made by statute. Therefore, only
common law and rules of equity (and in Sabah and
Sarawak, English statutes of general application)
existing in England on the dates specified in Section
3(1) can be applied to fill the lacunae in local law.
The application of Section 3(1) of the Civil Law Act
1956 in relation to evidence law were reflected in
several cases.
Case : Saminathan & Ors 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.
Case : Mahomed Syedol Ariffin v Yeoh Ooi Gark
The view of their Lordship was that the rule and
principle of the colony must be accepted as it is
found in its own Evidence Ordinance and the
acceptance of a rule or principle derived from the
English Law, is not permissible if it changes, varies or
Case : PP v Yuvaraj
Court must give effect to the express provision of
the EA even if it differs from the common law rule of
evidence.
Case : Jayasena v R
The court also confirmed that where the Act
embodies a rule of evidence which is subsequently
changed in an English decision, the rule in the act
cannot be construed in the light changes in that
decision.
3. Indian Decisions
Indian decisions may also be referred especially if
they relate to the interpretations of a statutory
provision which is the same as that in Malaysia. If a
court in Malaysia is discussing a section in an Indian
statute which is word for word the same as the local
statute, a decision of the Indian court is not binding
but persuasive on the Malaysian court.
Case : Meelamchan & Anor v PP
The court held that a decision of Indian court is not
binding on this court; but if it relates to the
interpretation of a statutory provision which is the
same in India and in this country, such a judgment is
entitled to the very highest degree of respect.
Where the act is clear, it would be wrong to look to
Indian authorities for the purpose of supplementing
or restricting the natural meaning of the provisions
of the Act.
Case : Khalid Panjang v PP
If a court in Malaysia is discussing a section which is
in pari materia with a provision in the Indian Statute,
a decision of the Indian Court is binding on the
Malaysian court.
Case : Dorai Manickam v R
Where the act is clear, it would be wrong to look to
Indian authorities for the purpose of supplementing
or restricting the natural meaning of the provisions
of the act.
Case : Chandrasekaran & Ors v PP
In this case, the court had to decide whether the
relevancy and admissibility of a type writing as
evidence to show that a specific typewriter had
been used to prepare the specific document could
fall within the definition of “science or art” in order
to allow for opinion evidence on typewriters to be
admissible. The trial court referred to an indian
decision where it was held that the admissibility of a
typewriting as evidence was not a matter of science
or art within the meaning of Section 45 of the EA.
This decision was however not followed when it
went to appeal.
4. Decision of Other Jurisdictions
Decisions of other jurisdictions such as other
Commonwealth countries were also regularly
referred by the Malaysian courts. These decisions
were of persuasive effect.
Case : Ghouse Bin Haji Kader Mustan v R
The court referred to the East African decisions and
held that those cases are of course not binding on
the Malaysian court but they are entitled to great
respect.
Functions of the Evidence Act 1950
- The primary functions of Evidence Act 1950 is to
define relevancy and state what relevant facts of
which may be given.
- It also states what kind of proof is to be given of
those relevant facts and by whom and in what
manner evidence is to be given.
- Section 2 of the Evidence Act 1950 states that the
Act shall apply to all judicial proceedings in or before
any court but does not apply to affidavits presented
to any court or officer nor to proceedings before an
arbitrator.
The Extent of Application of the Evidence Act 1950
- The Evidence Act 1950 has not defined the phrase
‘judicial proceedings.’ The phrase is however
defined in Section 2 of the Criminal Procedure Code
where judicial proceedings means any proceeding in
the course of which evidence is or may be legally
taken.
- The word ‘court’ is defined in Section 3 of the
Evidence Act 1950 where it states that ‘court’ means
a court established by or under Part IX of the Federal
Constitution and includes a Judge; a Sessions Court
Judge; a Magistrate; and except an arbitrator, every
person legally authorized to take evidence.
- Section 3 expressly excludes an arbitrator from the
definition of the word ‘court.’ Thus, the Evidence Act
1950 is not intended to apply to proceedings before
an arbitrator and an arbitrator is not bound by the
strict rules of evidence.
Arbitration and arbitration proceedings : Section 3
expressly excludes an arbitrator from the definition
of word court.
Syariah Court : it has been established that syariah
mattters is a state matter, the syariah evidence
enactment of each state applies accordingly where
the proceedings takes place in syariah court.
Inquest or inquiry : process performed by magistrate
to determine cause of death.
Administrative decision making process : consumer
tribunals, labour tribunals, and in house disciplinary
inquiry are not bound by the EA.
Scope of the Evidence Act 1950
It must also be noted that the Act cannot override
specific provisions of other statutes.
Case : Koh Hor Khoon v R
The court held that general provisions contained in
Section 2 and Section 31 of the Evidence Ordinance
cannot overrule the specific provisions for
procedure to govern the public examination of a
bankrupt laid down in Section 17 of the Bankruptcy
Ordinance.
The Act also applies to persons of all races and
religions in the country.
Case : Ainan Bin Mahmud v Syed Abu Bakar Bin
Habib Yusof
The court held that the Evidence Enactment is a
statute of general application and all the inhabitants
of the Federated Malays States are subject to its
provisions, whatever may be their race or religion.
Functions of Illustration
- The illustrations appearing in the various sections
of the Act; they are of relevance and of value in the
case of construction of the text only.
- They are not an exhaustive explanation of the
operation of the section but may act as useful guides
to the meaning of the section.
Case : Mahomed Syedol Ariffin v Yeoh Ooi Gark
The court was of the opinion that in the construction
of the Evidence Ordinance, it is the duty of the court
of law to accept the illustrations given as being both
as relevance and of value in the construction of the
text. The court also affirmed that the great
usefulness of the illustrations, which have been
expressly furnished by the legislature as helpful in
the working and application of the statute, should
not be impaired.
Case : Munah Bt Ali v PP
Four Great Canons of Evidence
a. The Hearsay Rule
b. The Opinion Evidence Rule
c. The Rule Against Prior Consistent Statements
d. The Rule Against Admissibility of Similar Facts
Evidence
Definition of Concept and Terms in Evidence
1. Evidence
- The word evidence is derived from the Latin word
‘evident evideria’ which means to show clearly; to
make clear; to discover clearly; to make plainly
certain; to ascertain or to prove.
- Section 3 of the Evidence Act 1950 defines
evidence to include:
 oral evidence;
 documentary evidence.
 bars.
The definition in Section 3 of the Evidence Act 1950
uses the word ‘includes.’ Thus, it is not exhaustive
and it may also include real evidence for example
the murder weapon or any substance tendered as
exhibits. Therefore, evidence can be that which
tends to prove the existence or non existence of
some fact where it may consist of oral evidence (in
the form of testimony), documentary evidence (may
include tape, photographs, written documents and
etc) or real evidence (may be admitted as exhibits).
WM Best in his book defined evidence as ‘any
matter of fact, the effect, tendency, or design of
which is to produce in the mind a persuasion,
affirmative or dissafirmative, of the existence of
some other matter of fact.’
Case : PP v Sanasi
Evidence signifies only the instruments by means of
which relevant facts are brought before the court by
witnesses and documents.
2. Law of Evidence
The law of evidence comprises all the rules
governing the presentation of facts and proof in
proceedings before a court, including in particular,
the rules governing the relevancy and admissibility
of evidence. It also inexplain the the exclusionary
rules to such relevancy and admissibility of
evidence.
The law of evidence also sets out how parties to a
dispute are required to convince the court of the
existence of a state of facts, which according to
provisions of the substantive law, would establish
the existence of rights or liabilities, which the parties
allege to exist.
The law of evidence is based on the maxim lex fori,
which means that the evidence shall be governed by
the law of the place where the dispute arises. This
principle was set out in Bain v White Lever &
Furness Function Railway Co. 3 (HL) where Lord
Birmingham observed:
The law of evidence is the ‘lex fori’ which governs
the court. Whether a witness is competent or not,
whether a certain matter requires to be proved by
writing or not, whether a certain evidence proves a
certain fact or not, that is to be determined by the
law of the country where the question arises, where
the remedy is sought to be enforced and where the
court sits to enforce it.
The law of the forum always governs matters of
procedure, the mode of trial, ost matters relating to
evidence, the nature of the remedy available, and
most matters of limitation of actions based on time
3. Facts
Section 3 of the Evidence act 1950 define fact as
anything or any state of thing capable of being
perceived by senses or any mental condition of any
conscious person. For example, a man heard or saw
something or said certain words, or holds a ceratin
opinion or intention or has a certain reputation is a
fact.
Fact can be divided into physical or psychological
fact. The physical fact is perceived by senses and
psychological fact is only a mental condition of a
person.
Fact can be further divided into fact in issue and
relevant fact.
4. Facts in Issue
Section 3 provides that fact in issue means any fact
from which, either by itself or in connection with
other facts, the existence, non-existence, nature or
extent of any right, liability or disability asserted or
denied in any suit or proceeding necessarily follows.
In simple explanation, fact in issue is the disputed
fact or facts, which need to be proved by the parties
in the proceeding.
For example, A is charged with a rape of B (a 17
years old girl). The prosecution as a matter of law
must prove the following facts: a) Sexual intercourse
by A to B; (b) B does not consent with the sexual
intercourse. The prosecution need to prove these
facts and unless and until these facts are proved, the
accused cannot be convicted.
Civil : Whether def name is/are liable for breach of
contract/defamation/etc
Criminal : Whether accused/s is/are guilty of offence
of ….
Facts - anything perceived by the witness, its
admissibility by EA based on whether or not the fact
is relevant.
Facts in issue - substantive law
Case : 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.
5. Relevant fact
Section 3 of the Evidence Act 1950 defines relevant
as one fact is said to be relevant to another when
the one is connected with the other in any of the
ways referred to in the provisions of this Act relating
to the relevance of facts.
Under the Evidence Act 1950, relevant fact are those
mentioned in Section 6 to Section 55. For example, if
A is charged with the murder of B; the fact that he
has motive to kill B and also to opportunity to kill B
are relevant facts for the prosecution.
6. Relevancy and admissibility
Relevancy refers to the degree of connection
between a fact that is given in evidence and the
issue to be proved. Generally, when a fact is relevant,
it is admissible. However, in several instances where
a fact is relevant, it need not necessarily mean that
the fact will be admissible because whether a
relevant fact is or is not admissible is subject to
other provisions of the Act. For example, a fact may
be relevant but because it is hearsay, it is not
admissible. Another example is when a fact may
become relevant but because the fact is one which
is privilleged, the court has no power to make it
admissible.
As discussed above, if the evidence is relevant, the
court must admit it. Thus, the court is not concerned
with how the evidence was obtained. Even if the
evidence is illegally obtained, it is still admissible
provided that the evidence is admissible. However,
the court has discretion to make relevant evidence
inadmissible, for instance, in criminal case, where
the evidence would operate unfairly against the
accused.
Case : Kuruma v The Queen
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 the police below the permissible rank.
Case : R v Sang
The accused was 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 was
admissible as long as it was relevant.
Section 136 of the Evidence Act 1950 provides that
the court may ask any party proposing to give
evidence in what manner the alleged fact, if proved,
would be relevant; and the court also shall admit
evidence if it thinks that the fact, if proved, would be
relevant.
On the other hand, Section 165 provides that the
court have power to put any questions as he pleases
to any witness or of the party, at any time of in any
form or order production of any documents in order
to discover or obtain proper proof of any relevant
facts. Thus, relevancy and admissibility is a question
of law.
7. Weight
Weight in the context of law of evidence means the
relative importance the court gives to relevant and
admissible evidence. It refers to the assessment of
the value / quality / probative of the evidence.
Once evidence is admitted, the court has to decide
how much weight or probative force does the
evidence carries. This depends on many factors for
example, type of the evidence, its quality, the
demeanor of witnesses and also other evidences
available before the court. Thus, assessment of
weight is a question of fact which an appellate court
will seldomly interfere.
Case : PP v Dato Seri Anwar Ibrahim
Federal Court concluded that the delay in lodging
the police report was not in itself fatal or created
any suspicion about the truthfulness of the evidence
as a prompt lodging of the report may be no
guarantee for it being wholly truthful.
8. Proved, Disproved and Not Proved
Section 3 of the Evidence Act 1950 provides that a
fact is said to be proved when, after considering the
matters before it, the court either believes it to exist
or consider its existence so probable that a prudent
man ought, under the circumstances of the
particular case, to act upon the supposition that it
exist.
A fact is said to be disproved when, after considering
the matters before it, the court either believes that
it does not exist or considers its non-existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it does not exist.
A fact is said to be not proved when it is neither
proved nor disproved.
Case : PP v Yuvaraj
The court was of the view that the definitions of the
word ‘proved’, ‘disproved’ and ‘not proved’ in the
Evidence Act 1950 do not attempt to spell out
explicitly the degree of probability for which a
prudent man ought to look before he acts on the
supposition that a fact does or does not exist. The
court went on to say that if the consequence is the
determination of a civil suit in favour of one party,
then a balance of probabilities is all that is necessary.
However, in criminal proceedings, if the
consequence of a finding that a particular fact is
proved will be the conviction of the accused, then
the degree of probability must be so high as to
exclude any reasonable doubt that the fact exist.
9. Burden of Proof
Burden of proof may have two distinct meaning,
namely, the burden of establishing a case (legal
burden) and the burden of introducing evidence
(evidential burden).
Section 101 of the Evidence Act 1950 deals with
legal burden while Section 102 deals with evidential
burden. However, it must be noted that there is no
reference made to such terms in the Evidence Act
1950 where in the Act reference are only made to
the meaning of proved, disproved and not proved in
Section 3.
Case : International Times & Ors v Leong Ho Yuen
The court has made a clear distinction between legal
burden and evidential burden. The court held that
the expression burden of proof referred to in
Section 101 is the burden of establishing a case and
this rests throughout the trial on the party who
asserts facts in issue. The second expression (always
referred to onus of proof), on the other hand,
relates to 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 the trial from one side to the other
depending on the scale of evidence and other
preponderates.
Therefore, 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. If the party on whom the burden
lies fails to discharge it, the other party need not call
any evidence.
On the other hand, evidential burden can be
discharged by cross-examination of witness of the
party on whom burden of proof lies or calling
witnesses or giving any other evidence; or the
combination of the different methods.
10. Standard of proof
The standard of proof refers to quantum of proof. In
criminal case, the prosecution needs to prove a case
on a standard of beyond a reasonable doubt.
Case : Miller v Minister of Pensions
The court held that the term ‘beyond reasonable
doubt’ should not be confused with ‘beyond a
shadow of doubt.’ Although it is a high degree of
probability, it need not reach certainty. The question
whether the charges made against the accused have
been proved beyond all reasonable doubt must
depend upon facts and circumstances of the case.
While it is prosecution’s duty to prove the case
beyond a reasonable doubt, the accused has to
merely cast a reasonable doubt.
In civil cases, the plaintiff will have the legal burden
to prove the case on a balance of probabilities while
the defendant assumes the evidential burden to
raise sufficient evidence.
The term balance of probabilities was also referred
in Miller v Minister of Pensions so as to mean a
probability which is ‘not so high as required in a
criminal case…more probable than not…but if the
probabilities are equal, it is not discharge.’
11. Presumption
Case : PP v Chia Leong Foo
Augustine Paul J (as he then was), stated that a
presumption is a statutory invention that upon proof
of a fact, called basic fact, an inference of another
fact, called presumed fact, can be drawn. Thus, a
presumption is a statutory directions as to the
drawing of inferences where it operates in place of
evidence as it deems certain facts to have been
proved. Therefore, presumption do not deal with
admissibility of evidence, but with a special mode of
proving facts which must otherwise be proved by
evidence.
Section 4 of the evidence Act 1950 prescribed three
types of presumptions which are:
 Presumption of facts;
Section 4 (1) states that whenever it is provided by
the Evidence Act 1950 that the court may presume a
fact, it may either regard the fact as proved unless
and until it is disproved, or may call for proof of it.

