PRELIMINARY MATTERS i To regulate proving of facts in judicial

proceedings
Introduction ii To ensure like cases are treated alike
 Law of Evidence can be divided into 2 branches: iii To limit evidence only to that which is relevant
i Substantive law = law which determine rights & iv To provide safeguards against manufactured &
liabilities; it depends on the fact of a case unreliable evidence
ii Adjective law = law which determine how facts v To achieve justice & fairness
established in court & how the law applies to  Adversarial vs Inquisitorial system of trials
the facts; procedural in nature i Adversarial
 Sir James Fitzjames Stephen - “All rights & liabilities → Adversarial process is defined by the
are dependent upon and arise out of facts”. active participation of counsel who
 The object of legal proceedings is to determine the assumes the role of investigator, solicitor
legal rights and liabilities of the parties. These rights and presenter (at trial).
and liabilities are in turn determined by facts of the → In an adversarial trial, the parties are at
individual case. liberty to decide how their case should be
 How will court determine rights and liabilities based presented. The judge performs the trier of
on facts? fact and law, since the jury system no
i By applying substantive law to facts of longer operates in Malaysia by virtue of
individual cases. Section 11 of the Criminal Procedure
ii Substantive law → Facts = Rights / Liability Code (Amendment) Act 1995.
 Substantive law is the area of law which determines → Pacific Forest Industries Sdn Bhd v Li Wen
what are the rights and liabilities of the parties; it is Chih [2009] 6 MLJ 293
dependent upon the facts of every case. ◦ Adversarial process would mean that
 Adjective law is procedural and determines how the judge would listen to submissions
facts will be established in court .The Law of or cases put by each party to an
Evidence falls under the heading of adjective law, action. He then decides the cases
as it is the branch of law which regulates the proving based on those evidences and
of facts in court. submissions put by both parties.
 As a general rule the Law of Evidence applies ◦ Basically, the judge assumes the role
equally to both civil and criminal proceedings. of an umpire and his function is to
 Evidence regulates the fact finding process of the assess the merits of the case. This
court in the following manner: means that he neither selects the
i It determines the relevancy of the facts witnesses, nor interferes in the
ii It determines the manner in which a fact may prosecution of the evidence by
be proved examining and cross-examining
→ Eg: hearsay is not admissible in court as it witness.
is not original speech and the person does ii Inquisitorial
not have personal knowledge about it → Judges play an active part in the trial;
iii It determines how much proof will be required judges conduct public investigation of a
to establish a fact crime.
→ Criminal case: beyond reasonable doubt → It gives the judges liberty to conduct public
→ Civil case: balance of probabilities investigation of a crime. Judges can
 Purpose of the law of evidence: question witnesses, interrogate suspects,
 declare verdict as well as decide on
penalty.
→ Many civil law legal systems like in
Scotland and South Africa are described
as ‘inquisitorial’.
Sources & Application
 The main source of the law of Evidence in Malaysia
is the Evidence Act 1950. It has general application
to all persons regardless to race/religion.
 Other sources of the Law of Evidence include the
following:
i Criminal Procedure Code (Act 593)
ii Rules of Court 2012, Rules of the High Court
and Subordinate Court Rules  for civil cases
iii Other Statutes (Example: Dangerous Drugs
Act 1952, Kidnapping Act 1961, Anti Corruption
Act 1997, Sexual Offences Against Children
Act 2017, etc.)
iv Common Law i.e. UK, Australia and India
 Ainan bin Mahmud v Syed Abu Bakar [1939] MLJ
209
i EA only applies to civil courts but not Syariah
courts. The law of evidence on Syariah Court is
governed by Syariah Court Evidence
(Federal Territories) Act 1997.
 Mohamed Syedol Ariffin v Yeoh Ooi Gark [1916]
2 AC 575
i The illustration in the Act is an important aid to
statutory interpretation which has been
expressly provided by legislature. It should not
be rejected unless in very exceptional & special
cases.
ii However, the application of a section does not
confined to its illustrations only.
iii They are not part of the law. Sections are
independent of the illustrations.
Evidence Act 1950
 Section 2: Extent - the EA shall apply to all judicial
proceedings but not to affidavits/arbitrations.
 Judicial proceeding is not defined in EA *Section 2
CPC – ‘judicial proceeding’ = any proceeding in the
course of which evidence is/may be legally taken.
 It is misleading that S.2 provides that EA 1950 has
no application to affidavits presented to any court.
 EA 1950 does not apply to affidavits but it does not
mean that the law of evidence also does not apply.
 Re Loh Kah Keng (Deceased) [1990] 2 MLJ 237
i Fact: the deceased died in a mysterious way
with telephone cord surrounded his neck. In a
Magistrate’s inquiry, the wife was called to
provide information. By virtue of Section 122
EA, the deceased’s widow is prohibited from
disclosing communications made to her by the
deceased during the marriage.
ii Issue: whether Section 122 amounts to judicial
proceeding which falls within the ambit of EA.
iii Held:
→ According to Section 2 EA, the Act only
applies to judicial proceeding but not
affidavits/arbitration. An inquest does not
amount to judicial proceeding and so it
does not fall within the ambit of Section 2
EA
→ Therefore, EA is not applicable and
Section 122 cannot be applied. The wife is
bound to disclose the communication
between her and her deceased husband.
→ Judicial proceeding = a trial which involves
2 or more parties, determine the rights &
liabilities, with a verdict of whether a
person is liable or not
→ Inquest = an investigation with a verdict of
the cause of death
→ EA1950 does apply but not strictly.
 Malaysia Building Society Bhd v Univein Sdn
Bhd
i It reaffirms Section 2 EA that EA does not apply
to affidavits
Affidavits
 Affidavits are statement is writing which is made
under oath or affirmation (sworn statement in
writing).
 They are made before an authorised person
(Commissioner of Oaths / Magistrate)
 Person making an affidavit is known as the the witness box. An evidence may be
deponent. admissible in evidence as a statement in
 Section 2 of EA: This Act shall apply to all judicial writing complying with the conditions
proceedings in or before any court, but not to prescribed within the meaning of S.32 EA
affidavits presented to any court or officer nor to 1950.
proceedings before an arbitrator. iv S. 32 EA 1950: Statements, written or verbal,
 Note 1: S.2 does not mean that affidavits cannot be of relevant facts made by a deceased
tendered in evidence. (Section is misleading) person/person who cannot be found/incapable
i General rule: Evidence before the court should of giving evidence/whose attendance cannot
be oral evidence given by witness in open be procured without delay or expense that is
court. unreasonable, are themselves relevant facts in
ii O.38 r.1 ROC: General rule: Witness to be some situations (e.g. dying declaration in para
examined orally. (a)).
iii S.59 EA 1950: All facts, except the contents of v Marneedi Satyam v Venkataswani AIR 1949
documents, may be proved by oral evidence. Mad 689
iv S.60 EA 1950: Oral evidence shall be direct. → Although the Indian EA says that the Act
v Exception: Affidavit evidence can be admitted does not apply to affidavits presented to
under the provisions of ROC 2012 under courts, it does not mean that any person’s
certain circumstances (O38 of ROC). affidavit can go in as evidence by its own
 Note 2: S.2 does not state that rules of evidence do force independently without necessity for
not apply to affidavits. him to enter the witness box. The only way

