DOCUMENTARY

the person who is said to have

written the writing in question (S.

EVIDENCE (S. 61 –
47)
iii) Opinion formed by the Court on

100 EA 1950)
comparison made by itself (S.73)

All these 3 cognate modes of proof involve a

process of comparison.
S.3 – (b) All documents adduced for inspection
in court

S. 60 – production of document

Popular Industries v Eastern Garment

KPM Khidmat Sdn Bhd

General Rule: In order to admit document as

evidence; must be relevant to the fact in issue;
the document must be genuine or original or
authentic. Method of authentication in S.67;

Agreed bundle – a) The admission of the maker/ writer ; S.

68
Non-agreed – originality b) Formal admission; S. 58 (part of
plidings)
To prove the existence of document
c) Evidence from witness (direct evidence)
State (Delhi Administration) v Pali Ram 1979
d) Expert opinion; S.45
AIR 14 SC, 1979 SCR (1) 931
e) A person who acquainted with the
Just as in English law, the Indian EA recognize 2 handwriting/ signature; S. 47
direct methods of proving the handwriting of a f) By comparing;; S.73
person; g) Presumption as ancient document;
S.90
1. By an admission of the person who h) Circumstantial evidence; Case Dato’
wrote it Mokhtar H
2. By the evidence of some witness who
saw it written Boonsom Boonyanit v Adorna Properties Sdn
Bhd
The apart there are 3 other modes of proof by -At mode of proof, the procedure by which
opinion. They are; particular document
i) By the evidence of a handwriting
expert (S. 45) Jet Holding Ltd v Cooper Pte –similar to
ii) By the evidence of a witness boonsom; Singapore Coa; para 51
acquainted with the handwriting of
Coa Singapore view that the importance where  When to start counting 20 year?
witness refer to document evidence need to  Surendra Krisna v Mirza Muhammad
comply with requirement in the Evidence Act. PC

ADMISSION OF THE MAKER – S. 68 PC case of Kunwar

S. 90 does not apply on Secondary evidence
Arunasalam v Letchumi
Ghazali
Suratmin Osman
Through oral evidence
FORMAL ADMISSION –S. 58 S. 59
Goh Leng Sai – direct evidence; from witnesses
No need to prove the authenticity of the
document Prove the content of document
Use the ‘Best Evidence Rule’ which requires you
OPINION AS TO HANDWRITING WHEN
to have the primary (ori) evidence.
RELEVANT- S. 47

COURT COMPARING -S. 73 Kajala v Noble

PRESUMPTION OF Lucas v William

Primary evidence must be given first

ANCIENT S. 64 must be proved by primary evidence.

DOCUMENT- S.90 S.62 Illustration 3- A document produce

What is secondary evidence; S.63

When or circumstances secondary evidence can
Comm of Municipality of Malacca v Sinniah
be tendered
Court can presume its genuineness if;
Pre-condition of S. 65 “laid foundation”
 More than 20 years
Tan Sri Hian Tsin
 Proper custody
The original document could not be produced.
 Free from suspicion
The FC mentioned must one must prove/
satisfied the court that diligence search for the
Surendra Krisna v Mirza Muhammad 1936
original document has been conducted. The
PC held: The date is counted when the doc is
burden is on the party seeking to give
tendered in evidence.
secondary document. Held: Secondary evidence
NOTE: S.90 does not apply to copy of of the document is admissible under S. 65 and
documents S. 63 (b) EA.

1) Proper Custody Burden of proof; Popular Industries v Eastern

 Bakar bin Salleh v Haji Abdul Malek Garment
2) Reckoning Time
Glove Candle Ltd The Affidavit In Reply (AIR) thus filed on behalf
It is trite law if original document has lost and of the appellants incorporated extracts of what
sufficient search has been conducted, can use is termed as public documents thereby
secondary document. rendering the application of S. 35 and 74 of EA
1950 need to be considered. Para 16.
Kerajaan Malaysia v Eng Seng Leong
P claimed RPGT. D claimed that he has been Pg Mahli bin Pg Noordin v Dato Haji Abd
given a reduction. But failed to produce the Rahman (Brunei’s case)
original copy of the document. See: Para 17-20 S. 74, 75, 76
(a) The rough sketch plan of the scene of the
Jet Holding and Others v Cooper Cmaeron accident as drawn by the Investigating
(Singapore) Pte Ltd & Anor Officer;
Although the concepts of primary and (b) The fair copy of the aforesaid rough sketch
secondary evidence as embodied within the plan together with the key containing all
provisions of the Evidence Act are of relevant measurements–public
fundamental importance, the principle of (c) The first information report–public
waiver might apply if no objection is raised at (d) All reports of the Land Transport Vehicle
the point in time when the evidence concerned Inspector–grey area
is adduced. See para 53. On the other hand, a (e) All witnesses’ statements
failure to object could simply be construed as
an admission…There has however been some Why? – Legal Significance
suggestion that whilst the concept of objecting 1) Easy to produce without calling the maker
is relevant, the document concerned must also of the document
satisfy the criteria laid down for secondary Dato’ Yap Peng v PP
documents unders.65 of EA. The other party is S.74 only provides the categorizing of a public
of course free to object to the introduction of document and nothing more than that…the
such documents at any time before the said purpose of categorizing is to make it easier for
documents are actually marked and admitted its production without the necessity of calling
into evidence. See para 56. (Kalau dah mark as the maker of the keeper of such document to
evidence takleh argue, so argue before doc. give in evidence to prove the existence of such
admitted as evidence) document.

See: YB Dato Hj Husam v Mohd Faisal 2) Right to inspect

S.76 – he has an ‘interest’ in the said document
Types of Document
1) Public Document - S. 74 Anthony Gomez v Ketua Polis Daerah Kuantan
2) Private Document - S.75 FC held: In our judgment the applicant has a
right to inspect the first information report and
PUBLIC DOCUMENT S.74 therefore the O.C.P.D. should have given him a
Pengarah Tanah dan Galian Johor & Anor v certified true copy. The applicant has a right to
Ungku Sulaiman bin Abd Majid & Anor inspect the first information report under the
common law because of his interest in it.
 the computer referred to in the certificate was
Toh Kong Joo v Hospital Sultanah Aminah in good working order and was operating
properly in all respects throughout the material
3) Easy to tender in evidence part of the period during which the document
The Court shall presume its genuined – S.77 was produced.
Also, S.65 (1)(e) that secondary evidence
may be adduced not only as to the It may be proved by calling a witness. If this is
existence of such document but also as to done, it is not necessary to also produce a
its contents certificate. In Gnanasegaran a/l Pararajasingam
v PP [1997] 3 MLJ 1, 11 the court also argued
Yeow Boon Kee that “Sub-s (2) which use “it may be proved” is
Norliana Sulaiman v PP permissive and not mandatory. This can also be
seen in sub-s (4) which begins with the words
4) Secondary copy can be admitted 'Where a certificate is given under subsection
S. 65 (1) (e) (2). These words show that a certificate is not
S. 65 (2) (c) certified copy required to be produced in every case. It is also
the court view that once the prosecution
5) S. 78A adduces evidence through a bank officer that
S. 90A, 90B, 90C shall only apply to a public the document is produced by a computer, it is
document - Computer Generated not incumbent upon them to also produce a
Document certificate under sub-s (2) as sub-s (6) provides
No need to call a maker of the document that a document produced by a computer shall
be deemed to be produced by the computer in
1993 amendment the course of its ordinary use.
 Expl 3 of S. 62
 S. 78A PP v Hanafi Hassan
 S.90A and S. 90C Ticket produced – computer generated. Is it
 Based on S.5 CEA 1968 public or private? Court satisfied that the ticket
Note: That applies in civil proceedings machined installed on the buses were
computers. There was the evidence of PW24
Shaik Daud JCA in Gnanasegaran a/l and …must compliance with S.90A before it can
Pararajasingam v PP [1997] 3 MLJ 1, 11: See be admitted as evidence.
also section 90A (3) (a) It shall be sufficient, in a
certificate given under subsection (2), for a Ahmad Najib bin Aris v PP
matter to be stated to the best of the Discussion regarding chemist report (‘P83’).
knowledge and belief of the person stating it. Learned counsel for the appellant argued that
(b) A certificate given under subsection (2) shall under S. 90A EA, the prosecution must produce
be admissible in evidence as prima facie proof a certificate under s. 90A of the Act to confirm
of all matters stated in it without proof of that the chemist report was produced by a
signature of the person who gave the certificate computer ‘in the course of its ordinary use’
and section 90A (4) Where a certificate is given before such P83 can be admitted as evidence.
under subsection (2), it shall be presumed that
“It is clear that in order to comply with the produced by a computer. It is thus appropriate
requirements of S.90A the tendering in to resort to s.90A (6) to presume that the
evidence of certificate prescribed in s.90A (2) report was produced by the computer in the
will ordinarily render a document produced by a course of its ordinary use.
computer in the course of its ordinary use

PAROL EVIDENCE
admissible in evidence. In this case no
certificate was tendered in evidence with

S.91 -95
regard to the admissibility of the statements in
Exh P17. Oral evidence if therefore required to
establish the condition president in S. 90(1) in
order to show that the statements in Exh P17 S.91: When the terms of a contract…have been
were produced by computers in the ordinary reduced by or by consent of the parties to the
course of their use. The oral evidence of PW11 form of a document…not evidence shall be
is sufficient to establish this issue. In the given in proof of the terms of the contract.
absence of a certificate having been tendered in
evidence under s.90A (2) this is sufficient to Sembcorp Marine Ltd v PPL Holdings Pte Ltd
establish the condition precedent contained in “One single principle runs through all the
s.90A (1).” propositions relating to documentary evidence.
It is that the very object for which writing is
Zulkefili FCJ viewed the above passages from used is to perpetuate the memory of what is
Hanafi Mat Hassan v PP in the analysis of written down, and so to furnish permanent
s.90A. In substance therefore the fact that a proof of it. In order that full effect may be given
document was produced by a computer in the to this, two things are necessary namely that
course of its ordinary use may be proved by the the document itself should whenever it is
tendering in evidence of a certificate under possible to be put before the judge for his
s.90A (2) or by way of oral evidence. Such oral inspection and that if it purports to be a final
evidence must not only consist a statement that statement of a previous negotiation as in the
the document was produced by a computer in case of a written contract, it shall be treated as
the course of its ordinary use but also the final and shall not be varied by word of mouth.
matters are presumed under s.90A (4). On the
other hand, the presumption contained in s.90A Rationale of S.91
(6) can be resorted to only when the document  To honour the intention of the parties
was not produced by a computer in the course  So, CL prevents extrinsic evidence (oral) to
of its ordinary use. vary/ alter the content of the doc
 Not to disturb the ‘exclusive intention ‘of
Deeming provision: In this case no certificate the parties that have put everything in the
was tendered as required by s.90A (2) for proof document.
of the chemist report (‘P83’). Neither was any  Parol evidence rule is a rule that preserves
oral evidence adduced to show that the report the genuinely or integrity of a written
was produced by a computer in the course of its document. It was first established during
ordinary use. It therefore remains that the only the case of Goss v Lord Nugent.
evidence available is that the report was
S. 92: When the terms of any such contract,…or See also FC case of Tan Chong Motor v Alan Mc
any matter requires by law to be reduced to the Knight
form of a document have been proved
according to s.91, no evidence of any oral 6 EXCEPTIONS TO PAROLE EVIDENCE –
agreement or statement shall be admitted as S.92
between the parties for the purpose of a) Vitiating Factor
contradicting, varying, adding to or subtracting  If the fact would invalidate any document
from its terms. or which would entitle any person to any
decree or order relating thereto such as
KTS Sdn Bhd v Standard Chartered Bank fraud, intimidation, illegality, want of due
Introduction of oral evidence merely to show execution, want of capacity…
the existence of oral agreement is admissible.  NS Narainan Pillay v The Netherlandsche
Hnadel Maatschappij [1934] MLJ 227
Tractors Malaysai Bhd v Kumpulan Pembinaan The defendants pleaded that the sale was
Malaysia Sdn Bhd void by reason of the arrangement above
FCJ: Where a contract has been reduced to referred to whereby Chellapa Pillay merely
writing, “It is in the writing that we must look acted as their nominee or agent in
for the whole of the terms made between the purchasing the property and they sought to
parties” per Viscount Haldane L.C. in Dunlop v adduce oral evidence in support of his
Selfridges. And in such circumstance, s.92 does plea. Plaintiff opposed the admission of
not enable any party to that agreement to lead such oral evidence on the ground that such
evidence contradicting varying adding to or evidence was excluded by s.92 of the EO
subtracting from its terms. 1893 and also pleaded that such evidence
coupled with other evidence as to the
Tindok Besar Estate Sdn Bhd v Tinjar intention of the parties did not bear out the
FC: By referring back to s.91, it means where defendants’ allegation that the sale was not
the terms contract has been reduced in writing a genuine one. CA held by majority. Edmons
the contract could only be proof by the J: I am therefore of the opinion that the
document and parties cannot tendered things defendants are not debarred from giving
outside the document; cannot add or edit the evidence of the true facts of the matter (i.e.
document. show the contract was a sham one).
Bucknill CJ: I am doubtful in s.92 was
Bai Hira Devi v Official Assignee framed with any idea of covering such a
S. 91 and S.92 can be said to be based on the case as this although did I think it necessary
Best Evidence Rule. If about the contents of the to deal with the question solely on this
doc, the original/ primary document should be ground I should have felt inclined to decide
produced for the court inspection. Thus, any that the oral evidence could be admitted
oral admission will be excluded. (Jangan bawa under the first proviso.
benda luar document) However there are  Seow Kim Koi v Wai Yin Chen
exceptions to this rule! P claimed to recover excessive payment to
the defendant (sub-letting). Based on
agreement $100 per month but actually he
 pay $230 per month. H: Oral evidence is
admissible to shoe that what purports to be
an agreement was only a sham and was not
intended to be acted upon.
 Ganam v Somoo
The appellant had agreed to sell her lands
to the respondent. At the time of signing
the contracts, the appellant orally agreed to
allow the respondent to enter into
b) Collateral Warranty
occupation of one of the properties but she
- The prior oral/ written agreement
alleged that the respondent had wrongfully
- Intention of the parties
entered on the other properties also. The
respondent had failed to pay the balance of
 Tan Chong Motor v Alan Mc Knight
the purchase price and the appellant
On the issue of admissibility of such pre-
purported to rescind the contracts. She
contract statements? Salleh Abbas FJ held
then brought an action to claim that the
there is thus rule of evidence contained in
contracts had been effectively rescinded,
s.92 of the EA to the effect that no oral
forfeiture of the deposits, damages for
evidence will be admissible to contradict,
trespass, mesne profits and ancillary relief.
vary, add or subtract the terms of a written
Seah FJ: S. 92 of EA 1950; a) it does not
agreement unless the oral evidence comes
preclude oral evidence to contradict a
within one of the exceptions or illustrations
recital of fact in a written contract and; b) it
contained in the section…We therefore
is settled law that notwithstanding an
hold that oral representations made by Mr
admission in a sale deed that the
Sze were admissible.
consideration has been received, it is open
 Kluang Wood Products v Hong Leong
to the vendor to prove that no
Finance
consideration has been actually paid.
Whether Pang’s oral representation
constitutes a collateral warranty. Thus,
NOTE: Oral evidence was allowed to prove
admissible under s. 92 (b). Majority view:
that no consideration had actually been
YES.
paid.
 City and Westminer Properties (1934)
 Tindok Besar Estate Sdn Bhd v Tinjar
The defendant rented a shop for 26 years,
S. 92 specifically excludes evidence to
together with a small room in which he
contradict, vary, add to or substract from
slept, which was known by the claimant
any of the terms of a contract in writing,
landlords. When the lease was up for
except in any of the situation spelled out in
renewal, the landlords inserted a clause
the proviso thereto: As in this case extrinsic
restricting use of premises to the
evidence is admissible to show that the
‘showrooms, workrooms and offices only’,
execution of a document was procured by
the effect of which would be to prevent the
fraud.
defendant from sleeping at the premises.
He then gained assurance that he could still
 sleep in the room on which basis he signed “The land hereby alienated shall not be
the new lease. The landlords then sue the transferred without the consent of the
tenant for breaching the new clause. Held: Ruler-in-Council.”
The defendant broke the terms of the  Lathan v Credit Suisse First Boston [2000] 2
contract bu the landlord were unable to SLR 693 CA
enforce its terms against him because of Collateral contracts constitute an
the collateral contract. Representation was independent contract from the written
made that the landlord would not enforce a agreement. In contrast, the condition
covenant in a lease preventing the tenant precedent to an agreement is one where
from residing in the premises. The tenant the parties have agreed that the written
would not have entered into the contract contract does not take effect until the
without that assurance. fulfillment of a certain condition.
 Latham v Credit Suisse First Boston  Voo Min En & Ors v Leong Chung Fatt (FC
“…Verbal agreement as a collateral contract Case) – can be used for exception c & d
(s.92(b)) could not be allowed if it The respondent was the lessee of the
contradict or in conflict with the terms of premises in KK, Sabah. The lease was in
the agreement.” writing and registered in accordance with s.
 Lemon Grass v Peranakan Complex 104 of the Sabah Land Ordinance. It
The court reluctant to interfere if the said provided for the possibility of renewal by
agreement was prepared by professionals. written request. The lease was for a period
of 16 years commencing on Jan 16, 1965.
c) Condition Precedent On the expiration of the lease the
 “The existence of any separate oral respondent only delivered part of the
agreement constituting a condition premises to the appellant and retained the
precedent.” ground floor. The appellant claimed
 Pym v Campbell (1856) possession of the ground floor and in his
Pym was about to sell Campbell his defence the respondent alleged that there
invention of a multifunctional machine. was an oral agreement for a new lease.
Both agreed that Pym would explain the Salleh Abbas FCJ: It is clear that the alleged
machine’s function to the 2 engineers of oral agreement in evidence would amount
Campbell. If both engineers approved, to varying or adding to the provision clause
Campbell would purchase Pym’s machine. 2 (3) of the lease. This is contrary to s.92 of
Agreement was drawn up and signed which EA. The alleged or oral agreement is
will become the contract if the other therefore not admissible. Further, even if
engineer agrees. Pym later argued that the we treat the alleged oral agreement as a
contract was enforceable and that oral “distinct subsequent oral agreement”
evidence could not be adduced to show. within the meaning of proviso (d), it is still
Held: Oral evidence if admissible. inadmissible because a distinct subsequent
 Ganesan & Anor v Baskaran oral agreement to modify an earlier written
agreement could only be proved in limited
cases. It cannot be proved in cases where
the earlier written agreement requiring
 modification is itself required by law to be  Voo Min En v Leong Chung Fatt [1982] 2
in writing or has been registered according MLJ 241
to the law in force as to the registration of There in this case the respondent was the
the documents. As the lease in this case by lessee of premises in Kota Kinabalu. The
virture of s.104 of the Sabah Land lease was in writing and registered in
Ordinance is required to be in writing and accordance with section 104 of the Sabah
has been registered in accordance with this Land Ordinance. It provided for the
Ordinance, there is no way in which the possibility of renewal by written request.
respondent’s alleged oral agreement could The lease was for a period of 16 years
be proved under proviso (d). commencing on January 16, 1965. On the
expiration of the lease the respondent only
d) New oral agreement/ Condition Subsequent delivered part of the premises to the
 Section 92 proviso (d) provides that “the appellant and retained the ground floor.
existence of any distinct subsequent oral The appellant claimed possession of the
agreement, to rescind or modify any such ground floor and in his defence the
contract, grant or disposition of property, respondent alleged that there was an oral
may be proved except in cases in which the agreement for a new lease. It was held that
contract, grant or disposition of property is the oral agreement could not be admitted
by law required to be in writing, or has been as to do so would be contrary to section 92
registered according to the law in force for of the Evidence Act. As the lease in this case
the time being as to the registration of was required to be in writing by virtue of
documents.” section 104 of the Sabah Land Ordinance
 Wong Juat Eng v Then Thaw Eu [1965] 2 and has been registered in accordance with
MLJ 213 the Ordinance, there is no way in which the
The respondent’s predecessor let (rent) respondent's alleged agreement could be
certain premises for a term of 5 years to the proved under proviso (d) to section 92 of
appellant and her co- tenants under the Evidence Act.
memorandum of sublease which contained
a covenant that the subleasees were not to Goss v Lord Nugent
assign or sublet the demised premises or
any part thereof without the consent of the e) Usage or custom
subleassor. The appellant had sublet rooms
on the premises but she alleged that she  Smith v Welson [1632] 3 B & Ad 726
had obtained verbal permission from the “Where extrinsic evidence was given to
owner. The respondent gave a month’s show that a written contract stating 1000
notice of termination of the sublease and rabbits actually means by local customs
brought an action for possession of the 1200 rabbits.”
premises. The court held that parol  Cheng Keng Hong v GFM
evidence is admissible as evidence of Before doing so, I wish to consider a point
waiver. raised on behalf of the applicant. It was
contended that contractors working for the
 Ministry of Education in the part had put in  Tan Hock Kengv L & M Group Investment
their tenders based on the specification and Ltd
not on the drawings for the sole reason that Generally, extrinsic evidence is inadmissible
they had to work their tenders on a very to construe a document unless the facts fall
competitive basis and therefore they were within any of the exceptions specified in
obliged to work on the minimum which was s.94 of the EA. In view of the unclear nature
conveyed in the specification and whatever of the scope and the precise restrictions
work they put it in accordance with the contained in cl 16.1, proviso s. 94 (f) EA
drawings were paid ad “extras”. It’s now applies and extrinsic evidence is therefore
claimed that this procedure was the admissible. Held: The correct meaning of
accepted practice and on behalf of the the word procure as it is used in cl 15.1
applicant it was said that Hewish’ letter of depends not only on its context but also on
8th June was tantamount to a confirmation the context of the entire document. It is a
of such practice. This so called practice, canon of construction that the same word
more correctly in law called trade usage or used in a document should be given the
custom may possibly form part of a contract same meaning throughout it. Judging from
although not expressly incorporated in the the manner in which it is used in other
written agreement. Consistent with the clauses in the contract, ‘procure’ cannot
proviso (e) of S. 92 of EO 1950, enacts that simply mean ‘to endeavour’ or to ‘persuade
oral evidence is admissible to establish a or take steps’. It is a definite obligation on
trade usage to be annexed to the written the party for which the clause is directed.
contract but as has been noted above, such  Zurich Insurance (Singapore) Pte Ltd v V-
usage must be consistent with the terms Gold Interior Design & Construction Pte Ltd
and tenor of the written contract. Held: In The common law contextual approach to
the instant case the contract docs as contractual interpretation was statutorily
defined in clause 3 mean all documents embedded in proviso (f) to s.94 of the
forming the tender and acceptance Singapore EA. The extrinsic evidence of the
together with the documents referred to external context of the document (‘the
therein, that is the drawings mentioned context’) was admissible in aid of
and annexed to the form of tender, the contractual interpretation even if there was
summary of tender including the tender no ambiguity in the contract sought to be
table documents, the conditions of interpreted. However, the extrinsic
contract, the specification, schedule of evidence in question must be relevant,
rates and drawings,” and all these reasonably available to all the contracting
documents taken together shall be deemed parties and relate to a clear or obvious
to form the contract and shall be context.
complementary to one another.
 S.95;
f) The construction of the language  Deals with latent ambiguity and thus
 See: S. 93 to 98. Partcularly S. 95. oral evidence may be given for
removing latent ambiguity.
  When the language which has been affected by the rule in s. 92 the author
used in the document is plain and observes: S. 92 however merely prescribes
obvious but could not be materialized a rule of evidence i.e. does not fetter the
to the existing facts dues to the court’s power to arrive at the true meaning
mistakes in the descriptive. and effect of a transaction in the light of all
 See illustration in Penang v Penang the surrounding circumstances. Thus, the
Island. Privy Council in Ismail Mussajee
 Tan Suan Sim v Chang Fook Shen Mookerdam v Hafiz Boo, held a document
Appellant claimed for payment of the which purported to be a deed of sale to be
balance of the purchase price of the a deed of gift on consideration of the
house. The Respondent could only pay circumstances under which it come to be
the payment if he able to obtain loan executed.
from the bank of the said house (agreed
by the Appellant). In the agreement the Held: The agreement seems to be
terms stated “The balance to be paid at concerned with various matters. It is
later date”. Thus the time for payment extremely vague and ambiguous. Without
was not expired. “At the later date” he hearing extrinsic evidence it is impossible to
testified that he had told the know what are the arrangements set out in
respondent of his requirement of a loan the document. The agreement is silent as to
for completion of the purchase. The whether the promise to transfer is absolute
appellant was said to be agreeable to or for life only. It is possible that in the
wait until the loan was approved which absence of the mention of a price for the
was in July 1974. This evidence land this suggests the promise of a gift of a
admitted as we have said without portion of land.
objection is clearly admissible under
sections 92 (f) and 95 EA to explain the
latent ambiguity in the agreement.
Held: “A later date” meant in the
intention of the parties a reasonable
time after the loan had been approved.

