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Evidence of Opinion

General rule: A witness is only permitted to give evidence of facts which he has perceived, and is not entitled to state any inferences and beliefs based on those facts. If a witness interprets the facts which he perceived, he is therefore offering his opinion to the court.

- A witness may only provide evidence of fact which he can relate to personally.

- The court can only accept evidence from a witness if it is direct evidence pertaining to what the witness perceived, heard or saw with his own senses (Sec. 60)

- A witness may not provide his opinion from which a conclusion can be drawn (e.g: his own assumptions as to what may have occurred)

- Hollington v Hewthorne: Only the facts perceived by a witness are relevant, not his opinions.

Evidence of fact and evidence of opinion:

- Evidence of fact:

- Evidence which is admissible

- A matter which is definitely true

- What one perceives with his own senses is a fact, any other conclusion made is an opinion

- Evidence of opinion:

- Evidence which is inadmissible

- RW Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd: Evidence of a conclusion, usually judgmental or debatable, reasoned from fact

- Dolgobinda v Nimai Misra: A belief or a conviction resulting from what one thinks on a particular question

- Suggestion of answer or inference by a witness on a relevant fact

- Witness’ perception

- E.g: Where a witness chooses to provide to the court more than what he had perceived (the facts), he is providing his opinion.

- It is important to distinguish between the two types of evidence as different rules of admissibility applies to both:

- Khoo Hi Chiang v PP: The chemist which gave evidence in court with regard to the identity of the drugs was not providing the court with an expert opinion, but instead evidence on a factual point. Although the chemist was called to give evidence on the matter at hand, he was providing evidence on an issue that did not involve his expertise, rendering it admissible.

Exception where evidence of opinion may be admissible:

- Where the matter is not within the judge’s common knowledge or experience, evidence may come from an expert (Sec. 45) or non-expert (Secs. 47, 48, 49, 50); a person who is specifically skilled in any of the matters listed under the provisions.

Sec. 45: Expert opinion on foreign law, science or art, handwriting or fingerprint

- There are certain fields of knowledge which may be pertinent to a case and yet are beyond the proficiency of the judge.

- In such instances, the court requires the assistance of persons who are particularly familiar with or skilled in respect of the matters under the court’s consideration.

- Leong Wing Kong v PP: An expert must be skilled and he need not be so by special study, suffices if it is by experience.

- Dato’ Mokhtar Hashim v PP: Expertise is derived from experience and not from formal training.

- Chong Soo Sin v Industrial and Commercial Insurance Bhd: The fact that a person is a consultant chemist registered under the Chemists Act 1975 is sufficient to hold that he has the necessary skill and experience to qualify as an expert.

- In certain instances, the court may take judicial notice of the fact that an expert has previously given evidence.

- Syed Abu Bakar Ahmad v PP: Expert opinion is particularly necessary where the court is not in a position to perform a correct judgment without the help of persons who have acquired special skill or experience.

- In this case, the appellant, the Director of National Bureau of Sarawak, was charged for criminal breach of trust. The judge misdirected himself in believing that the handwriting made using a particular pen was that of the accused without calling an expert.

- Foreign law: Not only limited to the law of a foreign country, but also includes the law alien to that practised in the country (Sivagami Achi v PRM Ramanathan Chettiar)

- PP v Forster Frank Edald Heinrich: The court allowed the admissibility of evidence by an expert on German law to be given on the effect of the affidavits.

- In the Estate of Sim Giew Guan: The court accepted the testimony of the Consul General of China on matters concerning Chinese matrimonial customary practices in China.

- Sivagami Achi: The petitioner applied to the court that upon her husband’s

death, his estate should pass to her as the widower of the deceased. She relied on the distribution of estate regulated by the Mitakshara system of Hindu Law.

- The court ruled that it was difficult to decide on the case without having an expert on the system testifying.

- Mak Sik Kwong v Minister of Home Affairs: The court cannot take judicial notice of foreign law until it is directed to do so. Even then it may refuse such direction until and unless the person who calls upon it to take judicial notice produces the necessary documents which enables it to do so.

- Sivagami Achi: The court cannot take judicial notice of a law on which there is no expert evidence before it, nor have any arguments been addressed to it.

- Science or art:

- Expert opinion on science or art is not within ordinary human experience.

-

If the subject matter is within common knowledge, there would not be

a necessity for expert opinion.

- Raja Azlan Shah J in Chandrasekaran v PP: The expression ‘science or art’ is capable of being given a liberal interpretation.

- In this case, where the appellant was convicted of using two genuine forgeries of vouchers, expert opinion was allowed on the basis that ‘expert opinion on typewriting is as much a matter of science study as handwriting and finger-print evidence’.

