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Chapter 1: Preliminary Matters

1.1 What is the law of evidence?

The law of evidence is part of the adjective law which defines the pleadings and the procedure
by which substantive law is applied in practice. It is both substantive and procedural in
nature.

1.2 Why do we need the law of evidence?

The law of evidence determines:-

a) how parties are to convince the court as to the existence of facts which would establish
the right or liability which they allege to exist; and

b) what are the facts which they can rely on to establish the right or liability which they allege
to exist.

1.3 What governs the law of evidence in Malaysia?

The Preamble of the Evidence Act 1950 (Act 56) states:-

“An Act to define the law of Evidence.”

1.4 History of the Evidence Act 1950

The Malaysian Evidence Act 1950 is based on the Indian Evidence Act 1872. As per
Thomson CJ in Looi Wooi Saik v. PP [1962] MLJ 337 CA:-

“In this country the question is governed by the terms of the Evidence Ordinance
which is the same as the Indian Evidence Act … It is generally accepted that the Indian
Act was drafted by Sir James Stephen in 1872 with the intention of stating in a
codified form the English law relating to evidence as it stood at that date.”

1.5 Application and extent of EA 1950

S. 2 EA 1950 provides that:-

“This Act shall apply to all judicial proceedings in or before any court, but not to
affidavits presented to any court or officer nor to proceedings before an arbitrator.”

In Teoh Meng Kee v. PP [2014], the Court of Appeal held that an inquest does not amount
to a judicial proceeding under EA 1950 and therefore, EA 1950 does not apply strictly.

1.6 The Scheme of the Evidence Act 1950

EA 1950 is divided into three main parts:-

Part I – Relevancy;

Part II – Proof; and

Part III – Production and Effect of Evidence.

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1.7 Relevancy

1.7.1 Logical Relevancy

As per Lord Simon in Director of Public Prosecutions v. Kilbourne [1973] AC 729 HL:-

“Evidence is relevant if it is logically probative or disprobative of some matter

which requires proof.”

To determine whether a piece of evidence is relevant or otherwise, it requires a process of

reasoning based on logic, common sense and general experience.

1.7.2 Legal Relevancy

S. 3 EA 1950 defines the word “relevant” as follows:-

“one fact is said to be relevant to another when 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.”

S. 5 EA 1950 provides that:-

Evidence may be given in any suit or proceeding of the existence or non-existence of

every fact in issue and of such other facts as are hereinafter declared to be
relevant, and of no others.

Hence, based on s. 5 EA 1950 and the definition of the word “relevant” in s. 3 EA 1950, any
fact sought to be introduced in evidence must be relevant and admissible under s. 5 or
one of the sections under the Act (for example, ss. 6 – 55 of Chapter II, EA which set out
facts which are relevant under the EA) and no others; PP v Dato’ Seri Anwar Ibrahim (No.
3) [1999] 2 MLJ 1.

Hence, even if a fact is logically probative/relevant, it is not necessarily admissible unless it

is provided so under EA 1950; PP v Haji Kassim [1971] 2 MLJ 115 (FC).

Therefore, under EA 1950, relevancy is a matter of law and an appeal to logic to establish
the relevancy of a particular fact is unnecessary.

However, if the matter is not provided for by EA 1950 or which the Act is silent, Lord Diplock
in PP v Yuvaraj [1969] 2 MLJ 89 was of the view that:-

… the courts in Malaysia must give effect to the relevant provisions of the Ordinance
whether or not they differ from the common law rule of evidence as applied by the
English Courts. However, no enactment can be fully comprehensive. … upon matters
about which it is silent or fails to be explicit, it is to be presumed that it was not the
intention of the legislature to depart from well-established principles of law.

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1.8 Admissibility

1.8.1 Admissibility and Legal Relevancy

s. 136 (1) EA 1950 provides:-

“When either party proposes to give evidence of any fact, the court may ask the party
proposing to give the evidence in what manner the alleged fact, if proved, would be
relevant; and the court shall admit the evidence if it thinks that the fact, if proved,
would be relevant, and not otherwise.”

In PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 11, Augustine Paul J (as his Lordship
then was) held that questions of admissibility of evidence are questions of law and are
determinable by a judge. It is the duty of the judge to admit all relevant evidence and to
exclude all irrelevant evidence. By virtue of s. 136(1) EA, the judge is empowered to allow
only relevant evidence to be admissible and in order to ascertain the relevancy of the evidence
which a party proposes to give, the judge may ask the party proposing to give evidence, in
what manner the alleged fact, if proved, would be relevant, and he may then decide as to its
admissibility.