i General rule: EA 1950 does not apply to an affidavit can be regarded as admissible

affidavits but rules of evidence derived from evidence is that it should be capable of

other sources will apply to affidavits. (ROC, being regarded as a statement in writing

CPC, etc.) complying with the conditions of S.32 of

ii E.g. the General Rule is that affidavits must not Indian EA (in pari materia with S.32 EA

contain evidence of hearsay/opinions (O.41 r.5 1950).

(1) - an affidavit may contain only such facts as  Note 4: General rule: EA 1950 does not apply to

the deponent is able of his own knowledge to affidavits.

prove.) i Exceptions: S.32, S.73A, S.91, S.92 of EA

iii Exception: Affidavits containing hearsay is 1950 (judicial interpretations)

allowed for interlocutory matters (O.41 r.5 (2)). ii S.32 EA 1950: Cases in which statement of

 Note 3: Evidence of inadmissible nature cannot be relevant fact by person who is dead or cannot

tendered in court through the backdoor via be found, etc., is relevant.

affidavits. → Statements, written or verbal, of relevant

i E.g. Hearsay cannot be tendered in court via facts made by a deceased person/person

affidavits. who cannot be found/incapable of giving

ii Augustine Paul: An affidavit cannot be admitted evidence/whose attendance cannot be

if the deponent is not called as a witness. procured without delay or expense that is

iii EA 1950 does not apply to affidavits presented unreasonable, are themselves relevant

to any court or officer (Riedel-de Haen Ali v facts in some situations (e.g. dying

Liew Keng Pang). However, that does not declaration in para (a)) See para. (a)-(j).

mean that the affidavit of a living person can go iii S.73A EA 1950:

