dealing with evidence

Dealing with EvidenceBy

LEE SWEE SENGAdvocate & Solicitor

Certified MediatorNotary PublicPatent Agent

Trademark Agentwww.leesweeseng.com

[email protected]

Determine the nature of evidence Assessing the client’s evidence Effectively structuring evidence in

chief to fit your case theory Handling documentary evidence Presenting the evidence in court Improper admission and rejection

of evidence

Main legislation governing the law of evidence in Malaysia

Evidence Act 1950

Common law

As an aid to interpretation When the Evidence Act is silent

PP v Yuvaraj [1969] 2 MLJ 89Per Lord Diplock, “In Malaysia the law of evidence has been embodied in a statutory code, the Evidence Ordinance. In so far, as any part of the law relating to evidence is expressly dealt with by that Ordinance, the courts in Malaysia must give effect to the relevant provisions of the Ordinance whether or not they differ from the common law rule of evidence as applied by the English Court. But no enactment can be fully comprehensive. It takes its place as part of the general corpus of law. It is intended to be construed by lawyers and upon matters about which it is silent or fails to be explicit, it is presumed that it was not the intention of the legislation to depart from the well established principle of law.”

Determining the nature of evidence

S.3 of the Evidence Act 1950

provides the definition of “evidence” as: (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 ;

Oral Evidence

S. 59 of the EA 1950, provides that,

All facts, except the contents of documents, may be proved by oral evidence .

“oral evidence” means all statement which the Court permits or requires to be made before it by witnesses in relation to matters of facts under inquiry.

(S. Augustine Paul. Evidence Practice and Procedure 1994 pg. 389)

Oral Evidence

s.60 of EA 1950 Oral evidence must be direct. (1) Oral evidence shall in all cases whatever

be direct, that is to say - (a) if it refers to a fact which could be seen,

it must be the evidence of a witness who says he saw it;

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;

Oral Evidence

(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

Oral Evidence

(2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence , or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.

Oral Evidence

(3) If oral evidence refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the production of that material thing or the document for its inspection.

Evidential value of oral evidence

The weight and value of oral evidence depends on its credibility as found by the Court in each case. The court must give reasons for its findings on credibility.

Balasingham v PP [1959] MLJ 193 (HC)

Documentary evidence

s.3 of EA1950 Interpretation “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;


s. 61 of the EA 1950 provides that The content of documents may be proved

either by primary or secondary evidence.

Document produced by computer

s. 90A. 90B and 90C of EA 1950 relates to documents produced by computers.

This section is an exception to the hearsay rule and provides that a document produced by a computer or a statement contained in such document shall be admissible as evidence of any fact stated therein whether or not the person tendering the same is the maker of such document or statement.

Document produced by computer

A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment and whether or not there was any direct or indirect human intervention.

It applies to civil and criminal proceedings.

Assessing the client’s evidence

Facts in issue ‘…any fact from which either by itself or in connection

with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceedings necessarily follows.’ s. 3 EA 1950

Proving facts in issue by direct evidence Ideally a fact in issue should be proved by direct evidence

(that is evidence of a person who himself perceived the fact), if this is available.

E.g. eye-witness testimony

Relevant Facts More often than not, direct evidence of

the facts in issue is not available in the facts in issue.

These are facts from which the facts in issue may be inferred.

(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

The general categories of relevant facts are covered by section 6 to 11 EA 1950 which are worded widely so that ‘..the general ground on which facts are relevant might be stated in as many and as popular forms as possible so that if a fact is relevant, its relevancy may be easily ascertained.’

Evidence given by witness without personal knowledge/not available Hearsay Rule

The assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered to prove the facts which they refer to (ie. facts in issue and relevant facts) are inadmissible unless they fall within the scope of the established exceptions.


The rational for such principle is that the witness cannot verify the truth of facts of which he has no personal knowledge. As the person does not have personal knowledge of the facts is not in court, the accuracy of his perception and his veracity cannot be assessed and tested in cross-examination.


Exceptions to the hearsay rule

Statement of persons who cannot be called as witness under s.32 s.33 of the EA 1950 S.32 of the EA provides for various categories

of circumstances in which oral and written statements may be admitted as long as the maker is unavailable for one of the prescribed reasons.

Under the circumstances where:-1. he is dead;

2. he cannot be found;

3. he has become incapable of giving evidence; or

4. his attendance cannot be procured without an amount of delay and expense which under the circumstances of the case appears to the court unreasonable.

