EVIDENCE IITUTORIAL QUESTIONS.

TUTORIAL QUESTION NO. 1

a) By reference to the relevant provisions of the Malaysian Evidence Act 1950, briefly state the modes of proving the contents of a document. Before you can be allowed to prove the contents of a document what must be established first respecting the document concerned? (15 marks)

Proof document first

Section 65 provides documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 62 of the Act says that primary evidence means the document itself produced for the inspection of the court. Per Edgar Joseph Jr J (as he then was) in Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, 368 states “It is firmly established rule under section 64 that requiring that when documentary evidence is tendered, primary evidence of the document, that is to say the production of the document itself is essential”. Per Mohd Dzaiddin SCJ in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, 631 states that “It is well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in cases under section 65”. Section 65 provides for cases in which secondary evidence relating to documents may be given. Method of proof of a document: Authentication of a document maybe provided by having its author appear as a witness, calling a witness who was present when it was signed (Section 67 – 73), or calling one who can identify the handwriting (Section 45 & 47). Draw presumption under section 90 (Ancient document). Per Augustine Paul JC (as he then was) in Alliedbank (M) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, 14 “It is settle law where a document is sought to be proved in order to establish the truth of the facts contained it, the maker has to be called. Non compliance with this rule will result in the contents of the documents being hearsay” See also R v Gillespie (1967) 51 Cr App R 172; R v Plumer (1814) R & R 264; Hill v Baxter [1958 1 QB 277; and R v Moghal [1977] Crim LR 373). See also Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ 17 It also based on the concept of the best evidence rule. Documentary hearsay: See Myers v Director of Public Prosecutions [1965] AC 1001; Tan Siak Heng v. Rex [1950] 16 MLJ 214; Patel v. Comptroller of Customes [1966] AC 356; Beh Heng Seong v PP [1972] 2 MLJ 190; & Sim Tiew Bee v. PP [1973] 2 MLJ 200.

Then proof content of a document

Per Lord Esher MR Lucas v William [1892] 2 QB 113, 116 “Primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation of its absence has been given”. Per Ahmad J in Jai Gopal Singh v Divisional Forest Officer AIR 1953 Pat 310, 311 states “What constitutes primary evidence in the case of a document is defined in section 62. The secondary evidence is defined in section 63, and under clause (5) of that section an oral account of the contents of a document given by some person who has himself seen it is also secondary evidence. But section 64 says that documents must be proved by primary evidence except in the cases hereinafter mentioned. Section 65 gives the list of cases in which secondary evidence may be given of the existence, condition or contents of a document. It has got seven clauses”. The use of the word includes in the section means that the types of secondary evidence set out in the section are not exhaustive as the said word is a term of enlargement (See Smt Lachcho v Dwari Mal AIR 1986 All 303). See section 104 illustration b.

TUTORIAL QUESTION NO. 2a) Ali in a land ownership dispute with Yusof, adduces in evidence an issue

document of title he alleges was passed down from his grandfather to his father who in turn passed to him. The document is yellowish, and though in good condition it must be deliberately handled as the document is fairly worn out and is quite fragile. As a mater of fact, the document has many crease some of which are overlaid with transparent tape to hold them in place. The document is written using old Malay characters and spelling. With decided cases, determine whether the document may be construed as authentic. (7 ½ marks)

b) Mr. Bohong and Miss Helah are charged with 2 counts of corruption over a period of 4 months while holding an important public office. The prosecution case against the accused rest solely on the tape – recorded conversations between Mr. Bohong, Miss Helah and Mr. Lurus, from whom gratification was asked by Mr. Bohong and Miss Helah. Consider the circumstances under which evidence of a tape recordings may be properly tendered in evidence. Illustrate your answer with reference to the Evidence Act 1950 and relevant cases (7 ½ marks).

Section 90 provides Presumption as to documents 20 years old. An ancient document, in the law of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule. The presumption goes only to the genuineness of the document but not to the truth of the contents. The presumption goes only to the genuineness of the document but not to the truth of the contents. Per Sharma J in Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ 77, 79 “Private or public documents twenty years old produced from proper custody and otherwise free from suspicion prove themselves and no evidence of the handwriting, signature, sealing or delivery need in general be given. If a document twenty years old or more is produced from proper custody and is on its face free from suspicion the Court may presume - (1) that it has been signed or written by the person whose signature appears or in whose handwriting it purports to be; and (2)that it has been fully attested and executed if it purports/claim to be so. The period of 20 years is reckoned from the date the document is tendered in evidence. Per Sir George Rankin in Surendra Krishna v Mirza Mohammad AIR 1936 PC 15, 17. Where only a copy of the document is produced, the presumption under the section does not arise. Per Tan Chiaw Thong J in Tsia Deevelopment Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301, 302; Kunwar Basant Singh & Ors v Kunwar Brij Raj Saran Singh (1935) IA 180 In raising the presumption under the section, the court may rely on internal and external evidence of the document See Per KC Vohrah J in Ghazali Bin Arifin v Ahmad Bin Bakar [1992] 1 MLJ 282, 286 Section 90 of our Evidence Act 1950 is substantially similar to s 90 of the Indian Evidence Act though the presumption therein is in respect of documents 30 years old. If there is a dispute as to the genuineness of such documents (having regard to s 90 of both the Malaysian and Indian Acts) one needs to heed (take note/observed) what Madgavkar J said at p 40 in Mansukh Panachand Shah v Trikambhai Icchabhai AIR [1930] Bom 39, after he had referred to the Privy Council case of Shafiqunnissa v Shaban Ali Khan [1904] 26 All 581.In exercising the discretion vested in the court under section 90 of the EA 1950, it is also important to exercise due care and caution as has been pointing out in Ghulam v Allahdin 19 IC 964 and Jesu Lal v Gangga Devi 20 IC 868.Read together with section 4 (1). It is presumption of fact, it is a permissive presumption, so it is up to the discretion of the court to decide whether to accept it or not. If the document sought to be produced is not admissible under this section, it is still open to the party tendering it to establish that it is admissible under any other provision of the Act. See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301.