in as evidence without the need for him to enter

 → (1) In civil cases, any statement made by a → Under S.32(1)(i), one condition of the
person in a document and tending to admissibility of the statement is that if it is
establish that fact shall, on production of true, it would expose the maker to the risk
the original doc, be admissible as of prosecution, at any time while the
evidence of that fact if the maker had maker is living would be sufficient.
personal knowledge of the matters in the → This case held that S.32 and S.73A apply
statement and the maker is called as a to affidavits.
witness. viii Citibank NA v Mohd Abdullah Ang [1992] 1
→ Read para (1)-(7). CLJ 116
iv S.91 EA 1950: Evidence of terms of contracts, → S.91 and S.92 EA 1950 apply to affidavits
grants and other dispositions of property and they are equally clear and
reduced to form of document. unambiguous. An affidavit cannot be used
→ No evidence shall be given to prove the to run foul of what it provided by these
terms of contracts, grants, and other sections.
dispositions of property if the terms are → In this case, the 3rd Defendant’s
reduced to the form of a document except contention was contradictory of what was
the document itself. in the guarantee and he attempted to back
v S.92 EA 1950: Exclusion of evidence of oral up his contention by reference to certain
agreement. letters which was not permitted by S.91
→ When terms are proven as in S.91, no and S.92, unless one of the provisos of
evidence of any oral agreement shall be S.92 can be applied (which was not the
admitted to contradict, vary, add to or case here).
subtract from its terms.  In summary:
vi Marneedi Satyam v Venkataswari AIR 1949
Mad 689
→ Although the Indian EA says that the Act
does not apply to affidavits presented to
courts, it does not mean that any person’s
affidavit can go in as evidence by its own
force independently without necessity for
him to enter the witness box. The only way
an affidavit can be regarded as admissible
evidence is that it should be capable of
being regarded as a statement in writing
complying with the conditions of S.32 of
Indian EA (in pari materia with S.32 EA
1950).
vii PP v Forster [1988] 2 MLJ 594
→ With regard to written statements, Edgar
 Many civil proceedings can be disposed off based
Joseph Jr J held that the affidavit of a
on affidavit evidence alone.
living person comes within the ambit and
 Advantages
meaning of the word ‘statement’ in the
i Saves time, cost and minimises emotional
section. (S.32 EA 1950: Statements,
stress.
written or verbal, …)
 Disadvantages:
 i Not tested under cross examination,
ii No opportunity to see the demeanor only dead
letters
 Note: Can conflicts of facts be resolved by affidavit
evidence alone?
i Not appropriate for a judge to resolve conflicts
of facts based on affidavit evidence.
Evidence vs Common Law
 Q: To what extent can reference be made to
common law?
 PP v Yuvaraj [1969] 2 MLJ 89
i The law of evidence in Malaysia is EA 1950. If
there is a conflict between the Act and common
law, the EA prevails over common law. But no
Act can be completely comprehensive.
Reference to common law can only be made
when there is lacuna in the Act or the Act is
silent/ unclear on a particular issue
 Jayasena v R [1970] AC 618
i If the act is clear and unambiguous, the court
will not refer to the common law. The court will
only refer to common law when there is lacuna
in the local law/ the Act is silent on vague on a
particular law.
 Q: What is the role of Law of Evidence in judicial
proceedings?
i It regulates fact finding (relevancy, admissibility,
weight)
Facts
 Section 3: “fact” means and includes—
 (a) anything capable of being perceived by senses;
(b) any mental condition of which a person is
conscious
 Illustrations
(a) That there are certain objects arranged in a
certain order in a certain place is a fact.
(b) That a man heard or saw something is a fact.
(c) That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a
certain intention, acts in good faith or fraudulently,
or uses a particular word in a particular sense, or is
or was at a specified time conscious of a particular
sensation, is a fact.
(e) That a man has a certain reputation is a fact;
 Section 3: ‘evidence’ – (a) oral evidence; (b)
documentary evidence
 Not all facts are admissible, only those in Section 5
of EA.
 Section 5: Evidence may be given of facts in issue
& relevant facts.
Evidence may be given in any suit or proceeding of
