CHAPTER ONETOPIC:DOCUMENTARY EVIDENCE(Sections 61 73)

Documentary evidenceAccording to section 3 of the 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 Seksyen 3 Akta keterangan 1950 memperuntukkan 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)

Documentary evidenceDocument 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 :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:

Documentary evidence(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever; (a) huruf, angka, tanda, symbol, isyarat, lambang, atau apa jua pun bentuk pernyataan, perihal, atau gambaran lain; See cases: 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.

Documentary evidence(b) any visual recording (whether of still or moving images); (b) apa apa rakaman visual (sama ada imej kaku atau bergerak); See the case of R. v. Fowden and White [1982] Crim. LR 588.

Documentary evidence(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; (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; See cases: 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.

Documentary evidence(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; (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 mungkin digunakan bagi tujuan menyatakan, memperihalkan, atau dengan apa jua cara sekalipun menggambarkan, hal itu; See the case of Tempil Perkakas Sdn Bhd v Foo Sex Hong [1996] 5 MLJ 542

Documentary evidenceIllustrations (Misalan)A writing is a document. (Tulisan ialah dokumen)

Documentary evidenceWords 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)

Documentary evidenceA map, plan, graph or sketch is a document. (Peta, pelan, graf atau lakaran ialah dokumen)

Documentary evidenceAn 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)

Documentary evidenceA drawing, painting, picture or caricature is a document. (Lukisan, citra, gambar atau karikatur ialah dokumen)

Documentary evidenceA photograph or a negative is a document. (Fotograf atau negatif ialah dokumen)

Documentary evidenceDocumentary evidence v physical evidence?: A piece of evidence is not documentary evidence if it is presented for some purpose other than the examination of the contents of the document.

Authentication of documentary evidence (Section 61 66 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 dalam hal hal yang tersebut kemudian daripada ini). This section provides that documents 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).

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).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.

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).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: It 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).

Method of proof of a document

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).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).

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).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)

First step: The genuineness of every document must be proven (See sections 64 & 65 of EA 1950).The law of evidence draws a distinction between the admissibility of a document and the mode of proving it. If a document is declared inadmissible by a statute, then, failure to object to the inadmissible document at the first available opportunity does not prevent the party adversely affected from raising the matter on appeal. Inadmissible evidence, whether in civil or criminal proceedings, remains inadmissible despite any failure to object to its admission. On the other hand, where, as in the present case, the complaint is directed, not at admissibility, but at the mode of proof, that is to say, the procedure by which a particular document is to be proved, objection must be taken at the earliest opportunity. Failure to do so results in the point being no longer open at the appellate stage. (See Boonsoom Boonyanit v Adorna Properties Sdn. Bhd. [1997] 3 CLJ 17) See also the case of Gopal Das & Anor v. Sri Thakurji & Ors AIR [1943] PC 83, 87.

No Authentication = Documentary hearsayMyers 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 charge with the keeping of those records/data and not with their compilation. The defense council objected to the admission of such evidence since it was hearsay. The manufacturers 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.

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 a conductor 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 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 ships 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.

No Authentication = Documentary hearsay

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 (See section 61) (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).

Second step: Proving the content of the document (See section 61, 62 & 63 of EA 1950)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 ruleDocumentary 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 providesthe 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).

Documentary evidence & the best evidence ruleIllustration 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). Read together with section 136 (2)

CHAPTER ONETOPIC:PRESUMPTION AS TO DOCUMENTS 20 YEARS OLD/ANCIENT DOCUMENT(Section 90)

Documentary evidence

Presumption as to documents 20 years old i.e. Ancient documentSection 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 documentAnggapan 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 dalam 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 menganggap 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 documentExplanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. (Dokumen - dokumen adalah dikatakan sebagai berada di dalam simpanan wajar jika dokumen itu berada pada tempat dan di bawah jagaan orang yang sememangnya dokumen dokumen itu patut berada; tetapi tiada apa apa simpanan boleh dikatakan sebagai tak wajar jika simpanan itu dibuktikan sebagai sah pada asalnya, atau jika hal keadaaan bagi hal tertentu itu boleh menjadikan asalnya itu berkemungkinan)

Presumption as to documents 20 years old i.e. Ancient documentSection 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

Hearsay evidence v Ancient document evidence?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. An ancient document is one that may be deemed authentic without a witness to attest to the circumstances of its creation because its age suggests that it is unlikely to have been falsified in anticipation of the litigation in which it is introduced.

