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Chapter 2 - Preliminary PHANG MOH SHIN v COMMISSIONER OF

Matters The rules of evidence are not applicable to
domestic tribunal ..

APPLICATION OF EA Judicial Proceeding
The main source of the law of Evidence Definition of judicial proceedings:
in Malaysia is the Evidence Act 1950. Section 2 CPC - any proceedings in
It has general application to all the course of which evidence is or
persons regardless to race or religion. may be legally taken


I: Whether S 112 EA applied to Muslims, I : Whether inquest is considered as a
bear in mind that in Islam, the legitimacy of judicial proceeding?
a child depends on the date he was S 122 EA - Communications during
conceived. marriage
H: Evidence Act is a statute of general A person cannot be compelled to disclose
application, and that all the inhabitants of any communication made to him or her
FMS are subject to it, whatever may be during marriage without the consent of the
their race and religion. However, it only other except : in civil suits or criminal
apply to civil court and not Syariah proceedings, between the husband and
court due to S 121(1A) FC where civil wife against each other.
courts shall have no jurisdiction on P: If an inquest is a judicial proceeding
matter within the jurisdiction of EA apply S 122 apply x answer
Shariah court If an inquest is not a judicial proceeding
EA x apply S 122 x apply must answer
MOHAMED SYEDOL ARIFFIN V YEOH OOI H: S 122 EA does not apply to inquiry
GARK [1916]1 MC 165 into the death
The illustration to the sections are relevant
and of value in the interpretation of the Judicial proceeding - 2 or more
sections. It is not part of the law but there parties to determine rights and
act as an important guideline liabilities
Inquest - an investigation
Application of EA
Section 2 EA - Extent: Affidavits
This Act shall apply to all judicial
proceedings in or before any court, BUT Definition of affidavits:
NOT to affidavits presented to any court or A sworn statement made in writing
officer nor to proceedings before an which is made under oath before an
arbitrator authorised person such as
commissioner of oath/magistrate statement
which can be tendered in Judicial - at the trial of an action commenced
Proceedings as evidence by writ, evidence-in-chief of a
witness shall be given by way of
General Rule: Evidence before the court witness statement and, unless the
should be oral evidence given by Court otherwise orders or the parties to
witness in open court the action otherwise agree and subject
to such directions as the Court may
Sec. 2 EA - this act shall apply to all make, such a witness shall attend
JP in or before any court, but not to trial for cross-examination and, in
affidavits presented to any court or default of his attendance, his witness
officer nor to proceedings before an statement shall not be received in
arbitrator evidence except with the leave of the

Malaysia Bulding Society Bhd v

Univein SB - EA does not apply to
affidavits, therefore reaffirmed S.2

Order 38, Rule 1 ROC - any facts to

be proven at the trial shall be
proved by the examination of the
witness in open court.

Sec. 59 EA - all facts, except

contents of documents, may be
prove by oral evidence

Sec. 60 EA - Oral evidence shall in

all cases whatever be direct ;
a) if fact seen, must be evidence of
witness who saw it
b) If fact heard, must be evidence of
witness who heard it
c) If perceived by any sense , it must be
evidence of witness who perceived it
d) If opinion, must be evidence from
person who gives evidence

Exception: EA does not apply to affidavit

but rules of evidence derived from
other sources will apply to
affidavits such as ROC and CPC
O. 38 R.2 ROC - Evidence by witness
(M) SB
Sec. 32 EA EA not intented to apply to proceedings
- Statements, written or verbal, of before an arbitrator...
relevant facts made by a person who
is dead or who cannot be found, or
who has become incapable of
giving evidence, or whose
attendance cannot be procured
without an amount of delay or
expense which under the
circumstances of the case appears to
Other sources of the Law of
the court unreasonable, are themselves Evidence
relevant facts...
1. Criminal Procedure Code
Section 73A EA - Admissibility of 2. Rules of Court 2012 (ROC 2012)
documentary evidence in civil cases, 3. Other Statutes - (Dangerous Drugs Act
etc. 1952, Kidnapping Act 1961, Malaysian
- in any civil proceedings where Anti - Corruption Commission Act 2009)
direct oral evidence of a fact would be 4. Common Law
admissible, any statement made by
a person in a document and To what extent can reference
tending to establish that fact shall,
on production of the original document,
be made to the Common
be admissible as evidence of that Law?
fact if the following conditions
JAYASENA V R [1970]1 AER 219 PC
Interlocutory applications - Reference to CL can only be made if EA is
dispose by purely affidavit evidence not clear or silent on the disputed matter

PP V YUVARAJ (1969) [1969]2 MLJ 89 PC

Arbitrator Law of evidence contain in the EA. The Act
Arbitrator is not bound by the strict shall prevail over any other law unless the
rules of evidence and it is not a valid Act is silent or unclear, therefore reference
objection to the proceedings if he can be made to CL as CL principal will
had departed from some technical guide us
rule of the EA
Departure from the law of evidence
does not itself amount to
misconduct unless the rule of
evidence violated is one premised on
natural justice or the breach is obvious
infringement of justice and fairness