the existence or non-existence of every fact in issue
and of such other facts as are hereinafter declared
to be relevant, and of no others.
i Fact in issue = direct evidence
ii Relevant fact = circumstantial evidence
 Q: What is fact in issue and relevant facts?
 Section 3: ‘fact in issue’ - any fact, the
existence/non-existence, nature/extent of any right,
liability/disability, asserted/denied (“Colossal
waste of ink,” - Ms Mages, 2020),
i Unclear. Refer to definition of Sir Rupert Cross,
a leading legal writer.
 Sir Rupert Cross – ‘fact in issue’:
i Fact where a plaintiff in civil action/prosecutor
in criminal proceeding must establish in order
to succeed
ii Any further facts that defendant/accused must
establish to rely on a defence
 How to determine what are the facts in issue?
i Look at the pleading / charge
ii Fall back on the substantive law.
→ If criminal, what are the elements of the
crime?
iii Look at the admissions and denial
→ Eg. In a Statement of Defence, the person
admitted he caused accident but deny
negligence. So the issue will be whether
he was negligent and net whether he was
driving the car. The driving car part will
become irrelevant.
 Section 3: ‘relevant’ – one fact is said to be relevant
when it falls within any relevancy provisions under
EA (Chapter II, Section 5-55)
 Focus is on General Relevancy (S.6-16)
 Sir Rupert Cross – ‘relevant’ = fact not itself in issue
but from which the existence/nonexistence of the
fact in issue may be inferred
i evidence of facts relevant – circumstantial
evidence.
ii Circumstantial evidence can be admitted, but
has lesser weightage than direct evidence.
 PP v Dato Seri Anwar Ibrahim (No. 3)
i Fact: The accused was charged with corruption.
It was alleged that he had used his power
unlawfully to direct two police officers to
interfere with the sodomy and sexual
misconduct action against him.
ii Held: the truth of falsify of the allegation of
sexual misconduct & sodomy is not a fact in
issue. Therefore, no evidence can be led to
establish whether the allegations are true/false
as such evidence is irrelevant & not admissible
under Section 5, 7, 8 & 9 EA.
iii Comment: the judge construed ‘fact’ in a
narrow way
 PP v Azilah Hadri & Anor (Altantuya’s case)
i Fact: the deceased was murder. It was found
that the immigration record of deceased & her
sister was deleted
ii Held: The facts in issue of the case is murder,
the onus is on the Prosecution to prove Actus
Reus and Mens Rea. Involvement of parties is
not a facts in issue in this case.
 Two types of relevancy
i Logical
→ Common sense
ii Legal
→ The 2 facts under EA.
 Try not to argue on logic or common sense, but
rather, argue on legal facts and based on the law
(Act) instead.
 Note: Collateral facts, although not evidence in issue
or fact but relevant will still be allowed.
i Eg: evidence of credibility or of preconditions.
ii Fire, evidence of destroyed, only got
photocopied. Must show house is destroyed.
This is called evidence of preconditions.
 Example given during lecture:
X is charged with the murder of Y
When: 01/07/2020 at or about 10.30pm
Where: Bukit Beruang
Evidence:
i CCTV recording which shows the attack
→ Direct evidence; Fact in issue
ii X was seen leaving Y’s house at 11.30pm
→ Circumstantial evidence; Relevant fact
iii X had a fight with Y earlier that day
→ Circumstantial evidence; Relevant fact
iv Blood stain on X’s jacket
→ Circumstantial evidence; Relevant fact
→ Have to do test on blood stain to identify
the blood. This will effect the weight of the
evidence.
v Items belonging to Y found in X’s possession
→ Circumstantial evidence; Relevant fact
*All these are strong evidence, but it is not enough
hang X.
Classification of Evidence
 There are 3 forms of evidence which known as
‘judicial evidence’:
i Oral evidence (testimony of witness)
ii Documentary evidence
iii Real/physical evidence (Eg: visit of crime
scene
 Evidence can be classified into 3 categories:
i Oral/Documentary (s.3, s.59, s.60, s. 61, s.62,
s.63, s.64)
ii Direct or Circumstantial
→ Direct evidence is fact in issue
→ Circumstantial evidence is relevant fact
iii Original/ Hearsay (s.60)
Best Evidence Rule
 The best evidence rule refers to the principle that
the court will only admit the best evidence available.
 Lord Hardwick: “The judges and sages of the law
have laid down that there is but one general rule of
evidence, the best that the nature of the case will
admit”.
 Omychund v Barker
 i There is one general rule of evidence, the best
