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(SECTION 7, 8 & 9)

History of Act

The Evidence Act 1950 is the main source of the law

of evidence in Malaysia. The Evidence Act 1950 is
modeled on the Indian Evidence Act which is a
codified form of English Law.

Per Thomson CJ (as he then was) in Looi Wooi Saik

v PP [1962] MLJ 337, 339 (CA) stated:
In this country the question is governed by the terms
of the Evidence Ordinance which is the same as the
Indian Evidence ActIt is generally accepted that
the Indian Act was drafted by Sir James Stephen in
1872 with the intention of stating in a codified form
of English law relating to evidence as it stood at that

The Indian Evidence Act, originally passed by the

British parliament in 1872, contains a set of rules
and allied issues governing admissibility of any
evidence in the Indian courts of law.

Sir James Fitzjames Stephen, (March 3,

1829 - March 11, 1894

Purpose of rules of evidence

Sharma J in PP v Sanassi [1970] 2 MLJ 198 provides the
purposes of the law of evidence are:
To regulate the proving of facts in judicial proceedings so
that the relevant substantive law can be applied to proved
To ensure justice by providing for set of rules so that cases
are treated alike where the rules of evidence are concerned.
To limit or restrict the investigations made by the courts
within the bounds prescribed by general convenience. In
other words, to limit the evidence to materials facts and not
to waste time discussing issues, which are too remote or
which would raise multiplicity of issues.
To ensure the tendering of the best evidence possible.
To protect the accused as well as the public and to ensure a
fair trial.

Law of Evidence: Is It Substantive or


In all lawsuits involving Conflict of Laws, questions

of procedure as opposed to substance are always
determined by the lex fori, i.e. the law of the state in
which the case is being litigated.

All questions of evidence to determine the

admissibility and probative value of evidence and
whether a witness is competent, are dealt with under
the lex fori. Foreigners are tried to our procedure and
law of evidence.

See Bain v. Whitehaven and Furness Junction Ry.

Co. (1850) 3 H.L. Cas. 1.

The Role of the Common Law

There have been frequent references to the common

law by the local courts and the common law plays a
significant part in law of evidence which cannot be
ignored. However it is submitted that the courts
should seeks the answer in the Evidence Act 1950
first and should only refer to the common law where it
is absolutely necessary (where there is an ambiguity
or where there is a lacuna).

See The Governor and Company of the Bank of

England v Vagliano Brothers [1891] AC 107;
Jayasena v. R [1970] 1 All ER 219; PP v Sanassi
[1970] 2 MLJ 198; PP v Yuvaraj [1969] 2 MLJ 89 &
PP v Glenn Knight Jeyasingam [1999] 2 SLR 499.


Section 3 of EA 1950,
Evidence includes:
(a) all statements which the court permits or requires to be
made before it by witnesses in relation to matters of fact
under inquiry: such statements are called oral evidence;

(b) all documents produced for the inspection of the

court: such documents are called documentary evidence;

However, the use of the word includes is intended to

make the definition of evidence in the section extensive.
This means that the meaning of the word evidence in the
section goes beyond the narrow statutory meaning
explicitly set out.

This view is based in the case of Chin Seow Noi v PP

[1994] 1 SLR 135 where Yong Pung How CJ said at page
156 that The use of the single word includes in our
section 3 is clearly intended to make the definition of
evidence an extensive one.

Types of evidence

Facts in issue & relevant facts

Section 5 of EA 1950, Evidence may be given of facts in issue

and relevant facts. It 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.

This section lays down the rule that evidence may be given only
of fact in issue and others facts declared by this Act to be relevant,
and no other.

Facts in issue

Fact in issue in civil proceeding

- It is identifiable from the pleadings. The
whole point of which is to set out the parties
allegations, admissions, and denials. Matter
which are left open in dispute.
- See How Paik Too v Mohideen [1968] 1
MLJ 51, 52.

Fact in issue in criminal proceeding

- In any event, whenever there is a plea of not
guilty, everything is in issue and the
prosecution have to prove the whole of their
case, including the identity of the accused, the
nature of the act and the existence of any
necessary knowledge or intent.
- See R v Sims [1946] 1 All ER 697, 701.

Relevant facts
Section 3 of EA 1950 provides that:
- relevant mean 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.
Whatever is logically probative is not necessarily
admissible in evidence unless it is so declared under the
Act. Matters that are logically relevant but not legally
admissible include privileges, hearsay and character
PP v Haji Kassim (1971) 2 MLJ 115 stated that If any
fact is sought to be introduced in evidence it must be
relevant and admissible under section 5.
Chong Siew Fai CJ in Thavanathan a/l Subramaniam
v PP [1997] 2 MLJ 401 at page 409 stated that Of the
law of evidence, the cardinal rule relating to relevancy
is that subject to exclusionary rules, all evidence which
sufficiently relevant to the facts in issue is admissible.


Per Thesiger J in R v Harz [1966] 3 All ER 433, 449 stated that:

- The main general rule governing the entire subject is that evidence which is
sufficiently relevant to an issue before the court is admissible and all that is
irrelevant or insufficiently relevant should be exclude. Thus the word relevant is
to all intents and purposes synonymous with the phrase of probative value.

Lord Simmon of Glaisdale in DPP v Killbourne [1973] AC 729 evidence is

relevant if it is logically probative or disapprobative of some matter which
requires proof.

o Per Lawton LJ in R v Turner [1975] 1 ALL ER 70 states:

- Relevance, however, does not result in evidence being admissible: it is a
condition precedent to admissibility. Our law excludes evidence of many
matters which in life outside the court sensible people take into consideration
when making decisions. Two broad heads of exclusion are hearsay and
opinion. Facts declared to be relevant by the Act are contained in section 6 to
55 (Part One, Chapter Two).