Law of Evidence II

1. Law of Evidence II
Tutorial 4 Question 3
T3V
By: Navneetaa Kerbananthan 1171100536

2. Question
Labu and Labi were charged with the offence of outraging the modesty of a girl. Based on the facts of the case,
they were charged with committing the offence against Comel, aged 13. The prosecution brought in a video
footage which was recorded by a CCTV installed in the victim’s house. Both Labu and Labi submit that they
are not the 2 persons in the video. They further submit that the footage has been doctored to look like them
using advanced digital technology.
Both Labu and Labi have called an expert witness Mr. Pin, who testifies that the footage was not that of Labu
and Labi and that it has been doctored. The prosecution in turn has called its own expert Mr. Tin who testified
that the footage is that of Labu and Labi and there is no conclusive evidence to suggest that it was doctored.
The prosecution has challenged the defence witness by suggesting that the defence witness is not qualified to
be an expert witness because he has never testified as an expert in court before and no evidence was given on
his qualifications. The defence has challenged the testimony of Mr.Tin on grounds that he has not provided any
explanation for his conclusions.
Advise the parties.

3. Whether the prosecution has good grounds to challenge the defence counsel’s expert witness,
Mr Pin on the basis that he is not qualified for not having the experience of testifying as an
expert in court previously and has not produced evidence on his qualifications.
Issue 1
S. 45 of EA 1950 - When the court has to form an opinion upon a point of foreign law or of
science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions
upon that point of persons specially skilled in that foreign law, science or art, or in questions as
to identity or genuineness of handwriting or finger impressions, are relevant facts.
Law

4. Dato Mokhtar bin Hashim & Anor v PP - Even if the expert has never testified in court, it would
not prevent him from being accepted as an expert as there is always a first time for everything.
It was additionally held that experts must provide evidence of their qualification either by
academic qualification or experience.
Wong Chop Saow v PP - The expert must, as a preliminary issue, give evidence of his
qualifications to enable the court to consider his opinion evidence. It was also held that it is not a
pre-requisite for the expert to have experience in giving expert opinion which was accepted by
court previously and the fact that the expert was giving evidence in court for the first time
would effect only the weight and not admissibility of the evidence.
PP v Chong Wei Kian – It was held that the mere fact that the witness was a chemist for 18
years without evidence of his qualifications and experience did not make him an expert.
Law (cont)

5. The prosecution is challenging the defence counsel’s expert witness, Mr Pin on two grounds.
Firstly, that he has not previously testified as an expert in court. Applying the principle in Dato
Mokhtar bin Hashim & Anor v PP and Wong Chop Saow v PP, even if Mr Pin has never testified
in court as an expert, it would not prevent his opinion from being accepted as an expert
evidence as it is not a pre-requisite for him to have experience in giving expert evidence in court
previously and the fact that he is giving evidence in court for the first time would effect only the
weight and not the admissibility of the evidence.
As for the second ground, the prosecution claims that Mr Pin is not an expert as he has not
produced evidence on his qualifications. However, the facts in the question is silent on this
matter. If Mr Pin has indeed not given evidence on his qualification, by applying the principle in
Dato Mokhtar bin Hashim & Anor v PP & Wong Chop Saow v PP, the court will not be able to
consider his opinion evidence that falls under S.45 of EA 1950 which requires the evidence of
the witness’s qualifications to be adduced as a precondition for the court to accept the witness
as an expert under S.45. Likewise, applying the principle in PP v Chong Wei Kian, Mr Pin will
only be regarded as an expert if he provides evidence for his qualifications.
Application

6. Conclusion
The prosecution’s 1st ground in challenging Mr Pin’s evidence will not
render his evidence inadmissible as it is not a pre-requisite for him to
have experience in giving expert evidence in court previously.
Nevertheless, the prosecution has a good ground in challenging the
admissibility of Mr Pin’s opinion for his failure to provide evidence of
his qualification as that would render his testimony inadmissible.

7. Whether the defence counsel has a good ground to challenge the prosecution’s expert witness,
Mr Tin for not providing an explanation for his opinion.
Issue 2
S. 51 of EA 1950 - Whenever the opinion of any living person is relevant, the grounds on which
his opinion is based are also relevant.
Sim Ah Song & Anor. v. R [1951] - expert opinion has no evidentiary value without proper
explanation that actually supplements the understanding of the subject matter on the area which
the Court lacks. Bare explanation will not do.
Law

8. Applying S.51 of EA 1950, the opinion evidence of Mr Tin stating that the footage is of both the
accused, Labu and Labi and that it was not doctored must be supported with reasons. The facts
in the question is unclear as to whether is it indeed true if Mr Tin did not provide sufficient
grounds or reason for his opinion. If it is indeed true that Mr Tin failed to provide reasons for his
opinion, by applying the principle in Sim Ah Song & Anor v R [1951], his opinion will carry no
evidentiary value since there is no proper grounds that explain his opinion that the footage was
of the two accused and is not doctored. This will render his opinion worthless and inadmissible.
Application
Conclusion
In conclusion, if it is indeed true that Mr Tin did not provide a reasoning for his opinion, his
testimony will not be admissible as it has no evidentiary value. Thus, the defence counsel has a
good ground in challenging Mr Tin’s opinion on this basis as failure to provide grounds for
opinion is fatal by virtue of S.51 of the EA 1950.

9. THANK YOU