- Pheh Boon Kheang v Peh Boon Wang: Where the defendant requested for the plaintiff to produce the original official receipt of the developer for examination and analysis by a chemist in a dispute over a joint property, the court recognised that matters of art and science is ever-growing.

- Leong Wing Kong v PP: The phrase “science or art” should include all subjects

on which a course of special study or experience is necessary to the formation of an opinion.

- However, whether or not an issue is one of science or art is within the court’s discretion. Although the scope of the term has been widely construed and is not restricted to the subjects of pure science and art, ultimately what falls within the scope and consequently whether expert evidence is admissible is for the court to decide.

- Fingerprint impressions:

- PP v Toh Kee Huat: Expert opinion in regards to fingerprint analysis plays an important role as ‘at any rate the weight of evidence of fingerprints can never be decried’.

- In this case, the prosecution relied on the evidence of the fingerprints of the accused being found on the inside surface of the car. Held: When the only evidence of identity against an accused person depends upon the resemblance between fingerprints, such evidence is sufficient to support a conviction.

- Handwriting:

- Handwriting analysis through expert opinion is also necessary in solving criminal disputes.

- Syed Abu Bakar Ahmad v PP: In a matter of criminal breach of trust, the absence of the aid of expert opinion on handwriting will not help solve the dispute.

- PP v Mohamed Kassim Yatim: However, it is settled law that evidence by a

handwriting expert can never be conclusive in determining the identity of a person because it is only opinion evidence.

- Srikant v King Emperor: Despite such evidence being entitled to proper consideration and weight, to base a conviction upon the evidence of an expert in handwriting alone is very unsafe.

- Thus, expert opinion in handwriting is not to be considered as conclusive, and an accused’s conviction requires corroborative evidence.

- UAB Bhd v Tai Soon Heng Construction: Opinion on handwriting must be supported by reasons; if unsupported by cogent data showing the process by which he came to his conclusion, it is not worthy of reliance.

- Mohamed Kassim Yatim: The accused was acquitted where no other corroborative evidence to support the expert opinion was available to indicate that he had signed a false declaration.

Ultimately, any form of reliance on expert opinion does not place the court under the obligation of being bound by the opinion.

- Wong Swee Chin v PP: Our system of jurisprudence does not remit the determination of dispute to experts; it is the judge of fact that decides.

- Teng Kum Seng: Expert opinion is merely an opinion; it is not conclusive, and should be treated with caution.

- Ong Chan Tow: Where the judge is a judge of fact, the ultimate decision is left to the court to decide despite the opinion of the expert. Thus, experts should not give conclusions on matters which are ultimately matters for the court to decide.

Qualification of an expert (peritus):

An expert witness: A person who by virtue of education/training/skill/experience is believed to have knowledge in a particular subject beyond the average person.

- The skill/experience must have been acquired for purposes of special study on the subject matter.

The expertise of an expert must be established before his expert opinion is admitted in court.

It must first be determined whether the subject matter or nature of evidence requires special skill:

- R v Turner: If, on the proven facts, a judge can form his own conclusions without help, the opinion of an expert is unnecessary.

- The fact that an expert witness has impressive qualifications does not by that fact alone make his opinion on scientific matters any more helpful; but there is always a danger in the court thinking that it does.

- Ong Chan Tow v R: Expert opinion of a psychiatrist to show how an ordinary person not suffering from mental illness is likely to react to the stresses and strains of life was inadmissible as it is within the ordinary human experience.

- However, in Syed Abu Bakar Ahmad: It would be erroneous for the judge to form a conclusion on a matter which could only be properly concluded with the aid of expert evidence.

Once it is ascertained that the subject matter requires special skill, it must be determined whether the witness has acquired the necessary skill to express an opinion on the matter:

- Junaidi Abdullah: The more scientific and complex the subject matter, the more extensive and deeper will the court be required to enquire.

- Phipson on Evidence: The competency of an expert is a preliminary question for the judge and is one upon which considerable laxity (leniency; looseness) prevails.

Though the expert must be “skilled” by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to the weight and not the admissibility of the evidence, causing it to have less probative value.

- Dato Mokhtar Hashim: One can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work, notwithstanding that the experience is derived from experience and not from formal training.

- PP v Muhamed Sulaiman: The accused was charged with murder and the only evidence connecting him with the killing was the evidence of a chemist that the bullet recovered from the body of the deceased was fired from the rifle issued to the accused. The learned trial judge ruled that the evidence of the chemist was not admissible because there was inadequate evidence of his

competency as an expert in firearms. On appeal, the court held: An expert may be competent either by formal study or experience and the fact that he has not acquired his knowledge professionally goes merely to the weight and not admissibility.

- Sun Ho Sdn Bhd v Alliance Bank Malaysia: Despite the expert not having any formal qualification for forensic document examination, the court held that what it looks at is whether the expert’s opinion can be of any assistance to the court.