The operative words in the section are ‘may
presume,’ which indicates that presumption of fact
must not be drawn automatically without first
considering whether in the circumstances of each
particular case, there were adequate ground to
justify any presumption being raised.
In respect of such presumptions, for example under
Section 114, the Act allows the judge a discretion in
each case to decide whether the fact under that
section may be presumed has been proved by virtue
of the presumption. Besides Section 114, this type of
presumptions can be found in Section 86, 87, 88 and
90.
 Presumption of law (rebuttable);
Section 4 (2) states that whenever it is directed by
the Evidence Act 1950 that the court shall presume
a fact, it shall regard the fact as proved unless and
until it is dispoved.
The operative words in the section are ‘shall
presume’, which give the court no discretion as to
consider whether in the circumstances of each
particular case, there were adequate ground to
justify any presumption being raised. For example,
the court shall presumed that a man is innocent
until proven guilty. This type of presumptions can be
found in Sections 79-85, Section 89, Section 105,
and Section 107-111 of the Evidence Act 1950.
 Irrebutable presumption of law or conclusive
proof.
Section 4 (3) states that when one fact is declared by
the Evidence Act 1950 to be conclusive proof of
another, the court shall, on proof of the one fact,
regard the other as proved, and shall not allow
evidence to be given for the purpose of disproving it.
The operative words in the section are ‘conclusive
proof’ which operate to dissalow any evidence to be
adduced for the purpose of disproving the fact
presumed. This type of presumptions can be found
in Section 41, 112 and 113 of the evidence Act 1950.
12. Res Gestae
Res Gestae literally means ‘things done’, where it
refers to all facts that are so connected to the fact in
issue or incidental to it. The res gestae principle is
embodied in Sections 6-9 and Section 14.
They are admissible as truth of its content although
they may be hearsay, or self serving statement and
inadmissible as evidence. The statement can be
made by the parties to the transaction or by
bystanders. The statement should have been made
at or about the same time the act was being done. It
must be noted that contemporaniety or spontaniety
must be shown before the statement is made
admissible.
The whole purpose of the res gestae rules is to
admit evidence which are usually subject to rule of
exclusion (e.g hearsay), so as to enable the court to
look at the events in the proper perspective.
Case : R v Bedingfield
The accused was charged with murder of a woman.
An exclamation was made by the deceased while
rushing out of the house with her throat cut stating
“see what Harry has done.”
The accused had entered the house a minute or two
earlier. The court held that the statement is
inadmissible as the transaction in question was over
by the time she made the statement. Thus, it was
not part of the transaction. However, the decision
was subjected to severe criticism and was overruled
in R v Andrews [1987] AC 281 .
13. Dying Declaration
Under the English law, a dying declaration means a
statement (oral or written) made by a deceased at
the time of dying concerning the cause of his death.
A dying declaration is admissible at a trial for the
murder of the declarant as an exception to the rule
against hearsay evidence on the ground that when a
person is under expectation of death, he will only
speak the truth.
At common law, dying declaration is admissible
provided that the declarant would have been a
competent witness had he survived and the
statement is made under a settled, hopeless
expectation of death.
The Evidence Act 1950 does not define dying
declaration but Section 32 (1)(a) covers such a
situation.
14. Admission
Admission in majority of cases may be hearsay
statements and is admissible as an exception to the
hearsay rule because they are likely true. An
admission is a statement by a party, which is against
his interest.
Section 17(1) of the Evidence Act 1950 defines
admission as any statement, either oral or
documentary suggesting any inference as to any fact
in issue or relevant fact. Admissions may be proved
in both civil and criminal cases. Under the Evidence
Act 1950, admissions are relevant under Section 18
– 23.
Generally, an admission can be proved only against
the party who made it and not against any other.
Being the general rule as it is, a number of
exceptions are available in the Evidence Act 1950
where admissions can be used against others for
example admission by agent can be used against the
principal.
In addition to that, in civil cases, an admission is
not relevant if there is an agreement that such
admission should not be given as evidence in court.
This type of admission is usually called admission
without prejudice. The admission is not admissible
because the court encourage the parties to settle
the dispute outside court, and any admission by
parties during the negotiation on a without
prejudice basis will not be admissible.
15. Confession
Admissions in criminal law is generally called
confessions. Admission is often described as the
‘genus’ and confession a species of that ‘genus.’
Thus, it can be said that all confessions are
admissions but admissions are not necessarily
confessions.
Section 17(2) of the Evidence Act 1950 defines
confession as an admission by an accused person
which states or suggest the inference that he
committed the offence.
Thus, it seems to be clear that the court will only
treat a statement as amounting to a confession if
the accused admits to the elements which constitute
the offence; that is the intention to commit the
offence i.e the mens rea (unless mens rea is not the
element of the offence) and the commission of the
unlawful act i.e the actus reus.
Case : Anandagoda v R
The court stated that the test whether a statement
is a confession is an objective one which is whether
to the mind of a reasonable man who reads the
statement at the time and in the circumstances in
which it was made, it can be said to amount to a
statement that the accused committed the offence
or suggested the inference that he committed the
offence. The statement also must be looked at as a
whole on its own terms without reference to
extrinsic facts.
As confession is a category of admissions, a
statement which does not amount to confession
under Section 17(2) may amount to admission under
Section 17 (1). Both are treated differently under the
Evidence Act 1950.
16. Corroboration
Section 134 of the Evidence Act 1950 provides that
no particular number of witnesses shall in any case
be required for the proof of any fact. The result of
this section is that in any case, the testimony of a
single witness, if believed, is sufficient to establish
any fact. The Courts may act on the testimony of a
single witness, even though uncorroborated.
The section follows the maxim that evidence is to be
weighed and not to be counted. If a single witness is
entitled to full credit it is sufficient for a decision.
One credible witness outweighs any number of
other witnesses.
Corroboration is not a technical term. It simply
means ‘confirmation.’
The rules of corroboration were introduced and
developed to ensure that the jury would determine
cases appropriately so as to avoid convictions based
on insufficient or unreliable evidence.
The rules of corroboration do not apply to all
witnesses and the nature of corroborative evidence
also may vary according to the circumstances of the
case.
In short, corroboration may only mean that it would
be prudent for the court to consider the danger of
relying on a particular witness’ testimony in the
absence of supporting evidence. In fact, the accused
may be convicted on the evidence of a single
witness if his evidence sufficiently establishes all the
elements of the offence beyond reasonable doubt.
However, the court must scrutinize the evidence
with great care and take into account the inherent
dangers of convicting the accused in such
circumstances.
Classification of Evidence
1. Direct evidence
Direct evidence is one which establishes the very
fact in issue. It may also refers to any evidence
where the fact is actually perceived by senses or a
conscious mental condition.
Section 60 of the Evidence Act 1950 provides that all
oral evidence must be direct and evidence is direct
when;
 It refers to a fact which could be seen, it must
be the evidence of a witness who says he saw
it;
 It refers to a fact which could be heard, it must
be the evidence of a witness who says he heard
it;
 It refers to a fact which could be perceived by
any other senses or in any other manner, it
must be the evidence of witness who says he
perceived it by that sense or in that manner;
 It refers to an opinion or to the grounds on
which that opinion is held, it must be the
evidence of the person who holds that opinion
on those grounds.
For example, if the fact in issue is whether A kills B. C
who witnessed the killing gives testimony. Then, C’s
testimony is direct evidence to the fact in issue.
2. Circumstantial Evidence
Circumstantial evidence may refer to any fact from
the existence of which the judge may infer the
existence of a fact in issue. This facts are not direct
to the facts in issue, but evidence of various
circumstances which are connected to the facts in
issue and taken together they form chain of
circumstances inviting the court to draw inference
or presumption of the principal fact. The nature of
circumstantial evidence is weak. Despite the weight
attached to circumstantial evidence, it is still
possible to secure convictions in criminal cases.
Case : Sunny Ang v PP
In this case, the accused was bankrupt and he
wanted to take his girlfriend’s life insurance. Sunny
Ang brought his girlfriend to go for scuba diving. On
that day, he and his girlfriend was seen at the sea by
a fisherman. An hour later was seen by the
fisherman to have come back. The next day, Sunny
Ang made the insurance claim. When the body was
found, it was found that the flipper has been cut. All
the circumstantial evidence provided shows motive.
The circumstantial evidence shows that there is an
irresistible conclusion that Sunny had killed his gf.
*circumstantial evidence may also be direct, it must
be connected to form irresistible conclusion.
Case : Juraimi Hussain & two other appeals v PP
The court sentenced all the three appellants to
death although the case was substantially based on
circumstantial evidence.
Case : PP v Sarjit Kaur
the accused was charged with murder of her
husband and the prosecution’s case was based on
circumstantial evidence. The court held that each
strand evidence presented by the prosecution was
so brittle that even when tied together they were
not strong to establish a prima facie case.
PP v Hanif Bamsree Abdul Rahman
The accused was charged with the murder of the
deceased and the prosecution case relied on
circumstantial evidence. The court held that there
were too many doubts in the prosecution case and
ruled that no prima facie case.
*refer text book.
3. Oral Evidence
Oral evidence is the evidence of fact brought to the
knowledge of the court by verbal statements of a
witness, usually under oath. Section 60 of the
Evidence Act 1950 provides that all oral evidence
must be direct, which means it must relate with
what the witness knows through the use of his own
senses.
4. Documentary Evidence
The literal meaning of the word document means
‘written papers.’ However Section 3 of the Evidence
Act 1950 defines it in a wide sense and now includes
any matter embodied in a disc, tape, film, sound
track as was decided in Ghazali Bin Salleh & Anor v
PP.
Under the new amendment, documents include all
material substance on which the thoughts of man
are represented by writing or mark or symbol. For
example, writing on a document and an inscription
on a metal plate, a stone, wall, and tree or even in
an airplane is a document.
5. Primary Evidence
Primary evidence is one which under every possible
circumstances affords the greater certainty of the
facts in question. It is also referred to as best
evidence, or that kind of proof, which under any
possible circumstances, affords the greatest
certainty to the facts in question.
It is recognised now that primary evidence is
generally required to prove the contents of a
document. In regards to documentary evidence,
primary evidence means the documents itself
produced for the inspection of the court. Thus it
denotes the original document itself. However,
Section 61 does not restrict proof of documents only
by primary evidence. In fact, copies of documents in
an agreed bundle of documents may be treated as
the originals themselves if produced for the
inspection of the court.
Case : Ng Bee Lian v Fernandes & Anor
Where in this case, the court held that the inclusion
of the copies of the medical reports in the agreed
bundle meant that the party concerned had
admitted to the genuineness of the signatures and
had accepted the evidential status of the contents of
the documents.
6. Secondary Evidence
Case : Jai Gopal Singh & Ors v Divisional Forest
Officer
The court held that the secondary evidence is
defined in Section 63. Section 63 must be read to
together with Section 64 where documents must be
proved by primary evidence except under
circumstances mentioned in Section 65 where
secondary evidence may be given of the existence,
condition or contents of a document. Section 65(1)
has got seven paragraphs altogether. To produce
documents under Section 65(1), notice to produce
such secondary evidence must be given as
prescribed under Section 66.
In relation to documentary evidence, secondary
evidence includes those stated in Section 63, but the
types of secondary evidence listed are not
exhaustive.
7. Real Evidence
Real evidence or sometimes may be referred to as
material evidence or physical evidence, is any
material object, introduced in a trial, intended to
prove a fact in issue based on its demonstrable
physical characteristics. Physical evidence can
conceivably include all or part of any object.
It also refers to any probative matter furnished by
items that are actually on view, as opposed to a
verbal description of them by a witness. For example,
written contract, the defective part or defective
product, the murder weapon, the gloves used by an
alleged murderer would be classified as real
evidence.
8. Hearsay Evidence
Hearsay evidence is evidence by a witness of what
another person has stated (whether verbally, in
writing or otherwise) on a prior occassion. Generally,
hearsay evidence is not admissible. The statement
made is inadmissible for the purpose of proving that
any fact stated by that person on such occassion is
true. Thus, in short, the hearsay rule will be
infringed where reliance is placed on the evidence of
someone not before the Court where the evidence
is adduced in order to prove that the facts as stated
are true.
Evidence of a statement made to a witness by a
person who is not himself called as a witness may or
may not be hearsay. It is hearsay and inadmissible
when the object of the evidence is to establish the
truth of what is contained in the statement. It is not
hearsay and is admissible when it is proposed to
establish by the evidence, not the truth of the
statement, but the fact that it was made.
Exceptions (hearsay evidence may be admissible) :
 Res Gestae
 Dying Declaration
 Section 33
 Section 73A
 Section 90A
 Admission
 Confession
9. Opinion Evidence
At common law, beliefs and inferences of a witness
are inadmissible to prove the truth of facts. As a
general rule, opinion of third persons are irrelevant.
However, in the Evidence Act 1950, opinion of third
persons maybe relevant under Section 45 to Section
51. The opinion of third persons can be divided into
two which are expert and non-expert opinion.
The court generally is not interested in any one’s
opinion even though he is an expert unless the
proved facts is outside the court’s knowledge and
experience which might be hard for it to make its
own conclusion without the aid of expert or
non-expert. At such time, the court may rely on such
opinion and form its own conclusion.
Case : Kong Nen Siew v Lim Siew Hong
The court needed to satisfy itself whether incurable
mental illness is one of the grounds to petition for
divorce under the Foochow customary marriage.
The plaintiff called for an expert in that area to help
the court in making its decision for an order of
dissolution of marriage through divorce.
10. Character Evidence
Character means a person’s conduct or previous acts,
his reputation among a group of persons acquainted
with him (e.g his standing), or his tendency or
disposition to behave in a particular manner
including specific acts on his part.
The traditional position at common law, as was held
in the case of R v Rowton is that character is limited
to reputation. Reputation here means what others
think about a person (i.e the general credit which a
person has obtained in the estimation of the public).
However, in our Evidence Act 1950, the term
character includes both reputation and disposition
(see Section 55 with the limited exception to Section
54). Disposition means the inner qualities, traits,
integrity or honour or natural tendency in a person
which can be inferred from his acts.
As a general rule, character of a party to an action
whether civil or criminal is not relevant. The
business of the court is to try the case and not the
man because evidence of character will result in
unfair prejudice to him.
However, there are number of exception to the
general rule some of which is found in Section 52 to
55.
11. Similar Fact Evidence
Similar fact evidence is evidence that a party
(especially the accused) has on previous occassions
misconducted himself in a way similar to the
misconduct being alleged against him in the
proceeding before the court. The evidence
frequently takes the form of a previous conviction.
In general, the prosecution may not offer similar fact
evidence as part of its case unless it can be shown to
be relevant to an issue before the judge, for
example by rebutting some defence advanced by
the accused. Thus, if a person is charged with fraud
contends that he was honestly mistaken, the fact
that he has committed similar frauds on previous
occassions may be admissible. The judge may
however, in his discretion exclude otherwise
admissible similar fact evidence if he considers that
it would have an adverse effect on the fairness of
the proceeding.
For example in the case of Noor Mohammed v The
King, the accused was tried for the murder of his
wife by poisoning her with potassium cyanamide.
The conviction was based on the evidence that some
two years earlier his previous wife has died in the
same way. The Privy Council held that this evidence
was not relevant to prove the charge against him of
murdering other woman. The Privy Council stated:
“If it was not relevant it was at the same time
highly prejudicial... By looking at the previous history
of criminality of the accused, the court may blindly
jump to the conclusion that the accused should be
guilty... Evidence of the accused having committed
crimes other than that with which he is charged is
not admitted.”
12. Conclusive Evidence
This is a type of evidence where no party is
permitted to contradict that piece of evidence. It
usually originate from a rule of law (irrebutable
presumption of law). For example a 13 years old
boys is incapable of committing the offence of rape
as provided under Section 113 of the Evidence Act
1950.
Another example that can be put here is certificate
of incorporation is a conclusive evidence that all
pre-registration procedure for incorporation of
company has been duly complied with.
Look also at Section 82 of the Penal Code
BEST EVIDENCE RULE
The best evidence rule indicates that “the best proof
that the nature of the thing will afford is only
required.” At common law, the best evidence rule
was always relied on in which party need only to
bring or put forward the best evidence that they
have in the form of real, primary and direct
evidence.
The concept was stated in the case of Omychund v
Barker, where Lord Hardwicke in his judgment state
as follows:
“The judges and sages of the law have laid it
down that there is but one general rule of evidence,
the best that the nature of the case will admit.”
Essentially, the best evidence rule means that if
there are two ways of proving a matter and one
method is more cogent than the other, the more
cogent method must be adopted.
For example, circumstantial evidence is not to be
adduced if there is direct evidence available or
evidence to show that a person consented to a
particular matter should not be given by others if
that person himself/herself can be called as a
witness.
In Malaysia, How Chien v PP, was one of the earliest
case in which the best evidence rule was invoked. In
that case, the appellant’s conviction for smuggling
forty packets of cigarettes was quashed for want of
the evidence of the smuggled objects themselves.
Mill J stated:
“...I rule that ordinarily, prosecuting officers
should produce before the court such real evidence
as circumstances reasonably permit; if it is not
reasonably practicable to produce the material thing
itself, they should produce a portion of it, or sample
of it or a photograph, or a sketch or some other
evidence which may supply the court with the best
evidence reasonably obtained under the
circumstances.”
Case : 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.
However, now the best evidence rule as seen at
common law is not the law anymore. In Malaysia for
example, under Section 5 of the Evidence Act 1950,
all evidence is relevant and admissible if it
connected to facts in issue or relevant facts in any of
the way mentioned from Section 6 to Section 55.
Case : Kajala v Noble
The facts were that the appellant was convicted of
using threatening behaviour. Part of the evidence
against him was a copy of BBC news video tape of
the incident. The court accepted BBC’s policy of
refusing to allow the original copy of the tape to
leave the premises and allow the prosecution to
adduce the copy of the tape.
SECTION 5 AND ITS APPLICATION
Section 5 lays down the rule that evidence may be
given only of facts in issue and relevant facts.
Section 5 must be read together with Section 136
and Section 165 where that provision empowers the
Judge to ask the party proposing to give evidence of
any fact, in what manner, the alleged fact, if proved,
would be relevant.
Relevancy and admissibility is a question of law for
the court to decide. Facts declared to be relevant by
the Act are those contained in Section 6 to Section
55, and those relevant facts must be proved by
parties.
Thus, although a litigant is entitled to subpoena
anyone as witness, the court has inherent power to
set aside the subpoena if it was an abuse of process
of the court or witness is unable to give relevant
evidence.
The burden is on the party issuing and serving
subpoena to show to the court in what way the
person served with the subpoena could give any
relevant evidence - Wong Sin Chong & Anor v
Bhagwan Singh & Anor.
Although all relevant facts need to be proved by
parties by adducing evidence to show the existence
or the non-existence of those facts, there are some
matters that need not be proved by evidence.
Case : Pembangunan Maha Murni Sdn Bhd v
Jururus Ladang Sdn Bhd
The court stated that the general rule is that all facts
in issue and relevant facts must be proved by
production of evidence. There are however, two
classes of facts which need not be proved; (a) facts
judicially noticed and (b) facts admitted.
This classes of facts are dealt with under Section 56,
57 and 58 of the Evidence Act 1950.
Admissibility of relevant evidence is also subjected
to many exceptions where two broad exceptions are
hearsay and opinions.
Other exceptions may include privilege or when in
criminal case, the prejudicial effect of the relevant
evidence outweighs its probative value.
The general rule is that court is not concerned as to
when the evidence is obtained - Ng Yiu Kyok & Ors v
PP or whether the evidence presented to the court
is illegally obtained – Kuruma v The Queen
The court however has discretion to exclude
relevant evidence in criminal trial especially if the
strict rules of admissibility would operate unfairly
against the accused – R v Sang
The court in R v Sang narrowed down the discretion
of the court to exclude relevant evidence as follows:
a) A trial judge in a criminal trial has always
discretion to refuse to admit evidence if in his
opinion its prejudicial effect outweighs its
probative value.
b) Save with regard to admissions and confessions
and generally with regard to evidence obtained
from accused after the commission of offence,
he has no discretion to refuse to admit relevant
admissible evidence on the ground that it was
obtained by improper or unfair means. The
court is not concerned with how the evidence
was obtained.
However, discretion to exclude evidence especially
confessions or admissions must be read in the light
of Section 29 of the Evidence Act 1950 – Ramli Bin
Kechik v PP
The proper procedure if the party seeking to have
relevant evidence ruled inadmissible in the exercise
of discretion of the court is to hold a voir dire or trial
within a trial – PP v Mohd Faris Bin Mohd Sukis &
Anor and the party seeking to have relevant
evidence ruled inadmissible in the exercise of
discretion of the court have the burden of proving
on balance of probabilities that the discretion should
be exercised in that way – R v Lee, Wendo v R
Any objections to the admissibility of evidence are
governed by well establish principles such as:
a) It is the duty of the court to admit all relevance
evidence and it is also its duty to exclude all
irrelevant evidence – PP v Dato Seri Anwar
Ibrahim
b) The judge having refused to accept evidence in
the first instance has no jurisdiction to take
them again into consideration unless some
explanation or reason could be given – Ram
Keshan v Ramsohaj
c) The court however may reverse its ruling on
admissibility – PP v Ng Lai Huat & Ors
d) Failure to object does not make irrelevant
evidence admissible – Syarikat Jengka Sdn Bhd
v Abdul Rashid Bin Harun
e) Objection to irregular mode of proof must be
made at the earliest point of time – Popatlal v
Visandji
CHAPTER TWO : SECTION 6 FORMING PART OF THE
SAME TRANSACTION
Definition of “same transaction”
Sir James Stephen, as ‘a group of facts so connected
together as to be referred to by single name, as
crime, a contract, a wrong or any other subject or
enquiry which may be in issue.’
Case : Amrita Lal Hazra v Emperor
The court was of the view that factors as
(a) proximity of time
(b) proximity of place
(c) continuity of action and
(d) community of purpose and design
must be taken into consideration before a judge
decides whether or not a fact forms part of the same
transaction.
Res Gestae Principle
 Res Gestae literally means ‘things done’, where
it refers to all facts that are so connected to the
fact in issue or incidental to it.
 The scope of res gestae is very wide and it
includes both direct and hearsay evidence.
 In Ratten v The Queen [1972] AC 378, the
court indicate 3 different ways how res gestae
may be applied:
a) When a situation of fact is considered, question
as to when it begins and ends becomes
relevant
Case : O’Leary v The King
“continuous transaction” as part of res gestae as to
fully understand the circumstance of the fact.
b) Evidence of spoken words not to establish the
truth – what they convey can be relevant and
admissible as direct evidence.
Case : Subramaniam v PP
c) Hearsay statements made by victims or
bystander which relate to identity of person.
 In relation to (c) above, the statement should
have been made at or about the same time the
act was being done. It must be noted that
contemporaniety or spontaniety must be
shown before the statement is made
admissible.
 The whole purpose of the res gestae rules is to
admit evidence which are usually subject to
rule of exclusion (e.g hearsay), so as to enable
the court to look at the events in the proper
perspective.
Direct Evidence
Case : Jaafar B Hussain v PP
The accused was charged with two offences,
carrying a shotgun and carrying a hand grenade at
the same time. However, the trial only proceed on
the second charge. It was argued that evidence of
the accused carrying a shotgun should not be
admitted. But the court held that they are
admissible as to form one transaction.
Case : Hamsa Kunju v R
 The appellant was convicted for causing
grievous hurt by attacking a fellow worker on a
construction site at night. A witness testified
that an argument took place between the
appellant and the victim that morning.
 Held: The argument and threat supplied the
necessary motive that contributed towards the
continuity of the action, purpose and design
necessary to form part of the same transaction.
 Threats made in the morning formed part of
the same transaction as to the events at night
and came within the rules of res gestae.
Case : Chin Choy v PP
The accused was charged for having possession of a
revolver and ammunition under the Emergency
Regulation. The offence was committed over a
period of 7 years and in several unspecified places in
Pahang.
Held: The offences could not form part of the same
transaction as there exists only community of
purpose that is aiding the communist terrorists.
Hearsay Evidence
The decisions in Malaysian court seems to favour
the strict approach in admitting hearsay statement
under the res gestae principle.
Case : Leong Hong Khie v PP
rejected the evidence of a senior custom officer who
was called to give evidence on what was said by his
informers. The court emphasized the need to apply
the rules strictly to prevent concoction and
distortion.
Case : Mohamed Allapitchay & Ors v PP
both rejected the out of court statement as
evidence on the ground that the statement was not
contemporaneous.
COMMON LAW POSITION
Strict approach :
 Whether or not the admission of res gestae
statements should properly be regarded as an
exception to the rule against hearsay, the most
important practical question tends to be
whether a given statement can actually be
regarded as forming part of the res gestae.
 As indicated above, the traditional approach
requires that the statement should be part of
the event under consideration. That approach
is encapsulated by Lord Normand in the Privy
Council case of Teper v R.
Case : In Teper v R
The appellant had been convicted of burning down a
shop owned by his wife, partly on the basis of the
evidence of a police officer who said that almost 30
minutes after the fire had started he had heard a
woman shout, “Your place burning and you going
away from the fire”, after which he saw an individual
resembling the appellant in a car. It was held that
this evidence was hearsay, which could not be fitted
under the res gestae exception. As it should not
have been admitted, the conviction was quashed.
Case : R v Bedingfield (1879)
The exclamation of a murder victim as she staggered,
with her throat cut, from the room where she had
left the accused (reputedly “Oh dear, Aunt, see what
Bedingfield has done to me”) was held not to be a
res gestae statement, as it occurred after the crime
was committed. Cockburn CJ opined:
“Whenever…words constitute, or…immediately
accompany and terminate in the principal act…they
form part of the principal transaction and may be
given in evidence as part of the res gestae …while
statements made by the complaining party after all
action on the part of the wrongdoer…has ceased… -
such as statements made with a view to the
apprehension of the offender - do not form part of
the res gestae and should be excluded.”
However, he added that if the statement had been
uttered when the act was being committed, as for
instance where the deceased was heard to cry
“Don't Harry”, then it would have been admitted.
*R v Bedingfield has sufficiently being overruled in
the case of R v Andrews.
Case : R v Christie
“contemporaneous” defined as at the time the facts
in issue occurred. No lapse of time is allowed for
such hearsay evidence to be admitted.
Liberal approach :
Case : Ratten v R [1972]
The accused was charged with the murder of his
wife, and claimed that he had shot her accidentally.
The court admitted evidence of a distressed phone
call by the victim which was made shortly before the
shooting. The Privy Council was adamant that the
fact that this call was made was in itself relevant,
quite apart from its content. Thus, it was not
hearsay evidence. The court went on to say that
even if it is a hearsay, it clearly falls under res
gestae.
Case : R v Andrews
A murder victim who had been attacked in his home
had made his way to the flat below his own shortly
after the fatal attack. The police were called almost
immediately, and two officers arrived within
minutes. On their arrival the victim made a
statement identifying Andrews as his attacker.
Andrews was convicted largely on the basis of the
evidence of this statement. There was no doubt that
this was hearsay evidence, as the statement was
tendered as evidence of the proof of its content. The
question then was whether it could be brought
under the doctrine of res gestae. Their Lordships
ruled that it could, stressing that the main question
for the judge was whether the possibility of
concoction or distortion could be disregarded.
In short, R v Andrews provided guidelines for courts
to consider as follows :
 Possibility of concoction and distortion;
 The event was so unusual, startling or dramatic
as to dominate the thoughts of the victim;
 The statement must be so closely associated
with the event that the mind of the maker was
still dominated by it (spontaneous);
 The existence of malice that may affect the
possibility of concoction or distortion;
 Any other factor that would affect the fallibility
of memory, but the additional factors (such as
victim had consumed alcohol before the event
or identification in dificult circumstances or by
eyewitness with defective eyesight) would only
affect weight rather than admissibility.
Malaysian Position
 Facts which, though not in issue, are so
connected with a fact in issue as to form part of
the same transaction are relevant, whether
they occurred at the same time and place or at
different times and places.
 Thus, acts or declarations, or statements
accompanying or explaining the transaction or
the facts in issue are treated as part of the res
gestae and admitted as evidence.
 Section 6 relates to the rule of evidence
commonly referred to as res gestae.
 Under this section, the are admitted because
they form part of the res gestae.
 The rationale to admit this type of evidence is
that the admission helps to show the character
of the fact and its exclusion would tend to
render evidence as to other facts unintelligible.

