LAW OF EVIDENCE II

OPINION EVIDENCE

A. INTRODUCTION

1. As a general rule a witness may only testify on facts perceived. He or she cannot give his
opinion when testifying in court.

2. An opinion is defined as: conclusions drawn from facts.

3. S.3 Evidence Act 1950 defines facts as :

“means and includes:-

(a) any thing, state of things or relation of things capable of being
perceived by the senses;
(b) any mental condition of which any person is conscious;”

4. To allow opinion evidence will usurp the function of the court which is the trier of fact.
It is the function of the court to draw inferences from facts and draw conclusions.

5. The rule against opinion evidence is subject to exceptions. In areas where special
knowledge or skills are required to draw conclusions opinion evidence may be admissible.
These areas fall beyond the scope of knowledge & skills of the courts. The court will not be
able to come to a decision without the assistance of those with special knowledge and
skills.

6. Cases:
SYED ABU BAKAR V PP[1984]2 MLJ 19
CHOU KOOI PANG V PP [1998]3 SLR 593

7. Sections 45 to 51 of the Evidence Act govern the admissibility of opinion evidence. Opinion
evidence can be provided by both expert and non -expert witnesses.
Opinion Evidence within the Evidence Act 1950 is governed by the following sections:
a. EXPERTS
S.45
S.46
S.51
b. NON EXPERTS
S.47
S.48
S.49
S.50
S.51

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B. STATUTORY PROVISIONS
EVIDENCE ACT 1950

SECTION 45.  Opinions of experts.

(1) When the court has to form an opinion upon a point of foreign
law or of science or art, or as to identity or genuineness of
handwriting or finger impressions, the opinions upon that point of
persons specially skilled in that foreign law, science or art, or in
questions as to identity or genuineness of handwriting or finger
impressions, are relevant facts.

(2) Such persons are called experts.

ILLUSTRATIONS

(a) The question is whether the death of A. was caused by poison.

The opinions of experts as to the symptoms produced by the poison

by which A. is supposed to have died are relevant.

(b) The question is whether A., at the time of doing a certain act,
was, by reason of unsoundness of mind, incapable of knowing the
nature of the act or that he was doing what was either wrong or
contrary to law.

The opinions of experts upon the question whether symptoms

exhibited by A. commonly show unsoundness of mind, and whether
such unsoundness of mind usually renders persons incapable of
knowing the nature of the acts which they do or of knowing that
what they do is either wrong or contrary to law, are relevant.

(c) The question is whether a certain document was written by A.

Another document is produced which is proved or admitted to have
been written by A.

The opinions of experts on the question whether the two documents

were written by the same person or by different persons are
relevant.

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SECTION 46.  Facts bearing upon opinions of experts.

Facts not otherwise relevant are relevant if they support or are

inconsistent with the opinions of experts when such opinions are
relevant.

ILLUSTRATIONS

(a) The question is whether A. was poisoned by a certain poison.

The fact that other persons who were poisoned by that poison
exhibited certain symptoms, which experts affirm or deny to be the
symptoms of that poison, is relevant.

(b) The question is whether an obstruction to a harbour is caused

by a certain sea-wall.

The fact that other harbours similarly situated in other respects

but where there were no such sea-walls began to be obstructed at
about the same time is relevant.

SECTION 47.  Opinion as to handwriting when relevant.

When the court has to form an opinion as to the person by whom

any document was written or signed, the opinion of any person
acquainted with the handwriting of the person by whom it is
supposed to have been written or signed, that it was or was not
written or signed by that person, is a relevant fact.

Explanation - A person is said to be acquainted with the

handwriting of another person when he has seen that person write,
or when he has received documents purporting to be written by
that person in answer to documents written by himself or under his
authority and addressed to that person, or when, in the ordinary
course of business, documents purporting to be written by that
person have been habitually submitted to him.

ILLUSTRATIONS

The question is whether a given letter is in the handwriting of A., a

merchant in London.

B. is a merchant in Kuala Lumpur, who has written letters

addressed to A. and received letters purporting to be written by
him. C. is B's clerk, whose duty it was to examine and file B's
correspondence. D. is B's broker, to whom B. habitually submitted

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the letters purporting to be written by A. for the purpose of
advising him thereon.

The opinion of B., C. and D. on the question whether the letter is

in the handwriting of A. are relevant, though neither B., C. nor

SECTION 48.  Opinion as to existence of right or custom when relevant.

When the court has to form an opinion as to the existence of any

general custom or right, the opinion as to the existence of such
custom or right of persons who would be likely to know of its
existence, if it existed, are relevant.

Explanation - The expression "general customs or right" includes

customs or rights common to any considerable class of persons.

ILLUSTRATION

The right of the inhabitants of a particular village to use the water

of a particular well is a general right within the meaning of this
section.

SECTION 49.  Opinion as to usages, tenets, etc. when relevant.

When the court has to form an opinion as to -

(a) the usages and tenets of any body of men or family;

(b) the constitution and government of any religious or charitable

foundation; or

(c) the meaning of words or terms used in particular districts or by

particular classes of people,

the opinions of persons having special means of knowledge

thereon are relevant facts.

SECTION 50.  Opinion on relationship when relevant.