Authentication of document?

Tape recording evidence?Yusufalli v State AIR 1968 SC 147, “…the process of tape recording offers an accurate method of storing and later reproducing sounds…”The proof of a tape recording, being a document within the meaning of s. 3 of the Evidence Act 1950 , is governed by ss. 61 to 66 of the same Act pursuant to which the recording must be proved by being produced for the inspection of the court or by secondary evidence. Conditions to be satisfied before a tape record can be admitted in evidence can be found in the case of ZB Bukhari v BR Mehra AIR 1975 SC 1788 · (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. (c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.Mohd Ali Jaffar v PP [1998] 4 CLJ SUPP 208.  It is perhaps appropriate at this stage to consider the matters that must be established when introducing evidence of a tape recording. They are as follows: (a) The tape was run through and found to be clean before the recording was made; (b) The machine was in proper working order; (c) The tape was not tampered with or altered in any way - it should be established in whose possession the tape was at all times; (d) The officers (or other witnesses) played the tape over after making the recording and heard voices which they can identify; (e) A transcript was prepared of the voices; if it was just taken down in shorthand and the typed transcript prepared from the shorthand notes then the notes should be saved; (f) The officers (or other witnesses) played over the recording and checked it with the transcript as to the identity of the voices and as to the conversation

Tape recording evidence?

R v Maqsud Ali [1965] 2 All ER 464, “Having a transcript of a tape recording is a most convenience and a great aid to the jury, otherwise a recording would have to be played over and over again…” The quality of the tape recorder is a matter for the court to decide (Gurbachan Singh v PP [1966] 2 MLJ 125)PP v Dato’ Seri Anwar Bin Ibrahim [1999] 2 MLJ 1, …”If there is no evidence to show that a tapes conversation is an accurate account of a conversation that occurred, then it is not admissible.” See article by S. Augustine Paul “Electronically recorded evidence”, [1992] 2 CLJ xxi.

TUTORIAL QUESTION NO. 3• Syarikat Bina and Public Housing Ltd. conclude a long drawn-up written

agreement whereby the former agreed to put up thirty units of medium-cost apartments in Ampang. Consideration was made by progress payment through a bank nominated by Public Housing Ltd. Two years later, severe disagreement as to several terms of the contract arose. Eventually Public Housing Ltd. sues Syarikat Bina for breach of contract. Public Housing Ltd. intends to adduce in evidence that on several occasions Syarikat Bina had failed to perform three terms of the contract, although they had been making regular payments through their nominated bank, which has records of the transaction in their computer. Syarikat Bina in their defense allege that Public Housing Ltd. cannot adduce evidence of the alleged breach of the several terms, because none of them were found in the written agreement. It also intends to prove by computer-transacted records, that Public Housing Ltd. had not made the progress payments according to the agreed schedule. Advise both the parties, how they should prove their case under the Evidence Act, supporting your answer with leading judicial authorities. (15 Marks)

Issue 1: Parol evidence rule?

Issue 2: Computer generated document?Admissibility of documents produced by computers: This is governed by section 90A. Section 90A (1) provides “In any criminal or civil proceeding a document produced by a computer or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement”. The conditions for its admissibility are the document produced by a computer. See section 3 and 90A (5) & the document was produced by the computer in the course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 namely it may be proved by the production of the certificate (See section 90A (2), (3) & (4) and it may be proved by calling a witness.

See PP v Ong Cheng Heong [1998] 6 MLJ 678, Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240, PP v Azman Ismail [2007] 10 CLJ 469, Ahmad Najib Aris v PP [2007] 2 CLJ 229, Hanafi Mat Hassan v. PP [2006] 3 CLJ 269, R v. Shepherd [1993] 1 All ER 225, Schmidt Scientific Sdn Bhd v. Ong Han Suan & ORS [1998] 1 CLJ 685 & PP v. Gurdial Singh Get Singh [2005] 6 CLJ 272.

Document produced by a computer is also primary evidence. Suatu dokumen yang dikeluarkan oleh computer adalah keterangan primer (See section 63 explanation (huraian) 3. Sections 90A and 90B to prevail over other provisions of this Act, the Banker's Books Evidence Act 1949, and any written law: Section 90C and case of Bank Utama (Malaysia) Bhd v Cascade Travel & Tours Sdn Bhd [2000] 4 MLJ 582.

The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document. Reference to the Malaysian position under section 91 to 99 of the Act & Per Augustine Paul JC in judgment in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329 stated that “The best evidence about the contents of a document is the document itself and it is the production of the document that is required by s 91 in proof of its contents. In a sense, the rule enunciated by s 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act 1950. Section 92 applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s 91. In other words, it is after the document has been produced to prove its terms under s 91 that the provisions of s 92 come into operation to exclude evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92, in effect, supplement each other. Section 91 would be frustrated without the aid of s 92 and s 92 would be inoperative without the aid of s 91. Since s 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under s 91, it may be said that it makes the proof of the document conclusive of its contents. Like s 91, s 92 also can be said to be based on the best evidence rule”. Reference can be made to the case of Bai Hira Devi v Official Assignee AIR 1958 SC 448; Inspector General of Police & Anor v. Alan Noor bin Kamat [1988] 1 MLJ 260 & Ah Mee v PP [1967] 1 MLJ 220,

Exceptions: Section 92 of the Act comes into operation after the document has been produced for the purpose of excluding evidence of any oral agreement or statement to contradict, vary, add to or subtract from its terms. Section 92 provides that “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”.