g) Historical Background or surrounding

 Circmstances –still under f
 S. 96
 Extrinsic evidence may be taken into
consideration
 Keng Huat Film v Makhanlall –FC case
 Phiong Khon v Chonh Chai Fah
Under the head of court’s power to
construe and interpret a document in the
light of surrounding circumstances is not
DOCTRINE OF
would be unjust or inequitable for him to
do so.

ESTOPPEL –S. 115,

 Teh Poh Wah v Seremban Securities Sdn
Bhd [1996] 1 MLJ 701

S. 116, S. 117 Gopal Sri Ram JCA: “It is a flexible doctrine

by which courts seek to do essential justice
between litigating parties.”
 Kerajaan Malaysia v Mohd Mokhtar Bin Ali
[1995] 4 MLJ 601
Burden of proving estoppel is on the person
who is relying on it as a defense. Similar to
the meaning of the maxim, “He who seeks
equity must come with clean hands” which
require one seeking this remedy not to be
guilty of improper conduct in regard of the
subject matter of litigation.

GENERAL PRINCIPLE
 Estoppel is a legal doctrine recognized both
at common law and in equity in various
forms. This term appears to come from the
French estoupail or a variation which meant
“stopper plug” referring to placing a halt
(stop) on the imbalance of situation. The
term is related to the verb “estop” which
comes from the Old French term stopper,
meaning “stop up, impede (hold up) which  There are 3 main types of estoppels;
is similar to English term estop and stop. 1) Estoppel by record –S. 40-44
 Industrial & Commercial Realty Co Ltd v 2) Estoppel by conduct – S. 115
Merchant Credit Pte Ltd [1980] 1 MLJ 208 3) Estoppel by deed/ tenancy –S. 116
Choor Singh J: The doctrine of estoppel has  Additional types of estoppel under S. 117.
been explained by Lord Denning in his book,
ESTOPPEL BY REPRESENTATION OR
The Discipline of the Law at pg 217:
CONDUCT –S. 115
Estoppel is not a rule of evidence. It is not a
 S. 115: When one person has by his
cause of action. It is a principle of justice
declaration, act or omission intentionally
and of equity. It comes to this; when a man
caused or permitted another person to
by his words or conduct, had led another to
believe a thing to be true and to act upon
believe in a particular state of affairs, he will
such belief, otherwise than but for that
not be allowed to go back on it when it
belief he would have acted, neither he nor
his representative in interest shall be
 allowed in any suit or proceeding between - Estoppel by conduct can be subdivided
himself and that person or his in some overlapping way into estoppel
representative in interest to deny the truth by representation and by negligence.
of that thing. - Estoppel by negligence was from the
 Element in this provision evidence and submission, more
o By conduct; relevant in this case.
a) Declaration - Professor Sir Rupert Cross in his
b) Act Evidence 4th Ed says there is however a
c) Omission type of estoppel often called estoppel
o Intentionally caused or permitted by negligence in which the party in
another person; whose favour it operates is the victim of
a) To believe a thing to be true and the fraud of the some third person
b) To act upon such belief facilitated by the careless breach of
o Then neither he nor his representation duty of the other party.
shall be allowed to deny the truth of  Note: No reference was made to s. 115 -
that thing in any suit between himself 117. Estoppel by record see s. 40-44 EA
or his representative.  S. 115 – When one person has by his
 Freeman v Cooke declaration, act or omission intentionally
The classic definition of principle of caused or permitted another person to
estoppel is that given by Parke B that where believe a thing to be true and to act upon
one by his words or conduct, willfully such belief otherwise than but for that
causes another to believe in the existence belief he would have acted neither he nor
of certain state of things and induces him to his representative in interest shall be
act of that belief or to alter his own allowed in any suit or proceeding between
previous position, the former is concluded himself and that person or his
from averring against the latter a different representation in interest to deny the truth
state of things as existing at the same time. of that thing.
 Public Textiles Berhad v Lembaga Letrik  V. Veeriah v GM
Negara[1976] 2 MLJ 58 If the presentation is made innocently or
Raja Azlan Shah: “That where one, by his mistakenly then estoppel cannot be
words or conduct willfully causes another to invoked. Retirement age at 55. Claimed that
believe in the existence of a certain state of he did not reach the age yet. The wrong
things, and induces him to act on that belief entry of his birth date was not intentional. 7
or to alter his own previous position, the pre-requisites!
former is concluded from averring (claim)  Muthiah v Lee Kor Fan
against the latter a different state of things The plaintiff files a complaint in the court of
as existing at the same time.” the senior inspector of mines under section
 Syarikat Batu Sinar Sdn Bhd & Ors v UMBC 97 (ii) (c) for cancellation of sublease
Finance Bhd &Ors granted to the defendant on the ground
Estoppel is of 3 kinds; (a) by record; (b) by that the defendant had committed a breach
deed; and (c) by conduct. of clause 8 (iii) of the sublease. The
 complaint was transferred to the High Court amended reply pleaded material facts to
under s.100A of the Mining Enactment. On support a claim for estoppel and for this
January 13, 1961, the plaintiff subleased Lot purpose of this case is sufficient.
No. 42979 to the defendant who in turn on 3 CIRCUMSTANCES WHERE ESTOPPELS
the same day sub-leased the said land to W BY CONDUCT CANNOT OPERATE
who had also obtained another sub-lease of 1. To prevent a statutory body from
an adjoining land (Lot 40993) on the same performing its duty
day. One of the necessary elements of a Public Textiles Berhad v Lembaga Letrik
valid estoppel by representation is that the Negara [1976] 2 MLJ (Fc case)
representation should be of a nature of The respondent Board had contracted to
induce and is made with the intention of supply electricity to the appellants. By
inducing, the party raising the estoppel to mistake it had considerably undercharged
alter his position to his detriment and in this the appellants and they claimed the
case the plea of estoppel must fail. amount of $84, 624.01cents from the
 Boustead Trading Sdn Bhd v Arab appellants. The High Court gave judgment
Malaysian Merchant Bank Bhd (FC case – in favour of the Board, the learned trial
current position) judge holding that the Board was not
Gopal Sri Ram JCA (as he then was) estopped from claiming the amount
observed (at p 344-345): “The time has although the appellants had utilized the
come for this court to recognize that the accounts rendered by the Board for the
doctrine of estoppel is a flexible principle by purpose of costing their products. The
which justice is done according to the appellants appealed to the FC. FC held: The
circumstances of the case. It is a doctrine of plea of estoppel by conduct or
wide utility and has been resorted to in representation cannot be pleaded against a
varying fact patterns to achieve justice. public corporation on which there is
Indeed, the circumstances in which the imposed a statutory duty to carry out
doctrine may operate are endless.” Thus, certain acts in the interest of the public.
no need to prove:
- “He was induced by the conduct of…” Tenaga Nasional Bhd v Ichi-Ban Plastic (M)
- It is sufficient that “His conduct was so Sdn Bhd and other appeals [2018] 3 MLJ
influenced by the representation…’ 141 (Fc case)
- ‘Detrimental element’ Followed Public Textiles’ case
- But suffice to prove “has altered his
position” 2. It if will prevent government form collecting
 Asia General Equipment and Supplies Sdn revenue
Bhd & Ors v Mohs Sari bin Datuk OKK Hj Government of Malaysia v Sarawak
Nuar & Ors [2012[ 3 MLJ 49 (Fc case) Properties Sdn Bhd [1994] 1 MLJ 14
There is no necessity to include plea of The defendant in that case was told in a
estoppel in the pleading of the material letter by the Inland Revenue Department,
facts and evidence giving rise to this Sarawak that no tax was payable in respect
doctrine is disclosed in the pleadings itself. of the year of assessment 1986. This
In the instance, the plaintiff had in their
representation turned out to be a mistake the plaintiff. His defence was essentially
and a certificate of tax assessment was then that with the letter dated 11 December
issued for tax due for the sum of RM 2002, the plaintiff was estopped from
7,035,353.60 which induced tax assessment claiming the RPGT. However, the defendant
for the year 1986 amounting to RM was not able to produce the original copy of
5,461,730.88. One of the objections taken the letter dated 11 December 2002. The
by the defendant in appealing against the plaintiff further submitted that in the event
assessment was that with the the copy of the letter was declared
representation that no tax was payable, the admissible, the letter was false or forged
government was estopped from claiming and was not issued from its department.
the tax in respect of the year of assessment The plaintiff submitted that it did not
1986. approve the defendant’s appeal. The main
issue before the court was whether the
Chong Siew Fai J: The doctrine of estoppel letter of 11 Dec 2002 was false or forged
does not apply to government on revenue and whether the plaintiff had approved the
matters. The Director of Inland Revenue defendant’s appeal and exempted the
and his subordinate officers down to those defendant from paying RPGT.
charged with the due administration of the
Act are holding public officers and in Held: The principle that no estoppel may
carrying out their tasks in assessing taxes operate against the government in revenue
under the Act are performing public duties. matters is sacrosanct. The government
Thus, despite issuing a letter such as the cannot be bound by decisions made by the
one issued to the defendant in this case, the revenue officers it is later turns out that for
officers cannot be stopped from the reason of mistake or some other
subsequently exercising a power or reason, the proper decision on the tax
discretion which it is their duty to exercise payable were not made. The reason is that
though they are amenable to judicial review if the appropriate taxes are not collected, it
if they exceed or abuse their powers. may undermine the proper running of the
administration and the nation. Taxes should
Kerajaan Malaysia v Eng Sim Leong @ Ng therefore be collected and paid through the
Leong Sing [2010] 4 MLJ 810 rightful application of tax laws and cannot
The plaintiff’s claim was based on the be denied through untenable
defendant’s failure to pay RPGT assessed at representations, interpretations or
RM 7,193,115.86. The defendant resisted declarations albeit by revenue officers.
the claim on the ground that he had
appealed to the LHDNM seeking a waiver of 3. It will result in defiance of a statutory
the RPGT as there were no chargeable provisions
gains. He claimed that his appeal was  Borrow’s case [1880] 14 ChD 432
allowed vide a letter from the plaintiff dies Bacon V.C: ‘The doctrine of estoppel cannot
dated 11 December 2002 which stated that be applied to an Act of Parliament. Estoppel
no tax was payable. He therefore claimed only applies to a contract inter parties and it
that he was exempted from paying RPGT to is not competent to parties and it is not
 competent to parties to a contract to estop  Terunnanse v Terunnanse [1968] AC 1086
themselves or anybody else in the face of The Board has no construe s. 116 of Ceylon
an Act Parliament.” Evidence Ordinance which is also in the
same terms as the corresponding section in
 Puran Singh v Kehar Singh; Bahadur Singh the Indian Act. Their Lordships pointed out
[1939] 1 MLJ 71 that the Indian Evidence Act 1872 which
was drawn by Sir James Stephen was
 Fu Loong Lithographer Pte Ltd v Mun Hean intended to reproduce in a concise form the
Realty Pte Ltd [1989] 2 MLJ 8 SHC English law of evidence as it then existed
However, it was said by counsel on behalf and that its provisions should if possible be
of the plaintiffs in this case, that it is not construed in a manner consistent with the
open to the defendants to raise estoppel English law. There is no doubt that under
(and by this I understood him to mean English law as it stood in 1872 and stands
waiver as well against the plaintiff’s claim today there was and is no difference as
under cl 14 (2) of agreement II because regards the matter in hand between a
Parliament has a matter of policy enacted tenant and a license.
by means of the Act. Statutory provisions
for the protection of purchasers. S. 5 (1) of Held: Each (tenant and license) is estopped
the Act in the following terms: Every from denying the title of the person from
agreement for the sale and purchase of a whom he accepted the tenancy or license
commercial property shall contain such so long as he remains in possession under it
terms and conditions of sale as may be but each is permitted to deny that title as
prescribed by rules made under this Act. from the time that he is no longer in
possession under it.
ESTOPPEL BY DEED/ TENANCY –S. 116  Doe d Higgibotham v Baryon 11 A & E 307,
 S. 116: “No tenant of immovable property 312, 113 ER 432, 434
or person claiming through such tenant Lord Denman CJ: The tenant cannot deny
shall during the continuance of the tenancy that the person by whom he was let into
be permitted to deny that the landlord of possession has title at that time.
such tenant had at the beginning of the  Government of State of Penang & Anor v
tenancy a title to such immovable Bh Oon & Ors [1971] 2 MLJ 235 PC
property; and no person who came upon In 1949, the first respondent/ plaintiff who
any immovable property by the license of was a co-owner of another lot of the land
the person in possession thereof shall be (Lot 271 (3)) applied for and was granted a
permitted to deny that such person had a temporary occupation license in respect of
title to such possession at the time when the alluvium adjacent to lots 271 (1) and
such license was given.” (3). These licenses were renewed each year
 This section has two parts; until 1958. However, in 1955 she challenged
o Relates to the rule of estopped the title of the government to the alluvium
between a tenant and landlord adjacent to lost 275 (1) and (3). On August
o Relates to the rule of estopped 12, 1959, the government leased the
between a licensee and licensor alluvium in question to the second
 appellant. At the date of the issue of the from denying that the title of the landlord
writ, the second appellant was in has come to an end.
possession of the strip of alluvium in  Wee Tiang Yap v Chan Brothers [1986] 1
dispute. However, after the issue of the writ MLJ 47
but before the action came on for trial, the Hashim Yeop Sani FJ: A tenant cannot deny
respondents sold lot 275 (1) to purchasers that the person whom he is let into
who were not added as parties. possession has title at that time; but he may
show that subsequently such title is
Held: Each (tenant and license) is estopped determined by transfer or otherwise. This
from denying the title of the person from rule which has been well established in
whom he accepted the tenancy or license many English cases was adopted by
so long as he remains in possession under it Fatimah v Moideen Kutty [1969] 1 MLJ 72.
but each is permitted to deny that title as  Fatimah v Moideen Kutty [1969] 1 MLJ 72
from the time that he is no longer in Held: Notwithstanding the doctrine of
possession under it. estoppel a tenant may plead that the title of
 Singma Sawmill Co Sdn Bhd v Asian the landlord has come to an end. It must be
Holdings (Industrialised Building) Sdn Bhd borne in mind that the relationship of
[1980] 1 MLJ 21 (Fc case) landlord and tenant can be created only by
In our view, the relationship of landlord and a contract, valid and legal according to the
tenant can be created only by a contract, law subsisting at the time of its execution.
valid according to the law subsisting at the
time of its execution or can be created or ESTOPPEL BY BILL OF EXCHANGE,
contributed by operation of law. Now s.116 BAILEE OR LICENSEE –S. 117
EA enacts that no tenant of immovable (1) No acceptor of a bill of exchange shall be
property shall during the continuance of the permitted to deny that the drawer had
tenancy be permitted to deny that the authority to draw the bill or to endorse it.
landlord of such tenant had at the
(2) No bailee, agent or licensee shall be
beginning of the tenancy a title to such
permitted to deny that the bailor, principal or
immovable property. The words ‘during the
licensor, by whom any goods were entrusted to
continuance of the tenancy’ are important
any of them respectively, was entitled to those
and make it clear that where there is no
goods at the time when they were so entrusted:
legal tenancy the provisions of the section
are not applicable. Provided that any such bailee, agent or licensee
may show that he was compelled to deliver up
Azlan Shah: That being so, where the any such goods to some person who had a right
contract of tenancy has come to an end by to them as against his bailor, principal or
effluxion of time, there is no legal contract licensor, or that his bailor, principal or licensor
of tenancy and therefore there can be no wrongfully and without notice to the bailee,
question of the continuance of such agent or licensee, obtained the goods from a
tenancy. The tenant in consequence can third person, who has claimed them from that
later challenge the status of the landlord bailee, agent or licensee.
and he cannot be deemed to be estopped
Explanation—The acceptor of a bill of exchange presumption is that he is alive. The burden
may deny that the bill was really drawn by the of proving that he is dead is on the person
person by whom it purports to have been who affirms it.
drawn.  Surjit Kaur v Jhuhar Singh
The app. SK married Sardur Singh (‘SS’) on