Case : PP v Mohd Zahari Embong

 The application of liberal approach in admitting
hearsay evidence as res gestae in Malaysia.
 The court accepted hearsay evidence of the
witness repeating the accused’s statement
disclosing that his wife had beat all their
children, and that he killed her without
intention. The statement was said to have been
made contemporaneously to the fact in issue,
and was thus, accepted by the court under the
liberal approach.
Section 7 : Facts which are the occasion, cause or For example, footprints, marks, fingerprints.
effect of facts in issue.

Case : PP v Toh Kee Huat

where the effect of finger prints found in the inner
surface of the car was considered by the court.

4. Opportunity
Evidence which would not have happened but for
that particular cause, it happened.
For example, evidence of alibi, no opportunity.
Refer illustration (c).

Case : Aziz Bin Muhammad Din v PP

The court held that the fact that the accused and the
complainant have spent a night together at the
witness’s house constitute an opportunity for a rape.
“facts which are the occasion, cause or effect,
However, the evidence of a mere opportunity
immediate or otherwise, of relevant facts or facts in
without the admissibility of more evidence will not
issue, or which constitute the state of things under
be sufficient to be an evidence of the “actual
which they happened or which afforded an
commission” of rape.
opportunity of their occurrence or transaction, are
relevant.”
Case : Ahmad Najib Aris v PP
The court concluded that the accused has ample
1. Occasion
opportunity to commit the crime because it was
witnessed by third party that the deceased/accused
Refer to illustration (a)
person had been together at various locations prior
Case : Dr Jainand v R
to that murder.
The fact in issue is whether Jainand committed the
murder of Karan Singh. The facts that Jainand had
5. State of things
taken money and ornaments from Karan Singh and
Circumstances or background on which the fact in
had on the day of the murder gone to Jainand to
issue happens. Usually it explains the physical
demand the money and ornaments are relevant
condition connected to the main fact which
facts showing occassion.
happened.
2. Cause
Case : PP v Muhammad Rasid Hashim
Something that constitutes the event/penyebab.
The court admitted evidence of state of things, that
are inter alia, (1) the sign of struggle, (2) the signs
Case : Saw Thean Teik v R
and scars of a defensive nature, and (3) the
It was held that evidence of intoxication could be
testimony of the victim’s friend who found the
admitted under Section 7. the reasons are not
victim full of bruises & blood, to came out with an
stated in the judgment but it is likely that the court
irresistible conclusion that the sexual intercourse
meant that intoxication could have been the cause
indeed happened without the victim’s consent
of the accident.

Case : Bandala Undik v PP

Court admitted post-mortem report as the cause of
death of the victim.

Case : Ahmad Najib Aris v PP

There was evidence of strangulation by cloth around
the deceased’s neck. The same cloth was found in
the accused’s office.

3. Effect
Anything that leaves behind certain result, which not
only record the happening of the act, but also
clarifies the nature of the act.
CHAPTER THREE : SECTION 8 FACTS RELEVANT TO In this case, the evidence of rape by the father was
SHOW MOTIVE, PREPARATION AND CONDUCT relevant, thus making it admissible.

2. Facts which shows preparation.

Every action that leads to the production of a crime

or facilitating a criminal action such as collecting,
purchasing, procuring, repairing or removing certain
obstruction so that a crime can be committed are
acts of preparation.

Case : Thiangiah & Anor v PP

There are four stages in every crime :
A. An intention to commit the crime
B. The preparation for its commission
C. The attempt to commit it
D. The actual commission of crime
 Any facts is relevant which constitutes a motive
3. Facts which shows conduct.
or preparation for any fact in issue or relevant
fact.
 The conduct must directly affect, influence, or
 [The conduct of any party, or of any agent to
be affected by the facts in issue or relevant
any party, to any suit or proceeding in
facts.
reference to that suit or proceeding, or in
 The evidence of conduct, if tendered,
reference to any fact in issue therein or
must have reference to the facts in issue.
relevant thereto,] [and the conduct of any
 The nexus between the conduct and the
person an offence against whom is the subject
facts in issue must be established so that
of any proceeding,] is relevant if the conduct
the action is not an isolated event.
influences or is influenced by any fact in issue
 Refer section 8(2).
or relevant fact, and whether it is previous or
subsequent.
Previous conduct
Refer also Explanation 1 & 2 and illustrations (a) –
The conduct of a person before the commission of
(k)
the facts in issue.
Refer illustration (c), (d) and (e)
1. Facts which shows motive.
Case : Ravindran A/L Kandasamy v PP [2010]
Wigmore defines motive as the emotion that led to
The court consider various acts of the accused which
the act which could be formed by the influence of
lead to the filing of the report were relevant to show
external facts.
previous conduct.
Refer Section 8(1) and illustration (a) and (b)
Subsequent conduct
Case : Karam Singh v PP
It must also be noted that motive cannot be proved
Def : refers to the action of either an accused person,
by hearsay evidence. In this case, evidence of motive
a victim or a third party after the crime is
given by the deceased’s son to the court must be
committed.
rejected as it was a mere repetition of what the
father said to him prior to his death.
Functions :
 to use evidence of subsequent conduct, it must
Case : Wong Foh Hin v PP [1964]
relate to relevant facts or facts in issue. Usually,
Where the accused was charged for the murder of
evidence of subsequent conduct is used in
his own daughter, evidence that he had raped his
criminal trial.
daughter was tendered as evidence of motive. Held:
 it is also used to reinforced the guilt of the
The court admitted the evidence of motive, despite
accused after the public prosecutor has proven
it reflecting the bad character of the accused,
guilt, as corroborating evidence of guilt.
namely that he was a bad father. Even though Sec.
 acts as corroborating evidence
54(1) disallows evidence of bad character to be
 refer illustration (e) to (k) of Section 8
tendered, the court upheld the principle that
evidence admissible on one ground will not be
rejected due to its inadmissibility on another ground.
Case : Thavanathan Balasubramaniam
There was evidence of subsequent conduct of
accused when the ACA agent raided his office, he
dropped the money and acted suprised.

