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LAW 4211
EVIDENCE
II
Evidence II
By Bro Muzaffar Shah
Mallow
EVIDENCE 2
(OUTLINE)
DOCUMENTARY
EVIDENCE
PRESUMPTIONS
CORROBORATION
ESTOPPEL
EVIDENCE 2
(OUTLINE)
PRIVILEGES
EXAMINATION
OF
WITNESS
STANDARD
&
BURDEN OF PROOF
Document
&
Content of Document
Document & content of a document
According to Evidence Act 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 (Keterangan
meliputi (a) segala pernyataan yang dibenarkan atau
dikehendaki oleh mahkamah dibuat di hadapannya oleh saksi-
saksi behubungan dengan perkara-perkara fakta yang disiasat:
pernyataan sedemikian disebut keterangan lisan: (b) segala
dokumen yang dikemukakan bagi pemeriksaan
mahkamah: dokumen-dokumen sedemikian disebut
keterangan dokumen)
Document & content of a document
 Document means any matter expressed, described or howsoever represented, upon any substance,
material, thing or article, including any matter embodied in a disc, tape, film, sound track or other
device whatsoever, by means of :
 (a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation
whatsoever; (b) any visual recording (whether of still or moving images); (c) any sound recording, or any
electronic magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds,
electronic impulses, or other data whatsoever; (d) a recording, or transmission, over a distance of any matter
by any, or any combination, of the means mentioned in paragraph (a), (b), or (c) or by more than one of the
means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose
of expressing, describing, or howsoever representing, that matter;
 Dokumen ertinya apa-apa hal yang dinyatakan, diperihalkan, atau bagaimana jua pun digambarkan,
atas apa-apa benda, bahan, barang atau artikel, termasuklah apa-apa hal yang terkandung dalam
cakera, pita, filem, runut bunyi atau apa jua pun peranti lain, dengan menggunakan:
 (a) huruf, angka, tanda, symbol, isyarat, lambing, atau apa jua pun bentuk pernyataan, perihal, atau gambaran
lain; (b) apa – apa rakaman visual (sama ada imej kaku atau bergerak); (c) apa – apa rakaman bunyi, atau apa
– apa jua pun rakaman elektronik, magnetik, mekanikal atau rakaman lain dan walau bagaimana jua pun
dibuat, atau apa – apa bunyi, dednyut elektronik, atau apa jua pun data lain; (d) suatu rakaman, atau
pemancaran, dari suatu jarak, apa – apa hal dengan mana – mana, atau apa – apa kombinasi, cara yang disebut
dalam perenggan (a), (b) atau (c), atau dengan lebih daripada satu cara yang disebut dalm perenggan (a), (b),
(c), dan (d), yang dimaksudkan untuk digunakan atau yang mungkim digunakan bagi tujuan menyatakan,
memperihalkan, atau dengan apa jua cara sekalipun menggambarkan, hal itu;
Document & content of a document
 ILLUSTRATIONS (MISALAN)
 A writing is a document. (Tulisan ialah dokumen)
 Words printed lithographed (method for printing using a plate or stone with a completely smooth surface) or
photographed are documents. (Perkataan yang dicetak, dilitografkan atau difotografkan ialah dokumen)
 A map, plan, graph or sketch is a document. (Peta, pelan, graf atau lakaran ialah dokumen)
 An inscription on wood, metal, stone or any other substance, material or thing is a document. (Inskripsi pada
kayu, logam, batu, atau apa – apa benda, bahan atau barang lain ialah dokumen)
 A drawing, painting, picture or caricature is a document. (Lukisan, citra, gambar atau karikatur ialah
dokumen)
 A photograph or a negative is a document. (Fotograf atau negatif ialah dokumen)
 A tape recording of a telephonic communication, including a recording of such communication transmitted
over distance, is a document. (Rakaman pita komunikasi telefon, termasuklah rakaman komunikasi
sedemikian yang dipancarkan dari suatu jarak, ialah dokumen)
 A photographic or other visual recording, including a recording of a photographic or other visual transmission
over a distance, is a document. (Rakaman fotografi atau rakaman visual lain, termasuklah rakaman
pemancaran fotografi atau pemancaran visual lain dari suatu jarak, ialah dokumen)
 A matter recorded, stored, processed, retrieved or produced by a computer is a document; (hal yang
dirakamkan, disimpan, diproses, didapatkan semula atau dikeluarkan oleh computer ialah dokumen)
Document & content of a document
Documentary evidence:
Documentary evidence is any
evidence introduced at a trial in
the form of documents.
Although this term is most
widely understood to mean
writings on paper (such as an
invoice, a contract or a will), the
term also include any media by
which information can be
preserved.
Document & content of a document
Photographs (R. v.
Maqsud Ali [1965] 2
All ER 464 at p. 469
Schmidt v. Schmidt
[1969] QWN 3 at 5;
R. v. Lambert [1967]
Crim. LR 480 & R. v.
Howe [1958] SASR
95 at 125-6).
Document & content of a document
Tape recordings (Mohd Ali Jaafar
v PP [1998] 4 MLJ 210, Ghazali Bin
Salleh v PP [1993] 2 AMR 2037),
Z.B. Bukhari v. B.R. Mehra AIR
1975 SC 1788, Yusufalli v. State
AIR 1968 SC 147, R. v. Mills
[1962] 3 All ER 298, & Gurbachan
Singh v. PP [1966] 2 MLJ 125 at p.
132).
Document & content of a document
• Video recording (R. v. Fowden
and White [1982] Crim. LR
588).
Document & content of a document
• Facsimile letter (Tempil
Perkakas Sdn Bhd v Foo Sex
Hong [1996] 5 MLJ 542)
Authentication of documentary evidence
(Section 61 – 66 of EA 1950)
Authentication
process
First step:
The genuineness of every
document must be proven
(See sections 64 & 65 of
EA 1950)
Second step:
Proving the content
of the document:
(See sections 61, 62, and 63 of
EA 1950)
First step: The genuineness of every document must
be proven (See sections 64 & 65 of EA 1950).
Section 64 provides documents must be proved by primary evidence
except in the cases hereinafter mentioned. (Dokumen – dokumen mestilah
dibuktikan dengan keterangan primer kecuali dalm hal – hal yang tersebut
kemudian daripada ini). This section provides that documens must be
proved by primary evidence. It is based on the best evidence rule. Section
62 of the Act says that primary evidence means the document itself
produced for the inspection of the court. (Dokumen itu sendiri yang
dikemukakan untuk pemeriksaan mahkamah).
Per Edgar Joseph Jr J (as he then was) in Popular Industries Ltd v Eastern
Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, 368 states “It is
firmly established rule under section 64 that requiring that when
documentary evidence is tendered, primary evidence of the document, that
is to say the production of the document itself is essential”.
Per Mohd Dzaiddin SCJ in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994]
2 MLJ 627, 631 states that “It is well-established rule of evidence that
when documentary evidence is tendered, primary evidence of the said
document must be adduced except in cases under section 65”. Section 65
provides for cases in which secondary evidence relating to documents may
be given. (Hal – hal dalam mana keterangan sekunder bagi dokumen boleh
diberi)
First step: The genuineness of every document must
be proven (See sections 64 & 65 of EA 1950).
• Method of proof of a document: Authentication of a document maybe
provided by having its author appear as a witness, calling a witness who
was present when it was signed (Section 67 – 73), or calling one who can
identify the handwriting (Section 45 & 47) or draw presumption under
section 90 (Ancient document). Per Augustine Paul JC (as he then was) in
Alliedbank (M) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, 14 “It is settle law
where a document is sought to be proved in order to establish the truth of the
facts contained it, the maker has to be called. Non compliance with this rule
will result in the contents of the documents being hearsay” See also R v
Gillespie (1967) 51 Cr App R 172; R v Plumer (1814) R & R 264; Hill v
Baxter [1958 1 QB 277; and R v Moghal [1977] Crim LR 373).
• It is a requirement of the best evidence rule that the maker of a document
must be called to prove it. The question of admissibility of documents per se
is a question of law (See Au King Chor v PP [1985] 1 MLJ 216). It falls
upon the party seeking to produce a document to show that it is admissible in
law (See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1
MLJ 301). The provisions of the Act as to the mode of proof of any
document applies equally both to the prosecution and the defense (See
Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360)
No Authentication = Documentary hearsay
• Myers v Director of Public Prosecutions [1965] AC 1001, the appellant was convicted
together with another man of offences relating to the theft of motor cars. The prosecution
case was to prove that the disguised cars were stolen by reference to the cylinder block
numbers indelibly (permanently) stamped on their engines. Therefore, they sought to
adduce evidence, which derived from records kept by a motor manufacturer. The witnesses
called were the employees of the manufacturers of the cars who were in chaarge with the
keeping of those records/data and not with their compilation. The defense counsel objected
to the admission of such evidence since it was hearsay. The manufacturer’s records could
not be tendered as proof of the truth of the facts stated. The trial judge however, admitted
the evidence and convicted the appellant. The appellant then appealed to the Court of
Criminal Appeal on the ground that the evidence ought to have been excluded but his
appeal was dismissed. On appeal to the House of Lords it was held that the records
constituted inadmissible hearsay evidence. The officer who was called in this case could not
prove such records were correct. The appeal was then allowed and the conviction was set
aside.
No Authentication = Documentary hearsay
• In Tan Siak Heng v. Rex [1950] 16 MLJ 214, the
conviction of the accused for criminal breach of trust
was quashed on appeal because at his trial written
hearsay evidence was wrongly admitted. The appellant
was employed as ca onductor by a bus company. On a
charge of criminal breach of trust against him it was
proved that he had issued a used ticket to a passenger
who happened to be a detective. To prove the criminal
breach of trust, a deputy accountant of the bus company
was allowed to tender in evidence certain records to
show that the money received had not been paid to the
company. However, these records were not compiled by
the witness and furthermore he had no personal
knowledge of the facts recorded. Apart from these
records there was no evidence of the failure to pay over
the money. The appellant's appeal was allowed because
clearly inadmissible written hearsay evidence was
wrongly admitted.
No Authentication = Documentary hearsay
In Patel v. Comptroller of Customes
[1966] AC 356 where the appellant was
charged with making a false entry in
that he declared the origin of the
coriander seeds to be India whereas it
was Morocco. The prosecution relied
entirely on the labels and markings
which asserted that the goods were the
"produce of Morocco". On appeal the
Privy Council held that the legend
"produce of Morocco" written on the
bags was from an evidential point of
view inadmissible against the appellant
as hearsay, and that the list of
exceptions to the hearsay rule could not
be extended to include such things as
labels or markings. Perhaps the reason
to exclude labels or markings as
exceptions to the hearsay rule can be
found in the judgment of Lord Hodson
“Nothing here is known of when and
by whom the markings on the bags
were affixed and no evidence was
called to prove any fact which tended to
show that the goods in question in fact
came from Morocco”.
No Authentication = Documentary hearsay
In Beh Heng Seong v PP [1972] 2 MLJ 190,
the appellant was charged with a breach of
the Sale of Food and Drugs Regulations by
manufacturing sour plum juice in which there
was saccharin (Artificial sweetener). This is
prohibited for the use in the manufacturer of
food or drinks. The prosecution sought to
adduce evidence that a bottle of the sour
plum juice offered for sale was labeled with a
piece of paper bearing a certain portrait
which was alleged to be manufactured by one
Beh Kwang Chee. However, there was no
indication as to whether Beh Kwang Chee
was a shop or of the address of this person or
the shop. It was held that the allegations on
the label must be regarded as hearsay and
inadmissible.
No Authentication = Documentary hearsay
In Sim Tiew Bee v. PP [1973] 2 MLJ 200,
the appellant had been charged and
convicted of the offence of being concerned
in the importation of uncustomed goods. At
the trial the evidence of the following
documents was tendered and admitted:
(a) the ship’s manifest without the master or
the officer responsible for the document
being called to prove the contents;
(b) the tally sheet prepared by a tally-clerk
who was called to give evidence but who
stated that the measurements were taken by
a coolie in the presence of the tally-clerk;
The Federal Court held that evidence (a)
and (b) should not have been admitted,
unless the absence of the maker could be
explained, which then would have been
admitted as an exception to the rule against
hearsay as specifically provided by s. 32.
Second step: Proving the content of the document
(See section 61, 62 & 63 of EA 1950)
In proving the contents of writing, the original of the writing is the best
evidence of its contents and must, therefore, be introduced (except in
certain situations) (See section 62 which provide for primary
evidence/keterangan primer) . When an admissible writing has been lost
or destroyed or cannot be produced, the contents may be proven by an
authenticated copy (section 63 (a) – (d) which provide for secondary
evidence/keterangan sekunder) or by the testimony of a witness who has
seen and can remember the writing (section 63 (e) See Ma Mi v
Kallander Ammal AIR 1927 PC 15, 16). Per Lord Esher MR Lucas v
William [1892] 2 QB 113, 116 “Primary evidence is evidence which the
law requires to be given first; secondary evidence is evidence which may
be given in the absence of the better evidence which the law requires to
be given first, when a proper explanation of its absence has been given”.
See also Jai Gopal Singh v Divisional Forest Officer AIR 1953 Pat 310,
311
Documentary Evidence & the best evidence rule
Documentary evidence is subject to the best evidence rule, which
requires that the original document be produced unless there is a good
reason not to do so. See section 104 illustration b. Section 104
provides the burden of proving any fact necessary to be proved in
order to enable any person to give evidence of any other fact, is on the
person who wishes to give the evidence. (Beban membuktikan fakta yang
perlu dibuktikan untuk membolehkan seseorang memberi keterangan
mengenai sesuatu fakta lain, terletak pada orang yang hendak memberi
keterangan itu). Illustration b of the section provides A wishes to prove
by secondary evidence the contents of a lost document. A must prove
that the document has been lost. (A hendak membuktikan dengan
keterangan sekunder kandungan suatu dokumen yang telah hilang. A
mestilah membuktikan bahawa dokumen itu hilang)
Ancient document
Presumption as to documents 20 years old i.e.
Ancient document
Section 90 provides Presumption as
to documents 20 years old, where any
document purporting or proved to be
twenty years old is produced from
any custody which the court in the
particular case considers proper, the
court may presume that the signature
and every other part of that document
which purports to be in the
handwriting of any particular person
is in that person's handwriting, and in
the case of a document executed or
attested, that it was duly executed
and attested by the persons by whom
it purports to be executed and
attested.
Presumption as to documents 20 years old i.e.
Ancient document
Anggapan mengenai dokumen yang 20
tahun lamanya
Jika sesuatu dokumen yang berupa atau
dibuktikan sebagai dua puluh tahun
lamanya dikemukakan dari sesuatu
simpanan yang difikirkan wajar oleh
mahkamah dalm hal tertentu itu,
mahkamah boleh menganggap bahawa
tandatangan dan tiap-tiap bahagian lain
dokumen itu yang berupa sebagai dalam
tulisan tangan seseorang tertentu adalah
di dalam tulisan tangan orang itu, dan
mengenai sesuatu dokumen yang
disempurnakan atau diakusaksi,
mahkamah boleh mengaggap bahawa
dokumen itu telah disempurnakan dan
diakusaksi dengan wajar oleh orang-
orang yang berupa sebagai telah
menyempurnakan dan
mengakusaksikannya
Presumption as to documents 20 years old i.e.
Ancient document
Section 90 of the Indian Evidence Act 1872
provides the presumption as to documents thirty
years old.-Where any document, purporting or
proved to be thirty years old, is produced from
any custody which the Court in the particular
case considers proper, the Court may presume
that the signature and every other part of such
document, which purports to be in the
handwriting of any particular person, is in that
person's handwriting, and, in the case of a
document executed or attested, that it was duly
executed and attested by the persons by whom it
purports to be executed and attested.
Presumption as to documents 20 years old i.e.
Ancient document
Requirements
under
section 90
Not less than
20 years old
Free from suspicion
Produce from
a proper custody
• An ancient document, in the law of evidence, refers to both
a means of authentication for a piece of documentary
evidence, and an exception to the hearsay rule.
Presumption as to documents 20 years old i.e.
Ancient document
The presumption goes only to the
genuineness of the document but not to
the truth of the contents. Per Sharma J in
Commissioners of the Municipality of
Malacca v Sinniah [1974] 1 MLJ 77, 79
“Private or public documents twenty
years old produced from proper custody
and otherwise free from suspicion prove
themselves and no evidence of the
handwriting, signature, sealing or
delivery need in general be given. If a
document twenty years old or more is
produced from proper custody and is on
its face free from suspicion the Court
may presume - (1) that it has been
signed or written by the person whose
signature appears or in whose
handwriting it purports to be; and
(2)that it has been fully attested and
executed if it purports/claim to be so.
Presumption as to documents 20 years old i.e.
Ancient document
 The period of 20 years is reckoned from the date the
document is tendered in evidence. Per Sir George Rankin
in Surendra Krishna v Mirza Mohammad AIR 1936 PC 15,
17: “Their Lordship are however of opinion that under
section 90 of the Evidence Act 1950, the period of 30
years is to be reckoned, not from the date upon which the
deed is filed in court but from the date on which, it
having been tendered in evidence”.
 Where only a copy of the document is produced, the
presumption under the section does not arise. Per Tan
Chiaw Thong J in Tsia Deevelopment Enterprise Sdn Bhd v
Awang Dewa [1984] 1 MLJ 301, 302 stated that “That the
production of a copy of the document is not sufficient to
justify the presumption of due execution of the original
under section 90. This ground is based on the Privy
Council case of Kunwar Basant Singh & Ors v Kunwar
Brij Raj Saran Singh (1935) IA 180.
Presumption as to documents 20 years old i.e. Ancient
document
 In raising the presumption under the section, the
court may rely on internal and external evidence of
the document See Per KC Vohrah J in Ghazali Bin
Arifin v Ahmad Bin Bakar [1992] 1 MLJ 282, 286
where the plaintiff is the son of Ariffin bin Osman
and the administrator of his estate. The defendants
are the beneficiaries of one Bakar bin Awang
Ahmad's estate. Both Ariffin and Bakar have died.
The plaintiff pleaded that his father, Ariffin,
purchased from Bakar 1/3 of Bakar's undivided
share, ie 1/3 of 4461/4609th share of the land held
under SP 9920 Lot 355, Mukim Bukit Pinang, Kota
Setar, Kedah. The land was alleged to have been
purchased pursuant to a sale and purchase
agreement dated according to the Muslim calendar,
11.6.1374 which corresponds with the Gregorian
calendar dated 3 February 1955. The defendants are
now registered owners of the said share. The
plaintiff seeks a declaration that the defendants are
bare trustees of the said share and for an order that
the defendants do execute a transfer of the said
share to him as administrator of the estate of Ariffin
bin Osman, deceased.

Presumption as to documents 20 years old i.e.
Ancient document
 Held, allowing the plaintiff's claim: (3) There
is one feature in the document which needs
further investigation, ie the date on which it
was stamped was the very same date on which
the alleged vendor of the land, died. If there is a
dispute as to the genuineness of such
documents (having regard to s 90 of the
Evidence Act 1950) , it is necessary for the
courts to consider the evidence external and
internal of the document in order to enable
them to decide whether in any particular case
they should or should not presume proper
signature and execution.