Weight to be given to statement under section 32 and 33 of EA 1950.

s.158 of EA 1950 provides that Whenever any statement relevant under s.32 or 33 is

proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

s. 73A(1)(a) of EA 1950 provides that …in any civil proceedings where direct oral evidence

of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

a) If the maker of the statement eitheri. Had personal knowledge of the matters dealt

with by the statement; or

ii. Where the document in question is or forms part of a record purporting to be a continuous record, made the statement in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

b) If the maker of the statement is called as a witness in the proceedings.Provides that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable effort to find him have been made without success

Weight s.73A(6) of EA 1950 Court may consider whether the statement

was made contemporaneously with the occurrence or existence of the facts stated and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.

Johore State Economic Development Corp v Queen Bee Sdn Bhd [1995] 4 MLJ 371 HC A document which had been admitted

was discounted as it was not made contemporaneously with the occurrence of the facts stated therein.

Arab-Malaysian Merchant Bank Bhd v Chong On Foh Medical Hall & Liquor Dealers [1997] 4 MLJ 532 HC

The plaintiff, a licensed merchant bank, sued the defendant, a firm, based on a factoring agreement dated 12 March 1985.

At the hearing one Simon a/l Jones Ganesh, an officer of the plaintiff (`the officer`), gave evidence and wanted to tender the agreement.

On behalf of the plaintiff, the agreement was signed by one Dr Junid and one Dr Cheah Teoh Keong, a managing director. The document was kept by the bank.


It was the officer's duty to provide information regarding accounts of clients who failed to repay the plaintiff. Dr Junid, who had knowledge of the document, had left the plaintiff.

Dr Cheah, on the other hand, could not come to the Magistrate`s Court, Bukit Mertajam from Kuala Lumpur as he was a busy man.


The defendant objected to the tendering of the agreement. The learned magistrate ruled that the agreement was not admissible and adjourned the case for the plaintiff to appeal.

The plaintiff appealed and the issue concerned the admissibility of the document and the interpretation of s 73A of the Evidence Act 1950.


Held: (Abdul Hamid J) Under s 73A of the Act, a statement was

admissible under three circumstances, namely: (i) where the maker of the statement was called to

give evidence; (ii) where the maker was not available but the

proviso to sub (1) of s 73A was satisfied; and (iii) where the maker was available but was not

called as a witness under the circumstances provided by sub (2) of s 73A.


Under sub (2) of s 73A of the Act, a statement was admissible if the court was satisfied that undue delay or expense would be caused in order to call the maker to give evidence.

The circumstances of this case justified the agreement to be admitted under sub-s (2) of s 73A of the Act. Dr Cheah himself had come to Bukit Mertajam from Kuala Lumpur five or six times for the same case. The claim was only for a sum of RM5,425.82 while the costs incurred by the plaintiff were more than what it was claiming.

Appeal allowed.

Allegation of Fraud

Where a client alleges fraud it is prudent to make them swear a statutory declaration stating the particulars of fraud.

United Malayan Banking Corp Bhd v Palm and Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 MLJ 73

In 1979, the appellant filed a writ and a statement of claim against the respondents, claiming for moneys owed under banking facilities. In 1981, the appellant filed an application for an O.14 judgment, but the court refused to grant leave to enter summary judgment.


In 1986, the appellant's solicitors took out a summons for directions and the senior assistant registrar ordered the parties, inter alia, to serve on each other a list of documents and file an affidavit verifying such list within 60 days. The appellant's solicitors accordingly filed such an affidavit, which was served on the respondents on the same date.


As there was no response at all from the respondents, the appellant's solicitors filed the request for setting down the action for trial in 1988.

In 1989, the respondents filed a summons-in-chambers to apply for a dismissal of the appellant's claim for want of prosecution.


The appellants, however, contended that there had been reasonable and credible excuse for the delay as there were several negotiations between the parties which continued even after the action had been set down for trial. The judge upheld the decision of the senior assistant registrar.

The appellants have appealed.


The senior assistant registrar granted the application and accordingly struck out the suit.

On appeal by the appellants, the respondents contended that nine years had passed since the filing of the writ and during that period, important key witnesses had died and the control of the appellant bank had changed hands a few times and this would substantially prejudice them if the action were to go to trial.


Held: (Mohamed Dzaiddin SCJ) (1).An action may be dismissed for want of prosecution

when a party has been guilty of intentional and contumelious default and where there has been inordinate and inexcusable delay in the prosecution of the action.

On the question of inordinate and inexcusable delay, the power should be exercised only where the court is satisfied that there has been inordinate and inexcusable delay on the part of the plaintiff and that such delay would give rise to a substantial risk that it was not possible to have a fair trial or is likely to cause serious prejudice to the defendants.


Here, the trial judge had misapplied the above principles as, since the affidavit was filed by the appellants, there had been no further evidence to show which key witnesses of the respondents had since died.