1.8.2 Admisibility and Logical Relevancy

As a general rule, all relevant evidence is prima facie admissible. Be that as it may, many
matters which, as a matter of logic lay people outside the court take into consideration when
making decision, are as a matter of law excluded by the court on various grounds. For
example, hearsay and opinion evidence may be relevant to some matters required to be
proved but are nevertheless excluded by the Courts as a matter of law generally albeit they
are exceptions to these general rules of evidence. Communications between spouses under s.
122 EA and professional communications between advocate and client under s. 126 EA
despite being relevant are generally inadmissible on grounds of public policy. Exceptionally,
evidence, despite being relevant, is excluded if it was obtained in circumstances of
involuntariness that was extraordinary; Francis Antonysamy v PP [2005] 3 MLJ 389. Hence,
relevance is merely a primary, but not the sole condition precedent to admissibility.

As per Justice Harmindar Singh JCA in Siti Aisyah v. PP [2019] (Criminal Appeal No: B –
05 – 622 – 12/2018) CA:-

[21] Even then, it must be observed that admissibility of evidence is not only subject
to rules of relevancy but also to the rules of exclusion. Leaving aside rules relating to
hearsay and opinion evidence, a witness can come to court and claim privilege as a
ground for non-disclosure or even some ground of public policy where disclosure
would be detrimental to the public interest (see State of Uttar Pradesh v. Raj Narain
[1975] AIR 865).

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See also Annamalay Retnam v. Mah Chong Peng & Anor [2010] CA
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1.9 Facts in issue and relevant facts

By virtue of s. 5 EA 1950, only facts in issue and facts declared to be relevant by the Act
(relevant facts) may be given in evidence.

1.9.1 Facts in issue

The term “facts in issue” is defined under s. 3 EA 1950 to mean “any fact from which either
by itself or in connection with other facts, the existence, non-existence, nature or extent of
any right, liability or disability asserted or denied in any suit or proceeding necessarily
follows”.

In civil cases, the facts in issue are all the facts that the parties must prove, as settled in their
pleadings, in order for them to succeed in their cases respectively; How Paik Too v.
Mohideen [1968] 1 MLJ 51 FC.

Whereas in criminal cases, the facts in issue are the ingredients of the offence (actus reus
and mens rea) including the identity (and defences) of the accused that must be proved
(and/or disproved) by the prosecution to obtain a conviction and the defences (if any) that
must be proved by the accused to obtain an acquittal; R v Sims [1946] 1 All ER 697; The
Illustration to the definition of “fact in issue” under s. 3 EA 1950.

1.9.2 Relevant facts

A fact is relevant when it is connected to the facts in issue. S. 3 EA 1950, under the term
“relevant”, provides that “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”. Hence, relevant facts are facts rendered relevant under Chapter II of
the EA 1950 (ss. 5 – 55 EA 1950). For examples, evidence of opportunity (s. 7), evidence of
motive, preparation and conduct (s. 8), evidence of identity (s. 9), admissions (s. 21),
information leading to discovery of a fact (s. 27), expert opinion (s. 45) and etc.

1.10 Weight and Admissibility

Weight of evidence refers to the probative or evidential value of a piece of evidence as
assessed by the court.

The question of weight of evidence arises only if the evidence in question is admissible. Thus,
if the evidence is irrelevant or is excluded by one of the exclusionary rules of evidence (for e.g.
the rule against hearsay), then the issue of weight does not arise as the evidence is
inadmissible in the first place.

The process of determining the weight to be attached to a piece of evidence is a qualitative

assessment carried out by the court. See also s. 134 EA 1950.

In assessing the weight to be attached to a particular piece of evidence, the court will take
into account:-

 the nature of the evidence – whether it is direct or circumstantial; oral or documentary;

primary of secondary;

 the credibility of the evidence – whether the witness is an interested witness (for e.g.
accomplice, close relative and etc.); the manner in which the evidence was obtained;

 the consistency of the evidence itself and whether it is consistent with and
corroborated by other evidence.

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There are a few provisions in the Evidence Act 1950 which deal with the weight of specific
evidence. For e.g. s. 73A(6) which deals with the weight to be attached to documentary
evidence admissible under s. 73A(1) and (2); s. 90B which deals with the weight to be attached
to documents produce by computer admissible under s. 90A; and s. 158 which deals with
the weight to be attached to evidence admissible under ss. 32 and 33 as exceptions to the
rule against hearsay.

However, there is no hard and fast rule that regulates the assessment of weight of evidence.
Each case has to be determined on its own facts and circumstances having regards to the
settled rules of evidence and common sense.

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