 (4) There is no evidence as to the time when
Bakar died. And there is nothing to indicate
that he could not have signed the document
because he had died earlier. On the other hand,
the evidence shows that the purported
purchaser of the land, Ariffin, had the
document of title in respect of the land in his
possession and was in occupation of the land
until he himself died in 1984. The inference is
that having regard to the common course of
natural events, Bakar must have passed it to
him.
Presumption as to documents 20 years old i.e.
Ancient document
If there is a dispute as to the genuineness of such documents (having
regard to s 90 of both the Malaysian and Indian Acts) one needs to
heed (take note/observed) what Madgavkar J said at p 40 in Mansukh
Panachand Shah v Trikambhai Icchabhai AIR [1930] Bom 39, after he had
referred to the Privy Council case of Shafiqunnissa v Shaban Ali Khan
[1904] 26 All 581: “... it is necessary, therefore, for the courts to
consider the evidence external and internal of the document in order
to enable them to decide whether in any particular case they should
or should not presume proper signature and execution.”
In excercsing the discretion vested in the court under section 90 of the
EA 1950, it is also important to exercise due care and caution as has
been pointing out in Ghulam v Allahdin 19 IC 964 and Jesu Lal v Gangga
Devi 20 IC 868.
Presumption as to documents 20 years old i.e.
Ancient document
Read together with section 4 (1). It is presumption of fact, it is a
permissive presumption, so it is up to the discretion of the court to
decide whether to accept it or not. Per Ong J in Mohamed Ali v PP
[1962] MLJ 230 states that “Presumptions of fact must not be drawn
automatically, or as it were, by rule of thumb, without first considering
whether in the circumstances of each particular case there adequate
grounds to justify any presumption being raised”.
If the document sought to be produced is not admissible under this
section, it is still open to the party tendering it to establish that it is
admissible under any other provision of the Act. See Tsia Development
Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301.
Public document
&
Private document
Public document
Public document: Public
documents are documents made
for the purpose of enabling the
public to use or refer to them.
Justice Blackburn in the case of
Sturla v Freccia (1880) 5 App. Cas.
623 defined a public document as
“a document that is made by a
public officer for the purpose of
public making use of it and being
able to refer to it”. In Loo Fang
Siang v Ketua Polis Daerah
Butterworth [1981] 2 MLJ 272,
Arunalandon J quoted Jowitt’s
Dictionary of English Law that “a
public document is defined as a
document made for the purpose
of the public making it”.
Public document
Section 74 provides the following documents are public documents:
(a) documents forming the acts or records of the acts of - (i) the
sovereign authority; (ii) official bodies and tribunals; and (iii) public
officers, legislative, judicial and executive, whether Federal or State
or of any other part of the Commonwealth or of a foreign country;
and (b) public record, kept in Malaysia of private documents.
(Dokumen – dokumen berikut adalah dokumen awam: a) dokumen yang
mengandungi tindakan atau rekod tindakan (i) kuasa pemerintah
berdaulat; (ii) badan – badan rasmi dan tribunal; dan pegawai – pegawai
awam, perundangan, kehakiman dan eksekutif, sama ada bagi Persekutuan
atau Negeri atau bagi mana – mana bahagian lain Komanwel atau sesuatu
Negara asing; dan (b) rekod awam mengenai dokumen persendirian yang
disimpan di Malaysia).
Public document
The definition of public document under this
section is wider than the English law
definition in the sense that section 74 does
not require the condition of public access to
the document to render it a public one; and
even when a right to inspect is not permitted,
a document may be a public document:
See Per Augustine Paul J in Gopinathan a/l
Subramaniam v Timbalan Menteri Dalam
Negeri [2000] 1 MLJ 65
Public document
 Section 74 provides for two (2) classes of public documents. The first class
includes the acts or records of the acts of certain authorities and officers.
Examples:
 Antony Gomez v. Ketua Polis Daerah, Kuantan [1977] 2 MLJ 24 (Federal Court) - A
first information report is a public document
 Khoo Siew Bee & Anor v. Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49 (High Court,
Malaya) - A cautioned statement is a public document.
 Toh Kong Joo v. Penguasa Perubatan Hospital Sultanah Aminah, Johore Baharu
[1990] 2 MLJ 235 - Medical reports made by medical officer are public
documents.
 Haji Abdul GhaniBin Ishak v PP [1980] 2 MLJ 196 - Uncautioned statement is a
public document.
 Pavone v PP [1986] 1 MLJ 72 - Notes of proceeding is a public document.
 Gopinathan a/l Subramaniam v Timbalan Menteri Dalam Negeri [2000] 1 MLJ 65 -
Report and certificate made by an officer under section 6 of the Drug Dependent
and Rehabilitation Act 1983 is a public document.
 Yeow Boon Kee v Timbalan Menteri Dalam Negeri Malaysia [1993] 2 MLJ 359 -
Report under section 3 (2) (c) of the Dangerous Drugs (Special Preventive
Measure) Act 1985 is a public document.
 Syarikat Jengka Sdn. Bhd. V Abdul Rashid Bin Harun [1981] 1 MLJ 201 (FC) -
Removal passes issued by the Forest Guard is a public document
Public document
The second class relates to public records of
private documents.
What constitutes a public document has to be
determined by court. There are certain guidelines
in the decisions of the court when determining
whether a document is a public document or not. In
the case of Maktab Din v Kasar Singh 1928 Lah.
640, “it was stated that in order to bring a
document within the definition of section 74, it
must have shown to have been prepared by a
public servant discharging his duty”.
Public document
Methods of proving public documents:
In Ng Hong Choon v Timbalan Menteri
Hal Ehwal Dalam Negeri Malaysia [1994]
1 MLJ 592 it was held that “where the
document is a public document, the best
evidence rule is inapplicable and the
secondary evidence may be adduced not
only as to the existence of such
document but also as to its contents”.
The method of proving public document
is laid under section 76 to section 78 of
the Evidence Act 1950.
Public document
Right to inspect: A person who has an
interest or has a right declared by law
to inspect may inspect a public
document. In the case of Anthony
Gomez v Ketua Polis Daerah
Kuantan [1977] 2 MLJ 24, where it
was held, By the Federal Court:
“although section 76 of the Evidence
Act is silent as to the right of a person
to inspect a first information report, it
is clear that under the common law
the appellant has that right as he is a
person interested in it and inspection
is necessary for the protection of his
interest. The first information report
is admissible in evidence in the
criminal trial under section 157 of the
Evidence Act and therefore the
appellant or his counsel should be
supplied with a copy”.
Public document
Right to the copy: This section also states
that when there is a right to inspect, an
individual has a right to a certified true
copy of the document on demand and on
payment of the fees therefore. In Toh
Kong Joo v. Penguasa Perubatan Hospital
Sultanah Aminah, Johore Bahru [1990] 2
MLJ 235, where it was held that ”It is clear
from s 76 of the Evidence Act 1950 that if
a person has the right to inspect a
document, then he should be supplied
with a copy of the document on payment
of the prescribed fee. A person has the
right to inspect a document if he has an
interest in that document and the
inspection is necessary for the protection
of his own interest.
Public document
However, the entitlement of a person to a copy of a public
document depends on whether he has a right to inspect it.
In the case of Huzir Bin Hassan v Ketua Polis Daerah [1991] 1
MLJ 445, Abu Mansor J, followed the decision in Husdi v PP
stated that, “Anything that would have the effect of
jeopardizing national security ran counter to national
interest. It prevented the court from requiring the
disclosure of any statement or document once a relevant
public officer appeared claiming its disclosure ran counter
to national interest. The public officer had the last say that
the fact or evidence to be produced was against the national
interest to disclose or produce”
Public document
The payment of legal fees: A person is entitled to a
certified copy upon payment of the relevant legal
fees. (See Dr. Munawar Ahmad Aness v Ketua
Pengarah Penjara Malaysia [1999] 2 MLJ 289.
In Yusof Bin Omar v Pendakwa Raya [2001] 2
MLJ 209 it was held that the words “salinan
disahkan benar” in the certificate was sufficient
compliance with the Act. It would seem to appear
from the judgment in that case that the words
“salinan yang diakui sah” would be equally
sufficient.
However, there is no requirement that the legal
fees in respect of the certified copy must have been
paid before it can be produced in evidence. (See
Noliana Bte. Sulaimain v PP [2000] 4 MLJ 752).
Private document
• Section 75 provides that “All documents other than those
mentioned in section 74 are private” (Segala dokumen selain
daripada dokumen yang tersebut dalam seksyen 74 adalah dokumen
persendirian). The conditions of admissibility of a private
document are governed by section 61 – 66 of the Act.
Computer Generated
Document
Computer generated document (Document produced
by a computer) (Dokumen yang dikeluarkan oleh
komputer).
• Section 90A, 90B and 90C relate to
documents produced by a computer and
were introduced by the Evidence
(Amendments) Act 1993 (Act A851).
The principal Act is amended by
inserting, in Chapter V, after section 90,
the following new subheading and new
sections 90A, 90B and 90C. This
section is an exception to the hearsay
rule. It applies to criminal and civil
proceeding.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
•Admissibility of documents produced by
computers: This is governed by section 90A.
Section 90A (1) provides “In any criminal or civil
proceeding a document produced by a computer
or a statement contained in such document, shall
be admissible as evidence of any fact stated
therein if the document was produced by the
computer in the course of its ordinary use,
whether or not the person tendering the same is
the maker of such document or statement”.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
Admissibility of documents produced by
computers: This is governed by section 90A. Section
90A (1) provides “Dalam mana – mana prosiding
jenayah atau civil sesuatu dokumen yang
dikeluarkan oleh komputer, atau sesuatu
pernyataan yang terkandung dalam dokumen itu,
hendaklah boleh diterima sebagai keterangan
mengenai apa – apa fakta yang dinyatakan
dalamnya jika dokumen itu dikeluarkan oleh
komputer itu dalam perjalanan penggunaannya
yang biasa, sama ada atau tidak seseorang yang
mengemukakan dokumen itu adalah pembuat
dokumen atau pernyataan itu”.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
Condition
for
admissibility
The document was
produced by a computer
(S. 3 & 90A (5))
The document was produced
by the computer
in the course of its ordinary use.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
2. The document was produced by the computer in the
course of its ordinary use. There are two (2) ways of proving
this as stated by Shaik Daud JCA in Gnanasegaran a/l
Pararajasingam v PP [1997] 3 MLJ 1, 11:
A. It may be proved by the production of the certificate as
provided in subsection 2 of section 90A which provides “For
the purposes of this section it may be proved that a
document was produced by a computer in the course of its
ordinary use by tendering to the court a certificate signed by
a person who either before or after the production of the
document by the computer is responsible for the
management of the operation of that computer, or for the
conduct of the activities for which that computer was used”
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
2. The document was produced by the computer in the course of
its ordinary use. There are two (2) ways of proving this as stated
by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP
[1997] 3 MLJ 1, 11:
A. It may be proved by the production of the certificate as
provided in subsection 2 of section 90A which provides “Bagi
maksud seksyen ini bolehlah dibuktikan bahawa sesuatu
dokumen itu dikeluarkan oleh komputer dalam perjalanan
penggunaannya yang biasa dengan mengemukakan kepada
mahkamah suatu perakuan yang telah ditandatangani oleh
sesorang yang sama ada sebelum atau selepas pengeluaran
dokumen itu oleh computer itu adalah bertanggungjawab
bagi pengurusan pengendalian computer itu, atau bagi
perjalanan aktiviti-aktiviti yang baginya computer itu
digunakan”.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
2. The document was produced by the computer in the course of
its ordinary use. There are two (2) ways of proving this as stated
by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP
[1997] 3 MLJ 1, 11:
See also section 90A (3) (a) It shall be sufficient, in a certificate
given under subsection (2), for a matter to be stated to the best
of the knowledge and belief of the person stating it. (b) A
certificate given under subsection (2) shall be admissible in
evidence as prima facie proof of all matters stated in it without
proof of signature of the person who gave the certificate and
section 90A (4) Where a certificate is given under subsection
(2), it shall be presumed that the computer referred to in the
certificate was in good working order and was operating
properly in all respects throughout the material part of the
period during which the document was produced.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
B. It may be proved by calling a witness. If this is done, it is not
necessary to also produce a certificate. In Gnanasegaran a/l
Pararajasingam v PP [1997] 3 MLJ 1, 11 the court also argued
that “Sub-s (2) which use “it may be proved” (bolehlah
dibuktikan) is permissive and not mandatory. This can also be
seen in sub-s (4) which begins with the words 'Where a
certificate is given under subsection (2) (Jika sesuatu perakuan
diberikan di bawah subseksyen (2))'. These words show that a
certificate is not required to be produced in every case. It is also
the court view that once the prosecution adduces evidence
through a bank officer that the document is produced by a
computer, it is not incumbent upon them to also produce a
certificate under sub-s (2) as sub-s (6) provides that a document
produced by a computer shall be deemed to be produced by the
computer in the course of its ordinary use.
Computer generated document (Document produced by a computer)
(Dokumen yang dikeluarkan oleh komputer).
 Note: the person called as a witness should be
a person who either before or after the
production of the document by the computer
is responsible for the management of the
operation of that computer or for the conduct
of the activities for which the computer was
used.
 In PP v Ong Cheng Heong [1998] 6 MLJ 678,
where the computer printouts were not
admitted as the person who tendered the
computer printouts only introduced himself
as the supervisor of the registration
department of vehicles in the RIMV Perlis
(mengawal selia bahagian pendaftaran
kenderaan) and did not claim any
responsibility for the conduct of the activities
for which the relevant computer were used.
Computer generated document (Document produced by a computer)
(Dokumen yang dikeluarkan oleh komputer).
 If the document was produced by the computer in
the course of its ordinary use, then the document
or statement contained in such document shall be
admissible as evidence. Section 90A can also be
regard as an exception to hearsay rule. In
Gnanasegaran a/l Pararajasingam v PP [1997] 3
MLJ 1, 11 (Criminal Breach of Trust – Section
409 of Penal Code), where the court held that
once the prosecution adduce evidence through a
bank officer that the document is produced by
a computer, it is not incumbent upon them to
also produce a certificate under sub-s. (2), as
sub-s. (6) provides that a document produced
by a computer shall be deemed to be produced
by the computer in the course of its ordinary
use.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1,
11, Per Mahadev Shankar JCA (concurring/in
agreement) states that Zainal was the branch officer in
charge of all the operations of the branch. He was
therefore responsible for the conduct of the activities of
the branch for which that computer was used. If he
chose he could have issued a certificate as required by
s. 90A(2) and without his actual presence all the
computer generated documents would have been
admitted in evidence as provided by s. 90A(1). In this
case, Zainal was able to testify with regard to the
documents because he was in charge of the operations
of current accounts.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per
Mahadev Shankar JCA (concurring/in agreement) also states “The
viva voce (word of mouth) evidence of the man in the witness box
counts for more than a certificate issued by him. Moreover, as the
appellant did not challenge Zainal's evidence by way of cross-
examination, the prosecution succeeded in proving that the documents
were admissible”
Section 90A was enacted to bring the "best evidence rule“ (Kaedah
keterangan terbaik) up to date with the realities of the electronic age. The
effect of s. 90A(1) in the present scenario is that it is no longer
necessary to call the actual teller or bank clerk who keyed in the data
to come to Court provided he did so in the course of the ordinary use
of the computer. Document produced by a computer is also primary
evidence. (See section 63 explanation 3.
Computer generated document (Document
produced by a computer) (Dokumen yang
dikeluarkan oleh komputer).
In Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240 (HC) Ian
HC Chin J held that “It was only if the evidence was challenged as to its
admissibility that it was necessary to produce a certificate under s
90A(2) of the Evidence Act 1950, that the documents were produced
by a computer in the course of its ordinary use. Since the documents
were unchallenged, such a certificate was unnecessary”. In this case,
evidence was given by the witnesses that those documents were computer
generated and they were produced in the course of the ordinary use of the
computer. There was no challenge to this evidence. Since this is
unchallenged evidence, it becomes unnecessary to produce certificate
under section 90A (2) to proved the document were produced by a
computer in the course of its ordinary use. It is only where it is disputed,
during the time the evidence was adduced certificate then become
necessary.
Computer generated document (Document produced by a computer)
(Dokumen yang dikeluarkan oleh komputer).
In PP v Azman Ismail [2007] 10 CLJ 469 where five
accused persons here were charged with the offence of
murder under s. 302 of the Penal Code read with s. 34
of the same Code. On the issue whether the accused
persons had been identified as the assailants of the
deceased, the prosecution had introduced DNA profile.
Held acquitting and discharging the accused persons.
The evidence of the forensic DNA scientist (PW8) was
most wanting, unreliable and unsafe to accept. The
prosecution had failed to prove the expertise of PW8
(Forensic expert) by introducing evidence as required by
law. Further, the DNA analysis and the probabilities
values were obtained using the computer. In order to
accept the information given by the computer software
and the print out, there must be compliance with s. 90A
of the Evidence Act 1950. There was no evidence of
such compliance of the condition precedent as required
by s. 90A.
Computer generated document (Document produced by a computer)
(Dokumen yang dikeluarkan oleh komputer).
• Ahmad Najib Aris v PP [2007] 2 CLJ 229, where the appellant was convicted in the
High Court of the rape and murder of one Canny Ong Lay Kian ('victim'), and was
sentenced to twenty years' imprisonment and whipping of ten strokes for the rape, and
to death for the murder. Appellant appeal. Held (dismissing the appeal) Per Abdul
Aziz Mohamad JCA states “The swabs and smears obtained by the pathologist from
the victim's upper vagina proved the presence in the vagina of semen. The semen was
established to belong to the appellant. The stains on the Jack Blue Classics jeans
belonging to the appellant were established to be stains of the blood of the victim.
These proofs were established by DNA profiling and the results of the DNA profiling
were obtained by the use of a computer. It was submitted on behalf of the appellant
in the appeal that the documents concerned that were produced by the
computer, which established those results, or from which those results were
established, were not admissible in evidence under s. 90A of the Evidence Act
1950. This court had, however, decided in Gnanasegaran Pararajasingam v. PP,
that because the word used in subsection (2) is "may", a certificate under the
subsection is not mandatory for proving that a document was produced by a
computer in the course of its ordinary use and that so long as there is proof that
a document is produced by a computer,
Computer generated document (Document produced by a computer)
(Dokumen yang dikeluarkan oleh komputer).
• Hanafi Mat Hassan v. PP [2006] 3 CLJ 269 at p. 307-312, where the
accused was convicted of the offences of rape and murder respectively.
In the words of the learned trial judge, the accused "had mercilessly and
brutally raped and murdered the deceased, Noor Suzaily, in the bus
WDE 4265 driven by him in the morning of 7 October 2000 at the time
and place as stated in the charges". The chemist, who carried out DNA
tests on blood samples taken from the accused, prepared the summary of the
DNA profiling results thereof and confirmed that the semen found in the
vagina of the deceased belonged to the accused. The accused contended that
the findings of the trial judge were flawed and unsustainable in law and had
hence appealed against the same. Consequently, before the Court of Appeal,
arguments were put forth by the accused: (i) that a computer produced
document could only be admitted under s. 90A if the prosecution proved not
only that it was produced by a computer but also that it was produced in the
course of its ordinary use and that in order to do so it was incumbent upon
the prosecution to produce a certificate as required by s. 90A(2); Held
(dismissing the appeal) Per Augustine Paul JCA delivering the judgment
of the court: the use of the words "may be proved" in s. 90A(2) indicates
that the tendering of a certificate is not a mandatory requirement in all
cases. Thus, the use of the certificate can be substituted with oral
evidence. See R v. Shepherd [1993] 1 All ER 225; Schmidt Scientific Sdn
Bhd v. Ong Han Suan & ORS [1998] 1 CLJ 685 & PP v. Gurdial Singh
Get Singh [2005] 6 CLJ 272.)