1st exception: The vitiating factors: The word viatiating or vitiate means to make (a contract) ineffective or invalidate. Section 92 proviso (a) provides that “any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law”. Cases: Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385; NS Narainan Pillay v The Netherlandsche Handel Maatschappij [1934] MLJ 227; Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35 & Hong Kong & Shanghai Banking Corporation v Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449.2nd exception: Collateral warranty: Section 92 proviso (b) provides “the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document”. Cases Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193; Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221; Ang Kim Leng v Koh Tze Kad [1996] 3 SLR 41; Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89, [1980] 2 MLJ 16 & Tan Chong & Sons Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220. 3rd exceptions: Condition precedent: Section 92 proviso (c) provides “the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved”. Cases: Ganesan v Baskeran [1986] 2 MLJ 26.4th exception: Condition subsequent: Section 92 proviso (d) provides that “the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents”. Cases: Wong Juat Eng v Then Thaw Eu [1965] 2 MLJ 213: Voo Min En v Leong Chung Fatt [1982] 2 MLJ 24 & Teo Siew Peng v Guok Sing Ong [1983] 1 MLJ 132.5th exception: Custom: Section 92 proviso (e) provides that “any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract”. Cases: Cheng Keng Hong v Government of Federation of Malaya [1966] 2 MLJ 33 & London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958]1 WLR 661.6th exception: The document historical backround and surrounding circumatnces that leads to its creation: Parties can give historical background to discover the nature of the contract but cannot adduce pre negotiation transaction to discover the intention of the parties. See Keng Huat Film S/B v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 cited Prenn v Simmonds [1971] 3 All ER 237 and Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114. 7th exception: Recital of contract: Cases: Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290 & Sah Lal Chand v Indarjit [1899-1900] 27 IA 93.

TUTORIAL QUESTION NO. 4a) Discuss the nature of the parol evidence rule and the ways to get

around it. Illustrate your answer by reference to the Evidence Act 1950 and relevant cases. (9 Marks)

b) Syarikat sabu concludes a contract with Syarikat Murni for the purchase of goods worth RM500,000. The date of delivery was an essential term of the contract, but however this was not mentioned in the agreement. Nevertheless, a sales representative of Syarikat Murni orally assures Syarikat Sabu that the goods will be delivered within three months of the conclusion of the contract. This oral assurance is not included in the written contract. Consider whether oral evidence may be adduced to prove otherwise. Illustrate your answer by reference to the Evidence Act 1950 and relevant cases. (6 Marks)

Issue 1: Parol evidence rule?The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document. Reference to the Malaysian position under section 91 to 99 of the Act & Per Augustine Paul JC in judgment in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329 stated that “The best evidence about the contents of a document is the document itself and it is the production of the document that is required by s 91 in proof of its contents. In a sense, the rule enunciated by s 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act 1950. Section 92 applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s 91. In other words, it is after the document has been produced to prove its terms under s 91 that the provisions of s 92 come into operation to exclude evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92, in effect, supplement each other. Section 91 would be frustrated without the aid of s 92 and s 92 would be inoperative without the aid of s 91. Since s 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under s 91, it may be said that it makes the proof of the document conclusive of its contents. Like s 91, s 92 also can be said to be based on the best evidence rule”. Reference can be made to the case of Bai Hira Devi v Official Assignee AIR 1958 SC 448; Inspector General of Police & Anor v. Alan Noor bin Kamat [1988] 1 MLJ 260 & Ah Mee v PP [1967] 1 MLJ 220,

Exceptions: Section 92 of the Act comes into operation after the document has been produced for the purpose of excluding evidence of any oral agreement or statement to contradict, vary, add to or subtract from its terms. Section 92 provides that “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”.

1st exception: The vitiating factors: The word viatiating or vitiate means to make (a contract) ineffective or invalidate. Section 92 proviso (a) provides that “any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law”. Cases: Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385; NS Narainan Pillay v The Netherlandsche Handel Maatschappij [1934] MLJ 227; Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35 & Hong Kong & Shanghai Banking Corporation v Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449.2nd exception: Collateral warranty: Section 92 proviso (b) provides “the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document”. Cases Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193; Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221; Ang Kim Leng v Koh Tze Kad [1996] 3 SLR 41; Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89, [1980] 2 MLJ 16 & Tan Chong & Sons Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220. 3rd exceptions: Condition precedent: Section 92 proviso (c) provides “the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved”. Cases: Ganesan v Baskeran [1986] 2 MLJ 26.4th exception: Condition subsequent: Section 92 proviso (d) provides that “the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents”. Cases: Wong Juat Eng v Then Thaw Eu [1965] 2 MLJ 213: Voo Min En v Leong Chung Fatt [1982] 2 MLJ 24 & Teo Siew Peng v Guok Sing Ong [1983] 1 MLJ 132.5th exception: Custom: Section 92 proviso (e) provides that “any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract”. Cases: Cheng Keng Hong v Government of Federation of Malaya [1966] 2 MLJ 33 & London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958]1 WLR 661.6th exception: The document historical backround and surrounding circumatnces that leads to its creation: Parties can give historical background to discover the nature of the contract but cannot adduce pre negotiation transaction to discover the intention of the parties. See Keng Huat Film S/B v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 cited Prenn v Simmonds [1971] 3 All ER 237 and Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114. 7th exception: Recital of contract: Cases: Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290 & Sah Lal Chand v Indarjit [1899-1900] 27 IA 93.

Issue 2: Proviso (b) section 92?Section 92 proviso (b) provides “the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document.In Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193, the Federal Court said that in considering whether this proviso applies, regard is to be had to the nature of the written agreement and its surrounding circumstances. Depends on the background, nature or history of the agreements, the more formal the agreement the less ready the court will allow a collateral agreement to vary or contradict the written instrument. See also Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221.In Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89, [1980] 2 MLJ 16, where it was Held: (1)   as the defendants had paid tea-money to the plaintiffs, and as the payment was induced and encouraged by the plaintiffs in that the defendants would be allowed to remain in occupation for as long as they desired on payment of the monthly rent, an equity had been created and the defendants were entitled to occupy the premises for a term of years to be determined, provided they observed the conditions. In Tan Chong & Sons Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, where the learned trial judge found that there had been a warranty and this was breached by the appellants. There was clear evidence that had it not been for the promise of the salesman to deliver him a car complying with the Australian Design Regulations, the respondent would not have signed the Buyer's Order. At the trial several witnesses were called by both sides to prove the existence of the warranty.

