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Evidence I- Burden of proof in civil case

1) Introduction
- General rule: “ He who assert must prove”
- Plaintiff or claimant must assert
- S.101 (applies to both civil and criminal case)
- Legal burden of proof would be on the plaintiff or defendant in civil cases to establish the
elements of his claim.
- Standard of proof is on balance of probabilities.
- Exception: s..103- when defendant is making the defence, the burden will falls on him to
prove the particular fact.
- S.103: burden of proving a particular fact, if he wishes the court to believe those fact.
- Civil cases: defences- consent, contributory negligence, frustration or mistake etc.
S.103: criminal : alibi, civil: for defence
Plaintiff: s.101
Defendant: s.103

- Note: s.105 does not apply to civil case (only for criminal case)
- S.106 will apply to cases of res ipsa loquitor in Tort. (case of negligence)- Something which
is within the defendant’s knowledge, the burden shift from the plaintiff to the defendant.
- One doctrine relating to s. 106 of the Evidence Act is the doctrine of Res Ipsa Loquitur,
which is that the facts speak for itself. There is no need to prove certain elements of an
offence but to let the facts speak for itself.
- If the doctrine of Res Ipsa Loquitor is successfully pleaded, the defendant now has the legal
burden to rebut the presumption of the principle.

- MA Clyde v Wong Ah Mei

The rule is for the plaintiff to prove negligence and not for the defendant to disprove it may
cause hardship to the plaintiff, if it is impossible for him to show what precise acts or
omission led to his damage, and this is most obviously so where the cause of the damage is
peculiarly within the means of knowledge of the defendant who caused it.
- Thus, applying the doctrine of Res Ipsa Loquitor, the burden of proof is shifted to the
defendant. Thus, the rational of applying this doctrine is that the defendant would have
known how the accident occurred, since he had control of the management of the situation. S.
106 is applicable in such situations as the most important element is “special knowledge”
and the person with the special knowledge of a fact will have the legal burden to prove such

- General rule: the standard of proof is on balance of probability.

- Exception: Issue of criminal allegations is a civil case
- Civil case involving a criminal allegation
- Eg. Fraud or forgery

2) What is the standard or proof?

i) Criminal standard : beyond reasonable doubt
ii) Civil standard: balance of probability
- Eg. Allegation of forgery or fraud in civil case. General rule, a criminal allegation in civil
case, the standard of proof id remain civil standard which is balance of probability but the
more serious allegation, the higher degree of probability is required.
- Exception: when they is fraud in civil case, the standard of proof is beyond reasonable doubt.

3) Common law
- Hornal v Neuberger
Criminal allegation in a civil cases the standard of proof will be the civil standard of burden
of proof.
However, the more serious the allegations, the higher the degree of probabilities which will
be required, but it will not reach the criminal standard of beyond reasonable doubt.

4) Malaysia
- General Rule: the common law principle will apply
- Eastern Enterprises v Ong Choo Kim
The standard imposed on the plaintiff would still be at a balance of probabilities. However,
this standard will be of a higher degree of probability than is required in an ordinary case of
civil negligence though not the very high standard of criminal law.

- Boonsom Boonyanit v Adorna Properties Sdn Bhd

Held: allegation of forgery in a civil case, the standard of proof will be the civil standard if
burden of proof.

5) Fraud cases
- Exception: when there is fraud in a civil case, the standard will be criminal standard of
beyond reasonable doubt.
- Ang Hiok Seng v Yim Yut Kiu
Standard of proving fraud would depend on the nature of the fraud, whether it was a criminal
fraud or a civil fraud.
- However, the question now arises as to the distinction between criminal fraud and civil fraud.

- Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd

Chin J: the distinction of “civil fraud” and “criminal fraud” is an attempt at distinguishing the
undistinguishable since “fraud” by its incorporation of the offences under the Penal Code…
criminal fraud.

- Yong Tim v Hoo Kok Cheong

Standard of proof for an allegation of fraud in a civil case will be the criminal standard of

- Reinforce in Asean Securities Paper Mills Sdn. Bhd v CGU Insurance Bhd
Fraud have to establish beyond reasonable doubt in civil case.

Standard of Proof
- Legal burden of proof
- Under a duty to adduce enough evidence to discharge according to standard of proof required
by the law.
- Obligation to satisfy the court of the existence of a fact according to the standard of proof set
by law.
- What is the standard of proof by law?
- General rule:
- i) beyond reasonable doubt – prosecution in a criminal case
- ii) balance of probabilities- civil cases and the accused in criminal case
- exception in fraud allegation in civil case is beyond reasonable doubt
Authority (for discuss the standard of proof: beyond reasonable doubt and balance of probability)
- beyond reasonable doubt and balance of probability cannot find in EA
- EA only have the meaning of ‘proved’, ‘disproved’ and ‘not proved’ under s.3 of EA
- PP v Yuvaraj
Parliament would not have intended to depart from established common law standard
(beyond reasonable doubt and balance of probabilities)
In this case the court mention that the standard for proof for criminal case is beyond
reasonable doubt and for civil case is of balance of probabilities.
Although EA does not refer to beyond reasonable doubt or balance of probability, there seem
to be a gap in the law, then common law principle apply.
- Note: Although EA did not have refer to beyond reasonable doubt and balance of probability,
CPC does refers to the duty of the prosecution to prove beyond reasonable doubt.
- S.182A of CPC- procedure at the conclusion of the HC trial
- S.173(m)- summary trials (magistrate and session court)

- Miller v Minister of Pensions

Criminal standard: The term beyond a reasonable doubt should not be confused with beyond
a shadow of doubt. Although it is a high degree of probability, it need not reach certainty.
There is no absolute standard of proof in a criminal trial and the question whether the charge
made against the accused have been proved beyond all reasonable doubt must depend upon
the facts and circumstances of the case and the quality of the evidence adduced in the case
and the materials places on record.
Civil Standard: Lord Denning: “The Balance of Probabilities is a probability which is “not so
high as required in a criminal case… more probable than not… but if the probabilities are
equal, it is not discharged.”
Beyond reasonable doubt cannot be use percentage (number). Cannot say is 90%, is that
prove beyond reasonable doubt? The 10% is the doubt. Not wise to explain beyond
reasonable doubt on number. But, balance of probability can explain in number. Eg. 50% and
50% is not balance of probability but if 49% and 51% then is consider as balance of

- R v Carr-Briant
Held: where accused has a legal burden it has to be discharged on the balance of probabilities.

The prosecution when it has the burden to prove the facts in issue has to do so beyond
reasonable doubt (Mat v PP, PP v Saimin and Mohamed Radhi)
The accused when he has a legal burden to prove or disprove a fact in issue, has only
to do so on the balance of probabilities (PP v Yuvaraj)
The plaintiff and defendant in civil cases only have to discharge their legal burden on
balance of probabilities.