Computer generated document (Document produced by
a computer) (Dokumen yang dikeluarkan oleh
komputer).
Sections 90A and 90B to prevail over other provisions of this
Act, the Banker's Books Evidence Act 1949, and any written
law: Section 90C provides “ The provisions of sections 90A
and 90B shall prevail and have full force and effect
notwithstanding anything inconsistent therewith, or
contrary thereto, contained in any other provision of this
Act, or in the Bankers' Books (Evidence) Act 1949, or in any
provision of any written law relating to certification,
production or extraction of documents or in any rule of law
or practice relating to production, admission, or proof, of
evidence in any criminal or civil proceeding”. See Bank
Utama (Malaysia) Bhd v Cascade Travel & Tours Sdn Bhd
[2000] 4 MLJ 582.
Parol evidence rule:
General rule
Parol evidence rule
• Parol: It refers to verbal
expressions or words.
Verbal evidence, such as
the testimony of a witness
at trial.
• Parole: The release of a
prisoner whose term has not
expired on condition of
sustained lawful behavior
that is subject to regular
monitoring by an officer of
the law for a set period of
time.
Parol evidence rule
In the context of contracts, deeds, wills, or other
writings, parol evidence rule refers to extraneous
(irrelevant/unrelated) evidence such as an oral
agreement or even a written agreement that is
not included in the relevant written document.
For example, Carl agrees in writing to sell Betty
a car for $1,000. Betty argues that Carl told her
that she would only need to pay Carl $800. The
parol evidence rule would generally prevent
Betty from testifying to this conversation because
the testimony ($800) would directly contradict
the written contract's terms ($1,000).
Parol evidence rule
The parol evidence rule is a
principle that preserves the
integrity of written documents or
agreements by prohibiting the
parties from attempting to alter the
meaning of the written document
through the use of prior and
contemporaneous oral or written
declarations that are not referenced
in the document.
Parol evidence rule
 In order for the rule to be effective, the contract in question must be a fully integrated
(included) in writing; it must, in the judgment of the court, be the final agreement between
the parties (as opposed to a mere draft, for example). One way to ensure that the contract
will be found fully integrated is through the inclusion of a merger clause, which recites that
the contract is, in fact, the whole agreement between the parties.
 "This Agreement, along with any exhibits, appendices, addendums, schedules, and
amendments hereto, encompasses the entire agreement of the parties, and supersedes all
previous understandings and agreements between the Parties, whether oral or written. The
parties hereby acknowledge and represent, by affixing their hands and seals hereto, that
said parties have not relied on any representation, assertion, guarantee, warranty,
collateral contract or other assurance, except those set out in this Agreement, made by or
on behalf of any other party or any other person or entity whatsoever, prior to the
execution of this Agreement. The parties hereby waive all rights and remedies, at law or in
equity, arising or which may arise as the result of a party’s reliance on such representation,
assertion, guarantee, warranty, collateral contract or other assurance, provided that
nothing herein contained shall be construed as a restriction or limitation of said party’s
right to remedies associated with the gross negligence, willful misconduct of fraud of any
person or party taking place prior to, or contemporaneously with, the execution of this
Agreement."
 However, many modern cases have found merger clauses to be only a rebuttable
presumption. (in Latin, praesumptio iuris tantum) where it is an assumption made by a
court, one that is taken to be true unless someone comes forward to contest it and prove
otherwise.
Parol evidence rule
Common law position: The parol evidence rule enacts a
principle of the common law of contracts that presumes that a
written contract embodies the complete agreement between the
parties involved; the document is the sole repository (store) of
the terms of the contract. The rule therefore generally forbids
the introduction of extrinsic evidence (i.e., evidence of
communications between the parties which is not contained in
the language of the contract itself) which would add or change
terms of a later written contract.
Parol evidence rule
In Jacobs v. Batavia & General Plantations Trust Ltd
[1924] 1 Ch 287 “It is firmly established as a rule of law
that parol evidence cannot be admitted to add to, vary or
contradict a deed or other written instrument.
Accordingly, it has been held that (except in cases of
fraud or rectification and except, in certain
circumstances, as a defence in actions for specific
performance) parol evidence will not be admitted to
prove that some particular term, which had been
verbally agreed upon, had been omitted (by design or
otherwise) from a written instrument constituting a valid
and operative contract between the parties”.
Parol evidence rule
Malaysian position: Section 91 to 99 of the Act deal with
the exclusion of oral by documentary evidence.
(Penyingkiran keterangan lisan oleh keterangan dokumen)
Section 91 provides “When the terms of a contract or of a grant
or of any other disposition of property have been reduced by or
by consent of the parties to the form of a document, and in all
cases in which any matter is required by law to be reduced to
the form of a document, no evidence shall be given in proof of
the terms of the contract, grant or other disposition of property
or of the matter except the document itself, or secondary
evidence of its contents in cases in which secondary evidence
is admissible under the provisions hereinbefore contained”.
Parol evidence rule
This section requires the production of the document itself for
proof of its contents. The first limb of section 91 provides that
when terms of a contract, grant or disposition of property have
been reduced by or by consent of the parties to the form of a
document then no evidence shall be given in proof of the terms
of the contract, grant or disposition except the document itself
(the primary evidence) or secondary evidence.
However, section 91 only excludes oral evidence on the terms of
the written contract. Oral evidence is still admissible to prove
the existence of a contract. (See Ng Kong Yue v R [1962] MLJ 67
& Tyagaraja Mudaliar v Vedathanni [1936] MLJ 62.
In Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ
220, the court held that section 91 only applies when all the
terms of a contract have been reduced to the form of a
document.
Parol evidence rule
Section 92 of the Act comes into operation after the document
has been produced for the purpose of excluding evidence of any
oral agreement or statement to contradict, vary, add to or
subtract from its terms. Section 92 provides that “When the
terms of any such contract, grant or other disposition of
property, or any matter required by law to be reduced to the
form of a document, have been proved according to section 91,
no evidence of any oral agreement or statement shall be
admitted as between the parties to any such instrument or their
representatives in interest for the purpose of contradicting,
varying, adding to, or subtracting from its terms”. This section
provides that as a general rule evidence of any oral agreement is
not admissible as between the parties to contradict, vary, add to
or subtract from the terms of the written agreement proved
under section 91 of the Act unless the evidence sought to be
introduced falls within one of the provisos of the section.
Parol evidence rule
These two sections are based on the concept of the “best evidence
rule”. The parol evidence rule thus based on the “best evidence rule”
i.e. the best evidence that the party must produce which the nature of
the case would permit. The parol evidence rule means that when a
document is presented as evidence, the best evidence about the content
of a document is that document itself. Both sections supplement
(connected) each other. They must also be read together with section
144 (evidence as matter to writing) of the Evidence Act 1950 which
provides “Any witness may be asked whilst under examination
whether any contract, grant or other disposition of property as to
which he is giving evidence was not contained in a document, and if he
says that it was, or if he is about to make any statement as to the
contents of any document which in the opinion of the court ought to be
produced, the adverse party may object to the evidence being given
until the document is produced or until facts have been proved which
entitle the party who called the witness to give secondary evidence of
it”. This section deals with the exclusion of oral evidence when the
matter on which a witness is testifying or is about to testify is
contained in a document. This section thus sets out the manner in
which the provisions of section 91 and 92 of the Acts ad to the
exclusion of oral by documentary evidence may be enforced by the
parties to the proceeding.
Parol evidence rule
Per Augustine Paul JC in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ
329 stated that “The best evidence about the contents of a document is the
document itself and it is the production of the document that is required by s
91 in proof of its contents. In a sense, the rule enunciated by s 91 can be said
to be an exclusive rule in as much as it excludes the admission of oral
evidence for proving the contents of the document except in cases where
secondary evidence is allowed to be led under the relevant provisions of the
Evidence Act 1950. Section 92 applies to cases where the terms of contracts,
grants or other dispositions of property have been proved by the production of the
relevant documents themselves under s 91. In other words, it is after the
document has been produced to prove its terms under s 91 that the provisions
of s 92 come into operation to exclude evidence of any oral agreement or
statement, for the purpose of contradicting, varying, adding to or subtracting
from its terms. Sections 91 and 92, in effect, supplement each other. Section 91
would be frustrated without the aid of s 92 and s 92 would be inoperative
without the aid of s 91. Since s 92 excludes the admission of oral evidence for
the purpose of contradicting, varying, adding to or subtracting from the
terms of the document properly proved under s 91, it may be said that it
makes the proof of the document conclusive of its contents. Like s 91, s 92
also can be said to be based on the best evidence rule”.
Parol evidence rule
 Per PB Gajendragadkar J in Bai Hira Devi v Official Assignee AIR 1958 SC 448 stated
that “The normal rule is that the contents of a document must be proved by
primary evidence which is the document itself in original. Section 91 is based on
what is sometimes described as the best evidence rule. The best evidence about
the contents of a document is the document itself and it is the production of the
document that is required by section 91 in proof of its contents. In a sense, the
rule enunciated by section 91 can be said to be an exclusive rule in as much as it
excludes the admission of oral evidence for proving the contents of the document
except in cases where secondary evidence is allowed to be led under the relevant
provisions of the Evidence Act”.
 See also Inspector General of Police & Anor v. Alan Noor bin Kamat [1988] 1 MLJ
260 where it is stated that “it is clear that under section 91 of the Evidence Act no
evidence can be given in proof of any matter which is required by law to be
reduced to a form of a document and section 92 prohibits the giving of oral
evidence to contradict or vary or explain the terms of such document”.
 Section 91 & 92 applies equally to criminal trials no less than to civil proceedings:
See Ah Mee v PP [1967] 1 MLJ 220 & PP v Tan Siew Hui [2008] 8 CLJ 142.
Parol evidence rule
 Section 93 – 98 of Evidence Act 1950. Read together with
section 92 proviso (f): These sections deal with the rule of
ambiguity of a document. In Faber Merlin (M) Sdn Bhd &
Ors v Lye Thai Seng [1985] 2 MLJ 380, the court laid down
the principle that when there is no ambiguity in a written
agreement then the general rule against extrinsic evidence
applies.
 Accordingly, there are two types of ambiguities in which a
document suffer from namely:
 Apparent/clear/patent ambiguity: Ambiguity is clear on the
surface of the record/document. If we read the whole
document, we cannot understand on the face of it. The court
will not allow extrinsic evidence to cure patent ambiguity by
producing extrinsic evidence.
 Latent/hidden ambiguity: On the face of it, it is all right but
cannot exactly be precise. For example if there are 2 places of
the same name we can introduce extrinsic to cure the defect.
Parol evidence rule
What Is The Rationale Behind The
Parol Evidence Rule?: The parol
evidence rule treats formal written
documents created by parties as reflective
of their true intentions regarding which
terms are meant to be included in the
contract. In doing this, it assumes that
duties and restrictions that do not appear in
the written document, even though
apparently accepted at an earlier stage, are
not intended by the parties to survive.
Why Is The Parol Evidence Rule
Necessary?: The Parol Evidence Rule
helps with: Increasing the predictability
and finality of commercial transactions by
encouraging parties to draft better
contracts; Reducing litigation and
arguments between parties over the
meaning of a written document; and
Assisting in determining the true intentions
of the parties at the time of contract
formation.
Parol evidence rule:
The exceptions
Parol
evidence
rule
Statutory
exceptions
(Section 92)
Non
statutory
exceptions
(Cases)
Vitiating
factors
(Proviso a)
Collateral
warranty
(Proviso b)
Condition
precedent
(Proviso c)
Condition
subsequent
(Proviso d)
Custom
(Proviso e)
Historical
background
&
Surrounding
circumstances
Recital
of
contract
Parol evidence rule: The exceptions
Section 92 provides that “When the terms of any such contract,
grant or other disposition of property, or any matter required
by law to be reduced to the form of a document, have been
proved according to section 91, no evidence of any oral
agreement or statement shall be admitted as between the parties
to any such instrument or their representatives in interest for
the purpose of contradicting, varying, adding to, or subtracting
from its terms”. (Apabila terma – terma bagi sesuatu kontrack,
pemberian atau lain – lain pelupusan harta, atau apabila apa –
apa perkara dikehendaki oleh undang – undang supaya
dituliskan dalm bentuk dokumen, telah dibuktikan mengikut
seksyen 91, tiada apa – apa keterangan mengenai sesuatu
perjanjian atau pernyataan lisan boleh diterima antara pihak –
pihak kepada suratcara itu atau wakil – wakil mereka dari segi
kepentigan bagi maksud menyangkal, mengubah, menambah
atau mengurangkan terma – termanya).
Parol evidence rule: The exceptions
This section provides that as a
general rule evidence of any oral
agreement is not admissible as
between the parties to contradict,
vary, add to or subtract from the
terms of the written agreement proved
under section 91 of the Act unless the
evidence sought to be introduced
falls within one of the provisos of
the section.
Parol evidence rule: The exceptions
This section comes into operation only
after the document has been produced to
prove the terms in accordance with section
91 of the Act.
As the section only applies to the terms of
a document, a party is not precluded
(prohibited) from adducing oral evidence
to contradict a recital of fact in the
contract. (See Ganam d/o Rajamany v
Somoo s/o Sinnah [1984] 2 MLJ 290)
Parol evidence rule: The exceptions
 It must be noted that where a document does not constitute a
contract between the parties and it is also not a document
required by law to be reduced to a form of a document, oral
evidence is not excluded (See Phiong Khon v Chon Chai Fah
[1970] 2 MLJ 114)
 This section applies where the whole contract is contained in
the document. On the other hand, if the intention of the parties
is to reduce some portion of their agreement into writing and
leave the rest as oral agreement, they may in such a case give
extrinsic evidence as to the portion not put in writing. (See also
Damn Jadhas v Paras Nath Singh [1965] 2 MLJ 38. In Tan
Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ
220, where it was held that “some terms are given orally and
some in writing, oral evidence could be given to prove the
terms agreed to orally”.
Parol evidence rule: The exceptions
 The scope of the words “any matter required by law to be reduced to the form of
a document” in this section show that the section applies to bilateral and
dispositive documents (Documents by which rights are disposed of). Section 91 is
much wider than section 92 whereby it apply to both unilateral and bilateral
contract and in both dispositive and non – dispositve documents.
 There are also a vital difference between section 91 and 92 as a result of the use of
the word “as between the parties to any such instrument” in section 92. This part
of the section shows that section 92 applies only to the parties to an instrument
and not to strangers. (Read with section 99 (look at the illustration given) where a
persons other than parties may give extrinsic evidence to vary the document if it
effected his interests). Per Ibrahim J in Director General of Inland Revenue v Ee Sim
Sai [1977] 2 MLJ 32 stated “Section 92 Applies Only to Parties to Instrument and Not
to Strangers. The words 'as between the parties to any such instrument' are very
important, as they and the reference to 'separate oral agreement' in proviso (2) restrict
the application of the rule only to the parties to the document or their privies (have any
interest). It does not apply to strangers who cannot be affected by the terms of a
document to which they were not parties and which may contain untrue or collusive
statements to serve some fraudulent purpose or things prejudicial to their interests;
whereas section 91 applies to both strangers and parties. So, persons other than the
parties to the instrument or their representatives in interest, i.e., third parties, are not
precluded from giving extrinsic evidence to contradict, vary, add to or subtract from
the terms of the document (section 99)”.
Parol evidence rule: The exceptions
 The provisos to the section operate as an exception to the general rule.
Per Salleh Abas FJ in Tan Chong Motor Co (Sdn) Bhd v Alan McKnight
[1983] 1 MLJ 220 stated “There is this rule of evidence contained in
section 92 of the Evidence Act to the effect that no oral evidence will be
admissible to contradict, vary, add or subtract the terms of a written
agreement unless the oral evidence comes within one of the exceptions or
illustrations contained in the section”. In Tindok Besar estate Sdn Bhd v
Tinjar Co [1979] 2 MLJ 229 states that “Section 92 specifically excludes
evidence to contradict, vary, add to or subtract from any of the terms of a
contract in writing, except in any of the situations spelled out in the
provisos thereto”. These provisos are based on the common law (See
United Malayan Banking Corp Bhd v Tan Lian Keng [1990] 1 MLJ 281)
 The burden is on the party trying to adduce oral evidence. Per Abu
Mansor J in B-Trak Sdn Bhd v Bingkul Timber Agencies Sdn Bhd [1989]
1 MLJ 124 states that “I am not unmindful of s 92 of the Evidence Act
1950 wherein it will be for the defendants to argue at the trial whether it
will be open for them to contradict or vary the written terms”. (See also
Ponniah v Chinniah [1961] MLJ 66; Perwira Habib Bank (M) Bhd v
Penerbitan ASA Sdn Bhd [1998] 5 MLJ 297).
Parol evidence rule: The exceptions
 1st
exception: The vitiating factors: The word vitiating or
vitiate means to make (a contract) ineffective or invalidate.
Section 92 proviso (a) provides that “any fact may be
proved which would invalidate any document or which
would entitle any person to any decree or order relating
thereto, such as fraud, intimidation, illegality, want of due
execution, want of capacity in any contracting party, the
fact that it is wrongly dated, want or failure of
consideration, or mistake in fact or law”. (apa – apa fakta
yang akan membatalkan apa – apa dokumen atau yang akan
menghakkan seseorang mendapat sesuatu dekri atau perintah
berhubungan dengannya boleh dibukti, seperti fraud, intimidasi,
ketaksahan di sisi undang – undang, ketiadaan penyempurnaan
wajar, ketidaan keupayaan di mana – mana pihak pejanji, fakta
bahawa ianya tersalah tarikh, ketiadaan atau kemungkiran
balasan, atau kesilapan fakta atau undang – undang).
Parol evidence rule: The exceptions
 In Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385 where oral
evidence was admitted to show that there was a want of
consideration (ketiadaan balasan). In this case the plaintiff claimed
the sum of $3,356.00 on a promissory note signed by the defendant
which alleged a loan to the defendant by the plaintiffs. Oral evidence
was given that the sum represented amounts due from him as the
head of “liuci” which he ran in 1962 and that the defendant had in
fact never received the loan from the plaintiff. Oral evidence of
failure of consideration in a contract is admissible under proviso
(a) of section 92.
 In NS Narainan Pillay v The Netherlandsche Handel Maatschappij
[1934] MLJ 227, Edmonds J in his supporting judgement stated that
“…If one assumes that the document should be regarded prima
facie as a contract, still proviso I would apply; according to
which "any fact may be proved which would invalidate any
document or which would entitle any person to any decree or
order relating thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting party
or failure of consideration or mistake in fact or law…”. (See also
Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35
Parol evidence rule: The exceptions
 2nd
exception: Collateral warranty: Section 92 proviso (b) provides “the
existence of any separate oral agreement, as to any matter on which a
document is silent and which is not inconsistent with its terms, may be
proved, and in considering whether or not this proviso applies, the
court shall have regard to the degree of formality of the document”.
