LAW OF EVIDENCE II

LAW 578
ASSIGNMENT 1
(FIRM 1: IZZMANI & CO)

MEMBERS:

1. MUHAMMAD IZZAT BIN MOHD NORIZAM (2016239832)

2. AUDREY ALICIA ANI NAIR (2016310207)
3. MAISARAH BINTI AHMAD HATIM (2016239544)
4. NUR NINA SYAHIRA BINTI ABD GHANI (2016331769)
5. ATINA AZWA BINTI AZMAN (2016331771)

GROUP : LWH07E

PREPARED FOR : MADAM SIVAMEENAMBIGAI VEERIAH

SUBMISSION DATE : 29th June 2020

The issue is whether Danial has any reasonable grounds to appeal?

1. ISSUE REGARDING BAD CHARACTER EVIDENCE

Facts in issue?

The first issue in this case is whether the prosecution can tender Danial’s bad
character during cross-examination.

Character means a person’s conduct or previous acts, his reputation among a group of
persons acquainted with him or his tendency or disposition to behave in a particular manner
including specific acts on his part. Reputation here means what others think about a person.
For instance, the general credit which a person has obtained in the estimation of the public.
However, in the Evidence Act 1950, the term character includes both reputation and
disposition as laid down in ​Section 55 of the Evidence Act 1950 (EA) with the limited
exception to ​Section 54 of the EA​. 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,
the 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 a number of exceptions to the general rule some of
which is found in ​Section 52​ to ​Section 55 of the EA​.

By virtue of ​Section 54 of the EA​, the fact that a person is of bad character is not
relevant under this section for raising a general inference that the accused is likely to have
committed the offence charged. Thus, the guilt of the accused must be proved by independent
evidence and not on the basis of his character. However, if the accused gives evidence as to
his good character, then the bad character of the accused becomes relevant as stated in
Section 54(1) of the EA​. ​Section 54 of the EA goes further and states that the accused
cannot be asked or if asked, he is not required to answer any question which relates to bad
character or previous offences unless such evidence is admissible evidence; or he has put his
good character in issue; or the nature or conduct of the defence is such to involve imputations

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on the character of the prosecutor or witnesses for the prosecution; or he has given evidence
against any other person charged with the same offence.

Under ​Section 54 of the EA​, the prosecution cannot lead evidence relying on the bad
character of the accused to establish its case. However the prosecution can only adduce
evidence if the accused has adduced evidence to show his good character or if one of the
exceptions stated above applies. In the case of ​Wong Foh Hin v PP​, the court stated that
evidence, which is relevant, does not become irrelevant because it incidentally shows the
accused to be a bad character. In this case, the accused was charged with the murder of his
daughter, the fact that he had an incestuous relationship with her was admissible to show
motive as motive was rendered relevant by virtue of Section 8, despite the fact that it revealed
his bad character. In the case of ​Girdari Lal & Ors v PP​, the court stated the production of
police photographs and putting it in evidence tantamount to saying that the man is of bad
character. Next, in the case of ​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. In another case of ​Kiew Foo Mui & Ors v PP​, evidence which referred to the
accused fleeing from the scene of the crime in a stolen car was held to be inadmissible as the
defence had not attempted to adduce evidence of the accused’s good character or impugn the
character of any prosecution’s witnesses under ​Section 54 of the EA​.

According to ​Section 54(2) of the EA​, the provision starts with four types of
questions which an accused shall not be asked, and if asked shall not be required to answer.
Paragraphs (a), (b) and (c) then refer to the situations in which such questions may be
asked. The words ‘tending to show’ appearing in ​Section 54(2) of the EA meant ‘tending to
reveal to the jury’ as decided in the case of ​Jones v DPP​. Meanwhile, in the case of ​Stirland
v DPP​, it was held that the words ‘charged’ was held to mean ‘charged in court’. As decided
in the case of ​Maxwell v DPP​, it must be noted that once the accused loses statutory
protection, it is not automatic that he can be asked any question tending to show that he has
committed, been convicted of or charged with any offence or is of bad character. Such
questions must be relevant either to the issue or else to the credibility of the accused.