Hearsay evidence v Ancient document evidence?An ancient documents will be received as competent evidence if they are fair on their face (i.e., offer no evidence of tampering/corruption/doubt) and have been maintained in reasonable custody

Presumption as to documents 20 years old i.e. Ancient document

Presumption as to documents 20 years old i.e. Ancient documentThe presumption goes only to the genuineness of the document but not to the truth of the contents. A judge can still decide that the author of the document was lying or mistaken when the author wrote it. Per Sharma J in Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ 77, 79 The presumption relates to the execution of the documents, i.e. signature. attestation, etc. In other words, to its genuineness but not to the truth of its contents. The person presenting a document under s. 90 is relieved of the necessity of proving that it was executed by the person who is purported to be the executants but the Court will not presume the correctness of any statement in the document.

Presumption as to documents 20 years old i.e. Ancient documentIn Commissioners of the Municipality of Malacca v Sinniah [1974] 1 MLJ 77, the defendant was an employee of the plaintiff and had been allotted (given) quarters by reason of his employment with the plaintiff. When he joined the service, his particulars were entered on the Record of Service and in accordance with the age given therein he was retired from service when he attained the age of fifty-five in 1968. The defendant questioned the veracity of that entry. He did not vacate the quarters when required to do so and proceedings were instituted for possession. The plaintiff filed this action on 2 September 1970 claiming possession of the quarters, damages for unlawful occupation thereof and costs. The only plea taken up in the defence was that as the defendant was born in 1922, he could not be evicted, that his retirement was wrongful, that he was entitled to remain in occupation of the quarters until he reaches the age of fifty five and that he could not be asked to pay a rental of $20 per month or any sum whatsoever as from 1 January 1969.

Presumption as to documents 20 years old i.e. Ancient documentAmongst the evidence tendered here was the Record of Service of the defendant himself. It was prepared in the year 1938. Court has decided that the record has been produced from proper custody and, in the view, is altogether free from any suspicion.According to the record of his service, he was twenty five years of age at that time. He had come from India with his father and brother. He did not have with him any certificate of birth at that time. The defendant questions the veracity of the entry made showing his age as twenty five in 1938. It is, however, not conceivable how such an entry could have been made unless the defendant himself represented to his employer at the time of his employment that he was twenty five. He could serve the Municipality up to the age of fifty five. If he was twenty five in 1938, he must have been born in 1913 which meant that he could remain in the employment of the Municipality up to 1968.

Presumption as to documents 20 years old i.e. Ancient documentHeld: (1)the defendant had not discharged the onus of showing that the entries in the Record of Service were incorrect; (2)the defendant was estopped from denying that he was twenty-five years of age at the time of his employment as stated in the Record of Service.

Presumption as to documents 20 years old i.e. Ancient documentThe period of 20 years is reckoned (calculate/ consider) 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 Development 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 documentIf 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 exercising 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 documentIn 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 Ahmads estate. Both Ariffin and Bakar have died. The plaintiff pleaded that his father, Ariffin, purchased from Bakar 1/3 of Bakar's undivided share, at 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 documentHeld, allowing the plaintiffs:(1) The purported sale and purchase agreement was tendered in court. The contents of the document show that there was a sale by the first defendants father of his share of the land for $800 on 11.6.1374 (Muslim calendar) (3 February 1955, Gregorian calendar) to the plaintiffs father. The court had no hesitation in accepting that the document was officially stamped at the Kota Star Stamp Office on 3 February 1955 and that the document has been proved to be more than 20 years old.

Presumption as to documents 20 years old i.e. Ancient document(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.

Presumption as to documents 20 years old i.e. Ancient documentHeld, allowing the plaintiffs:(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 documentSection 90 must be 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.

