DOCUMENTARY

EVIDENCE:
QUESTION 1 & 2
MUHANNAD MUNIR (1728911)
QUESTION 1
Explain what you mean by proving the
authenticity of a document and distinguish
it from proving the contents of a
document. Answer with reference to the
relevant provision of the Evidence Act 1950
and leading cases.
Introduction
● Documents fall within the ambit of evidence. -
Section 3
● General rule:
● 1) Document must be relevant
● 2) Document must be genuine, original, authentic
or also known as primary evidence
● 3) Content of the document must be proven.
● Proving document is authentic and proving its
contents are two different things.
Proving a document
● Section 64: documents proved by primary evidence
● Primary evidence is original document - Section 62
● Explanation 1 ``where the document is executed in
several parts’’.
●
● Explanation 1 ``where the document is executed in
counterparts.’’
● Explanation 3 - document produced by computer
printout
● Secondary evidence - Section 63(a) to (e).
● For secondary evidence, must fulfill pre-condition in
section 65
Proving a document cont.

● Oral evidence can be used to prove the existence of

a document.
● Goh Leng Sai v R 1959 MLJ 121: the court held that
the existence of a contract or contractual
relationship may be proved by oral evidence.
● Fong Seng Fatt dan satu lagi lwn Syarikat Cekal
Kasih Sdn Bhd 2011 4 MLJ 27: the principle is that if
there is oral evidence or can prove that defendant
has means of knowledge, then no need to prove
existence of the document
Proving authenticity of document
● State (Delhi Administration) v Pali Ram
● 1) By an admission of the person who wrote it
● 2) By the evidence of some witness who saw it
written
● 3) By evidence of expert opinion
● 4) By the evidence of a witness acquainted with the
handwriting of the person who is said to have
written the writing in question
● 5) By court comparing.
● Note: this case has been referred to by the Malaysian court case of Hj Suratmin Bin Hj
Othman v Yusof Bin Hj Omar & Ors
Malaysian context (8 ways to authenticate)

● 1) Admission of the maker under section 70

● Arunasalam v Letchumi 1956 MLJ 89 (HC),
● Held: section 70 did not apply here because the
defendant did not fill in the blanks meaning there
was no admission of the maker.
● Allied Bank v Yau Jiok Hua 1998 (HC)
● Held: the maker of the document must be called.
● Exception: section 73A and 32 which was used in the
case of Tube Home (M) Sdn Bhd v Shanmugam @
Sa Ponmugam & Anor
2) Formal admission under section 58

● Section 58 provides that facts

admitted do not have to be
proven.
● Eg: Defendant admits in their
pleadings.
3) Direct evidence

● Section 60 provides direct

oral evidence is required
● Eg: call witness to testify
4) Expert Opinion

● Section 45 of the Evidence Act 1950

● The court will call upon experts as
they are specially skilled in deciding
the genuineness of handwriting.
5) A person who is acquainted with the handwriting of
the person
● Section 47 of the Evidence Act 1950
● Razak bin Abu v PP 2008 4 MLJ 248
● At the HC, it was held that it could not be
proven that the signatures purporting to
be that of Afizah were made by the
appellant.
6) By comparison

● Section 73 of the Evidence Act 1950

● There are two methods of comparison
● 1) Court will make comparison between
two signatures or writing
● 2) the court may direct any person to write
any words or figures in court
7) By presumption of ancient document
● Section 90 of the Evidence Act 1950
● Comm of Municipality of Malacca v Sinniah
● The court may presume provided that the document is in
proper custody more than 20 years and the circumstances
must be that it is free from suspicion.
● It does not apply to copy of documents - Tsia
Development Enterprise Sdn Bhd v Awang Dewa 1984 1
MLJ (HC) & Kunwar Basant Singh & Ors v Kunwar Brij
Raj Saran Singh 1935 1A 180.
8) Circumstantial evidence

● Dato Mokhtar bin Hashim v PP 1983 2 MLJ

232 (FC)
● ``the signature or handwriting in a
document may be proved by circumstantial
evidence if that irresistibly leads to the
inference that the person in question must
have signed or written it.’’
Objecting to authenticity of a document