Case : Mahadzir Yusof v PP

There was evidence to show that the accused went
back to the crime scene to confirm whether the
victim was already dead.
Examples of subsequent conduct :
1. Incriminating behaviour of accused
a. The act of pointing out
The act of pointing out is admissible, irrespective of
Section 27 of the Act, as evidence relating to the
conduct of an accused person when confronted or
questioned by a police officer during the course of
an investigation.
Case : Amathevelli Ramasamy v PP
In this case, the accused statement was given under
involuntary circumstances but when the police
asked where he hides the body, he pointed a place,
and they discover the body. It was held that the act
of pointing out the discovery facts near crime scene
was relevant and admissible as conduct even though
accused's statement not admissible under Section
27
b. Conduct of the accused/victim when confronted
for an explanation
 Act such as crying when asked for explanation
(PP v Vijaya Raj [1981] 1 MLJ 43),
 Act of screaming and struggling (PP v Teo Eng
Chan & Ors [1988] 1 MLJ 156)
 Act of trembling and being frightened and
confused when questioned (Prakash Chand v
State 1979 AIR SC 400) are some subsequent
conduct that can be admitted under Section 8
of the Evidence Act 1950.
However, it is also well established that there must
be a guarded approach to ex post facto crying or
distress as evidence of corroboration as laid down in
the case of Liew Kim Yong v PP.
Ex post facto crying especially on the victim part
must be carefully admitted, by establishing that the
reason why the victim cried first then it can be
admitted as corroborating evidence.
c. Slamming the door
- Usually done by the police (raid)
Case : PP v Tan Kim Piow
a police inspector, acting on information received by
him raided a premises with a team of six other
police personnel. He knocked the door and it was
opened by the accused. The police identified
themselves and at that time the accused made a
sudden attempt to close the door. The accused then
tried to ran away from the house but he was
apprehended. The court held that the accused’s
conduct may corroborate the fact that drug belongs
to the accused.
d. Flight of accused
For the flight of an accused to be capable of
amounting to an admission of guilt, there must be a
nexus between the conduct of the accused, his flight
and the offence in question. Each case must be
judged on its own particular facts.
Case : PP v Chia Leong Foo
Case : Roslan bin Sabu v PP
The court find nexus of flight with offence
committed because plastic bag was transparent;
while in PP v Tan Tatt Eek, plastic bag orange.
Case : Taib Mohammad v PP
Plastic bag black - court find no nexus between
conduct and fii.
*Section 37A DDA has been declared
unconstitutional, hence knowledge must be
separately proven.
e. Shocked reaction by the accused
Facts of dropping bag and being in a state of shock
especially if the accused is charged with the
possession of dangerous drugs may also be regarded
as conduct which may or may not lent support to
the prosecution’s case. This is because shocked
reaction by the accused may well be translated into
two inferences. It may show guilt or it could also be
the reaction of an innocent and surprised man.
Case : PP v Tan Tatt Eek
Case : Abdullah Zawawi Bin Yusoff v PP
In such a case when court is invited to draw an
inference and when there is more than one
inference which can be reasonably drawn, the
inference most favourable to the accused should be
adopted.
Case : Tai Chai Keh v PP
There must be an inference to be drawn on why the
accused was shocked and it must be preferred if the
inference is the most favourable to the accused.
For example, X kena tahan tepi jalan by the police
and in X’s car, ada drug. There are two inferences
that be drawn, where X was shocked that the police
found the drug or X was shocked because X doesn’t
know the existence of the drug. Hence, the court has
to favour the 2nd inference.
The inference must be benefit of doubt to the
accused. It is trite law that if the court could draw
more that one inference, the most favourable to the
accused must be adopted.
f. Violently resisting arrest
Case : PP v Peter Merupi
the court consider the manner in which the accused
was arrested as relevant. In this case, the accused
was attempting to escape when confronted by the
police and in fact he resisted arrest and attacked
one of the police officers and attempted to take his
gun. In reaction to such resistance, the police shot
the accused twice on his legs. However, the court
also must ensure that there is a nexus between the
conduct of the accused and offence committed. The
court also added that no innocent man would react
to a police party in such a violent manner.
2. Deliberate lie of accused
A deliberate lie by the accused as to what happened
at the material time can also be used as subsequent
conduct and may amount to corroborative evidence
against him.
Case : Tan Pin Seng v PP
The court held that there are four criteria to satisfy
before a lie can amount to corroboration:
 The lie must first of all be deliberate;
 The lie must relate to material issue;
 Motive of the lie must be the realization of
guilt and fear of truth;
 The statement must clearly be shown to be a
lie by independent evidence.
*always been applied when the accused said that he
has an alibi, but when checked, the accused actually
lied.
which to the mind of the judge, to destroy evidence.
It is also startling to note that the defence did not
touch this aspect of the evidence. And because of
that, this evidence of conduct of the accused is a
circumstances telling against him which he has to
explain and this evidence is relevant to lend support
to show the accused is guilty.
4. Complaints as conduct
A) Distress of victim may lend as corroborative
evidence of her later testimony in court but less
weight is put on this because it originated from
same source.
B) Conduct of victim can amount to conduct if fulfill
these conditions:
a. Voluntary
b. Made with a view to punish
c. Made to person in authority
d. Must be made as soon as possible
Case : Aziz Muhamad Din v PP
The court held that a complaint must be voluntary
and spontaneous, is made with a view to redress or
punish and is made to someone in authority. If it
does not satisfy this requirement, then it is just a
bare statement which cannot amount to conduct.
*read mere statement becomes conduct.

Case : Syed Ali Bin Syed Abdul Hamid v PP

Tipu dekat terengganu.

Case : Mohd Abbas Bin Danus Baksan v PP

3. Suborning witnesses

Suborning witnesses to give false evidence amounts

to evidence of admission by conduct.

It refers to the act of accused in inducing witness to

commit perjury in court, usually done by bribing
them.

Case : PP v Dato’ Seri Anwar Ibrahim

The court held that the conduct of the accused in
asking Azizan to lie to the police amounts to
suborning witness to give false evidence. By asking
SAC Musa to stop investigation into his sexual
activities and misconduct is also tantamount to
asking not to obtain further evidence from witnesses
CHAPTER FOUR : RELEVANCY SECTION 9
Introduction :
 Section 9 is also rooted on the principle of res
gestae, but is relevant under Section 9 because
they do not form part of the res gestae as
stated in Section 6. This is because they do not
accompany the facts or transaction in issue.
 The object of the section is to admit facts
which are necessary to explain or introduce a
relevant facts such as place, relation of parties
which may be of considerable help to the court
to appreciate the nature or transaction under
inquiry, in leading up to the main fact in issue,
or to establish some connection throwing light
on the fact in issue.
 It must be noted that the section itself places a
restriction on the facts that may be admitted
under it. This is apparent from the use of the
words ‘in so far as they are necessary for that
purpose’ in the last line of the section.
Case : Lakshmandas v State
The court held that the last sentence is very
important because if these facts are introduced in
evidence, they can be used only for that purpose,
and no other.
Introductory or explanatory facts :
 These are preliminary facts, which are capable
of introducing the facts in issue or any relevant
facts.
 Facts which are explanatory or introductory of
a facts in issue or relevant facts are often a
great help in understanding the real nature of
the transaction in supplying the missing links.
 All the facts stated in the section are only
relevant in so far as they are necessary for the
purpose of explaining or to introduce some
facts in issue or relevant facts.
 They cannot be used to prove the truth of the
facts in issue or relevant facts, which must be
established by independent evidence.
For example look at illustration (a) – (f).
Case : Lim Seng Chuan v PP
It was submitted that evidence adduced in a trial
within a trial to determine whether a confession was
voluntarily made or not constitute facts necessary to
introduce a fact in issue within the meaning of this
section. Thus, this section would provide
justification for excluding evidence for consideration
for the purpose of the main trial as after the trial
within a trial has been concluded, the voluntariness
of the confession would no longer be a fact in issue.
Facts supporting or rebutting inference :
Evidence generally is relevant when it is adduced for
the purpose of supporting or rebutting an inference.
For example see illustration (c) and (d).
Case : Matru v State of U.P.
The accused was at all time with the complainant
that he thought himself was the suspect, and thus,
he kept out of the way and evaded arrest.As a result,
he kept out of the way and evaded arrest. It was
held that the evidence of his previous conduct was
relevant to contradict the inference suggested by
the subsequent evading.
Case : Ling Ngan Liong v PP
 The accused, a medical practitioner was
charged of rape of one of his patients, aged 13.
The trial judge in his grounds of judgment
stated that if the complainant's evidence alone
were the evidence on which he could make a
finding in the case he would have no hesitation
in holding that the complainant's evidence was
completely unreliable.
 However, the trial judge referred to an
"extraneous evidence" relating to the conduct
of the appellant after the alleged offence in
handing over three cheques totaling $10,000
which were to be paid to the complainant's
family, and on this evidence convicted the
accused under Section 376 of the Penal Code
and sentenced him to 3 years imprisonment.
 On appeal against conviction and sentence the
appellant stated in evidence that he was
prepared to make the payments because (a) he
wanted to avoid publicity of a trial which would
ruin his practice.
given that the travelling bag in which the drugs
were found belonged to Tan Soon Hock.
 The Supreme Court allowed the appeal of both
A.

 The Federal Court held that the complainant's
evidence was in effect found to be completely
unreliable and it was not safe to rely on the
conduct of the appellant after the alleged
incident in order to reach the conclusion that
he was guilty of the offence of which he was
charged.
Case : PP v Chia Leong Foo
Evidence of absconding after the commission of a
crime is always admissible under Section 8 where
the court can draw adverse inference against the
accused. However, the explanation of the accused
for his conduct is relevant under Section 9 to
support or rebut any inference of his conduct.
Case : Choo Chang Teik & Anor v PP
 The facts of the case were that, a police party
raided a house and on entering the house they
saw the first A walking towards the kitchen. On
seeing them, the first A ran away. He was
chased and was arrested some distance away
from the house.
 Another group of police officers rushed
upstairs and they saw both the second A and
Tan Soon Hock in the master bedroom. As they
shouted 'Police!', both of them ran towards the
balcony and the second A managed to jump
out of the window. He was finally arrested
some distance away from the house. Tan Soon
Hock was, however, arrested in the master
bedroom. Concealed in the bathroom attached
to the master bedroom, the police recovered a
brown travelling bag which was later found to
contain heroin.
Facts that show relation of parties
Refer to illustration (b).
Case : Ong Chen Neo v Yeap Cheah Neo
The court held that evidence of cohabitation and
reputation is admissible to prove that a man and a
woman who were living together did so as husband
and wife.
Case : Sean O’casey Patterson’s
The court held evidence of DNA tendered to prove
that the plaintiff to be the father of the child is
accepted to show the relationship between them.
Facts which fix time time or place at which any facts
in issue or relevant facts happened :
 If the facts in issue is the date when a particular
letter was posted, it can be ascertained by the
postal mark which could have the date.
 In a criminal trial for causing bodily injury or
murder, the time the injury was inflicted or
time of death may be a fact in issue.
 In such cases, medical evidence is admissible to
fix the time the injury was inflicted or to
confirm the actual time of death.
Facts which establish identity of thing or person
whose identity is relevant :

 Tan Soon Hock was consequently charged

together with the A for the offence but he died
in police custody just before the trial.

 On these facts the learned judge called on both

the A to enter their defence. Obviously the
presumptions under s 37(da) and (g) of the
DDA had arisen in that both the A had
possession and control of the heroin referred 1. Identification of Person
to in the charge and that they had the
presumed knowledge of the existence of the a) Identification by fingerprints
drug in the house. The question arose whether Case : HP Administration v Om Prakash
both the A have rebutted those presumptions. The comparison and identification of finger
prints has now developed into science and the
 The A in their defence said that the drugs
belonged to Tan Soon Hock. Evidence was
results derived therefrom have reached a stage
of exactitude
Case : PP v Toh Kee Huat
This is an appeal case against the decision of
the Sessions Court order of acquittal to the
accused. The accused was charged under
Section 379 of the Penal Code for theft of a
motor car. The locked car was stolen at night
and was found to be missing the next morning.
On the following day, the car was found
abandoned with the glass on the driver’s door
wound down. The accused fingerprints was
found inside the inner surface of the car. It was
held that the weight of evidence of fingerprints
can never be decried, thus the prosecution had
managed to prove a prima facie case which if
unrebutted warrants a conviction.
b) Identification by video tape
Evidence of identity from a video tape
recording taken while the crime was in
progress is also admissible.
Case : R v Grimer
Where in this case the theft of a bottle spray
cologne was recorded on video tape. The tape
was later seen by a security officer who
identified the thief as the A because he had
known A socially for a number of years. The
court admitted the security officer’s evidence
and the A was convicted. He appealed on the
ground that the judge should not admit the
security officer’s evidence.
The Court of Appeal stated that the evidence is
admissible provided that there is no challenge
to its validity and as long as it is not
inconsistent with other provisions of the Act. A
replay of a video tape recording would re-enact
the crime and thus be the best evidence to
establish identity.
c) Identification by voice
Although identification of voice on the
telephone is admissible, its weight is a matter
of opinion.
Case : Teng Kum Seng v PP
The appellant was convicted on three charges
under Section 385 of Penal Code. A’s method
was to write letter to victims demanding
money followed by a telephone calls. Expert
evidence on handwriting was called and he
compared the letters with specimens of A’s
handwriting and formed opinion that the
extortion letters were in the A’s handwriting. A
appealed on the ground that the handwriting
expert was given undue weight. The High Court
dismissed the appeal and held that there was a
great deal of other evidence such as voice
identification parade and the fact that the third
telephone call was traced through speaker.
d) Visual identification
Case : Dato’ Mokhtar Hashim v PP
This case draws a distinction between a
recognition and identification where
recognition is more reliable than a mere
identification. Recognition of a person known
to the witness would be more reliable than
identification by a witness of a stranger.
Case : PP v Basar
Where the court held that where the
complainant had recognized the accused, then
it would constitute good evidence of
identification.
♥ Identification by photograph / photofit
 There should be no objection to the use of
photographs to assist the police to effect an
arrest; provided that there has been no
prompting and that nothing has been done by
the police to suggest that a particular
photograph may be that of a wanted man.
 The examination of a number of photographs is
itself a kind of identification parade. It is
otherwise when a photograph has been shown
to a witness after arrest; and if that has been
done it may be a ground for quashing a
conviction.
Case : Lai Ah Kam & Anor v R
There is no suggestion that the photo was
shown to any witness after the arrest, so
it does not appear that the action of the
police in any way lessened the value of
the identification at the parade.
 However, it must be noted that subsequent
personal identification is weakened if there
was an earlier identification of photographs –
Case : Chooi Kam Woh v R
The photograph used must not show bad
character of the suspect.
Case : Girdari Lal & Ors v PP
Where the court stated the production of
police photograph and putting it in
evidence tantamount to saying that the
man is of bad character. In