PRESUMPTION –S. 13.2.1955. On 16.4.1959 she filed a petition

for divorce on the ground of desertion.

90, 114, 107, 108 Held: SS was presumed to be alive in 1960.

Thus, on 24.5.1970 (2nd marriage) it shall
presume that SS was not dead. Since the
TYPES OF PRESUMPTION IN S.4 EA appellant alleged that SS was dead on that
1. Presumption of fact – S. 4 (1) date (24.5.1970), the onus is on her. She
2. Rebuttal Presumption / Presumption in failed to prove it thus, the 2nd marriage
law– S. 4 (2) was held to be null and void.
3. Irrebuttable/ Conclusive presumption –  As to the manner of proving death: Per
S. 4 (3) Chan Sek Keong in Chia Kay Heng v Chia
Kim Siah [1989] 1 MLJ 272
Sarkaria J in Syad Akbar v State of Karnataka
States that “As to the first ground, it must
AIR 1979 SC 1848
surely be correct that as a matter of
Provides that presumptions are of three types
evidence and in the absence of other
namely; (i) Permissive presumptions or
admissible evidence to the contrary, a
presumptions of fact; (ii) Compelling
death certificate or certified extract thereof
presumptions or presumptions of law
is primary evidence of the death of the
(rebuttable); and (iii) Irrebuttable presumption
person named therein. A grant of
of law or conclusive proof. It should be
representation to his estate is at best
remember that clauses (i), (ii), and (iii) are
secondary evidence of the death of the
indicated in clauses (1), (2) and (3) of section 4,
person for whose estate the grant is made”.
Evidence Act.
PRESUMPTION OF DEATH
PRESUMPTION OF FACTS
 S.108: “When the question is whether a
 S. 4 (1) Whenever it is provided by this Act
man is alive or dead, and it is proved that
that the court may presume a fact, it may
he has not been heard of for seven years by
either regard the fact as proved unless and
those who would naturally have heard of
until it is disproved, or may call for proof of
him if he had been alive, the burden of
it.
proving that he is alive is shifted to the
 Examples: S. 90 (Presumption as to ancient
person who affirms it.”
document), S.114
 This particular section provides that if it is
PRESUMPTION OF LAW proved that a person has not been heard of
(PRESUMPTION CONTINUITY OF LIFE) for seven years by those who would
 S. 107 – If within the period of 30 years, a naturally have heard of him if he had been
person is known to be alive, the alive; the burden of proving that he is alive
is shifted to the person who affirms it.
 However, the exact date of death after the Section 107 provides that when a person’s
expiry of 7 years period is not a matter of existence is in question and he is shown to
inference but a matter of evidence. have been living at a given time within 30
 Unlike Islamic year, 4 years – based on years and there is nothing to suggest the
Hadith of the Prophet. probability of his death, the continuance of
 Re A Penhas, deceased [1947] MLJ 78 life will be presumed and the person who
Not less than 7 years Said absence has gone asserts the contrary has the burden to
on consistently without explanation; No prove it.
persons have been contacted by the
Augustine Paul: “The presumption of death
presumed. The person cannot be found
is an exception to the presumption of life
with any searches.
s.108 must be read as a proviso to S.107.
 Directors of the Prudential Assurance
Section 108 provides that if a man has not
Company v Edmund Edmonds (1877)
been heard of for 7 years by those who
Lord Blackburn : “… in order to raise a
would normally have heard of him, had he
presumption that a man is dead from his
been alive, the presumption of continuance
not having been heard of for seven years,
of life ceases and the burden of proving him
you must inquire amongst those who, if he
to be alive lies on the person asserting it by
was alive, would be likely to hear of him,
denying the death.”
and see whether or not there has been such
an absence of hearing of him as would In order to invoke the presumption of
raise the presumption that he was dead.” death, 2 basic facts must be proved:
 Smt Mathru v Smt Rani (1986)
There is no presumption that a person who a) That the person must not have been
has not been heard of for a period of not heard of for 7 years; and
less than 7 years died at the end of the first b) He must not have been heard during
7 years or on any particular date. The that time by those who would naturally
burden of proving the date of death of a have heard of him.
person is always upon the person who  Doe D’France v Andrews (1850) 15 QBD
asserts that a person had died on a certain 756
date because there is no presumption Held: That such persons would be “close
about the date of death. The presumption relatives or neighbours.”
is that a person is dead if he has not been  For 2nd Condition: Whether subjected to
heard of for 7 years and this presumption appropriate enquiries? See: Prudential
only arises when a question is raised in Assurance Co v Edmonds. In many cases
court or proceedings. were held that “reasonable enquiry” only
 In Re Osman bin Bachit [1977] 4 MLJ 445 and depend on the particular
circumstances.
The Evidence Act s.107 deals with the  Bullock v Bullock [1960] 1 WLR 975
presumption of continuance of life and Issue: Had the wife made efforts to look for
Section 108 of the Act deals with the the husband? In this case, the wife had
presumption of death. gone to court and obtained a committal
order against the husband in relation to a
 matrimonial dispute. The police were It is also disclosed that since 1982 neither
enlisted to search for the husband and the applicant nor his late mother have
failed to find him. Held: the applicant wife received any information regarding the
had made sufficient inquiries to find her deceased. They had not heard from him
husband by going to court and enlisting the since then. The deceased also did not
police to find her husband and that she communicate with any of his other relatives
could “be excused for not having and hope or friends in Malaysia. The applicant
of succeeding where the police have failed.” believed that his father had died in China
 R Muthu Thambi v K Janagi [1955] MLJ 47 and had his father alive; his age would be
In 1929, the wife married a man and lived about 108 years old.
with him for 2 years after which he was
imprisonment for 1 month for Zawawi Salleh JC: The court is satisfied that
misappropriation of money. After coming the applicant’s late mother is one of the
out of prison the wife’s father gave him persons who would naturally hear from the
some money with which he absconded to deceased if he were alive. The court is of
India. The wife had not heard from him the opinion that when a person who had
since. The court held that the application by regularly kept in touch with his wife until
the wife to have the presumption invoked 1982 and thereafter nothing was heard of
could not be sustained because the wife him, he must be presumed to be dead.
would not have heard from her husband in From 1982 until now there is absence of
any event. any evidence from which the applicant
 Re Gun Soon Thin [1997] 2 MLJ 351 could have reasonably concluded that his
Disappearance of their father during the father is still alive. I find, therefore, that this
invasion of Japanese to Malaya. There was application is to be allowed. Accordingly, I
evidence that the father is the victim of ruled that Thye Tim Poh is presumed dead.
brutality.
 Re Ex Parte Application of Tay Soon Pang ISSUE IN PRESUMPTION OF DEATH: DATE OF
@ Yeo Hak Seng [2008] MLJU 928 THE DEATH – THERE ARE 2 VIEWS
The applicant who had affirmed supporting
1. FIRST VIEW
affidavit for the application is the son of the
 Re Phene’s Trust(1870) 6 Ch App 139 CA
deceased (Thye Tian Poh). His father was
“The law presumes a person who has not
born in China in 1899 and came to Malaysia
been heard of for 7 years to be dead but in
around about the year of 1914 and most of
the absent of special circumstances it draws
the time domiciled at Kota Tinggi. In 1970,
no presumption from the fact as to the
his father went back to China to stay
particular period at which he died.”
together with his family and relatives who
 The first (strict view): The fact of death may
are domiciled in China. The deceased
be presumed at the date of the proceedings
communicated with the applicant’s late
i.e. the continuous period of absence for
mother (Lim Ah Kiow) by letters.
seven years or more runs back from the
date of the proceedings.
 Lal Chand Marwari v Mahant Ramrup Gir
 & R Muthu Thambi v K Janagi adopted first Ong J: “Section 114 of the Evidence
view. Ordinance…is that the existence of certain
facts may be presumed which the court
2. SECOND VIEW ‘thinks likely to happened’ in the
 The second view (relaxed view): The date circumstances of the particular case. The
of death may be presumed at the end of presumption of fact must not be drawn
the continuous period of absence of 7 years automatically or as it were, by rule of
i.e. A continuous period of absence for 7 thumb, without first considering whether in
years runs forward from the date of the the circumstances of each particular case
disappearance of the absent person. there were adequate grounds to justify any
 Re Westbrook’s Trust [1873] W N 167 presumption being raised.”
Adopted 2nd view. Also in Rhodes v
SECTION 114 (a) EA 1950
Rhodes (1887) 36 Ch D 586. It was held that
in the absence of evidence, the court could  The court may presume the existence of
not make any presumption whatever as to any fact which it thinks likely to have
the date of the AR’s death and unless all the happened, regard being had to the common
parties who could be entitled as next of kin curse of natural events, human conduct and
in the event of his death at any time public and private business, in their relation
between 1873 and 1880 could come to to the facts of the particular case
some arrangement, the matter must be  The court may presume – S. 114 (a) That a
referred back to the chief clerk to answer man who is in possession of stolen goods
the inquiries. soon after the theft is either the thief or has
received the goods knowing them to be
3. PREFERRED VIEW stolen unless he can account for his
 Prof Akram: “The second view is to be possession.
preferred.”  Public Prosecutor v Hong Ah Huat [1971] 1
 Harjinder Kaur a/p Sham Singh & Anor v MLJ 52
Balvinder Singh a/l Sham Singh & Ors and The accused was charged under Section 411
another appeal [2017] MLJU 1461 of the Penal Code in Labis Magistrate’s
Para [56] to [73] Court Arrest Case NO. LA. 191 of 1969 for
 Re Maneerat Wongdao Mrs Maneerat Ng having dishonestly retained 4 spray pumps
[2018] SGHC 6 and 6 tins of paint having reason to believe
 C Mageswary v Mohd Aslam [2021] the same to be stolen.
 The presumption of Death: A Comparative
Appraisal from the Perspective of the Before Section 114 can be applied, it must
Common Law, Malaysian Law and Syariah be proved that:
[2015] JILR 59. Akram & Zulfakar. (i) That the property is stolen
(ii) That a person is in possession of the
REBUTTABLE PRESUMPTION IN FACT –
property; and
S. 114
(iii) That this was soon after the theft
 Mohamed Ali v Public Prosecutor
 Sharma J. defined “possessions”: “The word in criminal case prosecuting counsel
implies physical capacity with a thing as we provided there is no wrong motive has a
like to the exclusion of everyone and a discretion as to whether or not to call any
determination to exercise that physical particular witness and in particular has a
power on one’s own behalf. It implies discretion not to call in support of his case
dominion and consciousness in the mind of a witness whom he does not believe to be a
the person having dominion over the witness of truth.
object. Possession must be conscious and  Adel v Muhammed El Dabbah v Attorney-
intelligent possession and not merely the General for Palestine [1944] AC 156
physical presence of the accused in The Privy Council held that the prosecution
proximity or even in close proximity to the has a discretion as to what witnesses should
object.” be called for the prosecution and the court
will not interfere with the exercise of that
SECTION 114 (b) EA 1950 discretion, unless, perhaps it can be shown
that the prosecutor has been influenced by
 The Court may presume: S. 114 (b) that an some oblique motive.
accomplice is unworthy of credit unless he
 Muharam Bin Anson v PP [1981] 1 MLJ 222
is corroborated in material particulars.
FC
 Dato’ Seri Anwar Bin Ibrahim v Public The short facts were that on the night of
Prosecutor and Another Appeal [2004] 3 September 28, 1977 the dwelling house of
MLJ 405 –FC Liaw Teck, a resident of Kampung Takuli,
Although an accomplice is a competent Beaufort, Sabah, as deliberately burnt down
witness, a conviction is not illegal merely and was the prosecution case that the
because it proceeds upon the appellant and his son set it on fire. There
uncorroborated testimony of an was apparently no dispute as to the main
accomplice. However, it has been a rule of facts and the only issue in controversy
practice for a judge to uncorroborated related to the identity of the person or
testimony of an accomplice. It is a matter of persons who intentionally set fire to the
prudence, except where circumstances dwelling house.
make it safe to dispense with that there
must be corroborative evidence of an Counsel for the appellant next complained
accomplice. that Liaw Teck’s son, Liaw Hon Khin, who
SECTION 114 (g) EA 1950 was present in the house at the material
time and who gave evidence at the
 The Court may presume – S. 114 (g) the preliminary inquiry for the prosecution was
evidence which could be and is not not called as a witness at the trial. Counsel
produced would it produced be argued that Liaw Hon Khin was an
unfavourable to the person who withholds important prosecution witness and he
it. admitted that his testimony could have
 Khoon Chye Hin v PP [1961] MLJ 105 CA corroborated further the evidence of his
Charged and convicted for murder. parents.
Thomson CJ: It is of course well settled that
 It should, however, be noted that at trial a) Mohd Shahdan an accomplice
the Deputy Public Prosecutor had informed b) Mat Yie an accomplice but could not
the court that the son, Liaw Hon Khin, could be traced
not now be found an he was listed as a c) The wife of the shop owner SP2 who
missing person by the police. was at the scene
 Munusamy v Public Prosecutor [1987] 1
MLJ 492 SC Thus, the failure by the prosecution to
The argument on the first 3 grounds produce these witnesses would create an
evolved around the provision of adverse adverse presumption and invite the
inference under Section 114 (g) of the EA invocation of S.114 (g).
1950 on:
(a) The non-production of the unknown Held: In any given case the right to call a
informer witness to prove case lies with the
(b) The non-production of the typist of prosecution as decided in Jazuli bin Mohsin
the Chemistry department; and v Public Prosecutor [1990] 2 MLJ 190. In
(c) The absence of accuracy certificate Chua Keem Long v Public Prosecutor [1996]
in respect of the weighing machine 1 SLR 510, the failure of the prosecution to
used by the Government Chemist adduce evidence of the other co-gamblers
cannot draw a presumption against the
Mohamed Azmi SCJ: “It is essential to prosecution unless the witnesses are
appreciate the scope of the section 114 (g) essential the witnesses are essential to the
lest it be carried too far outside its limit. case of the prosecution. It is essential law
Adverse inference under that illustration that provided there is no wrong motive the
can only be drawn if there is withholding or prosecution has the discretion as to what
suppression of evidence and not merely on witnesses should be called (see Federal
account of failure to obtain evidence. It may Court case of Siew Yoke Keong v Public
be drawn from withholding not just any Prosecutor [2013] 3 MLJ 630; [2013] 4 CLJ
document, but material document by a 149).
party in his possession, or for non-
production of not just any witness but an Note: But the witnesses must be made
important and material witness to the case. available to the defence counsel. As also
 Public Prosecutor v DSAI (no. 3) [1999] 2 decided in Samsuddin v PP [1962] MLJ 405
MLJ 1 CA “when the witnesses were freely offered
Witnesses that should be called: PM, AG, to the defence in our opinion the
Tun Daim, Ds Megat Junid, IGP, Dato Aziz presumption did not arise.”
Shamsuddin, Azmin, Shamsidar.  S.114(g) also apply to civil cases
 Hazly bin Ali v Public Prosecutor and  Silvaduray v Chinniah [1939] MLJ CA
Another Appeal [2015] 1 MLJ 527 CA  Unless the document (non-production of
Learned counsel urged this court to invoke the document) is itself come under
S114(g) of the EA against the prosecution privileged (S. 123, S. 124, S. 126)
for failure to produce relevant witnesses,
namely:
 National Chemsearch Corp v Hotel evidence to rebut the presumption under
Ambassador [1975] 2 MLJ 193 FC S112 of the EA.”
 Kamti Devi v Poshi Ram [2001] 2 LRI 1265
IRREBUTTABLE PRESUMPTION OF SC
LAW
 S. 4 (3): When one fact is declared by this
Act to be conclusive proof of another, the EXPERT OPINION
court shall, on proof of the one fact, regard
the other as proved and shall not allow EVIDENCE
evidence to be given for the purpose of
disproving it.
OPINION
 E.g.: Section 112 & 113
 Opinion of an expert; S. 45 & 46
 Ainan binti Mahmud v Syed Abu Bakar
 Non-expert opinion; S. 47 – 50
Aitken J: “The section following English law
 General rule under CL is that a witness
adopts the period of birth, as distinguished
gives evidence on matter of facts that he