The judge also overlooked the fact that the respondents themselves had yet to file their list of documents within the stipulated period under the order of the senior assistant registrar in the summons for directions.

This was certainly a factor to be taken into account as to whether the respondents had contributed to the delay.


Looking at the pleadings, the entire case of the appellant would depend on documents which are still in existence. Having regard to the above observations and bearing in mind that the prejudice alleged must be shown to be `serious`, on the facts and circumstances of this case, no serious prejudice to the respondents had been made out.

The delay in the present case was due to the earnest desire of both parties to reach an amicable settlement which did not succeed.

Effectively structuring evidence-in-chief to fit

your case theory

Adducing evidence by examination in chief of witness

Our main method of adducing evidence in chief is by way of a sworn witness statement.

S.137(1) of EA 1950 provides that Examination of witness by the party who calls

him shall be called examination in chief.

Adducing evidence by examination in chief of witness

S.138 of EA 1950 provides that (1)Witness shall be first examined in chief then if

the adverse party so desire cross-examine them if the party calling them so desires re-examine.

(2) The examination and cross-examination must relate to relevant fact but the cross-examination need not be confined to the fact to which the witness testified on his examination in chief.

Commencing the examination in chief: introducing and personalising the witness For better appreciation of the testimony of the

witness and may enhance the credibility of the witness.

Help witness to settle down in the intimidating atmosphere of the court room and enable him to adopt to the course of question which is to be asked.


There is risk in spending too much time on introduction but more leeway is allowed when advocate examine his own client because the character of the party may have bearing on the evidence.


Eliciting the background facts and the facts which constitute the series of incidents leading up to the main facts of the case This is where the chronological question begins. The objective is to draw from the witness the clear

and logical progression of the event as they occurred.(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

Eliciting the main facts This is an essential part of the examination in

chief as it will determine the liability or non-liability.

It is therefore necessary for the advocate to ask question in a manner that will elicit responses which recreate as clearly and accurately as possible the details of the incident.


Manner of questioning

Leading question S.142 of EA 1950 provides that

(1)Leading question may not, if objected to by the adverse party, be asked in examination in chief or in re-examination, except with the permission of the court

(2) The court shall permit leading question as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.

Handling Documentary

Evidence

Primary Evidence

s.61 of EA1950 Primary evidence means the document itself

produced for the inspection of the court.

Soo Boon Siong V. Saw Fatt Seong & Ors [2008] 1 CLJ 365

Held: (Mokhtar Sidin CJA) ‘It is a firmly established rule (to which there are

exceptions) requiring that when documentary evidence is tendered, primary evidence of the document, that is to say the production of the documents itself is essential.’

Secondary Evidence

s.63 of the EA 1950 provides for the categories of secondary evidence.

Refers to evidence of the contents of the original document which comes by report, or in some other second hand or derivative way.

Secondary Evidence

s.65 of EA 1950 deals with the conditions to be satisfied before the admission the secondary evidence.

E.g. a copy of the original document, or oral evidence from a person who has seen the original and can recall its contents

Admission of documentary evidence in civil law

Without prejudice communication

Rush & Tompkins Ltd v. Greater London Council & Anor [1989] 1 A.C. HL

“The (without prejudice) rule applies to exclude all negotiations genuinely aimed at settlement whether oral or in writing from being given in evidence. A competent solicitor will always head any negotiating correspondence “without prejudice” to make clear beyond doubt that in event the negotiations being unsuccessful they are not to be referred to as the subsequent trial. However, the application of the rule is not dependent upon the use of the phrase “without prejudice” and if it is clear from the surrounding circumstances that the parties were seeking to compromise the action, evidence of the content of those negotiations will, as a general rule, not be admissible at the trial and cannot be used to establish an admission or partial admission.”

Malayan Banking v Foo See Moi [1981] 2

MLJ 17 FC

Held: (Chong Min Tat FJ) “It is a settled law that letters written without

prejudice are inadmissible in evidence of the negotiations attempted. But it is also settled law that where the negotiations conducted with prejudice lead to a settlement, then the letters become admissible in evidence of the terms of the agreement, unless of course the agreement has become incorporated in another document which would then be the evidence of the agreement.”

Affidavit evidence

Overseas Investment Pte Ltd v Anthony William O`Brien & Anor[1988] 3 MLJ 332

Facts: In this case summary judgment had been obtained by

the plaintiff against the defendant for the sum of S$120,689.02.

The plaintiff levied execution by way of a writ of seizure and sale and some household goods were seized at the premises alleged to be the residence of the defendant.

The wife of the defendant claimed that the goods had been bought jointly and severally by her and her husband but said she was unable to produce receipts immediately.


