OPINION EVIDENCE

Facts are things or events capable of

being perceived by the five human senses.
They include any mental condition of which
a person is conscious.
As a general rule, evidence of such facts
must be direct, in the sense that it must be
given by those who have experienced them
first hand.
Evidence is that body of testimony a
party puts forward to support the desired
finding by the Judge hearing the case
who must be guided solely by the facts.
Evidence becomes proof only when the
Judge, against the backdrop of the totality of
the evidence given and all the circumstances
of the case, either believes those facts to
exist, or considers those facts so probable
that a prudent man under the circumstances
of the particular case ought to act upon the
supposition that those facts exist.
The Court's decision must be the end product
of judicial reasoning based on proven facts
and legitimate inferences from those facts.
Witnesses are generally not allowed to
inform the court of the inferences they draw
from facts perceived by them, but must
confine their statements to an account of
such facts.

If the witness interprets the facts which he

perceives he is offering his opinion.
 2 TYPES OF OPINION EVIDENCE:

(A) experts opinion

(B) non-experts opinion

(A) experts opinion

Where technical or scientific insight is required

to understand the issues which are outside the
experience or knowledge of the Judge, expert
evidence is admitted in order to assist the Court
to arrive at the proper conclusion.
Section 45. Opinions of Experts

(1) When the Court has to form an opinion

upon a point of ..science or art, the
opinions upon that point of persons
specially skilled in that science or art,
are relevant facts.

(2) Such persons are called experts.

Science eg. biology, chemistry, physic,
medicine, etc.

Art eg. Painting, music, literature, drama,

etc.
Illustrations.
(a) The question is whether the death of A was
caused by poison. The opinions of experts
as to the symptoms produced by the poison
by which A is supposed to have died are
relevant.
Illustrations.
(b) The question is whether A, at the time of doing a certain
act, was, by reason of unsoundness of mind, incapable of
knowing the nature of the act or that he was doing what
was either wrong or contrary to law.
The opinion of experts upon the question whether
symptoms exhibited by A commonly show unsoundness
of mind and whether such unsoundness of mind usually
renders persons incapable of knowing the nature of the
acts which they do or of knowing what they do is either
wrong or contrary to law, are relevant.
Chandra Sekaran & Ors v PP- the expression
science or art is elastic enough to be given a
liberal interpretation and the fact that the section
does not specify particular fields of knowledge
does not mean that they are not included.

In this case the court was concerned with

whether a document had been typed on a certain
typewriter. Expert evidence on this issue was
allowed on the basis that expert opinion on
typewriting is as much a matter of science study
as handwriting and finger print evidence.
Section 46.
Facts not otherwise relevant are relevant if
they support or are inconsistent with the
opinions of experts when such opinions are
relevant.
Illustrations.
(a) The question is whether A was poisoned
by a certain poison. The fact that other
persons who were poisoned by that poison
exhibited certain symptoms, which experts
affirm or deny to be symptoms of that
poison are relevant.
Section 60.
(1) Oral evidence shall in all cases whatever
be direct, that is to say-
(a)..
(b)
(c)
(d) if it refers to an opinion or to the
grounds on which that opinion is held, it
must be the evidence of the person who
holds that opinion on those grounds.
Section 60.
(2) The opinion of experts expressed in any
treatise commonly offered for sale and the
grounds on which such opinions are held
may be proved by the production of the
treatise if the author is dead or cannot be
found or has become incapable of giving
evidence, or cannot be called as a witness
without an amount of delay or expense
which the court regards as unreasonable.
Section 399 of the Criminal Procedure Code creates a special
class of Government servants who are permitted to have their
reports tendered as evidence in Court in lieu of personal
attendance, provided certain formalities are observed.

Officers of the Institute of Medical Research, Government

Medical Officers and Malaysian and Singapore Government
Chemists are in this category.

If their report is served on the Accused person at least 10 days

before the trial, such persons need not attend court, unless at
least 3 days before the trial the Accused person gives notice that
he requires the person to attend, or unless the Court itself gives
such notice at any time before the conclusion of the proceedings.
It is however open to the Prosecution not to
serve the report at all but merely to call the
witness to give oral testimony, thus
preserving the element of surprise.

