Evidence Supplementary 2020

Question 1:

(a) Siti’s statement:

● Siti saw John assault Hassan with others at the flat - incriminates John -
identification.
● Relevancy - S.5 - evidence may be FII or Relevant Facts - relevant under S.9
(explain or introduce RF):

○ Siti has been deported and cannot give testimony in Court -

Subramaniam v PP - where an out of court statement is made and is
sought to be tendered in court for the truth of the matter stated, it is
hearsay and therefore inadmissible unless one of the hearsay exceptions
apply as to make it a relevant fact.

○ S.32(1)(i) and (j) - statement made in the course of investigations…by a

police officer in the discharge of his duties.
■ If read conjunctively - statement has to be one by the police (i.e
police diaries) - statement by witness not allowed to be tendered -
hearsay exception cannot apply to S.112 statement.
■ If read disjunctively - statements by witnesses allowed - hearsay
exception will apply to S.112 statement.

○ Where the Court takes the conjunctive view, Siti’s statement cannot be
tendered as it is hearsay.
■ Kobra Taba Seidali (COA) 2014.

○ Where the Court follows the disjunctive view, Siti’s statement is made to
be a relevant fact by way of S.32(1)(i) EA 1950.
■ Siti Aisyah (COA) 2019 - more recent COA decision - should rely
on this.

● Mode of Proof:
○ The GR on the admissibility of S.112 statements is seen in S.113(1) CPC,
where a S.112 CPC statement cannot be admitted unless provided for
under this Section, OTF, none of the subsections apply.
○ However, S.113(4) CPC mentions that this Section will not apply to
statements made to the police which falls within S.32(1)(i) and (j) EA
1950.
○ Hence, statement will be allowed to be tendered by calling the recording
officer and tendering the document under S.60(3) EA 1950.
(b) Weight of Muthu and Maniam’s evidence:
● OTF, their evidence would be relevant under S.7, S.8, S.9 EA 1950.
● They will be called to give direct evidence under S.60(1) EA.
● However, they will be held to be accomplices as they are participants of the crime
- PP v Nomezam Appandy/Davies v DPP - will be held to be suspect witnesses.
● Corroborative evidence is tendered to support or confirm the evidence tendered
by suspect witnesses.

● S.133 EA 1950 - conviction of the accused based on uncorroborated evidence of

an accomplice is not illegal.
● S.114(b) EA - where accomplice evidence is not corroborated, he is deemed to
be unworthy of credit.
○ Courts has discretion as to whether this presumption should be invoked.
○ Illustration (iii) to illustration (b) - whether or not Muthu and Maniam can
corroborate each other.
● PP v Nomezam Appandy - where the accomplice played an active role - should
be corroborated; passive role - can dispense without the need for corroboration

● Corroboration required as a matter of practice and prudence.

○ Therefore, the Court may either require for the corroborative evidence, or
dispense for the need for corroboration and convict the accused without
corroborative evidence provided the judge has warned himself of the
dangers in doing so - Ng Yau Thai v PP; once warning is made and the
judge makes it clear in his judgement that he is satisfied beyond
reasonable doubt, he may convict the accused (Din v PP).

● Submission:
○ Although not illegal to convict, the rule of practice is that evidence of
accomplices should be corroborated.
○ Where corroborative evidence is required, more weight can be attached
to the evidence.
■ If uncorroborated, then little weight is given;
■ If corroborated, more weight can be attached/
○ With no corroborative evidence required - the judge can still convict but
must warn himself before he does so.
■ More weight can be attached uncorroborated evidence alone is
enough to convict the accused.

(c) OTF, no eyewitnesses that saw Hassan’s murder.

● No direct evidence, only circumstantial evidence.
● Sunny Ang v PP - judge convicted accused of murder although evidence
tendered were all circumstantial evidence.
● PP v Azilah Hadri - crimes are usually conducted to prevent any witnesses - to
not allow circumstantial evidence to be used to prove a case would be too big of
 an obstacle for the PP to discharge their burden (of BRD). Hence, CE should be
allowed so long as:
○ The facts so established is consistent with the finding of guilt; and
○ The circumstances are conclusive in nature so that the chain of evidence
is complete as to exclude any consistencies with the innocence of the
accused.

● Test to admit circumstantial evidence (to discharge burden BRD) - Kartar Singh
v PP:
○ Is the evidence consistent with the accused’s guilt and
○ If there are any inconsistencies which would bring about any other
material conclusion.

