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Malayan Law Journal Articles/2012/Volume 6/SECTION 114A A PRESUMPTION OF GUILT?

[2012] 6 MLJ ciii

Malayan Law Journal Articles

2012

SECTION 114A ... A PRESUMPTION OF GUILT?

MARIETTE PETERS1

THE SECTION
Section 114A, referred to as the Presumption of Fact in Publication was introduced via the Evidence
(Amendment) (No 2) Act 2012 (A1432), which came into force on 31 July 2012. The section reads as follows:

1) A person whose name, photograph or pseudonym appears on any publication depicting himself
as the owner, host, administrator, editor or sub-editor, or who, in any manner, facilitates to publish or
re-publish the publication is presumed to have published or re-published the contents of the
publication unless the contrary is proved.
1) A person who is registered with a network service provider as a subscriber of a network service
on which any publication originates from is presumed to be the person who published or re-published
the publication unless the contrary is proved.
1) Any person who has in his custody or control any computer on which any publication originates
from is presumed to have published or re-published the contents of the publication unless the contrary
is proved.
1) For the purpose of this section --
1. 'network service' and 'network service provider' have the meaning assigned to them in
section 6 of the Communications and Multimedia Act 1998;2 and
1. 'publication' means a statement or a representation, whether in written, printed,
pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.

THE IMPLICATION
The implication of sub-s (1) is that if your name, photograph or pseudonym appears on any publication,
presumably on the internet, representing yourself
6 MLJ ciii at civ
as the publisher, you are presumed to have published the contents of such publication. Thus, if someone
creates as much as an email in your name, you are presumed to have published the contents sent from that
email address, unless you prove otherwise. If you are already the owner of a blog site or website and
someone posts a comment on it, you are presumed to have published it. The implications are the same for
any form of social networking site. You are deemed to have published anything posted on the internet if that
posting is published under your name. This provision may affect internet intermediaries or individuals who
administer, operate or provide spaces for online community forums or discussions.
What may be of concern to many is the phrase 'or who, in any manner, facilitates to publish or republish the
publication' in sub-s (1), as the meaning of 'facilitates' may be very wide, thus capturing categories of
persons who may not even have any specific knowledge of the contents of the publication.
A scrutiny of sub-s (2) may also have far-reaching consequences. If a posting originates from your account
with a network service provider,3 you are deemed to be the publisher unless the contrary is proved. This
could affect restaurant operators who commonly provide free wireless fidelity ('wifi') services. If a person
accesses these free wifi services and posts comments, the restaurant operator is deemed to be the
3

publisher. It must also be remembered that one does not even have to be in the premises of the restaurant to
access such services.
Subsection (2) would even affect individual subscribers who do not secure their wifi account, resulting in
'piggy-back riders'. If those 'piggy-back riders'4 post offensive comments, the subscriber of the account is
presumed to be the publisher.
A further presumption in sub-s (3) relates to the contents that originate from a computer.
6 MLJ ciii at cv
The first aspect of subsection (3) that needs to be emphasised is the meaning of 'computer'. Both the
Evidence Act 19505 ('the Evidence Act') and the Computer Crimes Act 1997 6 define 'computer' as follows:

... an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected
or related devices, performing logical, arithmetic, storage and display functions, and includes any data storage facility
or communications facility directly related to or operating in conjunction with such device or group of such
interconnected or related devices, but does not include an automated typewriter or typesetter, or a portable hand held
calculator or other similar device which is non-programmable or which does not contain any data storage facility.

The definition of computer is intended to encompass a wide array of devices. Text messages sent from a
cell-phone, therefore, would amount to publication that originates from a computer.
The second aspect sub-s (3) is the phrase 'custody or control'. Custody and control are concepts which have
long been debated and they are not necessarily synonymous with ownership. This would, in effect, mean that
you do not have to be the owner of a computer to be deemed to be the publisher of materials that originate
from such computer.
There is also nothing in the subsection which requires that custody or control should be exclusive, thus
broadening the perimeters of those who could fall within the subsection.