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 In applying to the current situation where the prosecution wishes to tender Danial’s
bad character during cross-examination. As stated in ​Section 54 of the EA​, if Danial is of
bad character it is not relevant for raising a general inference that he is likely to have
committed the offence charged. The guilt that the prosecution has tendered towards Danial
must be proved by independent evidence and not on the basis of his character. It would
however be different if Danial has given any evidence to his good character, then his bad
character would become relevant as mentioned in ​Section 54(1) of the EA. ​Provided under
this section, Danial cannot be asked or if asked, he is not required to answer any question
which relates to bad character or previous offences unless such evidence is admissible
evidence. Hence, the prosecution cannot lead evidence relying on the bad character of
Danial’s to establish its case as mentioned in the case of ​Loke Soo Har v PP. ​The
prosecution is relying on Encik Hassan Basri’s statement when he stated “… the paying
officer had misappropriated the money.” instilling that Danial is of bad character.

In conclusion, the prosecution cannot tender Danial’s bad character during

cross-examination.

The second issue is whether the prosecution can tender Danial’s bad character during
cross-examination when Danial casted imputation on the character of Mr.Arul.

Next, according to ​Section 54(2)(b) of the EA​, the accused bad character may be
adduced when he has personally , or by his advocate, asked questions of the witnesses for the
prosecution with a view to establishing his own good character; or he has given evidence of
his good character; or the nature or conduct of the defence involves imputations on the
character of the prosecutor or witnesses for the prosecution.

Evidence of bad character of the accused may be admissible if he or by his advocate

casts imputations on the character of the prosecutor or the witnesses of the prosecution. In
this context, ‘character’ may refer to specific instances and is not limited to general character.
It is not necessary that the allegation refers to commission of a criminal offence. In fact, as in
the case ​R v Jenkins and ​R v Knuller (Publishing, Printing and Promotions) Ltd​,
immorality may be sufficient.

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 One issue arises regarding this provision where should ‘casting imputations on the
character’ appearing in ​Section 54(2)(b) of the EA be read literally or should
cross-examination be allowed only when the nature or conduct of the defence is such as to
involve ‘unnecessary’ or ‘unjustifiable’ imputations upon the character of the prosecutor or
the prosecution witnesses? In the case of ​R v Hudson​, the court held that such phrases should
be read literally. In this case, on a charge of theft, the defence alleged that the prosecution
witness had stolen the goods and had planted them on the accused. Thus, the court held that
the nature and conduct of the defence were such as to involve imputations on the character of
the witness. In the case of ​R v Jones​, it was held that to suggest that a prosecution witness
had fabricated evidence was an imputation on his character. Also in ​R v Jenkins where
questions were put to the prosecution witness who was a married woman to suggest that she
had spent the night with the accused. The court held that the defence had cast imputations on
the character of the witness, and thus it was fair and proper for the prosecution to ask
questions tending to show that the accused had committed or been convicted of an offence
other than that which was under investigation.

Soon after, however, it came to be recognized that the court has a discretion to
prohibit cross examination under ​Section 1(f)(ii) of the UK Criminal Evidence Act 1898​.
By referring to the case of ​R v Britzman; R v Hall on guidelines of how judges should
exercise their discretion so as to allow or prohibit cross-examination of the accused person’s
bad character under ​Section 1(f)(ii)​.

Factors that need to be considered to prohibit cross examination firstly is the

distinction between a denial of the truth of the case for the prosecution and an attack on the
character of the prosecution witness. This can be seen in the case of ​R v Rouse and Burrell
where the statement made by the accused that the prosecution’s witness is a liar was merely
an emphatic denial (strong expression) not imputation of bad character. In the case of ​R v
Rappolt​, the accused statement that the P witness is a horrible liar that even his own brother
would not speak to him amounts to imputation of bad character. Meanwhile, in the case of ​R
v Clarke​, the accused alleged that the police officer had concocted the statement which if
true amounted to a confession amounts to imputation of bad character.