Case : Loke Soo Har v PP
The court also stated that the use of
photographs of known pickpockets to
identify the accused and adducing it in
evidence tantamount to showing the bad
character of the accused and thus such
evidence is not admissible.
Photograph taken of a suspect during the
commission of an offence is admissible to
prove the identity under Section 9. It is
merely an extension of identification by
photograph which is admissible without
offending the rule against hearsay.
This case include photographs taken
automatically in banks or private premises.
However, an expert must be called to
testify that the photograph is genuine and
the working of the camera has not been
tempered in any way.
A photofit picture constructed under the
direction of a witness to a crime is
admissible under Section 9.
Case : R v Cook
Where the court held that the photofit is
not a statement but an innovative form of
a camera at work and thus is not a
hearsay. However, the representation of a
witness’ memory must be done soon or
fairly soon after the commission of a
crime.
♥ Dock Identification
Case : Jaafar Bin Ali v PP
Dock identification given by a witness
identifying an accused as the person
whom he saw at the scene of the crime,
or in circumstances connected with the
crime will generally be of little value if the
witness has not seen the accused since
the events in question
It is well settled that where a witness
identifies an accused who is not known to
him in the court for the first time, his
evidence is absolutely valueless unless
there has been a previous identification
parade.
Case : Kanan v State of Kerala
The idea of holding identification parade
is to test the veracity of the witness on
the question of his capability to identify
an unknown person whom the witness
may have seen only once. If no
identification parade is done, it is not safe
to convict the accused based on his bare
testimony regarding the identification of
the accused for the first time in court.
 Identification of the accused for the first time
in court at the trial is not proper, and it would
be a good practice to hold an identification
parade, which if it turns out to be positive,
would tend to strengthen the case for the
prosecution –
Case : Arumugam s/o Muthusamy v PP
Where the court was also of the view that in certain
instances, dock identification would be sufficient if
the quality of the evidence is good.
Case : PP v Richard Devadasan
This case has established that dock identification is
unsafe and meaningless in the following
circumstances:
 Where the witness failed to identify the
accused at an IP held just after the crime;
 Where the dock identification occurs several
years after the crime was first committed;
 Where the witness identifies the accused in the
dock merely because he is handcuffed
 Where the accused is a total stranger to the
witness
Case : PP v Syed Muhammad Faysal Bin Syed
Ibrahim
Dock identification need to be supported by
evidence of prior identification made at a properly
conducted IP; or by the evidence that the witness
personally knows the accused and recognizes him as
that person.
Case : Tan Kim Hoo v PP
dock identification can be a substantive evidence
where it can be used as corroborative evidence to a
witness’ prior identification in an IP
♥ Identification parade (IP)
The evidence of IP is admissible under
section 9 of the Evidence Act 1950.
Importance of parade :
 Where the accused person
Case : PP v Sarjeet Singh
The necessity of holding an IP can only
arise where the accused persons are not
previously known to the witnesses. It
follows therefore that where the accused
persons are already known to the
witnesses, the question for IP does not
arise.
Case : Janudath Singh v State of UP
If the prosecution fails to hold an IP on the
basis that the witness already knew the
accused well but then it transpires in the
course of the trial that the witnesses did
not know the accused previously, the
prosecution would run the risk of losing
the case.
Case : Arumugam s/o Muthusamy v PP
On the other hand it is too stringent to say
that a conviction can only be sustained by
holding an IP.
Case : Jaafar bin Ali v PP
The court distinguish between cases in
which the accuracy of identification is in
issue and cases in which the only issue is
whether the identifying witness is lying. In
the former, IP is essential because it
depends on reliability of pre-trial
identification where the judge need to
direct himself on the danger of mistaken
identity, in accordance with the
procedures in R v Turnbull. For the latter,
the veracity of the witness is the only
issue, it will not be necessary or
appropriate for IP parade to be held or for
Turnbull direction to be given.
Case : Ong Lai Kim v PP
There is no written law regarding the
procedure for IP.
However, the practice of holding a proper
IP in this country has been summarized in
Mallal’s Criminal Procedure (4th Ed).
The proper procedure are:
1. The IP must be held at the earliest
opportunity and all available witnesses
should be required to come at the very
first parade;
2. The IP should be arranged by the
officer in charge of the station and not by
the investigating officer;
3. The witnesses must not be allowed to
see the accused until the moment when
everything is ready and they walked in to
pick him out, and they should not have
been previously assisted by photographs
or by verbal or written description;
4. All the persons on the parade should
be of the same nationality, same station
in life as that of the suspected person; and
there should be no great disparity of ages
in the persons on the parade;
5. The accused should be placed among a
number of persons – not police – not less
than 10 if one accused, 15 if two and so
on;
6. The accused should be invited to stand
where he pleases among these people,
who stand in a row, and told he may
change his position after each witness has
been called.
7. The accused should be asked if he has
any objection to any of the persons
present or to the arrangement made, and
he should previously have been asked if
he wished to have his solicitor or friend
present.
8. The place selected for the parade
should be well lighted.
9. The witnesses should be brought in
one by one, and are usually allowed to
touch the person they identify;
10. Each witnesses, having succeeded or
failed, should be taken out by different
door and kept apart from the witnesses
who are to come;
11. Every circumstances connected with
the identification, the names of the
witnesses and their decisions, must be
carefully noted by the officer in charge
who must record the proceedings as fully,
fairly and carefully as possible.
 The persons in the line-up need not be of
exactly the same description but it must be self
evident that the more similar their appearance,
the greater the reliability of the identification.
Such a requirement would be quite
impracticable and would lead to serious
problems in the investigations.
 An approach which accords broad
common-sense must be taken – Thirumalai
Kumar v PP
 Case : PP v Mohamed bin Majid
The accused who was a dark complexion was
paraded with persons who were of lighter skin and it
was held that the IP was unfair to the accused as he
was an odd person at the parade.
 Case : PP v Pasupathy s/o Kanagasaby
The IP was held to be unfair as most of the
participants were of different age and height from
the accused.
 Case : Lee Tiaw Chwee v PP
The court held that it is not objectionable for the
participants in the identification parade to have
been differently attired as the identification was
done according to the faces of the accused persons
and not what they wore.
 Case : Teo Peen Soon & Ors v R
Where a witness failed to identify the accused at the
IP but did so when the accused was presented to her
after the parade had been dismissed, it was held
that such identification was highly irregular and
prejudicial.
 Case : PP v Chan Choon Keong &Ors
Where there are two or more suspects, separate IP
must be held.
 It is also submitted that when two are more
suspects are put up for identification at
separate IP by the same witness, then the
persons placed with the suspects should also
be different for each IP.
 Case : Ong Lai Kim v PP
The court stated that there is no express provision in
our law for the use of one-way mirror in holding the
IP, but the English procedure relating to it is
applicable pursuant to Section 5 of the CPC.
 An IP involving the use of one-way mirror may
be hold only when the suspect’s solicitor,
friend or appropriate adult is present or the
parade is recorded in video.
 Case : Jaafar Bin Ali v PP
Where the witness had the opportunity to see the
accused prior to the IP, the IP conducted has
absolutely no weight at all.
 Case : PP v Ong Poh Cheng
Where there are two or more identifying witnesses
they must be kept separately.
 Case : PP v Ho Jin Lock
However, there should be no objection if the
identification witnesses are kept together prior to
the IP provided that there was no communication
between the identification witnesses who had
viewed the persons paraded.
 Case : PP v Ong Phee Hoon James
Breach of procedural requirements in the conduct of
an IP does not automatically render the
identification evidence inadmissible. Such
deficiencies may affect the weight to be attached to
the identification evidence –
 Case : Thirumalai Kumar v PP
However, if there is evidence of bad faith or a
deliberate flouting of procedural requirements,
which undoubtedly prejudiced towards the accused
person, the identification evidence will probably nut
be upheld.
 Case : PP v Pasupathy s/o Kanagasaby
The duty that the IP has been fairly conducted is that
of the police and there is no onus on the accused to
object to irregularities –
 Case : PP v Richard Devadasan
The effect of failure to identify at the identification
parade is fatal to the prosecution’s case.
 However, it does not follow that just because
the judge rejected the evidence of
identification at the IP, he must also reject the
evidence of dock identification.
 Case : Ong Poh Cheng v PP
The judge rejected the evidence of identification at
the IP not because there was no identification of the
A as the robber, but because there were defects in
the conduct of the parade; (the A was in fact
identified). For this case, the rejection of the
evidence of identification at the IP was in no way
fatal to the dock identification of the A as the
robber.
 Case : ST Shinde v State of Maharastra
The case discussed the evidentiary value of evidence
of identification at a parade where it is at best only a
supporting evidence and can only be used as
corroborating evidence. It cannot by itself has any
independent value.
 Case : Ismail & Anor v PP
Lastly, evidence of non-identification of an accused
at the IP must be given.
The Turnbull Guideline – For Judges to Exercise in
Accepting Evidence Regarding the Identity of the
Accused
 Visual identification of suspected persons are
complemented by judicial guidelines
concerning the appraisal of identification
evidence at the trial itself.
 As a result of criticism under which there is no
specific duty imposed on judges to warn the
juries against the proven dangers of mistaken
identification evidence especially when the
identification represents significant part of
proof of guilt of the offence.
 Among the matters that need to be assessed in
determining whether the identification is good
or poor are: (ADVOKATE)
 Amount of time the suspect was under
observation by the witness
 Distance between the suspect and the
witnes
 Visibility at the time the witness saw the
suspect
 Obstructions between the suspect and the
witness
 Knows suspect or has seen him or her
before
 Any particular reason for the witness to
remember the suspect
 Time lapse since the witness last saw the
suspect
 Error or material discrepancy in the
description given by the witness
*If the quality is good and remains so at the close of
the accused’s case, the danger of mistaken
identification is lessened; but the poorer the quality,
the greater the danger.
e) Identification by DNA
Case : PP v Syed Muhammad Faysal Bin Syed
Ibrahim
The court held that the evidentiary value of
DNA evidence is significant where there is
other evidence to link the accused to the crime
either by direct evidence or any other
circumstantial evidence.
The court also held that in order to render DNA
evidence admissible, there must be evidence to
show:
 The person who took the bodily samples for
analysis;
 The person from whom such samples were
taken;
 How the samples were handled, stored and
preserved
 There must also be evidence to show how the
DNA profile was matched and how the
statistical probabilities were calculated.
Where an expert witness gives oral evidence of his
conclusions reached on a DNA analysis without
explaining the reasons that led to such conclusions,
his oral evidence will not be of any evidentiary
value.
Case : PP v Loo Seng Yip
The fact that his reasons are contained in a written
report tendered as evidence will not make any
difference
Case : Hanafi Bin Mat Hassan v PP
A computer printout of a DNA profiling test must
comply with Section 90A of the Evidence Act 1950
before it is admitted.
2. Identification of Article/Things
When the identity of any objects is relevant, then
every fact, which will be helpful in identifying the
object is relevant under Section 9.
Case : Erabhadrappa v State of Karnatraka
The police recovered several articles of the deceased,
which comprised a valuable sarees and ornaments.
A lady of the house identified them as articles
belonging to the deceased. The objection as to the
admissibility was that they were articles of common
use and could not be identified by another person.
The Supreme Court of India held that it is a matter
of common knowledge that ladies have an uncanny
sense of identifying their own belongings,
particularly articles of personal use in the family. The
court also held that there is no legal requirement for
a prior test identification.
However, in Malaysia, the identification of an article
must be carried out on the same principles as
applicable to the identification of a person.
Case : Balfour v PP
CHAPTER FIVE : SIMILAR FACTS EVIDENCE
 The general rule is that, facts which are
relevant merely from their general similarity to
the main fact, and not from specific connection
therewith are not admissible.
 For example, in criminal trial, it is now a trite
law that the court should not infer that simply
because a person has committed a similar act,
therefore he must have done it again.
 The inadmissibility of such evidence is referred
to as similar fact evidence, and forms one of
the four great canons of the law of evidence at
common law (others being character, opinion
and hearsay).
 Like all general rules, this rule also provides an
exception to its admissibility.
 Similar fact evidence is evidence that a party
(especially the accused) has on previous
occasions misconducted himself in a way
similar to the misconduct being alleged against
him in the proceeding before the court. The
evidence frequently takes the form of a
previous conviction.
 In general, the prosecution may not offer
similar fact evidence as part of its case unless it
can be shown to be relevant to an issue before
the judge, for example by rebutting some
defence advanced by the accused.
 Thus, if a person is charged with fraud
contends that he was honestly mistaken, the
fact that he has committed similar frauds on
previous occasions may be admissible. The
judge may however, in his discretion exclude
otherwise admissible similar fact evidence if he
considers that it would have an adverse effect
on the fairness of the proceeding.
 Case : Noor Mohammed v The King
The accused was tried for the murder of his wife by
poisoning her with potassium cyanamide. The
conviction was based on the evidence that some
two years earlier his previous wife has died in the
same way.
The Privy Council held that this evidence was not
relevant to prove the charge against him of
murdering other woman. The Privy Council stated:
“If it was not relevant it was at the same time
highly prejudicial... By looking at the previous history
of criminality of the accused, the court may blindly
jump to the conclusion that the accused should be
guilty... Evidence of the accused having committed
crimes other than that with which he is charged is
not admitted.”
COMMON LAW POSITION
The Specific Purpose Test
The phrase similar fact evidence now is popularly
understood to mean all evidence, which shows that
on some other occasion the accused has acted in a
similar manner.
The leading case on point where similar fact
evidence was admitted is:
Case: Makin v AG for NSW
The Makins were charged with the murder of a child
who had been left with the Makins by the mother.
The child’s body was discovered in the Makins
garden and after searches in the gardens of other
houses they had lived in, several other babies’
bodies were found. The Makins argued that the
death of the baby was an accident and the
prosecution wanted to call evidence of other bodies,
which had been found to show that although one
death could be explained away as an accident, the
death of a dozen or so could not be.
 Evidence of previous murders of other babies
were tendered to rebut the defence raised by
the accused that they only wished to adopt the
baby, and that the baby’s death was accidental.
Therefore, the Privy Council admitted the
evidence as it suggested that the current
charge for the murder of the baby was not
accidental.
 In addition to those mentioned by Privy Council
in Makin’s case, further categories were
created for evidence showing system; evidence
designed to :
 To show design or to prove system;
 To show identity
  To rebut the defence of mistake or
innocent association
 The problem with the Makin’s test is that, to
admit similar fact evidence, the party must fit
the similar facts in one of the categories /
compartments.
 Arguments were adduced that the party may
introduce new category if they want to adduce
similar fact evidence, as long as there is a
specific purpose for introducing such evidence.
 The exceptions proposed by Makin’s case were
too wide that it led to the creation of a
non-exhaustive list for admitting SFE, thus
causing the general principle ineffective.
The Probative Value Test :
The counter-argument in the case of Harris v DPP
states that, it is not possible to compile an
exhaustive lists of similar facts evidence.
The right or correct approach is to look at whether
the similar fact, taken together with other evidence,
would strengthen or raise suspicion that the accused
could have committed the offence or would point so
strongly to his guilt.
The Makin’s test of specific purpose has been
criticized in Boardman V DPP :
 Facts : Boardman was a headmaster at a boys’
school in Cambridge. He faced charges in
relation to two of his pupils, S and H. Each boy
said that Boardman had visited him late at
night in their dormitory. He then invited each
to his room where he suggested that the boy
took the active part in the act of buggery.
 With regard to S, the charge was that of
buggery itself, with regard to H, it was
incitement.
 At trial, the prosecution was allowed to have
both counts tried together.
 However, the accused argued that the jury
would be unduly prejudiced by hearing these
two similar allegations and that there should
be separate trials.
 The judge dismissed the application for
separate trials and directed the jury that they
were entitled to take into account S’s evidence
when deciding the count with regard to H and
H’s evidence on the S count.
 The House of Lords had to decide whether the
judge was right.
 Held : The evidence of the accused’s
misconduct was admissible on each count,
provided the judge could rule out the
possibility of the boys getting together to
concoct the story and he could rule out the
possibility of stories being a coincidence.
 The House of Lord also held that the facts of
present case were on the borderline of
admissibility. The mere fact that each boy said
that they were invited to play the active part
did not by itself appear to be sufficiently
remarkable that it could be said that the
possibility of coincidence could be ruled out.
But, there were sufficient other similarities
between the two boys’ stories that there was
no real likelihood of coincidence.
* - the essence of the exception to the
inadmissibility of SFE is to allow such evidence if it
has a sufficient degree of probative force so as to
override any prejudicial effect that it might have.
- the similarity would have to be so unique or
striking that common sense makes it unexplainable
on the basis of coincidence.
 Lord Wilberforce wrote: 'The basic principle
must be that the admission of similar fact
evidence ... is exceptional and requires a strong
degree of probative force.’
 For his part, Lord Cross, quoting Viscount
Simon in Harris v DPP, asserted that it is
impossible 'to compile an exhaustive list of the
sort of cases in which 'similar fact' evidence ...
is admissible'. According to Lord Cross, the
admissibility decision should turn on the
degree of probative value.
 Like Lord Cross, Lord Hailsham declared that
the admissibility of similar fact evidence could
not be governed 'by categorization’ or
‘simplistic labels.’ His Lordship added that the
probative value of similar fact evidence
depends upon the context in which they are
tendered, the task which they are expected to
perform, and the assistance which they receive
from other evidence given before or after they
are received.
 Lord Salmon declared that there is a sufficient
degree of probative value to warrant admitting
similar fact evidence when the similarity
between the stories testified to by the alleged
witnesses to the charged and uncharged crimes
is 'so unique or striking that common sense
 makes it inexplicable on the basis of
coincidence'.
The Striking Similarity Test
Case : R v Sims
The expression 'striking similarity' was coined by
Lord Goddard CJ in R v Sims [1946] 1 All ER 697. In
that case, the accused had been charged in an
indictment with six counts alleging homosexual
offences involving four men. Each man give evidence
that the accused had invited them to his home and
there committed the offence against them. The
accused admitted that the men had come to his
house but said that it was for an innocent purpose.
 The Court of Appeal held that the evidence on
one count was admissible on the other counts
because 'the acts they described bear a
'striking similarity'.
*This dictum was approved by the House in
Boardman.
 Lord Wilberforce held that, ‘this probative
force is derived, if at all, from the circumstance
that the facts testified to by the several
witnesses bear to each other such a striking
similarity.
 The same idea is sometimes expressed by
saying that the various incidents must show(4) :
 striking resemblance
 Underlying unity
 unusual features
 unique similarity
 It should be pointed out that to be of
significance, the similarity has sometimes to be
dissimilar from any other person's criminal
activities and peculiar to the accused.
 The difference between 'mere general
resemblance' and 'striking similarity' is one of
degree. The fact that an extrinsic event is of the
same legal type as the one in question is
insufficient. There must be specific similarity in
procedure, circumstances or mode of
execution.
Case : R v Smith (‘brides in the bath’ case)
The accused was charged of one murder but
evidence was offered of two more. The admission of
this evidence followed similarly from the
improbability that three different women with
whom the accused had gone through a form of
marriage, and who had made financial
arrangements from which he would benefit, had all
drowned in the bath by accident shortly during their
honeymoon.
*issue : whether fulfill all (4) requirements in R v
Sims.
 The Court of Appeal in R v Scarrot however,
had warned that too much importance should
not be attached to this label.
 Lord Mackay in R v P made it clear that the
presence of a striking coincidence is not the
universal test for the admissibility of similar
fact testimony.
 Quoting extensively from the speeches in
Boardman, Lord Mackay stressed that it was
wrong 'to single out "striking similarity" as an
essential element in every case'. The judge has
simply to consider whether the probative force
of the other misconduct is 'sufficiently great to
make it admissible evidence, notwithstanding
that it is prejudicial to the accused in tending to
show that he was guilty of another crime'.
MALAYSIAN POSITION
Section 11(b) of Evidence Act 1950
“Facts not otherwise relevant are relevant – if by
themselves or in connection with other facts, they
make the existence or non-existence of any fact in
issue or relevant fact highly probable or
improbable”.
Case : RV Raju & Ors v R
 The 1st and 2nd appellants appealed against
their conviction in the lower Court on two
charges of corruption and the 3rd appellant
against his conviction of abetting these
offences. There was no evidence that the first
two appellants received the sums of money as
charged. There was some evidence that the 3rd
appellant received the moneys but no evidence
that he passed them to the first two appellants.
 However evidence was admitted that on
different occasions certain persons had paid
money to the 2nd appellant. The learned
President considered these similar facts as
relevant and admissible because they showed
system. On appeal, the court discuss the
admissibility of similar facts under the Evidence
Act 1950. The court also added that since there
were no direct evidence to implicate the 1st
and 2nd appellants, the conviction against
them should be quashed and the court ordered
a retrial for the 3rd appellant.
Case : Abubakar Ismail v R
The appellant, an Assistant Licensing Officer, was
convicted on 2 charges with making a false
statement for the purpose of obtaining the grant of
a driving licence. In each case the application form
was endorsed by the appellant to the effect that he
had seen the applicant's Federation driving licence,
which thus exempted the applicant from the
necessity of passing a driving test in Singapore.
Evidence to show similar endorsements by the
appellant was produced. One of the grounds of
appeal was whether such evidence of similar acts
was admissible.
*The court in admitting the evidence, referred to
Section 11(b)
The fact in issue was whether, upon the dates
referred to in the charges, Federation driving
licences were produced to the appellant or not.
Does the fact that on the 8 previous occasions the
appellant made similar endorsements without any
Federation driving licence being produced make it
"highly probable– that no Federation driving licences
were produced upon the 2 dates which are material
to these charges? Or does it merely tend to prove
that the appellant, having done this before, is the
sort of man who would probably do it on the 2
occasions charged.
The court held that the evidence of similar acts in
this case went far beyond showing that the
appellant, having committed similar acts previously,
was a person who was likely to have committed the
2 acts with which he was charged, and that the
evidence of the previous 8 cases was relevant to the
issue which was before the Court.
Section 14 of Evidence Act 1950
“Facts showing the existence of any state of mind,
body or bodily feeling is relevant when the existence
of such state of mind, body or bodily feeling is in
issue or relevant.”
 It is to be noted that both Section 14 and 15
must be read together in the context of the law
of evidence relating to similar fact evidence.
 Section 15 is an extension of Section 14 and
thus is wider in its application. The important
distinction between both the sections is that
under Section 15, the fact sought to be proved
must form part of a series of similar
occurrences and Section 14 is not restricted in
this way.
 Under Section 14, the facts made relevant are:
(Illustration (e) to (j), (o) and (p) deal with intention;
(a) to (d) deal with knowledge; and (n) with
negligence and knowledge) :
Facts showing existence of any state of mind such as
intention, knowledge, good faith, negligence,
rashness, ill-will or good-will towards any particular
person when the existence of any such state of mind
is in issue.
 Illustration (k), (l) and (m) deal with bodily
feeling :
Facts showing the existence of any state of body or
bodily feeling when the existence of any such body
or bodily feeling is in issue.
 Explanation 1 to the section prescribes that a
fact relevant as showing the existence of a
relevant state of mind must show that the
state of mind exists not generally but in
reference to the particular matter in question.
Thus, the facts that may be admitted under the
section are restricted to those that have an
immediate reference to the facts in issue.
 Illustration (a), (b), (c), (n), (o) and (p) provide
example of the restriction placed on the
section by this explanation.
Case : PP v Teo Ai Nee & Anor
Facts : infringement of copyright material.
 Illustration (a) could not assist the appellant's
case because it required that the accused be in
simultaneous possession of subject-matter of
the previous charges as well as the
subject-matter of the present charge. Here,
there was a lapse of ten years between the two
instances of possession of infringing goods.
 Illustration (c) required the subject-matter of
the previous complaints to be the same as the
present charge. But the sound recordings in the
previous charges and that for the present
charge were not the same.
 Illustration (o) demonstrated how particular
and specific this state of knowledge should be.
This was not satisfied on the facts, as was
previously explained.”
 Explanation 2 provides that previous
commission of offence is relevant under within
the meaning of this section and the previous
conviction of that person shall also be relevant.
Section 54(2)(a) must be read together with
this explanation.
 See illustration (b) for example.
 Section 14 is also applicable to civil cases
where illustrations (c) – (g), (k), (m) and (n)
relate to civil matters.
Case : Mood Music Publishing Co Ltd v De Wolfe
Ltd
In civil cases, the courts will admit of similar facts if
it is logically probative and relevant in determining
the matter which is in issue; provided that it is not
oppressive or unfair to the other side; and also that
the other side has fair notice of it and is able to deal
with it.
Section 15 of Evidence Act 1950
“In determining whether an act was accidental or
intentional or done with a particular knowledge or
intention, the fact that the act formed part of a
series of similar occurrences is relevant.”
Refer also illustrations (a) – (c)
The section requires three conditions to be satisfied
before it can be invoked. They are:
1. There must be an issue as to whether an act
was accidental or intentional or done with a
particular knowledge or intention;
2. That issue must form part of a series of similar
occurrences; and
3. In all those similar occurrences, the person
doing the act must have been concerned.
 The court in dismissing the appeal held in view
of the statutory presumption under section 144
of the Road Traffic Ordinance 1958, the
question of whether or not on the material
date the conveyance of passengers was for hire
or reward does not arise in a prosecution under
this section. It was to be presumed.
 It was for the defence to show that the
passengers were not carried for hire or reward.
The obvious way, besides a bare denial, of
proving a negative proposition such as this, was
for the accused to call evidence to show that
the incident in respect of which he is charged
was an isolated one and that all the passengers
happened to be in the car through
circumstances which are fortuitous and not
intentional.
issue : whether the previous conviction is relevant
and admissible as evidence of similar fact
Law : choose sec 11/14/15 + apply common law test