B) FACTS [1999]3 CLJ 313
F: The accused, the former Deputy Prime
Section 5 EA - Evidence may be given Minister and Minister of Finance, Malaysia,
of facts in issue and relevant facts was charged with four counts of corrupt
practices under s. 2(1) of the Emergency
(Essential Powers) Ordinance No. 22 of
1970. In essence, the charges, as
1. Facts in Issue amended, alleged that the accused, while
Section 3 EA - any fact from which, being a Member of the administration, had
either by itself or in connection with unlawfully used his public position to his
other facts, the existence, non- advantage, in that he had directed two
existence, nature or extent of any right, senior police officers to obtain four written
liability or disability asserted or denied statements from Azizan Abu Bakar
in any suit or proceeding necessarily ('Azizan') and Ummi Hafilda Ali ('Ummi')
follows denying their allegations of sexual
Sir Rupert Cross: must establish facts in misconduct and sodomy against him, and
issue in order to succeed had by that saved himself from
embarrassment and from criminal
The disputed facts or the facts which proceedings in contravention of s. 2(1) of
need to be proved the Ordinance
- matters which are alleged by one party HELD: The truth or falsity of the allegations
and denied by the other may be stated of sexual misconduct and sodomy is not a
as facts in issue fact in issue. No evidence can thus be led
What facts are in issue ? to establish that the allegations are true or
- it is a question to be determined by the false, as such evidence is irrelevant and not
substantive law or by breach of the law admissible under ss. 5, 7, 8 and 9 of the
of procedure Evidence Act 1950.
Example: A charged with the murder of B. P
must prove: AZILAH HADRI (HC)
- B died The case involve the murder of Altantuya.
- A only caused the death of B The lost of immigration records of the
- A had the intention to cause the death deceased had been tendered as a facts in
of B issue to establish a political conspiracy.
These are facts in issue H: It is not a fact in issue
How to determine what are the facts in
- pleadings, charge, substantive law, 2. Facts Relevant
admission, denial Section 3 EA - one fact is said to be
relevant to another when the one is
connected with the other in any of the
ways referred to in the provisions of this
Act relating to the relevancy of facts.
Rupert Cross: facts which are not the
issue but the existence can be inferred
- any facts from the existence of which
Facts so connected with each other as the judge may infer the existence of a facts
to prove or disprove the facts in issue in issue
Relevant facts are not themselves - it is the evidence of various facts other
issues before the court, but they are than facts in issue that taken together
useful inference regarding the facts in they form a chain of circumstances leading
issue to an inference or presumption of the
Connected facts, because of their principal facts
connection with the principal facts, they
may lead to an inference as to the 3. Oral Evidence
existence and non existence of the facts - evidence of facts brought to the
in issue knowledge of the court by verbal
Example: motive, dying declaration, statements of a witness
conspiracy, judgments, confessions, - oral evidence will only be admissible if the
opinions witness has perceived it by one of his
Section 5 - Section 55 senses
2. Legal relevancy - Section 3 + Section 5 BHD.
EA If a person intends to give oral evidence of
the contents of a documents he must
himself have seen the original document
3. Collateral Facts and not a copy
Can still be admitted
4. Documentary Evidence
Example: Evidence of credibility,
- all documents produced for the
evidence of preconditions inspection of the court
- contents of a document may be proved
by primary evidence and secondary
EVIDENCE 5. Original Evidence
1. Direct Evidence - evidence in material form produced
- evidence which immediately before the court so as to enable the
establishes the very fact in issue court to draw its own conclusion or
Example: A killed B and C witnessed the inference by using its own senses.
Cs testimony is direct evidence to the facts 6. Hearsay Evidence
in issue - Evidence of a witness who have no
- any evidence perceived by a direct knowledge
witness with one of his own senses or
opinion held by himself (expert opinion)
will also be direct evidence

2. Circumstantial Evidence
the best evidence
Evidence which affords greater certainty
of the facts in question
Court had to consider whether the
evidence of alibi, given by the accused was
Omychund v Barker
the best evidence. The best evidence, a
There is but one general rule of evidence,
witness whom the accused should have
the best that the nature of case will admit
called, was not produces or tested
therefore it was held that the weighing the
Should the best evidence rule apply?
credibility of the evidence of the accused, it
a) Admissibility - court only accept the
was weak and conviction was warranted
b) Weight - 2nd choice can be admitted
but reduce in value
Admissibility of summary of account which
was tendered as proof that the appeallant
had owed the respondent a sum of money
F: P arose out of a striptease performances
for works completed. Resp could not
alleged to have been conducted at the
produce the original documents as he did
premise where the appellant carried on
not know of its whereabouts.
business as club proprietors. One of the
H: Must bring original unless destroyed or
exhibits was a film which was a
reconstruction of the performance taken 3
months after the event complained.
H: Court rejected as it was not the best
Section 90A - computer generated
documents. Did not bring the documents
but bring the person who writes the
Appellant was charged with behaving in a
threatening manner. At the hearing, a
H: Best evidence rule.
video-cassette recording which showed the
appellant behavior was admitted in court.
However, only a copy of the recording was
adduced as the original was in the
possession of BBC which has the policy
which did not allow original documents to
leave their premise.
H: Court was not confined to the best
evidence rule but could admit all relevant


Victim was attacked and make a dying
declaration to his uncle, brother and police
officer. But only his uncle and brothers was
called and mention about the matter.
H: Statement by the police office should be