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 The second factor is whether imputations involved are necessary to the defence. In the
case of ​R v Cook​, the accused contention that his statements were obtained by threat did not
amount to imputation of bad character as the accused did not go beyond developing his
defence in order to blacken the character of the prosecution’s witness. The court should have
refused to allow cross-examination on the accused’s previous record. According to the case
of ​R v Preston​, the accused allegation of impropriety in the conduct of identification parade
was a necessary imputation on the defence case. Hence the prosecution cannot cross examine
on the accused’s previous convictions. There is no need for the prosecution to rely on ​Section
54(2)(b) of the EA if the evidence against the accused is overwhelming. In the Malaysian
context, in exercising the discretion, reference should be made to ​Section 120(3) of the EA​.

Applying to the current situation given,

The third issue is whether the testimony by Mr Hassan Basri, the previous MACC
state director amounts to bad character evidence and if yes, whether the court had erred in
admitting Mr Hassan Basri testimony which contains the bad character evidence.

The prerequisite of admitting opinion evidence is that the competency of the expert
must first be examined. It is crucial to look at whether a person giving opinion evidence is an
expert or a non-expert. For the purpose of this ground, we will further discuss the non-expert
opinion. A non-expert refers to a person who has not acquired any training or attended a
special course to study a particular field or a person who is not skilled as experts in the field.
The non-experts are people who are exposed to the facts in issue by reason of familiarity or
acquaintance.

Section 49 of the Evidence Act 1950 provides on non-expert opinion as to usages,

tenets and etcetera. This provision states that the opinion of a person having special
knowledge of words or terms used in a particular district or particular class of people is
admissible as evidence. The special knowledge here may exist through association with the
particular group. In ​PP v Lee Ee Teong, the court has to decide whether the evidence of a
detective who by reason of experience had special knowledge about the method of gambling
was admissible under Section 45 or Section 49 of the Evidence Ordinance 1950. Here,

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Thomson J stated that the evidence of the detective is admissible under Section 49 and not
under Section 45 as the evidence is not strictly speaking the evidence of an expert.

Character evidence may be best defined as the conduct of a person which includes his
previous acts, reputation and disposition. In ​Thompson v Church​, bad character evidence is
inadmissible as it results in unfair prejudice to the parties. Nevertheless, bad character
evidence is still admissible if it falls under the exception provided in the Evidence Act 1950.

The general rule with regards to bad character evidence is laid under ​Section 54(1) of
the Evidence Act 1950 where it says that in any criminal proceeding, prosecution are not
allowed to adduce evidence of the accused’s bad character nor of the accused’s propensity to
act in a particular way even if it is relevant. This provision provides shield to the accused
which could protect the accused bad character from being tendered as evidence in court. It is
the intention of the legislation that the bad character of an accused should be protected on the
ground that it is irrelevant to show the guilt of the accused and the prejudicial effect often
outweighs the probative value. Moreover, even when the prosecution wishes to bring it the
evidence of bad character of the accused, evidence of good character of the accused must be
first brought it, then only the prosecution may cross examine the bad character of the
accused.

In applying to our case, Mr Hassan Basri falls under the category of non-expert
witness under Section 49 of the Evidence Act as he is a former MACC State Director where
he has the special knowledge when holding that position, hence his opinion may be
admissible. However, the testimony given by Mr Hassan Basri tends to reveal the bad
character of Danial Aliff. This can be seen in the last sentence of his testimony which reads
as follows- “In my experience as MACC State Director previously, if a recipient did not
receive any payments for information given, and the amount showed a deduction of amount,
the paying officer had misappropriated the money.” This sentence, in our opinion, seems to
impliedly reveal the bad character of the accused. It tends to say that the accused had indeed
misappropriated the money. The implied meaning laying behind this sentence seems to
suggest that Danial Aliff, has indeed misappropriated the money. Moreover, the Court did not

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provide any reasons for admitting the testimony by Mr Hassan Basri when his statement
clearly tended to reveal the bad character of Danial Aliff.