that the nature of the case will admit. (Lord
Hardwick’s statement above)
 Q: Should the best evidence rule apply to
admissibility or weight?
 Follow up Q: What is the distinction between
admissibility and weight?
i Admissibility = if it is not the best evidence, it is
inadmissible, meaning hearsay will completely
be not admissible. Same applies to
photostatted copy of evidence.
ii Weight = the 2nd best evidence can still be
admitted, but given less weight
 If applies to admissibility, that would mean, most
cases would not have evidence cause most cases
wont have perfect evidence. Hence, it is only
practical to apply it to weight.
 R v Quinn & Bloom
i Fact: the prosecution of a striptease
performance was conducted at the premises
where the appellants carried on business as
club proprietors. One of the exhibits was a
reconstruction of striptease performance film,
which was made after 3 months from the actual
performance of the club.
ii Held: the judge rejected the evidence, on the
basis that it was not the best evidence. This
objection goes not to weight, but to the
admissibility as it is not the best evidence
iii made it clear that the best evidence rule
affected the admissibility of the evidence
tendered, which meant that if the best evidence
was not available, the court would not accept
anything else.
iv Objection goes not only to weight, but also to
admissibility, it is not the best evidence.
v Agreeable judgement based on the facts of this
case, but that does not mean it should apply to
all cases. Not practical, hence no more apply
this case. CL evolved and moved away from
this principle.Now follow Kajala.
 Williams v East India Co [1802] Peake Add Case
123
i Where the plaintiff had failed to call a material
witness to give evidence, his claim failed as he
had failed to produce the best evidence
available.
 Kajala v Noble [1982] 75 CR APP REP 149
(Current principle)
i Fact: the appellant was charged with behaving
in a threatening manner. At the hearing, a
video cassette recording which showed the
appellant behaving in such manner was
admitted as evidence. This was because the
original was kept in British Broadcasting
Corporation (BBC). As a matter of policy, it did
not allow the original documents to leave their
premises
ii Held: Best evidence rule only affects weight. It
is impractical that it affects admissibility.
iii Exception: the old principle that best evidence
rule will affect admissibility will continue to
apply to documentary evidence where the
original document is still available.
 Note: Malaysia adopts Kajala’s approach
 In Malaysia, the best evidence rule is reflected in
Section 60(1)(c), Section 64, Section 91 &
Section 144 EA.
 Chow Siew Who v PP [1967] 1 MLJ 228
i Fact: the victim was attacked & made a dying
declaration (exception to hearsay) to the uncle
and brother. He made another dying
declaration to investigating officer. During the
trial, the declaration was tendered by the uncle
& brother but not the officer
ii Held (FC): the court allowed the dying
declaration tendered by the uncle & brother as
evidence but it carries lesser weight due to their
failure to report the identity of the deceased’s
assailant until after her death, 9 days after the
discovery of the fact.
iii It means that even if the party is unable to
tender the best evidence, the court will
consider the weight of the next best evidence.
 PP v Lim Kuan Hock [1976] 2 MLJ 114
i Fact: the defendant raised a defence of alibi.
The condition is that there must have witness.
 The defendant appeared to be the witness
himself
ii Held: Best evidence rule affects weigh, the
evidence can be admitted but will be given no
weight.
 Conclusion: In Malaysia, best evidence rule affects
weight and not admissibility (the second best
evidence may be admitted but it carries a lesser
weight).
 KPM Khidmat Sdn Bhd v Tey Kim Sue [1994] 2
MLJ 627
i Issue: concern the admissibility of documentary
evidence (summary of accounts)
ii Fact: the summary of account was tendered as
proof that the appellant owed respondent a
sum of money for work completed. The
summary was taken from R’s record book but
in the court, R was unable to produce it,
claimed that he did not know the whereabouts
of the record book due to the long lapse of time
iii Held: The best evidence rule
admissibility in relation to documentary
evidence (for documentary evidence, must
produce the original document as it affects
admissibility)
 Gnanasegaran v PP [1997] 4 CLJ 6 CA
