The document discusses key concepts related to presumption and judicial notice in Malaysian law. It defines presumption as an inference drawn from known facts, and distinguishes between presumption of law and presumption of fact. It explains different types of presumptions under Malaysian law including those that the court "may presume", "shall presume", and those that constitute "conclusive proof". It also defines judicial notice as facts that a judge will notice without proof, and provides examples of facts that courts commonly take judicial notice of, such as identities of government leaders.

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Law of Evidence II - Presumption and Judicial Notice
Proved/Proof
• Anything which serves either immediately or mediately, to convince the mind, of the truth
of falsehood of a fact or proposition.
• Such evidence as would induce a reasonable man to come a conclusion, and not by way
of any rigid mathematical demonstration, which is an impossible feat to achieve.
• Any room for suspicion or speculation vitiates legal proof.
• The Court has to consider all materials before concluding.
• The Section is worded to provide for two (2) conditions of mind:
 A man feels absolutely certain of a fact, in other words, believes it to exist
 Though he may not feel absolutely certain of a fact, he thinks it so extremely probable
that a prudent man would under the circumstances act on the assumption of its
existence
• Word under Section 3 does not distinguish the standards imposed in civil and criminal
cases or the standard imposed for the prosecution and the accused. However, our Courts
have identified the problem and remedied it by considering the Common Law position.
Case Key Point
Looi Wooi Saik v PP [1962] 28 MLJ 337,
Thomson C.J. observed
“S 3 differentiates between the cases where
a fact is ‘proved’ or ‘disproved’ or ‘not
proved’. As to whether it is proved or
disproved, the criterion is whether or not
under the circumstances of the particular
case a prudent man would act upon the
supposition that it exists or upon the
supposition that it does not exist. Where by
that criterion the fact is neither proved nor
disproved it is said to be not proved...
... the presumption of innocent must be
stronger.”
PP v Yuvaraj (supra), Lord Diplock observed “... the burden which lies upon the
prosecution in criminal proceedings to prove
the facts which constitute an offence beyond
all reasonable doubt and the burden which
lies upon a party in a civil suit to prove the
facts which constitute his cause of action or
defence upon a balance of probabilities.”
Disproved VS Not Proved
Disproved Not Proved
Rejection of fact. A state of mind when on is unable to say
exactly how the matter stands.

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Presumption (Meaning)
• Inference of a fact drawn from other known or proved facts.
• Juris prudential rule under which Courts are authorised to draw particular inference from
a particular fact, unless and until the truth of such inference is disproved by other evidence.
• Sir James Stephen defined presumption in his digest to mean:
 “A rule of law that Court and judges shall draw a particular inference from a particular
fact, or from a particular evidence, unless and until the truth of such is disproved.”
English Law – Three (3) kind of presumptions:
• Conclusive presumption of law
• Presumption of law
• Presumption of fact
Example of presumptions
• “Night follows day.”
• “Where a man with bloodstained clothes come out of a room where another man has been
stabbed to death, the inference is that the man coming out of the room is the murderer.
Malaysian Law
• Section 4 EA 1950 sets out what the Court may presume.
• The presumption is used as device to either alter the normal rules on burden of proof or
replace the need for evidence to be called on the particular issue.
Presumption of Law Presumption of Fact
Substantive law in disguise, which affect the
normal principles of burden and standard of
proof.
Example:
 Section 82 PC – Nothing is an
offence which is done by a child
under 10 years of age.
 The conclusive presumption is also
referred to as irrebuttable
presumption of law. Once the basic
fact that the child is under 10 years
old is proved, the fact that the child
can commit no offence is presumed,
and no evidence can be admitted to
rebut this.
Irrebuttable and rebuttable presumption:
• Irrebuttable – Conclusive presumptions
where Court will not allow any evidence
to contradict it
Once the basic or primary facts are
proved to exist, the law assumes given
probability and common sense, the
existence of presumed facts.
Example:
 Law assumes that a person in
possession of recently stolen goods
is either the thief, or has received the
goods knowing them to be stolen,
unless he can account for his
possession [Section 114(a)].
 The presumption will subsist in the
absence of evidence to the contrary.
 This does not mean prosecution is
relieved of burden to prove beyond
reasonable doubt but in absence of
further evidence, recent possession
of itself is sufficient to lead to
conviction (Section 86, 88, 88 are
examples).
 Important inferences are drawn from
the ordinary conduct of mankind and