(kewujudan sesuatu perjanjian lisan yang berasingan mengenai apa – apa
perkara yang tidak tersebut di dalam sesuatu dokumen dan yang tidak
berlawanan dengan terma – termanya, boleh dibuktikan, dan pada
menimbangkan sama ada proviso ini boleh dipakai atau tidak, mahkamah
hendaklah memberi perhatian terhadap tahap formaliti dokumen itu). This
proviso allows other evidence to be admitted when it is alleged that the
written agreement is not the entire agreement. Therefore the parties
can prove that they entered into a distinct oral agreement on some
collateral (something additional or confirming, giving guarantee,
assurance, or security) matter.
Parol evidence rule: The exceptions
 In Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89,
[1980] 2 MLJ 16, where the plaintiffs, the landlords of the
premises, claimed vacant possession of the premises and alleged
that the defendants, the tenants, were in arrears (debt) of rent.
Notice to quit had been given. The defendants alleged that they had
paid the sum of $ 14,000 to the landlords and claimed that they
were entitled to occupy the premises for as long as they wished on
payment of rent regularly. They also alleged that the plaintiffs had
refused to accept the arrears of rent. The learned trial judge found as
a fact that the defendants had paid the sum of $ 14,000 to the
plaintiffs. Held: (1) as the defendants had paid tea-money to
the plaintiffs, and as the payment was induced and encouraged
by the plaintiffs in that the defendants would be allowed to
remain in occupation for as long as they desired on payment of
the monthly rent, an equity had been created and the
defendants were entitled to occupy the premises for a term of
years to be determined, provided they observed the conditions.
Parol evidence rule: The exceptions
 Similar in Tan Chong & Sons Motor Co (Sdn) Bhd v Alan
McKnight [1983] 1 MLJ 220, where in this case the respondent was
a squadron leader in the Royal Australian Air Force. He wanted to
buy a car and get the benefit of exemption from duty in Malaysia
and Australia. He would have obtained the exemption if the motor
car was taken out of Malaysia and if it complied with the Australian
Design Regulations. He agreed to buy a car from the appellants and
signed a Buyer's Order which contained a condition that no
guarantee or warranty of any kind whatsoever was given by the
company. However the respondent only bought the car on the
representations of the appellant's salesman that the car conformed to
the Australian Design Regulations. The car supplied did not comply
with the Regulations and the respondent had to sell the car
for$ 6,500.00 thereby incurring a loss of $ 11,219.54 ($ 17,719.54-
$ 6,500.00). The respondent also lost the fiscal advantage of
importing the car to Australia duty free. The respondent claimed
damages for breach of warranty. The learned trial judge found
that there had been a warranty and this was breached by the
appellants. There was clear evidence that had it not been for the
promise of the salesman to deliver him a car complying with the
Australian Design Regulations, the respondent would not have
signed the Buyer's Order. At the trial several witnesses were
called by both sides.
Parol evidence rule: The exceptions
 In Kluang Wood Products Sdn Bhd & Anor v Hong Leong
Finance Bhd & Anor [1999] 1 MLJ 193, the Federal Court
said that in considering whether this proviso applies, regard
is to be had to the nature of the written agreement and its
surrounding circumstances. Depends on the background,
nature or history of the agreements, the more formal the
agreement the less ready the court will allow a collateral
agreement to vary or contradict the written instrument.
 In Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221, the
court disallowed some oral term to be adduced in evidence
(at page 227). The agreement has indeed a high degree of
formality and clearly indicates that the parties intended
the agreement to contain a full description of their
respective rights and obligations. The agreement was
drafted by a solicitor, on instructions from the
respondent and all the parties were fully aware of the
alleged subject matter of the oral terms and if these had
been agreed at that time they would have been
incorporated in the agreement.
Parol evidence rule: The exceptions
 3rd
exceptions: Condition precedent: Section 92 proviso (c) provides “the
existence of any separate oral agreement constituting a condition
precedent to the attaching of any obligation under any such contract,
grant or disposition of property, may be proved”. (kewujudan sesuatu
perjanjian lisan yang berasingan yang menjadi syarat duluan bagi
pengenaan apa – apa obligasi di bawah sesuatu kontrak, pemberian atau
pelupusan harta itu boleh dibukti).
 This proviso stated that if the contract is incomplete, evidence of a
prior agreement can help fill in what is missing.
 Condition precedent refers to an event or state of affairs that is required
before something else will occur. "I will only go to heaven after I have
died." My death is a condition precedent to my going to heaven. In
contract law a condition precedent is an event which must occur, before
performance under a contract becomes due--i.e., before any contractual
duty arises.
Parol evidence rule: The exceptions
 In Ganesan v Baskeran [1986] 2 MLJ 26, where in this case the appellants had
agreed to buy land belonging to the respondent and had paid a deposit of
$ 20,000/-. There was a restriction in the document of title that the land could
not be transferred without the consent of the Ruler in Council. No such consent
was obtained but the respondent applied for the rescission of the contract and
the forfeiture of the deposit on the ground that the appellants had failed to
complete the transaction and that time was of the essence of the contract. The
learned trial judge at first heard the application in chambers and dismissed it.
However after hearing further arguments in open court he reversed the decision
and allowed the application. He formed the view that time was the essence of
the contract and therefore the respondent had properly terminated the agreement
and forfeited the deposit. The appellants appealed. It was held (Appeal
allowed): (1) the central question that arose for determination in this case
is whether the respondent did orally promise that he would obtain the
consent of the Ruler in Council necessary for the transfer. There was
therefore an issue to be tried; (2) evidence relating to the separate oral
agreement is admissible under proviso (c) of section 92 of the Evidence Act
and the appellants should have been permitted to adduce evidence to prove
the existence of such a promise. See also Pym v Cambell 6 E & B 370.
Parol evidence rule: The exceptions
 4th
exception: Condition subsequent: Section 92 proviso (d) provides
that “the existence of any distinct subsequent oral agreement, to
rescind or modify any such contract, grant or disposition of
property, may be proved except in cases in which the contract,
grant or disposition of property is by law required to be in
writing, or has been registered according to the law in force for
the time being as to the registration of documents”. (kewujudan
sesuatu perjanjian lisan terkemudian yang berlainan, bagi membatal
atau mengubahsuai mana – mana kontrak, pemberian atau pelupusan
harta itu, boleh dibuktikan kecuali dalm hal di mana kontrak,
pemberian atau pelupusan harat itu dikehendaki oleh undang – undang
supaya dibuat secara bertulis, atau telah didaftarkan mengikut undang
– undang yang sedang berkuatkuasa berkaitan dengan pendaftaran
dokumen – dokumen).
 This proviso provides proof of distinct subsequent oral agreement
to rescind or modify any contract except where it is required by
law to be in writing or has been registered. In other words, it
provides for the evidence of a later change in a written contract.
Parol evidence rule: The exceptions
• In the case of Wong Juat Eng v Then
Thaw Eu [1965] 2 MLJ 213, the
respondent’s predecessor let (rent)
certain premises for a term of 5 years to
the appellant and her co-tenants under
memorandum of sublease which
contained a covenant that the subleasees
were not to assign or sublet the demised
premises or any part thereof without the
consent of the subleassor. The appellant
had sublet rooms on the premises but she
alleged that she had obtained verbal
permission from the owner. The
respondent gave a month’s notice of
termination of the sublease and brought
an action for possession of the premises.
The court held that parol evidence is
admissible as evidence of waiver. A
waiver is the voluntary relinquishment
or surrender of some known right or
privilege).
Parol evidence rule: The exceptions
 BUT a distinct subsequent oral agreement to
modify an earlier agreement cannot be proved
where the latter is required by law to be in writing.
In Voo Min En v Leong Chung Fatt [1982] 2 MLJ
241, where in this case the respondent was the lessee
of premises in Kota Kinabalu. The lease was in
writing and registered in accordance with section 104
of the Sabah Land Ordinance. It provided for the
possibility of renewal by written request. The lease
was for a period of 16 years commencing on January
16, 1965. On the expiration of the lease the respondent
only delivered part of the premises to the appellant
and retained the ground floor. The appellant claimed
possession of the ground floor and in his defence the
respondent alleged that there was an oral agreement
for a new lease. It was held that the oral agreement
could not be admitted as to do so would be contrary to
section 92 of the Evidence Act. As the lease in this
case was required to be in writing by virtue of
section 104 of the Sabah Land Ordinance and has
been registered in accordance with the Ordinance,
there is no way in which the respondent's alleged
agreement could be proved under proviso (d) to
section 92 of the Evidence Act.
 In Teo Siew Peng v Guok Sing Ong [1983] 1 MLJ
132, the court has laid down the principle that where
the terms of an instrument are required by law to be
reduced into writing then no evidence of any oral
agreement can be admitted in evidence.
Parol evidence rule: The exceptions
 5th
exception: Custom: Section 92 proviso (e) provides that
“any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to
contracts of that description may be proved if the
annexing of any such incident would not be repugnant to
or inconsistent with the express terms of the contract”.
(apa – apa kelaziman atau adat yang dengannya insiden –
insiden yang tidak disebutkan secara nyata dalm sesuatu
kontrak biasanya ditambah kepada kontrak dari jenis itu
boleh dibuktikan jika penambahan mana – mana insiden itu
tidak repugnan atau berlawanan dengan terma – terma nyata
kontrak itu)
 This proviso provides that oral evidence is admissible to
establish a trade usage to be annexed to the written
contract but such usage must be consistent with the terms
and tenor (intention or meaning) of the written contract.
Parol evidence rule: The exceptions
 In Cheng Keng Hong v Government of Federation of
Malaya [1966] 2 MLJ 33 where in this case the Chief
Architect of the Ministry of Education had issued a
notice inviting tenders for the erection of a school.
The applicant tendered for the work and his tender
was accepted. A contract was entered into which
recited the drawings and specifications according to
which the work was to be done. The applicant
discovered that the specification for electrical service
was at variance (inconsistent) with the layout
drawings and thereupon wrote to the Chief Architect.
He received a letter from a Mr. Hewish for the Chief
Architect that extra payment would be paid for
fittings, other than those mentioned in the
specifications alleging that it was custom to do so.
Subsequently the Government refused to pay any
extra payment. It was held that “there was no
custom as alleged that if any work was done
according to the drawing which was not set out in
the specification, extra payment would be made,
as such usage would be inconsistent with the
contract, which consists of the tender, acceptance
and other relevant documents”. (Custom must be
well-known, recognised and generally practice by
huge number of people)
Parol evidence rule: The exceptions
• In Smith v Welson
[1632] 3 B & Ad 726
stated that “where
extrinsic evidence was
given to show that a
written contract
stating 1000 rabbits
actually means by local
customs 1200 rabbits”.
Parol evidence rule: The exceptions
 6th
exception: The document historical backround and surrounding
circumstances that leads to its creation: Parties can give historical
background to discover the nature of the contract but cannot adduce pre
negotiation transaction to discover the intention of the parties. See Keng Huat
Film S/B v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 cited Prenn v
Simmonds [1971] 3 All ER 237 and Phiong Khon v Chonh Chai Fah [1970] 2
MLJ 114.
 In Prenn v Simmonds [1971] 3 All ER 237, 241 where Lord Wilberforce had
said per curiam at page 241 that, “evidence of negotiations, or of the parties'
intentions ... ought not to be received, and evidence should be restricted to
evidence of the factual background known to the parties at or before the date
of the contract, including evidence of the 'genesis' and objectively the 'aim' of
the transaction”.
 In Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114, the court allowed
extrinsic evidence to be given to help interpret the document. Evidence of
surrounding circumstances is admissible. Under the head of court's power to
construe and interpret a document in the light of surrounding circumstances
is not affected by the rule in section 92 the author observes:-- “Section 92,
however, merely prescribes a rule of evidence; it does not fetter
(confine/restrict) the court's power to arrive at the true meaning and effect of
a transaction in the light of all the surrounding circumstances”
Parol evidence rule: The exceptions
 7th
exception: Recital of contract: In Ganam d/o Rajamany v Somoo s/o
Sinnah [1984] 2 MLJ 290, any agreements in written form include
recitals in the contract, which is different from the terms of contract.
Recital is a rehearsal of the facts, usually at the back of the document
like S&P agreements. If there is a dispute as to the instruments, can
give extrinsic evidence. It is not prohibited to do so.
 In the Privy Council case of Sah Lal Chand v Indarjit [1899-1900] 27
IA 93 where it was held that (i) section 91 of the Indian Evidence Act
(which is in the same terms with section 92 of our Evidence Act 1950)
does not preclude/prevent oral evidence to contradict a recital of fact
in a written contract and (ii) it is settled law that, notwithstanding an
admission that the consideration has been received, it is open to the
vendor to prove that no consideration has been actually paid. Recital
means: “Statement to introduce the operative part of an instrument.
They give details of the relevant earlier deeds or events leading up to
the present deed, and explain the background of the transaction.
Recital commence with the word “whereas”.
DOCUMENTARY EVIDENCE
DOCUMENT
&
CONTENT OF DOCUMENT
ANCIENT DOCUMENT
PUBLIC & PRIVATE DOCUMENT
COMPUTER GENERATED DOCUMENT
PAROL EVIDENCE RULE
FINISH
FINISH
FINISH
FINISH
FINISH
EVIDENCE 2
(OUTLINE)
DOCUMENTARY
EVIDENCE
PRESUMPTIONS
CORROBORATION
ESTOPPEL
FINISH
EVIDENCE 2
(OUTLINE)
PRIVILEGES
EXAMINATION
OF
WITNESS
STANDARD
&
BURDEN OF PROOF
DEATH
LEGITIMACY
OF
CHILD
CONTINUITY
OF
LIFE
PRESUMPTION
Presumption (Anggapan)
Presumption: In the law of evidence, a presumption of a
particular fact can be made without the aid of proof in some
situations.
Per Chang Min Tat J in PP v Ooi Seng Huat [1968] 2 MLJ 168
states “Now as matter of law a presumption is a statutory
invention that upon the proof of a fact an inference
(assumption) of another fact can be drawn”. Section 4 of EA
1950 provides for presumptions (Anggapan). The section
prescribes three types of presumptions. Per Sarkaria J in
Syad Akbar v State of Karnataka AIR 1979 SC 1848
provides that presumptions are of three types namely i)
Permissive presumptions or presumptions of fact; ii)
Compelling presumptions or presumptions of law
(rebuttable); and iii) Irrebuttable presumption of law or
conclusive proof. It should be remember that clauses (i), (ii),
and (iii) are indicated in clauses (1), (2) and (3) of section 4,
Evidence Act.
Presumption (Anggapan)
Presumption
:Section 4
Presumption
of fact
:section 4 (1)
Rebuttable
Presumption
:Section 4 (2)
Irrebuttable
Presumption
:Section 4 (3)
Presumption (Anggapan)
 Presumption of fact: Section 4 (1) provides “Whenever it is provided by
this Act that the court may presume a fact, it may either regard the fact
as proved unless and until it is disproved, or may call for proof of it”.
(Apabila diperuntukkan oleh Akta ini bahawa mahkamah boleh
menganggap sesuatu fakta, mahkamah boleh sama ada mensifatkan
fakta itu sebagai terbukti melainkan dan sehingga terbukti sebaliknya,
atau boleh meminta buktinya)
 Presumption of fact is a legal term used to describe a presumption that
one makes to determine that a fact is probably true. For example: A man
while peering through his window observed a brown Ford cargo van
leaving a neighbor's house across the street. He did not notice the time
but he noticed that at the time the van left the house, another neighbour
was feeding her cat on the porch, which she does between 12:01pm and
12:30pm every day. The man believes on this basis that the van left the
neighbour's house sometime soon after midday. He has made a
presumption of fact. This type of presumptions can be found in section
86, 87, 88, 90 and 114 of the Act. The operative words in these sections
are ‘may presume’. In these sections the court may either regard the fact
as proved unless and until it is disproved, or may call for proof of it. Per
Ong J in Mohamed Ali v PP [1962] MLJ 230 states that “Presumptions of
fact must not be drawn automatically, or as it were, by rule of thumb,
without first considering whether in the circumstances of each particular
case there adequate grounds to justify any presumption being raised”.
Presumption (Anggapan)
 Rebuttable presumption of law: Section 4 (2) provides “Whenever it is directed
by this Act that the court shall presume a fact, it shall regard the fact as
proved unless and until it is disproved”. (Apabila diperuntukkan oleh Akta ini
bahawa mahkamah boleh menganggap sesuatu fakta, mahkamah boleh sama ada
mensifatkan fakta itu sebagai terbukti melainkan dan sehingga terbukti
sebaliknya).
 Both in common law and in civil law, a rebuttable presumption (in Latin,
praesumptio iuris tantum) is an assumption made by a court, one that is taken
to be true unless someone comes forward to contest it and prove otherwise. In
other words, a rebuttable presumption is an assumption of fact accepted by the
court until disproved. All presumptions can be characterized as rebuttable. It is an
assumption that is made in the law that will stand as a fact unless someone comes
forward to contest it and prove otherwise. For example, in adoption law, it is
most commonly used to "presume" that if a woman is married when she gives
birth to a child, that her husband is its father. This "presumption" will stand
as a legal fact unless it is contested and proven to be wrong. Or a person who
has been judicially declared incompetent is presumed incompetent unless
there is sufficient proof, usually in the form of medical testimony, that the
person has regained competency. This type of presumptions can be found in
sections 79, 80, 81, 82, 83, 84, 85, 89, 105, 107, 108, 109, 110, and 111 of the
Act. The operative words in the sections are ‘shall presume’. In these sections, the
court shall regard such fact as proved unless and until it is disproved.
Presumption (Anggapan)
 Irrebuttable presumption of law: Section 4 (3) provides “When one fact is
declared by this Act to be conclusive proof of another, the court shall, on
proof of the one fact, regard the other as proved, and shall not allow evidence
to be given for the purpose of disproving it”. (Jika satu fakta ditetapkan oleh
Akta ini sebagai bukti muktamad bagi suatu fakta lain, mahkamah hendaklah,
apabila terbuktinya fakta yang satu itu, mensifatkan fakta yang satu lagi itu sebagai
terbukti, dan tidak boleh membenarkan keterangan diberi bagi maksud
membuktikan sebaliknya fakta itu). A conclusive presumption (also known as an
irrebuttable presumption) in English law is a presumption of law that cannot
be rebutted by evidence and must be taken to be the case whatever the
evidence to the contrary. For example, the doli incapax rule conclusively
presumes that a child less than ten years old cannot be held legally
responsible for their actions, and so cannot be convicted for committing a
criminal offence. The age was seven at common law, and raised by the
Children and Young Persons Act 1933 to eight and by the Children and
Young Persons Act 1963 to ten. This type of presumptions can be found in
section 41, 112 and 113 of the Act. The operative words in the sections are
‘conclusive proof’. In these sections the court shall not allow evidence to be given
for the purpose of disproving the fact presumed. Per Stevens J in Re Khoo Thean
Tek’s Settlements [1919] SSLR 50 stated that “When one fact is declared by the
Ordinance to be conclusive proof of another, the court shall not allow
evidence to be given for the purpose of disproving it”.
