Dealing With Evidence

S.3 of the Evidence Act 1950  provides the definition of “evidence” as:  a all statements which the court permits or requires to be made before it by witnesses in relation to matters

Dealing with Evidence

By LEE SWEE SENG Advocate & Solicitor Certified Mediator Notary Public Patent Agent Trademark Agent

www.leesweeseng.com

sweeseng@tmnet.net.my

 Determine the nature of evidence

chief to fit your case theory

of evidence

Main legislation governing the law of evidence in Malaysia

Evidence Act 1950

so far, as any part of the law relating to evidence is

expressly dealt with by that Ordinance, the courts in

Malaysia must give effect to the relevant provisions of the Ordinance whether or not they differ from the common law rule of evidence as applied by the English Court But no

enactment can be fully comprehensive It takes its place as part of the general corpus of law It is intended to be

construed by lawyers and upon matters about which it is

silent or fails to be explicit, it is presumed that it was not the intention of the legislation to depart from the well

established principle of law.”

Determining the nature of evidence

S.3 of the Evidence Act 1950

 provides the definition of “evidence” as:

 (a) all statements which the court permits or requires

to be made before it by witnesses in relation to

matters of fact under inquiry: such statements are

called oral evidence ;

 (b) all documents produced for the inspection of the

court: such documents are called documentary

evidence ;

Oral Evidence

 S 59 of the EA 1950, provides that,

All facts, except the contents of

documents, may be proved by oral

evidence

 “oral evidence” means all statement

which the Court permits or requires to be made before it by witnesses in relation to matters of facts under inquiry.

(S Augustine Paul Evidence Practice and Procedure 1994 pg 389)

Oral Evidence

 s.60 of EA 1950 Oral evidence must be

direct.

 (1) Oral evidence shall in all cases whatever

be direct, that is to say

- (a) if it refers to a fact which could be seen,

it must be the evidence of a witness who says he saw it;

 (b) if it refers to a fact which could be heard,

it must be the evidence of a witness who says he heard it;

Oral Evidence

 (c) if it refers to a fact which could be

perceived by any other sense or in any other manner, it must be the evidence of a

witness who says he perceived it by that sense or in that manner;

 (d) if it refers to an opinion or to the grounds

on which that opinion is held, it must be the evidence of the person who holds that

opinion on those grounds

Oral Evidence

 (2) The opinions of experts expressed in any treatise commonly offered for sale and the

grounds on which such opinions are held may

be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence , or

cannot be called as a witness without an

amount of delay or expense which the court regards as unreasonable

Evidential value of oral evidence

 The weight and value of oral evidence

depends on its credibility as found by the Court in each case The court must give reasons for its findings on credibility

Documentary evidence

 s.3 of EA1950 Interpretation

 “document” means any matter expressed,

described or howsoever represented, upon any

substance, material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of-

 (a) letters, figures, marks, symbols, signals, signs, or

other forms of expression, description, or

representation whatsoever;

 (b) any visual recording (whether of still or moving

images);

Documentary evidence

 (c) any sound recording, or any electronic magnetic,

mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

 (d) a recording, or transmission, over a distance of any

matter by any, or any combination, of the means

mentioned in paragraph (a), (b), or (c),

 or by more than one of the means mentioned in

paragraphs (a), (b), (c) and (d), intended to be used

or which may be used for the purpose of expressing, describing, or howsoever representing, that matter;

Documentary evidence

 s 61 of the EA 1950 provides that

 The content of documents may be proved

either by primary or secondary evidence

Document produced by

computer

 s 90A 90B and 90C of EA 1950 relates

to documents produced by computers.

 This section is an exception to the hearsay rule and provides that a document

produced by a computer or a statement

contained in such document shall be

admissible as evidence of any fact stated therein whether or not the person

tendering the same is the maker of such

document or statement

Document produced by

computer

 A document shall be deemed to have

been produced by a computer whether it was produced by it directly or by means of any appropriate equipment and whether or not there was any direct or indirect human intervention.