THE DEBATE
According to Datuk Seri Mohamed Nazri Aziz, Minister in the Prime Minister's Department, 7 the Evidence
(Amendment) (No 2) Bill 2012 (the Amendment Bill) was tabled to address the issue of internet anonymity
since it is this very fact that makes it extremely difficult, if not impossible, to trace the alleged offender. The
anonymity issue, since time immemorial, has plagued the authorities in their battle to combat cybercrime. In
addressing Parliament during the Second and Third Reading of the Amendment Bill, the Minister
6 MLJ ciii at cvi
expressed his concerns on the issue of anonymity by quoting Professor of Law and Technology at the
University of Dayton, Susan W Brenner:8

A man can be a woman; a woman can be a man. A child can be an adult; a foreigner can pass for a native. All of which
makes the apprehension of cybercriminal that much more difficult.

The challenges in identifying the cybercriminal have been discussed and debated but have been difficult to
deal with, especially with the ever-increasing sophistication of technology. The more complicated the
cybercrimes become, the more challenges the police have in playing 'catch up'. Tracing the offender by using
the internet protocol ('IP') address only assists in tracing and identifying the computer used, but not the
person using the computer; and even then, there are methods in concealing IP addresses. 9
The example cited during the Parliamentary debate is the case of Kenneth Haywood, an expatriate, who was
at that time, residing in Mumbai. In July, 2008, on the day of the Ahmedabad blasts, threatening e-mails from
his IP address were sent to several television stations. Haywood claimed that his computers were hacked,
but preliminary forensic analysis failed to show any evidence of such. Although Haywood was never charged
for any offence, many doubted his innocence.10
The situation involving Kenneth Haywood sparked a debate in India on whether a legal presumption should
be created to hold owners of computers, IP addresses or even e-mail addresses prima facie responsible for
4

anything from which offensive materials may be traced. 11 Although the debate did not culminate in the
enactment of a provision similar to s 114A of the Evidence Act, the rules governing information technology
were made more stringent for internet users and intermediaries with the notification of the Indian Information
Technology (Intermediaries Guidelines) Rules 2011 by the Ministry of Information Technology and
Communications of India under s 79 of the Indian Information Technology Act. 12

THE CONCERNS
6 MLJ ciii at cvii
Section 114A is based on the owner-onus principle. This principle is commonly used in traffic offences where
the owner of the vehicle is guilty of an offence regardless of who was actually driving that vehicle at the time
of the infraction. Some argue that to use the owner-onus principle in the context of technology may not be
suitable as access to one's name, computer, website or wifi is more readily available, thus incentivising cyber
criminals not only to perpetrate offences but to impersonate as well.
Several quarters have expressed their reservations on s 114A because the perception is that the section
tends to impose the burden on a person to prove his innocence as opposed to the prosecution to prove his
guilt. Considering the rampancy of cybercrime, the concern is that reversing the burden in this manner may
perpetuate more crimes.
Section 114A of the Evidence Act is also viewed as an inroad into the freedom of speech as provided in cl 1
of art 10 of the Federal Constitution,13 therefore resulting in internet censorship, which in the opinion of
many, is disallowed by s 3(3)14 of the Communications and Multimedia Act 1998 and Point 7 15 of the
Multimedia Super Corridor (MSC) Malaysia Bill of Guarantees. 16

THE AMBIGUITY
There are several ambiguities surrounding s 114A that have further perpetuated the misconception that it is a
presumption of guilt.

Name, photograph, pseudonym


The reference to name, photograph and pseudonym in s 114A is vague. A pertinent issue is whether a name
includes initials, an abbreviated name and even a pen-name. A person does not have control over the use of
his name, let alone the publication attributed to that name. In such circumstances, it appears quite effortless
to misuse a person's name.
6 MLJ ciii at cviii
According to reg 4 of the National Registration Regulations 1990, a person's name refers to his full name as
it appears in his certificate of birth. However, in the course of businesses or daily affairs, the use of the full
name of a person is not common. In fact, most persons use their first name, one of their names, abbreviated
name or even pen-name. The issue that arises therefore is whether these are included in 'name' in s 114A.
Further complications may arise when the person's name is a common one. In fact, this was addressed by
the Attorney General, Tan Sri Abdul Gani Patail, when commenting on s 114A. According to a newspaper
report:17

... he said that no charge could be made against anyone, simply because the person's name was linked to a published
article. He said it was imperative to firstly, prove that the article was offensive in nature, and secondly, prove it was
written or published by the person concerned. 'This is because, as we know, people's names can be used. There are
many Abdul Ganis in Malaysia, and possibly, there are people who use the name.