i Fact: the best evidence rule is considered in
the light of computer technology, concerning
the admissibility of document produced by
computer
ii Held:
→ For such document to be admissible,
Section 90A(1) must be fulfilled – the
printout must be produced
computer in the course of its ordinary use
→ Section 90A(2) EA – a certificate signed
by the person responsible
management & operation of the computer
may be tendered
→ Note: in the case, the certificate was not
tendered. Instead, an officer was called to
give evidence on the working of that
computer
→ The information is stored electronically in
the bank’s computer. It is not in itself
visible to naked eyes
→ Therefore, the oral evidence of the bank
officer may not have been the best
evidence but it was admissible subject to
the weight of such evidence.
 Conclusion: For documentary evidence, however,
best evidence rule affects admissibility.
Procedure for Adducing Evidence in Court
 3 Forms of Evidence
i Testimony of Witnesses (Oral evidence)
ii Documentary Evidence
iii Real / Physical Evidence
 Taken together, these thre forms of evidence are
known as “Judicial Evidence”
 All judicial evidence will be subject to the rules of
evidence which will determine if the evidence
adduced will be admissible and the weight to be
affects given.
 The procedure deals with the preparation of
evidence for court and the procedure used to
adduced evidence in court.
i How you deal with evidence before you bring it
to court (procedural)
ii Not embodied within the Evidence Act 1950
iii However, it impacts the application of rules. If it
is not adduced in the prescribed manner, it will
not be admissible.
by the
for the
Testimony of Witness
 Oral evidence given in a trial setting. Witnesses are
not called in appellate courts. Only in court of first
instance.
 Given in court under oath or affirmation (sworn
evidence)
 Section 60 of EA: General rule
i Only facts perceived by the senses and matters
that witness has personal knowledge of can be
given as evidence
 Exceptions:
i O 38 and O 41 of ROC - use of affidavits
ii O 38 r 2 and O 39 - use of witness statements
iii S.112 of CPC + S.402B of CPC - Use of
witness statements in criminal cases
Documentary Evidence
 Documentary evidence can be relevant in its:
i Authenticity
ii Contents (when parties in dispute with the
contents)
iii Real evidence (Eg: doc with fingerprint; an
object, whether real or fake)
 In a civil proceeding, documentary evidence can be
adduced in ‘agreed bundle of document’ or
‘disputed document/disputed or disagreed bundle’.
Agreed Bundle of Document
 It means an agreed to authenticity & it can either
agreed to content or dispute with content
 General rule: the truth of content will not be
admitted unless agreed by both parties
 These documents do not automatically become part
of the evidence before the court unless it is referred
to by either of the parties through examination of
witness, submission, etc.
 Jaafar bin Shaari v Tan Lip Eng
i A document does not automatically become
part of evidence before the court unless it is
referred to by either party
ii Once it is part of the evidence, it must be
marked as ‘exhibit’.
iii The truth of the content of any document is a
matter for court at the end of trial
 In simple terms, in the absence of any express
conditions regarding the inclusion of a document:
i It is agreed as to the authenticity
ii Truth of contents is not admitted unless this
has been agreed to by the parties.
Disputed Document(s)
 Both the authenticity and the contents of the
documents are disputed.
 All disputed documentary evidence must be
admitted & proved by witness
 General rule: the maker of document is the witness
 The original document must be lodged in court for
inspection
 Once admitted in court, it must be marked as
‘exhibit’
 YB Dato Hj Husan v Mohd Faisal Rohman
i The appellant, a politician, commenced a
defamation suit against the respondent alleging
that the respondent had circulated an article
about appellant via his blogspot. R denied
writing the article and owning the said blogspot.
The trial judge held that the A did not establish
that the R was the writer in the blog &
dismissed the suit. Hence, the appellant’s
appeal
ii It was the appellant’s submission that the trial
judge had marked the A’s documentary
evidence as exhibit without objection from R.
Second, the trial judge refused to consider
some of the marked exhibits. Third, the R’s
defence was mere denial and no particulars