TUTORIAL QUESTION NO. 5a) On March 2006, Adil applies for a

declaration in Seremban High Court that his father Rabu who had gone to Bandung in 1996 to visit his (Rabu’s) mother, be presumed dead so that his shares in his property which he has left in Seremban can be properly distributed among Rabu’s children. Advice Adil, who has retained you as his solicitor. (15 marks)

Presumption of death: Requirements?

Section 108 of EA 1950 provides for the Burden of proving that person is alive who has not been heard of for 7 years which states “When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”. This particular section provides that if it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. In Re Gun Soon Thin [1997] 2 MLJ 351, the applicant sought a declaration that his father (Gan Teck Heow), who had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, be presumed dead. Based on the facts of the case and the affidavit evidence, the court held that Gan Teck Heow be presumed dead. Further, the court could take judicial notice of the fact that the Japanese occupation had taken the death toll on the higher scale. The matters that require proof under the section: This section is designed for the purpose of determining whether a man is alive or dead at the time when the question arises in a court or proceeding. The sudden disappearance of a person who then remains missing for a lengthy period of time may give rise, to a presumption of death. If the necessary requirements have been met the person can be deemed dead and have their assets divided via a will. These requirements may include; a) The person has been missing for a period of seven or more years; b) Said absence has gone on consistently without explanation; c) No person's have been contacted by the presumed; and d) The person can not be found with any searches. See Re A Penhas, deceased [1947] MLJ 78.In Re Othman Bin Bachit [1997] 4 MLJ 445, in order to invoke the aid of s 108, two basic facts must be proved. They are: (a)   the person must not have been heard of for seven years; and (b)   this must be by those who would naturally have heard of him, if he had been alive. The first fact to be proved is self-explanatory (clear) while the second requires some elaboration (explanation). A person ‘has not been heard of' if no reliable information concerning him is received. There is no definite rule as to who are the persons who would “naturally” have heard of him, if alive. Generally speaking, they are his close relatives or neighbours (see also cases Doe d’France v Andrews (1850) 15 QBD 756; Ganesh Bux Singh v Mohammad AIR 1944 Oudh 266; Kamlabai v Umabai AIR 1929 Nag 127; & Prudential Assurance Co v Edmonds (1877) 2 App Cas 487).

Presumption of death: Limitations?

Under this section, there is no presumption as to the time of death. In Re Othman Bin Bachit [1997] 4 MLJ 445 it was stated that although a person who has not been heard of for seven years is presumed to be dead, there is no presumption as to the time of his death under section 108. If it is sought to establish the precise period at which a person died then it must be done so by actual evidence like the proof of any other fact. This proposition was laid down by the Privy Council in the case of Lal Chand Marwawi v Mahani Ramrup Gir 42 TLR 159; and the cases of Re Phene’s Trusts (1870) 5 Ch App 139; Re A Penhas, deceased [1947] MLJ 78; & Smt Mathru v Smt Rani AIR 1986 HP 6.Absconded: In R Muthu Thambi v K Janagi [1955] MLJ 47, the respondent (Janagi) had in 1929 married a man who after two years absconded (run away) to India. There had been no news from him. In 1940 respondent went through a ceremony of marriage with appellant. Later on they divorced and she sued for maintenance. The appellant said he is not bound to pay the maintenance because there is bigamous marriage (not valid marriage). However Janagi part argued that there was a presumption of death. However it was rejected by the court since in this case, Janagi tried to argued on the specific time of death and the fact that the first husband had only absconded to India (he had no intention to communicate), so the presumption cannot apply. See Watson v England 60 ER 266 and Bowden v Henderson 65 ER 437 where if a person absconded, presumption of death cannot be raised.

TUTORIAL QUESTION NO. 6a) “Testes ponderantur non numerantur”. Briefly explain this

maxim with reference to the Evidence Act 1950. (5 marks)b) B, C, and D are tried for robbing a petrol kiosk at Serdang

Station at about 5.30am. At the time of the robbery, A, a 70 year old man, accompanied by L, his 6 year old grandson, was filling his car with petrol. The prosecution gives the defense counsel a list of witnesses. Among the prospective witnesses in the list are X, one of the suspected robbers and an accomplice of B, C, and D. At the trial, the prosecution call A, to give evidence to identify the alleged robbers; L, who gives unsworn evidence; and X, to confirm its case. Consider the law applicable. (10 marks)

Testes ponderantur non numerantur?

General definition: Corroborating evidence is evidence that tends to support a proposition that is already supported by some evidence. Specific definition: to establish or strengthen evidence by adding information or confirming facts Synonyms: verify, confirm, authenticate, certify, establish, validate, support, substantiate, endorse, sustain, prove… Section 134 of EA 1950 provides that no particular number of witnesses shall in any case be required for the proof of any fact. The result of this section is that in any case, the testimony of a single witness, if believed, is sufficient to establish any fact. The Courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all. See Khaw Cheng Bok v Khaw Cheng Poon [1998] 3 MLJ 457; MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995] 2 MLJ 493; Vadivelu Thevar v State of Madras AIR 1957 SC 614; Ram August Tewari v Bindeshwari Tewari AIR 1972 Pat 142. This section also based on the maxim “Testes ponderantur non numerantur” “Evidence is weight not counted”. The Court is concerned with the quality and not quantity of the evidence. The basis of the section is that if a particular number of witness should be required to prove a particular offence it would hamper the administration of justice because in many cases it is not possible to get more than one witness. However, this section should not be interpreted as a direction to convict on the testimony of a single witness. It does not mean that the Court must act upon the evidence of one witness even if it is unshaken in cross-examination and no way discredited by the witness’s demeanour. See also the case of Long Bin Samat v PP [1974] 2 MLJ 152.\

A?