The sheriff took out an interpleader summons. At the hearing the claimant produced some receipts

and the matter was adjourned to enable her to produce more receipts. The plaintiff agreed to release 11 items only.

At the adjourned hearing the claimant gave oral evidence. The registrar on the material before him dismissed her claim.

The goods were subsequently sold. She appealed to the High Court.


Held: (M. Shankar J) Where a case is to be decided on a context of affidavits,

the rule is that material allegations which are not contradicted are deemed to be admitted.

The plaintiff in this case had produced no evidence of the defendant's title in the goods.

Where one party gives sworn uncontradicted testimony to prove a fact, that evidence must be accepted because there is nothing in the other end of the scales. The plaintiff had produced no evidence whatsoever.


The doctrine of harta sepencarian applied to all property acquired in the course of a marriage out of the joint resources or the joint efforts of the spouses. In the absence of clear evidence that the property was the sole property of one spouse, both have an equal share.

Where a wife is in possession of chattles in the matrimonial home and she gives sworn testimony that they were hers, an execution creditor cannot be held to have displaced her claim merely by producing evidence that the husband was living in the same home and is in receipt of good income.


This is not just a case of wrongful irregular execution. It was an execution levied by the plaintiff on goods which have been proved to be the property not of the defendant`s but a third party against whom the plaintiff has no judgment. Such wrongful seizure is an actionable trespass and the remedy is in damages.

The decision of the registrar must be set aside and the plaintiff be ordered to pay all damages suffered by the claimant as a result of the seizure and sale.

Agreed/disagreed bundle document

Chong Khee Sang V Pang Ah Chee [1984] 1 MLJ 377 CA

On 24 April 1978 one Cheah Soi Moi ("the deceased") was killed when the motorcycle he was riding was knocked into by a motor car. On 17 July 1979 his mother commenced an action, suing the car driver as administratrix of the deceased`s estate and in her own capacity as dependant, for damages under ss 7 and 8 of the Civil Law Act, 1956. In default of defence, an order was made precluding the defendant from defending the action. The case was set down for hearing for damages to be assessed.

Solicitors for both parties corresponded and were agreed on the contents of an Agreed Bundle but in the event, the P's solicitors failed to prepare and file the Agreed Bundle.


P’s counsel adverted to the oral and written consent of Defence Counsel to include the disputed receipts in the proposed Agreed Bundle. Defence Counsel qualified that his consent to include the receipts in the Agreed Bundle was not an admission that he accepted that payments as proved.

The learned President, having already admitted the documents and marked them as and when they were tendered by the P in her examination-in-chief, ordered the case to proceed.


No evidence was given by the P that she had disbursed the money for motorcycle repairs and funeral expenses nor did she call on the issuers of the receipts to prove the payments. The receipts were left to prove themselves.

In his judgment, the learned President stated that to his own knowledge Chinese funerals were expensive and gave it as his opinion that $2,000 for funeral expenses was fair and reasonable. He did not address his mind to the issue whether the expenses were proved.

The D appealed on the ground that the P had not proved her case.


Held: (Mahadev Shankar J) a document does not become admissible in

evidence merely because it has been handed to the adjudicating officer and marked as an exhibit;

a document cannot be admitted into evidence and marked as such until it has been properly proved;

a receipt is a document like any other and if it is to be proved as a document such proof must be given by its maker.


In this case none of the receipts which the plaintiff tendered were properly proved.

The plaintiff did not give evidence that she paid these monies, she did not witness payment of the monies, she did not call the people who had paid the monies, and she did not call the people who had received these monies


by not objecting to the admissibility of the documents when they were tendered in examination-in-chief but only during cross-examination, there was no waiver on the facts of this case especially as it had only become apparent during cross-examination that the plaintiff had no first-hand knowledge of the contents of these documents;

once a document is included in an Agreed Bundle, it is no longer necessary to prove their existence or execution. Nor is it necessary to produce the original. But so far as the contents of the documents are concerned, the truth of the same has still to be proved, in the absence of any specific admission of the facts therein contained.


Practice Note 2 of 1977 issued on 8 February 1977

To clarify the position the note expressly states:- "It will make for willing compliance if solicitors

and counsel consider or realise that agreeing on documents implies merely dispensation with proof of their existence or execution and does not dispense with proof of the averments or allegations therein, unless agreed to on the pleadings or in other admissions."


A further Practice Note 4 of 1977 was also issued which appears to have done away with the necessity of filing a bundle of documents not agreed.

All these practice notes designed to protect counsel in the preparation of cases and to save time and expense of all concerned, have over the years undoubtedly been honoured more in their breach rather in their observance.