FINISHFINISH

CHAPTER ONETOPIC:PUBLIC & PRIVATE DOCUMENT(Sections 74 78A)

Public (s. 74) & Private (s. 75) DocumentDefinition of public document under the English law: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 Jowitts Dictionary of English Law that a public document is defined as a document made for the purpose of the public making it.

Public (s. 74) & Private (s. 75) DocumentDefinition of public document under the Malaysian law: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.

Public (s. 74) & Private (s. 75) DocumentDefinition of public document under the Malaysian law: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 (s. 74) & Private (s. 75) DocumentThe distinction between the English law & Malaysian Evidence Act on the definition of 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 (s. 74) & Private (s. 75) DocumentSection 74 only categories the public document. This section defines public documents. It provides for two (2) classes of public documents. The first class includes the acts or records of the acts of certain authorities and officers. (Section 74 (a))The second class relates to public records of private documents. (Section 74 (b))Then what constitutes a public document has to be determined by court.

Public (s. 74) & Private (s. 75) DocumentThere 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 (s. 74) & Private (s. 75) DocumentThere are few cases where the court ruled that certain documents are public documents: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 officers are public documents.Haji Abdul Ghani Bin Ishak v PP [1980] 2 MLJ 196: Uncautioned statement is a public document.

Public (s. 74) & Private (s. 75) DocumentThere are few cases where the court ruled that certain documents are public documents:Pavone v PP [1986] 1 MLJ 72: Notes of proceeding are a public document. Re Neoh Guan Chye, decd (1935) 4 MLJ 271where Executor for the Commissioner of Estate Duties made an affidavit relating to the estates of some people. This affidavit falls within 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 Drug Dependent and Rehabilitation Act 1983 is a public document.

Public (s. 74) & Private (s. 75) DocumentThere are few cases where the court ruled that certain documents are public documents:Yeow Boon Kee v Timbalan Menteri Dalam Negeri Malaysia [1993] 2 MLJ 359: Report under section 3 (2) (c) 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 (s. 74) & Private (s. 75) DocumentMethods 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 (s. 74) & Private (s. 75) DocumentThe second class relates to public records of private documents. (See section 74 (b))

Public documentare

Public (s. 74) & Private (s. 75) DocumentRight 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 (s. 74) & Private (s. 75) DocumentRight 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: (1)The medical report in question is a public document. Medical officers are members of the public service and under s 74 of the Evidence Act 1950, public documents are documents forming the acts or records of the acts of public officers. (2) 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 (s. 74) & Private (s. 75) DocumentHowever, 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 [1979] 2 MLJ 304 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 (s. 74) & Private (s. 75) DocumentThe 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). Cross reference to the topic of illegally obtain evidence

Public (s. 74) & Private (s. 75) DocumentSection 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.

Private document

Differences between public & private documentNo.Public documentPrivate document1.The best evidence rule is inapplicableThe best evidence rule is applicable2.The existence of the right of inspection & copyNon-existence of the right of inspection & copy

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CHAPTER ONETOPIC:COMPUTER GENERATED DOCUMENT(Sections 90A 90C)

Computer generated document (Document produced by a computer) (ss. 90A 90C)CGD is a document produced by a computer. It is a good piece of evidence and can be regarded as one of the exceptions to the rules against hearsay. Section 62 Explanation 3 clearly states A document produced by a computer is primary evidence

Computer generated document (Document produced by a computer) (ss. 90A 90C)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) (ss. 90A 90C)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) (ss. 90A 90C)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) (ss. 90A 90C)

Computer generated document (Document produced by a computer) (ss. 90A 90C)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) (ss. 90A 90C)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 komputer 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) (ss. 90A 90C)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. Producing a certificate. See 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) (ss. 90A 90C)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) (ss. 90A 90C)

Computer generated document (Document produced by a computer) (ss. 90A 90C)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 responsibly for the conduct of the activities for which the relevant computer were used.

