This document summarizes key sections of the Malaysian Evidence Act 1950 regarding the admissibility of evidence in court. It discusses: Section 10, which makes the acts and statements of co-conspirators admissible against all conspirators under certain conditions. Section 12, which makes any fact relevant that would enable the court to determine the appropriate amount of damages. Section 13, which makes transactions and instances relevant when establishing the existence of a right or custom.

1. Corroboration (EVIDENCE II)
TESTES
PONDERANTUR
NON
NUMERANTUR
MATTER
OF
LAW
MATTER
OF
PRACTICE/
PRUDENT
EXCEPTIONS
UNSWORN
EVIDENCE
OF A
CHILD
SEDITIOUS
ACT
ENTRIES IN
BOOKS
OF
ACCOUNT
SEXUAL
OFFENCES
SWORN
EVIDENCE
OF A
CHILD
IDENTITY
EVIDENCE
EVIDENCE
OF AN
ACCOMPLICE
OTHER
EXCEPTION
PREVIOUS
STATEMENT

2. SECTION 10 OF EA 1950
• Section 10 provides for Things said or done by conspirator in reference to common design which states “Where
there is reasonable ground to believe that two or more persons have conspired together to commit an offence or
an actionable wrong, anything said, done or written by any one of those persons, in reference to their common
intention after the time when the intention was first entertained by any one of them, is a relevant fact as against
each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was a party to it”. The object of this section is to
make the acts and statements of a co-conspirator admissible against all the conspirators. Per Subba Rao J in
Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682 provides that the section can be analysed as
follows:
• There shall be a prima facie evidence affording a reasonable ground for a court to believe that two or more
persons are members of a conspiracy;
• If the said condition fulfilled, anything said, done or written by any one of them in reference to their common
intention will be evidence against the other;
• Anything said, done or written by him should have been said, done or written by him after the intention was
formed by any one of them;
• It would also be relevant for the said purpose against another who entered the conspiracy whether it was said,
done or written before or entered the conspiracy or after he left it; and
• It can only be used against a co-conspirator and not in his favor.
• This section does not include a statement made by one conspirator in the absence of the other with reference to
past acts done in the actual course of caryying out the conspirator after it has been completed. In Liew Kaling v.
PP [1960] MLJ 306 it was held that “Statements made after the completion of a crime are not admissible for the
purpose of proving conspiracy”. In Khalid Panjang & Ors. v. PP [1964] MLJ 108 it was held that “A statement
made after the carrying out of a conspiracy is inadmissible to prove the conspiracy; ‘common intention’ signifies
a common intention existing at the time when the statement was made”. Where evidence has been admitted on a
conspiracy charge it becomes inadmissible when new evidence displace the reasonable belief of conspiracy (See
HHB Gill v The King AIR 1948 PC 128)

3. SECTION 12 OF EA 1950
• Section 12 provides in suits for damages facts tending to enable court to determine
amount are relevant which states “In suits in which damages are claimed any fact which
will enable the court to determine the amount of damages which ought to be awarded is
relevant”. Section 5 relates to the admissibility of evidence of a fact in issue. What has
been made relevant by this section is capable of falling within the ambit of section 5 as
well. This section is merely more specific and relates to the relevancy of evidence in
determining the amount of damages which ought to be awarded.
• Per Ong Hock Thye FJ in Guan Soon Tin Mining Co v Wong Fook Hun [1969] 1 MLJ
99 states that “The respondent, as plaintiff, of course had to discharge the burden of
proving both the fact and the amount of damages before he could recover. Where he
succeeded in proving neither fact nor amount of damage he must lose the action or, if a
right was infringed, he would recover only nominal damages. Where he succeeded in
proving the fact of damage, but not its amount, he would again be entitled to an award of
nominal damages only. This statement of the law is concisely stated in Mayne &
McGregor on Damages (12th Ed.) para 174.
• For its practical application I would quote Lord Goddard C.J. in Bonham-Carter v Hyde
Park Hotel Ltd (1948) 64 TLR 177 at 178:-- "Plaintiffs must understand that if they
bring actions for damages it is for them to prove their damage; it is not enough to write
down the particulars and so to speak, throw them at the head of the court, saying, 'This is
what I have lost: I ask you to give me these damages.' They have to prove it."

4. SECTION 13 OF EA 1950
• Section 13 provides facts relevant when right or custom is in question which states “Where
the question is as to the existence of any right or custom the following facts are relevant:
(a) any transaction by which the right or custom in question was created, claimed,
modified, recognized, asserted or denied or which was inconsistent with its existence; (b)
particular instances in which the right or custom was claimed, recognized or exercised or
in which its exercise was disputed, asserted or departed from”.
• Manner of establishing a custom is stated by Horne J in Haji Saemah v Haji Sulaiman
[1948] MLJ 108 that “There is a wealth of authority as to how a custom must be
established and the effect of those authorities is concisely stated in the 9th edition Law of
Evidence ( Woodroffe and Ameer Ali), page 175:-- 'Custom' as used in the sense of a rule
which in a particular district, class, or family has from long usage obtained the force of law
must be ancient, continued, unaltered, uninterrupted, uniform, constant, peaceable and
acquiesced in, reasonable, certain and definite, compulsory and not optional to every
person to follow or not. The acts required for the establishment of customary law must
have been performed with the consciousness that they spring from a legal necessity...”.
• In Low Bee Hoe (w) v Morsalim [1947] MLJ 3 it was held, that the alleged custom of
paying rent in advance was wrongly imported into the case, as it was clear that it cannot
satisfy the definition of custom and such a practice ought not to be taken as general and
binding upon parties in the absence of evidence that they have agreed to follow it, and
therefore the finding of fact in favour of the landlord could not be supported.