Presumption of
continuity of life/
Anggapan masih
hidup
S. 107
Presumption of continuity of life
Presumption of continuity of life: Section 107 of
EA 1950 provides Burden of proving death of
person known to have been alive within 30 years
(Beban membuktikan kematian orang yang
diketahui masih hidup dalam masa tiga puluh
tahun) states that “When the question is whether a
man is alive or dead, and it is shown that he was
alive within thirty years, the burden of proving
that he is dead is on the person who affirms it”.
(Apabila soalnya ialah sama ada seseorang itu
masih hidup atau telah mati, dan dibuktikan
bahawa orang itu masih hidup dalam masa tiga
puluh tahun, beban membuktikan yang dia telah
mati terletak pada orang yang menegaskannya).
Presumption of continuity of life
 This section deals with the burden
of proving death of a person
known to have been alive within 30
years.
 It provides that the burden lies on
the party who asserts it. This
section must be read with section
108 of the Act. However both the
sections cannot be apply to the
same case as a person cannot at the
same time be both alive and dead.
In Surjit Kaur v Jujar Sigh AIR
1980 SC 274, there was an
application under section 107 for
the continuity of life. The issue
tendered was whether in 24th Mei
1970 Surjit Singh was dead or
alive. On fact that on 24th Mei
1960, he was known to be alive.
This certainly gives rise to
presumption of continuity of life.
Presumption of
death/
Anggapan kematian
S. 108
Presumption of death
Presumption of death: Section 108 of EA 1950 provides for
the Burden of proving that person is alive who has not been
heard of for 7 years (Beban membuktikan bahawa orang yang
telah tidak didengari apa – apa khabar selama tujuh tahun masih
hidup) states that “When the question is whether a man is
alive or dead, and it is proved that he has not been heard of
for seven years by those who would naturally have heard of
him if he had been alive, the burden of proving that he is
alive is shifted to the person who affirms it”. (Apabila
soalnya ialah sama ada seseorang itu masih hidup atau telah
mati, dan dibuktikan bahawa tiada apa – apa khabar telah
didengar mengenainya seama tujuh tahun oleh orang – orang
yang sepatutnya mendengar khabarnya jika dia masih hidup,
beban membuktikan yang dia masih hidup beralih kepada orang
yang menegaskannya). This particular section provides that if
it is proved that a person has not been heard of for seven
years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is
shifted to the person who affirms it.
Presumption of death
• In Re Gun Soon Thin [1997] 2 MLJ 351, the
applicant sought a declaration that his father
('Gan Teck Heow'), who had not been heard
of for more than seven years by those who
would naturally have heard of him if he had
been alive, be presumed dead. There was
affidavit evidence that when the Japanese
invaded Malaya in 1942, Gan Teck Heow was
nabbed by the Japanese soldiers. Efforts to trace
Gan Teck Heow, though mounted extensively,
proved futile. Evidence showed that Gan Teck
Heow had never contacted his family members
since the Japanese soldiers took him away. The
issue before the court was whether, on the facts
of the case, Gan Teck Heow ought to be
presumed dead. Based on the facts of the case
and the affidavit evidence, the court held that
Gan Teck Heow be presumed dead. Further,
the court could take judicial notice of the fact
that the Japanese occupation had taken the
death toll on the higher scale. Without the
death certificate of Gan Teck Heow or a
declaration to that effect by this Court, letters of
administration (L.A.) can never be extracted.
(taken)
Presumption of death
Presumption
of death
requirements
See Re A Penhas,
deceased
[1947] MLJ 78.
Not less than
7 years
Said absence
has gone
on consistently
without
explanation;
No person's
have been
contacted
by the
presumed
The person
can not be found
with any
searches.
Presumption of death
• In Re Othman Bin Bachit [1997] 4 MLJ 445,
in order to invoke the aid of s 108, two
basic facts must be proved. They are:
(a) the person must not have been heard of
for seven years; and (b) this must be by
those who would naturally have heard of
him, if he had been alive. The first fact to be
proved is self-explanatory (clear) while the
second requires some elaboration
(explanation).
• A person 'has not been heard of' if no
reliable information concerning him is
received. There is no definite rule as to who
are the persons who would 'naturally' have
heard of him, if alive. Generally speaking,
they are his close relatives or neighbours
(see Doe d'France v Andrews (1850) 15 QBD
756).
• Where the question is whether a married
woman is dead or alive, her husband, if
alive, would be the proper person who
would naturally hear of her if she were
alive (see Ganesh Bux Singh v Mohammad
AIR 1944 Oudh 266).
Presumption of death
• Time of death: Under this section, there is no presumption as to the time of death. In
Re Othman Bin Bachit [1997] 4 MLJ 445 it was stated that although a person who has
not been heard of for seven years is presumed to be dead, there is no presumption as
to the time of his death under section 108. If it is sought to establish the precise
period at which a person died then it must be done so by actual evidence like the
proof of any other fact.
• In Lal Chand Marwawi v Mahani Ramrup Gir 42 TLR 159 where in the course of the
judgment in that case Lord Blanesburgh said: “But the law really is that on the facts
now assumed there is no presumption as to Bhawan Gir being dead either in 1902 or
1904. There is only one presumption and that is that when these suits were instituted
in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he
died. That, like any other fact is a matter of proof. See also Re Phene's Trusts (1870) 5 Ch
App 139 and Re A Penhas, deceased [1947] MLJ 78. The section is designed for the
purpose of determining whether a man is alive or dead at the time when the question
arises in a dispute in a court or proceedings.
• InSmt Mathru v Smt Rani AIR 1986 HP 6 where Gupta J said at p 8: There is no
presumption that a person who has not been heard of for a period of not less than seven
years died at the end of the first seven years or on any particular date. The burden of
proving the date of death of a person is always upon the person who asserts that a
person had died on a certain date because there is no presumption about the date of
death. The only presumption under s 108 of the Act is that a person is dead if he has
not been heard of for seven years and this presumption only arises when a question is
raised in a court, etc as to whether a person is alive or dead. Such presumption can
earliest be drawn when a dispute is brought in a court or proceeding.
Presumption of death
 Where a person absconded,
presumption of death cannot be raised.
 In R Muthu Thambi v K Janagi [1955]
MLJ 47, the respondent (Janagi) had in
1929 married a man who after two years
absconded (run away) to India. There had
been no news from him. In 1940
respondent went through a ceremony of
marriage with appellant. Later on they
divorced and she sued for maintenance.
The appellant said he is not bound to pay
the maintenance because there is
bigamous marriage (not valid marriage).
However Janagi part argued that there
was a presumption of death. However it
was rejected by the court since in this
case, Janagi tried to argued on the
specific time of death and the fact that
the first husband had only absconded
to India (he had no intention to
communicate), so the presumption
cannot apply. See Watson v England 60
ER 266 and Bowden v Henderson 65 ER
437 where if a person absconded,
presumption of death cannot be raised.
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EVIDENCE 2

  • 1. LAW 4211 EVIDENCE II Evidence II By Bro Muzaffar Shah Mallow
  • 4. Document & content of a document According to Evidence Act 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 (Keterangan meliputi (a) segala pernyataan yang dibenarkan atau dikehendaki oleh mahkamah dibuat di hadapannya oleh saksi- saksi behubungan dengan perkara-perkara fakta yang disiasat: pernyataan sedemikian disebut keterangan lisan: (b) segala dokumen yang dikemukakan bagi pemeriksaan mahkamah: dokumen-dokumen sedemikian disebut keterangan dokumen)
  • 5. Document & content of a document  Document means any matter expressed, described or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of :  (a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever; (b) any visual recording (whether of still or moving images); (c) any sound recording, or any electronic magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever; (d) a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b), or (c) or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter;  Dokumen ertinya apa-apa hal yang dinyatakan, diperihalkan, atau bagaimana jua pun digambarkan, atas apa-apa benda, bahan, barang atau artikel, termasuklah apa-apa hal yang terkandung dalam cakera, pita, filem, runut bunyi atau apa jua pun peranti lain, dengan menggunakan:  (a) huruf, angka, tanda, symbol, isyarat, lambing, atau apa jua pun bentuk pernyataan, perihal, atau gambaran lain; (b) apa – apa rakaman visual (sama ada imej kaku atau bergerak); (c) apa – apa rakaman bunyi, atau apa – apa jua pun rakaman elektronik, magnetik, mekanikal atau rakaman lain dan walau bagaimana jua pun dibuat, atau apa – apa bunyi, dednyut elektronik, atau apa jua pun data lain; (d) suatu rakaman, atau pemancaran, dari suatu jarak, apa – apa hal dengan mana – mana, atau apa – apa kombinasi, cara yang disebut dalam perenggan (a), (b) atau (c), atau dengan lebih daripada satu cara yang disebut dalm perenggan (a), (b), (c), dan (d), yang dimaksudkan untuk digunakan atau yang mungkim digunakan bagi tujuan menyatakan, memperihalkan, atau dengan apa jua cara sekalipun menggambarkan, hal itu;
  • 6. Document & content of a document  ILLUSTRATIONS (MISALAN)  A writing is a document. (Tulisan ialah dokumen)  Words printed lithographed (method for printing using a plate or stone with a completely smooth surface) or photographed are documents. (Perkataan yang dicetak, dilitografkan atau difotografkan ialah dokumen)  A map, plan, graph or sketch is a document. (Peta, pelan, graf atau lakaran ialah dokumen)  An inscription on wood, metal, stone or any other substance, material or thing is a document. (Inskripsi pada kayu, logam, batu, atau apa – apa benda, bahan atau barang lain ialah dokumen)  A drawing, painting, picture or caricature is a document. (Lukisan, citra, gambar atau karikatur ialah dokumen)  A photograph or a negative is a document. (Fotograf atau negatif ialah dokumen)  A tape recording of a telephonic communication, including a recording of such communication transmitted over distance, is a document. (Rakaman pita komunikasi telefon, termasuklah rakaman komunikasi sedemikian yang dipancarkan dari suatu jarak, ialah dokumen)  A photographic or other visual recording, including a recording of a photographic or other visual transmission over a distance, is a document. (Rakaman fotografi atau rakaman visual lain, termasuklah rakaman pemancaran fotografi atau pemancaran visual lain dari suatu jarak, ialah dokumen)  A matter recorded, stored, processed, retrieved or produced by a computer is a document; (hal yang dirakamkan, disimpan, diproses, didapatkan semula atau dikeluarkan oleh computer ialah dokumen)
  • 7. Document & content of a document Documentary evidence: Documentary evidence is any evidence introduced at a trial in the form of documents. Although this term is most widely understood to mean writings on paper (such as an invoice, a contract or a will), the term also include any media by which information can be preserved.
  • 8. Document & content of a document Photographs (R. v. Maqsud Ali [1965] 2 All ER 464 at p. 469 Schmidt v. Schmidt [1969] QWN 3 at 5; R. v. Lambert [1967] Crim. LR 480 & R. v. Howe [1958] SASR 95 at 125-6).
  • 9. Document & content of a document Tape recordings (Mohd Ali Jaafar v PP [1998] 4 MLJ 210, Ghazali Bin Salleh v PP [1993] 2 AMR 2037), Z.B. Bukhari v. B.R. Mehra AIR 1975 SC 1788, Yusufalli v. State AIR 1968 SC 147, R. v. Mills [1962] 3 All ER 298, & Gurbachan Singh v. PP [1966] 2 MLJ 125 at p. 132).
  • 10. Document & content of a document • Video recording (R. v. Fowden and White [1982] Crim. LR 588).
  • 11. Document & content of a document • Facsimile letter (Tempil Perkakas Sdn Bhd v Foo Sex Hong [1996] 5 MLJ 542)
  • 12. Authentication of documentary evidence (Section 61 – 66 of EA 1950) Authentication process First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950) Second step: Proving the content of the document: (See sections 61, 62, and 63 of EA 1950)
  • 13. First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950). Section 64 provides documents must be proved by primary evidence except in the cases hereinafter mentioned. (Dokumen – dokumen mestilah dibuktikan dengan keterangan primer kecuali dalm hal – hal yang tersebut kemudian daripada ini). This section provides that documens must be proved by primary evidence. It is based on the best evidence rule. Section 62 of the Act says that primary evidence means the document itself produced for the inspection of the court. (Dokumen itu sendiri yang dikemukakan untuk pemeriksaan mahkamah). Per Edgar Joseph Jr J (as he then was) in Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360, 368 states “It is firmly established rule under section 64 that requiring that when documentary evidence is tendered, primary evidence of the document, that is to say the production of the document itself is essential”. Per Mohd Dzaiddin SCJ in KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627, 631 states that “It is well-established rule of evidence that when documentary evidence is tendered, primary evidence of the said document must be adduced except in cases under section 65”. Section 65 provides for cases in which secondary evidence relating to documents may be given. (Hal – hal dalam mana keterangan sekunder bagi dokumen boleh diberi)
  • 14. First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950). • Method of proof of a document: Authentication of a document maybe provided by having its author appear as a witness, calling a witness who was present when it was signed (Section 67 – 73), or calling one who can identify the handwriting (Section 45 & 47) or draw presumption under section 90 (Ancient document). Per Augustine Paul JC (as he then was) in Alliedbank (M) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, 14 “It is settle law where a document is sought to be proved in order to establish the truth of the facts contained it, the maker has to be called. Non compliance with this rule will result in the contents of the documents being hearsay” See also R v Gillespie (1967) 51 Cr App R 172; R v Plumer (1814) R & R 264; Hill v Baxter [1958 1 QB 277; and R v Moghal [1977] Crim LR 373). • It is a requirement of the best evidence rule that the maker of a document must be called to prove it. The question of admissibility of documents per se is a question of law (See Au King Chor v PP [1985] 1 MLJ 216). It falls upon the party seeking to produce a document to show that it is admissible in law (See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301). The provisions of the Act as to the mode of proof of any document applies equally both to the prosecution and the defense (See Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360)
  • 15. No Authentication = Documentary hearsay • Myers v Director of Public Prosecutions [1965] AC 1001, the appellant was convicted together with another man of offences relating to the theft of motor cars. The prosecution case was to prove that the disguised cars were stolen by reference to the cylinder block numbers indelibly (permanently) stamped on their engines. Therefore, they sought to adduce evidence, which derived from records kept by a motor manufacturer. The witnesses called were the employees of the manufacturers of the cars who were in chaarge with the keeping of those records/data and not with their compilation. The defense counsel objected to the admission of such evidence since it was hearsay. The manufacturer’s records could not be tendered as proof of the truth of the facts stated. The trial judge however, admitted the evidence and convicted the appellant. The appellant then appealed to the Court of Criminal Appeal on the ground that the evidence ought to have been excluded but his appeal was dismissed. On appeal to the House of Lords it was held that the records constituted inadmissible hearsay evidence. The officer who was called in this case could not prove such records were correct. The appeal was then allowed and the conviction was set aside.
  • 16. No Authentication = Documentary hearsay • In Tan Siak Heng v. Rex [1950] 16 MLJ 214, the conviction of the accused for criminal breach of trust was quashed on appeal because at his trial written hearsay evidence was wrongly admitted. The appellant was employed as ca onductor by a bus company. On a charge of criminal breach of trust against him it was proved that he had issued a used ticket to a passenger who happened to be a detective. To prove the criminal breach of trust, a deputy accountant of the bus company was allowed to tender in evidence certain records to show that the money received had not been paid to the company. However, these records were not compiled by the witness and furthermore he had no personal knowledge of the facts recorded. Apart from these records there was no evidence of the failure to pay over the money. The appellant's appeal was allowed because clearly inadmissible written hearsay evidence was wrongly admitted.
  • 17. No Authentication = Documentary hearsay In Patel v. Comptroller of Customes [1966] AC 356 where the appellant was charged with making a false entry in that he declared the origin of the coriander seeds to be India whereas it was Morocco. The prosecution relied entirely on the labels and markings which asserted that the goods were the "produce of Morocco". On appeal the Privy Council held that the legend "produce of Morocco" written on the bags was from an evidential point of view inadmissible against the appellant as hearsay, and that the list of exceptions to the hearsay rule could not be extended to include such things as labels or markings. Perhaps the reason to exclude labels or markings as exceptions to the hearsay rule can be found in the judgment of Lord Hodson “Nothing here is known of when and by whom the markings on the bags were affixed and no evidence was called to prove any fact which tended to show that the goods in question in fact came from Morocco”.
  • 18. No Authentication = Documentary hearsay In Beh Heng Seong v PP [1972] 2 MLJ 190, the appellant was charged with a breach of the Sale of Food and Drugs Regulations by manufacturing sour plum juice in which there was saccharin (Artificial sweetener). This is prohibited for the use in the manufacturer of food or drinks. The prosecution sought to adduce evidence that a bottle of the sour plum juice offered for sale was labeled with a piece of paper bearing a certain portrait which was alleged to be manufactured by one Beh Kwang Chee. However, there was no indication as to whether Beh Kwang Chee was a shop or of the address of this person or the shop. It was held that the allegations on the label must be regarded as hearsay and inadmissible.
  • 19. No Authentication = Documentary hearsay In Sim Tiew Bee v. PP [1973] 2 MLJ 200, the appellant had been charged and convicted of the offence of being concerned in the importation of uncustomed goods. At the trial the evidence of the following documents was tendered and admitted: (a) the ship’s manifest without the master or the officer responsible for the document being called to prove the contents; (b) the tally sheet prepared by a tally-clerk who was called to give evidence but who stated that the measurements were taken by a coolie in the presence of the tally-clerk; The Federal Court held that evidence (a) and (b) should not have been admitted, unless the absence of the maker could be explained, which then would have been admitted as an exception to the rule against hearsay as specifically provided by s. 32.
  • 20. Second step: Proving the content of the document (See section 61, 62 & 63 of EA 1950) In proving the contents of writing, the original of the writing is the best evidence of its contents and must, therefore, be introduced (except in certain situations) (See section 62 which provide for primary evidence/keterangan primer) . When an admissible writing has been lost or destroyed or cannot be produced, the contents may be proven by an authenticated copy (section 63 (a) – (d) which provide for secondary evidence/keterangan sekunder) or by the testimony of a witness who has seen and can remember the writing (section 63 (e) See Ma Mi v Kallander Ammal AIR 1927 PC 15, 16). Per Lord Esher MR Lucas v William [1892] 2 QB 113, 116 “Primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation of its absence has been given”. See also Jai Gopal Singh v Divisional Forest Officer AIR 1953 Pat 310, 311
  • 21. Documentary Evidence & the best evidence rule Documentary evidence is subject to the best evidence rule, which requires that the original document be produced unless there is a good reason not to do so. See section 104 illustration b. Section 104 provides the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence. (Beban membuktikan fakta yang perlu dibuktikan untuk membolehkan seseorang memberi keterangan mengenai sesuatu fakta lain, terletak pada orang yang hendak memberi keterangan itu). Illustration b of the section provides A wishes to prove by secondary evidence the contents of a lost document. A must prove that the document has been lost. (A hendak membuktikan dengan keterangan sekunder kandungan suatu dokumen yang telah hilang. A mestilah membuktikan bahawa dokumen itu hilang)
  • 23. Presumption as to documents 20 years old i.e. Ancient document Section 90 provides Presumption as to documents 20 years old, where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
  • 24. Presumption as to documents 20 years old i.e. Ancient document Anggapan mengenai dokumen yang 20 tahun lamanya Jika sesuatu dokumen yang berupa atau dibuktikan sebagai dua puluh tahun lamanya dikemukakan dari sesuatu simpanan yang difikirkan wajar oleh mahkamah dalm hal tertentu itu, mahkamah boleh menganggap bahawa tandatangan dan tiap-tiap bahagian lain dokumen itu yang berupa sebagai dalam tulisan tangan seseorang tertentu adalah di dalam tulisan tangan orang itu, dan mengenai sesuatu dokumen yang disempurnakan atau diakusaksi, mahkamah boleh mengaggap bahawa dokumen itu telah disempurnakan dan diakusaksi dengan wajar oleh orang- orang yang berupa sebagai telah menyempurnakan dan mengakusaksikannya
  • 25. Presumption as to documents 20 years old i.e. Ancient document Section 90 of the Indian Evidence Act 1872 provides the presumption as to documents thirty years old.-Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
  • 26. Presumption as to documents 20 years old i.e. Ancient document Requirements under section 90 Not less than 20 years old Free from suspicion Produce from a proper custody • An ancient document, in the law of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule.
