Tey Jason T7

1132700206
Tutorial 7 Question 5
5. Rake, a manager of Syarikat X Sdn.Bhd was charged in the Sessions Court at Penang
for criminal breach of trust under section 408 of the Penal Code. The charge against Rake
is as follows:

That you between the 5th day of February 2008 and the 28 th day of February, being
manager of Syarikat X Sdn.Bhd and in such capacity was entrusted with certain property,
Share certificates in Mita Bhd, committed criminal breach of trust by dishonestly
transferring the said property to Get Big Sdn .Bhd and that you dxhave thereby
committed an offence punishable under section 408 of the Penal Code.

Rake pleaded not guilty to these charges. During trial prosecution tendered, through
Naren, an officer of Syarikat X Photostat copies of the share certificates in Mita
Sdn.Bhd and Photostat copies of letter written by Rake to Get Big sdn.bhd. Counsel for
Rake did not object to the admission of this evidence and the Session court judge
admitted the evidence. At the end of trial Rake was found guilty. Rake intends to appeal
against his conviction.

Advise Rake .
________________________________________________________________________

1st Issue:
The first issue is whether photostat copies of the certificate and letter is secondary
evidence? S.3 provides that a document means any matter express upon any substance.
This definition is very wide and comprehensive. If evidence fall within the definition of
documentary evidence, it must satisfy the rules of admissibility for it to be tendered in
court. On the facts, the share certificate falls within such definition and it must satisfy the
rule of admissibility for it to be tendered.

S.59 stipulated that all facts, except contents of documents may be proved by oral
evidence. As for the contents of documents, S.61 provides that they must be proved by
way of primary or secondary evidence. Primary evidence is defined under S.62 to mean
that the document itself is produced in court for inspection. In Allied Bank v Yau Jiok
Hua it was held that carbon copy signed after the top copy had been signed cannot
constitute primary evidence as the whole document was not made in one uniform process.
In Ooi Thean Chuan v Banque De Paris the court held that there can be more than one
primary copy. The key issue is whether it is produced in the same uniform process. Based
on the facts, the photocopies of the share certificate and the letter were made by a
photocopier. So, they are secondary evidence as they were not made in one uniform
process.

2nd Issue:
The second issue is whether the original share certificate and letter can be proved by
photocopies? The general rule provided under S.64 is that document must be proved by
primary evidence within the definition in S.62.
Tey Jason T7
1132700206
Tutorial 7 Question 5
According to S.63(b) secondary evidence include copies made from the original made by
mechanical process. Lee Kok Nam it was held that a photostat copy, being a copy made
from original by mechanical process does falls within s. 63(b) as secondary evidence. It
will be admissible as evidence only when it satisfies s. 63(b) & 65. It will not be
admissible if no explanation was given as to why the original is not produced. As such,
Rake is advised that the photocopied share certificate and photocopied letter are not
admissible as secondary evidence if it does not satisfy S.63(b) and 65 or no explanation
was given as to why the original was not tendered.

In Popular Industries v Eastern Garment Manufacturing the court held that it is a

firm rule that require primary documentary evidence to be tendered, which is by the
production of document itself. The exception of this rule can be found under s. 65(1). The
burden of proof lies on party seeking to admit the document whereby under s. 104 the
burden in a criminal case is that the party adducing such evidence must prove beyond
reasonable doubt. On the facts, the burden is on the prosecution.

KPM Khidmat Sdn Bhd v Tey Kim Suie the court held that the general rule of
documentary evidence is that the primary evidence must be tendered. The exception to
such rule is in s. 65 but the plaintiff must explain the non-production of primary
evidence. On the facts, the prosecution has to explain the non-production of the original
share certificate and letter, before photostat of the share certificate and letter may be
tendered.

Allied Bank v Yau Jiok Hua the court stated that to admit a document: Firstly, the
document must be relevant. Secondly, if the evidence is tendered to prove truth of
content, the maker must be called as witness; otherwise, it will be caught by hearsay
unless it falls under the exceptions. Thirdly, the document must satisfy the requirement of
primary / secondary evidence. On the facts, the prosecution must ensure that the
certificate and letter is relevant, not caught by hearsay and satisfy the requirement of
primary / secondary evidence.