The Turnbull Guidelines: The danger of miscarriage of justice occuring could be reduced if the trial Judges summed up to the juries the following rules. The guidelines are as follows: 1. Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications 2. The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. See R v. Dickson 25 [1983] V.R. 227; PP v. Chan Choon Keon & Ors [1989] 2 MLJ 427 & Tan Kim Hoo v PP [2007] 6 CLJ 557.

L?

Unsworn evidence of a child: Section 118 & 133A of Ea 1950. Section of 133A deals with the evidence of child witnesses. It provides that where a child of tender years who is called as a witness does not, in the opinion of the court, understand the nature of an oath he may give unsworn evidence if the court is satisfied that he is possessed of sufficient intelligence to justify the reception of the evidence and understand the duty of speaking the truth. It must be noted that this section applies only to unsworn evidence. The unsworn evidence of a child witness must be corroborated: See Sidek Bin Ludan v PP [1995] 3 MLJ 178; Muharam Bin Anson v PP [1981] 1 MLJ 222; Yusaini Bin Mat Adam v PP [1999] 3 MLJ 582; R v Hayes (1977) 64 Cr App R 194; Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ 397; Public Prosecutor v Chan Wai Heng [2008] 5 MLJ 798; Chao Chong & Ors v PP [1960] MLJ 238; Loo Chuan Huat v PP [1971] 2 MLJ 167; Tham Kai Yau & Ors v PP [1977] 1 MLJ 174; Shanmugam a/l Munusamy v PP [1999] 1 MLJ 288; & PP v Mohammad Terang Bin Amit [1999] 1 MLJ 154.

X?Section 133: Section 114 Illustration (b): The corroborative effect of these 2 sections is that while it is not illegal to convict a person on uncorroborated testimony of the accomplice, section 114(b) provides that a judge must caution himself of the dangers of convicting uncorroborated evidence of an accomplice. See R v Lim Yam Hong [1919] 14 SLR 152; R v Baskerville [1916] 2 K.B.; R.v. Atwood [1787] 1 Leach 464; R. v. Stubbs [1855] Dears 555; In re Meunier [1894] 2 Q.B. 415; R. v. Tate [1908] 2 K.B. 680); Syed Jaafar v R [1948] MLJ 148; Tay Choon Nam v R [1949] MLJ 157; Jegathesan v PP [1980] 1 MLJ 165; Daud bin Awang Ngah & Ors v PP [1958] MLJ 168; Tan Cheng Seng v R [1948] MLJ 148; Seah Chay Tee v Public Prosecutor (1948) MLJ 77; Davies v DPP [1954] AC 378); Re Soot Leot [1956] MLJ 54 & PP v Nomezam Apandy bin Abu Hassan (No 2) [2008] 1 MLJ 68.

TUTORIAL QUESTION NO. 7a) Discuss the principles, categories, and scope of estoppel under

the Evidence Act 1950. Illustrate your answer with leading local cases and relevant legal provisions. (9 marks)

b) Holland Lady Bhd, a supplier of dairy products, reaps high profits in the year 2002 and intends to declare 50% dividends and bonus to be paid to shareholders. However in February 2003, Tenaga Kilat (a statutory public utility company) sent a supplementary electricity bill (for the year 2001) of RM500,000 to Holland Lady Bhd stating that its meter-reader had mistakenly undercharged Holland Lady Bhd. Counsel for Holland Lady Bhd refuses to pay the extra charges relying on estoppel. Consider whether the plea can be entertained. (6 marks)

Q (a): Principles of estoppelEstoppel is a legal doctrine recognised both at common law and in equity in various forms. It is meant to complement the requirement of consideration in contract law. This term appears to come from the French estoupail or a variation, which meant "stopper plug", referring to placing a halt on the imbalance of the situation. The term is related to the verb "estop" which comes from the Old French term estopper, meaning "stop up, impede". In general it protects a party who would suffer detriment if: a) The defendant has done or said something to induce an expectation b) The plaintiff relied (reasonably) on the expectation... c) ...and would suffer detriment if that expectation were false. English law defines it as: "a principle of justice and of equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to so." See Moorgate Mercantile v Twitchings [1976] 1 QB 225, CA at 241. Per Lord Denning MR & Dawsons Bank v Nippon Menkwa Kabushiki Kaisha LR 62 IA 100.“Estoppel is not rule of evidence. It is not a cause of action. It is a principle of justice and of equity” Per Choor Singh J in Industrial & Commercial Realty Co Ltd v Merchant Credit Pte Ltd [1980] 1 MLJ 208. (See also Bousted Trading Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 3 MLJ 331).