  • 27. Presumption as to documents 20 years old i.e. Ancient document The presumption goes only to the genuineness of the document but not to the truth of the contents. Per Sharma J in Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ 77, 79 “Private or public documents twenty years old produced from proper custody and otherwise free from suspicion prove themselves and no evidence of the handwriting, signature, sealing or delivery need in general be given. If a document twenty years old or more is produced from proper custody and is on its face free from suspicion the Court may presume - (1) that it has been signed or written by the person whose signature appears or in whose handwriting it purports to be; and (2)that it has been fully attested and executed if it purports/claim to be so.
  • 28. Presumption as to documents 20 years old i.e. Ancient document  The period of 20 years is reckoned from the date the document is tendered in evidence. Per Sir George Rankin in Surendra Krishna v Mirza Mohammad AIR 1936 PC 15, 17: “Their Lordship are however of opinion that under section 90 of the Evidence Act 1950, the period of 30 years is to be reckoned, not from the date upon which the deed is filed in court but from the date on which, it having been tendered in evidence”.  Where only a copy of the document is produced, the presumption under the section does not arise. Per Tan Chiaw Thong J in Tsia Deevelopment Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301, 302 stated that “That the production of a copy of the document is not sufficient to justify the presumption of due execution of the original under section 90. This ground is based on the Privy Council case of Kunwar Basant Singh & Ors v Kunwar Brij Raj Saran Singh (1935) IA 180.
  • 29. Presumption as to documents 20 years old i.e. Ancient document  In raising the presumption under the section, the court may rely on internal and external evidence of the document See Per KC Vohrah J in Ghazali Bin Arifin v Ahmad Bin Bakar [1992] 1 MLJ 282, 286 where the plaintiff is the son of Ariffin bin Osman and the administrator of his estate. The defendants are the beneficiaries of one Bakar bin Awang Ahmad's estate. Both Ariffin and Bakar have died. The plaintiff pleaded that his father, Ariffin, purchased from Bakar 1/3 of Bakar's undivided share, ie 1/3 of 4461/4609th share of the land held under SP 9920 Lot 355, Mukim Bukit Pinang, Kota Setar, Kedah. The land was alleged to have been purchased pursuant to a sale and purchase agreement dated according to the Muslim calendar, 11.6.1374 which corresponds with the Gregorian calendar dated 3 February 1955. The defendants are now registered owners of the said share. The plaintiff seeks a declaration that the defendants are bare trustees of the said share and for an order that the defendants do execute a transfer of the said share to him as administrator of the estate of Ariffin bin Osman, deceased. 
  • 30. Presumption as to documents 20 years old i.e. Ancient document  Held, allowing the plaintiff's claim: (3) There is one feature in the document which needs further investigation, ie the date on which it was stamped was the very same date on which the alleged vendor of the land, died. If there is a dispute as to the genuineness of such documents (having regard to s 90 of the Evidence Act 1950) , it is necessary for the courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.  (4) There is no evidence as to the time when Bakar died. And there is nothing to indicate that he could not have signed the document because he had died earlier. On the other hand, the evidence shows that the purported purchaser of the land, Ariffin, had the document of title in respect of the land in his possession and was in occupation of the land until he himself died in 1984. The inference is that having regard to the common course of natural events, Bakar must have passed it to him.
  • 31. Presumption as to documents 20 years old i.e. Ancient document If there is a dispute as to the genuineness of such documents (having regard to s 90 of both the Malaysian and Indian Acts) one needs to heed (take note/observed) what Madgavkar J said at p 40 in Mansukh Panachand Shah v Trikambhai Icchabhai AIR [1930] Bom 39, after he had referred to the Privy Council case of Shafiqunnissa v Shaban Ali Khan [1904] 26 All 581: “... it is necessary, therefore, for the courts to consider the evidence external and internal of the document in order to enable them to decide whether in any particular case they should or should not presume proper signature and execution.” In excercsing the discretion vested in the court under section 90 of the EA 1950, it is also important to exercise due care and caution as has been pointing out in Ghulam v Allahdin 19 IC 964 and Jesu Lal v Gangga Devi 20 IC 868.
  • 32. Presumption as to documents 20 years old i.e. Ancient document Read together with section 4 (1). It is presumption of fact, it is a permissive presumption, so it is up to the discretion of the court to decide whether to accept it or not. Per Ong J in Mohamed Ali v PP [1962] MLJ 230 states that “Presumptions of fact must not be drawn automatically, or as it were, by rule of thumb, without first considering whether in the circumstances of each particular case there adequate grounds to justify any presumption being raised”. If the document sought to be produced is not admissible under this section, it is still open to the party tendering it to establish that it is admissible under any other provision of the Act. See Tsia Development Enterprise Sdn Bhd v Awang Dewa [1984] 1 MLJ 301.
  • 34. Public document Public document: Public documents are documents made for the purpose of enabling the public to use or refer to them. Justice Blackburn in the case of Sturla v Freccia (1880) 5 App. Cas. 623 defined a public document as “a document that is made by a public officer for the purpose of public making use of it and being able to refer to it”. In Loo Fang Siang v Ketua Polis Daerah Butterworth [1981] 2 MLJ 272, Arunalandon J quoted Jowitt’s Dictionary of English Law that “a public document is defined as a document made for the purpose of the public making it”.
  • 35. Public document Section 74 provides the following documents are public documents: (a) documents forming the acts or records of the acts of - (i) the sovereign authority; (ii) official bodies and tribunals; and (iii) public officers, legislative, judicial and executive, whether Federal or State or of any other part of the Commonwealth or of a foreign country; and (b) public record, kept in Malaysia of private documents. (Dokumen – dokumen berikut adalah dokumen awam: a) dokumen yang mengandungi tindakan atau rekod tindakan (i) kuasa pemerintah berdaulat; (ii) badan – badan rasmi dan tribunal; dan pegawai – pegawai awam, perundangan, kehakiman dan eksekutif, sama ada bagi Persekutuan atau Negeri atau bagi mana – mana bahagian lain Komanwel atau sesuatu Negara asing; dan (b) rekod awam mengenai dokumen persendirian yang disimpan di Malaysia).
  • 36. Public document The definition of public document under this section is wider than the English law definition in the sense that section 74 does not require the condition of public access to the document to render it a public one; and even when a right to inspect is not permitted, a document may be a public document: See Per Augustine Paul J in Gopinathan a/l Subramaniam v Timbalan Menteri Dalam Negeri [2000] 1 MLJ 65
  • 37. Public document  Section 74 provides for two (2) classes of public documents. The first class includes the acts or records of the acts of certain authorities and officers. Examples:  Antony Gomez v. Ketua Polis Daerah, Kuantan [1977] 2 MLJ 24 (Federal Court) - A first information report is a public document  Khoo Siew Bee & Anor v. Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49 (High Court, Malaya) - A cautioned statement is a public document.  Toh Kong Joo v. Penguasa Perubatan Hospital Sultanah Aminah, Johore Baharu [1990] 2 MLJ 235 - Medical reports made by medical officer are public documents.  Haji Abdul GhaniBin Ishak v PP [1980] 2 MLJ 196 - Uncautioned statement is a public document.  Pavone v PP [1986] 1 MLJ 72 - Notes of proceeding is a public document.  Gopinathan a/l Subramaniam v Timbalan Menteri Dalam Negeri [2000] 1 MLJ 65 - Report and certificate made by an officer under section 6 of the Drug Dependent and Rehabilitation Act 1983 is a public document.  Yeow Boon Kee v Timbalan Menteri Dalam Negeri Malaysia [1993] 2 MLJ 359 - Report under section 3 (2) (c) of the Dangerous Drugs (Special Preventive Measure) Act 1985 is a public document.  Syarikat Jengka Sdn. Bhd. V Abdul Rashid Bin Harun [1981] 1 MLJ 201 (FC) - Removal passes issued by the Forest Guard is a public document
  • 38. Public document The second class relates to public records of private documents. What constitutes a public document has to be determined by court. There are certain guidelines in the decisions of the court when determining whether a document is a public document or not. In the case of Maktab Din v Kasar Singh 1928 Lah. 640, “it was stated that in order to bring a document within the definition of section 74, it must have shown to have been prepared by a public servant discharging his duty”.
  • 39. Public document Methods of proving public documents: In Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia [1994] 1 MLJ 592 it was held that “where the document is a public document, the best evidence rule is inapplicable and the secondary evidence may be adduced not only as to the existence of such document but also as to its contents”. The method of proving public document is laid under section 76 to section 78 of the Evidence Act 1950.
  • 40. Public document Right to inspect: A person who has an interest or has a right declared by law to inspect may inspect a public document. In the case of Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24, where it was held, By the Federal Court: “although section 76 of the Evidence Act is silent as to the right of a person to inspect a first information report, it is clear that under the common law the appellant has that right as he is a person interested in it and inspection is necessary for the protection of his interest. The first information report is admissible in evidence in the criminal trial under section 157 of the Evidence Act and therefore the appellant or his counsel should be supplied with a copy”.
  • 41. Public document Right to the copy: This section also states that when there is a right to inspect, an individual has a right to a certified true copy of the document on demand and on payment of the fees therefore. In Toh Kong Joo v. Penguasa Perubatan Hospital Sultanah Aminah, Johore Bahru [1990] 2 MLJ 235, where it was held that ”It is clear from s 76 of the Evidence Act 1950 that if a person has the right to inspect a document, then he should be supplied with a copy of the document on payment of the prescribed fee. A person has the right to inspect a document if he has an interest in that document and the inspection is necessary for the protection of his own interest.
  • 42. Public document However, the entitlement of a person to a copy of a public document depends on whether he has a right to inspect it. In the case of Huzir Bin Hassan v Ketua Polis Daerah [1991] 1 MLJ 445, Abu Mansor J, followed the decision in Husdi v PP stated that, “Anything that would have the effect of jeopardizing national security ran counter to national interest. It prevented the court from requiring the disclosure of any statement or document once a relevant public officer appeared claiming its disclosure ran counter to national interest. The public officer had the last say that the fact or evidence to be produced was against the national interest to disclose or produce”
  • 43. Public document The payment of legal fees: A person is entitled to a certified copy upon payment of the relevant legal fees. (See Dr. Munawar Ahmad Aness v Ketua Pengarah Penjara Malaysia [1999] 2 MLJ 289. In Yusof Bin Omar v Pendakwa Raya [2001] 2 MLJ 209 it was held that the words “salinan disahkan benar” in the certificate was sufficient compliance with the Act. It would seem to appear from the judgment in that case that the words “salinan yang diakui sah” would be equally sufficient. However, there is no requirement that the legal fees in respect of the certified copy must have been paid before it can be produced in evidence. (See Noliana Bte. Sulaimain v PP [2000] 4 MLJ 752).
  • 44. Private document • Section 75 provides that “All documents other than those mentioned in section 74 are private” (Segala dokumen selain daripada dokumen yang tersebut dalam seksyen 74 adalah dokumen persendirian). The conditions of admissibility of a private document are governed by section 61 – 66 of the Act.
  • 46. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). • Section 90A, 90B and 90C relate to documents produced by a computer and were introduced by the Evidence (Amendments) Act 1993 (Act A851). The principal Act is amended by inserting, in Chapter V, after section 90, the following new subheading and new sections 90A, 90B and 90C. This section is an exception to the hearsay rule. It applies to criminal and civil proceeding.
  • 47. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). •Admissibility of documents produced by computers: This is governed by section 90A. Section 90A (1) provides “In any criminal or civil proceeding a document produced by a computer or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement”.
  • 48. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). Admissibility of documents produced by computers: This is governed by section 90A. Section 90A (1) provides “Dalam mana – mana prosiding jenayah atau civil sesuatu dokumen yang dikeluarkan oleh komputer, atau sesuatu pernyataan yang terkandung dalam dokumen itu, hendaklah boleh diterima sebagai keterangan mengenai apa – apa fakta yang dinyatakan dalamnya jika dokumen itu dikeluarkan oleh komputer itu dalam perjalanan penggunaannya yang biasa, sama ada atau tidak seseorang yang mengemukakan dokumen itu adalah pembuat dokumen atau pernyataan itu”.
  • 49. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). Condition for admissibility The document was produced by a computer (S. 3 & 90A (5)) The document was produced by the computer in the course of its ordinary use.
  • 50. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). 2. The document was produced by the computer in the course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: A. It may be proved by the production of the certificate as provided in subsection 2 of section 90A which provides “For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used”
  • 51. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). 2. The document was produced by the computer in the course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: A. It may be proved by the production of the certificate as provided in subsection 2 of section 90A which provides “Bagi maksud seksyen ini bolehlah dibuktikan bahawa sesuatu dokumen itu dikeluarkan oleh komputer dalam perjalanan penggunaannya yang biasa dengan mengemukakan kepada mahkamah suatu perakuan yang telah ditandatangani oleh sesorang yang sama ada sebelum atau selepas pengeluaran dokumen itu oleh computer itu adalah bertanggungjawab bagi pengurusan pengendalian computer itu, atau bagi perjalanan aktiviti-aktiviti yang baginya computer itu digunakan”.
  • 52. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). 2. The document was produced by the computer in the course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: See also section 90A (3) (a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the knowledge and belief of the person stating it. (b) A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate and section 90A (4) Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced.
  • 53. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). B. It may be proved by calling a witness. If this is done, it is not necessary to also produce a certificate. In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 the court also argued that “Sub-s (2) which use “it may be proved” (bolehlah dibuktikan) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where a certificate is given under subsection (2) (Jika sesuatu perakuan diberikan di bawah subseksyen (2))'. These words show that a certificate is not required to be produced in every case. It is also the court view that once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as sub-s (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.
  • 54. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer).  Note: the person called as a witness should be a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer or for the conduct of the activities for which the computer was used.  In PP v Ong Cheng Heong [1998] 6 MLJ 678, where the computer printouts were not admitted as the person who tendered the computer printouts only introduced himself as the supervisor of the registration department of vehicles in the RIMV Perlis (mengawal selia bahagian pendaftaran kenderaan) and did not claim any responsibility for the conduct of the activities for which the relevant computer were used.
  • 55. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer).  If the document was produced by the computer in the course of its ordinary use, then the document or statement contained in such document shall be admissible as evidence. Section 90A can also be regard as an exception to hearsay rule. In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 (Criminal Breach of Trust – Section 409 of Penal Code), where the court held that once the prosecution adduce evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s. (2), as sub-s. (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.
  • 56. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per Mahadev Shankar JCA (concurring/in agreement) states that Zainal was the branch officer in charge of all the operations of the branch. He was therefore responsible for the conduct of the activities of the branch for which that computer was used. If he chose he could have issued a certificate as required by s. 90A(2) and without his actual presence all the computer generated documents would have been admitted in evidence as provided by s. 90A(1). In this case, Zainal was able to testify with regard to the documents because he was in charge of the operations of current accounts.
  • 57. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per Mahadev Shankar JCA (concurring/in agreement) also states “The viva voce (word of mouth) evidence of the man in the witness box counts for more than a certificate issued by him. Moreover, as the appellant did not challenge Zainal's evidence by way of cross- examination, the prosecution succeeded in proving that the documents were admissible” Section 90A was enacted to bring the "best evidence rule“ (Kaedah keterangan terbaik) up to date with the realities of the electronic age. The effect of s. 90A(1) in the present scenario is that it is no longer necessary to call the actual teller or bank clerk who keyed in the data to come to Court provided he did so in the course of the ordinary use of the computer. Document produced by a computer is also primary evidence. (See section 63 explanation 3.
  • 58. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). In Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240 (HC) Ian HC Chin J held that “It was only if the evidence was challenged as to its admissibility that it was necessary to produce a certificate under s 90A(2) of the Evidence Act 1950, that the documents were produced by a computer in the course of its ordinary use. Since the documents were unchallenged, such a certificate was unnecessary”. In this case, evidence was given by the witnesses that those documents were computer generated and they were produced in the course of the ordinary use of the computer. There was no challenge to this evidence. Since this is unchallenged evidence, it becomes unnecessary to produce certificate under section 90A (2) to proved the document were produced by a computer in the course of its ordinary use. It is only where it is disputed, during the time the evidence was adduced certificate then become necessary.
  • 59. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). In PP v Azman Ismail [2007] 10 CLJ 469 where five accused persons here were charged with the offence of murder under s. 302 of the Penal Code read with s. 34 of the same Code. On the issue whether the accused persons had been identified as the assailants of the deceased, the prosecution had introduced DNA profile. Held acquitting and discharging the accused persons. The evidence of the forensic DNA scientist (PW8) was most wanting, unreliable and unsafe to accept. The prosecution had failed to prove the expertise of PW8 (Forensic expert) by introducing evidence as required by law. Further, the DNA analysis and the probabilities values were obtained using the computer. In order to accept the information given by the computer software and the print out, there must be compliance with s. 90A of the Evidence Act 1950. There was no evidence of such compliance of the condition precedent as required by s. 90A.