(1) When the court has to form an opinion as to the relationship of

one person to another, the opinion expressed by conduct as to the
existence of such relationship of any person who as a member of

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 the family or otherwise has special means of knowledge on the
subject is a relevant fact.

(2) Such opinion shall not be sufficient to prove a marriage in

prosecutions under section 494, 495 or 498 of the Penal Code
(F.M.S. Cap. 45).

ILLUSTRATIONS

(a) The question is whether A. and B. were married.

The fact that they were usually received and treated by their
friends as husband and wife is relevant.

(b) The question is whether A. was a legitimate son of B.

The fact that A. was always treated as such by members of the

family is relevant.

SECTION 51.  Grounds of opinion when relevant.

Whenever the opinion of any living person is relevant, the grounds

on which his opinion is based are also relevant.

ILLUSTRATION

An expert may give an account of experiments performed by him for

the purpose of forming his opinion.

Note: SECTION 73(2) EVIDENCE ACT 1950

C. MAIN CASE LAW

Distinction Between What Is An Opinion And What Is A Fact Is

Highly Subjective
KHOO HI CHIANG V PP [1994] 1 MLJ 265
When is there a need for experts?
ONG CHAN TOW V R [1963]1 MLJ 160
WONG SWEE CHIN V PP[1981]1 MLJ 212
R V TURNER [1975]1 ALL ER 70,CA
LOWREY V R [1974]AC 85,PC
Types of Experts
PP V SAAD BIN MAT TAKRAW[1998]3 MLJ 784

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Science /Art
CHANDRASEKARAN V PP [1971] 1 MLJ 153
D.P. VIJANDRAN V PP [1999] 1 CLJ 691  
LEONG WING KONG V PP [1994]2 SLR 54
PP V LEE EE TEONG [1953]MLJ 244
R V LIM CHIN SHANG [1957]MLJ 125
Handwriting
LETCHUMANAN CHETTIAR ALAGAPPAN (AS EXECUTOR TO SL
ALAMELOO ACHI (DECEASED)) & ANOR v. SECURE
PLANTATION SDN BHD [ 2017] 5 CLJ 418  
MOHAMAD KASSIM BIN YATIM V PP [1977] 1 MLJ 64
SRIKANT V KE [1905]2 ALJ 444
DALIP KAUR [1992]1 MLJ 1
UAB v TAI SOON HENG [1993] 1 MLJ 182
DR SHANMUGANATHAN V PERIASAMY [97]3 MLJ 61
Fingerprints
OM PRAKASH CASE [AIR 1972 SC 975]
TOH KEE HUAT [65]1 MLJ 76
Qualifications & Procedure
JUNAIDI BIN ABDULLAH [1993] 3 MLJ 217
KONG NEN SIEW V LIM SIEW HONG [1971] 1 MLJ 262
PP V MUHAMED BIN SULAIMAN [1982] 2 MLJ 320
PP V SAM HONG CHOY [1995]4 MLJ 121
DATO MOKTHAR HASHIM V PP[1983] 2 MLJ 232
WONG CHOP SAOW V PP [1965]1 MLJ 247
LIN LIAN CHEN V PP [1991]1 MLJ 316
KUMARAGURU V PP [1994]1 MLJ 254
Function Of The Court
SIM AH OH V PP [1962] MLJ 42
SIM AH SONG V R [1951] MLJ 150
PP V ANG SOON HUAT [1991]MLJ 1
DATO' SERI ANWAR IBRAHIM v. PP [2015] 2 CLJ 145,FC

Conflict between 2 experts

PP V ANG SOON HUAT [1991]MLJ 1
DATO' SERI ANWAR IBRAHIM v. PP [2015] 2 CLJ 145,FC

CASES ON DNA EVIDENCE

NOTE S.90A EVIDENCE ACT 1950

PP V LOO SENG YIP[2004] 8 CLJ 496,HC  

HANAFI MAT HASSAN V PP [2006] 3 CLJ 269  ,CA
AHMAD NAJIB ARIS V PP [2009] 2 CLJ 800  ,FC
DATO' SERI ANWAR IBRAHIM v. PP [2015] 2 CLJ 145,FC

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D. TEXT / READING LIST

1. Augustine Paul, Evidence Practice and Procedure (4th edn, LexisNexis 2010), page 511-564.

2. Jeffrey Pinsler, Evidence, Advocacy and the Litigation Process (5th edn, LexisNexis,
Singapore 2015) , Chapter 8.

3. Hamid Sultan Abu Bakar , Janab’s Key To The Law of Evidence (4th edn, Janab 2014) page
451-474.

4. Mariette Peters, Law of Evidence in Malaysia (LexisNexis, Malaysia, 2013), Chapter 10.

E. ARTICLES

1. Dr. Mohd Munzil , “Things That Defence Lawyers In Malaysia Should Know When Dealing
With DNA Evidence In Criminal Trials: Various Techniques Of DNA Analysis In Forensic
Investigation” ,[2018] MLJ clvi.

F. e-LEARNING ACTIVITY
1. Students to read online case report on Canny Ong’s case on the admission of DNA evidence.
AHMAD NAJIB ARIS V PP [2009] 2 CLJ 800  ,FC

2. Students to read online case report on DATO' SERI ANWAR IBRAHIM v. PP [2015] 2 CLJ
145,FC case on the challenging of DNA evidence