To conclude, it is our humble submission that the Court had erred in the eyes of law in
admitting the testimony of Mr Hassan Basri which contains bad character evidence. The
Court had also erred in the eyes of law when the Court failed to provide reason for admitting
his testimony.

Next, whether the Court had erred in law when taking Danial’s denial of truth as
casting imputation on the character of the prosecution or prosecution’s witness and allows the
prosecution to cross examine his bad character after he denies the allegation made against
him.

Generally, evidence of bad character may be admissible if he or by his advocate casts

imputations on the character of the prosecutor or the witnesses for the prosecution. However,
mere denial of truth by the accused does not amount to casting imputation on the prosecution
or the prosecution’s witness. It is the duty of the judge to be aware of the testimony of the
accused. He must be able to distinguish between denial of the truth of the case for the
prosecution and an attack on the character of the prosecution’s witness. Lord Devlin ​R v
Rouse and Burell [1904] 1 KB 184 ​states that merely denying a fact alleged by the
prosecution is not necessarily to make an attack on the character of the prosecutor or his
witnesses. He further stated that such denial is necessary and inevitable in every case where a
prisoner goes into the witness box and is nothing more than a traverse of the truth of an
allegation made against him; to add in cross-examination that the prosecutor is a liar merely
an emphatic mode of denial and does not affect its essential quality. In this case, it involves
two prisoners who were jointly charged for conspiring together by means of various false
pretences to induce a person to sell a certain mere. One of them gave evidence on his own
behalf and was asked in cross examination whether the prosecution’s statement was true. He
then replied “No. It is a lie and he is a liar”. The counsel for prosecution was then allowed to
cross examine his bad character. It was then held that the prisoner does not render himself
liable to cross examination on bad character as his answer was merely emphatic denial thus
the cross examination on his bad character was improper.

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 In applying to our case here, Danial Aliff shouted “you horrible liar, son of the father
or liars! You should be eaten by snakes because that’s what you are” upon listening to the
testimony given by Mr Arul. We are of the opinion that the Court had failed to distinguish the
denial of truth of the case and an attack on the character of the prosecution’s witness when
they took this emphatic denial as casting imputation on the prosecution’s witness. It is our
submission that the Court took this denial of truth as a casting imputation when the Court
further allowed the prosecution to cross examine Danial Aliff on his bad character. Danial did
not render himself liable to cross examination on his bad character as his answer only shows
denial of truth on the allegations made against him.

Thus, it is our humble submission that the Court had erred in law when the judge
failed to distinguish a mere denial of truth and for allowing the prosecution to cross examine
Danial on his bad character after he denied the allegation made against him.

2. ISSUE REGARDING EXPERT OPINION

We humbly submit to this honourable Court that the trial judge had erred in accepting
one expert witness opinion when there is an issue on conflicting expert opinion.

The first issue is whether Danial has any reasonable ground to appeal by
bringing up the conflicting expert opinions between Miss Pamela and Mr Koya?

The general rule is that a witness is only allowed to give evidence of facts and not
opinion. In ​Hollington v Hewthorne [1943] KB 587​, the English Court of Appeal pointed
that only the facts perceived by a witness are relevant, not his opinions. However, there is an
exception to this general rule. Opinion evidence is relevant where the matter is not within the
judge’s common knowledge or experience. Evidence may come from an expert by virtue of
Section 45 and also non-expert as stated in the Sections 46, 47, 48, 49, 50.

Section 45 (1) of EA 1950 stipulates that the opinion of an expert is relevant when the
court has to form an opinion of foreign law, science or art, or in questions as to identity or
genuineness of handwriting or finger impressions. It was affirmed in ​Chou Kooi Pang &

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Anor v PP [1998] 3 SLR 593 ​that an expert evidence is only admissible to furnish the court
with scientific or other information which is likely to be outside the experience and
knowledge of a judge.