● Murder - AR, MR, Identity:

○ AR/Identity -
■ John had a knife (M&M’s testimony) - death caused by stab
wound from sharp object - relevant under S.7. Use medical
evidence to link the knife to the offence.
■ Caught up with Hassan and brought behind buys - opportunity &
S.11(b) illustration (b).
■ Onlooker’s testimony - S.6
○ MR - one stab wound to the heart? - shows intent to kill?
■ Motive - Siti’s statement under S.8

Question 2:
(a) How and in what circumstances - impeachment:

● A witness may be impeached via 3 methods provided for under S.155 EA:
(a) By evidence of other persons who testify that based on their knowledge
they believe the witness to be unworthy of credit;
(b) By proof that the witness has been bribed, accepted such offer or any
other corrupt inducement; or
(c) By any previous inconsistent statements made by the witness (in line with
S.145 EA).

● A voir dire to determine whether or not a previous statement is made voluntarily

is only required where there is dispute that such statement has been made -
DMH v PP.

● Discuss requirement for leave.

(b) Procedure:
 1. Obtain leave of court (in law - if party which called the witness wants to
impeached; in practice, both the party which called and adverse party will obtain
leave before impeaching any witness).

2. Muthusamy v PP - Courts will determine whether or not there are any material
discrepancies between the statements - if not material, impeachment
proceedings will not be allowed. If material, leave will be granted - impeachment
proceedings will commence via a voir dire.

3. Witness will be called and his attention will be brought to the part of the previous
statement to be used to impeach him. Where he denies making any previous
statements - the matter is either dropped or proof is required to be tendered that
the statement had indeed been made by the witness before.

4. Where he acknowledges making the statement, he will be required to give

reasons for any inconsistencies :
a. If his explanation is satisfactory, his credit is saved and his statement
made in court will stand.
b. If not, his credibility will be held to be doubtful - testimony discarded.

● Discuss DMH v PP - ruling will not be immediate.

● Where party is impeaching his own witness, the court will allow such party to
cross examine his own witness by virtue of S.154 EA.

(c) Difference between impeaching and declaring a witness hostile:

● Declaring witness hostile - when the judge is of the opinion that the witness is no
longer of the desire to tell the truth at the instance of the party calling him. Where
this happens, the party calling him will be allowed to conduct impeachment
proceedings.
○ May be impeached if there is evidence falling under S.155 - where they
are not impeached, the evidence would be against the party which calls
him but IT MUST BE taken into account by the courts - failure would
amount to insufficient judicial appreciation of evidence.
○ Re Wee Swee Hoon
● Impeachment proceedings are proceedings to attack the credibility of the witness
with the intention of having the witness’ testimony given in court thrown out and
disregarded - DMH v PP.
● A decision as to whether a witness is impeached will only be given at the end of
the respective party’s case - hence, after impeachment proceedings are carried
out, the hostile witness will still be subject to XE and RE - Datuk Haji Harun v
PP.
Question 3:
(a) Pattern of keeping drugs in tissue boxes:
● Knowledge - S.14 illustration (a) - used to prove knowledge of the nature of the
substance.
○ Knowledge can be inferred through the possession of multiple items of
the same nature.

● GR - Makin v AG - any evidence tending to show that the accused has been
guilty of criminal act other than those covered in the indictment to show that he
has a general criminal disposition is inadmissible.

● What would the SFE be tendered for?

○ AR - custody and control; MR - dangerous drug and knowledge and
weight; intent to traffic will be presumed.
○ In the event the SFE is being tendered to show that Ripper was in
custody and control of the drugs - not allowed as SFE cannot be used to
prove AR - R v Raju.
○ Where Ripper is disputing:
■ MR - apply S.14/S/15
■ Identity - apply S.11(b)

(b) Discovery of drugs from Ripper’s house:

● Sergeant Jack - relying on S.27 EA - there is no requirement that the statement
had to have been voluntarily made.
○ Ingredients:
■ Statement made by the accused during or after the commission of
the offence.
■ In the custody of the police - Shaaban / Eng Sin/
■ Whether or not the statement made led to the discovery of subject
matter of the charge - OTF - drugs that led to the charge -
satisfied.
■ Police must not have known about this before the information.
■ The subject matter must have the characteristics of being
concealed.
○ Relevant to show custody and control and knowledge of the nature of the
substance.
○ Once admissible, the accused can challenge - information to be thrown
out of court.

● Court will exercise their discretion under the case of R v Sang/Kuruma.

○ Where the evidence was obtained by unfair means, it is still admissible on
the grounds that it is relevant - except where the PE outweighs PV, then
evidence should be disregarded.
 ○ Burden on accused to prove. Where A can prove that PE outweighs PV,
court has discretion to disregard the information given by A.

● Link findings of the Court to double presumptions under S.37(d) and S.37(da)
DDA 1952.
○ Where basic facts are proven, can invoke presumptions and the charge
would be made out against the accused BRD.