It appears that the mere attribution of a person's name to a publication may not be sufficient to prefer a
charge or attach liability to that person named.
The reference to a photograph is also not satisfactory. Considering the availability of photographs and the
various forms in which photographs take, the use of photographs and attribution of a publication to it may
have far-reaching implications and may not have the effect intended by the section.
5

Meaning of 'publication'
For the purposes of this section, 'publication' means 'a statement or a representation, whether in written,
printed, pictorial, film, graphical, acoustic or other form displayed on the screen of the computer.'
6 MLJ ciii at cix
Although the intention of Parliament in drafting the section may have been to address internet anonymity, the
definition raises several questions related to whether publication is confined only to the online form. One may
interpret this definition to mean that the reference to 'statement or representation' should be read
disjunctively from the phrase 'or other form displayed on the screen of the computer'. On the basis of such
interpretation, this would mean that 'statement or representation, whether written, printed, pictorial, film,
graphical, acoustic' are those other than that 'displayed on the screen of the computer'.
An alternative interpretation is that the 'statement or representation' intended to be captured by the definition
are those that must be 'displayed on the screen of the computer'. Although this interpretation is aligned with
the rationale of s 114A, it makes it difficult to envisage how statements or representations that are printed
could, at the same time, be displayed on the screen of the computer, bearing in mind that the word 'printed' 18
implies that the publication is in hardcopy -- unless it envisages a publication that is written or printed and
perhaps displayed on the screen of the computer using a scanning machine.

Section 88 of the Evidence Act


Section 114A may also be inconsistent with other provisions in the Evidence Act. An example of this is s 88,
which deals with the presumption as to the telegraphic messages.19 Although the section presumes that the
telegraphic message that was sent from the telegraph office to the addressee corresponds with the
telegraphic message delivered to that telegraphic office for transmission, it specifically prohibits the court
from presuming the identity of the person who sent that message. Section 88 reads as follows:

The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be
addressed corresponds with a message delivered for transmission at the office from which the message purports to be
sent; but the court shall not make any presumption as to the person by whom the message was delivered for
transmission.

If the court shall not make any presumption as to the identity of the person who sent the message, the issue
that arises is whether it makes sense to allow the court to presume, based on s 114A, the identity of the
person who publishes the messages over the electronic medium.

'Is presumed'
In s 114A, the words 'is presumed' are used. The drafting raises the issue of whether the presumption is one
that the court may or shall presume. The words 'is presumed' may give rise to the argument that the
presumption is automatic, hence giving the court no discretion at all, once the basic facts are proved.
6 MLJ ciii at cx
However, s 114A is referred to as a presumption of fact in publication. A presumption of fact operates on the
basis that the court has the discretion to invoke such presumption and the discretion should be based on the
facts and circumstances of each case.
It is in this context that makes it imperative to understand the concept of presumptions and the various types
of presumptions that exist in the framework of the law of evidence.

THE BASIS FOR PRESUMPTIONS


A presumption is an evidential rule that permits the court to assume that a fact as true, until such time as
there is a greater weight of evidence which disproves, outweighs or rebuts the presumption. Each
presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or
human conduct. The object of presumptions is to facilitate the burden of proof in relation to certain facts. This
is because it is recognised by law that specific assumptions need to be made as a matter of common sense,
policy or even convenience. Presumptions operate on the basis that the party relying on the presumption
6

must first prove that certain basic facts exist before such presumption may be invoked. Some common
examples include the presumptions of trafficking20 and corruption.21
There are several types of presumptions, described in s 4 of the Evidence Act. The section reads as follows:

2) Whenever it is provided by this Act that the court may presume a fact, it may either regard the
fact as proved unless and until it is disproved, or may call for proof of it.
2) Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as
proved unless and until it is disproved.
2) When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof
of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose
of disproving it. (Emphasis added.)