from conception, as turning point in all
perceived.
questions legitimacy. Birth within either
period specified in the section is ‘conclusive  Opinion evidence as an exception
proof’ of legitimacy unless it can be shown  But s.3 defines fact as
that there was non-access. That is the only o Any thing, state of things or relation
way in which the presumption created by of things capable of being perceived
this section can be rebutted and those who by the senses;
seek to rebut the presumption must prove o Any mental condition of which any
that section intercourse between parties person is conscious.
did not take place at any time when, by  See also s.60 (1)(d): If it refers to an opinion
such intercourse, the husband could, or to the ground on which that opinion is
according to the ordinary course of nature, held, it must be the evidence of the person
be the father of the child.” who holds that opinion on those grounds.
 Alesiah bt Jamil & Anor v Julas bin Joenal
RATIONALE
[2015] 7 MLJ 388
 “It is the duty of a court to form its own
“In the light of the accuracy and certainty of
opinion on the basis of the evidence placed
the DNA test in the present era has been
before it and…”
universally recognized and accepted as
 There are important limits to this principle.
conclusive evidence of its result in the test
 Wong Swee Chin v Public Prosecutor
be it, inter alia, the paternity, motherhood “…for the purpose of assisting rather than
or both or others, I do not accede to the compelling the formulation of the ultimate
proposition that such DNA test and its judgments” – as per Raja Azlan Shah CJ
result which has been universally  Syed Abu Bakar v PP [1984] 2 MLJ 19 - FC
recognized as accurate to the extent of It is settled principle that while it is true that
achieving certainty though being a form of a Judge who sits alone is entitled to weigh
scientific means ought to be disallowed as all the evidence, to put his own magnifying
glass to determine the probabilities so to
 speak and form his own opinion or Mr Ng, a chemist, a degree in B Sc.
judgment, it would be erroneous for him to (Chemistry), 12 years in Chemistry
form a conclusion on a matter which could department, had given expert opinion in
only be properly concluded with the aid for court in drugs cases.
expert evidence (at p.24)
 JRI Resources Sdn Bhd v Kuwait Finance 2 TYPES OF EXPERT OPINION
House (M) Bhd [2019] 3 MLJ 561 FC 1. Opinion that involved very technical or
In our considered opinion, the use of expert complicated in nature
evidence would not be helpful to a civil 2. Opinion regarding identity of substance
court judge as ultimately, the civil judge or elementary in nature
would still have to make a decision and he
SCOPE
or she would end up having to choose
 S.45 ‘foreign law or science or art or as to
which expert opinion to rely on and this
identity…”
could be further complicated if each expert
 Chandrasekaran v PP [1971]
based his or her opinion on different
Azlan Shah J: The expression ‘science or art’
schools of jurisprudence.
is elastic enough to be given liberal
interpretation. The expert evidence on
We are of the firm opinion that it is for a
typewriting was admissible under s.45.
body of eminent jurists, properly qualified
Disagree with India SC case of Hanumanth.
in Islamic jurisprudence and/or Islamic
finance, to be the ones dealing with WHO IS AN EXPERT?
questions of validity of a contract under  Khoo Hi Chiang v PP [1994] 1 MLJ 265 SC
Islamic law and in Malaysia that special  Dr Shanmuganathan v Periasamy [1997] 3
body be the SAC AMR 3012
 PP v Muhamed Sulaiman (1982) 2 MLJ 320
7 vs 2 -FC
 Wong Swee Chin v PP [1981] SC “Though the expert must be skilled by
“Our system of jurisprudence does not, special study or experience, the fact that he
generally speaking, remit the determination has not acquired his knowledge
of dispute to experts. Some questions are professionally goes merely to weight and
left to be robust goodsense of a jury. Others not to admissibility”
are resolved by the conventional wisdom of  Dato’ Mokhtar Hashim v PP (1983) –FC
a judge sitting alone. In the course of “The opinion of witnesses possessing
elucidating dispute question, aids in the peculiar skills is amissible whenever the
form of expert opinion, are in appropriate subject matter of enquiry is much that
cases placed before the jurist or judges. inexperienced persons are unlikely to prove
But, except on purely scientific issues, capable of forming a correct judgment
expert evidence is to be used by the court without the assistance of an expert”
for the purpose of assisting rather than  Junaidi bin Abdullah v PP [1993] Supreme
compelling the formulation of the ultimate Court
judgments” M. Azmi CJ: “In our view the test to be
 Munusamy v PP [1987] SC applied for the purpose of S45 is ….
 1. Does nature requires special skills  Mohamed Kasim Yatim v PP
2. Has witness acquired the necessarily  Wong Swee Chin v PP
skills either by academic Azlan Shah CJ: “In the ultimate analysis it is
qualification/experience the tribunal of fact whether it be a judge or
3. Lack of qualification / experience must jury…the court must come to its own
necessarily affect the weight
opinion”
4. Where matters fall under complex
 UABB v Tai Soon Heng Construction
nature, can affect admissibility
SC: the function of the expert is to give his
EVIDENCE OF HANDWRITING – honest opinion and place before the court
COMPLICATED all data which he bases his opinion because
 UABB v Tai Soon Heng Construction [1993] it is the court that has to decide the case
CLJ 31 SC and accept or reject his opinion.
Forgery cheques. Court or judge had not  Shanmuganathan
abducted his fuction by allowing the expert FC: The court is the final arbiter and not the
to determine the question of fact as to experts or eye witnesses.
whether the signature were forgeries. Mere  Dr Hari Krishnan & Anor v Mgeat Noor
comparison is not enough. Must be Ishak
supported by cogent reason. See S46 & S51. The Bolitho test is the extension of the
Bolam test which calls upon the court to
CORROBORATION analyses the logic and reasonableness of
 Indian position regarding handwriting is the conflicting medical opinion advanced by
that: Fakhruddin v State of Madhya the defence before accepting the same.
Pradesh (1967) SC & Murarilal v State of The court should not accept an opinion put
Madhya Pradesh (1980) SC forward by the defence as being
Need for corroboration. “reasonable”, “respectable” or
 Shanmuganathan v Sithambaram Pillai “responsible” without first assessing
There can be no hard and fast rule but whether such opinion is susceptible to
nothing will justify the rejection of the logical analysis. Held: the court may
opinion of an expert supported by consider expert evidence on what the
unchallenged reasons on the sole ground acceptable medical practices is, but
that it is not corroborated. ultimately it is for the court to adjudicate on
the appropriate standard of care.
“We are firmly of the opinion that there is  Sulaiman Takrib v Kerajaan Negeri
nor rule of law, nor any rule of prudence Terengganu [2009] 6 MLJ 354 –FC
which has crystallised into a rule of law, the The charges included, inter alia, the offence
opinion evidence of a handwriting expert of expounding of a doctrine relating to the
must never be acted upon, unless religion of Islam which was contrary to the
substantially corroborated.” hukum syarak or the percept of islam.
Held: all the 3 expert witnesses agreed that
ULTIMATE ISSUE RULE
the term ‘the precepts of Islam’ covered the
 Queen v Silverlock 1894
3 main domains ie creed or belief (aqidah),
Issue: Is he peritus?
 law (shariah) and ethics or morality (akhlak) The consultant radiologist who says that a
and included the teachings in the Quran brain scan shows a particular type of
and Sunnah. Abdul Hamid CJ (farewell haemorrhage is giving evidence of fact
judgment): However, if I have to choose
between the opinions of Tan Sri Sheikh WHEN AN EXPERT NEED NOT BE
Ghazali and professor Dr kamal Hassan and CALLED?
the apparently more restrictive view of  R V Turner [1975] 1 All ER 70 CA
Professor Dr Hashim Kamali, in Malaysian The appellant killed his girlfriend, W, in a
context and bearing in mind the English car by battering her over the head with a
word ‘precepts’ used in the Constitution, I hammer. At his trial on a charge of murder,
would prefer to broader views of Tan Sri his defence was provocation. He said that
Sheikh Ghazali and Professor Dr Kamal he had been in love with W and had
Hassan. understood that she was pregnant by him,
 JRI Resources Sdn Bhd v Kuwait Finance but that when she had told him in the car
House (M) Bhd that she had been having affairs with two
Section 56 and 57 contain clear and other men while the appellant was in prison
unambiguous provisions to the effect that and that the expected child was not his, he
whenever there is any Shariah question had lost his self-control and had hit her with
arising in any proceedings relating to the the hammer without realizing that he was
Islamic financial business before eg any doing and without intending to do any
court, it is mandatory to invoke s56 and harm.
refer it to the SAC, a statutory expert, for a
ruling. The duty of the SAC is confined Held: The psychiatrist’s evidence was
exclusively to the ascertainment of the relevant in that it provided an opinion from
Islamic law on financial matters or business. a knowledgeable person about the
The judicial fuction is within the domain of appellant’s personality and mental makeup
the court i.e. to decide on the issue which which could play an important part in
the parties have pleaded. human judgments; and the evidence was
not, however, admissible and the appeal
SUMMARY: THERE ARE TWO TYPES OF EXPERT would therefore be dismissed, for the
OPINION following reasons –
1. From information, data, other sources
(plus qualification and experience) CA held: An expert opinion was only
It is well established that an expert is necessary where the expert could furnish
entitled in giving his evidence to draw upon the court with the scientific information
the general body of knowledge and that was likely to be outside the experience
understanding in which he is expert, and knowledge of the judge or jury and the
notwithstanding that some (or even all) of psychiatrist’s evidence was not necessary to
the material may have been assembled by tell them how an ordinary person who was
others . See: R v Abadom [1982] 1 WLR 126 not suffering from mental illness was likely
2. Observable fact (first-hand evidence) plus to react to the stresses and strains of life.
his qualification/experience Thus, when the matter is within ordinary
 human experience, then the opinion of 4) An expert witness should make it clear
psychiatrist or even psychologist was when a particular question or issue falls
irrelevant. outside his expertise
5) If an expert’s opinion is not properly
Lawton LJ: “If o the proven facts a judge or researched because he considers that
jury can form their own conclusion without insufficient data is available then this
help, then the opinion of an expert is must be stated with an indication that
unnecessary.” the opinions is no more than a
 Kennedy v Cordia (Services) LLP (Scotland) provisional one
[2016] UKSC 6 6) If, after exchange of reports, an expert
 Tiong Ing Soon (L) v Pendakwa Raya [2018] witness changes his view on a material
MLJU 1613 HC matter having read the other side’s
The evidence of DW2 (the Psychiatrist i.e. expert’s report or for any other reason,
Dr. Emmanuel) is very crucial to the defence such change of view should be
whether the defence of insanity pursuant to communicated (through legal
Section 84 of the Penal Code is available to representatives) to the other side
the appellant. without delay
 Medical insanity v Legal insanity 7) Where expert evidence refers to
photographs, plan, calculations,
DUTIES AND LIABILITIES OF AN measurements, survey reports or other
EXPERT similar documents, these must be
 These duties and liabilities can be seen provided to the opposite party
through the Ikarian Reefer’s Guideline in
the case of National Justice THE IKARIAN REEFER’S GUIDELINE
 Cresswell J. in National Justice Cia Naviera  Were adopted in many countries including
SA v Prudential Assurance Co Ltd, the Australia, Singapore and Malaysia (up to
Ikarian Reefer; CA)
1) Expert evidence presented to the Court  Also adopted/applied in criminal cases as in
should be and should be seen to be the Scotland
independent product of the expert
uninfluenced as to form or content by RULES OF COURT 2012 UNDER ORDER 40A
the exigencies of litigation.  Expert’s duty to the Court - O. 40A R. 2 ROC
2) An expert witness should provide 2012
independent assistance to the Court by  O. 40A R 2 (1): It is the duty of the expert to
way of objective unbiased opinion in assist the court on the matters within his
relation to matters within his expertise. expertise
3) An expert witness should state the facts  O. 40A R 2 (2): This duty overrides any
or assumption on which his opinion is obligation to the person from whom he has
based. He should not omit to consider received instructions or by whom he is paid.
material facts which detract from his
concluded opinion.
COMPETENCY OF
in the provisions of Section 134 of the
Evidence Act – per Eusoffe Abdoolcader FJ

WITNESSES & ITS

 Balachandran v Public Prosecutor [2005] 2
MLJ 301 -FC

CORROBORATION Where the evidence of a witness does not

require to be corroborated in law there is
no obligation to tender corroborative
CORROBORATION AS TO WITNESSES evidence to support his testimony.
 S. 118: Who may testify
All person shall be competent to testify Thus, if the case for the prosecution rests
unless the court that they are prevented solely on the evidence of one witness in
from understanding the questions put to such a category there is no requirement in
them or from giving rational answers to law for his evidence to be corroborated.
those questions by tender years, extreme Any such requirement will conflict with
old age, disease, whether of body or mind Section 134 of the Evidence Act 1950 which
or any other cause of the same kind. provides that no particular number of
witnesses shall in any case be required for
NUMBER OF WITNESSES the proof of any fact. This means that the
 S. 134: Number of witnesses testimony of a single witness, if believed, is
No particular number of witnesses shall in sufficient to establish any fact.
any case be required for the proof of any  Vadivelu Thevar v State of Madras AIR
fact. 1957 SC 614
 Dato Mokhtar Bin Hashim & Anor v PP Sinha J: The following propositions may be
[1982] 2 MLJ 232 –FC safely stated as firmly established:
The defence of the 1st apellant rests 1) As a general rule, a court can and may
primarily and substantially on that of alibi act on the testimony of a single witness
and he called a large number of witnesses though uncorroborated. One credible
who testified that at or about the time witness outweighs the testimony of a
stated in the charge he was in his house in number of other witnesses of
Tampin. indifferent character.
2) Unless corroboration is insisted upon by
On the number of witnesses called to statute*, courts should not insist on
support the defence of alibi, we pause to corroboration except in cases where
observe ‘testes ponnderantur, non the nature of the testimony of the
numerantur’ (witnesses are weighted, not single witness itself requires as a rule of
numbered or counted) that is, in case of prudence, that corroboration should be
conflict of evidence, the truth is to be insisted upon, for example in the case
sought by weighing the credibility of the of child witness or of a witness whose is
respective witnesses, not by the mere of an accomplice or of an analogous
numerical preponderance on one side or character *Eg. S113A of EA, S34 of EA
the other – a principle ossified and reflected and S.6(1) of Sedition Act 1948
 3) Whether corroboration of the
testimony of a single witness is or is not The test applicable to determine the nature
necessary must depend upon facts and and extent of the corroboration is thus the
circumstances of each case and no same whether the case falls within the rule
general rule can be laid down in a of practice at common law or within the
manner like this and much depends rule of practice at common law or within
upon the judicial discretion of the judge that class of offences for which
before whom the case comes. corroboration is required by statute. The
language of the statute “implicates the
CORROBORATION accused” compendiously incorporates the
 DPP v Hester [1973] AC 296 test applicable at common law in the rule of
Corroboration was not a technical term but practice.
simply means confirmation or support.
 Refer the cases; The nature of corroboration will necessarily
- Attan bin Abdul Ghani v PP [1970] 2 MLJ vary according to the particular
76 HC circumstances of the offence charged. It
- Aziz bin Muhamad Din v PP [1966] 5 would be in high degree dangerous to
MLJ 473 HC attempt to formulate the kind of evidence
- Lim Guan Eng v PP [1998] 3 MLJ 14 CA which would be regarded as corroboration,
 The King v Baskerville [1916] 2 KB 658 except to say that corroborative evidence is
(court of criminal appeal) evidence which shows or tends to show
The appellant was convicted of having that the story of the accomplice that the
committed acts of gross indecency with 2 accused committed the crime is true, not
boys i.e. offences under S11 of Criminal Law merely that the crime has been committed
Amendment Act 1885. but that us was committed by the accused.