3rd Issue:
The third issue is whether failure to object the admission of the photocopied share
certificate and letter is fatal? In Popular Industries v Eastern Garment
Manufacturing it was held that failure to object to such secondary evidence is not fatal
as such evidence can be objected at any time. Pursuant to this case, it is likely that failure
of Rake to object the tendering of the photostat share certificate should not be fatal as he
can object such evidence at any time.

4th Issue:
The fourth issue is whether the photostat copies of the share certificate and letter is
admissible as secondary evidence? Exception to S.64 is stated under S.65(a) whereby
secondary evidence may be given when the original is in the possession of the person
against whom the document is to be proved. Under S.65 such exception is only applicable
where 3 preconditions and 1 para from S.65 is satisfied.
Tey Jason T7
1132700206
Tutorial 7 Question 5
The 1st condition is that the secondary evidence under S65 is only admissible if the
original itself is admissible in evidence had it been avaliable. A case in point is Allied
Bank v Yau Jiok Hua whereby it was held that to admit the evidence under s. 65, the
evidence must be relevant and not caught by hearsay. Also, in Re Neo Guan Chye the
court held that secondary evidence of an inadmissible document itself is inadmissible.
Hence, the original certificate and letter must be admissible in evidence before the
photocopied version can be admitted.

The 2nd condition is ‘proof of execution’. If a document was executed by any person,
there must have proof of execution of the original documents. Evidence of execution
must be proved under S67 or S45. An exception is provided under s. 136(2) wherein the
court may allow document to be tendered as evidence subject to counsel’s undertaking. In
Tsia Development it was found that the general rule is that for secondary evidence to be
adduced, due execution of original must be proved. Exception is that the court has the
discretion under s. 136(2) to allow secondary evidence to be admitted subject to counsel’s
undertaking that due execution will be proved. As such, the prosecution must first
produce the proof of execution of the original documents before the photocopied cert and
letter can be tendered. But, the court may still allow the photostat cert to be admitted if
the prosecution undertake to prove such execution.

The 3rd condition is the requirements under s. 52 of Stamp Act whereby it stipulated that
no instrument chargeable with duty shall be admitted in evidence unless such instrument
is duly stamped. Proviso to S52 provides that firstly, tt may be admitted on payment of
duty and penalty. Secondly, such rule is not applicable to criminal cases. Thirdly, such
rule is not applicable to document executed by government. In Malayan Banking v
Agencies Service Sdn Bhd it was held that unless the document is stamped before or at
the time of execution there is no way the instrument could be admitted. But the court can
impound and admit unstamped document. Based on Bar Council Ruling & r. 58
LPPER a advocate & solicitor shall not object to insufficiently stamped document unless
it goes to the root of the subject matter.

Based on the facts, the general rule is that the photocopied certificate and letter must be
stamped. But, regardless of whether the photostat share certificate and letter are stamped
or not, they may still be admitted on payment of duty and penalty by the prosecution.

4th condition is to satisfy 1 paragraph under s. 65(1). The burden of proving lies on the
parties seeking to adduce the secondary evidence. Under S. 65(1)(a) the elements are
when original is in the possession/power of the adverse party, out of the reach of court, of
any person legally bound to produce it. S. 65 must be read together with s. 66 wherein to
admit secondary evidence under s. 65(1)(a), the party proposing to give such secondary
evidence must give the party who possess such document/his advocate a notice to
produce. It means that secondary evidence under s. 65(1)(a) can only be adduced if notice
under s. 66 has been issued and there is non-compliance. The exception is stated in
Proviso of s. 66 whereby no notice is required in certain situations /as the court thinks fit.
Tey Jason T7
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Tutorial 7 Question 5
In Chua Neoh Kow it was found that where notice to produce under s. 66 is issued,
evidence that it was served on the other party is required. Based on the facts, the
prosecution must establish that Rake have possession / power over the original share
certificate and letter. Also, provisio to S65(a) requires notice to be given and the original
was not produced.

On the facts, the notice under S.66 must be served by the prosecution to Rake. Also based
on the case of Chua Neoh Kow evidence that such notice was served must be tendered as
well. However, such notice is not required if it falls under the situations under provision
of S66 / the court deems fit. S66 provision b stated notice is not needed when from the
nature of the case, the adverse party must know that he is required to produce it.

Only if all 4 conditions are satisfied the prosecution can tender the photostat share
certificate and letter as secondary evidence. As such Rake may appeal if any of these
conditions are not satisfied.