Documents produced by Computer

Conditions to be satisfied before the document can be admitted in evidence.

s.90(1) of EA 1950 provides that 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.

For the purpose 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 which that computer was used.

Gnanasegaran a/l Prarajasingam v PP [1997] 3 MLJ 1,11 CA

The appellant appealed, arguing that the computer print-out evidence was not admissible because s.90A of the Evidence Act 1950 required that in the case of computerized records, a certificate had to be produced to authenticate the records.

(Per Mahadez Shankar JCA) section 90(1) is an updating of the ‘best evidence rule’ with the realities of the electronic age, and now it is no longer necessary to call the actual teller or bank clerk who keyed in the date provided he did in the court of ordinary use of the computer.


(Per Shaik Daud JCA ) s. 90A of the EA 1950 makes computerized records made in the course of its ordinary use admissible if the following is proven, ie that: (i) the documents were produced by a computer; and (ii) the computer records are produced in the course of its ordinary use.


Proof can either be by a certificate signed by someone solely in charge of the computer which produced the printout as required by s 90A(2), or by an officer of the bank.

In this case, Zainal was able to testify with regard to the documents because he was in charge of the operations of current accounts.

dismissing the appeal

Presenting the evidence in court

Deemed clause of service

S.91 s.92 of EA 1950

Entire agreement clause

Conclusive evidence

Deemed clause of service

TA Securities Bhd v Ng Yen Ling[2000] 3 MLJ 743 HC

The Ps claimed for contra losses suffered by them in share trading carried out under the D’s account with them. In applying to open the account, the D agreed with the P in para 23 of the covenant and undertakings annexed to the application form that service of any legal process were to be by way of prepaid registered post sent to the D’s address and that the legal process shall be deemed to have been duly served and duly received by the D upon the expiry of three days after the posting was effected.

TA Securities Bhd v Ng Yen Ling[2000] 3 MLJ 743 HC The P obtained a judgment in default of appearance

against the D. The defendant filed an application to set aside the default judgment which was dismissed by the senior assistant registrar. The D appealed.

The D claimed that she did not receive the writ and contending that the deeming was rebuttable, argued that although it was not possible for the D to prove non-receipt of the writ, the conduct of the D had been consistent with her not having received the writ and therefore her claim of not receiving the writ should be accepted as cogent and credible.

Appeal dismissed.


Held: (Abdul Aziz J) The writ in this case was sent by prepaid

registered post to the proper address of the defendant and the deeming of para 23 and of O 10 r 3(1)(b) of the Rules of the High Court 1980 came into operation.

The words `shall be deemed` in para 23 meant `shall be regarded as`, meaning that the deeming was not meant to be a presumption and was therefore not something that was rebuttable.


The court was bound by authorities to hold that the defendant was precluded from showing that she did not receive the writ.

The court had to take it as conclusive that the writ was served on her. It was therefore not necessary for the court to consider the conduct of the defendant

Entire agreement clause

Lee Chee Wei v Tan Hor Peow Victor and Others and another Appeal [2007] 3 SLR 537; [2007]

SGCA 22 In February 2005, the P entered into an

agreement to sell his shares in Distribution Management Solutions Pte Ltd (“DMS”) (the “Agreement”), a subsidiary of Accord Customer Care Solutions Ltd (“ACCS”), to the fourth defendant for $4.5m. The Agreement expressly provided for the parties’ position if listing did not take place and further contained an “entire agreement” clause.


SGCA 22

Shortly thereafter, the Commercial Affairs Department began an investigation into the affairs of ACCS and some of its senior officers, which included the first, third and fourth Ds. As a result, the prospective listing plans of DMS were abandoned, and the fourth D refused to complete the agreement. The first, third and fourth Ds were subsequently convicted and sentenced to imprisonment for engaging in a conspiracy to cheat and the falsification of documents.

The plaintiff commenced proceedings against all four Ds for breach of the Agreement, alleging that the fourth D entered into the Agreement on behalf of all the Ds.


SGCA 22

The Ds argued that the P was not entitled to enforce the Agreement on the grounds that:

(a) the failure to list DMS on the Main Board of the Singapore Exchange, a contingent condition of the Agreement;

(b) the failure to provide a resolution of the board of directors of DMS approving the registration of the transfer of the shares as required by the Agreement; and

c) that the failure to list DMS frustrated the purpose of the Agreement.


SGCA 22

The trial judge rejected the D’s arguments and found that the first and third Ds were the principal parties interested in the purchase of the plaintiff’s shares and accordingly held the first, third and fourth Ds liable for breach of the Agreement.