- However, in PP v Chong Wei Kian: The mere fact that the witness was a chemist for 18 years without evidence of his qualifications and experience did not make him an expert.

- Thus, as in Wong Chop Saow v PP: An expert must, as a preliminary issue, give evidence of his qualifications to enable the court to consider his opinion evidence.

- PP v Lin Lian Chen: Even if the expert is a government chemist, evidence of his qualifications must be given.

- The court determines the competency of the expert, not the parties.

- It will look at qualifications and experience on the subject matter for which the court needs to form an opinion.

- Kong Nen Siew v Lim Siew Hong: Even a semi-skilled or semi-professional person may be accepted as an expert witness as it would be unwise to reject a semi-skilled or semi-professional opinion. The court should adapt itself to the circumstances of the country and take advantage of such knowledge as may be available.

- In this case, where the husband sought divorce on the ground that the wife was suffering from a disease of mind, a psychiatric nurse attached to the Mental Health Unit, who was not a doctor or psychiatrist, was deemed qualified to give expert opinion on the issue of mental illness.

- However, the court will not accept evidence of an expert who expresses opinions on matters outside his area of expertise, knowledge or specialisation.

- PP v Mat Kilau Mohamad: The scientific officer’s evidence was rejected as she did not have formal training on DNA profiling, making her not an expert who could be said to have experience in the area.

- Expert opinion requires corroboration:

- Evidence of opinion will not serve as conclusive evidence of proof of facts in

issue. Thus, the court is at liberty to reject the opinion if the expert evidence does not assist it in determining the issues at hand.

- Sek Kim Wah v PP: The trial judge would be perfectly entitled to reject or differ from the opinion of the expert if there were other facts on which they could do so.

- Sec. 46: Expert opinion is open to corroboration or rebuttal

- The provision allows evidence of experts which can support or contradict other expert opinions to be admitted as evidence.

- Guan Teik Sdn Bhd v Haji Mohd Noor: Should a conflict of opinion arise, the court must weigh such evidence on a balance of probabilities, as well as look at all the surrounding factors and weigh and evaluate contemporaneous documents that may tend to establish the truth or otherwise.

Duties of the court:

- Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd: Failure of the court to consider the aid of experts’ evidence in its determination of issues in arriving at a conclusion would result in a serious and substantial miscarriage of justice.

- Syed Abu Bakar Ahmad: The trial judge erred in his finding of fact by concluding on a matter which could only be properly concluded with the aid of expert evidence.

- After an expert has provided his opinion, the court must then form its own opinion on the matter. The expert’s opinion is merely to provide assistance and guidance to the court. The court need not accept every opinion of an expert, but is required to consider them.

Conflict of expert opinion:

In the event of conflicting opinions between experts, the judge has the discretion and freedom to choose which opinion he prefers, but should then provide his reasons for choosing one over the other.

Factors which the court may take into consideration:

- The reliability of the expert’s opinion

- The judge must exercise his discretion judiciously by considering which opinion is the most reliable expert opinion.

- Collector of Land Revenue v Alagappa Chettiar: The court ruled in preference of one valuer compared to the other because his opinion was most reliable.

- The court must put into consideration the expert’s qualification (experience and extent of knowledge)

- Sakthivel Punithavathi v PP: Qualification is not a sole factor, but it bears some weight, and is not limited to academic qualification, but also experience.

- The scientific grounds and bases upon which the expert relies

- Chua Seng Sam Realty v Say Chong: The scientific grounds when taken in totality must lead to a sound inference.

- Singapore Finance Ltd v Lim Kah Ngam: The court must evaluate the grounds upon which the expert relied.

- Where the opinion of an expert is based on reports of facts and empirical observations, the court has to satisfy itself, on a balance of probabilities, whether those facts did, in truth, exist and whether any inference or inferences drawn from those facts taken individually or collectively, were sound or not.

- Where there are differences between scientific matters, an expert must be able to explain such differences

- Pavone v PP: The court must determine whether or not such differences were explained.

- Dato Mokhtar Hashim v PP: If the difference relates to a scientific matter, the expert must explain the difference. It is open to the court to prefer the evidence of one expert to that of another and it would not be improper to act on the opinion of one expert despite it contradicting the opinion of another expert.

- Leong Wing Kong v PP: In resolving conflicting expert opinions, it is often far more productive to look at other considerations such as the methodology by which an expert has reached his conclusions and the demeanour of the expert, rather than merely comparing the pedigree of his CV.

- The court must not, under any circumstances, take into consideration the partiality of the expert.

Non-expert: A person who has not undergone training or study of a particular field, or is not as skilled as experts in the field, but has been exposed to the facts in issue by way of familiarity or acquaintance.