In s 4(1), the use of the words 'may presume' is a reflection of a presumption of fact. 22 This means that even
after the basic facts are proved, the court may decide not to invoke the presumption. The decision on
whether to invoke such
6 MLJ ciii at cxi
presumption is based on the facts and circumstances of the case. Presumptions of facts are also known as
'natural presumptions' and are drawn from the experience and observation of the course of nature, the
constitution of human mind, the springs of human action and the usages and habits of society. 23 Examples of
presumptions of fact in the Evidence Act are found in ss 86, 24 87,25 88,26 9027 and 114.28
In sub-s 4(2), the words 'shall presume' are used. In such situation, once the basic facts are proved, the court
has no option but to deem the fact as proved until evidence is adduced by the adverse party to disprove it.
These are known as presumptions of law or 'artificial presumptions'. They are not permissive, like
presumptions of fact. Instead, the court must invoke it after the basic facts are proved. After being invoked,
the adverse party is given the opportunity to rebut it, thus the presumption described in s 4(2) is also known
as a rebuttable
6 MLJ ciii at cxii
presumption of law. The presumptions found in ss 79, 29 80,30 81,31 82,32 83,33 84,34 8535 and 8836 of the
Evidence Act are such examples.
6 MLJ ciii at cxiv
Irrebuttable presumptions of law are described in s 4(3). This is where the presumption, once invoked, allows
no rebuttal evidence. Examples of irrebuttable presumptions of law may be found in ss 41 37 and 11338 of the
Evidence Act .

THE DISCRETION
The rule of thumb in dealing with a presumption of fact is that it should not be drawn automatically. The court
should first consider whether in the circumstances of a particular case, there were adequate grounds to
justify any presumption being raised.39
There must, therefore, be a proper basis for arriving at a presumption, and in order to do so, the connection
between the evidence tendered and the presumption relied on must not be too remote and uncertain. These
principles
6 MLJ ciii at cxv
are essential and must be strictly complied with, for it is a general rule that once a presumption is
established, the burden lies on the defendant to rebut it. 40
Whether a presumption of fact should be drawn is not a matter of an inflexible rule but depends upon the
circumstance of each particular case. In determining this issue, the question to consider is whether the
existence of a fact or a state of things makes the existence of another fact or state of things so likely that it
may be presumed to exist. The answer must naturally vary according to the circumstance, the nature of the
fact required to be proved and its importance in the controversy, the usual and commonly recognised mode
of proving it, the nature, quality and cogency of the evidence which had not been produced and its
accessibility to the party concerned.41
7

One of the main issues with s 114A is on whether the presumption is invoked automatically. It is the opinion
of the author that that should not be the case, as the reference to s 114A is presumption of fact in publication;
and on the premise that it is merely a presumption of fact, it will depend on the judge to invoke it, based on
the facts and circumstances of the case.
After all, during the Parliamentary debate to the Amendment Bill, it was articulated that the prosecution who
wishes to rely on the provisions of this presumption must first prove that the existence of specific facts before
the presumption may be invoked against any person. When there exists sufficient evidence to invoke such
presumption against a person, and if the court is satisfied that such presumption may be invoked, the burden
of proof to rebut the presumption shifts to the person against the presumption is invoked.42
It is submitted therefore, that the presumption in s 114A should not be interpreted as an automatic one, as
the words 'is presumed' in the section should be read as 'may presumed'. Whilst the court should consider all
the circumstances of the case before it invokes the presumption, the adverse party should be given the
opportunity of convincing the court not to do so.
6 MLJ ciii at cxvi