 It applies to civil and criminal proceedings.

Assessing the client’s

evidence

 Facts in issue

 ‘…any fact from which either by itself or in

connection with other facts the existence,

non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or

proceedings necessarily follows.’ s 3 EA 1950

 Proving facts in issue by direct evidence

 Ideally a fact in issue should be proved by direct

evidence (that is evidence of a person who himself perceived the fact), if this is available

 E.g eye-witness testimony

 Relevant Facts

 More often than not, direct evidence of the facts in issue is not available in the facts in issue.

 These are facts from which the facts in issue may be inferred

(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

 The general categories of relevant facts

are covered by section 6 to 11 EA 1950

which are worded widely so that ‘ the

general ground on which facts are

relevant might be stated in as many and

as popular forms as possible so that if a fact is relevant, its relevancy may be

easily ascertained.’

Evidence given by witness without

personal knowledge/not available

 Hearsay Rule

 The assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered

to prove the facts which they refer to (ie facts in issue and relevant facts) are

inadmissible unless they fall within the scope of the established exceptions

(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

 The rational for such principle is that the witness cannot verify the truth of facts of which he has no personal knowledge

As the person does not have personal knowledge of the facts is not in court,

the accuracy of his perception and his veracity cannot be assessed and tested

in cross-examination.

(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

Exceptions to the hearsay rule

 Statement of persons who cannot be called as

witness under s.32 s.33 of the EA 1950

 S.32 of the EA provides for various categories

of circumstances in which oral and written

statements may be admitted as long as the

maker is unavailable for one of the prescribed reasons

Under the circumstances

where:-1. he is dead;

2. he cannot be found;

3. he has become incapable of giving evidence;

or

4. his attendance cannot be procured without

an amount of delay and expense which under the circumstances of the case appears to the court unreasonable

 Weight to be given to statement under

section 32 and 33 of EA 1950

 s.158 of EA 1950 provides that

 Whenever any statement relevant under s.32 or

33 is proved, all matters may be proved either in

order to contradict or to corroborate it, or in order

to impeach or confirm the credit of the person by whom it was made, which might have been

proved if that person had been called as a witness and had denied upon cross-examination the truth

of the matter suggested

 s 73A(1)(a) of EA 1950 provides that

 …in any civil proceedings where direct oral evidence

of a fact would be admissible, any statement made by

a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following

conditions are satisfied:

a) If the maker of the statement either

i. Had personal knowledge of the matters dealt

with by the statement; or

ii Where the document in question is or forms part

of a record purporting to be a continuous

record, made the statement in the performance

of a duty to record information supplied to him

by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

b) If the maker of the statement is called as a

witness in the proceedings.

Provides that the condition that the maker of the

statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his

bodily or mental condition to attend as a witness, or

if he is beyond the seas and it is not reasonably

practicable to secure his attendance, or if all

reasonable effort to find him have been made

without success

maker of the statement had any incentive

to conceal or misrepresent facts

 Johore State Economic Development

Corp v Queen Bee Sdn Bhd [1995] 4 MLJ

371 HC

 A document which had been admitted was discounted as it was not made

contemporaneously with the occurrence

of the facts stated therein

Arab-Malaysian Merchant Bank Bhd v Chong On

Foh Medical Hall & Liquor Dealers [1997] 4 MLJ

532 HC

 The plaintiff, a licensed merchant bank, sued the defendant, a firm, based on a factoring

agreement dated 12 March 1985

 At the hearing one Simon a/l Jones Ganesh, an officer of the plaintiff (`the officer`), gave

evidence and wanted to tender the agreement

 On behalf of the plaintiff, the agreement was

signed by one Dr Junid and one Dr Cheah Teoh Keong, a managing director The document was kept by the bank

Arab-Malaysian Merchant Bank Bhd v Chong On

Foh Medical Hall & Liquor Dealers [1997] 4 MLJ

532 HC

 It was the officer's duty to provide

information regarding accounts of clients who failed to repay the plaintiff Dr Junid, who had knowledge of the document, had left the plaintiff