He appeals to the Court on the ground that The corroboration need not be direct
there was no such corroborative evidence evidence that the accused committed the
as is required by law of the testimony of the crime; it is sufficient if it is merely
boys who were called for the prosecution at circumstantial evidence of his connection
the trial and were accomplices in the crime. with the crime
 PP v Lim Kiang Chai [2016] 2 MLJ 153 -FC
Lord Reading CJ: We hold that evidence in The word ‘corroboration’ means
corroboration must be independent ‘confirmation’ or ‘support’: Deputy Public
testimony which affects the accused by Prosecutor v Hester [1972] 3 All ER 1056;
connecting or intending to connect him [1973] AC 296. It has no special technical
with the crime. In other words, it must be meaning. By itself it means no more than
evidence which implicates him, that is, evidence tending to confirm other
which confirms in some material particular evidence: DPP v Kilbourne [1973] AC 729
not only the evidence that the crime has
been committed, but also that the prisoner Thus, corroboration need not be direct
committed it. evidence that the accused committed the
 crime. It is sufficient if it is merely other material evidence in support thereof
circumstantial evidence of his connection implicating him.
with the crime.  Unsworn evidence of a child
 The English Court of Appeal in The King v  Amendment in 1971
Baskerville [1916] 2 KB 658 at p677, long  S. 38 Children & Young Persons Act 1933
regarded as the locus classicus on the law of  Loo Chuan Huat v Public Prosecutor [1971]
corroboration said: “…evidence in 2 MLJ 1976 -FC
corroboration must be independent The appellant has been convicted of murder
testimony which affects the accused by and sentenced to death. The prosecution
connecting or tending to connect him with case rested almost entirely on the evidence
the crime. In other words, it must be of a boy of 11 or 12 years old.
evidence which implicate him, that is, which
confirms in some material particular not Held: The rule is that the jury must be
only the evidence that the crime has been warned that it is unsafe to act on the
committed but also that the prisoner evidence of a child unless it is corroborated
committed it. in material particulars implicating the
accused. The leading English case of Rex v
CORROBORATION AS REQUIRED BY Baskerville [1916] 2 KB 658 has often been
LAW cited on the meaning of corroboration.
 S. 133A: Evidence of child of tender years  Muharam bin Anson v PP [1981] 1 MLJ 222
Where in any proceedings against any -FC
proceedings against any person for any After holding an inquiry, the learned trial
offence, any child of tender years called as a judge received her unsworn evidence after
witness does not in the opinion of the court forming the opinion that Kunah (f) did not
understand the nature of oath, his evidence understand the nature of an oath but
may be received though not given upon thought she possessed sufficient
oath, if, in the opinion of the court, he is intelligence to justify the reception of her
possessed of sufficient intelligence to justify evidence and understood the duty of
the reception of the evidence, and speaking the truth. Kunah (f) was 10 years
understands the duty of speaking the truth; old at the time of the trial and about 7 years
and his evidence, though not given on oath of age at the time of the incident.
but otherwise taken and reduced into
writing in accordance with Section 269 of Issues: whether the inquiry must be made
the CPC shall be deemed to be a deposition before evidence is recorded?
within the meaning of that section:
The rationales?
Provided where evidence admitted by - Sidik bin Ludan v PP [1995] 3 MLJ 178
virtue of this section is given on behalf of - Muharam bin Anson v PP [1981] 1 MLJ
the prosecution, the accused shall not be 222 FC
liable to be convicted of the offence unless
that evidence is corroborated by some
 How? - Yusaini bin Mat v PP [1999] 3 MLJ 1) The entries are in a book of account
582 regularly kept in the course of business;
 Muhammad bin Abdul Kadir v Public and
Prosecutor [2013] 7 MLJ 684 -HC 2) The entries therein refer to a matter
A clear analysis of the law of evidence into which the court has to inquire.
showed that a child of tender years could
give evidence in any court under 2 All that is necessary to show to the court is
circumstances: that the book must be one that is “regularly
a) Firstly, to give evidence under oath kept in the course of business”
as ordinary witness, if he is sufficiently
intelligent and could also understand Salleh Abas FCJ: Under Section 34 of the EA,
the nature and consequences of oath these entries alone shall not be sufficient to
needed to be affirmed before giving charge the appellants with liability for the
evidence; or sum sued. There must be other evidence to
b) Secondly, to give evidence without corroborate the truthfulness of these
oath as provided by S. 133A of Evidence entries. Corroboration however may not
Act 1950 necessarily always come from extrinsic
evidence, as it may intrinsically be proved
Mohd Zaki Abdul Wahab JC: Section 133A by the book of account itself, as for example
requires an inquiry to be held before where the books are in correspondence
evidence is recorded. In my view the inquiry with themselves and entries therein tally
must be with 2 objectives in mind. Section with some other external evidence (Jaswant
133A provides procedures for admitting Singh v Lala Sheo Narain Lal (1893-94) 21 IA
evidence by a child of tender years. 6)
 Ling Hock Ling v Tai Lian Development Co
REQUIRE CORROBORATION – S.34 [2006] 6 MLJ 712 CA
 Entries in books of accounts regularly kept Of course, if there is no evidence apart from
in the course of business are relevant the regularly kept books of account, a
whenever they refer to a matter into which litigant cannot rely solely upon the entries
the court has to inquire but the entries shall in his ledger to prove his case against his
not alone be sufficient evidence to charge opponent.
any person with liability.
 Illustration: A sues B for RM1,000 and And that is what happened in Popular
shows entries in his account books showing Industries Limited v Eastern Garment
B to be indebted to him to this amount. The Manufacturing Sdn Bhd [1989] 3 MLJ 360
entries are relevant but are not sufficient where Edgar Joseph Jr J (as he then was)
without other evidence to prove the debt. applied the following passage in the
 Sim Siok Eng & Anor v Poh Hua Transport judgment of Wadegaonkar J in Beni v Bisan
and Contractor Sdn Bhd [1980] 2 MLJ 72 - Dayal & Anor AIR 1925 Nag 445 at p446:
FC
2 conditions: “Mere entries in books of account are not
by themselves sufficient to charge any
 person with liability (vide S34 of the EA). - Participles criminals in respect of
The reason is that a man cannot be allowed the actual crime charged, whether
to make evidence for himself by what he as principals or accessories
chooses to write in his own books behind - Procuring or aiding and abetting
the back of third parties. There must be misdemeanors
independent evidence of the transaction to - The term has been extended so that
which the entries relate.” receivers have been held to be
accomplices of the thieves from
SEDITIOUS ACT 1948 whom they receive stolen goods
 S. 6 (1): Notwithstanding anything to the
contrary contained in the EA, no person HL held: In a criminal trial where a
shall be convicted of an offence under s4 on person who is an accomplice gives
the uncorroborated testimony of one evidence on behalf of the prosecution it
witness. is the duty of the judge to warn the jury
 Seditious (Amendment) Act 2015 that, although they may convict on his
o Clause 6 of the Bill seeks to amend evidence, it is dangerous to do so unless
section 6 it is corroborated. This rule, although a
o With this amendment the court rule of practice, now has the force of a
shall apply the ordinary rules of rule of law, and where the judge fails to
evidence as regards the credibility give due warning the conviction will be
of a witness in seditious cases quashed
 PP v Mohd Azam bin Basiron & Anor [2011]
CORROBORATION AS MATTER OF
3 MLJ 741 CA
PRUDENCE
The respondents were charged with
 An accomplice s. 133 and 114 (b)
murdering one Wee Ah Choon. The police
 Sworn statement of a child
managed to arrest SP7 and later record his
 Victims of sexual offences
statement. He eventually became the main
 A trap witness
witness for the prosecution. He was
 Visual Identification relevant as he had admitted to having
collectively participated with the
1. AN ACCOMPLICE – S. 133 & 114 (b) respondents in the murder of the deceased
 Bhuboni Sahu v King [1949] PC person. The prosecution’s case therefore
“…it is a rule of prudence so universally was pivotal on his testimony but as an
followed as to amount almost to a rule of accomplice
law that it is unsafe to act upon the  Lawrence bin Masuni @ Fairus bin Abdulah
evidence of an accomplice unless it is & Anor v PP [2018] supp MLJ 63 - FC
corroborate in material respects so as to Both the appellants were charged with the
implicate the accused.” murder of one Willy Tuoh Ching Chai (the
 Davies v DPP [1954] AC 378 HL deceased). The HC found the appellants
Accomplices are person who were: guilty and sentenced them to death. On
appeal, the COA affirmed the decision of
the HC, hence the present appeals. The
grounds of appeal as submitted by the [1916] 2 KB 658, it was observed, inter alia,
appellants were: (a) that the learned COA by Lord Reid that: “The evidence in
judges erred in fact and in law in ruling that corroboration must be independent
PW14 was not an accomplice; and (b) that testimony which affects the accused…it
the learned COA judges erred in fact and in must be evidence which implicates him,
law in failing to consider the non- that is, which confirms in some material
corroboration of PW14’s evidence. particular not only the evidence that the
crime has been committed, but also the
The main issue raised before this court is prisoner committed it…”
simply whether PW14 is an accomplice and  Puganeswaran a/l Ganesan & Ors v Public
the court had failed to consider the non- Prosecutor [2020] 12 ML 165 -FC
corroboration of his evidence. To begin The law on accomplice evidence was well
with, the question of corroboration only settled. An accused person could be
arises in the event that PW14 is considered convicted even on the uncorroborated
an accomplice, thus necessitating the need evidence of an accomplice — as stated in s
to corroborate his evidence. However, it is 133 of the Evidence Act 1950 (‘the EA’).
trite that to convict on accomplice evidence The object of corroboration no doubt is to
per se is not illegal as S.133 of the EA allows satisfy the court that the witnesses are
it. telling the truth and that it is reasonably
safe to act on their evidence. It is not
Sarkar’s Law of Evidence (16th Ed) Reprint necessary that the corroboration should be
2008 at p2245: “…that although of the actual commission of the crime, for
uncorroborated testimony of an accomplice then there would be independent evidence
is strictly admissible and a conviction based of the commission of the offence. It would
on it is not illegal, yet experience teaches us be enough corroboration if there is
that an accomplice being always an independent evidence of relevant
infamous person, it is extremely unsafe to circumstances connecting the accused with
rely upon his evidence unless it is materially the crime.
uncorroborated . The rule as to
corroboration has become a settled rule of 2. SWORN STATEMENT OF A CHILD
practice of so universal an application that  The rule of prudence and practice requires
it has now assumed for force of a rule of the judge to administer caution or warm
law” himself of the danger of convicting an
accused person on uncorroborated sworn
Term ‘independent evidence’ is also testimony of a child.
significant to add that the said  Chao Ching & Ors v PP [1960] 1 MLJ 238 CA
corroborative evidence must also implicate Involving murder case. Even if you think
the appellants (whether directly or that he was not an accomplice, you must
otherwise) with the crime. still be careful (doubtly careful if you think
he was one) because he is a child of 12
As illustrated in the locus classicus on years of age. Rather an old looking child I
corroborative evidence ie R v Baskerville think you will agree but the evidence is that
 his age is only 12 years. As you saw he One of the grounds of appeal was that the
sworn in the witness box. The sworn jury were not given due warning against
evidence of a child need not as a matter of accepting the evidence of PW8 who was 13
law be corroborated, but again it is my duty years of age at the time of the incident and
to warn you that there is a risk in acting on 14 without corroboration.
the uncorroborated evidence of a child,
though you may do so if you are convinced Federal Court: In cases involving child
that he is telling the truth. evidence of tender years, we are of the
opinion that it would not be necessary to
Held: The Judge went on to warn the jury give formal warning that it is dangerous to
that even if the witness was not an convict on the uncorroborated evidence of
accomplice he was a child and that there is a child of tender years. It is sufficient if the
a risk in acting on the uncorroborated judge adopts the prudent course of advising
evidence of a child. Again, in our view, the the jury to pay particular attention to or to
direction though not inaccurate was scrutinize with special care, the evidence of
inadequate. One reason why children's young children and explains the tendencies
evidence is regarded with suspicion is that of children to invent and distort.
there is always the danger that a child may
not fully understand the effect of taking an 3. VICTIME OF SEXUAL OFFENCES
oath. In this country where evidence is  The trial judge must caution or warn himself
taken on affirmation that consideration of the dangers of convicting the accused on
loses much of its force. Another reason, the uncorroborated testimony of the
however, which in this country possesses complainant.
undiminished force is that it is a matter of  Din v PP [1964] 1 MLJ 300 -FC
common knowledge that children at times The main ground on which the conviction
find it difficult to distinguish between reality has been attacked is that the Judge
and fantasy. They find it difficult after a misdirected himself on the question of
lapse of time to distinguish between the corroboration. It was argued that in every
results of observation and the results of case of rape it is a rule of practice and of
imagination. prudence though not of law that the trier of
 Tam Kai Yau & Ors v PP [1977] 1 MLJ 174 fact (in this case the Judge) should be
FC warned or should warn himself of the
The appellants had been convicted for danger of convicting in the absence of
murder. One of the witnesses called at the corroboration and that in this connection
trial was the son of the deceased, a student, corroboration means corroboration as
the aged 13 years and 14years at the date defined in Baskerville’s case [1916] 2 KB
of the trial. The learned trial judge held that 658, that is independent testimony on a
he understood the nature and meaning of material particular implicating the accused.
the oath and allowed him to give evidence
on affirmation. Held: But the desirability for corroboration
of the evidence of the prosecutrix in a rape
case (which in any event has not yet
 crystallized into something approaching a regulates the manner in which
rule of law and which is still a rule of uncorroborated evidence is to be treated,
practice and of prudence) springs not from that is to sat, the judge must warn himself
the nature of the witness but from the of the dangers of convicting on such
nature of the offence. Never has it been evidence.
suggested that the evidence of a woman as  Karthiyayani & Anor v Lee Leong Sin &
such invariably calls for corroboration. If a Anor [1975] 1 MLJ 119 -FC
woman says her handbag has been On the position of S.157 of the Evidence Act
snatched and if she is believed there can be as to whether a witness can corroborate
no question of a conviction on such himself. Raja Azlan Shah FJ (as His Highness
evidence being open to attack for want of then was): “…It is settled law that a person
corroboration. If, however, she complains cannot corroborate himself but it would
of having been raped then both prudence appear that S.157 of the Evidence Act
and practice demand that her evidence enables a person to corroborate his
should be corroborated. testimony by his pervious statement. The
 Aziz bin Muhamad Din v PP [1996] 5 MLJ section adopts a contrary rule of English
473 -HC jurisprudence by enacting that a former
The accused was charged and convicted statement is consistent with the evidence
under Section 376 of the Penal Code (FMS given by him in court. The rule is based on
Cap 45) for rape of an underage girl on 31 the assumption that consistency of
January 1995 at a flat in Melaka. The utterance is a ground for belief in the
prosecution’s case rested primarily on the witness’s truthfulness, just as inconsistency
medical evidence and testimony of the is a ground for disbelieving him.”
complainant (SP2), father of the
complainant (SP1) and the owner of the flat 4. A TRAP WITNESS
(SP6). The accused appealed and the issues  The law as to trap witness is that its
of consideration were as follows: (i) evidence must be corroborated; and if it is
whether corroboration in cases involving not corroborated the learned judge must
sexual offences was required as a matter of warn himself of the danger of convicting an
law? accused on an uncorroborated evidence of
such witness.
A Paul: Generally in Malaysia, there is no  Rationale: A trap witness is an interested
specific rule of law that requires the party; Ramli Sutu v Public Prosecutor
evidence of a witness to be corroborated [1998] 5 CLJ 671
except in the case of the evidence of a child  Lim Boon San v Public Prosecutor [1968] 2
of tender years under Section 133A of the MLJ 45
Act. However, in certain types of cases “Where a witness may be regarded as
there is a rule of practice which requires having a purpose of his own to serve, the
evidence to be corroborated. This includes judge must direct his mind on the danger of
the evidence of a complainant in a cases a convicting on the uncorroborated evidence
conviction based on uncorrobated evidence of such witness”
is not illegal. But the rule of practice
 Mohd Khairudin bin Yaakub v PP [2009] 5 1) It is not necessary that there should be
MLJ 579 HC independent confirmation of every material
It was submitted for the appellant that the circumstance in the sense that the
prosecution must prove that the appellan independent evidence in the case apart
received RM100 from PW1 and PW6. In this from the testimony of the complainant or
regard it was argued that PW1 and PW6 the accomplice, should in itself be sufficient
were trap witnesses. Counsel for the to sustain conviction. All that is required is
appellant submitted that the failure of the that there must be some additional
learned judge to warn himself of the danger evidence rendering it probable that the
of conviction on an uncorroborated story of the accomplice (or complainant) is
evidence of a trap witness amounts to a true and that it is reasonably safe to act
misdirection that occasions of failure and a upon it.
miscarriage of justice. 2) The independent evidence must not only
make it safe to believe that the crime was
Held: I do not find any merits in these committed but must in some way
submissions. There is no doubt that OW1 reasonably connect or tend to connect the
and PW6 were trap witnesses. However, accused with it by confirming in some
this fact is amply recognized by the learned material particular the testimony of the
trial judge when in his judgment at p185 of accomplice or complainant that the accused
the appeal record said that “In the instant comitted the crime.
case, though the money was not found in 3) The corroboration must come from
the possession of the accused after when independent sources and thus ordinarily
the ACA’s officers conducted the arrest, the testimony of one accomplice would not
that does not restraint this court from be sufficient to corroborate that of another
making a prima facie finding that the 4) The corroboration need not be direct
accused had received the gratification from evidence that the accused committed the
PW1 as there is direct and circumstantial crime. It is sufficient if it is merely
evidence to support so.” circumstantial evidence of his connection
with the crime
While the authorities also suggest that the 5) Corroboration must be in material
evidence of interested witnesses must be particulars but it is not necessary that the
treated with caution, there is no rule of law whole prosecution story or all material
requiring the trial judge to caution himself particulars should be corroborated
and make a specific ruling or finding on the 6) Corroborative evidence required for
credibility of such witnesses. accepting the testimony of an accomplice
 Mahadzir bin Yusof & Anor v Public need not by itself conclusively establish the
Prosecutor [2011] 1 MLJ 297 CA guilt of the accused. It is sufficient if it is a
 Attan bin Abdul Gani v Public Prosecutor piece of circumstantial evidence which
[1970] 2 MLJ, Sharma J held: The law as to tends to connect the accused with the
corroboration as enunciated by the various crime with which he is charged.
authorities may be summaries thus, but to 7) Though a trap witness is not an approver,
the extent the rules are clear. he is certainly an interested witness in the
 sense that he is interested to see that the Four appellants were convicted of various
trap laid by him succeeded. He could at offences. The prosecution case against
least be equated with a partisan witness them was based wholly or substantially on a
and it would not be admissible to rely upon number of visual identifications. Before
his evidence without corroboration. His lying down the guidelines at p. 228 the
evidence is not a tainted one; it would only Court of Appeal sought to state that
make a difference in the degree of rationale for doing so. The three appeals
corroboration required rather than the before their Lordships raised problems
necessity for it. relating to visual identification in criminal
 Kumaran a/l Sappani v Public Prosecutor cases. Such evidence could and had brought
[2012] 6 MLJ 153 -FC about miscarriages of justice in a number of
The evidence of SD2 has been scrutinised in cases recently. Lord Widgery CJ state the
the light of the fact that SD2 being a guidelines are as follows;
brother of the appellant is an interested 1) The Judge should warn the jury of the
witness. There were certain portions of his special need for caution before
statements where there was an attempt to convicting the accused in reliance on
amend it during trial and this has led the the correctness of the identification or
trial judge to question the credibility of his identifications, whenever the case
statements as there was an attempt to tilt against an accused depends wholly or
the evidence in favour of the appellant. substantially on the correctness of one
 Magendran a/l Mohan v Public Prosecutor or more identifications of the accused
[2011] 6 MLJ 1 –FC which the defence alleges to be
One of the grounds of appeal: (iii) that mistaken.
some of the prosecution’s witnesses were 2) In addition he should instruct them as
interested witnesses with a purpose of their to the reason for the need for such a
own to serve and their evidence required warning and should make some
corroboration. Held: It is clear to us that references to the possibility that a
from her testimony she was an interested mistaken witness can be a convincing
witness with a grudge against the appellant one and that a number of such
and has a purpose of her own to serve. In witnesses can all be mistaken. Provided
our judgment, her evidence must be this is done in clear terms the Judge
treated with caution and requires need not use any particular form of
corroboration . words.
3) The Judge should direct the jury to
5. VISUAL IDENTIFICATION examine closely the circumstances in
 If solely based on visual identification of a which the identification by each witness
witness. Possibility that a miscarriage of came to be made. If any case, whether
justice might occur. Thus, a judge needs to it is being dealt with summarily or on
administer caution by warning himself indictment, the prosecution have
about the danger if relying on visual reason to believe that there is such a
identification per se. material discrepancy they should supply
 Reg v. Turnbull [1977] QB 224 the accused or his legal advisers with
 particulars of the description the police there appeared to be discrepancies.
were first given. In all cases if the Similarly, the trial judge also tested the
accused asked to be given particulars of waitress’ evidence with other evidence and
such descriptions, prosecution should in the process found corroboration for the
supply them. Finally, he should remind second accused holding a knife and
the jury of any specific weaknesses threatening the second eyewitness did not
which had appeared in the necessarily mean that the waitress’
identification evidence. credibility had diminished.
 PP v. Chan Choon Keon & Ors [1989] 2 MLJ  Heng Aik Ren Thomas v PP [1998] 3 SLR
427 142 CA
Faiza Thamby Chik JC states: “In dealing Where the quality of the identification
with the evidence of visual identification, evidence is poor the judge should go on to
the court has to remind itself of the special ask the third question. Is there any other
need for caution before convicting the evidence which goes to support the
accused in reliance on the correctness of correctness of the identification? If the
the identification. Conflicting pieces of judge is unable to find other supporting
evidence given by two important and vital evidence for the identification evidence, he
prosecution witnesses, i.e. the investigating should then be mindful that a conviction
officer and the officer who conducted the which relies on such poor identification
identification parade, were specific would be unsafe. The supporting evidence
weaknesses in the identification evidence need not be corroborative evidence of the
for the prosecution. Moreover, the kind required in R v Baskerville (1916) 2 KB
identification parade was not properly 658. What the supporting evidence has to
conducted”. be is evidence that makes the judge sure
 Dorai a/l Munian v PP [2009] 4 MLJ 525 that there was no mistake in the
Issue: Whether trial judge had properly identification.
directed himself if on identification
evidence – whether evidence of
identification was of good quality. The
waitress identified the 2 accused from an
identification parade that was held in the
police station 2 days after the murder while
the second eyewitness identified the
second accused from an identification
parade held on a later date at police
station.