Generally, the court cannot rule on handwriting without the aid of an expert.
However, the court may compare words with any word proved and admitted in evidence –
Section 73(2) and in this connection ​Section 67 is applicable. In ​Syed Abu Bakar Bin
Ahmad v PP, the appellant was charged for criminal breach of trust. He was convicted and
he appealed on the ground that the learned judge was wrong in making findings of fact in the
absence and without the aid of expert evidence regarding handwriting. The High Court held
that the learned judge was in error to conclude on a matter which could only be properly
concluded with the aid of expert evidence. Appeal allowed.

The court held in ​United Asian Bank Berhad v Tai Soon Heng Construction Sdn
Bhd that the evidence of an expert on handwriting unsupported by cogent data showing the
process by which he came to his conclusion is not worthy and any reliance upon such
evidence would contribute to a serious misdirection warranting interference by an appellate
court. Here, it must be noted that the evidence of an expert on handwriting must be supported
by reasons as stated in ​Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam that it was
observed that evidence by a handwriting expert should be viewed with caution. Such
evidence is however entitled to be given proper consideration and weight in the context of the
other evidence available to the court

In applying to the situation of Danial, both Miss Pamela and Mr Koya are an
expert in handwriting evidence as stipulated by the fact given as Miss Pamela has been said
to be an expert who had previously given an expert opinion in other cases eventhough
without proper training in contrast with Mr Koya. As stipulated earlier, based on the case of
.​Syed Abu Bakar Bin Ahmad v PP, ​expert opinion is particularly necessary where the court
is not in a position to perform a correct judgment without the help of persons who have
acquired special skill or experience. Thus both the opinion of Miss Pamela and Mr. Koya is
admissible under section 45 of EA. Therefore, the issue of conflicting opinions of experts will
arise in this case.

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 The issue to be discussed here is the conflicting expert opinion regarding the
authorship of the signature on the said receipt.

In ​Collector of Land Revenue v Alagappa Chettiar [1971] 1 MLJ 43​, in the event
of conflicting experts’ opinion, the judge has the discretion to choose which opinion he
prefers. However, the judge must then provide his reasons for choosing one over the other.
The court must evaluate both conflicting opinions holistically before deciding which of the
two are to be accepted in its determination of issues. There are a few factors to be considered
here in dealing with conflicting expert opinion.

In dealing with the conflicting expert opinion, there are several factors that the judge
must take into consideration; the experts’ qualification; the scientific grounds relied by the
experts to base their opinions; the experts’ explanations on their differences in scientific
matters; and the election of the most reliable expert opinion among the conflicting expert
opinions.

Firstly, the expert’s qualification. It is the scientific grounds and bases upon which
the expert relies. When there are differences between scientific matters, an expert must be
able to explain such differences. In other words, the reliability of the opinion. It is important
that the expertise of an expert must be established before his or her opinion is admitted in the
court. This is to ensure that the person giving expert opinion is specifically skilled in the
relevant field and this was explained in ​Junaidi Bin Abdullah v PP [1993] 3 MLJ 217​.
This qualification only affects the weight and not admissibility. It is not only limited to
academic qualification, but also experience. Hence, the opinion is deemed accepted even
though the person may fall short of experience, training or study.

In ​Public Prosecutor v Dato’ Seri Anwar Ibrahim (2014) 3 AMR 220​, both the
prosecutor and the defence brought in their experts to give evidence in the court relating to
the evidence of DNA. It was held that the court not only looked at how the report was
analysed, but also the qualification held by them. Hence, the learned trial judge had failed to
consider that in terms of probative value of the evidence, as the evidence of PW5 is more

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credible in the sense that she had herself conducted the various tests and analysis of the
sample as opposed to both DW2 and DW4. The evidence of both DW2 and DW4 are mere
“armchair experts” whose opinions were based on textbooks and journals as opposed to the
evidence of both PW5 and PW6 which were factual and based on their own analysis of the
samples. There is no doubt that PW5 and PW6 are experts in DNA due to their academic and
professional qualifications and experience. PW5 was the chemist who carried out the test on
the sample. PW6 was another chemist who tested the sample of DNA found from the cell that
the accused was detained.