REBUTTING THE PRESUMPTION


The further aspect of s 114A to bear in mind is that it is rebuttable. In fact, most presumptions are. Although
the burden to rebut it lies on the person against whom the presumption is invoked, the standard of proof in
rebutting such presumption is the balance of probabilities. 43
The argument, however, is that there may be difficulties in rebutting this presumption. Not only could the lay
person find it difficult to navigate his way through the maze of technology, there may be other legal
hindrances. One such impediment is found in sub-s 90A(7) of the Evidence Act which provides that
evidence, namely a document44 produced by a computer,45 given by the person charged with an offence,
shall not be admissible if that person was involved in the production of that evidence. The sub-section reads
as follows:

1) Notwithstanding anything contained in this section, a document produced by a computer, or a


statement contained in such document, shall not be admissible in evidence ... where it is given in
evidence by or on behalf of the person who is charged with an offence in such proceeding the person
so charged with the offence being a person who was:
1a) responsible for the management of the operation of that computer or for the conduct of the
activities for which that computer was used; or
1b) in any manner or to any extent involved, directly or indirectly, in the production of the document
by the computer.

6 MLJ ciii at cxvii


This may create a challenge in rebutting the presumption in s 114A, if the evidence concerned involves a
document produced by a computer.

THE ALTERNATIVE PRESUMPTION OF FACT


An interesting point to note in this debate surrounding s 114A is s 114 of the Evidence Act 1950 . The
provision states that 'the court may presume the existence of any fact which it thinks likely to have happened,
regard being had to the common course of natural events, human conduct, and public and private business,
in their relation to the facts of the particular case.'
Although there is a list of illustrations attached to s 114, this list is not exhaustive. The section enables a
judge to infer one fact from the existence of another proved fact, having regard to the common course of
natural events or human conduct. The court may always rely on the main section with regard to a different
set of facts or combination of facts to draw the presumption embodied in that section. 46
Since the provision is coined in very general language, it gives the court the power to invoke a similar
presumption, which could have the same effect as s 114A, except for the fact that the latter is more specific
and technical.
8

With that in mind, it is difficult to see the novelty created by s 114A, bearing in mind that the existing
provisions in the Evidence Act may already be used to address the issue of anonymity.

A PRESUMPTION OF GUILT?
To conclude that s 114A is a presumption of guilt, however, may not be entirely accurate. This is because
firstly, it is a presumption that may apply also to civil cases, thus it is a misconceived notion to conclude that
it automatically presumes guilt.
Secondly, s 114A of the Evidence Act is not a provision that creates an offence in itself. It merely presumes
the identity of the person responsible for the publication and the very act of publishing alone is neither an
offence, nor does it attract liability. Culpability for such publication must have its basis in
6 MLJ ciii at cxviii
specific and substantive provisions of the law,47 which may require the burden to prove other elements
beyond a reasonable doubt before a finding of liability or guilt may be made. A charge in criminal defamation
for instance, will require the prosecution to further prove that the publication is defamatory and that the
publisher had the intention to harm the reputation of the person of whom the publication is made. 48
Thirdly, although it is not explicit in the section, it is for the court ultimately to decide whether the presumption
should be invoked. The court should have the discretion to do so, based on the facts and circumstances of
the case.
Fourthly, defences contained in those substantive provisions of the law would be available to the person
being charged or sued on the basis of the publication. Thus, for the offence of criminal defamation, defences
are provided for in the exceptions to s 499 of the Penal Code. With regard to offences relating to sedition, s
649 of the Sedition Act 1948 contains the exemptions to liability.
Network service providers, who are found liable or guilty after reliance is made on the presumption in s 114A,
may resort to the exemptions or defences
6 MLJ ciii at cxix
in the Communications and Multimedia Act 1998 and the Malaysian Communications and Multimedia
Content Code50 ('the Content Code').
Fifthly, it must also be remembered that since the prosecution's standard of proof is beyond a reasonable
doubt, it may not be accurate to conclude that s 114A by itself sustains a conviction. The difficulty of proving
a case could be seen in the respective cases involving Muslim Ahmed and Rutnin Suhaimin.
Muslim Ahmed was charged under s 233 of the Communications and Multimedia Act 1998 in March 2009 for
posting insulting comments about the Sultan of Perak, Sultan Azlan Shah on the Sultan's portal,
www.sultanperak.gov.my. The sessions judge acquitted him on the basis that although the comments were
traced to his internet protocol address, there was a possibility of someone else using that IP address. This
therefore, raised a doubt in the prosecution's case.
Rutinin Suhaimin's case involved a similar posting. The sessions judge also held that there was insufficient
evidence to prove that Rutinin, who was charged in March 2009, posted the comments himself on the
website and that the particular computer and the internet at the premises could have been accessed by
anyone without any control.