Case : Maidin Pitchay & Anor v PP

 The appellants were convicted by a magistrate
of offences under the Road Traffic Ordinance
1958. The first appellant was charged for used
of a motor vehicle and the second appellant,
who was the registered owner of the said
vehicle, for permitting its use as a public
service vehicle without a valid license and using
the said vehicle without there being in force a
policy of insurance in respect of third party risk.

 At the trial, two police constables testified that

they had kept watch over the said vehicle
almost daily and during that period, had seen
and recorded particulars of their observations.
The first appellant was observed by police to
have been using the same car in all 60 trips for
conveyance of passengers of different racial
origins. On the date of the commission of the
alleged offence, the first appellant was stopped
by the police and found to be carrying 5
passengers.

 The defence was called. The first appellant

denied carrying passengers concerned for hire
or reward but averred that he has intended to
give them a free lift. The second appellant's
defence was a general denial of the charge. He
denied giving any authority to the first
appellant to convey passengers for hire or
reward.
CHAPTER SIX : ADMISSION & CONFESSION
Introduction :
Case : PP v Dato Seri Anwar Ibrahim (No. 3)
Admission and confessions are exceptions to the
hearsay rule
The Evidence Act 1950 places them in the category
of relevant fact evidence presumably on the ground
that, as they are declarations against the interest of
the person making them, they are probably true.
Definition :
 Section 17(1) of the Evidence Act 1950 defines
admission as any statement, either oral or
documentary suggesting any inference as to
any fact in issue or relevant fact. Admissions
may be proved in both civil and criminal cases.
 Section 17(2) defined confession as an
admission made at any time by a person
accused of an offence, stating or suggesting the
inference that he committed that offence.
Categories of person from whom admission can be
made :
Generally, an admission can be proved only against
the party who made it and not against any other.
This is stated in Section 18 (1).
This section enumerates the category of persons
whose statements may amount to admission within
the meaning of Section 17. They can be grouped
under three classification as follows:
 Admission by a party to the proceeding;
 Admission by an agent of a party; and
 Admission by a person interested
1. Authorised agent
 The agent who would represent a principal in
transaction of business by virtue of an
authority given to him, either expressly or
impliedly by the principal.
Case : Teh Eok Kee v Tan Chiah Hook
Admissions by those in privity with the party are
admissible. The party includes predecessor in title,
referees and servants or agents acting within the
scope of authority, and qualified that an admission
of an agent is unacceptable unless the fact of his/her
agency is proved.
2. Parties in representative capacity
 Section 18(2) : refers to trustees or executors,
and statements by them are admissible so long
as they were made while they were holding
those characters.
Case : Re Cohen; Ex parte Trustee
An admission by a trustee in bankruptcy in an
affidavit filed by the appellant to be used against the
respondent was held to be admissible. It was held
that save for bankruptcy cases, admission of a
person in a representative character can be used
against a third party.
3. Parties who have propriety or pecuniary interest
 Section 18(3) admits admission by person who
has any proprietary or pecuniary interest in
subject matter.
 It refers to category of person who derives an
interest by virtue of an interest in the subject
matter.
Case : Bee Hock Sdn Bhd v Yuwang Sdn Bhd & Ors
The plaintiff, through its directors, affirmed a
statement of account which confirmed the
correctness of the disbursement sum in the loan
agreement. This was regarded as admission of the
money received in the proceedings.
Case : Ranhill Bersekutu Sdn Bhd v Konsortium
Lapangan Terjaya Sdn Bhd
It was held that the admission under Section 18 of
the Evidence Act 1950 are conclusive evidence and
are admissible to negate the element of dispute and
can be used against the person making it.
4. Independent third party
 Parties who are not parties to a suit or
proceeding are admissible .
 When a person who is not a party to the suits
admits liability which includes or implicates a
party to the suit, his or her admission can be
considered against the party.
Refer Section 19 & 20
Being the general rule as it is, a number of
exceptions are available in the Evidence Act 1950.
 Section 19 and 20 are exceptions to the
general rule laid down in section 18. They
indicate when and under what circumstances
admissions made by persons who are not
parties to the suit are admissible.
 The illustration to the section explains
how this section works.
 Section 21 indicates that an admission is
relevant and may be proved against the person
who makes it. But an admission cannot be
proved by the person who makes it except in
the circumstances mentioned in paragraph (a)
–(c).
 Refers illustrations of that section for full
understanding of the application of the
section.
 Case : PP v Dato Seri Anwar Ibrahim (No
3)
what a party expresses against his interest may
be presumed to be true and therefore should
be admissible
Case : Low Kian Boon & Anor v PP
The court construed a reply made by the second
appellant to a witness when he was questioned as to
the blood on his clothes, that he had killed someone,
as an amounting to and admission and as admissible
under Section 21.
 As for Section 22, the section provides that an
oral admissions as to the contents of a
document are not relevant. There are however
two exceptions to this rule.
They are:
 where the party proposing to prove them
shows that he is entitled to give secondary
evidence of the contents of the document
under Section 65; or
 Where the genuineness of a document
produced is in question.
Admission without prejudice
 In civil cases, an admission is not relevant if
there is an agreement that such admission
should not be given as evidence in court.
 This type of admission is usually called
admission without prejudice.
 The admission is not admissible because the
court encourage the parties to settle the
dispute outside court, and any admission by
parties during the negotiation on a without
prejudice basis will not be admissible.
 Refer to Section 23 of the Evidence Act 1950
where there are two situations in which
admission in civil cases is not relevant.
 The admission is not admissible where:
 the admission is made upon express
condition that evidence of it is not to be
given; or
 under any circumstances from which the
court can infer that the parties agreed
together that evidence of it should not be
given.
 The rationale for the exclusion of the admission
is explained in Rush & Tompkins v GLC & Anor,
where the court held that this rule is founded
on the principle of public policy of encouraging
litigants to settle their differences rather than
litigate them to a finish. Parties should not be
discourage by the knowledge that anything
that is said in the course of such negotiations
may be used to their prejudice in the course of
the proceedings.
 Thus, it can be said that the rule applies to
exclude all negotiations genuinely aimed at
settlement, whether oral or in writing, from
being given in evidence.
On the interpretation of Section 23, reference may
be made to English cases as the section is based on
similar common law principles –
Case : AB Chew Investment Pte Ltd v Lim Tjoen
Kong
Where the court admitted the fact that Section 23
merely states a broad principle and does not specify
detailed rules and thus, reference to the English law
on this point is important.
Case : Malayan Banking v Foo See Moi
It was held that two common features must be
present before these privileged communications
could be activated, namely:
 That some individuals must be in dispute and
that dispute led them to negotiate with one
another;
 The communications between the parties must
contain suggested terms that would finally lead
to a settlement of the dispute.
 This conditions were also emphasized in the
case of Dusun Desaru Sdn Bhd v Wang Ah Yu
those negotiations will, as a general rule, not be
admissible at the trial and cannot be used to
establish an admission or partial admission.
 Thus, the case indicate that the ‘without
prejudice’ label may be lifted if no negotiations
are taking place; or where there has been a
waiver of such a privilege.

A common manner in expressing an intention to  It must be noted therefore that in deciding

exclude the admission is to ensure that the
communications are made ‘without prejudice’.
In fact a competent solicitor will always endorse
negotiating correspondence ‘without prejudice’ to
make clear beyond doubt that in the event of the
negotiations being unsuccessful, they are not to be
referred to at the subsequent trial.
whether the communications should be
excluded, the court must look at all the facts
and circumstances.
 Case : Wong Nget Thau v Tay Choo Foo
The ‘without prejudice’ endorsement or the lack of
it is not conclusive of the nature of the
communications.

These communications are frequently referred to as

privileged communications.

It was therefore held in :

Case : Ted Bates (M) Sdn Bhd v Balbir Singh Jholl
That a letter in which the borrower admitted a debt
and requested for time to repay the sum did not fall
within the ambit of Section 23 and was therefore
admissible as there was no evidence to show that
the admission was made in the course of a
negotiation.

A similar view was reiterated in :

Case : Boss s/o Ramasamy v Penang Port Sdn Bhd
In this case, the P who was appointed to the
department of the Suruhanjaya Pelabuhan Pulau
Pinang (SPPP) as a security officer had claimed
against SPPP for various orders. The correspondence
which involved the without prejudice
communications was a letter where the D has
admitted liability to the P on the claim. It was held
that the letter was in fact an ‘initiating letter’ or ‘an
opening shot’, following certain telephone
conversations between the P and the representative
of the D, rather than a letter written in the course of
negotiations wherein a settlement between the
parties had been proposed.

Case : Hu Chang Pee v Ting Pek Khing

Where the acknowledgment of a debt was made in
an affidavit, it was held that such admission was not
privileged under Section 23.

However, the rule is not absolute :

Case : Rush & Tomkins Ltd v GLC & Anor
Where the court also held that the rule is not
dependent alone on the use of the phrase ‘without
prejudice’ and if it is clear from the surrounding
circumstances that the parties were seeking to
compromise the action, evidence of content of
Confession
 All confessions are admissions but admissions
are not necessarily confessions.
 Thus, it seems to be clear that the court will
only treat a statement as amounting to a
confession if the accused admits to the
elements which constitute the offence; that is
the intention to commit the offence i.e the
mens rea (unless mens rea is not the element
of the offence) and the commission of the
unlawful act i.e the actus reus.
Case : Anandagoda v R
The court stated that the test whether a statement
is a confession is an objective one which is whether
to the mind of a reasonable man who reads the
statement at the time and in the circumstances in
which it was made, it can be said to amount to a
statement that the accused committed the offence
or suggested the inference that he committed the
offence. The statement also must be looked at as a
whole on its own terms without reference to
extrinsic facts.
Admissibility of Confession
Case : R v Wong Ah Kin & Ors
The court held that a confession is relevant under
Section 21. Its admissibility however depends on
whether it has been affected by any of the vitiating
factors stipulated in Section 24, 25 or 26 of the
Evidence Act.
“The Evidence Ordinance defines an admission and a
confession, a confession being included under the
general definition of admissions. And then under
Section 21 it makes admissions relevant. The effect
of that is that all confessions are relevant and can be
proved unless they are excluded by some other
section of the Ordinance, or by some other rule of
law not perhaps contained in the Ordinance.”
Factors that may affect the admissibility of
confession
 Confession made as a result of threat,
inducement or promise – Section 24
 Confession made as a result of oppression
 Confession made to police officer below the
rank of Inspector – Section 25
 Confession made whilst in the custody of a
police officer – Section 26
1) Confession made as a result of inducement or
promise
 Refer to Section 24 of the Evidence Act 1950.
 To attract the prohibition under Section 24,
these facts must be established:
 The statement in question must be a
confession;
 Such confession has been made by
accused person;
 The confession has been obtained by
reason of any inducement, threat or
promise;
 Such inducement, threat or promise
proceeds from a person in authority;
 Such inducement, threat or promise must
have reference to the charge against the
accused;
 Such inducement, threat or promise must
in the opinion of the court give accused
any advantage or avoid any evil of a
temporal nature.
Meaning of inducement, threat or promise
 The words ‘inducement, threat or promise’
have not been defined in the statute.
 Thus, threats or inducements need not only be
made by direct means. An indirect approach
may be sufficient, for example, the manner of
speech or conduct of the person in authority
may affect the mind of the accused to make a
confession whether he like it or not.
Some example may include:
Case : R v Thomson
‘tell me where the things are and I will be
favourable to you’
Case : R v Richards
‘If you do not tell me all about it, I will send for a
constable’
Case : R v Kingston
‘You had better tell all you know’