CA held: In his judgment the trial judge

found the second eyewitness’s evidence on
the identification of the second accused to
be good, after directing his mind to that
part of the eyewitness’ evidence where
COMPETENCY &
(2) In criminal proceedings against person the
husband or wife of that person respectively

COMPELLIBILITY
shall be a competent witness

(3) In criminal proceedings the accused shall be

OF WITNESS & ITS a competent witness in his own behalf and may
give evidence in the same manner and with the
EXCEPTION - life effect and consequences as any other
witness:
PRIVILEGES 1. MARITAL/ SPOUSAL COMMUNICATION
PRIVILEGE
WHO MAY TESTIFY  S.122: Communications during marriage
S. 118: Who may testify No person who is or has been married shall
All persons shall be competent to testify unless be compelled to disclose any
the court considers that they are prevented communication made to him during
from understanding the questions put to them marriage by any person to whom he is or
or from giving rational answers to those has been married; nor shall he be permitted
questions by tender years, extreme old age, to disclose any such communication unless
disease, whether of body or mind, or any other the person who made it or his
cause of the same kind. Failure (incompetent) representative in interest consents, except
to understand the questions put to him. Failure in suits between married persons or
(incompetent) to give rational answers to the proceedings in which one married person is
questions. prosecuted for any crime committed
against the other.
TYPES OF PRIVILEGES
 Marital/ Spousal Privilege is the immunity
1. Marital/ Spousal Communication
or protection from disclosure of
Privilege
communications between husband and
2. Crown/ State Privilege
wife (‘H and W’) is based on public policy to
3. Informer Privilege ( + exception)
protect the sanctity of the marriage.
4. Legal Professional Privilege
 I.e. to preserve marital harmony.
(+ exception + test)
 Such privilege continues even after the
I. Legal Advice Privilege
termination of the marriage.
II. Litigation Privilege
 Taylor on Evidence, First Edition, Volume II
5. Self-Incrimination Privilege
published in 1984 on the issue of the
S.120: Parties to civil suits and wives and incompetence of spouses to give evidence
husband for or against one another based on the
necessity of preserving marital confidence.
(1) In all civil proceedings the parties to the suit  Ghouse bin Haji Kader Mustan v Rex
and the husband or wife or any party to the The appellant appeals against his conviction
suit, shall be competent witnesses on a charge of kidnapping Isah, 16 years old
on 25 July 1941. One of the grounds of
 appeal; the only material witness as to the materia with our Evidence Act. Smith Ag CJ
kidnapping was the girl Isah herself and as by referring to ss.118 and 120 of the EO:
the appellant married this girl on 26 July The general rule in North Borneo is that all
and as she is still his wife, she could not be persons within the ambit of s.118 of Cap 43
compelled to give evidence against him. The are competent to testify. There is no
second ground is based on section 121 (2) distinct category of “compellable
of the Evidence Ordinance; “In criminal witnesses” as that term was understood at
proceedings against any person the H or W common law. Although all persons within
of such person respectively shall be a s.118 are competent, certain section of the
competent witness.” Mr. Marshall argued EO (e.g. ss. 121, 122, 124,125 and 129) set
that the subsection does not use the word out specific instances where such
“compellable” and he referred to the rule of competent witness cannot be compelled to
English law that a wife is not compellable give evidence relating to specified matters.
except in a limited number of cases. Mc These instances must presuppose the
Elwaine CJ held, if a witness in this Colony is existence of the rule that all competent
“competent” and has been summoned he is witnesses are bound to give evidence.
bound to give evidence and to answer all Nowhere is stated in this or any other
relevant questions. There is no class of Ordinance that a wife is not bound to give
witness who can be called a “compellable evidence in criminal proceedings against
witness”. The word “compellable” when her husband. A wife is not compelled to
used in the Evidence Ordinance relate not disclose communications during marriage –
so much to a witness as to a type of s.122; surely if the legislature intended that
evidence and in my opinion a witness may she should not be bound to give evidence in
be compelled to give any relevant evidence criminal proceedings against her husband,
unless a section enacts that he shall not be this would be clearly stated in the law.
compelled to give it. Such sections are 122-
127 and 130. The District Judge was fully It seems to this court that a wife in no
within his rights in compelling the wife to different position from any other
give evidence. competent witness. A court may summon
 Gimbu bin Sangkaling v R [1958] SCR 144 her to give evidence just as it may summon
The accused was charged for the murder of anyone else likely to be acquainted with the
one Samidal. At trial, the accused’s wife was facts of the case –see s. 176 of the CPC.
called as a witness for the prosecution and Unless the wife can point to any exception
her evidence incriminated the accused. He in the law relieving her from the obligation
was convicted. On appeal, the conviction to give evidence, then she is bound to give
was upheld. One of the main arguments evidence.
raised in appeal was that the wife’s  Lim Lye Hock v Public Prosecutor [1995] 2
evidence was inadmissible as she was not a SLR 235 CA
compellable witness. The argument was The appellant was charged with murder of
rejected on the basis that the wife was a Tan (deceased). At trial, the prosecution
competent and compellable witness under called the appellant’s wife as witness.
the Evidence Ordinance which was in pari Counsel for the appellant objected on the
 ground that communication between the State and the disclosure of the information
spouses is privileges under s.124 of or source is detrimental to public interests.
Evidence Act. Note: Malaysia Evidence Act  The basis and foundation of the deviation
S. 122. Held, all person s falling within the than the ordinary rules of evidence where
ambit of s.120 of the Act are competent the concerned party is the State is public
and compellable to testify as a witness in interest which is paramount. Where a
any proceedings. Under s. 122 (S. 120), a conflict between public and private
husband or wife is competent to testify as interests arises the former must prevail. So
witness in any proceeding against his or her put it differently, private interests must
spouse. The Act does not differentiate a shield so or give way to public interests
spouse from any other witness; the spouse wherever a conflict arises between the two.
is in the same position as any other witness.  Whatever the question of privilege under
There are specified instances in which a the aforesaid provisions of Act arises for
particular person though competent as determination, Court must consider and
witness is not compellable or is not determine class or character of the
permitted to give evidence on certain document or information sought to be
specified matter and there are provided in withheld from being produced or disclosed
ss. 123-133 (s.121-131) of the Act. by the concerned party.
 Duncan v Cammell Laird & Co Ltd [1942] AC
2. CROWN PRIVILEGE 624
 S. 123: Evidence as to affairs of State A court of law should uphold an objection
No one shall be permitted to produce any taken by a public department called on to
unpublished official records relating to produce documents in a suit between
affairs of State, or to give any evidence private citizens; if no grounds of public
derived there from, except with the policy they ought not to be produced.
permission of the officer at the head of the Documents otherwise relevant and liable to
department concerned who shall give or production must not be produced if the
withhold permission as he thinks fit, public interest required that they should be
subject, however, to the control of a withheld.
Minister in the case of a department of the  Conway v Rimmer & Anor [1964] 1 All ER
Government of Malaysia and of the Chief 874
Minister is the case of a department of a House of Lord held that disclosure could
State Government. only be ordered if the risk of injury to the
 Note: S. 123, 124 and 125 of the Act public interest is outweighed by the injury
constitute a clear and significant departure to the public interest in the administration
from the ordinary rules of evidence where of justice. In other words, a balancing
under all the material documents had to be exercise must be carried out to determine
proved or else the presumption under s.114 of the facts of each case which public
will have to be drawn. interest should prevail.
 The aforesaid provisions do not permit any  Ba Rao & Ors v Sapuran Kaur & Anor
adverse inference or presumption under [1978] 2 MLJ 146 FC
s.114 where the concerned party is the
In this case the respondents have claimed interest. If it is public interest that
damages on behalf of the estate of the confidentiality shall be safeguarded. The
deceased for his death as a result of the reason is that such documents become
negligence of the medical officers of the subject to privilege by reason of their
district hospitals. A Committee of Enquiry contents. Confidentiality is not a head of
had been held into the death of the privilege. It is consideration to bear in mind.
deceased and the respondents have issued It is not that the contents contain material
a notice to produce the reports and findings which it would be damaging to the national
of the Committee of Enquiry. The interest to disclose but rather those
Applications objected on the ground that documents would be of class which
the findings of the Committee were demands protection. To illustrate the class
unpublished official records and therefore of documents would embrace Cabinet
privileged from disclosure under s. 123 of papers, Foreign Office dispatchers, papers
EA. The learned trial judge after scrutinizing regarding the security of the State and high
the affidavit of the Deputy Secretary level departmental minutes.
General of the Ministry of Health objecting  Suruhanjaya Security v Datuk Ishak Ismail
to the production disallowed the objection [2016] 1 MLJ 733 FC
and ordered production of the reports and Investigating Officers of the appellant
findings of the Committee. The appellants interviewed and recorded statements from
appealed. Raja Azlan Shah FC said: In India, 38 persons (‘the s. 134 statements’) under
as in Malaysia, the law on the subject is s. 134 of the Securities Commission Act
contained in s.123 and 162 of EA…In 1975 1993 while investigating suspected offences
the Supreme Court clarified the law relating committed by the respondent under the
to executive privilege. In the State of Uttar securities laws. The instant appeal was only
Pradesh v Raj Narain AIR 1975 AIR 865 the against the decisions of the courts below in
Supreme Court look the following stand: ordering the disclosure of the s. 134
The foundation of the law behind s.123 and statements. The appellant argued that the
s.162 of EA is the same as in English law, it respondent was not entitled to have access
is that injury is public interest is the reason to s. 134 statements because that could
for the exclusion from disclosure of jeopardize any subsequent criminal
documents whose contents if disclosed proceedings the appellant might decide to
would injure public and national interest. institute against the respondent. The
Public interest which demands that respondent argued that s.134 did not state
evidence be withheld is to be weighed that s. 134 statements were privileged or
against the public interest in the confidential and could not be disclosed. He
administration of justice that courts should contended that disclosure was necessary
have the fullest possible access to all for the trial court to know the basis of the
relevant materials. When public interest appellant’s claim and to facilitate a fair
outweighs the latter, the evidence cannot disposal of the case.
be admitted.
FC: The court will exclude evidence the FC held: In other words, the provision under
production of which is contrary to public s. 134 (4) of SCA must be read subject to
 the rules of privilege and prohibition on the be detrimental to the national security or
grounds of public policy. In our view, this public interest. Accordingly, where a claim
applies to civil as well as criminal for privilege from disclosure of certain
proceedings. In the context of the present documents is made as in this case, s. 123
appeal, the relevant and applicable rules for and 162 of EA should be considered.
consideration are housed in ss. 123 and 124
of EA 1950. Explaining in ss. 123 and 124 of In my opinion what was done by the 1 st
the Indian Evidence Act (similar to s. 123 Defendant is insufficient for the purpose of
and 14 Malaysia EA), constituted a clear s. 123 of EA 1950. Unless of course it can be
departure from the ordinary rules of said that once a document is an official
evidence under which all material secret it is deemed to be related to affairs
documents must be produced. of State. But I do not think so. Each case has
 Note: O. 24 r 15 of Rules of Court 2012, to be considered on its own particular facts.
under this provision, it also limits disclosure Accordingly, it is my view that this Court is
if it was injurious to the public interest. entitled to invoke s. 162 in particular sub-
 See: Obnet Sdn Bhd v Telekom Malaysia section 2 of the EA 1950.
Bhd [2019] 6 MLJ 707 CA
 Takong Tabari @ Takung Tabari v 3. INFORMER PRIVILEGE
Government of Sarawak & Ors [1994]  S. 125: Information as to commission of
MLJU 386 offences
Plaintiff’s legal action was connected with No Sessions Court Judge, Magistrate or
the explosion and fire on 15/2/1990 in the Police Officer shall be compelled to say
premises occupied by 4th Defendant whence he got any information as to the
whereby her husband suffered severe burns commission of any offence and no revenue
and died as a result. The Plaintiff sought for officer shall be compelled to say whence he
an order that the Defendant to produce for got any information as to the commission of
inspection the document namely any offence against the public revenue or
‘Department Board of Inquiry Report’ the excise laws.
marked ‘sulit’. Defendant claimed that the  The common law principle: It is a long-
document is an official secret as defined established principle of the English common
under the Official Secret Act 1972. In short, law that subject to certain exceptions and
1st Defendant contended that since the statutory qualifications, the defendant in a
document is within the category of an criminal trial should be confronted by his
official secret as defined under the Act it accusers in order that he may cross-
cannot be produced in this Court in examine them and challenger their
connection with the action of the Plaintiff evidence.
and that to do so would be an offence  Why Informer Immunity?
under the Official Secret Act 1972. The identity of informers is generally
immune from disclosure on the ground of
Held: It’s obvious that the primary goal of public interest in supporting the police in
the Act is to protect classified documents or the prevention and detection of crime
information which by such disclosure would through the medium of informers.
 Purpose: To protect informers in order to EXCEPTIONS TO THE INFORMER PRIVILEGE
preserved and encourage the flow of RULE
information.  Where disclosure is necessary to show the
 D v National Society for the Prevention of defendant’s innocence
Cruelty Children [1978] AC 171  To prevent a miscarriage of justice
“The need to conceal the identity of  Where the informer consents to the
informers is justified not only for their own disclosure and a greater public interest is
safety but to ensure that the supply of not harmed thereby
information about criminal activities does  Where the public interest is the possible
not dry up.” exposure of serious misconduct by police
 Marks v Beyfus (1890) 25 QBD 494 officers in the investigation of crime require
The plaintiff issued civil proceeding for disclosure
damages for malicious prosecution. He  See: D v Respondent and National Society
called the Director of Public Prosecutions as for the Prevention of Cruelty to Children
a witness and sought to elicit from him the Applicants (House of Lords) [1978] AC 171
name of his informant. The witness refused  Current laws: Since the police are carrying
to identify the name of person who had out an unending war with criminals many of
given the information on which he had whom are today highly intelligent. So it is
acted against the plaintiff. Lord Esher MR: essential that there should be no disclosure
This rule as to public prosecution was of anything which might give useful
founded on the grounds of policy and if this information to those who organize criminal
prosecution is a public prosecution the rule activities.
attaches;…I do not say it is a rule which can  Lee Yoke Yam v Chin Keat Seng [2013] 1
never be departed from; if upon the trial of MLJ 145 FC
a prisoner the judge should be of the The underlying reason behind this is the
opinion that disclosure of the name of the overriding public interest that a member of
informant is necessary or right to show that the public should be encouraged to make
prisoner’s innocence. police report with regard to any crime that
 R v Leipert [1997] 1 RCS 281 comes to his or her notice. Such a report is
Mc Lachlin J: The principle is an ancient and important to set the criminal investigation
hallowed protection which plays a vital role in motion. With such report, the alleged
in law enforcement. It is premised on the crime may be investigated and the
duty of all citizens to aid in enforcing the perpetrator be brought to justice. It is
law. The discharge of this duty carries with without doubt that public interest should
it the risk of retribution from those involved override the countervailing consideration
in crime. The principle was developed to that thus may sometime lead to an abuse
protect citizen who assist in law by a malicious informant. In any event, a
enforcement and encourage other to do the false report lodged by a complainant, he
same. may be liable to be prosecuted for making