THE CONCLUSION
The authorities have given their assurance that the section is not as oppressive as it sounds and that it will
not be resorted to arbitrarily. However, only time will tell how this controversial section will be interpreted by
the Malaysian
6 MLJ ciii at cxx
courts. Nevertheless, whatever interpretation is to the section, it may be misleading to suggest that s 114A is
an automatic presumption of guilt.

1 LLB (Hons) (Mal), LLM (Mal), Advocate & Solicitor of the High Court of Malaya.
9

2 'Network service' means a service for carrying communications by means of guided and/or unguided electromagnetic
radiation, whilst 'network service provider' means a person who owns or provides any network facilities.

3 According to s 6 of the Communications and Multimedia Act 1998, a 'network service provider' is a person who owns or
provides any network facility.

4 This term refers to those to gain access to computers by 'riding' on the password of the authorised user. Two cases in
Singapore involving Garyl Tan Jia Luo and Lin Zhenghuang illustrate the legal implications of 'piggy-back riding'. Both were
respectively convicted under the Computer Misuse Act of Singapore for unauthorised access to unsecured wireless internet
connection. Similar provisions may be found in s 3 of the Malaysian Computer Crimes Act 1997.

5 See s 3 of the Act.

6 See s 2 of the Act.

7 See debate on the Second and Third Reading of the Bill on 18 April 2012 -- Hansard DR -- 18042012.

8 Susan Brenner explains the anonymity challenge in the 2006 Issue of the Continuing Legal Education Newsletter for the
California Bar.

9 Various techniques are used to conceal IP addresses as such as proxy servers and remailers.

10 See 14 August 2008, The Indian Express -- 'The Curious Case of Kenneth Haywood'.

11 See 30 July 2008, The Times of India -- 'Onus on IP address owner to prove innocence'.

12 A motion to annul the Information Technology (Intermediaries Guidelines) Rules 2011 was moved in the Indian Parliament on
23 March 2012 but was subsequently defeated.

13 Subject to Clauses (2), (3) and (4) -- (a) every citizen has the right to freedom of speech and expression.

14 Nothing in this Act shall be construed as permitting the censorship of the Internet.

15 Point 7 reads: To ensure no censorship of the Internet.

16 The MSC Malaysia Bill of Guarantees provides the incentives, rights and privileges from the Government of Malaysia to
qualified entities. The Bill of Guarantees reflects the Government's intention to provide an environment in MSC Malaysia that is
conducive to the development of MSC Malaysia Status entities.

17 See 18 September 2012, The Sun Daily -- 'Section 114A: Thorough investigation still required, says AG'.

18 The word 'printed' in the section appears to be a process, rather than a form.

19 Telekom Malaysia Berhad ended its telegram services with effect from 1 July 2012.

20 See s 37(da) of the Dangerous Drugs Act 1952.

21 See s 50 of the Malaysian Anti-Corruption Commission Act 2009.

22 See Sarkar, (16th Ed), 2007, at p 103.

23 See Sarkar, (16th Ed), 2007, at p 102.

24 Presumption as to certified copies of foreign judicial records: The court may presume that any document purporting to be a
certified copy of any judicial record of any country not being a part of the Commonwealth is genuine and accurate if the
document purports to be certified in any manner, which is certified by any representative of the Yang Di-Pertuan Agong in, or for
such country to be the manner commonly in use in that country for the certification of copies of judicial records.