Peh Swee Chin J said in Syarikat Batu Sinar Sdn Bhd v UMBC Finance Berhad [1990] 3 MLJ 468, estoppel is of three kinds, that is (a) estoppel by record; (b) estoppel by deed; and (c) estoppel by conduct. Estoppel by record (Section 40-44 of EA 1950): The doctrine of estoppel by record precludes a party from denying the issues adjudicated by a court of competent jurisdiction. The doctrine prevents a party from re-litigating a matter or from litigating what it might have litigated in a previous case. The civil law use of issue estoppel or res judicata (literally translated as the fact has been decided) is relatively uncontroversial. It expresses a general public interest that the same issue should not be litigated more than once. (See Order 14 Rule 14 (1) of the Subordinate Courts Rules 1980 and Order 18 Rule 8(1) of the Rules of the High Court 1980). The criminal law application, called double jeopardy, provides that a person should not be tried twice for the same offence. At common law a defendant can plead autrefois acquit or autrefois convict meaning the defendant has been acquitted or convicted of the same offense. (Section 302 (i) of CPC).Estoppel by deed (Section 116 of EA 1950): (See Terunnanse v Terunnanse [1968] 2 WLR 1125) Estoppel by deed is as described by Bayley J in Baker v Dewey [1823] 1 B & C 704: “A party who executes a deed is estopped in a court of law from saying that the facts stated in the deed are not truly stated”. It prevents a litigant from denying the truth of what was said or done. Estoppel by representation (Section 115 of EA 1950): Raja Azlan Shah FJ in Public Textiles Bhd v Lembaga Letrik Negara [1976] 2 MLJ 58 “That, where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time”. (See Commissioner of the Malacca v Sinniah [1974] 1 MLJ 77; V Veeriah v GM KTM [1974] 1 MLJ 201;& Muthiah v Lee Kor Fan [1966] 1 MLJ 105)

Q (a): Categories of estoppel

Q (a): Scope of estoppelEstoppel by record: In order to successfully maintain a plea of res judcicata certain conditions must be satisfied. They are generally stated by Gill J in Lee Sem Yoong v Leong Yoong [1967] 2 MLJ 86 namely “For the doctrine of res judicata to apply, a defendant has to show that there was a former suit between the same parties for the same matter and upon the same cause of action, and also that the matter directly and substantially in issue has been heard and finally decided by the court which heard it”. See also Xiamen International Bank v Sing Eng (Pte) Ltd [1993] 3 SLR 228. See OCBC Bank (M) Bhd v Kredin Sdn Bhd [1997] 2 MLJ 372; Tengku Azmi Bin Tengku Yusof v Tengku Ahmad Bin Tengku Abdul Ghaffar [1982] 1 MLJ 78; & Cheng Hang Guan v Perumahan Farlim (Penang) Sdn Bhd [1988] 3 MLJ 90.Estoppel by conduct: Estoppel cannot be set up to prevent a statutory body to perform its statutory duty: In Public Textile Bhd v LLN [1976] 2 MLJ 58. Whether there can be estoppel against a statute: Per Grimberg JC in Foo Loong Lithographer Pte Ltd v Mun Hean Realty Pte Ltd [1989] 2 MLJ 80; Bradshaw v M'Mullan [1920] 2 IR 412; Oversea Chinese Banking Corp Ltd v eastern Auto Co Ltd [1961] MLJ 300; Puran Singh v Kehar Singh [1939] MLJ 71; & Chew Geok Lin v Pau Ping Kwong [1965] MLJ 25.Estoppel by deed: See Terunnanse v Terunnanse [1968] AC 1086 & Singma Sawmill Co Sdn Bhd v Asian Holding (Industrialized Buildings) Sdn Bhd [1980] 1 MLJ 21. The Federal Court in Tay Cheo v Chow Ngia [1967] 1 MLJ 281 said that while a tenant is estopped from denying the landlord’s title he could, if he wished, challenge the validity of the tenancy agreement on the ground of fraud, misrepresentation or probable mistake in order to show that he and the landlord do not stand in the relationship of landlord and tenant. The tenant cannot contend that the agreement was void because because the landlord had no title to the land.

Q (b): Plea on estoppel?Estoppel cannot be set up to prevent a statutory body to perform its statutory duty: In Public Textile Bhd v LLN [1976] 2 MLJ 58 where it held that the plea of estoppel by representation cannot be pleaded against a public corporation on which there is imposed a statutory duty to carry out certain acts in the interest of the public. See Maritime Electric Co Ltd v General Dairies Ltd [1937] 1 All ER 748; The Queen v Blenkinsop [1892] 1 QB 43; & Commissioners of Customs and Excise v. Hebson Ltd. [1953] 2 Lloyds Rep. 382. In Kok Hoong V. Leong Cheong Kweng Mines Ltd. [1963] 1 LNS 61 the Privy Council had occasion to consider Maritime Electric Co.’s case with reference to the plea of estoppel in the face of a statute and explained it in this way (p. 308): “Thus a corporation on which there is imposed a statutory duty to carry out certain acts in the interest of the public cannot preclude (prevent) itself by estoppel in pais from performing its duty and asserting legal rights accordingly."

TUTORIAL QUESTION NO. 8a) The modern law relating to lawyer-client privilege is considered

under two heads. Explain with help of relevant cases, and the relevant provisions of the Evidence Act 1950. (8 marks)

b) Milo sues Caring Nursing Home for causing the death of his mother. He alleges that Sally, a nurse on duty administered a drug overdose. Milo’s counsel intends to adduce in evidence a report for Nursing Home’s Insurers after the death of Milo’s mother in which other staff gave evidence that there was poor management in the Nursing Home and many bottles were mislabeled. The report was also sent to the Nursing’s Home’s lawyer Pandai. Arju, Milo’s neighbour who works as a clerk for Pandai took a secret photocopy of the report and sent it anonymously to Milo. Advise on the admissibility of the two reports. (7 marks)