false report under s.177 etc. of the Penal
Code. That we believe provided a sufficient
 safeguard against any person from making a  Public Prosecutor v Haji Kassim (1971)
false report. 2 MLJ 115, 117 FC
 Skandinaviska: The raison d’etre of
4. LEGAL PROFESSIONAL PRIVILEGE (‘LPP’) legal professional privilege is that full,
 S. 126: Professional communications free and frank communication between
(1) No advocate shall at any time be persons and their legal advisors without
permitted, unless with his client’s the effective administration of justice
express consent, to disclose any would not be possible, can only take
communication made to him in the place of such communications can be
course and for the purpose of his carried out in confidence.
employment as such advocate by or on  Three River District Council v Bank of
behalf of his client, or to state the England (No. 6) [2004] 3 WLR 1274
contents or condition of any document “It is obviously true that in very many
with which he has become acquainted cases clients would have not inhibitions
in the course and for the purpose of his in providing their lawyers with all the
professional employment, or to disclose facts and information the lawyers might
any advice given by him to his client in need whether or not there was the
the course and for the purpose of such absolute assurance of non-disclosure
employment. that the present law of privilege
 To see: Displacement of Legal Professional provides. But, it is necessary in our
Privilege: Facilitation of Crime or Fraud society in which the restraining and
Exception [2015] 8 CLJ 1 controlling framework is built upon a
 Should Legal Professional Privilege be belief in the rule of law, that
Absolute: A Comparative Appraisal [2015] 4 communications between clients and
MLJ lawyers whereby the clients are hoping
 Legal Professional Privilege can be further for assistance of the lawyers legal skills
divided into two subs; in the management of their clients’
o Legal Advice Privilege – S. 126 affairs, should secure against the
o Litigation Privilege – S. 129 possibility of any scrutiny from others
whether the police, the executive,
I. LEGAL ADVICE PRIVILEGE business competitors, inquisitive
 S. 126:…unless with client’s consent busybodies or anyone else. This idea
 Rationale: Ong CJ inferred s. 126 as a justifies the retention of legal advice
rule that the conduct of legal business privilege in our law, notwithstanding
without professional assistance is that as a result cases may sometimes
impossible and on the necessity in have to be decided in ignorer…” per
order to render such assistance Lord Scott
effectual of securing full and  Venturious v Mountain (1991) 1 WLR
unreserved intercourse between the 601, 611
two. “The doctrine of LPP is rooted in the
public interest. To this end at is
 necessary that actual and potentials solicitor and client and no express
litigants be claimants or respondents consent had been given by the
should be free to unburden themselves defendants to disclose the content of
without reserve to their legal advisers the document.
and their legal advisers be free to give
honest and candid advice on a sound Held: Allowing the defendant’s
factual basis without fear that these application. The document being a
communications may be relied on by an document containing instructions from
opposing party if the dispute comes the defendants to their solicitors is a
before the court for decision. It is the privileged document and cannot be
protection of confidential disclosed to anyone except with the
communication between client and express consent given by each of the
legal advisers which lies at the heart of defendants.
LPP. Without the consent of the client,
or in the absence of iniquity or dispute Eusoff Chin J: S. 126 also says that the
between client and solicitor no inquiry legal adviser shall not be permitted at
may be made into or disclosure made of any time to disclose professional
any instructions which the client gave communications. It is said that a
the solicitor or any advice the solicitor communication once privileged is
gave the client whether in writing or always privileged, per Cockburn CJ in
orally” per Bingham LJ. Bullock v Corry & Co (1878) 3 QBD 356
 Dato’ Au Ba Chi & Ors Koh Keng Kheng UNLESS with clients’ express consent,
& Ors [1989] 3 MLJ 445 appearing in s. 126.
In the course of the trial of this suit, the  Dato’ Anthony See Teow Guan v See
first plaintiff in his evidence referred to Teow Chuan & Anor [2009] 2 MLJ 14 FC
a document of the agreed bundle of Kian Joo Can Factory Bhd ('KCFJ') was a
documents. The document was a public listed company in which the
communication between the first ten appellant was the executive director
defendants and their original solicitors and general manager, the first
and had been included in the bundle respondent was the managing director
due apparently to an oversight by the and the second respondent was the
previous solicitors who had taken over executive director and factory manager.
the case from the original solicitors. The appellant and the financial director
During the adjournment the 14 of KJCF met an advocate and solicitor in
defendants filed a joint interlocutory the firm of Shearn and Delamore ('the
application to have the document advocate') and gave her instructions
removed from the bundle and all about the respondents operating a
referenced to the said document by the company known as KL Metal Printing
first plaintiff in the notes of evidence (M) Sdn Bhd ('KLMP'). Based on the
taken at the hearing expunged on the information provided to her, the
grounds that the document was a advocate rendered a legal opinion ('the
privileged communication between legal opinion') addressed to KJCF for the
attention of the appellant. The that no advocate shall at any time be
appellant subsequently published the permitted to disclose any
legal opinion to various persons and in communication made to him by or on
due course the respondents obtained a behalf of his client for the purpose of
copy of the same. The respondents his employment unless the client gives
claimed that the legal opinion was his express consent. It also extends to
defamatory because it contained any advice given by him or his client.
allegations that the respondents were  Skandinaviska Enskilda Banken AB
dishonest and that they had acted in (Publ), Singapore Branch v Asia Pacific
breach of their duties as directors of Breweries (Singapore Pte Ltd and other
KJCF by siphoning money away from appeals [2007] 2 SLR 367 Singapore
KJCF and raising fictitious invoices in Court of Appeal observed s. 128 of
favour of KLMP. They therefore Singapore Evidence Act, in pari materia
instituted proceedings against the with s. 126 of Malaysia Evidence Act
appellant for defamation. At the trial of which can be summarized as follows:
the defamation suit the respondents “In Singapore, legal professional
sought to admit the legal opinion and privilege was a statutory rights enacted
called the advocate as a witness to in ss. 128 and 131 of the Act. As the Act
answer questions on the legal opinion. was modeled on the Indian Evidence
However, the advocate claimed that Act 1872 which itself has its root in
she was unable to answer any questions English law, the court would need to
on the legal opinion by reason refer to English decisions in order to
of privilege under s 126 of the Evidence determine the scope of the said
Act 1950 ('the Act'). provisions as well as the current state
of the law, while bearing in mind that
This case laid down 9 Questions of Law; not all English law principles could be
used for this purpose as result of s. 2 (2)
of the Act. “
 “One privileged always privileged”:
This common law maxim has been
endorsed and approved by the high
authority of the House of Lords and
Privy Council in the cases quoted earlier
where the privilege was accepted as
being absolute. Hence, I told that LPP
under s. 126 of the Act is absolute and
S. 126 come under heading witnesses it remains so until waived by the
dealing with what witnesses may or privilege holder i.e. the client.
may not say and with their privileges  Tan Chong Kean v Yeoh Tai Chuan &
and immunities. It is important to note Anor [2018] 2 MLJ 669 FC
that s. 126 is aimed at the advocate Issue: Whether a breach of s. 126 of EA
who is a witness. This section provides 1950 on LPP by a solicitor gives rise to a
cause of action against him by the client II. LITIGATION PRIVILEGE
to obtain an injunction to restrain any  S. 129: No one shall be compelled to
disclosure of confidential information disclose to the court any confidential
by him? communication which has taken place
between him and his legal professional
FC: For S. 126 the following adviser unless he offers himself as a
prerequisites must be present namely; witness, in which case he may be
(a) there must be exist a solicitor-client compelled to disclose any such
relationship between the parties; and communications as may appear to the
(b) there exist communication in any court necessary to be known in order to
manner or of any subject made by the explain any evidence which he has
client to the solicitor in the course and given, but no others.
for the purpose of the employment of  Wang Hang Lin & Ors v HSBC Bank
the solicitor and/ or advice given by Malaysia Berhad [2017] MLJU 1075 CA
solicitor to client. This appeal centers on the legal issue of
litigation privilege and its application in
Held: The privilege belongs to the client this jurisdiction in the context of our
and not that of the solicitor (see”: B and adversarial system. Issue was on
others v Auckland District Law Society & whether ‘investigation report’ comes
Anor). As such in Australia, it is now under privilege. Appellant claimed that
statutorily called the ‘client legal it does not come under s. 126.
privilege’ instead of ‘LPP’ (see: Australia Respondent claimed that it was
Evidence Act 1995 Commonwealth). privilege under s. 129.
The solicitor therefore legally obliged to  Also refer to Bukit Lenang’s case CA
protect not only any form of (2016)
information he has obtained from the
client but also all the advice he has EXCEPTIONS TO THE LEGAL PROFESSIONAL
given to the client. PRIVILEGE
 “A well-recognized exception to the right to
FC: S. 126 is not a mere rule of assert legal professional privilege is where
evidence. It is a principle of the document or documents in question
fundamental justice. Surely a breach of came into existence in furtherance of some
such principles entitled an aggrieved criminal or fraudulent purpose,” or “where
party to commence an action including the privileged communication is itself a
a prayer for an injunction to safeguard means of carrying out a fraud.”
the confidentiality of the client-solicitor  See: Nationwide Building Society v Various
communication. It is even more critical Solicitors [1997] PNLR 52, 72 & B v
when such confidential communication Auckland District Law Society [2003] 3 WLR
is used to the advantage of the 859.
solicitors who are legally obliged to  S. 126 (1) Provided that nothing in this
protect it. section shall protect from disclosure;
 (a) any such communication made in relies on the evidence already found by the
furtherance of any illegal purpose; Chief Magistrate in London in the case of
(b) any fact observed by any advocate in the Lorrain in Regina v. Governor of
course of his employment as such showing Pentonville Prison, Ex parte Osman [1990]
that any crime or fraud has been committed 1 WLR 277. The detailed judgment of the
since the commencement of his Chief Magistrate went up for a review by
employment. the Divisional Court and His Lordships of the
 R v Cox and Railton (1884) 15 Cox CC 611 Divisional Court confirmed the learned
In this case, a client consulted his solicitor [1993] MLJU 566 at 6Chief Magistrate's
with a view of drawing up a fraudulent bill finding of fact and law. This includes the
of sale. There was held to be no privilege to finding of the Chief Magistrate on the 6
prevent the Crown from calling the solicitor charges of corruption we are concerned.
to testify. I find merit in the argument of Mr. Grant
 Baker v Campbell (1983) 153 CLR 52 that this Court has but to respect the
Sean J: proceeding or course of conduct decision of the Chief Magistrate, the
“the privilege does not extend to protect Divisional Court in England that on the
communication which are in themselves evidence before them and before me there
part of criminal or fraudulent or which is ample evidence for me to find prima facie
constitute the whole or part of an actual that corruption has been made out. (court
dealing or transaction. Nor does it extend nampak ada unsur-unsur corruption)
to protect things lodged with a legal adviser  Re The Detention of Leonard Teoh Hooi
for the purpose of obtaining immunity from Leong [1998] 1 MLJ 757
production.” This case was refered in the Mr Leonard Teoh Hooi Leong, an advocate
case of Attorney-General of Hong Kong v and solicitor ('the detainee'), was retained
Lorrain Osman &Ors. [1993] 2 MLJ 347, 352 by one Nor'aishah bte Bokhari ('Nor'aishah')
 Attorney General of Hong Kong v Lorrain to advise her on her conversion to
Osman & Ors [1993] 2 MLJ 347, 352 Christianity. On 30 December 1997,
It is the intention of the Attorney-General Nor'aishah disappeared from her parents'
to prove in Hong Kong that the defendant house and a police report was made. The
Lorrain is guilty of having agreed to accept police report principally alleged that
corrupt money from the Carrian Group Nor'aishah had been kidnapped by her
represented by George Tan, the 3rd lover. The police conducted extensive
Respondent. Then some portion of such investigations and ultimately produced the
money about 5 million was transmitted by detainee before the magistrate. The
Lorrain to his solicitors Ng Ek Tiong & magistrate, upon perusal of a letter from
Partners. the investigation officer, the police report
Mr. Grant submitted that he has to satisfy and the investigation diary, had remanded
the Court according to arm (a) of the the detainee for a period of seven days.
proviso to Section 126 of the Act that such Counsel for the detainee applied to the
communication was made in furtherance of High Court to exercise its revisionary
any illegal purpose. He cited and the crown powers to revoke the remand order.
 Abdul Malek Ishak J: But the veil of but for such question he would not be at
privilege may be set aside by the court on liberty to disclose.”
the application of a solicitor who suspects  Tan Chong Kean v Yeoh Tai Chuan & Anor
that fraud or a crime had been committed [2018] 2MLJ 669 FC
by his client: Finers (a firm) & Ors v There are two limbs in s 128. Learned
Miro [1991] 1 All ER 182; [1991] 1 WLR counsel is relying on the second limb, that
35 (CA). A solicitor cannot be compelled to is, ‘…if any party to a suit or proceeding calls
disclose legitimate communications, any such advocate as a witness, he shall be
whether oral or written, passing directly deemed to have consented to the
between him and his client. This privilege, disclosure, only if he questions the
however, does not extend to advocate on matters which but for such
communications made in furtherance of a question he would not be at liberty to
fraud or a criminal act. As the police were disclose’.
investigating a kidnapping case involving But even in the second limb there are also
Nor'aishah, Leonard Teoh's refusal to condition precedents stipulated. Firstly, the
inform the police of Nor'aishah's client must be the party calling the
whereabouts made him a prime suspect advocate as a witness in a suit or
and the remand order would therefore be proceeding. Secondly, the client ‘questions
appropriate in the circumstances (PP v the advocate on matters which but for such
Audrey Keong Mei Cheng). The question he would not be at liberty to
communications between Leonard Teoh disclose’.
and Nor'aishah were no longer privileged as  S. 129: Confidential communications with
it involved a criminal investigation. This was legal advisers
my judgment and I so hold accordingly. “No one shall be compelled to disclose to
 See Balabel & Anor v Air India [1988] Ch the court any confidential communication
317; [1988] All ER 246 (CA)). which has taken place between him and his
 Gelatissimo Ventures (S) Pte Ltd & Ors v legal professional adviser unless he offers
Singapore Flyer Pte Ltd [2009] SGHC 235; himself as a witness, in which case he may
[2010] 1 833 be compelled to disclose any such
“The party seeking disclosure must communications as may appear to the court
establish a prima facie case of the plaintiff’s necessary to be known in order to explain
dishonesty.” any evidence which he has given, but no
 S. 128: Implied Waiver others.”
“If any party to a suit gives evidence therein  Privilege under S. 126 vs Privilege under S.
at his own instance or otherwise, he shall 129
not be deemed to have consented thereby Privilege S. 126 Privilege S. 129
to such disclosure as is mentioned Any advice on Arises when
in section 126; and if any party to a suit or legal matter, litigation is in
proceeding calls any such advocate as a whether prospect or
contentions or pending. Primarily
witness, he shall be deemed to have
not. That is the concerned with
consented to the disclosure, only if he communications information
questions the advocate on matters which
 between clients provided by a heading of the joint inquiry report stated
(or on behalf of) to third party to the that it had finally to be sent to the board's
his lawyer. lawyer or client solicitor for the purpose of enabling him to
‘predominantly’ advise the board. Under English law, the
for the purpose of
test of privilege was that the document
(pending or
anticipated court should be "wholly or mainly" for the
proceedings. purpose of preparing one's case in litigation
then pending or contemplated. The one
TEST TO DETERMINE PROFESSIONAL PRIVILEGE that appeals most to me is "dominant"
 “Predominantly” – based on some purpose, per Lord Wilberforce.
authority refers to the sole purpose in
obtaining the legal advice. How to Lord Russel of Killowen: In order attract
determine; privilege from its production, it is necessary
- “An appreciable purpose” that the joint internal report should owe its
- “A substantial purpose” genesis to either the sole or the dominant
- “Wholly or mainly/ dominant for purpose that it should be used for the
that purpose” purpose of obtaining legal advice in possible
- “Primary purpose” or probable litigation.
 Waugh and British Railways Board [1980]  Brink’s Inc & Anor v Singapore Airlines Ltd