And Accused persons are not obliged under

our laws to give advance notice of their
intention to call any expert witnesses in their
defence.
Phipson on Evidence,10th edition, p.1280

Where the opinion of experts is based on

reports of facts, those facts, unless within
the expert's own knowledge must be proved
independently
 Expert evidence is only admissible to
furnish the court with scientific information
which is likely to be outside the experience
and knowledge of a judge.
(Syed Abu Bakar v PP)
During the course of his testimony the expert
may have to refer to documentary and real
evidence to support and illustrate his
testimony.

Sometimes the experts will need to rely on

treatises and other extrinsic materials to
support his opinion.
Section 51.
Whenever the opinion of any living person
is relevant, the grounds on which his
opinion is based are also relevant.

Illustration.
An expert may give an account of
experiments performed by him for the
purpose of forming his opinion.
How competent must the expert be?

-Professionally qualified or
-Experience must relate specifically to the matters
in issue.

The opposing party may object to a witness on

the ground that he is not specially skilled in
which case the party calling him must prove his
expertise through a series of questions.
(Junaidi bin Abdullah v PP [1993] 3 MLJ 217)
 Pacific Tin Consolidated Corporation v. Hoon
Wee Thiam [1967] 2 M.L.J. 35
Experts : geologists who had testified about the
cause of the collapse of a bund in a mining pool
in Cheras which resulted in a catastrophic flood

Summary of the principles:

1. The first requirement for the admission of expert
evidence on any particular area of practice is that a
relevant field of expertise should exist in the sense that
there is an organised branch of knowledge in that
particular discipline.
2. Secondly, only a person who has
acquired specialised knowledge by a study of
that discipline and thereby has qualified
himself therein can be regarded as an expert in
that specialised area.
3. Since the whole point of calling an
expert is to have him give an opinion the third
and most crucial aspect of expert evidence is
that the facts upon which his opinion is based
must be proved by the party calling him by
admissible evidence. Without the primary
facts to sustain his findings the expert's
opinion however learned, is useless.
P.P. V LIN LIAN CHEN (1991) 1 M.L.J. 316, Mokhtar
Abdullah J., said:-

I was satisfied that the prosection had failed to prove a prima

facie case for two reasons, viz: the failure to prove the expertise
of the chemist and/or the existence of a reasonable doubt cast
during the prosecution case itself.

All the prosecution had adduced to show that P.W.2 (the

Government Chemist) was an expert was his testimony, as
follows:-

"I have been in the Chemistry Department for 13 years. I have a

B.Sc.(Hons) degree majoring in Chemistry, I have a Diploma in
Blood Seriology."
That is all!!! Apart from that fact..no evidence was led at
all..that this witness had the necessary experience in the
analysis of dangerous drugs especially heroin, or for that matter
had given evidence in court on the analysis of drugs, or that his
expert testimony had been accepted by the Courts
.Strictly speaking the prosecution had failed in law
to provide the basis for the reception of the expert opinion of
P.W.2 under section 45 of the Evidence Act 1950.
KHOO HI CHIANG V P.P. (1994) 1.M.L.J. 765 (SC) :

"It is to be observed that the task of the chemist is to identify the

nature of the drug and as held in Rooker v. Rooker -
"identification is a question of fact, to be proved, like any other
conclusion of fact, either by direct or circumstantial evidence...

...In the premises it is clear that the evidence of the chemist on

the identity and weight of the drug constitutes evidence of fact
and not of opinion. (and)..is factual evidence within the
meaning of Section 45 of the Evidence Act. Such evidence is
therefore admissible in a Court of Law either given by him
orally like any other witness, or as specially provided by law,
can be set out in a report admissible pursuant to section 399 of
the Criminal Procedure Code"
P.P. V MUHAMED BIN SULAIMAN (1982) 2 M.L.J. 320

An officer who had no special qualifications in ballistics except

experience was giving only factual evidence when he testified
that the bullet which killed the deceased had been fired from the
Accused's rifle.
Conflicting expert evidence:

It is necessary for the prosecutor to

produce additional expert evidence eg.
From the writings of another
internationally accepted expert in the field.
(PP v Ang Soon Huat [1991] 1 MLJ 1)

Where there is a conflict, the court has a

right to prefer one opinion to the other.
(Spore Finance v Lim Kah Ngam)
(B) non-experts opinion

S.47 allows a non-expert to state his opinion

on handwriting on condition that he is
acquainted with that persons handwriting.
S.48 opinions as to existence of right or
custom.
S.49 opinions on contractual terms and trade
usagesby any witness who has special
knowledge.
S.50- opinions on relationship.