First and foremost, the court must take into consideration the experts’ qualification
as mentioned in Junaidi Bin Abdullah v PP. Applying this to Danial’s situation, both Miss
Pamela and Mr Koya are experts in handwriting. However, Miss Pamela as a handwriting
expert, in giving her opinion on the authorship of the signature on the said receipt based on
the fact that she has given expert evidence on handwriting in other cases, and she has not
received any formal education on the subject, her evidence will be admissible but it will carry
no weight to his evidence of expert opinion. On the other hand, Mr Koya, has a bachelor’s
degree in the field of Forensic Science and received formal training specifically on
handwriting analysis from the Chemistry Department, Singapore.

Hence, the probative value of the evidence on which expert opinion is more credible
is needed. For instance, applying “armchair principle” in Public Prosecutor v Dato’ Seri
Anwar Ibrahim, despite having tonnes of experience in handwriting, Miss Pamela is merely
an armchair expert as compared to Mr Koya who himself studied in the field and had a
bachelor’s degree in the field of Forensic Science and received a formal training specifically
on handwriting analysis from Chemistry Department, Singapore.

Mr Koya’s opinion is more credible than Miss Pamela under the “armchair principle”.

Secondly, the court needs to consider the scientific grounds and bases upon
which the expert relies. A mere opinion unaccompanied by reasons for the opinion is
inadmissible. The scientific grounds must lead to a sound inference. It was held in ​Sim Ah
Song & Anor v Rex [1951] MLJ 150 that where an expert is requested to explain the nature

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of a document, the expert should explain its content by explaining the technical and
unintelligible terms contained in it. ​Section 51 of the Evidence Act ​states that whenever the
opinion of any living person is relevant, the grounds on which his opinion is based are also
relevant. The requirement to provide grounds to their opinion. Section 60 (2) of EA 1950
adds that the opinion of an expert who cannot be called as a witness is admissible when such
opinion is expressed in any treaties with the grounds thereof. In ​The Torenia, the grounds
may include either tests performed or through extensive study.

The second factor that needs to be considered by the court is to ensure that there
must be scientific grounds and bases upon which the expert relies as provided in Sim Ah
Song & Anor v Rex. Here, the court must consider such scientific grounds on the balance of
probabilities, as to whether it is sound or not as provided in Chua Seng Sam Realty v Say
Chong. Miss Pamela opinion is relevant in Section 60 (2) of EA 1950. From the facts, she
had exercised her duties in Section 51 of EA 1950. However, none of her grounds above is a
scientific ground. Miss Pamela only testified that she received 10 exemplar signatures from
documents signed by Mr. Arul and he compared it with the signature on the receipt. Miss
Pamela explained to the court that the curves, slants, proportional size, slope and the line
form of all the 10 exemplars were consistent. However, Miss Pamela failed to point it out to
the court when she was being cross-examined by the defence on the detailed differences. In
short, Miss Pamela was only given a mere opinion which is inadmissible.

Meanwhile, Mr Koya had explained the process of handwriting analysis that starts
with checking for similarities, followed by checking the differences. He further added that it
is possible that the same person wrote both pieces of text. Furthemore, if there are key
differences in enough individual characteristics, and those differences do not appear to be the
result of simulation (an attempt to disguise one’s handwriting or copy someone else’s), then
the two documents were not written by the same person.