A.C. 521 & Anor [1998] 2 SLR 657 CA
The appellant plaintiff, Alice Simpson On 6 January 1993, the appellants, a
Waugh (widow of John Wallace Waugh, company providing security services, had
deceased), claimed damages against the delivered 50 kg gold bars to the first
board in respect of the death of the respondents for carriage by air. Upon arrival
deceased under the provisions of the Fatal in Bayan Lepas Airport in Penang, these
Accidents Acts 1846-1959, alleging that a were received by the second respondents
collision between two of the board's as ground handling agents. The gold bars
locomotives that had resulted in the death were taken by armed robbers before they
of the deceased, who had been employed could be stored in the vault of the
by the board, had been caused by the strongroom office within the airport's cargo
negligence of the board, their servants or complex. The first respondents requested
their agents.  for loss adjusters to make a report on the
robbery. This was carried out by their
The plaintiff brought an action against the insurers who instructed M/s Graham Miller
board and sought discovery of, inter alia, in this respect and on 9 March 1993 a
the joint inquiry report. The "the joint report was duly delivered (the Graham
inquiry report" was prepared incorporating Miller report).
statements of witnesses, which was also The report was among some thirty items for
sent to the inspectorate, and in due course which discovery was ordered by the
a report was made by the inspectorate for assistant registrar. Before the learned judge
the Department of the Environment. The in the court below, the respondents'
appealed against discovery of the Graham
 Miller report on the ground that it was cases might have to be decided in the
privileged. absence of relevant probative material; that
"legal advice" extended to advice as to what
CA held: Appeal was allowed. “For a should prudently and sensibly be done in a
document to attract legal privilege, the "relevant legal context", which would
claimant had to establish that it had been include the presentation of a case to an
created for the dominant purpose of inquiry by someone whose conduct might
obtaining legal advice. On the present facts, be criticised by it; and that, accordingly,
there appeared other purposes for which communications between the Bank's
the report was made and the respondents inquiry unit and its lawyers regarding
had failed to prove a clear paramountcy of presentation of its case to the inquiry for
seeking legal advice.” the purpose of persuading it that its
 Three Rivers’s (No. 6) case [2004] UKHL 48: discharge of its public law obligations under
[2005] AC 610 the Banking Acts was not deserving of
The claimants, the liquidators and creditors criticism and had been reasonable were
of a bank ("BCCI"), brought an action privileged.
against the Bank of England for misfeasance
in public office in respect of its supervision Held by HOL: The Court of Appeal may have
of BCCI before its collapse. They sought an been misled by the habitual classification of
order for inspection and disclosure of legal professional privilege under the heads
communications passing between the of "litigation privilege" and "legal advice
Bank's "inquiry unit" and its solicitors during privilege". "Litigation privilege" should
the course of an inquiry set up to inquire properly be used only to describe a head of
into its supervision. privilege that depends for its existence on
The Bank claimed legal advice privilege in litigation being in progress or
respect of all solicitor/client contemplated.
communications. The judge held that it was  Wang Han Lin & Ors v HSBC Bank Malaysia
entitled to claim privilege only in respect of Berhad [2017] MLJU 1075 CA
communications for the purpose of seeking  Litigation privilege is a cornerstone of the
or obtaining advice as to its legal rights and adversarial system of litigation, which is
obligations, not communications relating to practiced in Malaysia. It takes its roots, as
presentation of its evidence to the inquiry do the provisions of the EA, from the
so as to be least likely to attract criticism. English common law. Litigation privilege is
The Court of Appeal dismissed an appeal by one of the two recognized categories of
the Bank from his order. legal professional privilege, namely solicitor
client privilege or client advice privilege on
House of Lord: Allowed the appeal. That it the one hand, and litigation privilege on the
was desirable as a matter of public policy other. The rationale for these two
that communications between clients and categories of privilege is quite different. As
their lawyers for the purpose of obtaining early as 1884, Bray in his seminal work on
legal advice should be privileged from ‘Discovery’, explained the difference:
discovery notwithstanding that as a result “Professional Privilege [i.e. privilege
 affecting communications between lawyer by both legal advice privilege and litigation
and client] rests on the impossibility of privilege. The appellant banks appealed
conducting litigation without professional against the High Court's decision.
advice, whereas the ground on which a
party is protected from disclosing his The relationship between legal advice
evidence [litigation privilege] is that privilege and litigation privilege;
the adversary may not be thus enabled so -First, legal advice privilege exists at any time a
to shape his case as to defeat the ends of client seeks legal advice from his solicitor
justice.” whether or not litigation is contemplated,
whereas litigation advice applies only where
The test for determine whether litigation litigation exists or is contemplated.
privilege may be successfully established in -The former applies only to confidential
a given case is two-fold: communications made for the purpose of
(a) Is litigation pending or apprehended? In seeking legal advice, and not just any
other words is litigation reasonably in communication made to the lawyer. Hence it
prospect? does not apply to communications by third
(b) Is litigation the dominant purpose for parties to the solicitor unless they were
which the report was prepared? made to the solicitor as agent for the client.
-In this respect, we should note that although
(See Skandanaviska (above); Waugh v s.128 refers to communication made by or
British Railways Board [1979] All ER on behalf of his client, the words "on behalf
1169; Wee Keng Hong Mark v ABN Amro of" do not signify that any communication by
Bank NV [1977] 2 SLR 629) an agent is protected. The established
 Skandinaviska Enskilda Banken AB (Publ) principle is that only a communication made
Singapore Branch v Asia Pacific Breweries through the agent as a conduit that is
(Singapore) Pte Ltd And Other Appeal protected.
[2007] SGCA 9; [2007] 2 367 -In the English Court of Appeal in Wheeler v Le
In early March 2004, the appellant banks Marchant (1881) 17 Ch D 675
made an unsuccessful application for pre-
action discovery against APBS, seeking Verdict: For the reasons we have given, we
disclosure of documents including the PWC agree with the Judge and find that on the
(PricewaterhouseCoopers)  draft reports. In facts of this case and given the relevant
September 2004, the appellant banks legal context, both litigation as well as legal
commenced this action against APBS and advice privilege would apply with regard to
subsequently made applications for specific the PWC draft reports. Accordingly, the
discovery. appeals are dismissed with costs.
The assistant registrar ordered that the
PWC draft reports be produced by APBS as NEW LEGAL ISSUE ON PROFESSIONAL PRIVILEGE
they were not privileged information.  Issue: Whether legal professional privilege
On appeal, the High Court reversed the extended to confidential information with
assistant registrar's decision on the ground in-house counsel?
that the PWC draft reports were protected
  Arx v Comptroller of Income Tax (2) No answer which a witness shall be
[2016] SGCA 56 compelled by the court to give shall subject him
The raison d’etre of legal professional to any arrest or prosecution, or be proved
privilege is that full, free, and frank against him in any criminal proceeding, except a
communication between persons and their prosecution for giving false evidence by that
legal advisors, without which the effective answer.
administration of justice would not be (3) Before compelling a witness to answer a
possible, can only take place if such question the answer to which will criminate or
communications can be carried out in may tend directly or indirectly to criminate him
confidence (see Skandinaviska at [23]). This the court shall explain to the witness the
rationale applies with equal force to purport of subsection (2).
communications with in-house legal  Thus, this will lead to the last privilege known as
advisors, whose ability to provide legal Self-Incrimination Privilege
advice would be greatly stymied if
communications with their clients were not 5. SELF-INCRIMINATION PRIVILEGE
privileged (see also, the observations of
Lord Denning in Alfred  Self-incrimination, the giving of evidence that
Crompton ([26] supra) cited above at [25]). might tend to exposed the witness to
It would be artificial, unjust and unfair to punishment for crime.
draw a distinction between the advice  Thus, this privilege allows witness to give
proffered by in-house counsel on the one evidence without getting punished by the court
hand and advice proffered in the more except for perjury (making untruth statement
traditional context of practice on the other. while on oath in court).
 Ex Parter Reynolds (1882) 20 Ch.D. 294
WITNESS NOT EXCUSED FROM Sir George Jessel M.R.: “He (a witness) should
ANSWERING ON GROUND THAT not be compelled to go into detail - because
ANSWER WILL CRIMINATE that may involve his disclosing the very matter
 S. 132 to which he takes objection. But if it appears to
(1) A witness shall not be excused from the judge that, by being compelled to answer, a
answering any question as to any matter witness may be furnishing
relevant to the matter in issue in any suit, or in evidence against himself - which could be
any civil or criminal proceeding, upon the used against him in criminal proceedings or in
ground that the answer to that question will proceedings for a penalty - then his objection
criminate or may tend directly or indirectly to should be upheld.
criminate, him, or that it will expose, or tend  Lamb v Munster (1882) 10 Q.B.D. 1110
directly or indirectly to expose, the witness to a The action was for libel, and the defendant by
penalty or forfeiture of any kind, or that it will his statement of defence denied the publication
establish or tend to establish that he owes a of the alleged libel.
debt or is otherwise subject to a civil suit at the Interrogatories being administered asking him
instance of the Government of Malaysia or of whether he did not publish the libel, his answer
any State or of any other person. was: "I decline to answer all the interrogatories
 upon the ground that my answer to them might evidence that, in breach of that copyright, the
tend to criminate me." defendants were making and selling video
cassette copies of the films, the plaintiffs, on an
Field J: I think the learned judge at chambers ex parte motion before the judge, obtained
was right and that the answer to the orders permitting them to enter the
interrogatories is sufficient. The point raised is defendants' premises and seize infringing copies
important; for the principle of our law right or of the films and requiring the defendants to
wrong is that a man shall not be compelled to give immediate discovery of relevant
say anything which criminates himself. Such is documents and answers to interrogatories
the language in which the maxim is expressed. relating to the supply and sale of infringing
The words "criminate himself" may have several copies. The defendants applied unsuccessfully
meanings, but my interpretation of them is to have the orders discharged or varied on the
"may tend to bring him into the peril and ground, inter alia, that by disclosing the
possibility of being convicted as a criminal. documents and answering the interrogatories
the defendants might expose themselves to
Stephen J: I am of the same opinion that when criminal proceedings.
the subject is fully examined, it will I think be
found that the privilege extends to protect a Held: There is plain evidence here that the
man from answering any question which defendants have done great wrong to the
“would in the opinion of the judge have a plaintiffs. They have stolen the plaintiffs'
tendency to expose the witness, or the wife or copyright in hundreds of films and have not
husband of the witness, to any criminal paid a penny for it. Yet these wrong-doers glory
charge.” in their wrongdoing. They get legal aid, and
 LEADING CASE IN MALAYSIA supported by it they say that, by reason of their
Chye Ah San v R [1954] MLJ 217 wrongdoing, they have a privilege against self-
Spenser Wilkinson J: “The maxim nemo tenetur incrimination. They rub their hands with glee
seipsum accusare (no one is bound to and say to the injured plaintiffs: "You cannot
incriminate or accuse himself) in this country is ask us any questions. You cannot see any of our
enforced in a different way from that in documents. We have a privilege by which we
England. In England a witness in a court of law can hold you at bay and tell you nothing. You
is not bound to answer questions which may cannot prove any damages against us - not
tend to criminate him. In Malaya under the more than minimal. You cannot get an account
Evidence Ordinance a witness is bound to of our profits." To allow wrongdoers to take
answer all questions even though they may advantage of their wrongdoing in this way is an
tend to criminate him, but if he is forced to affront to justice itself. It is a great disservice to
answer such questions then no proceedings can the public interest. It should not be allowed.
be taken against him based upon his answers  Television Broadcasts Ltd & Ors v. Mandarin
except proceedings for perjury.” Video Holdings Sdn Bhd (1983) 2 MLJ 346
 Rank Film Distributors Ltd And Others [1982] However, held that S.132 withdrew such
A.C. 380 HL a privilege. In respect of the meaning of
The plaintiffs were owners of copyright in 'witness', his Lordship held that a person
certain cinematograph films. On the basis of producing a document or who furnishes
 evidence under the compulsion of a court order the Evidence Act 1950, e.g. in a situation in
e.g. an Anton Piller Order, is a witness. which a court in Malaysia is recording evidence,
 P.M.K. Rajah v. Worldwide Commodities Sdn. in a judicial proceeding in which a person is
Bhd. & Ors (1985) 1 MLJ 86 called to the court to give evidence as a witness
Zakaria J: considered the Television Broadcasts, and not e.g. a person who is merely served with
and expressly disagreed with it. an Anton Piller order.
With regards to the meaning of 'witness', his  Meridian Aseet Management Sdn Bhd v Ong
Lordship held that a person merely producing a Kheng Hoe & Ors [2009] MLJU 1871 FC [2018]
document is not a witness. MLJ 420 – Federal Court case
Hence, his Lordship held that a witness is a Appellant was an asset & fund manager, while
person who testifies at a trial and who is subject Respondent (Ong) was an employee to
to oral examination in open court. Appellant’s company. Appt sued Resp for
Person who is merely served with an Anton misappropriating the fund money worth 27 M
Piller Order is not a 'witness' within the that was under Appt’s management. Resp had
meaning of S.132 the Evidence Act 1950. deposited the “stolen fund monies” to his own
 Riedel-de-Haen AG v Liew Keng Pang (1989) 2 trading accounts, his wife and his two sisters’
MLJ 400 accounts. Appt by ex-parte application obtained
Chan Sek Keong J, considered in depth the Court’s order to request Resp. 1, Res. 2, Res 3
above conflicting decisions and held in favour of and Res 4 to provide detailed of their accounts
the P.M.K. Rajah case. in order to trace the whereabouts of the “stolen
He held that a witness is a person giving oral fund monies”. However, the HC as well as COA
testimony in judicial proceedings, and thus, a rejected this ‘tracing order’ because the
person served with an Anton Piller order could Respondents were entitled to claim privilege
claim the common law privilege against self- against self-incrimination.
incrimination.
 Attorney General og Hong Kong v Zauyah Wan 2 Questions to FC;
Chik &Ors and Another Appeal -Whether the privilege against self-
(Note: Appeal court case yang lain before ni incrimination under the common law
semua high court case) outweighs the equitable right for one to
Court of Appeal appeared to have accepted recover his own assets
the Television Broadcasts case, ie. S.132 the -Whether a defendant is entitled to
Evidence Act 1950 does away with the common invoke privilege against self-incrimination
law privilege against self-incrimination. and not to reveal whereabouts the monies
 Note: The Court of Appeal in Zauyah was he has misappropriated when opposed with
dealing with the situation of witnesses giving a Mareva injunction order to trace those
evidence at a trial. Therefore, S.132 applies. The monies.
Court of Appeal was not concerned with the
Mohd Ghazali Yusoff FCJ: In my judgment, the
position of a defendant who has been served
correct position is that stated by Zakaria Yatim J
with an Anton Piller order.
(later FCJ) in PMK Rajah where he held that that
 Thus, the common law privilege against self-
“witness” in s. 132 of the Evidence Act
incrimination has been removed by S. 132(2) of
1950 refers to a person who testifies on oath or
affirmation in a court of law or before a judicial
tribunal and who is liable to be examined, cross
examined and re-examined. I would add that in
the Singapore case of Riedel-de Haen AG, Chan
Sek Keong J (now CJ) appears to have preferred
the view expressed by Zakaria Yatim J.

2nd Question: FC held that a defendant in

proceedings for tracing of property cannot
refuse to disclose relevant and vital information
which is in his or her possession or power. In
the instant appeal, there is no foundation
whatsoever to base a claim to privilege against
self-incrimination by the respondents. The claim
to privilege against self-incrimination in the
instant appeal has as much to do with the facts
of this case as chalk have to do with cheese.
Thus, the claim to privilege against self-
incrimination is irrelevant.

Last topic tak masuk final: EXAMINATION OF

WITNESS