Sec. 47: A non-expert’s opinion in handwriting

- Explanation to Sec. 47: A person is said to be acquainted with the handwriting of another person when he has seen that person write, received documents purported to be written by that person, or when documents purported to be written by that person have been habitually submitted to him.

- A witness is “qualified” to testify on a person’s handwriting through familiarity with such handwriting.

- Cross on Evidence: There must have been sufficient opportunity for the witness to acquire such knowledge of the handwriting in question as to make it worthwhile receiving his evidence.

- Lee Kim Luang v Lee Shiah Yee: The evidence of a witness on a person’s handwriting was not relevant as there was no evidence to show that he was acquainted with the handwriting of that person.

- Mohamed Kassim Yatim: The court accepted the opinion of the chief clerk who was familiar with the accused’s handwriting and signature, as well as the

assistant information officer who had known him for 20 years and was familiar with his handwriting.

- Nevertheless, it is not safe to completely rely on the opinion of handwriting evidence.

- Mohamed Kassim Yatim: Where many persons write alike, all such proof, even in its best form, is precarious and often extremely dangerous.

- Chu Choon Moi v Ngan Sew Tin: It is not proper to attempt making any conclusion on the genuineness of signature in a document by comparing two similar handwriting without resorting to the opinion of a handwriting expert who is specialised in the field.

- However, Sec. 47 must be read together with Sec. 67: If a document has been written or signed by a person, then an inference can be made that the signature or writing belongs to that person, rendering it unnecessary to prove the handwriting.

Sec. 48: Non-expert opinion as to the existence of a right or custom

- Illustration to Sec. 48: Right of the inhabitants of a particular village to use the water of a well.

- R v Lim Chin Shang: The opinion of a detective of a tattoo mark to identify a person as a member of a secret society, in which its initiation involved receiving a tattoo the detective was aware of, was admissible as the detective himself had been the head of the secret society for two years.

Sec. 49: Non-expert opinion as to usages, tenets, etc.

- Evidence of opinion under this provision must be distinguished from expert evidence under Sec. 45.

- Sarkar on Evidence: The meaning of usage includes what the people are now or

recently in the habit of doing in a particular place.

- Having the special means of knowledge in a certain usage allows a person to provide his opinion, but such opinion would only fall within the scope of Sec. 49 as such person is not regarded as an expert.

- PP v Lee Ee Teong: There is a difference in the evidence of a person which is based on his special knowledge and one which is based on his expertise within the meaning of Sec. 45.

- In this case, the prosecution frequently relied upon evidence by detectives who through experience have special knowledge on the methods of gambling. However, such evidence is not the evidence of experts, rendering it admissible only under Sec. 49.

- Chu Chik Sang v Chhi Tam: A usage must be notorious, certain, reasonable, and must not offend the intention of any legislative enactments.

- Plaza Singapura Ltd v Cosdel Pte Ltd: When courts take judicial notice of a usage, parties are able to avoid the unnecessary expense of having to prove it, which has been proved repeatedly.

Sec. 50: Non-expert opinion on relationships

- Marriage (Illustration (a)):

- Ong Cheng Neo v Yeap Cheah Neo: The evidence of reputation of two persons being husband and wife is evidence of such marriage.

- R v Govindasamy: However, under Sec. 50(2), in a criminal prosecution,

evidence of opinion alone is insufficient to prove the existence of the marriage.

- The actual celebration of a marriage ceremony must be proved unless the marriage can be established by a certificate of registration, and if the ceremony is to be proved, at least one witness must be recalled who can describe it so as to enable the court to determine whether it constituted a legal marriage.

- Legitimacy (Illustration (b)):

- If the father is proved to have brought up the party as his legitimate son, this amounts to a daily assertion that the son is legitimate.

Other evidence of opinions not falling under Secs. 45 50 are inadmissible in court.

Sec. 51: A person giving his opinion is required to provide the grounds on which the opinion was made.

- The court must be allowed to understand why and how an opinion is formed.

- Sim Ah Song v R: A bare expression of opinion by a witness would not carry any weight and has no evidentiary value.

- PP v Alcontra: The court will not accept an opinion where it is not sustainable and is devoid of any rational, scientific or semantical basis.

- PP v Chia Leong Foo: When a report is tendered as evidence and it relates to a matter pertaining expert evidence, the report must contain the reasons for the conclusion.

- However, in PP v Khoo Hi Chiang: The court is entitled to accept any evidence by a chemist on its face value without the necessity for him to go into detail what he did step by step, except if it is inherently incredible, or where the defence calls in evidence for rebuttal by another expert.

- Dr Shanmuganathan v Periasamy Sithambaram Pillai: When a reasoning is given, failure of the court to consider the grounds on which the expert formed his opinion would mean abdicating the expert’s function in court.