SGCA 22

Nonetheless, the trial judge ordered nominal damages of $300 and disallowed the P’s claims for specific performance or damages in lieu of specific performance due to the failure by the p to plead for damages “to be assessed”.


SGCA 22

A counterclaim by the fourth D for repayment of the sum of $750,000 paid as an initial deposit under the agreement was also allowed on the basis that the P was not entitled to retain the money paid unless the Agreement specifically provided that it was paid as a non-refundable deposit or if the P actually performed his part of the bargain.


SGCA 22

The P was dissatisfied and appealed on the grounds:

(a) that specific performance of the sale and purchase agreement for shares in a public company should have been ordered;

(b) if not, damages in lieu of specific performance and the assessment should have been granted; and

(c) that the counterclaim for payment of the sum of $750,000 should have been allowed. The fourth defendant cross-appealed in relation to the finding of liability.


SGCA 22

Held: (VK Rajah JA) The effect of an entire agreement clause was

essentially a matter of contractual interpretation and necessarily depended upon its precise wording and context. Generally, such clauses were conducive to certainty as they defined and confined the parties’ rights and obligations within the four corners of the written document, thereby precluding any attempt to qualify or supplement the document by reference to pre-contractual representations.


SGCA 22

However, in so far as contracts were not interpreted in a vacuum, objective facts could potentially assist in the interpretation of ambiguous terms.

Entire agreement clauses would usually not prevent a court from justifiably adopting a contextual approach in contract interpretation. Such clauses had little bearing on textual or interpretative controversies as to the meaning of particular words or terms in contracts

Extrinsic evidence

s.91 of EA 1950 - Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.

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.

s.92 of EA 1950 - Exclusion of evidence of oral agreement

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:

Provided that -


(a) 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;

(b) 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;


(c) 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;

(d) 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;


e) 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; and

(f) any fact may be proved which shows in what manner the language of a document is related to existing facts.

Tan Chong & Sons Motor Co (Sdn) Bhd V Alan Mcknight [1983] 1 MLJ 220 FC

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 compiled 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 thereby incurring a loss of $11,219.54 ($17,719.54-$6,500). 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. He awarded general damages of $10,500 with interest at 8% from the date of the writ to the date of payment and costs of the suit at the Subordinate Court`s scale. No special damages were awarded as these were not pleaded and an application for amendment of the pleadings was refused.


The appellants appealed to the Federal Court contending that they were not liable or that the damages were too high while the respondents cross-appealed on the ground that the damages were too low and that he was entitled to interest from the date of accrual of the cost of action and to costs of the suit at the High Court scale and to special damages.


At the hearing of the appeal, counsel for the appellants accepted the findings of facts by the learned trial judge. The appeal was therefore confined to legal issues on liability and quantum only.


Held: (Gunn Chitt TuanJ) there can be no doubt that it was the

representations by the salesman expressed by words and conduct that led to the respondent to enter into the agreement to purchase the car. There was abundance of evidence showing that the representations were not innocent and on the contrary could even be considered to be deceitful or plain lies;


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;


the representations made by the salesman was binding on the appellants. It would lead to great mischief in the law and certainly would not be in the interest of business efficacy if representations made by a salesman in the course of his employment could not be relied upon by an intending purchaser whom he was dealing with;


the prohibition against admissibility of evidence under s 92 only applies where all - as opposed to some only - of the terms of the contract are written into the agreement. Thus where some terms are given orally and some in writing oral evidence can be given to prove the terms agreed to orally;


where the oral representations as in this case are in conflict with the printed condition in the written contract, the representations must be given an overriding effect and the printed condition must therefore be rejected;

Conclusive evidence

Citibank Na V Ooi Boon Leong & Ors [1981] 1 MLJ 282

In this case the appellant bank sued the respondents on a contract of guarantee for banking accommodation given to a company.

The respondents were the directors of the company and in the contract of guarantee they had agreed in effect to waive their rights in respect of any variation or alteration of the contract between the appellant bank and the company.


The advances were not repaid and the appellant bank sued the respondents. The appellant bank then applied for summary judgment under O 14 of Rules of the Supreme Court. The Assistant Registrar made an order in terms but this order was reversed in the High Court.


The respondents had contended that their liabilities under the guarantee were conditional on the bank securing certain acts on the part of the company, the directors and the shareholders. Such acts were not contained in the guarantee but were contained in a letter which set out the terms and conditions of the loan.


The respondents relied on the fact that the bank had not obtained

(a) a valid debenture on the company`s assets containing a provision to enable receivers to be appointed in the event of default;

(b) a letter of undertaking from the shareholders who held 40% of the issued share capital not to divest their shareholdings without the bank`s consent.