 Dr Cheah, on the other hand, could not

come to the Magistrate`s Court, Bukit

Mertajam from Kuala Lumpur as he was a busy man

Arab-Malaysian Merchant Bank Bhd v Chong On

Foh Medical Hall & Liquor Dealers [1997] 4 MLJ

532 HC

 The defendant objected to the tendering of the agreement The learned magistrate

ruled that the agreement was not

admissible and adjourned the case for the plaintiff to appeal

 The plaintiff appealed and the issue

concerned the admissibility of the

document and the interpretation of s 73A

of the Evidence Act 1950.

Arab-Malaysian Merchant Bank Bhd v Chong On

Foh Medical Hall & Liquor Dealers [1997] 4 MLJ

532 HC

Held: (Abdul Hamid J)

 Under s 73A of the Act, a statement was

admissible under three circumstances, namely:

 (i) where the maker of the statement was called to give evidence;

 (ii) where the maker was not available but the

proviso to sub (1) of s 73A was satisfied; and

 (iii) where the maker was available but was not

called as a witness under the circumstances

provided by sub (2) of s 73A.

Arab-Malaysian Merchant Bank Bhd v Chong On

Foh Medical Hall & Liquor Dealers [1997] 4 MLJ

 The circumstances of this case justified the

agreement to be admitted under sub-s (2) of s 73A

of the Act Dr Cheah himself had come to Bukit

Mertajam from Kuala Lumpur five or six times for the same case The claim was only for a sum of

RM5,425.82 while the costs incurred by the plaintiff were more than what it was claiming

 Appeal allowed

Allegation of Fraud

prudent to make them swear a statutory declaration stating the particulars of fraud

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

a statement of claim against the

respondents, claiming for moneys

owed under banking facilities In

1981, the appellant filed an

application for an O.14 judgment, but the court refused to grant leave to

enter summary judgment

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

 In 1986, the appellant's solicitors took out

a summons for directions and the senior assistant registrar ordered the parties,

inter alia, to serve on each other a list of documents and file an affidavit verifying such list within 60 days The appellant's solicitors accordingly filed such an

affidavit, which was served on the

respondents on the same date

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

the respondents, the appellant's

solicitors filed the request for setting down the action for trial in 1988.

summons-in-chambers to apply for a dismissal of the appellant's claim for want of prosecution

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

decision of the senior assistant registrar

 The appellants have appealed.

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

 The senior assistant registrar granted the

application and accordingly struck out the suit

 On appeal by the appellants, the respondents contended that nine years had passed since the filing of the writ and during that period,

important key witnesses had died and the

control of the appellant bank had changed

hands a few times and this would substantially prejudice them if the action were to go to trial

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

Held: (Mohamed Dzaiddin SCJ)

 (1).An action may be dismissed for want of prosecution when a party has been guilty of intentional and

contumelious default and where there has been

inordinate and inexcusable delay in the prosecution of the action

 On the question of inordinate and inexcusable delay, the power should be exercised only where the court is

satisfied that there has been inordinate and inexcusable delay on the part of the plaintiff and that such delay

would give rise to a substantial risk that it was not

possible to have a fair trial or is likely to cause serious prejudice to the defendants

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

 Here, the trial judge had misapplied the above principles as, since the affidavit was filed by the appellants, there had been no further evidence

to show which key witnesses of the respondents had since died

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

United Malayan Banking Corp Bhd v Palm and

Vegetable Oils (M) Sdn Bhd & Ors [1994] 3

MLJ 73

 Looking at the pleadings, the entire case of the appellant would depend on documents which are still in existence Having regard to the above

observations and bearing in mind that the

prejudice alleged must be shown to be `serious`,

on the facts and circumstances of this case, no serious prejudice to the respondents had been made out

 The delay in the present case was due to the

earnest desire of both parties to reach an

amicable settlement which did not succeed.