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• Rebuttable – Court will allow evidence to
contract it
 A man is innocent until proven guilty
 Child if born in wedlock shall be
presumed legitimate unless it is
disproved
Presumptions of law take place when the
party bearing the evidential burden has
adduced evidence in support of a primary
fact and as a result, a presumed fact is
deemed to exist.
the mutual feelings or impulses of
human nature also from the customs
and habits of society.
May presume
• The expression “may presume” is found in Section 86, 87, 88, 90 and 114.
• Example under Section 114 Illustration A
 Court may presume that a man who is found in possession of stolen goods soon after
the theft is either a thief or has received such goods with the knowledge that they are
stolen or may refuse to presume the guilt of the accused and ask the prosecution to
prove the guilt of the accused.
Case Key Point
Synn Lee & Co Ltd. v Bank of China [1962]
28 MLJ, Thomson CJ observed
“Presumption under Section 114 is not
mandatory but discretionary.”
Quoted the judgement of Privy Council in the
case of Bilas Kunwar v Desraj Ranjit Singh
(AIR 1915 PC 96)
“It is open to a litigant to refrain from
producing any documents that he considers
irrelevant; if the other litigant is dissatisfied it
is for him to apply for an affidavit of
documents, and he can obtain inspection
and production of all that appears to him in
such affidavit to be relevant and proper. If he
fails so to do, neither he nor the Courts at his
suggestion is entitled to draw any inference
as to the contents of any such documents.”
Shall presume
• Is found in Sections 79, 80, 81, 82, 83, 85, 89 and 105
• Example under Section 83:
 Court shall presume that maps or plans purporting to be made by the authority of the
Government of Malaysia or any state were so made and are accurate.
 PP v Bujang bin Ali & Ors [1978] MLJ 224, Syed Othman J
 “S. 83 is clear. The court can only presume the accuracy of maps or plans made
by the authority of the Federal or any State Government. The effect is that the
presumption does not apply to maps or charts made by other Governments; their
accuracy must therefore be proved by the party producing it...”
• Irrebuttable presumptions of law under Common Law
• There is no discretion left in the Court

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• It means Court must take the fact as proved until evidence is given to disprove it
Conclusive Proof
• S 41, 112 and 113 deals with conclusive proof
• Example in other Act – s 82 Penal Code
• Irrebuttable presumptions of law under the Common Law
• When law states that a particular piece of evidence is conclusive, the Court has no option
but to hold that the fact exists and no evidence will be allowed to rebut the fact
Presumption
May Presume
(Presumption of fact)
S 86, 87, 88, 90 and 114
Shall Presume
(Rebuttable presumption)
S 79, 80, 81, 82, 83, 84,
85, 89 and 105
Conclusive Proof
(Irrebuttable Presumption)
S 41, 112 and 113

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Judicial Notice
• Notice which a judge will take of fact without proof.
• Truth of certain notorious facts need not be proved and the Court by itself will take note
of them.
• If the court is ignorant of them, the Court can be informed without formally leading
evidence.
• This allows judge to call on his own knowledge of certain matters when deciding a case
in the same way allows a judge to refresh his memory from a book of reference before
conclusively deciding a particular issue.
Example:
• If it becomes relevant to know who is the Prime Minister of Malaysia, the Court can take
judicial notice of the fact
• If it becomes relevant to know who is President of America and if Court is ignorant, Court
can be informed without the need of lead evidence
Simpson [1984] 72 Cr. App. Rep 115, Lord Lance CJ observed:
“There are at least two reasons why we should have a doctrine of judicial notice. In the first
place, it expedites the hearing of many cases. Much time would be wasted if every fact which
was not admitted had to be the subject of evidence which would, in many instances, be costly
and difficult to obtain. Secondly, the doctrine tends to produce uniformity of decision on
matters of fact where a diversity of findings might sometimes be distinctly embarrassing.”
Mc Quaker v Goddard [1940] 1KB.68, Clauson LJ observed:
The judge referred to Stephen’s Digest that says, “No evidence of any fact of which the Court
will take judicial notice need be given by the party alleging its existence: but the judge, upon
being called to take judicial notice thereof, may, if he is unacquainted with such fact, refer to
any person or to any document or book of reference of his satisfaction in relation thereto, or
may refuse to take judicial notice thereof unless and until the party calling upon him to take
such notice produces any such document or book of reference.”