● If the document has irregularity, one must

object at an earlier stage.
● Boonsom Boonyanit v Adorna Properties
Sdn Bhd 1997 2 MLJ 62 CA
● Gopal Das & Anor vs Sri Thakurji & Ors AIR
1943 PC 83
● YB Dato’ Hj Husam Hj Musa v Mohd Faisal
Rohban Ahmad 2015 1 CLJ 787
Proving contents of a document
● Section 61: by primary or secondary evidence
● Section 62: primary evidence
● Lucas w Williams & Sons 1892 2 QB 113, Kajala v
Noble (1982) 75 Cr App R 149: if original document is
available, produce it based on the best evidence rule.
● Popular Industries v Eastern Garments 1989 3 MLJ
360 HC
● Important to call the maker of the document to
prove its contents as seen in PP v Azilah bin Hadri &
Anor 2015 1 MLJ 617 FC & Allied Bank (Malaysia)
Bhd v Yau Jiok Hua
Secondary Evidence
● Section 65 of the Evidence Act & Tan Sri Tan Hian Tsin v
PP 1979 1 MLJ 73 FC
● However it must fall under one of the 7 circumstances
listed in section 65(1) and also it must fulfill the
requirements of laid foundation.
● The requirement of laid foundation: Bruce Springteen v
Masquerade Music Ltd. (2001) which decided that one “
must show an effort has been taken in searching the
original”
Secondary Evidence
● One of the circumstances is section 65(1)(a) and that is
when original document is out of reach.
● Lucas Williams & Sons
● To prove a copyright infringement, the documentary
evidence i.e the picture was abroad. Therefore, the court
had to use secondary evidence, which were the evidence
of the person who had seen the original picture and also
an exact copy of the original picture.
Secondary Evidence
● Most common circumstances is section 65(1)(c) and that
is when original document is lost or destroyed.
● Kerajaan Malaysia v Eng Seng Leong 2010 HC
● The defendant relied on section 65(1)(c) however there is
no evidence that the letter was lost or destroyed.
● Glove Kendall Limited & Anor v Maple Challenge Sdn
Bhd & Ors and other suits 2016 MLJU 1452
● Held: It is trite law that when an original copy of a
document is lost and when sufficient effort has been
taken to locate the same but to no avail, secondary
evidence of the document can be admitted as evidence in
Court.
Secondary Evidence (section 65(1)(c) cont.)
● KPM Khidmat Sdn Bhd v Tey Kim Suie
● where the respondent brought an action against the appellant for a recovery of a

sum which he claimed was due to him under certain agreements. The respondent
claimed after completing his works, he submitted his claims by way of summary
accounts prepared by one Ah Lian, a clerk. The summary of accounts was taken from
a record book, which he was unable to produce in court. however the judicial
commissioner found in favor of the Respondent. The appellant then appealed.

● On appeal, the court allowed the appeal because the court held that primary

evidence must be adduced unless it can be shown that it has been destroyed
or lost. However the respondent failed to fulfill his burden of proving that the
document was lost or destroyed. Furthermore, Ah Lian was never called to give
an oral account.
Secondary Evidence
● Another circumstance is section 65(1)(e) and that is secondary
evidence may be used to prove the contents of the document if the
original document is a public document.
● Jai Gopal Singh & Ors v Divisional Forest Officer
● The issue was relating to the use of a forest and proving of a Gazette.

The legal issue was how can the contents of the notification be
proven. The court referred to section 65(1)(e) which is in pari materia
with the Malaysian Evidence Act and held that since the original is a
public document, the secondary evidence that can be used is only a
certified copy.
Secondary Evidence
● Procedural requirement to give notice under section
66
● Only applies to section 65(1)(a)
● Kok Kee Wong v PP (HC)
● Its object is not as formerly thought, to give holder
an opportunity but it is merely to enable him to
produce it if he likes.
● However it must be noted that notice is not required
if it falls under section 66(a)-(f):
Question 2
What is a public document? Give at
least four reasons, why it is necessary
to know whether a document is
private or public.
What is a public document?
● Section 74 provides for the definition of public document. There are two
classes of public document.
● Pg Mahli bin Pg Noordin v Dato Haji Abdul Rahman referred to Husdi v
Public Prosecutor 1979 2 MLJ 304 - held that the a police statement falls
under section 74 as it is a document forming the act of a public officer.
● Anthony Gomez v Ketua Polis Daerah Kuantan 1977 2 MLJ 24 where a first
information report was said to be a public document.
● Loo Fang Siang v Ketua Polis Daerah, Butterworth 1981 2 MLJ 272 - held that
a public document is defined as a document made for the purpose of the
public making use of it.
● According to Augustine Paul at page 706, the follow are examples of
documents held to be public documents: medical reports, notes of
proceedings, charge sheets and judgment of a court.
 4 Reasons to distinguish
between public and private
document
1) Categorizing documents to make it easier for its
production
● Dato’ Yap Peng v PP 1993 1 MLJ 337 at page 349
(HC)
● ``In my view…section 74 only provides categorizing
of a public document and nothing more than that…
the purpose of categorizing… is to make it easier for
its production without the necessity of calling the
maker or the keeper of such document to give in
evidence to prove the existence of such document.’’
2) Right to inspect