25 Presumption as to books, maps and charts: The court may presume that any book to which it may refer for information on
matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which
is produced for its inspection, was written and published by the person and the time and place by whom, or at which it purports
to have been written or published.
10

26 Presumption as to telegraphic messages: The court may presume that a message forwarded from a telegraph office to the
person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the
message purports to be sent; but the court shall not make any presumption as to the person and at the time and place by whom
or at which it purports to have been written or published.

27 Presumption as to documents 20 years old: Where any document purporting or proved to be twenty years old is produced
from any custody which the court in the particular case considers proper, the court may presume that the signature and every
other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and
in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be
executed and attested.

28 Court may presume existence of certain fact: The court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human conduct, and public and private business, in their
relation to the facts of the particular case.

29
6 MLJ ciii at cxiii
Presumption as to genuineness of certified copies

3) The court shall presume to be genuine every document purporting to be a certificate, certified copy or
other document which is by law declared to be admissible as evidence of any particular fact, and which
purports to be duly certified by any officer in Malaysia who is duly authorised thereto:
Provided that the document is substantially in the form and purports to be executed in the manner directed by
law in that behalf.
3) The court shall also presume that any officer by whom any such document purports to be signed or
certified held, when he signed it, the official character which he claims in the document.

30 Presumption as to documents produced as record of evidence


Whenever any document is produced before any court purporting to be a record or memorandum of the evidence or of any part
of the evidence given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to
be a statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by
any Judge, Sessions Court Judge or Magistrate or by any such officer as aforesaid, the court shall presume that --

2a) the document is genuine;


2b) any statements as to the circumstances under which it was taken, purporting to be made by the person
signing it, are true; and
1c) such evidence, statement or was duly taken.

31 Presumption as to Gazettes, newspapers, etc


The court shall presume the genuineness of every document purporting to be the Gazette, a State Gazette or the London
Gazette, or the Government Gazette of any part of the Commonwealth, or to be the Gazette issued by the local Government of
any part of the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by Her
Britannic Majesty's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if
the document is kept substantially in the form required by law and is produced from proper custody.

32 Presumption as to document admissible in England without proof of seal or signature


When any document is produced before any court, purporting to be a document which by the law in force for the time being in
England or Northern Ireland would be admissible in proof of any particular in any Court of Justice in England and Northern
Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the
person by whom it purports to be signed --

3a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held
at the time when he signed it the judicial or official character which he claims;
3b) the document shall be admissible for the same purpose for which it would be admissible in England or
Northern Ireland.

33 Presumption as to maps or plans made by authority of Government

4) The court shall presume that maps or plans purporting to be made by the authority of the Government of
Malaysia or the Government of any State were so made and are accurate.

34 Presumption as to collections of laws and reports of decisions


11

The court shall presume the genuineness of every book purporting --

4a) to be printed or published under the authority of the Government of any country and to contain any of the
laws of that country; or
4b) to contain reports of decisions of the courts of that country

35 Presumption as to powers of attorney


The court shall presume that every document purporting to be a power of attorney, and to have been executed before and
authenticated by a Notary Public or Commissioner for Oaths, or any court, Judge, Magistrate, or consular officer of Malaysia
was so executed and authenticated.

36 Presumption as to telegraphic messages


The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed
corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court
shall not make any presumption as to the person by whom the message was delivered for transmission.

37 Relevancy or certain judgments in probate, etc, jurisdiction

5) A final judgment, order or decree of a court, in the exercise of probate, matrimonial, admiralty or
bankruptcy jurisdiction, which confers upon or takes away from any person any legal character, or which
declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against
any specified person but absolutely, is relevant when the existence of any such legal character or the title of
any such person to any such thing is relevant.
4) Such judgment, order or decree is conclusive proof --

5a) that any legal character which it confers accrued at the time when the judgment, order or decree came
into operation;
5b) that any legal character to which it declares any such person to be entitled accrued to that person at the
time when the judgment, order or decree declares it to have accrued to that person;
2c) that any legal character which it takes away from any such person ceased at the time from which the
judgment, order or decree declared that it had ceased or should cease; and
1d) that anything to which it declares any person to be so entitled was the property of that person at the time
from which the judgment, order or decree declares that it had been or should be his property.