(c) Thomas testified that the machine was under his control and management:
● Report would be produced by a computer, hence admissibility is governed under
S.90A.
● Under S.90A(2) EA, there is a need for a certificate to be tendered to certify that
the machine was in good working order to produce the document.
○ In the case of Gnanasegaran v PP, this requirement can either be done
by tendering a certification by the person in control and in management of
the computer, as stipulated in the section, or calling that person as a
witness to tender evidence of such.
○ Therefore, the courts can take the evidence of the chemist without having
the certificate. If S.90A is satisfied (expand on the points the maker has to
satisfy), the chemist report can be tendered.
○ OTF, requirements have not been proven - cannot rely on S.90A to admit
the findings of the analysis of the drugs.

● Strong ground of appeal - nature of the substance - PP must prove that the drug
is a dangerous drug and this can only be made via the report - which is now
inadmissible due to non-compliance of S.90A - the same is said with the weight
of the drugs.

● Submission:
○ Findings should have been in accordance with whether the ingredients of the
offence have been proven.
Question 4:

(a) Putra’s evidence:

● S.118 - Putra will be a competent witness.
● Ghouse bin Haji Kader - all competent witnesses are compellable, but their
testimonies will be subject to the provisions of privilege.
● Braxit can rely on S.126 where no advocate is permitted to disclose:
○ Any communication made to him in the course and for the purpose of his
employment or on behalf of his client;
○ The contents or condition of any document he has become acquainted in
and for the purpose of his employment;
○ Any advice given by him to his client
 ■ Unless it is in furtherance of any illegal purpose or if any crime or
fraud has been committed since the commencement of his
employment.

● S.126 - requirements:
○ There must be a solicitor-client relationship - Dato Sri Mohd Najib Razak
v PP - OTF, Putra is Braxit’s solicitor.
○ Disclosure can only be done where this privilege is waived by the
privilege holder - i.e the client - i.e Braxit. Mere disclosure does not
amount to waiving privilege as seen in Dato Anthony See v See Teow
Chuan.

● Therefore, Putra cannot disclose any communication that was held between
himself and Braxit unless the proviso for S.126(1) applies or if they waive
privilege.

(b) Onslow’s Evidence:

● Onslow should be called as a witness to give evidence of these findings under
S.60(1). However, he is not available.
● Subramaniam v PP - where an out of court statement is made and is being
tendered in court for the truth of the matter stated, it is hearsay and inadmissible
unless one of the exceptions apply.
● S.32(1)(b) - ordinary course of business - in discharge of professional duty -
Onslow has personal knowledge on the content of the market study.
○ Tempil Perkakas - witness must have personal knowledge on the
ordinary course of business;
○ Allied Bank - maker must have personal knowledge on the subject
matter of the statement.
○ OTF, argue the possibility that this section will not apply if the making of
the study is not Onslow’s ordinary course of business - meaning he will
have no personal knowledge on the contents of the report.
● S.73A - admissibility of documentary evidence in civil cases:
○ OTF, maker of the statement Onslow has personal knowledge -
S.73A(1)(a)(i) satisfied.
○ If no PK, not satisfied and the report cannot be tendered.

Question 5:
(a) -
● According to S.101, illustration (a) and S.102, the Prosecution has a legal burden
of proof in criminal cases to prove the case against the accused.
● The standard of proof which the burden needs to be discharged in one of beyond
reasonable doubt as held in Mat v PP.
 ● “BRD” is defined by Lord Denning in the case of Miller v Minister of Pensions
as not requiring to reach certainty, but a high degree of probability. To prove a
case BRD is not proof beyond a shadow of doubt.
● PP v Saimin - a reasonable doubt is the doubt which makes you hesitate as to
the correctness of the conclusion which you wish to reach… it is a doubt which
settles in your judgement, and finds a resting place there. It must be a doubt so
solemn and substantial so as to produce in the minds of the jurors some
uncertainty as to the verdict to be given.
● To ensure that the case is not discharged beyond a reasonable doubt, the
accused will have an evidential burden to raise any live issues in the mind of the
trier of facts to raise doubts on the PP’s case.
● At the end of a criminal trial, the Courts will take into account all of the evidence
accused and determine whether or not the PP has succeeded in proving their
case beyond a reasonable doubt against the accused. If so, the Court may
convict the accused, if not, the accused must be discharged.

(b) -
● S.105 EA - places a legal burden of proof on the accused when he is relying on
any of the general exceptions in the PC, any special exception or proviso
contained in any other part of the same code, or any law defining the offence is
upon the accused.
○ Discuss illustrations.
○ Jayasena v PP - S.105 places a legal burden of proof on the accused
based on the definition of “proved” under S.3 EA.
○ E.g.
■ Ikau Anak Mail - LB to prove provocation
■ Lee Poh Chye - LB to prove private defence
■ Kenneth Fook - LB to prove insanity

● FII is defined under S.3 EA 1950 as any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or extent of any
right, liability or disability asserted or denied in any suit or proceeding necessarily
follows.
○ Based on the illustration found under “facts in issue” under S.3 EA - the
elements of any potential defences found under the Penal Code the
accused will be relying upon are facts in issue.