Held: (Raja Azlan Shah) In any event the contract of guarantee in this case

contained express provisions giving the bank the right to do or omit to do certain things without thereby prejudicing the right against the respondents. As the respondents had agreed to waive any variation or alteration and the bank had proceeded with the performance of the contract on that basis it would be inequitable to allow them to resile from the contract


in this case the respondents were bound under the contract of guarantee to accept the certificate of indebtedness duly executed by the Vice-President of the bank as conclusive evidence of the debt due to the bank. On this footing the bank was entitled to summary judgment.

Putting and suggesting evidence in cross-examination

put – when matters are ‘put’ in cross examination by defence counsel it is implied that positive evidence will be called to prove the matters put.

Suggest – where all that is done is to ‘suggest’ to a witness that a fact is not so, then what is meant is that the assertions of the witness are inherently incredible but that no positive evidence will be called to contradict the statement.

(putting and suggesting in cross-examination, M. Shankar J, January 1984)

If the accused intends to suggest that a prosecution witness is not speaking the truth on a particular point, the witness’s attention must be directed to the fact in cross-examination.


Browne v Dunn (1893) 6 R 67 (Lord Chancellor Herschell) “…..seem to be to be absolutely essential to the proper conduct

of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some question put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been to do if such questions had been put to him, the circumstance which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.”

The effect of failure to cross-examine a witness on material point of the case will amount to an acceptance of the witness’s testimony. (per Raja Azlan Shah CJ in Wong Swee Chin v PP [1981] 1 MLJ 212.

The nature of the defence is to be ascertained not only from the evidence of the accused himself but also from the trend of the cross-examination of the prosecution witnesses and from the argument of the accused’s counsel at the close of the trial.


It is therefore important for the accused to put his essential and material case to the prosecution witness in cross-examination. (Mukhrji J AEG Carapiet v AY Derderian AIR 1961 Cal 359

Failure by the defence to put its case to the prosecution witness.

Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 209 (Edgar Joseph Jr FCJ) Failure of the defence to put its case, as

aforesaid, can never, by itself, relieve the prosecution of its duty of establishing the charge against the accused beyond any reasonable doubt.

Marking of evidence

Marking of agreed bundle of document where P and D agree to its admissibility of its contents.

Marking of disagreed bundle of documents where one party disagrees to its authenticity/contents/maker- party to adduce documents/witness to corroborate evidence.

Marking on plaintiff’s exhibit by the plaintiff of documents relied by the plaintiff

Marking of defendant’s exhibit by the defendant of document relied by the defendant.

Marking of Identification evidence “ID” – where one party objects to its authenticity and maker not called –generally no weight is attached to it.

Improper admission and rejection of

evidence

s. 167 EA 1950 No new trial for improper admission or rejection of evidence

The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.

Malayan Banking Bhd v Dr Betharajoo

a/l Krishnasamy [2000] 3 MLJ 391

The appellant granted a loan to the borrower which the respondent guaranteed. The borrower defaulted in repayment of the loan as a result of which the appellant commenced proceedings against the respondent. A letter of demand dated 17 December 1987 and an AR card were included in the disputed bundle of documents.


a/l Krishnasamy [2000] 3 MLJ 391 At the trial, the letter of demand and the AR

card were admitted in evidence and marked as exhibits P7 and P8 respectively. During submission, the respondent contended that P7 and P8 were inadmissible in evidence. The sessions court judge ruled that although both P7 and P8 had been admitted in evidence and marked as exhibits, they were inadmissible and accordingly rejected them. The appellant appealed.



The appellant contended that when P7 and P8 were sought to be introduced in evidence and the court was asked to mark them as exhibits, the respondent should have but did not object to their being so marked and having failed to do so, could not object to their admissibility at the submission stage of the hearing.



It was further submitted that once a document was marked as an exhibit, its contents became admitted in evidence for the purpose of the trial and accordingly P7 and P8 should not have been rejected but instead considered by the sessions court judge in arriving at her decision.


a/l Krishnasamy [2000] 3 MLJ 391 The respondent argued that as the two documents

formed part of the `disagreed bundle`, it was imperative that the maker of the documents be called to tender them in evidence.

It was submitted that the appellant had tendered

the documents through a witness who had no knowledge of their contents and that tantamount to tendering hearsay evidence and where hearsay evidence was sought to be introduced, it matters not that no objection was taken or that the documents had become marked as exhibits -hearsay evidence remained inadmissible.



Held: (Clement Skinner JC) The court found that when the respondent

objected to the `admissibility` of P7 and P8, he was really objecting to the mode by which these two documents were being proven.