Thirdly, if there are differences between the scientific matters, an expert must be
able to explain such differences. The court must be given the benefit to understand why and
how the opinions were made in order to make a decision. In resolving conflicting experts’
opinions, it is often far more productive to look at other consideration such as the

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methodology by which an expert has reached his conclusions and the demeanour of the
expert, rather than merely comparing the pedigree of his CV and this was explained in ​Leong
Wing Kong v Public Prosecutor [1994] 2 SLR 54.

Also, in ​Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997] 3 MLJ

61 where the issue was whether the alleged will of the deceased was a forgery. In order to
evaluate the genuineness of the will, the plaintiff brought an expert on writing to give opinion
in the court. However, the opinion was disregarded by the trial judge who relied on the
evidence of several other witnesses. Hence, the plaintiff appealed on the genuineness of the
will by comparing the signature with 20 signatures of the deceased which were admitted to be
genuine and with the aid of blown up photographs. The expert also explained the reasons for
arriving at his opinion. The court held that the learned judge was erred in law in not
considering the evidence of PW1 at all. The learned judge is entitled to reject the evidence
but not before considering such evidence. Hence, since the evidence is before us, the learned
appeal judge satisfies that there are fundamental differences between the disputed and
admitted signatures.

The third requirement that needs to be considered is that the expert must be able to
explain to the court their differences in scientific matters. It can be seen that both Miss
Pamela and Mr Koya had given their explanations regarding the differences between the
signature in the receipt and the 10 exemplars.

In contradict with ​Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai​,

Miss Pamela only gave a bare opinion which would not carry any weight as her reason is of
opinion with no corroborative finding at all. She was solely given expert evidence on
handwriting in other cases, although she has not received any formal education on the
subject. She also testified 10 exemplars signatures from documents signed by Mr. Arul and
compared it with the signature on the receipt. Meanwhile, Mr Koya gave precise explanations
on the differences that initially determine if it is possible that the same person wrote both
pieces of text where if there are key differences in enough individual characteristics, and
those differences do not appear to be the result of simulation (an attempt to disguise one’s

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handwriting or copy someone else), then the two documents were not written by the same
person.

Hence, the opinion given by Miss Pamela was irrelevant evidence and only a mere
opinion.

The fourth requirement is the reliability of the expert’s opinion​. The court must
consider the reasons of the expert before coming to a finding on which is the most reliable
expert opinion. As in ​Sun Ho Sdn Bhd v Alliance Bank Malaysia [2008] 10 CLJ 593,
despite the expert not having any formal qualification for forensic document examination, the
court held that what it looks at is whether the expert’s opinion can be of any assistance to the
court.
Lastly, ​the court must consider and choose which expert opinion is more reliable
following the case of ​Sim Ah Ho v PP​. The fact that Miss Pamela when being
cross-examined by the defence on the detailed differences, Miss Pamela failed to point it out
to the court regarding her earlier explanations shows that her opinions are unreliable.
Meanwhile, Mr Koya managed to explain to the court the differences and also the process of
handwriting analysis starts with checking for similarities, followed by checking the
differences.

Hence, in Danial’s situation, it clearly shows that Mr Koya’s opinion which appears
to be more reliable than the former expert, Miss Pamela.

In addition, in dealing with conflicting expert opinions, the court must consider
the main three factors. It can be said that the judge has a few duties that need to be
done before coming to a conclusion.

Firstly, the court must consider both Miss Pamela and Mr Koya's opinion.
Failure to consider may cause miscarriage of justice to Danial as in ​Asean Securities Paper
Mills Sdn Bhd v CGU Insurance Bhd.

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 Secondly, after having examined both expert’s reasons for their opinions, the
judge must be able to come out with a decision​. However, it can be seen here that Miss
Pamela gave a mere opinion as to the absent of any scientific grounds. Miss Pamela’s method
in comparing handwriting is outdated as when being cross-examined by the defence on the
detailed differences, Miss Pamela failed to point it out to the court. This matter of fact are not
in line with the principle held from the case of ​Dr Shanmuganathan v Periasamy s/o
Sithambaram Pillai ​which ruled that admissibility of an opinion from an expert may be done
when the expert himself had based his opinions with valid scientific researches. In contrast
with Mr Koya that had given the precise explanation regarding the findings

Thirdly, the judge has the duty to form his own opinion and gives reason for
choosing one over another. This is because an expert opinion only acts as an assistance as in
Wong Swee Chin v PP​. Here, since Miss Pamela cannot precisely identify the differences
between the signature in the receipt and the 10 exemplars, her testimony should carry no
weight at all.