● Hence, pursuant to this S.105 and the illustration in S.3 EA, the accused will bear
a legal burden of proof of the facts in issue of the defence or exception he is
relying on.

● Standard of Proof - Balance of Probabilities - Yuvaraj v PP - definition in Miller v

Minister of Pensions - where the tribunal is of the opinion that “it is more
probable than not”.
 ● Fact presumed in S.114A/DDA is invoked against the D - hence in these
instances, the D would bear a burden to DISPROVE the presumption of the FII -
burden to disprove is a legal burden.
○ If an accused needs to disprove a RF, the burden is only an evidential
burden (prosecution has LB to prove basic facts).

Question 6:
(a) Adverse inference:
● If Kent is not called, his claim on estoppel will have no evidentiary basis.
● S.102 EA - if no proof on estoppel, Shaun would lose the case.
● Since legitimacy of the will is challenged - Party relying on the validity of the Will
needs to prove that the will is valid - Letchumanan Chettiar v Secure
Plantations; Sembagavally v Tee Seng Hock; Boonsom Boonyanit v Adorna
Properties.
● If Kent testifies, it will be direct evidence under S.60(1)(b) - he heard the
“estoppel”.
● S.114(g) -
○ Basic facts:
■ where there is material evidence which can be produced - must be
material; and
■ There is deliberate withholding of said evidence.
■ Munusamy v PP - evidence must be material and cannot be
merely negligent omission.

○ Presumed fact: if produced would be unfavourable to the person who

withholds it.

● Hence, OTF, if Allen proves that Kent is a material witness and that there is a
deliberate intention to withhold him from tendering evidence, he may ask the
Courts to invoke said presumption against Shaun.

● However, this is a rebuttable presumption of fact which may be disproved as

seen in S.4 EA.

● It should be noted that in Selvaduray v Chinniah, it was held that an adverse

inference should not be invoked against a Defendant in a civil case where he
does not possess a legal burden of proof.

● Shaun has legal burden of proof by virtue of S.103 EA - hence, failure to call Kent
as a witness would result in adverse inference being made against Shaun.
 (b) -
● OTF, defendant is seeking to re-open his own case.
● Chia Leong Foo; Killick - criminal cases and is for the prosecution to reopen
their case to tender rebuttal evidence - NOT THE CASE HERE.
● Argue that it does not fall under S.138(4) because this is not RECALLING of a
witness - OTF, Kent has not been called as a witness before.
● Tan Kah Khim v Lim Chin Chuan - gives the court discretion to allow witnesses
to be recalled (differentiate from current facts) - would be more inclined to
allow it if the application is made immediately after the close of the respective
party’s case.
○ In this case, the Courts held that this discretion could also be allowed
where the D has closed his case (so long as before judgement is given) -
so long as there is no prejudice and surprise to the other party.

Question 7:

(a) Duty to disclose defence:

● In criminal cases, P has to adduce all possible evidence to discharge their
burden and disprove any possible doubts raised by the D at the close of P’s
case.
● Tan Kim Ho v PP - duty placed on D to disclose his defence during P’s case -
failure would allow the Courts to hold that the defence was fabricated or that the
P’s case may be reopened and rebuttal evidence may be tendered.
○ Although the latter is rare, the courts have exercised their discretion as
seen in the case of PP v Chia Leong Foo.
● However, to allow for evidence of rebuttal - P must have presented his primary
case FULLY - PP v Chia Leong Foo.
● Discretion to call rebuttal witness - R v Killick - GR is that the prosecution is not
allowed to split his case, but one of the exceptions is when the PP could not have
reasonably foreshadowed the defence raised by the D.

(b) -
● What is XE - discuss section and purpose.
● Failure to cross examine any witness on a crucial part of the case will amount to
acceptance of the witness’ testimony - Ayoromi Helen v PP/Sembagavally v
Tee Seng Hock/ PP v AG Bahrun Mat Yassin.
● Failure would not amount to acceptance of the testimony - Transport Ministry v
Garry.
○ Story itself is of an incredible or romancing character;
○ The abstention arises from mere motives of delicacy;
○ When counsel indicates that he is merely abstaining for convenience, e.g
to save time.
● Puganeswaran Ganesan v PP - evidence that is not challenged in the XE need
no corroboration, even where it comes from an accomplice. It must be taken as
proved unless the evidence is so inherently incredible that no reasonable tribunal
would accept it as true or that the evidence has been effectively rebutted by other
evidence led by the Prosecution.