a) Legal professional privileges?There are two forms of legal professional privilege (S.126 EA 1950), which apply to differing groups of people:a) Legal Advice Privilege: legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. For legal advice privilege to apply, the communications in question must be with a professional legal adviser with the sole or dominant purpose of giving or obtaining legal advice. See Three Rivers District Council v Bank of England (No 5) [2004] 3 WLR 1274 where Lord Scott (at p.1287) & Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1972] 2 QB 102. The test for legal advice privilege is to establish whether the communication in question was made confidentially for the purpose of legal advice – construing (interpret/read) such purposes broadly. See Belabel v Air India [1988] Ch 317. Here, Taylor L.J. (at pp. 329-330).b) Litigation Privilege/work product privilege: litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated. Unlike legal advice where it is only a privilege from disclosure attaches to communications for the purpose of giving and obtaining legal advice and it is immaterial whether or not the possibility of litigation were even contemplated (consider). It is sufficient if they pass as professional communications in a professional capacity. See Wheeter v Le Merchant (1881) 17 ChD 675; Waugh v. British Railway Board [1980] AC 521; Hellenic Mutual War Risks Association v. Harrion (The Sagheera), judgment delivered in 18 October 1996. NLJ Nov. 22 (1996) p. 1687. The High Court of Australia has adopted the stricter sole purpose test in Grant v. Downs [1976] 135 CLR 674. New Zealand has adopted the dominant purpose test not the stricter sole purpose test. See Guardian Royal Exchange of New Zealand v. Stuart [1985] 1 NZLR 596 - at 602. In Malaysia: See the case of Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357; Yap Hong Choon v Dr Pritam Singh [2006] CLJ 842 & Faridah Ariffin v Dr Lee Hock Bee & Anor [2006] 1 CLJ 660.

b) A report for nursing home insurers?Litigation Privilege: See Waugh v. British Railway Board [1980] AC 521; Hellenic Mutual War Risks Association v. Harrion (The Sagheera), judgment delivered in 18 October 1996. NLJ Nov. 22 (1996) p. 1687; Grant v. Downs [1976] 135 CLR 674; Guardian Royal Exchange of New Zealand v. Stuart [1985] 1 NZLR 596 - at 602; Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357; Yap Hong Choon v Dr Pritam Singh [2006] CLJ 842 & Faridah Ariffin v Dr Lee Hock Bee & Anor [2006] 1 CLJ 660.

b) A secret photocopy of the report?The issue of secondary evidence: The rule of evidence as explained in Calcraft v Guest [1898] 1 QB 759 merely amounts to this, that if a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means, and even, it may be, by criminal means. However according to the case of Lord Ashburton v Pape [1913] 2 Ch 469, although a copy improperly obtained, the owner of the original can successfully promote proceedings against the person who has improperly obtained the copy to stop his using it.

TUTORIAL QUESTION NO. 9a) Ravi, a nine year old son of Dr. Sam is badly injured in a playground

incident in a Government Primary School, in Ipoh. Dr. Sam sues the school. An internal report was prepared by the Ministry of Education as part of its routine inspection of primary schools. In this report, the Education Ministry indicates its concern about the management procedures and about the lack of proper maintenance of the school playgrounds at the school. The Education Ministry claims that the report is covered by public interest immunity, because to disclose it would prejudice the conduct of future inspections in that it would discourage witnesses from giving evidence. A mole in the ministry sent a photocopy of the key sections of the reports to the pressure group, “Concern Watch” which is helping Dr. Sam and they have offered to let her have a copy. Discuss the relevant law applicable. Illustrate your answer with relevant cases. (15 marks)

The report is covered by PII?See section 123 & 162 of EA 1950. Section 123 deals with the state/crown/state/public interest immunity privilege. It provides that no person shall be permitted to produce any unpublished official records relating to affairs of state or give evidence derived therefrom. However, he may do so with the permission of his head of department, who shall give or withhold permission as he thinks fit. The head of department is subject to the control of a Minister in the case of a Federal Department and the Chief Minister in the case of a State Department. This section must be read with section 162 of the Act which provides for the Production of documents and their translation. See BA Rao v Sapuran Kaur [1978] 2 MLJ 146 & Wix Corporation South East Asia Sdn Bhd v Minister of Labour & Manpower [1980] 1 MLJ 224When there is a clash between the public interest (1) that harm should not be done to the nation or the public service by the disclosure of certain documents and (2) that the administration of justice should not be frustrated by the withholding of them, their production will not be ordered if the possible injury to the nation or the public service is so grave that no other interest should be allowed to prevail over it, but, where the possible injury is substantially less, the court must balance against each other the two public interests involved. When the Minister’s certificate suggests that the document belongs to a class which ought to be withheld, then, unless his reasons are of a kind that judicial experience is not competent to weigh, the proper test is whether the withholding of a document of that particular class is really necessary for the functioning of the public service. If on balance, considering the likely importance of the document in the case before it, the court considers that it should probably be produced, it should generally examine the document before ordering the production. See Conway v Rimmer [1968] 2 AC 910 & Burmah Oil Co Ltd v Bank of England [1980] AC 1090 Third school: Inspection of the said document is permitted. In the State of Uttar Pradesh v Raj Narain AIR 1975 C 865 the Supreme Court took the following stand that the courts can inspect the document and decide if it relates to affairs of state or not. The court can examine the documents and can override the Head of Department concerned if it comes to conclusion that disclosure would not be harmful to the public interest. The high-water mark of Raj Narain's, supra, case is the clear acceptance of the principle by the court that affidavit evidence claiming privilege is not conclusive and the court has power to inspect the document to satisfy itself that it requires protection. By using this approach, the court can keep a watch over the executive to ensure that the privile is not being abused, it make the job easier for the judge because they can look at the document itself, and it brings the law in line with most of Commonwealth countries.Malaysia context?: In Gurbachan Singh v PP [1966] 2 MLJ, where it was held that: (1)   in cases where the Minister claims privilege over a class of documents, the court can inspect the document in question to ascertain whether in point of fact its production in court would be injurious to the public interest and as in this case the court after inspecting the contents of file had come to the conclusion that they do not substantially relate to affairs of State nor give any reasonable grounds for believing that the production of the file would be injurious to the public interest, it would order the production of the file. In BA Rao v Sapuran Kaur [1978] 2 MLJ 146, Raja Azlan Shah in the Federal Court adopted the third approach. He said: “In this country, objection as to production as well as admissibility contemplated in sections 123 and 162 of the Evidence Act is decided by the court in an enquiry of all available evidence. This is because the court understands better than all others the process of balancing competing considerations. It has power to call for the documents, examine them, and determine for itself the validity of the claim”.