were given in the statement of defence to
support his defence of denial
iii Held:
 → As a general rule in a defamation suit, e) if the parties are unable to agree on certain
once the plaintiff has established by documents, those documents on which agreement
direct/circumstantial evidence through cannot be reached shall be included in separate bundles
documents that the act is defamatory, it and each such bundle shall be filed by the plaintiff and
was published, it refers to plaintiff & the marked as follows:
defendant was the author of the (I) Part B - documents where the authenticity is not
misconduct, liability is attached disputed but the contents are disputed;
→ Under Section114A EA, it is for the (ii) Part C - documents where the authenticity and
respondent to rebut the presumption but contents are disputed
he failed to do so. The defence of mere
denial was not acceptable.
→ In civil cases, once the court decided that
the evidence is relevant & have allowed
the exhibits to be marked as exhibit with
no objections by the respondent, it cannot
be subsequently explunged unless it has
been marked as ID only.
→ The judge, in the instant case, had
accepted the evidence as relevant,
admitted it and marked it as exhibit but late
refused to consider the evidence, alleging
 Yeo Ing King v Melawangi Sdn Bhd [2017] 1 CLJ
that it was lack of satisfaction on the
512
admissibility procedure.
i CA Majority: It is a misconception to think that
→ The judge could not do that. Once it is
for the documents in Part A, ‘everything is
marked as exhibit, the court cannot
agreed’. The flaw in the defendant’s
exclude such evidence
argumentwas that it equated contents with truth.
 In criminal proceeding, all disputed documentary
There is a difference between agreeing on the
evidence must be admitted & proved through a
contents of the document and agreeing on the
witness Section 73AA EA: agreed facts need not
truth of the contents.
be proved in the court
ii Dissenting (Hamid Sultan JCA): Once a
 Dato Seri Anwar Ibrahim v PP
document is placed in Part A, the contents as
i Issue: whether in criminal trial, the judge is at
well as the truth is deemed to be proved. If the
liberty to unmark the evidence as exhibit
parties agree to place a document in Part A, it
ii Held: in criminal case, the judge has the liberty
means that the maker need not be called
to do so, but not in civil case
because the authenticity of the documents is
 O 34 r 2 of the Rules of Court 2012: Before 2012,
not in dispute. If there is a dispute as to the
this arrangement was a rule of practice developed
contents and/or its truth, it has to be placed in
for convince by way of judicial decisions. Then it
Part B. Placing in Part C means that the
was codified.in the said provision.
authenticity, contents and its truth is not
d) the contents of the bundle of documents shall be
admitted and the maker of the document must
agreed on between all parties as far as possible and this
be called and the content must be proved.
bundle of agreed documents shall be filed by the plaintiff
and marked as Part A;
Real Evidence/Physical Evidence
 It can be physical objects, buildings or landscapes
 i Murder weapon
ii Drugs that has been seized
iii Location where the crime was committed for
the court’s inspection
 Real evidence must be adduced by witness &
marked as ‘Exhibit’ before it can be admitted as
evidence (marked ‘ID’) in the court.
 In adducing such evidence, one must establish the
chain of evidence
 Chain of evidence (custody and control of evidence)
must be established before the evidence may be
admitted.
i Why? Risk of tampering / contamination of the
evidence which may result in the evidence
rendered unreliable.
ii Who seized? When? Where? Condition when
seizing?
iii Analysis of the evidence. Retrieved and kept in
evidence room before in court.
iv Must show who had control and custody of
evidence.
v If tampering, becomes unreliable. Defense then
can argue that this evidence should be
excluded. (Not in evidence Act)
 Eg: Murder charge. Alleged weapon is a knife,
seized by Inspector X who puts it in an evidence
bag and tags it. On the way to balai, he gets a call
from his wife that he must pick up the kids. He
rushes to the balai, puts evidence on his desk and
leaves to get his kids. Next day at work, evidence is
missing. It was found only 3 days later in a back
store room.
i Is there a break in chain of evidence? Yes. It
will render the evidence inadmissible.