  • 60. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). • Ahmad Najib Aris v PP [2007] 2 CLJ 229, where the appellant was convicted in the High Court of the rape and murder of one Canny Ong Lay Kian ('victim'), and was sentenced to twenty years' imprisonment and whipping of ten strokes for the rape, and to death for the murder. Appellant appeal. Held (dismissing the appeal) Per Abdul Aziz Mohamad JCA states “The swabs and smears obtained by the pathologist from the victim's upper vagina proved the presence in the vagina of semen. The semen was established to belong to the appellant. The stains on the Jack Blue Classics jeans belonging to the appellant were established to be stains of the blood of the victim. These proofs were established by DNA profiling and the results of the DNA profiling were obtained by the use of a computer. It was submitted on behalf of the appellant in the appeal that the documents concerned that were produced by the computer, which established those results, or from which those results were established, were not admissible in evidence under s. 90A of the Evidence Act 1950. This court had, however, decided in Gnanasegaran Pararajasingam v. PP, that because the word used in subsection (2) is "may", a certificate under the subsection is not mandatory for proving that a document was produced by a computer in the course of its ordinary use and that so long as there is proof that a document is produced by a computer,
  • 61. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). • Hanafi Mat Hassan v. PP [2006] 3 CLJ 269 at p. 307-312, where the accused was convicted of the offences of rape and murder respectively. In the words of the learned trial judge, the accused "had mercilessly and brutally raped and murdered the deceased, Noor Suzaily, in the bus WDE 4265 driven by him in the morning of 7 October 2000 at the time and place as stated in the charges". The chemist, who carried out DNA tests on blood samples taken from the accused, prepared the summary of the DNA profiling results thereof and confirmed that the semen found in the vagina of the deceased belonged to the accused. The accused contended that the findings of the trial judge were flawed and unsustainable in law and had hence appealed against the same. Consequently, before the Court of Appeal, arguments were put forth by the accused: (i) that a computer produced document could only be admitted under s. 90A if the prosecution proved not only that it was produced by a computer but also that it was produced in the course of its ordinary use and that in order to do so it was incumbent upon the prosecution to produce a certificate as required by s. 90A(2); Held (dismissing the appeal) Per Augustine Paul JCA delivering the judgment of the court: the use of the words "may be proved" in s. 90A(2) indicates that the tendering of a certificate is not a mandatory requirement in all cases. Thus, the use of the certificate can be substituted with oral evidence. See R v. Shepherd [1993] 1 All ER 225; Schmidt Scientific Sdn Bhd v. Ong Han Suan & ORS [1998] 1 CLJ 685 & PP v. Gurdial Singh Get Singh [2005] 6 CLJ 272.)
  • 62. Computer generated document (Document produced by a computer) (Dokumen yang dikeluarkan oleh komputer). Sections 90A and 90B to prevail over other provisions of this Act, the Banker's Books Evidence Act 1949, and any written law: Section 90C provides “ The provisions of sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers' Books (Evidence) Act 1949, or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding”. See Bank Utama (Malaysia) Bhd v Cascade Travel & Tours Sdn Bhd [2000] 4 MLJ 582.
  • 64. Parol evidence rule • Parol: It refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial. • Parole: The release of a prisoner whose term has not expired on condition of sustained lawful behavior that is subject to regular monitoring by an officer of the law for a set period of time.
  • 65. Parol evidence rule In the context of contracts, deeds, wills, or other writings, parol evidence rule refers to extraneous (irrelevant/unrelated) evidence such as an oral agreement or even a written agreement that is not included in the relevant written document. For example, Carl agrees in writing to sell Betty a car for $1,000. Betty argues that Carl told her that she would only need to pay Carl $800. The parol evidence rule would generally prevent Betty from testifying to this conversation because the testimony ($800) would directly contradict the written contract's terms ($1,000).
  • 66. Parol evidence rule The parol evidence rule is a principle that preserves the integrity of written documents or agreements by prohibiting the parties from attempting to alter the meaning of the written document through the use of prior and contemporaneous oral or written declarations that are not referenced in the document.
  • 67. Parol evidence rule  In order for the rule to be effective, the contract in question must be a fully integrated (included) in writing; it must, in the judgment of the court, be the final agreement between the parties (as opposed to a mere draft, for example). One way to ensure that the contract will be found fully integrated is through the inclusion of a merger clause, which recites that the contract is, in fact, the whole agreement between the parties.  "This Agreement, along with any exhibits, appendices, addendums, schedules, and amendments hereto, encompasses the entire agreement of the parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. The parties hereby acknowledge and represent, by affixing their hands and seals hereto, that said parties have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in this Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement. The parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on such representation, assertion, guarantee, warranty, collateral contract or other assurance, provided that nothing herein contained shall be construed as a restriction or limitation of said party’s right to remedies associated with the gross negligence, willful misconduct of fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Agreement."  However, many modern cases have found merger clauses to be only a rebuttable presumption. (in Latin, praesumptio iuris tantum) where it is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise.
  • 68. Parol evidence rule Common law position: The parol evidence rule enacts a principle of the common law of contracts that presumes that a written contract embodies the complete agreement between the parties involved; the document is the sole repository (store) of the terms of the contract. The rule therefore generally forbids the introduction of extrinsic evidence (i.e., evidence of communications between the parties which is not contained in the language of the contract itself) which would add or change terms of a later written contract.
  • 69. Parol evidence rule In Jacobs v. Batavia & General Plantations Trust Ltd [1924] 1 Ch 287 “It is firmly established as a rule of law that parol evidence cannot be admitted to add to, vary or contradict a deed or other written instrument. Accordingly, it has been held that (except in cases of fraud or rectification and except, in certain circumstances, as a defence in actions for specific performance) parol evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties”.
  • 70. Parol evidence rule Malaysian position: Section 91 to 99 of the Act deal with the exclusion of oral by documentary evidence. (Penyingkiran keterangan lisan oleh keterangan dokumen) Section 91 provides “When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained”.
  • 71. Parol evidence rule This section requires the production of the document itself for proof of its contents. The first limb of section 91 provides that when terms of a contract, grant or disposition of property have been reduced by or by consent of the parties to the form of a document then no evidence shall be given in proof of the terms of the contract, grant or disposition except the document itself (the primary evidence) or secondary evidence. However, section 91 only excludes oral evidence on the terms of the written contract. Oral evidence is still admissible to prove the existence of a contract. (See Ng Kong Yue v R [1962] MLJ 67 & Tyagaraja Mudaliar v Vedathanni [1936] MLJ 62. In Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, the court held that section 91 only applies when all the terms of a contract have been reduced to the form of a document.
  • 72. Parol evidence rule Section 92 of the Act comes into operation after the document has been produced for the purpose of excluding evidence of any oral agreement or statement to contradict, vary, add to or subtract from its terms. Section 92 provides that “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”. This section provides that as a general rule evidence of any oral agreement is not admissible as between the parties to contradict, vary, add to or subtract from the terms of the written agreement proved under section 91 of the Act unless the evidence sought to be introduced falls within one of the provisos of the section.
  • 73. Parol evidence rule These two sections are based on the concept of the “best evidence rule”. The parol evidence rule thus based on the “best evidence rule” i.e. the best evidence that the party must produce which the nature of the case would permit. The parol evidence rule means that when a document is presented as evidence, the best evidence about the content of a document is that document itself. Both sections supplement (connected) each other. They must also be read together with section 144 (evidence as matter to writing) of the Evidence Act 1950 which provides “Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to the evidence being given until the document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it”. This section deals with the exclusion of oral evidence when the matter on which a witness is testifying or is about to testify is contained in a document. This section thus sets out the manner in which the provisions of section 91 and 92 of the Acts ad to the exclusion of oral by documentary evidence may be enforced by the parties to the proceeding.
  • 74. Parol evidence rule Per Augustine Paul JC in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329 stated that “The best evidence about the contents of a document is the document itself and it is the production of the document that is required by s 91 in proof of its contents. In a sense, the rule enunciated by s 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act 1950. Section 92 applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under s 91. In other words, it is after the document has been produced to prove its terms under s 91 that the provisions of s 92 come into operation to exclude evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms. Sections 91 and 92, in effect, supplement each other. Section 91 would be frustrated without the aid of s 92 and s 92 would be inoperative without the aid of s 91. Since s 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved under s 91, it may be said that it makes the proof of the document conclusive of its contents. Like s 91, s 92 also can be said to be based on the best evidence rule”.
  • 75. Parol evidence rule  Per PB Gajendragadkar J in Bai Hira Devi v Official Assignee AIR 1958 SC 448 stated that “The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original. Section 91 is based on what is sometimes described as the best evidence rule. The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents. In a sense, the rule enunciated by section 91 can be said to be an exclusive rule in as much as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act”.  See also Inspector General of Police & Anor v. Alan Noor bin Kamat [1988] 1 MLJ 260 where it is stated that “it is clear that under section 91 of the Evidence Act no evidence can be given in proof of any matter which is required by law to be reduced to a form of a document and section 92 prohibits the giving of oral evidence to contradict or vary or explain the terms of such document”.  Section 91 & 92 applies equally to criminal trials no less than to civil proceedings: See Ah Mee v PP [1967] 1 MLJ 220 & PP v Tan Siew Hui [2008] 8 CLJ 142.
  • 76. Parol evidence rule  Section 93 – 98 of Evidence Act 1950. Read together with section 92 proviso (f): These sections deal with the rule of ambiguity of a document. In Faber Merlin (M) Sdn Bhd & Ors v Lye Thai Seng [1985] 2 MLJ 380, the court laid down the principle that when there is no ambiguity in a written agreement then the general rule against extrinsic evidence applies.  Accordingly, there are two types of ambiguities in which a document suffer from namely:  Apparent/clear/patent ambiguity: Ambiguity is clear on the surface of the record/document. If we read the whole document, we cannot understand on the face of it. The court will not allow extrinsic evidence to cure patent ambiguity by producing extrinsic evidence.  Latent/hidden ambiguity: On the face of it, it is all right but cannot exactly be precise. For example if there are 2 places of the same name we can introduce extrinsic to cure the defect.
  • 77. Parol evidence rule What Is The Rationale Behind The Parol Evidence Rule?: The parol evidence rule treats formal written documents created by parties as reflective of their true intentions regarding which terms are meant to be included in the contract. In doing this, it assumes that duties and restrictions that do not appear in the written document, even though apparently accepted at an earlier stage, are not intended by the parties to survive. Why Is The Parol Evidence Rule Necessary?: The Parol Evidence Rule helps with: Increasing the predictability and finality of commercial transactions by encouraging parties to draft better contracts; Reducing litigation and arguments between parties over the meaning of a written document; and Assisting in determining the true intentions of the parties at the time of contract formation.
  • 79. Parol evidence rule Statutory exceptions (Section 92) Non statutory exceptions (Cases) Vitiating factors (Proviso a) Collateral warranty (Proviso b) Condition precedent (Proviso c) Condition subsequent (Proviso d) Custom (Proviso e) Historical background & Surrounding circumstances Recital of contract
  • 80. Parol evidence rule: The exceptions Section 92 provides that “When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms”. (Apabila terma – terma bagi sesuatu kontrack, pemberian atau lain – lain pelupusan harta, atau apabila apa – apa perkara dikehendaki oleh undang – undang supaya dituliskan dalm bentuk dokumen, telah dibuktikan mengikut seksyen 91, tiada apa – apa keterangan mengenai sesuatu perjanjian atau pernyataan lisan boleh diterima antara pihak – pihak kepada suratcara itu atau wakil – wakil mereka dari segi kepentigan bagi maksud menyangkal, mengubah, menambah atau mengurangkan terma – termanya).
  • 81. Parol evidence rule: The exceptions This section provides that as a general rule evidence of any oral agreement is not admissible as between the parties to contradict, vary, add to or subtract from the terms of the written agreement proved under section 91 of the Act unless the evidence sought to be introduced falls within one of the provisos of the section.
  • 82. Parol evidence rule: The exceptions This section comes into operation only after the document has been produced to prove the terms in accordance with section 91 of the Act. As the section only applies to the terms of a document, a party is not precluded (prohibited) from adducing oral evidence to contradict a recital of fact in the contract. (See Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290)
  • 83. Parol evidence rule: The exceptions  It must be noted that where a document does not constitute a contract between the parties and it is also not a document required by law to be reduced to a form of a document, oral evidence is not excluded (See Phiong Khon v Chon Chai Fah [1970] 2 MLJ 114)  This section applies where the whole contract is contained in the document. On the other hand, if the intention of the parties is to reduce some portion of their agreement into writing and leave the rest as oral agreement, they may in such a case give extrinsic evidence as to the portion not put in writing. (See also Damn Jadhas v Paras Nath Singh [1965] 2 MLJ 38. In Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, where it was held that “some terms are given orally and some in writing, oral evidence could be given to prove the terms agreed to orally”.
  • 84. Parol evidence rule: The exceptions  The scope of the words “any matter required by law to be reduced to the form of a document” in this section show that the section applies to bilateral and dispositive documents (Documents by which rights are disposed of). Section 91 is much wider than section 92 whereby it apply to both unilateral and bilateral contract and in both dispositive and non – dispositve documents.  There are also a vital difference between section 91 and 92 as a result of the use of the word “as between the parties to any such instrument” in section 92. This part of the section shows that section 92 applies only to the parties to an instrument and not to strangers. (Read with section 99 (look at the illustration given) where a persons other than parties may give extrinsic evidence to vary the document if it effected his interests). Per Ibrahim J in Director General of Inland Revenue v Ee Sim Sai [1977] 2 MLJ 32 stated “Section 92 Applies Only to Parties to Instrument and Not to Strangers. The words 'as between the parties to any such instrument' are very important, as they and the reference to 'separate oral agreement' in proviso (2) restrict the application of the rule only to the parties to the document or their privies (have any interest). It does not apply to strangers who cannot be affected by the terms of a document to which they were not parties and which may contain untrue or collusive statements to serve some fraudulent purpose or things prejudicial to their interests; whereas section 91 applies to both strangers and parties. So, persons other than the parties to the instrument or their representatives in interest, i.e., third parties, are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document (section 99)”.
  • 85. Parol evidence rule: The exceptions  The provisos to the section operate as an exception to the general rule. Per Salleh Abas FJ in Tan Chong Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220 stated “There is this rule of evidence contained in section 92 of the Evidence Act to the effect that no oral evidence will be admissible to contradict, vary, add or subtract the terms of a written agreement unless the oral evidence comes within one of the exceptions or illustrations contained in the section”. In Tindok Besar estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229 states that “Section 92 specifically excludes evidence to contradict, vary, add to or subtract from any of the terms of a contract in writing, except in any of the situations spelled out in the provisos thereto”. These provisos are based on the common law (See United Malayan Banking Corp Bhd v Tan Lian Keng [1990] 1 MLJ 281)  The burden is on the party trying to adduce oral evidence. Per Abu Mansor J in B-Trak Sdn Bhd v Bingkul Timber Agencies Sdn Bhd [1989] 1 MLJ 124 states that “I am not unmindful of s 92 of the Evidence Act 1950 wherein it will be for the defendants to argue at the trial whether it will be open for them to contradict or vary the written terms”. (See also Ponniah v Chinniah [1961] MLJ 66; Perwira Habib Bank (M) Bhd v Penerbitan ASA Sdn Bhd [1998] 5 MLJ 297).
  • 86. Parol evidence rule: The exceptions  1st exception: The vitiating factors: The word vitiating or vitiate means to make (a contract) ineffective or invalidate. Section 92 proviso (a) provides that “any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law”. (apa – apa fakta yang akan membatalkan apa – apa dokumen atau yang akan menghakkan seseorang mendapat sesuatu dekri atau perintah berhubungan dengannya boleh dibukti, seperti fraud, intimidasi, ketaksahan di sisi undang – undang, ketiadaan penyempurnaan wajar, ketidaan keupayaan di mana – mana pihak pejanji, fakta bahawa ianya tersalah tarikh, ketiadaan atau kemungkiran balasan, atau kesilapan fakta atau undang – undang).
  • 87. Parol evidence rule: The exceptions  In Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385 where oral evidence was admitted to show that there was a want of consideration (ketiadaan balasan). In this case the plaintiff claimed the sum of $3,356.00 on a promissory note signed by the defendant which alleged a loan to the defendant by the plaintiffs. Oral evidence was given that the sum represented amounts due from him as the head of “liuci” which he ran in 1962 and that the defendant had in fact never received the loan from the plaintiff. Oral evidence of failure of consideration in a contract is admissible under proviso (a) of section 92.  In NS Narainan Pillay v The Netherlandsche Handel Maatschappij [1934] MLJ 227, Edmonds J in his supporting judgement stated that “…If one assumes that the document should be regarded prima facie as a contract, still proviso I would apply; according to which "any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party or failure of consideration or mistake in fact or law…”. (See also Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35
  • 88. Parol evidence rule: The exceptions  2nd exception: Collateral warranty: Section 92 proviso (b) provides “the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document”. (kewujudan sesuatu perjanjian lisan yang berasingan mengenai apa – apa perkara yang tidak tersebut di dalam sesuatu dokumen dan yang tidak berlawanan dengan terma – termanya, boleh dibuktikan, dan pada menimbangkan sama ada proviso ini boleh dipakai atau tidak, mahkamah hendaklah memberi perhatian terhadap tahap formaliti dokumen itu). This proviso allows other evidence to be admitted when it is alleged that the written agreement is not the entire agreement. Therefore the parties can prove that they entered into a distinct oral agreement on some collateral (something additional or confirming, giving guarantee, assurance, or security) matter.
  • 89. Parol evidence rule: The exceptions  In Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 1 MLJ 89, [1980] 2 MLJ 16, where the plaintiffs, the landlords of the premises, claimed vacant possession of the premises and alleged that the defendants, the tenants, were in arrears (debt) of rent. Notice to quit had been given. The defendants alleged that they had paid the sum of $ 14,000 to the landlords and claimed that they were entitled to occupy the premises for as long as they wished on payment of rent regularly. They also alleged that the plaintiffs had refused to accept the arrears of rent. The learned trial judge found as a fact that the defendants had paid the sum of $ 14,000 to the plaintiffs. Held: (1) as the defendants had paid tea-money to the plaintiffs, and as the payment was induced and encouraged by the plaintiffs in that the defendants would be allowed to remain in occupation for as long as they desired on payment of the monthly rent, an equity had been created and the defendants were entitled to occupy the premises for a term of years to be determined, provided they observed the conditions.
  • 90. Parol evidence rule: The exceptions  Similar in Tan Chong & Sons Motor Co (Sdn) Bhd v Alan McKnight [1983] 1 MLJ 220, where in this case the respondent was a squadron leader in the Royal Australian Air Force. He wanted to buy a car and get the benefit of exemption from duty in Malaysia and Australia. He would have obtained the exemption if the motor car was taken out of Malaysia and if it complied with the Australian Design Regulations. He agreed to buy a car from the appellants and signed a Buyer's Order which contained a condition that no guarantee or warranty of any kind whatsoever was given by the company. However the respondent only bought the car on the representations of the appellant's salesman that the car conformed to the Australian Design Regulations. The car supplied did not comply with the Regulations and the respondent had to sell the car for$ 6,500.00 thereby incurring a loss of $ 11,219.54 ($ 17,719.54- $ 6,500.00). The respondent also lost the fiscal advantage of importing the car to Australia duty free. The respondent claimed damages for breach of warranty. The learned trial judge found that there had been a warranty and this was breached by the appellants. There was clear evidence that had it not been for the promise of the salesman to deliver him a car complying with the Australian Design Regulations, the respondent would not have signed the Buyer's Order. At the trial several witnesses were called by both sides.
  • 91. Parol evidence rule: The exceptions  In Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd & Anor [1999] 1 MLJ 193, the Federal Court said that in considering whether this proviso applies, regard is to be had to the nature of the written agreement and its surrounding circumstances. Depends on the background, nature or history of the agreements, the more formal the agreement the less ready the court will allow a collateral agreement to vary or contradict the written instrument.  In Ng Lay Choo Marion v Lok Lai Oi [1995] 3 SLR 221, the court disallowed some oral term to be adduced in evidence (at page 227). The agreement has indeed a high degree of formality and clearly indicates that the parties intended the agreement to contain a full description of their respective rights and obligations. The agreement was drafted by a solicitor, on instructions from the respondent and all the parties were fully aware of the alleged subject matter of the oral terms and if these had been agreed at that time they would have been incorporated in the agreement.