Case : PP v Liik Ching Kwong
‘You must tell the truth, or else you will charged’
Case : R v Fennel
‘You had better tell the truth, it may be better for
you’
 Thus, words uttered by person in authority can
be used to affect the voluntariness of a
statement only if it can be shown that they had
an effect on the willingness of the accused to
give the statement.
 A piece of advice therefore could also
amount to a threat resulting in a tainted
confession.
Case : Aziz Bin Muhammad Din v PP
Where the accused was advised by his father to tell
the truth, it was held that such advice amounted to
a threat.
 Therefore, the task of the court in
determining the voluntariness is to apply
its mind on what is the effect of such
inducement, threat or promise. The court
should not be restricted by the existence
of any particular words.
 The test is part objective and part
subjective – the objective part is satisfied
if there is a threat, promise or inducement
and the subjective part is satisfied when
such threat, inducement or promise
affected the mind of the accused through
hope of escape, or fear of punishment
connected with the charge.
Continued operation of inducement, threat or
promise
 If the inducement was made some time prior
to the confession, it may be possible for the
prosecution to argue that the effect of the
threat, inducement or promise had dissipated
and that therefore the confession was
voluntary.
 Refer to Section 28 of the Evidence Act
1950
Case : Lim Sing Hiaw v PP
The Federal Court held that the accused, who had
been in the hands of members of Special Branch and
that during this time they showed him the body of
his friend who had been killed and that they
threatened him that if he did not make a statement,
he himself would be taken out into the jungle and
shot, was still under the operation of a threat when
he confessed to one Inspector Lingam subsequently.
Case : PP v Naikan [1961] MLJ 147
Where the accused confessed to his estate manager
and two hours later to a magistrate, it was held that
the inducement in respect of the first confession
continued to operate in relation to the second
confession.
Case : R v Smith
The court held that when a soldier who was part of a
group of soldiers who had been threatened by their
sargeant-major with extra-parade duty until a
confession was made from one of them, and who
did confess, was no longer under the influence of
this threat when he confessed to the investigating
officer a day later.
Factors that do not affect the voluntariness of a
confession
 It must be noted that there may be certain
factors surrounding a confession but which do
not render the confession involuntary. These
may include:
 The confession was made under a
promise of secrecy; or
 The confession is made in consequence of
a deception practiced on the accused
person; or
 The confession was made when he was
drunk; or
 The confession was made in answer to
questions which he need not have to
answer; or
 The confession was made when the
accused was not warned that he was not
bound to make a confession and that
evidence of it might be given against him.
Refer to Section 29 of the Evidence Act 1950
Person in authority
 In order to attract the prohibition contained in
Section 24, the threat, inducement or promise
must have proceeded from a person in
authority.
Case : Deokinanan v R
A person in authority was defined as someone
engaged in the arrest, detention, examination or
prosecution of the accused.
 It must be noted that a police officer is a
person in authority within the meaning of
Section 24, but a person in authority in the
context of section 24 is not synonymous with a
police officer. In fact, in some circumstances,
the complainant in a criminal prosecution may
be a person in authority.
 The question whether a person in question is a
person in authority is to be viewed subjectively,
that is to say, from the point of view of the
accused person who made the statement.
 The proper test is ‘did the accused truly believe,
at the time he made the declaration, that the
person he dealt with had some degree of
power over him?’
Examples :
Case : Murugan v PP
head kangany of an estate;
Case : PP v Naikan
manager of an estate
Case : Jubri v PP
a penghulu;
Case : Chye Ah San v R
an excise officer;
Case : PP v Haji Kassim
psychiatrist in a mental hospital;
Case : Aziz Bin Muhammad Din v PP
Father (in the presence of the arresting officer)
Example where the court held that a person is not a
person in authority:
Case : R v Tara Singh
watchman who had detained the accused;
Case : Re Lee Kim Ching
fellow workers
Reference to the charge
The inducement, threat or promise must have
‘reference to the charge.’
Case : Ong Hock v R
The accused had been threatened to the effect that
unless he revealed all, he would not be permitted to
see his family or that his family would be in trouble.
The court held that his confession was voluntary.
This requirement has been criticised in
Case : Commissioners of Custom & Excise v Harz &
Anor
Where the court has stated that the rule of formula
is illogical and unreasonable. The court went on to
make an analogy of a mother that would make a
confession if she was told that the prosecution
would drop charge against her daughter rather than
if she was threatened to tell the truth or else it will
be worse for her. If we follow the rule, the resulting
confession for the former will be voluntary, but to
the latter situation, it is not voluntary.
Case : Lim Kim Tjok v PP
The confession was ruled involuntary although the
threat had no express reference to the charge (the
accused was merely told that he should tell the
truth).
Avoiding evil of temporal nature :
 The accused confession will remain voluntary if
the inducement, threat or promise is spiritual
in context.
 The rationale behind this principle is that
spiritual inducements may bring the truth out
of persons who are religiously inclined.
 Same goes to accused who is not religiously
inclined, where the spiritual inducements will
not be operative and if he confessed, his
confession is still voluntary.
2) Confession made as a result of oppression
Case : Dato’ Mokhtar Bin Hashim v PP
Although ‘oppression’ has not been given any
statutory meaning, it has gained momentum as an
additional factor to render a confession involuntary
Case : R v Priestly
The court defined ‘oppression’ as something which
leads to sap and had sapped that free will which
must exist before a confession is voluntary.
Case : R v Fulling
Oppression was referred to as an exercise of
authority or power in a burdensome, harsh or
wrongful manner.
The court in PP v Chan Choon Keong & Ors stated
that in determining what ‘oppressive circumstances’
amount to, the relevant factors to consider include:
 The characteristics of the accused;
 The period of time during which he was
questioned;
 The length of time during which he is in
custody and
 Whether or not he was given refreshment and
opportunities to rest.
Case : PP v Chong Boo See
The court stated that the test of what amount to
‘oppression’ depend upon subjective considerations
such as his age, health, sex and personality.
Case : PP v Kamde Raspani
the accused was interrogated for 17 hours and since
such interrogation was conducted after 6.30pm, it
was held not only to be oppressive but also to be in
breach of Rule 20 of the Police (Lock-Up) Rules 1953.
Case : PP v Veeran Kutty
It was held that although the accused was
interrogated after 6.00pm, it was only a minor
breach of the Lock-Up Rules. In this case however,
the accused was only interrogated for four hours.
Aspects of psychological oppression must not be
ignored :
Case : Hasibullah Mohd Ghazali v PP
The court held that handcuffing an accused could
cause him psychological oppression. In this case, the
accused was forced out of his bed where he had
been sound asleep, during the early hours of the
morning and he was handcuffed during the
interrogation.
Case : PP v Goh Kim Looi
The court held that the manner of the interview
conducted by a male officer on a female accused,
one to one and in a small closed room had caused
psychological oppression.
Situations which were held to be oppressive
include:
 where the accused was interrogated for long
and at odd hours – PP v Dato’ Mokhtar Bin
Hashim
 where the accused was denied sleep or
refreshments from the time he was brought
into the custom office at night until his
cautioned statement was recorded in the
morning – PP v Tan Gong Wai
 where the accused had been questioned the
whole night with his hands handcuffed behind
his back – PP v Chan Choon Keong & Ors
 If a confession is objected on the ground that it
was not voluntary, then the whole trial is
stayed in order to determine the voluntariness
of the confession in a trial within a trial (voire
dire).
 It has to be noted that there is no burden on an
accused to prove that a statement recorded
from him is involuntary. The burden lies on the
prosecution to show positively that the
statement was voluntarily given - PP v Dato’
Mokhtar Bin Hashim
Case : Chan Ming Chen v PP
The court also held that there is no burden on the
accused to raise a resonable doubt as to the
voluntariness of a cautioned statement. The only
burden on an accused is to show suspicious
circumstances surrounding the making of the
cautioned statement. The court may ruled that the
statement is not admissible if there is reasonable
suspicion as to the voluntariness of the statement.
 After the voire dire, if the confession is held to
be voluntary, then the prosecution is allowed
to refer to the confession. If not, the confession
cannot be used in the main trial.
3) Confession made to police officer below the rank
of inspector
Refer to Section 25 of the Evidence Act 1950
 Subject to any provision contained in any
written law, no confession made to a police
officer below the rank of Inspector by a person
accused of any offence shall be proved as
against the person.
 It must be observed that this section only
excludes a confession. Thus, an admission may
be proved against the accused person although
the admission is made to the police officer
below the rank of Inspector.
Case : Pakala Narayana Swami v King Emperor
The court stated that Section 25 covers a confession
made to a police officer before any investigation has
begun, or not otherwise in the course of
investigation.
Case : Tan Shu En & Anor v PP
A confession which is admissible under Section 25
may still be inadmissible if the provision of Section
26 apply.
As to the meaning of the words ‘police officer’
mentioned in Section 25 :
The court in Jubri Bin Salleh v PP and Tan Shu En &
Anor v PP held that any person who has been vested
the same powers of those possessed by a police
officer should be considered as a police officer for
the purpose of the section.
Case : R v Wong Ah Kin & Ors; Man Woo v R and
Chua Beow Huat v PP
It was decided that the words ‘police officer’ must
be strictly construed to mean that he is a member of
the Police Force and nothing else. The words ‘below
the rank of Inspector’ can only have reference to
that body ordinarily known as the ‘police’ and which
is governed by the Police Ordinance.’
 This section is subject to Section 113 of the
Criminal Procedure Code (CPC) where it is
 wider in scope as it includes statement,
whether it amounts to a confession or not.
 Section 113 of the CPC provides that any
statement made by any person to a police
officer in the course of a police investigation
shall not be used in evidence.
There are several exceptions provided under the
provision namely:
 Statement made by any witness (other than
accused) to a police officer may be used to
impeach the credit of the witness – Section
113(2);
 Where the accused himself want to make
admissible his statement to a police officer
which was made during the course of
investigation for the purpose to support his
defence – Section 113(3);
 Statement made in the course of identification
parade, or falling within Section 27 or Section
32 (1)(a), (i) and (j) of the Evidence Act 1950 –
Section 113(4);
 When any person is charged with any offence
in relation to the making or the contents of any
statement made by him to a police officer in
the course of a police investigation, that
statement may be used as evidence in the
prosecution’s case – Section 113(5).
Example : giving false report.
 The effect of Section 113 now is that, any
statement (may include confession) by the
accused person to a police officer (even though
above the rank of an Inspector) cannot be
proved against the accused except under any
of the circumstances mentioned in Section 113.
 However, for certain type of offences, the
confession of an accused person to a police
officer / government officer may still be used
as evidence provided that the confession was
voluntarily made, and after the accused has
been cautioned.
 See Section 37A of the Dangerous Drug Act
1952 and Section 53 of the Malaysian Anti
Corruption Commission Act 2009
4) Confession made whilst in police custody
Refer to Section 26 of the Evidence Act 1950
 Subject to any express provision contained in
any written law, no confession made by any
person whilst he is in the custody of a police
officer shall be proved as against that person,
unless it is made in the immediate presence of
a Sessions Court Judge or Magistrate.
 Whilst section 25 relates to a confession made
to a police officer, this section is concerned
with a confession made by accused person to
police officer (may include those who is below
the rank of an Inspector) or any third person
while he is in the custody of a police officer. In
order for the confession to be admissible, it
must have been made in the immediate
presence of a Sessions Court Judge or
Magistrate.
 Unlike Section 25, it must be noted that this
section applies to all categories of police
officer.
 The word ‘custody’ appearing in Section 26 is
not restricted to custody of a person after
formal arrest.
It has been held in Sambu v R & Eng Sin v PP
That a person is in custody when he is in a state of
being guarded and watched to prevent his escape.
Case : Eng Sin v PP
The confession was made to a doctor when he is in
the custody of the police. Thus, his confession is
inadmissible by virtue of Section 26. The court
stated that a man may be in custody without having
been formally arrested; it is sufficient that he cannot
go where he likes.
5) Confession of co accused under Section 30
It has always been held that a confession only binds
or affects the party making it. Section 30 makes it
admissible against a third party where he is jointly
charged with the confessing criminal.
However, before the court may take into
consideration the confession made by one accused
against his co-accused, the following conditions
must be fulfilled:
a) The persons must be jointly tried for the same
offence;
b) There must be a confession which is proved;
c) The confession must be one affecting the
maker and the co-accused.
Retracted Confession
Case : Yap Sow Keong v PP
An accused person may be convicted on his own
confession, even when it is retracted, if the court
satisfied of its truth.
 The court did not follow the Indian’s court
approach in dealing with retracted confession.
Indian’s decision has consistently decide that
 before an accused person can be convicted on
his retracted confession, there must be
corroborative evidence to support it.
 Before the Malaysian court convict the accused
based on his retracted confession, it is its duty
to enquire into the matter with great care and
to satisfy itself that the confession has not
been made as a result of any inducement,
threat or promise made by the police.
Statement leading to discovery of fact
Refer to Section 27 of the Evidence Act 1950
Case : Pulukuri Kottaya v Emperor
The court stated that the section provides an
exception to the prohibition imposed by the three
preceding section, and enables certain statements
made by a person in police custody to be proved.
 The section seems to be based on the view that
if a fact is actually discovered in consequence
of information given, some guarantee is
afforded thereby that the information was true,
and accordingly can be safely allowed to be
given in evidence.
 Normally the section is brought into operation
when a person in police custody produces from
some other place of concealment some object,
such as the dead body, a weapon, or
ornaments said to be connected with the crime
of which the informant is accused.
 According to Section 27, the fact discovered
must be in consequence of information
received.
 Case : PP v Norzilan Yaacob,
On a drug trafficking case, statements were
made leading to the discovery of two lots of
drugs found buried in the ground. One of the
statements was a reply to a question “apa
kesan galian itu?” The accused answered was
“kalau nak tahu gali sendiri.” It was held that
such statements did not amount to information
leading to discovery of a fact.
 Another requirement is that the information
must relate to the fact discovered.
 Case : Pulukuri Kottaya v Emperor
where the statements concerned were “I will
produce a knife concealed in the roof of my
house with which I stabbed A.” It was held that
the words “with which I stabbed A” is not
admissible.
Recovery v Discovery
If the police had prior knowledge of the existence of
the thing discovered, the section has no application
as such statement will lead to recovery of fact rather
than its discovery.
Case : PP v Liew Sam Seong
The court held that this is a clear case where the
police investigation is attempting to turn an ordinary
‘recovery’ of incriminating exhibits into a ‘discovery’
in order to utilise the provisions of section 27. In
view of the quantity of ammunition, hand grenades,
bombs and other incriminating exhibits found on the
premises, it is also reasonable to assume that the
police must have known about their existence.
Must the information be recorded?
Although not expressly required by Section 27,
common sense stress the desirability that the actual
words be recorded somewhere.
Case : Sum Kum Seng v PP
The record can be used as a protection of the
particular officer concerned, be he the investigating
officer or the interrogating officer as well as for the
purpose to determine its admissibility
Refer also Hasamudin Talena v PP [2002] 2 MLJ 408
and PP v Hashim Bin Hanafi [2002] 4 MLJ 176
Relevance of information and fact discovered with
the charge?
It is also important to ensure that the statement
refers to the charge in question and the fact
discovered is connected.
Case : Krishnan v PP
Information was given leading the police to a
plantation of ganja was held to be inadmissible on a
charge of drug trafficking.
Case : Goi Ching Ang v PP
where the accused’s statement was in relation to
the discovery of pistols, ammunition discovered as a
consequence was held to have no connection
whatsoever to the statement concerned.
Must statement made under Section 27 voluntary?
Prior to 1995, the law was not concerned about the
method of obtaining Section 27 statements.
Case : Wai Chan Leong v PP
The position was that Section 27 was not only
independent of Section 24, Section 25 and Section
26, it was also free of the restrictions and
prohibitions in Section 113 of the CPC
*According to this case, even if the accused was
forced into making such statements, they were
admissible, bearing in mind that Section 27
statements were not relied upon as confessions.
They were statements leading to discovery of fact
and hence there was no necessity to prove
voluntariness in a trial within a trial.

*With the Federal Court decision of Md Desa Bin

Hashim v PP [1995] 3 MLJ 350, the law as laid down
in Wai Chan Leong was overruled.

 It was decided that Section 27 statements are

in fact subject to the voluntariness principle,
thus subjecting Section 27 statements to
almost similar evidentiary rules as required of
confessions.

 The subsequent Federal Court’s decision of Goi

Ching Ang v PP held that Section 27 is in fact
independent from section 24 but the court
went on to say that there was a discretion
vested in the trial judge to exclude statements
which are prejudicial to an accused even
though the evidence is ‘technically admissible.’

 The subsequent Federal Court decision of

Francis Anthonysamy v PP in 2005 commented
Goi Ching Ang’s position of admitting Section
27 statements.

 The court stated that the trial judge, in

considering the exclusion of Section 27
statements must take into account the fact of
the case and the degree of force used. The
court must balance its discretion to refuse
admissibility of Section 27 statement with the
fact that involuntariness is not a condition of
admissibility of such statements.