ii The defense lawyer can find if there is a break
in chain of evidence or not through
cross-examination of witnesses.
 What is the impact if there is a break in the chain of
evidencce?
 Eng Sin v PP [1974] 1 LNS 33, FC
i In a case such as this, where the charge is
murder and the evidence is entirely
circumstantial, the links in the chain of
evidence must be strictly established.
ii The Chemist’s Report referred to two small
bottles containing samples of blood alleged to
be those of the deceased’s blood samples and
labelled “Chan Sow Peng” was not so labelled
and turned out not to be a small bottle but a
large cigarette tin with some liquid in it.
iii It is clear that no reliance can be placed on the
Chemist’s Report by reason of the failure to
adduce evidence that the blood samples were
those of the appellant and the deceased by
calling the persons who actually took them and
how they were sealed and labeled by them and
to whom they were handed after doing so.
There was no evidence as to ownership of the
knife, the shirt and the other pair of slippers.
There was therefore, nothing at this stage to
connect the appellant with the death of the
deceased.
 PP v Kalidass Ramaya [2017] 2 CLJ 704, HC
i Charge under S.39B(1)(a) of DDA for
trafficking in 433.3g of dangerous drugs.
ii Evidence: ASP Mohamad together with his
team, entered into the accused’s house and
recovered the dangerous drugs. After the
arrest, his team proceeded to his mother’s
house to carry out a search in the said house.
During this time, ASP Mohamad left the drug
exhibits with one of the police officers. He was,
however, not able to remember who the
particular officer was nor the length of time he
was away from the house.
iii Held: It is trite that in drug cases, where a break
in the chain of evidence is alleged, this
essentially means the defense is contending
that the drugs analysed by the police chemist
and forming the basis of the charge against the
accused are not the same drugs that were
seized from the accused’s possession.
The prosecution bears the burden of proving
beyond a reasonable doubt that there are no
breaks in the chain of evidence with regard to
the handling of the drug exhibits from the time
they are seized to the time when they are sent
 to the chemist and subsequently produced in provided that he did no in the course of the ordinary
court. use of the computer.
Court found that the prosecution has failed  Gnasegaran v PP [1997] 3 MLJ 1, CA
to establish a prima facie case and the accused i Admissibility of a document produced by a
was acquitted. computer. For a computer generated document
 Mohd Yazid Mohd Shariff v PP [2016] 5 CLJ 709 to be admissible, S.90A(1) states that it must
i Accused was charged under S.39B(1)(a) DDA have been produce ‘in the course of its ordinary
for trafficking dangerous drugs. use’. To establish that, S.90A(2) states that a
ii Issues: certificate signed by the person responsible for
→ whether there was a break in the chain of the management and operation of a computer
evidence may be tendered.
→ Whether there were discrepancies in the ii Certificate was not tendered, but an officer was
weight of the said drugs called to give evidence on the workings of that
iii Witnesses: particular computer.
→ Chemist stated that they received 25 slabs iii Held: Accepted evidence officer’s evidence as
of drugs, but the Police Officer stated that proof that the printouts were produced by the
the seized 5 slabs of drugs. computer in the course of its ordinary use.
→ Police officer stated that it was 4700g
→ Chemist submitted that it was 4550g
→ Prosecution submitted that it was 9623g
iv Held:
→ Learned counsel’s challenge that there
was a serious break in the chain of
evidence was devoid of merit.
→ The evidence showed that there was no
break in the chain of evidence. The
movement of the exhibits was clearly
explained.
 Nobies Weah Ezike v PP
i Fact: the accused was charged with Section
39B DDA for drug trafficking. The trial judge
admitted & considered the IDs which were not
yet properly admitted as ‘exhibit’.
ii Held (COA): such evidence should not be
considered, the prosecution’s case had to
stand without those exhibits. However, the
court found the accused guilty of charge as the
prosecution had proved the case beyond
reasonable doubt & there is no break in the
chain of evidence

Computer Evidence
 It is no longer necessary to call the actual teller or
bank clerk who keyed in the data to come to court,