In conclusion, Danial may appeal on the ground of this conflicting expert opinion
between Miss Pamela and Mr Koya.

3. Issue on corroboration

The issue is whether the learned high court judge had erred in the eyes of law for
admitting the evidence of Mr Arul, the agent provocateur, without being corroborated.

Agent provocateur is an undercover agent who participates in acts of crime by

infiltrating a group involved in suspected illegal conduct to expose and punish them. There
are few categories of an agent provocateur which includes enforcement personnel that go
undercover, a person not being an enforcement personnel, but is planted by the enforcement
authorities and lastly an accomplice who had from the very beginning of the conspiracy
assisted the enforcement authorities.

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 As can be seen in the case of Munusamy v PP​, whether a person is an informer or
has become an active agent provocateur would depend on the facts of each case. If a person
does not play an active role in the crime, he is an informer. In the case of ​Chong Chee Kin v
PP​, an informer is a person who merely gives information to the police regarding the
commission of an offence. Meanwhile in the case of ​PP v Ee Boon Keat​, the part played by
the informer in this case was beyond that of one who merely supplied information as he had
participated in the commission of the offence where he played an active role in the
transaction involving the accused. He was therefore an agent provocateur.

However, in ​PP v Mohamed Halipah​, an undercover police detective was introduced

to the accused by an informer, and there was some bargaining as to the price of the heroin
and the amount, upon which the price was eventually agreed on and the drugs were produced
by the accused. Based on his testimony and cross-examination, it was revealed that the
detective had never met the accused prior to the encounter, did not know what he looked like,
did not arrange for the supply of drugs, nor did he instigate or entice the supply by the
accused. It was held that the police detective is not an agent provocateur. If a person plays an
active role in the crime, he is an accomplice. In the case of ​PP v Thavanathan
Balasubramaniam​, a witness who has made himself an agent for the prosecution before the
actual commission of the offence is not an accomplice.

By virtue of ​Section 40A(1) of the Dangerous Drugs Act and ​Section 52(1)(b) of
theMalaysian Anti-Corruption Commission Act​, no agent provocateur shall be presumed
to be unworthy of credit. Also, ​Section 52(2) of the Malaysian Anti-Corruption
Commission Act states that a conviction for an offence under the Act is not illegal if it is
based on uncorroborated evidence of an agent provocateur.

In the case of ​R v Bickle​y, an agent provocateur is a competent witness, and the rule
of corroboration does not apply to evidence given by him. Also in the case of ​Teja Singh &
Mohamed Nasir v PP​, where an agent provocateur is entirely distinguished from an
accomplice, the evidence of an agent provocateur is not required to be corroborated.

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 By looking at the facts of the case, Mr. Arul gave evidence, contending that he was
supposed to receive a payment of RM53,000 as informers and under-cover agents for the
period of October 2018 until September 2019. Thus by applying ​Section 40A(1) of the
Dangerous Drugs Act and ​Section 52(1)(b) of theMalaysian Anti-Corruption
Commission Act​, Mr. Arul shall be presumed to be worthy of credit. Also, by applying the
case of ​R v Bickle​y, Alex can be regarded as a competent witness, and the rule of
corroboration does not apply to evidence given by him. Lastly, by applying the case of ​Teja
Singh & Mohamed Nasir v PP​, as Mr. Arul is not an accomplice, his evidence is not
required to be corroborated.

In conclusion, the learned high court judge had not erred in the eyes of law for
admitting the evidence of Mr Arul, the agent provocateur, without being corroborated.

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