 Thus, with the decision of Francis Anthonysamy,

Section 27 statements are now subjected to
the ‘extraordinary involuntariness’ rule as laid
down in Goi Ching Ang’s case.
CHAPTER SEVEN : HEARSAY
 A witness is not allowed to testify to facts in
issue or any relevant facts based on the
perception of another person since such
evidence is not direct as required by Section 60
of the Evidence Act 1950.
 The rationale for excluding hearsay assertions
was explained by Lord Normand in Teper v The
Queen.
 “The rule against the admission of
hearsay evidence is fundamental. It is not
the best evidence and is not delivered on
oath. The truthfulness and accuracy of the
person whose words are spoken to
another witness cannot be tested in
cross-examination and the light which his
demeanour would throw on his testimony
is lost.”
 An out-of-court assertion amounts to
hearsay when the purpose of adducing
the assertion is to prove the truth of the
contents of its statement.
Case : Subramaniam v PP
In that case, the A was charged with possession of
ammunition. The defence that was put forward by
the A was that he had been captured by terrorists
and that he was acting under duress. The issue that
arose was whether the statement made by the
terrorist to the A amounted to hearsay.
It was held that statement could have been made to
the A by the terrorists which, whether true or not, if
they had been believed by the A, might reasonably
have induced in him an apprehension of instant
death if he failed to conform to their wishes. The
statement therefore did not amount to hearsay.
Case : Ng Lai Huat v PP
Five accused persons were charged under the
Kidnapping Act 1961 for wrongfully confined two
victims with intent to hold a ransom. The DPP urged
the court to accept that the demands made by one
Jimmy Chua conveyed through the former
Director-General of Prisons, constituted ransom as
spelt out in the Act. The defence counsel objected
on the basis that what Jimmy Chua said was a
hearsay because Jimmy Chua was dead and
therefore not a witness in court to testify.
It was held that the evidence of the former DG of
Prisons in relation to Jimmy Chua’s purported
demands amounted to hearsay as the purpose of
tendering his statement was to establish the truth of
its contents.
 Hearsay may also take the form of conduct or
document.
 For example in Chandrasekara v R, the
gestures of a woman (who just had her throat
cut) identifying her assailant were held to be
hearsay.
Exceptions to the hearsay rule
 Res Gestae
 Admission
 Confession
 Section 32
 Section 33
 Section 73A
 Section 90A
SECTION 32
 Section 32 (1) of the Evidence Act 1950 consists
of ten paragraphs which apply separately and
independently as exceptions to the hearsay
rule.
 There are however pre-conditions to fulfill
before reliance may be made on any of the
paragraphs.
 The pre-condition stated in Section 32(1) refer
to proving the unavailability of the maker of
the statement or assertion.
 The importance of proving the unavailability of
the maker of the statement was highlighted in
Federal Court case of Sim Tiew Bee v PP which
quoted Lord Goddard words in Chainchal
Singh v Emperor:
 Where it is desired to have recourse to
this section on the ground that a witness
is incapable of giving evidence, that fact
must be proved, and proved strictly.
Proving absence of witness :
There are four categories of persons to which the
exceptions under the provision apply:
1. Where the maker is dead.
The best method of proving that the person who
made the statement is dead is by :
 Documentary evidence (certificate of
death)
 Oral evidence (through the officer who
conducted the post mortem)
 A superior confirming the death of his
officer
 A relative confirming the death of the
deceased
 Sec 107 & 108 : presumption of death
2. Where the maker cannot be traced or found.
It depends on the evidence adduced to show that
reasonable efforts to find him have been made
without success.
 Case : PP v Lee Jun Ho & Ors
The court rejected evidence of recorded
statements of two important witnesses as no
action was taken to trace the witnesses when
the trial began in 2006, and efforts to locate
them were only made in 2008.
3. Where the maker is incapable of giving evidence.
This may arise due to causes such as extreme old
age or mental incapacity or accident which resulted
to permanent disability. Sufficient evidence must be
adduced to establish the incapacity of the person
whose statement is sought to be admitted as
evidence, though it need not be that of medical
person.
4. Where procuring the attendance will result in
unreasonable delay or expenses
For this requirement to be satisfied, the court need
to look at facts of the case and different rules apply
depending on circumstances of each case. Thus,
what is unreasonable or unnecessary is not a matter
in which absolute standards can be applied. Thus,
two things are of importance –
 the seriousness of the charge and
 the character of the evidence proposed to
be tendered
Case : Allied Bank (Malaysia) Bhd v Yau Jiok Hua
Where the witness had migrated to Australia and his
exact whereabouts were unknown, the court found
that the plaintiff’s argument that it was not
cost-effective to bring the witness to court was
unacceptable where the amount of the claim was
over RM1 million.
Case : PP v Lam Peng Hoa
Unless it is proven that due diligence and reasonable
exertion in trying to locate the witness had been
employed, there could be no basis in contending
that the witness’ attendance could not be procured
without an amount of delay or expenses.
Case : Borneo Co (M) Sdn Bhd v Penang Port
Commission
Where the witness was to be brought from England
merely to give formal evidence, it was held that it
was unreasonable as the expense of brinnging him
down would exceeded the subject matter of the
claim.
 However, it must also be noted that mere
residence out of jurisdiction is not sufficient to
invoke the provision of the section. In fact, it
would be dangerous to subscribe to the
doctrine that mere residence out of jurisdiction
is adequate to dispense with the personal
attendance of a witness and to allow his
statement to be tendered in evidence.
Categories of person not within Section 32(1) :
Section 32(1)(a) : statements as to cause of death
*Refer illustration (a)
 It must be noted that paragraph (a) of Section
32(1) is wider and not synonymous with the
common law concept of dying declaration.
 In England, dying declarations are admissible
only in cases of homicide, where the death of
the deceased is the subject of the charge and
the circumstances of the death are the subject
of the dying declarations. It is also important
that the deceased should be under expectation
of death.
 In contrast, statements admissible by virtue of
paragraphs(a) of Section 32 are not confined to
dying declarations. The section refers also to
statements made as to the circumstances of
the transaction which resulted in his death.
This means that the maker may or may not be
under an expectation of death.
 Furthermore, statements made under Section
32(1)(a) may be made in any proceeding
whatever its nature, and this includes civil
cases as well.

Narrow interpretation :
Case : Haji Salleh v PP
A statement made by the deceased a month before
his death stating that he was afraid the accused
might kill him was inadmissible under the provision.
Broader interpretation :
Case : Yeoh Hock Cheng v R
In this case, the deceased was alleged to have been
murdered on 14 March 1937. She had made two
statements where the prosecution intended to put
in evidence. The first statement was made to her
father on 5th March that she had denied sleeping at
the accused’s house because the accused had
threatened to kill her if she did so. And the second
statement was made to her sister (on the evening of
her death) that she was going out with the accused
and that the accused had told her to put on man’s
clothing.
The court held that the first statement is not
admissible as being too remote to form part of the
transaction that resulted in her death. The second
statement was held to amount to circumstances of
the transaction which resulted in her dearth.
 Another issue that is to be discussed in
considering statements made under Section
32(1)(a) is the weight attached to the
statements itself.
 The facts and circumstances of each case must
be considered.
Case : Toh Lai Heng v R
The court held that although a dying declaration
need not be proved by writing, the exact words
spoken by the deceased must be given. If the dying
declaration is reduced into writing (in the event of
the witness in question being an investigating officer,
magistrate or someone of that kind), then the actual
words of the deceased must be recorded.
Section 32(1)(b) : statements in the course of
business
*Refer illustration (b), (c), and (d)
“When a statement is made by a person through an
entry, or memorandum made in books kept in the
ordinary course of business, or in the discharge of
professional duty”.
Case : Vaynar Suppiah v KMA Abdul Rahim
The court imposed a further requirement that the
statement made must be based on the maker’s
personal knowledge. Thus, the court held that a
report that was prepared and signed by the person
who was not involved in the actual survey of the
goods had no personal knowledge of their condition
and was thus inadmissible.
Case : Alliedbank (Malaysia) v Yau Jiok Hua
Justice Augustine Paul agreed with the decision in
Vaynar Suppiah explaining that Section 32(1)(b)
renders admissible only first hand hearsay, in that
the maker of the statement must have had personal
knowledge of its contents while Section 73A(1)(a)(ii)
renders admissible second hand hearsay.
Section 32 does not specifically impose a prohibition
on multiple hearsay. It should be worth to admit
such evidence and to give it whatever weight it
deserves rather than exclude it altogether.
Section 32(1)(c) : statements against interest of
maker
*Refer illustration (f)
The principle upon which such statements are
regarded as admissible in evidence is that in the
ordinary course of affairs, a person is not likely to
make statement to his own detriment unless it is
true.
Case : PP v Forster Frank Edald Heinrich
The accused was charged with trafficking dangerous
drugs. The defence counsel sought to use two
affidavits affirmed by two of the accused’s
companions where it was affirmed that they alone
had bought the drugs, smoked it and carried it. The
affidavit was made at West Germany where there
was no extradition treaty between Malaysia and
Germany. Thus, the prosecution argued that the
condition in paragraph (c) has not been fulfilled.
The court held that the phrase ‘would expose him or
would have exposed him to a criminal prosecution’
should have been interpreted as the exposure of the
risk of prosecution, though not conviction, at any
time while the maker is living would be sufficient.
Thus the court admitted the affidavit and reasoned
that the risk of prosecution would be probable if the
deponent return to this country or go to a country
with which this country has an extradition treaty.
Another condition that had been imposed by the
court to the application of paragraph (c) is that the
maker must have personal knowledge of the
statement at the time when he made it.
Section 32(1)(i) : Statements made in the course of
investigation of an offence

Case : PP v Mohd Jamil Bin Yahya & Anor

The admissibility of a statement made by the
deceased under Section 112 of the CPC was
considered and the court held that although Section
32(1)(i) was applicable, the weight attached to the
statement was too minimal resulting in the
statement having been excluded altogether. In this
case, the statement was made by a self-confessed
drug trafficker and taking into account that the
accused faces with a charge carrying mandatory
death sentence on conviction.

Section 32(1)(j) : statement was made by a public

officer in the discharge of his duties

Case : PP v Micheal Anayo Akabogu

 Secs. 32(1)(i) and (j) are conjoined by the word
‘and’ between it, which shows that the
intention of the legislature was to bind the two
subsections.

 In criminal proceedings, any ambiguity in the

language of a provision has to be narrowly
construed. When read conjunctively, the
provisions would mean that the statement
must be made by a public officer, in the
discharge of his duty, in the course of an
investigation.

 Both provisions, which must be read

conjunctively, is only related to public officers,
and not witnesses.

 In this case, four statements made by Thai

nationals sought to be tendered under Sec. 32(i)
were inadmissible as they were not made by a
public officer as required under Sec. 32(j)
through a conjunctive reading.
CHAPTER EIGHT : PRESUMPTION
Definition : Presumption is a fact presumed to be
true under the law. Ir describes the process whereby,
upon the proof of basis fact and presumed fact is
deemed to have been proven.
Introduction :
 The object of presumptions is to facilitate the
burden of proof in relation to certain facts.
 It is recognised by the law that specific
assumptions need to be made as a matter of
common sense or policy.
 Thus, presumptions operate on the basis that
the party relying on the presumption must first
prove that certain basic facts exist before such
presumption may be invoked.
 For example, in relying on the presumption of
trafficking, the basic fact that the prosecution
has to establish is that the accused was found
in possession of the specified amount/weight
of the drugs.
 The accused on the other hand, may attack the
basic facts, but if he fails to do so, then the
presumption is invoked.
 When the presumption is invoked, then the
accused will have the legal burden to rebut the
presumption on a balance of probabilities – PP
v Yuvaraj
 In addition to that, the law does not permit an
inference or a presumption to be based upon
another presumption. The rule against the
double presumption is most apparent in the
context of drugs law.
 For example, it is the reliance on the
presumption of possession for the purpose of
invoking the presumption of trafficking – refer
to Muhammad Hassan v PP
Presumption of fact
Section 4(1) refers to presumption of fact :
Where the court may exercise its discretion in the
application of such presumption even after the basic
facts have been established.
Presumptions of fact may be divided into two parts:
 Presumptions in relation to documents; and
 Presumptions which are general in nature.
Presumption of fact in relation to documents :
Section 86 – Presumption as to certified copies of
foreign judicial records.
Section 87 – Presumption as to books, maps and
charts
Section 88 – Presumption as to telegraphic
messages
Section 90 – Presumption as to documents 20 years
and above
*In relation to section 90, reference can be made to
the case of Commissioner of Municipality of
Malacca v Sinniah, the court held that Section 90
cannot be used by the court to presume the
correctness of any statement in the documents.
Presumptions of fact which is general in nature :
Refer to Section 114 of the Evidence Act 1950 and all
the illustrations therein.
Presumptions which are general in nature refer to
situation which are left to the courts to decide
whether such presumptions should or should not be
invoked.
Presumption of theft or receipt of stolen property :
Refer to illustration (a) to Section 114
Before illustration (a) can be invoked, it must be
proved that the property had been stolen, that a
person is in the possession of the property and this
was soon after the theft – PP v Hong Ah Huat
The word ‘possession’ implies physical capacity to
deal with a thing as we like to the exclusion of
anyone else. Thus, it implies dominion and
consciousness in the mind of the person having the
possession.
It cannot be interpreted as physical presence of the
accused or even the fact that accused was in close
proximity of the object.

Case : Abdul Manap v PP
The court held that although illustration (a) gives the
court the discretion to find that the accused is a
receiver of stolen property, it was always open for
the court to make a presumptions that the accused
is actually disposing the stolen property.
Presumption that accomplice is unworthy of credit
Refer to Section 133 and illustration (b) of Section
114 Evidence Act 1950 and situations (ii) and (iii).
Who is an accomplice?
Case : Davies v DPP
Lord Simonds asserted that there was no formal
definition in the authorities but suggested that from
the cases the following persons have been treated
as falling within the category:
 Participes criminis (parties to a crime);
 receivers in respect of thieves from whom they
receive goods; and
 parties to a crime which constitutes similar
facts (i.e., crimes which are so similar that they
prove system or intent and negative accident).
 The rationale for treating accomplices with
suspicion is because he has an obvious interest
in diverting blame from himself to the person
against whom he testifies. He also has an
obvious interest in giving favour to the
authorities in whose hands his own fate lies -
Tan See Boon v PP
 The court must therefore first decide whether
the witness is an accomplice where his
credibility must be assessed just like that of any
other witness but with the added ingredient of
him being an accomplice.
 After that, the court has to decide whether the
evidence of accomplice need to be accepted
with or without corroboration. This would
depend on the degree of complicity of the
accomplice – PP v Dato Seri Anwar Ibrahim
 If the court decides that the accomplice is
worthy of credit, it may convict the accused on
the uncorroborated evidence of the accomplice
provided the corroboration warning is
administered.
 Case : PP v Sarjeet Singh & Anor
The court stated that although Section 133
stipulates that a conviction is not illegal merely
because it proceeds upon the uncorroborated
testimony of an accomplice, the courts have
consistently held that the grounds of decision must
reflect an awareness of the danger of so convicting.
Presumption of adverse inference
Refer to illustration (g) of the Evidence Act 1950.
Before the presumption may be invoked, it must be
proved that the evidence withheld is material
evidence. Thus, the court may not draw
presumption of adverse inference if the evidence
withheld is not material to the case.
Case : Munusamy v PP
Where the evidence withheld was a witness who
was a typist. The defence alleged that the presence
of the witness was necessary to explain some
clerical error made in addressing the exhibits. The
court refused to draw presumption of adverse
inference against the prosecution as the witness is
not a material witness.
Case : PP v Dato Seri Anwar Ibrahim
Where the accused was charged for abusing his
powers as former Deputy Prime Minister in
preventing the investigation into the allegation of
his sexual misconduct. It was argued by the defence
that the presumption of adverse inference should
have been invoked as the prosecution had failed to
adduce material witness which was the Prime
Minister. The argument was rejected by the court on
the basis that the witness was not material witness
and in fact was not relevant.
In drawing the presumption of adverse inference
against the prosecution, certain factors must be
considered as follows:
 Prosecutional discretion
 Whether there was already sufficient evidence
in support of the prosecution’s case
 Whether the prosecution had offered such
witness to the defence
 Whether the witness is a person who is
afforded statutory protection as to his identity
Presumption of unfavourable answer
Illustration (h) to Section 114 of the Evidence Act
1950 and situation (ix).
**The illustrations are not exhaustive by the way,
court may add to the lists using their inherent
discretionary power. For example, if a witness refuse
to answer questions put to them, the other party
may invite the court to presume that if answer is
given, it would be unfavourable to the witness, or a
party to a proceeding may invite the court to draw
presumption of adverse inference if another party
failed to call material witness.

Presumption of Law

 This type of presumption is referred to in

Section 4(2) which means that it is mandatory
for the court to invoke the presumption once
the basic facts are established.

 This type of presumption is also divided into

two which are:
 Presumptions of law in relation to
documents; and
 Other types of presumptions

 In relation to documents, rebuttable

presumptions may be found in Section 79 – 85
and Section 89 of the Evidence Act 1950.

 For example, under Section 80 of the Evidence

Act 1950, the court shall draw a presumption in
relation to documents produced as record of
evidence (especially in relation to confession of
an accused person taken by Magistrate) that
the document is genuine, the content is true
and such evidence was duly taken.

Case : Noliana Binti Sulaiman v PP

It was held that a presumption under Section 80 of
the Evidence Act 1950 could be invoked in relation
to confession recorded under Section 115 of the
CPC.

*Both presumption of fact and presumption of law

are rebuttable.

*In any provision of presumption, there cannot be

double presumption whereby the court has declared
it is unconstitutional pursuant to Section 37A of DDA
1952.

Irrebuttable presumption of law

 An irrebutable presumption of law is explained

in Section 4(3) of the Evidence Act 1950 which
means once basic fact are established by one
party, the other will not be allowed to rebut it.

 Examples of this type of presumptions are

provided under Section 113 and Section 41 of
the Evidence Act 1950 and Section 82 and 83 of
the Penal Code.

 Sec. 113: An irrebuttable presumption of law is

that a boy under the age of thirteen is
incapable of committing rape.