Since it was the mode of proving these two documents that the respondent was objecting to, the objection should have been taken at the trial before the documents were marked and admitted in evidence.


a/l Krishnasamy [2000] 3 MLJ 391 A party seeking to rely on a document which

is placed in a disputed bundle is not precluded or prevented from trying to have that document admitted in evidence and marked as exhibit without having to formally prove it.

And if such attempt is made, as it was in this case, it is incumbent on an opposing counsel to remain vigilant and object to it immediately so that the party trying to introduce the document is put to strict proof of it.



But if opposing counsel is content to remain silent and allow the document to come in without being formally proved, then it would be too late to take objection at the submission stage of the trial because by then it would be beyond the power of counsel relying on that document to formally prove it.



The sessions court judge misdirected herself in law when she allowed the respondent to object to the admissibility of P7 and P8 at the submission stage and in subsequently rejecting them


a/l Krishnasamy [2000] 3 MLJ 391 What has resulted from the failure of the

respondent to object to P7 and P8 being marked as exhibits was that they had become admitted in evidence without formal proof of their existence or authenticity having to be established and to that extent P7 and P8 had become like any other document, placed without any conditions attaching thereto in an agreed bundle.

The questions concerning the weight to be given to the documents and whether their contents stand proven were matters to be decided by the trial court.

Wako Merchant Bank (Singapore) Ltd v Lim

Lean Heng & Ors [2000] 3 MLJ 401 HC

Facts: The P obtained a judgment against the first D in

the Republic of Singapore which had been registered as a judgment of the High Court of Malaya. The P then obtained an ex parte Mareva injunction.

Among the assets affected by the ex parte Mareva injunction were several bank accounts, two in the name of the first D, two in the name of the eleventh defendant company, one in the name of the twelfth D company and four in the name of the fifteenth D.

Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] 3 MLJ 401 HC

The details of those bank accounts were discovered by a private investigator engaged by the P. His affidavit went in support of the P's ex parte application. The P's managing director also affirmed an affidavit in support of the ex parte application.


By the present applications, the first D, the eleventh and twelfth Ds and the fifteenth D sought leave to cross-examine the private investigator and the managing director on their affidavits in order:


(i) to establish that in the obtaining of the information relating to the bank accounts, there had been a breach of s 97 of the Banking and Financial Institution Act 1989. It was contended that if there has been a breach of s 97, the information is inadmissible and consequently those bank accounts should not have been subjected to the ex parte injunction; and


(ii) to elicit the full circumstances of the obtaining of the information in contravention of s 97 in order to make out a case of coming to equity without clean hands and without disclosing those circumstances


The first is whether evidence obtained in contravention of s 97 is admissible. The second is whether the clean-hand principle applies in the circumstances of this case.


Held: (Abdul Aziz J) It is obvious that the intention of Parliament in

enacting s 97 is to protect the secrecy of the affairs and account of a customer of a financial institution as such a customer, but, in giving effect to that intention, Parliament has gone only to the extent of creating offences of the prohibited disclosures.


Parliament has not gone further to deal with the question of the admissibility or otherwise in criminal or civil proceedings of any information or document disclosed in contravention of s 97, which is a matter of the law of evidence, where the law is that evidence illegally obtained is nonetheless admissible if relevant.


The Ds had failed to present any convincing argument against the application of the general law to a disclosure in evidence in contravention of s 97 of information or document relating to the affairs or account of a customer of a financial institution.


The general law being such, it will require an express enactment of Parliament to render inadmissible the evidence so disclosed. It will therefore be irrelevant to elicit evidence to show that the existence and particulars of the bank accounts are inadmissible and the Ds cannot be given leave to cross-examine the private investigator and the managing director for that purpose.


The P had come to court for a Mareva injunction with evidence that was admissible in law of the existence and particulars of the bank accounts and that was true, notwithstanding that it may be an offence against s 97 to have obtained or disclosed it and notwithstanding that those sections are aimed at protecting the secrecy of those accounts.


It would be unconscionable to bar the P from the relief sought on the ground of any wrongdoing in obtaining the evidence. The principle of clean hands does not prevail in the circumstances of the case.

The principle was irrelevant and the D could not be given leave to cross-examine the private investigator and the managing director for the purpose of showing that the P had not come to court with clean hands

Conclusion

Cases are won or lost based primarily on evidence.

Proper presentation of evidence is of utmost importance.

A Court of Law can only decide based on the evidence before it.

The lack of evidence can prove fatal to one’s case.

Thank YouAssisted by Valerie Chong

LLB (Hons)

CLP

dealing with evidence

Documents

law of evidence

malaysia evidence

evidence ordinance

evidence act

clients evidence

rejectionof evidence

evidence practice

secondary evidence