Computer generated document (Document produced by a computer) (ss. 90A 90C)In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 where the appellant, while acting as the complainants solicitor, was entrusted with dominion over two separate sums of moneys belonging to the complainants, namely RM6576.16 and RM133,000. The appellant later deposited these sums of moneys into his office and clients accounts respectively. Evidence was adduced by Zainal, the Bank officer in charge of the two accounts to proof few computer generated documents. The appellant had not by then remitted (forwarded) any payment to the complainants, and the Courts below held that criminal breach of trust in the circumstances had been proved against the appellant. The appellant appealed and argued that the learned Judge was wrong in admitting and acting on Zainals evidence to proof the computer generated document.

Computer generated document (Document produced by a computer) (ss. 90A 90C)It was held by the Court of Appeal 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) (ss. 90A 90C)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) (ss. 90A 90C)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

Computer generated document (Document produced by a computer) (ss. 90A 90C)Zainal adalah Pegawai Cawangan yang bertanggungjawab terhadap operasi Cawangan berkenaan. Beliau dengan itu adalah bertanggungjawab terhadap semua aktiviti yang dijalankan oleh Cawangan berkenaan untuk yang mana komputer tersebut telah digunakan. Beliau boleh memilih untuk mengemukakan satu sijil seperti kehendak s. 90A(2) tanpa perlu hadir di Mahkamah, dan tanpa kehadirannya semua dokumen yang dicetak oleh komputer tersebut akan diterima-masuk sebagai keterangan di bawah s. 90A(1) . Keterangan viva voce seseorang saksi di dalam kandang saksi adalah lebih kuat dari sijil yang dikeluarkan olehnya

Computer generated document (Document produced by a computer) (ss. 90A 90C)In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11, Per Mahadev Shankar JCA (concurring/in agreement) also states Moreover, as the appellant did not challenge Zainals evidence by way of cross-examination, the prosecution succeeded in proving that the documents were admissible

Computer generated document (Document produced by a computer) (ss. 90A 90C)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 become 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) (ss. 90A 90C)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.

RELEASED The son of former Ipoh Mayor Azman Ismail Shahbodin (left) shaking hands with his lawyer Christopher Fernando (right) after the High Court acquitted and discharged him and four others on murdering a college student in 2003 due to failure of the prosecution to prove a prima facie case against the accused. Pix: Dusa Abas

Computer generated document (Document produced by a computer) (ss. 90A 90C)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 subsection (6) applies to deem the document to be produced by the computer in the course of its ordinary use

Ong: Was raped and murdered on June 14, 2003. Ahmad Najib

Computer generated document (Document produced by a computer) (ss. 90A 90C)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) (ss. 90A 90C)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.

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CHAPTER ONETOPIC:PAROL EVIDENCE RULE:THE GENERAL RULE(Sections 91 - 99)

Parol evidence rule (ss 91 99)Parol refers to verbal expressions or words. Verbal evidence, such as the testimony of a witness at trial. In the context of contracts, deeds, wills, or other writings, parol evidence refers to extrinsic evidence such as an oral agreement or even a written agreement that is not included in the relevant written document. 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 declarations that are not referenced in the document.

Parol evidence rule (ss 91 99)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 contracts terms ($1,000).

Parol evidence rule (ss 91 99)One way to ensure that the contract will be found to be a final and complete integration is through the inclusion of a merger clause/integration clause/ entire agreement clause, which recites that the contract is, in fact, the whole agreement between the parties. Examples are as follows:

Parol evidence rule (ss 91 99)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 partys 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 partys right to remedies associated with the gross negligence, willful misconduct or fraud of any person or party taking place prior to, or contemporaneously with, the execution of this Agreement.

PAROL EVIDENCE RULE:THE COMMON LAW POSITION

Parol evidence rule (ss 91 99)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 which would add or change terms of a later written contract.