● Section 76 of the Evidence Act

● Anthony Gomez v Ketua Polis Daerah Kuantan 1977 2
MLJ 24
● Held: the applicant has a right to inspect the first
information report and therefore the OCPD should have
given him a certified true copy. The applicant has a right
to inspect the first information report under the common
law because of his interest in it.
● Road accident example .
2) Right to inspect (cont.)
● Pg Mahli bin Pg Noordin v Dato Haji Abdul Rahman

● which referred to the case of Gomez and Khoo Siew Bee where the court held that

only those who had interest had the right to inspect. In the latter case, the court
allowed the accused the right to inspect his cautioned statement. Furthermore, the
case of Abdul Ghani held that a person’s right to inspect applied to both cautioned
and uncautioned statements. However in the case of Hudsi, the court refused to allow
the accused to the right to inspect statement made by witnesses to the police. Thus
in Pg Mahli case, the right to inspect was only given for the FIR and the cautioned
and uncautioned statements.
● Road accident example .
● Right to inspect can be distinguished with section 51A of CPC because the latter
concerns the right of accused to certain documents delivered by the prosecution
before the start of the trial.
3) Secondary copy can be admitted
● Section 65(1)(e)
● secondary evidence may be given when the original is a
public document within the meaning of section 74.
● Yeow Boon Kee v Timbalan Menteri Dalam Negeri
● where one of the legal issues was whether a report under
section 3(2)(c) of the Dangerous Drugs (Special Preventive
Measures) Act is admissible as only a certified true copy has
been tendered. The court held since the report was a public
document and secondary evidence can be used pursuant to
section 65(1)(e).
3) Secondary copy can be admitted (cont.)

● It does not apply to private documents as the

maker must be called.
● Exceptions are found in section 73A and section
32.
4) Section 78A
● Section 78A provides that provisions of section 90A, B, C shall
apply to public documents produced by computers.
● No need to call the maker in the case of public document
produced by a computer.
● Gnanasegaran A/l Pararajasingam v PP 1997 3 MLJ 1 CA
● Held: two ways: 1) call the maker of the document or 2) issue a
certificate stating that the computer produced the
document in the state of its ordinary use.
● PP v Hanafi Hassan 2006 3 CLJ
● Held: there must a certificate however there was no
certificate tendered. Therefore oral evidence was required in
this case.
Cont.
● Ahmad Najib bin Aris v PP 2009 2 MLJ 613 FC
● Held: may be proved by the tendering in evidence of a certificate under
section 90A(2) or by way of oral evidence.
● However, the court invoked section 90A(6) (deeming provision) meaning it
can be presumed that the documents were produced by the computer in
its ordinary use even when there is no certificate or oral evidence.
● Telekom Malaysia Bhd v KLK Electronic Sdn Bhd 2019 4 MLJ 631 CA
● Plaintiff wanted to admit computer generated evidence (C3). These
documents were relating to invoices. However, the court applied section
90A. The court should not have done so because this case concerns
private documents and section 90A only applies to public document.
Cont.
● Yinson Corporation Sdn Bhd v Perfect Mix Portfolio Sdn Bhd &
Ors 2021 MLJU 184
● The defendant wanted to rely on section 90A for invoices, delivery
notes and debit notes. Although the court held section 90A was
not applicable, the court did not do so for the right reasons.
● This is because the court held section 90A was not applicable
because a computer did not produce the documents.
● Instead the right reason should be that section 90A does not
apply to private documents in light of the clear wordings of
section 78A
 Thank You
for your Kind
Attention