Photocopy of the key sections of the report?The issue of secondary evidence: Rogers v Secretary of State for Home Dept [1972] 2 All ER 1057 where it was stated “Neither the letter nor the chief constable’s copy of it should be produced; both belonged to a class of documents which should be protected; the ground on which protection could be claimed was not that the Crown had any privilege in the matter but that the public interest required that communications to the board about the character, reputation and financial standing of applicants for certificates of consent should be immune from disclosure in order that the board might, in the performance of its statutory duty, obtain from varying sources the fullest possible information about applicants without the persons volunterring such information being afraid of repercussions”.

TUTORIAL QUESTION NO. 10a) The general judicial view is that the term burden of proof is used in two

meanings. Explain this briefly, with reference to decided cases and the relevant provisions of the Evidence Act 1950. (6 marks)

b) (i) J and B are charged and tried, for burglary of premises No. 7, Jalan Hang Jebat, Gombak. J pleads alibi and B pleads self-defense. Discuss the quantum of evidence which the respective parties must discharge in order to succeed. (3 marks)

c) (ii) Tallon alleges that his nephew Siva, has obtained his title deeds to his shophouse in Subang by fraud and by forging the title deeds, he has registered the property into his (Siva’s name). Siva denies this. How much evidence must Tallon adduce in order to succeed in his allegations? (3 marks)

d) (iii) The prosecution case is based wholly or substantially on circumstantial evidence. State the quantum of evidence required for the prosecution to succeed. (3 marks)

Burden of proof?

Per Salleh Abas FJ in International Times v Leong Ho Yuen [1980] 2 MLJ 86 states “For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used. The first sense, signified by the expression burden of proof such as referred to in s. 101 of the Evidence Act is the burden of establishing a case and this rests throughout the trial on the party who asserts the affirmative of the issue. The appellants in the present appeal relied on justification and fair comment. Therefore, the burden of proving these defences rests entirely upon them (Gatley on Libel and Slander, 7th Edn. paras. 351 and 354). The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss. 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail. See Aziz Bin Muhamad Din v PP [1996] 5 MLJ 473

Fraud & forgery?In Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Azmi FCJ. Stated “Where the allegation of fraud in civil proceedings concerns criminal fraud such as conspiracy to defraud, or misappropriation of money or criminal breach of trust, it is settled law that the burden of proof is the criminal standard of proof beyond reasonable doubt, and not on a balance of probabilities. However, where the allegation is entirely founded on a civil fraud and not on a criminal conduct or offence, the civil burden is applicable”. Fraud smells of crime, so how come you divide it as civil and criminal. There is a problem to distinguish it. In Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd. [2000] 4 CLJ 464, per Ian HC Chin J: “The distinction between civil fraud and criminal fraud cannot hold. It is an attempt at distinguishing the undistinguishable. “Fraud” has the same meaning whether in criminal or civil cases. In this case, the standard of proof must be proof beyond reasonable doubt.” Current position:- It is now settled law that the standard of proof required for an allegation of fraud in civil proceedings must be one of beyond reasonable doubt and not on balance of probabilities. (See: Asean Security Papers Mills Sdn Bhd v. CGU Insurance Bhd [2007] 2 CLJ 1 (Federal Court); and Yong Tim v. Hoo Kok Chong & Anor [2005] 3 CLJ 229 (Federal Court). However, for forgery in bank charges, the Supreme Court in applying the civil burden of proof held in United Asian bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, following Sykt Islamiyah v Bank Bumiputra Malaysia Bhd [1988] 3 MLJ 218 “The standard of proof required in a case of forgery on the facts of such a case as the one before the Court is not that of beyond reasonable doubt, but of a balance of probabilities”. See also Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ 17.

Circumstantial evidence?

When the case is depends wholly or substantially on circumstantial evidence: In McGreevy v DPP [1973] 1 W.L.R. 276, the Court of Criminal Appeal of Northern Ireland said: “Whether at a criminal trial with a jury, in which the case against the accused depends wholly or substantially on circumstantial evidence, it is the duty of the trial judge not only to tell the jury generally that they must be satisfied of the guilt of the accused beyond reasonable doubt. See also Dato Mokhtar Bin Hashim v PP [1983] 2 MLJ 232; Karam Singh v PP [1967] 2 MLJ 25; Chang Kim Siong v PP [1968] 1 MLJ 36; Chan Chwen Kong v PP [1962] MLJ 307; Jayaraman & Ors v PP [1982] 2 MLJ 306 (FC); Ng Thian Soong v PP [1990] 2 MLJ 148 (SC); & PP v Syed Muhamad Faysal Bin Syed Ibrahim [2004] 6 MLJ 302.

Plea of alibi?

The court held in Jayasena that if there is an allegation on a particular fact, to rebut that fact the quantum of proof is on a balance of probability. This was also held in Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232 (FC), where the accused relies on the defence of alibi, then he has the legal burden to prove his defence.

Self-defense?

Since the decision of Jayasena v R [1970] AC 618, [1970] 1 All ER 219 it has been accepted by all the courts in Malaysia that the burden imposed by section 105 on the accused is a legal burden to prove his defence (must prove the case on balanced of probabilities). The counsel for the appellant submits that the burden imposed by section 105 is actually the evidential burden (must proof the case beyond reasonable doubt), is the burden of adducing some evidence in support of the case. The argument is that the code should be interpreted in the light of Woolmington v DPP. This argument has been decisively rejected by the Supreme Court of Ceylon in the case of R v Chandrasekera (1942) 44 NLR 97.

EVIDENCE IITUTORIAL QUESTIONS.

FINISH…

• Thank you very much for your cooperation

throughout the semester for our tutorial…

•In my eyes, all my students are smart,

unique, full of hope & potential…

Thank you,Have a nice & enjoyable

weekend…

I'm sure you will do very well…Nancy.