  • 92. Parol evidence rule: The exceptions  3rd exceptions: Condition precedent: Section 92 proviso (c) provides “the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved”. (kewujudan sesuatu perjanjian lisan yang berasingan yang menjadi syarat duluan bagi pengenaan apa – apa obligasi di bawah sesuatu kontrak, pemberian atau pelupusan harta itu boleh dibukti).  This proviso stated that if the contract is incomplete, evidence of a prior agreement can help fill in what is missing.  Condition precedent refers to an event or state of affairs that is required before something else will occur. "I will only go to heaven after I have died." My death is a condition precedent to my going to heaven. In contract law a condition precedent is an event which must occur, before performance under a contract becomes due--i.e., before any contractual duty arises.
  • 93. Parol evidence rule: The exceptions  In Ganesan v Baskeran [1986] 2 MLJ 26, where in this case the appellants had agreed to buy land belonging to the respondent and had paid a deposit of $ 20,000/-. There was a restriction in the document of title that the land could not be transferred without the consent of the Ruler in Council. No such consent was obtained but the respondent applied for the rescission of the contract and the forfeiture of the deposit on the ground that the appellants had failed to complete the transaction and that time was of the essence of the contract. The learned trial judge at first heard the application in chambers and dismissed it. However after hearing further arguments in open court he reversed the decision and allowed the application. He formed the view that time was the essence of the contract and therefore the respondent had properly terminated the agreement and forfeited the deposit. The appellants appealed. It was held (Appeal allowed): (1) the central question that arose for determination in this case is whether the respondent did orally promise that he would obtain the consent of the Ruler in Council necessary for the transfer. There was therefore an issue to be tried; (2) evidence relating to the separate oral agreement is admissible under proviso (c) of section 92 of the Evidence Act and the appellants should have been permitted to adduce evidence to prove the existence of such a promise. See also Pym v Cambell 6 E & B 370.
  • 94. Parol evidence rule: The exceptions  4th exception: Condition subsequent: Section 92 proviso (d) provides that “the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents”. (kewujudan sesuatu perjanjian lisan terkemudian yang berlainan, bagi membatal atau mengubahsuai mana – mana kontrak, pemberian atau pelupusan harta itu, boleh dibuktikan kecuali dalm hal di mana kontrak, pemberian atau pelupusan harat itu dikehendaki oleh undang – undang supaya dibuat secara bertulis, atau telah didaftarkan mengikut undang – undang yang sedang berkuatkuasa berkaitan dengan pendaftaran dokumen – dokumen).  This proviso provides proof of distinct subsequent oral agreement to rescind or modify any contract except where it is required by law to be in writing or has been registered. In other words, it provides for the evidence of a later change in a written contract.
  • 95. Parol evidence rule: The exceptions • In the case of Wong Juat Eng v Then Thaw Eu [1965] 2 MLJ 213, the respondent’s predecessor let (rent) certain premises for a term of 5 years to the appellant and her co-tenants under memorandum of sublease which contained a covenant that the subleasees were not to assign or sublet the demised premises or any part thereof without the consent of the subleassor. The appellant had sublet rooms on the premises but she alleged that she had obtained verbal permission from the owner. The respondent gave a month’s notice of termination of the sublease and brought an action for possession of the premises. The court held that parol evidence is admissible as evidence of waiver. A waiver is the voluntary relinquishment or surrender of some known right or privilege).
  • 96. Parol evidence rule: The exceptions  BUT a distinct subsequent oral agreement to modify an earlier agreement cannot be proved where the latter is required by law to be in writing. In Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241, where in this case the respondent was the lessee of premises in Kota Kinabalu. The lease was in writing and registered in accordance with section 104 of the Sabah Land Ordinance. It provided for the possibility of renewal by written request. The lease was for a period of 16 years commencing on January 16, 1965. On the expiration of the lease the respondent only delivered part of the premises to the appellant and retained the ground floor. The appellant claimed possession of the ground floor and in his defence the respondent alleged that there was an oral agreement for a new lease. It was held that the oral agreement could not be admitted as to do so would be contrary to section 92 of the Evidence Act. As the lease in this case was required to be in writing by virtue of section 104 of the Sabah Land Ordinance and has been registered in accordance with the Ordinance, there is no way in which the respondent's alleged agreement could be proved under proviso (d) to section 92 of the Evidence Act.  In Teo Siew Peng v Guok Sing Ong [1983] 1 MLJ 132, the court has laid down the principle that where the terms of an instrument are required by law to be reduced into writing then no evidence of any oral agreement can be admitted in evidence.
  • 97. Parol evidence rule: The exceptions  5th exception: Custom: Section 92 proviso (e) provides that “any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract”. (apa – apa kelaziman atau adat yang dengannya insiden – insiden yang tidak disebutkan secara nyata dalm sesuatu kontrak biasanya ditambah kepada kontrak dari jenis itu boleh dibuktikan jika penambahan mana – mana insiden itu tidak repugnan atau berlawanan dengan terma – terma nyata kontrak itu)  This proviso provides that oral evidence is admissible to establish a trade usage to be annexed to the written contract but such usage must be consistent with the terms and tenor (intention or meaning) of the written contract.
  • 98. Parol evidence rule: The exceptions  In Cheng Keng Hong v Government of Federation of Malaya [1966] 2 MLJ 33 where in this case the Chief Architect of the Ministry of Education had issued a notice inviting tenders for the erection of a school. The applicant tendered for the work and his tender was accepted. A contract was entered into which recited the drawings and specifications according to which the work was to be done. The applicant discovered that the specification for electrical service was at variance (inconsistent) with the layout drawings and thereupon wrote to the Chief Architect. He received a letter from a Mr. Hewish for the Chief Architect that extra payment would be paid for fittings, other than those mentioned in the specifications alleging that it was custom to do so. Subsequently the Government refused to pay any extra payment. It was held that “there was no custom as alleged that if any work was done according to the drawing which was not set out in the specification, extra payment would be made, as such usage would be inconsistent with the contract, which consists of the tender, acceptance and other relevant documents”. (Custom must be well-known, recognised and generally practice by huge number of people)
  • 99. Parol evidence rule: The exceptions • In Smith v Welson [1632] 3 B & Ad 726 stated that “where extrinsic evidence was given to show that a written contract stating 1000 rabbits actually means by local customs 1200 rabbits”.
  • 100. Parol evidence rule: The exceptions  6th exception: The document historical backround and surrounding circumstances that leads to its creation: Parties can give historical background to discover the nature of the contract but cannot adduce pre negotiation transaction to discover the intention of the parties. See Keng Huat Film S/B v Makhanlall (Properties) Pte Ltd [1984] 1 MLJ 243 cited Prenn v Simmonds [1971] 3 All ER 237 and Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114.  In Prenn v Simmonds [1971] 3 All ER 237, 241 where Lord Wilberforce had said per curiam at page 241 that, “evidence of negotiations, or of the parties' intentions ... ought not to be received, and evidence should be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of the 'genesis' and objectively the 'aim' of the transaction”.  In Phiong Khon v Chonh Chai Fah [1970] 2 MLJ 114, the court allowed extrinsic evidence to be given to help interpret the document. Evidence of surrounding circumstances is admissible. Under the head of court's power to construe and interpret a document in the light of surrounding circumstances is not affected by the rule in section 92 the author observes:-- “Section 92, however, merely prescribes a rule of evidence; it does not fetter (confine/restrict) the court's power to arrive at the true meaning and effect of a transaction in the light of all the surrounding circumstances”
  • 101. Parol evidence rule: The exceptions  7th exception: Recital of contract: In Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290, any agreements in written form include recitals in the contract, which is different from the terms of contract. Recital is a rehearsal of the facts, usually at the back of the document like S&P agreements. If there is a dispute as to the instruments, can give extrinsic evidence. It is not prohibited to do so.  In the Privy Council case of Sah Lal Chand v Indarjit [1899-1900] 27 IA 93 where it was held that (i) section 91 of the Indian Evidence Act (which is in the same terms with section 92 of our Evidence Act 1950) does not preclude/prevent oral evidence to contradict a recital of fact in a written contract and (ii) it is settled law that, notwithstanding an admission that the consideration has been received, it is open to the vendor to prove that no consideration has been actually paid. Recital means: “Statement to introduce the operative part of an instrument. They give details of the relevant earlier deeds or events leading up to the present deed, and explain the background of the transaction. Recital commence with the word “whereas”.
  • 102. DOCUMENTARY EVIDENCE DOCUMENT & CONTENT OF DOCUMENT ANCIENT DOCUMENT PUBLIC & PRIVATE DOCUMENT COMPUTER GENERATED DOCUMENT PAROL EVIDENCE RULE FINISH FINISH FINISH FINISH FINISH
  • 105. Presumption (Anggapan) Presumption: In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. Per Chang Min Tat J in PP v Ooi Seng Huat [1968] 2 MLJ 168 states “Now as matter of law a presumption is a statutory invention that upon the proof of a fact an inference (assumption) of another fact can be drawn”. Section 4 of EA 1950 provides for presumptions (Anggapan). The section prescribes three types of presumptions. Per Sarkaria J in Syad Akbar v State of Karnataka AIR 1979 SC 1848 provides that presumptions are of three types namely i) Permissive presumptions or presumptions of fact; ii) Compelling presumptions or presumptions of law (rebuttable); and iii) Irrebuttable presumption of law or conclusive proof. It should be remember that clauses (i), (ii), and (iii) are indicated in clauses (1), (2) and (3) of section 4, Evidence Act.
  • 106. Presumption (Anggapan) Presumption :Section 4 Presumption of fact :section 4 (1) Rebuttable Presumption :Section 4 (2) Irrebuttable Presumption :Section 4 (3)
  • 107. Presumption (Anggapan)  Presumption of fact: Section 4 (1) provides “Whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it”. (Apabila diperuntukkan oleh Akta ini bahawa mahkamah boleh menganggap sesuatu fakta, mahkamah boleh sama ada mensifatkan fakta itu sebagai terbukti melainkan dan sehingga terbukti sebaliknya, atau boleh meminta buktinya)  Presumption of fact is a legal term used to describe a presumption that one makes to determine that a fact is probably true. For example: A man while peering through his window observed a brown Ford cargo van leaving a neighbor's house across the street. He did not notice the time but he noticed that at the time the van left the house, another neighbour was feeding her cat on the porch, which she does between 12:01pm and 12:30pm every day. The man believes on this basis that the van left the neighbour's house sometime soon after midday. He has made a presumption of fact. This type of presumptions can be found in section 86, 87, 88, 90 and 114 of the Act. The operative words in these sections are ‘may presume’. In these sections the court may either regard the fact as proved unless and until it is disproved, or may call for proof of it. Per Ong J in Mohamed Ali v PP [1962] MLJ 230 states that “Presumptions of fact must not be drawn automatically, or as it were, by rule of thumb, without first considering whether in the circumstances of each particular case there adequate grounds to justify any presumption being raised”.
  • 108. Presumption (Anggapan)  Rebuttable presumption of law: Section 4 (2) provides “Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved”. (Apabila diperuntukkan oleh Akta ini bahawa mahkamah boleh menganggap sesuatu fakta, mahkamah boleh sama ada mensifatkan fakta itu sebagai terbukti melainkan dan sehingga terbukti sebaliknya).  Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. In other words, a rebuttable presumption is an assumption of fact accepted by the court until disproved. All presumptions can be characterized as rebuttable. It is an assumption that is made in the law that will stand as a fact unless someone comes forward to contest it and prove otherwise. For example, in adoption law, it is most commonly used to "presume" that if a woman is married when she gives birth to a child, that her husband is its father. This "presumption" will stand as a legal fact unless it is contested and proven to be wrong. Or a person who has been judicially declared incompetent is presumed incompetent unless there is sufficient proof, usually in the form of medical testimony, that the person has regained competency. This type of presumptions can be found in sections 79, 80, 81, 82, 83, 84, 85, 89, 105, 107, 108, 109, 110, and 111 of the Act. The operative words in the sections are ‘shall presume’. In these sections, the court shall regard such fact as proved unless and until it is disproved.
  • 109. Presumption (Anggapan)  Irrebuttable presumption of law: Section 4 (3) provides “When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it”. (Jika satu fakta ditetapkan oleh Akta ini sebagai bukti muktamad bagi suatu fakta lain, mahkamah hendaklah, apabila terbuktinya fakta yang satu itu, mensifatkan fakta yang satu lagi itu sebagai terbukti, dan tidak boleh membenarkan keterangan diberi bagi maksud membuktikan sebaliknya fakta itu). A conclusive presumption (also known as an irrebuttable presumption) in English law is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary. For example, the doli incapax rule conclusively presumes that a child less than ten years old cannot be held legally responsible for their actions, and so cannot be convicted for committing a criminal offence. The age was seven at common law, and raised by the Children and Young Persons Act 1933 to eight and by the Children and Young Persons Act 1963 to ten. This type of presumptions can be found in section 41, 112 and 113 of the Act. The operative words in the sections are ‘conclusive proof’. In these sections the court shall not allow evidence to be given for the purpose of disproving the fact presumed. Per Stevens J in Re Khoo Thean Tek’s Settlements [1919] SSLR 50 stated that “When one fact is declared by the Ordinance to be conclusive proof of another, the court shall not allow evidence to be given for the purpose of disproving it”.
  • 110. Presumption of continuity of life/ Anggapan masih hidup S. 107
  • 111. Presumption of continuity of life Presumption of continuity of life: Section 107 of EA 1950 provides Burden of proving death of person known to have been alive within 30 years (Beban membuktikan kematian orang yang diketahui masih hidup dalam masa tiga puluh tahun) states that “When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it”. (Apabila soalnya ialah sama ada seseorang itu masih hidup atau telah mati, dan dibuktikan bahawa orang itu masih hidup dalam masa tiga puluh tahun, beban membuktikan yang dia telah mati terletak pada orang yang menegaskannya).
  • 112. Presumption of continuity of life  This section deals with the burden of proving death of a person known to have been alive within 30 years.  It provides that the burden lies on the party who asserts it. This section must be read with section 108 of the Act. However both the sections cannot be apply to the same case as a person cannot at the same time be both alive and dead. In Surjit Kaur v Jujar Sigh AIR 1980 SC 274, there was an application under section 107 for the continuity of life. The issue tendered was whether in 24th Mei 1970 Surjit Singh was dead or alive. On fact that on 24th Mei 1960, he was known to be alive. This certainly gives rise to presumption of continuity of life.
  • 114. Presumption of death Presumption of death: Section 108 of EA 1950 provides for the Burden of proving that person is alive who has not been heard of for 7 years (Beban membuktikan bahawa orang yang telah tidak didengari apa – apa khabar selama tujuh tahun masih hidup) states that “When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”. (Apabila soalnya ialah sama ada seseorang itu masih hidup atau telah mati, dan dibuktikan bahawa tiada apa – apa khabar telah didengar mengenainya seama tujuh tahun oleh orang – orang yang sepatutnya mendengar khabarnya jika dia masih hidup, beban membuktikan yang dia masih hidup beralih kepada orang yang menegaskannya). This particular section provides that if it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
  • 115. Presumption of death • In Re Gun Soon Thin [1997] 2 MLJ 351, the applicant sought a declaration that his father ('Gan Teck Heow'), who had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, be presumed dead. There was affidavit evidence that when the Japanese invaded Malaya in 1942, Gan Teck Heow was nabbed by the Japanese soldiers. Efforts to trace Gan Teck Heow, though mounted extensively, proved futile. Evidence showed that Gan Teck Heow had never contacted his family members since the Japanese soldiers took him away. The issue before the court was whether, on the facts of the case, Gan Teck Heow ought to be presumed dead. Based on the facts of the case and the affidavit evidence, the court held that Gan Teck Heow be presumed dead. Further, the court could take judicial notice of the fact that the Japanese occupation had taken the death toll on the higher scale. Without the death certificate of Gan Teck Heow or a declaration to that effect by this Court, letters of administration (L.A.) can never be extracted. (taken)
  • 116. Presumption of death Presumption of death requirements See Re A Penhas, deceased [1947] MLJ 78. Not less than 7 years Said absence has gone on consistently without explanation; No person's have been contacted by the presumed The person can not be found with any searches.
  • 117. Presumption of death • In Re Othman Bin Bachit [1997] 4 MLJ 445, in order to invoke the aid of s 108, two basic facts must be proved. They are: (a) the person must not have been heard of for seven years; and (b) this must be by those who would naturally have heard of him, if he had been alive. The first fact to be proved is self-explanatory (clear) while the second requires some elaboration (explanation). • A person 'has not been heard of' if no reliable information concerning him is received. There is no definite rule as to who are the persons who would 'naturally' have heard of him, if alive. Generally speaking, they are his close relatives or neighbours (see Doe d'France v Andrews (1850) 15 QBD 756). • Where the question is whether a married woman is dead or alive, her husband, if alive, would be the proper person who would naturally hear of her if she were alive (see Ganesh Bux Singh v Mohammad AIR 1944 Oudh 266).
  • 118. Presumption of death • Time of death: Under this section, there is no presumption as to the time of death. In Re Othman Bin Bachit [1997] 4 MLJ 445 it was stated that although a person who has not been heard of for seven years is presumed to be dead, there is no presumption as to the time of his death under section 108. If it is sought to establish the precise period at which a person died then it must be done so by actual evidence like the proof of any other fact. • In Lal Chand Marwawi v Mahani Ramrup Gir 42 TLR 159 where in the course of the judgment in that case Lord Blanesburgh said: “But the law really is that on the facts now assumed there is no presumption as to Bhawan Gir being dead either in 1902 or 1904. There is only one presumption and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact is a matter of proof. See also Re Phene's Trusts (1870) 5 Ch App 139 and Re A Penhas, deceased [1947] MLJ 78. The section is designed for the purpose of determining whether a man is alive or dead at the time when the question arises in a dispute in a court or proceedings. • InSmt Mathru v Smt Rani AIR 1986 HP 6 where Gupta J said at p 8: There is no presumption that a person who has not been heard of for a period of not less than seven years died at the end of the first seven years or on any particular date. The burden of proving the date of death of a person is always upon the person who asserts that a person had died on a certain date because there is no presumption about the date of death. The only presumption under s 108 of the Act is that a person is dead if he has not been heard of for seven years and this presumption only arises when a question is raised in a court, etc as to whether a person is alive or dead. Such presumption can earliest be drawn when a dispute is brought in a court or proceeding.
  • 119. Presumption of death  Where a person absconded, presumption of death cannot be raised.  In R Muthu Thambi v K Janagi [1955] MLJ 47, the respondent (Janagi) had in 1929 married a man who after two years absconded (run away) to India. There had been no news from him. In 1940 respondent went through a ceremony of marriage with appellant. Later on they divorced and she sued for maintenance. The appellant said he is not bound to pay the maintenance because there is bigamous marriage (not valid marriage). However Janagi part argued that there was a presumption of death. However it was rejected by the court since in this case, Janagi tried to argued on the specific time of death and the fact that the first husband had only absconded to India (he had no intention to communicate), so the presumption cannot apply. See Watson v England 60 ER 266 and Bowden v Henderson 65 ER 437 where if a person absconded, presumption of death cannot be raised.