38 Presumption that boy under thirteen cannot commit rape


It shall be an irrebuttable presumption of law that a boy under the age of thirteen years incapable of committing rape.

39 See dicta of Justice Ong in Mohamed Ali v Public Prosecutor[1962] MLJ 230 .

40 Per Justice James Foong in Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor[1995] 2 MLJ 276 .

41 Per Justice Chong Siew Fai in Pendakwa Raya v Mansor bin Mohd Rashid & Anor[1996] 3 MLJ 560, Federal Court.

42 Translation of text in Bahasa Malaysia: Walaubagaimanapun, pihak pendakwa yang ingin bersandar kepada peruntukkan
anggapan mesti membuktikan terlebih dahulu kewujudan fakta-fakta tertentu sebelum anggapan boleh dibuat terhadap
seseorang. Apabila wujud keterangan yang cukup untuk dibuat anggapan terhadap seseorang dan mahkamah berpuas hati
bahawa anggapan boleh dibuat, beban pembuktian untuk membuktikan atau meyangkal anggapan itu berpindah kepada orang
yang terhadapnya anggapan dibuat.

43 'Balance of probabilities' has been explained by Lord Denning in Miller v Minister of Pensions[1947] 1 All ER 372 as 'more
probable than not ...'

44 Section 3 of the Evidence Act defines 'document' to mean '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); (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'.

45 Computer is defined in s 3 of the Evidence Act to mean 'an electronic, magnetic, optical, electrochemical, or other data
processing device, or a group of such interconnected or related devices, performing logical, arithmetic, storage and display
functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with
12

such device or group of such interconnected or related devices, but does not include an automated typewriter or typesetter, or
a portable hand held calculator or other similar device which is non-programmable or which does not contain any data storage
facility.'

46 See In re Madugula Jermiah AIR 1957 Andhra Pradesh 611. See also Public Prosecutor v Krishna Rao a/l Gurumurthi &
Ors [2000] 1 MLJ 274[2000] 1 CLJ 446, High Court.

47 Examples may include the Penal Code, Defamation Act 1957, Sedition Act 1948, Internal Security Act 1960,
Communications and Multimedia Act 1998 and Copyright Act 1987.

48 See s 499 of the Penal Code which reads: Whoever, by words either spoken or intended to be read or by signs, or by visible
representations makes or publishes any imputation concerning any person, intending to harm, or knowing or having reason to
believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to
defame that person.

49 (1) Notwithstanding anything to the contrary contained in the Evidence Act (Act 56), no person shall be convicted of an
offence under section 4 on the uncorroborated testimony of one witness. (2) No person shall be convicted of any offence
referred to in section 4(1)(c) or (d) if the person proves that the publication in respect of which he is charged was printed,
published, sold, offered for sale, distributed, reproduced or imported (as the case may be) without his authority, consent and
knowledge and without any want of due care or caution on his part, or that he did not know and had no reason to believe that
the publication had a seditious tendency.

50 See para 2.0 of Part 5, which exempts the liability of Innocent carriers (those who have neither control over the composition
of Content nor any knowledge of Content). According to para 2.1 Code Subjects providing access to any Content but have
neither control over the composition of such Content nor any knowledge of such Content is deemed an innocent carrier for the
purposes of this Code. An innocent carrier is not responsible for the Content provided. Nonetheless, this does not exempt such
access providers from adhering to the General measures as outlined in Part 6.0 of this Part where it expressly applies to them.
See also provisions containing provisions in the Copyright Act 1987. The Content Code has been registered with the Malaysian
Communications and Multimedia Commission and by virtue of s 95(2) of the Communications and Multimedia Act 1998 and
Part 6.0 of Part 1 of the Content Code, such Code is effective. Since the Content Code is effective, compliance with it shall be a
defence against any prosecution or action. Subsection (2) of s 98 of the Communications and Multimedia Act 1998 provides
that: Compliance with a registered voluntary industry code shall be a defence against any prosecution, action or proceeding of
any nature, whether in a court or otherwise, taken against a person (who is subject to the voluntary industry code) regarding a
matter dealt within that code.