Parol evidence rule (ss 91 99)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:THE MALAYSIAN POSITION

Parol evidence rule (ss 91 99)Section 91 to 99 of the Malaysian Evidence Act 1950 deal with the exclusion of oral by documentary evidence. Read together with section 144(Penyingkiran keterangan lisan oleh keterangan dokumen)

Parol evidence rule (ss 91 99)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. Apabila terma-terma bagi sesuatu kontrak atau bagi sesuatu pemberian atau bagi apa apa pelupusan lain harta telah dituliskan oleh atau dengan persetujuan pihak pihak dalam bentuk dokumen, dan dalam segala hal yang mana apa apa perkara dikehendaki oleh undang undang supaya dituliskan dalm bentuk dokumen, tiada apa apa keterangan boleh diberi bagi membuktikan terma terma kontrak, pemberian atau lain lain pelupusan harta itu bagi membuktikan perkara itu, melainkan dokumen itu sendiri, atau keterangan sekunder mengenai kandungannya dalam hal hal dimana keterangan sekunder boleh diterima di bawah peruntukan peruntukan yang terkandung dahulu daripada ini

Parol evidence rule (ss 91 99)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.

Parol evidence rule (ss 91 99)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 (ss 91 99)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. 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 (ss 91 99)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 each other.

Parol evidence rule (ss 91 99)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

Parol evidence rule (ss 91 99)Per Augustine Paul JC in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329 stated that 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.

Parol evidence rule (ss 91 99)Per Augustine Paul JC in Datuk Tan Leng Teck v Sarjana Sdn Bhd [1997] 4 MLJ 329 stated that 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 (ss 91 99)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.

Parol evidence rule (ss 91 99)In 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. In PP v Tan Siew Hui [2008]8CLJ142whereit is also clear that s. 91 and s. 92 of the Evidence Act 1950 are applicable also to criminal cases.

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 (ss 91 99)

WHAT IS THE RATIONALE OF PAROL EVIDENCE RULE?

CHAPTER ONETOPIC:PAROL EVIDENCE RULE:THE EXCEPTIONS

Several points need to be considers under section 92:

Parol evidence rule: The exceptionsSection 92 states 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: Provided that

Parol evidence rule: The exceptionsSeksyen 92 Akta Keterangan 1950 mengatakan 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: Dengan syarat bahawa-

Parol evidence rule: The exceptionsThis 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 prove the genuineness of a document & 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 exceptionsIt 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 exceptionsThe 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 it was stated 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)

Parol evidence rule: The exceptionsThe 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 exceptionsPlease observe the use of the word as between the parties to any such instrument under 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).

1st Exception:Vitiating factors

1st Exception: Vitiating factorSection 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.

1st Exception: Vitiating factorIn 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 Tan Siew Hee & Ors v Hii Sii Ung [1965] 1 MLJ 385; Guthrie Waugh Bhd v Malaipan Muthucumaru [1972] 1 MLJ 35; and Hong Kong & Shanghai Banking Corporation v Syarikat United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449).

2nd Exception:Collateral warranty

2nd Exception: Collateral warrantySection 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.

2nd Exception: Collateral warrantyIn 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 tea money 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 tea money 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.

2nd Exception: Collateral warrantyIn 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 Buyers 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 to prove the existence of the warranty.

2nd Exception: Collateral warrantyIn 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, where the court disallowed some oral term to be adduced in evidence. 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.

3rd Exception:Condition precedent

3rd Exception: Condition precedentSection 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.

3rd Exception: Condition precedentIn 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 the case of Pym v Cambell 6 E & B 370

4th Exception:Condition subsequent

4th Exception: Condition subsequentSection 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).

4th Exception: Condition subsequentIn the case of Wong Juat Eng v Then Thaw Eu [1965] 2 MLJ 213, the respondents 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 months 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.

4th Exception: Condition subsequentIn 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.

5th Exception:Custom

5th Exception: CustomSection 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

5th Exception: CustomIn 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) Raja Azlan Shah J cited Jenkins LJ in London Export Corporation Ltd v Jubilee Coffee Roasting Co Ltd [1958]1 WLR 661

5th Exception: CustomIn 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.

6th Exception:Historical background & surrounding circumstances

6th Exception: Historical background & surrounding circumstancesThe 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.

7th Exception:Recital contract

7th Exception: Recital of contractAny 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. See also Ganam d/o Rajamany v Somoo s/o Sinnah [1984] 2 MLJ 290

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CHAPTER TWOTOPIC:PRESUMPTION(ANGGAPAN)

THE IDEA OF PRESUMPTION UNDER THE LAW OF EVIDENCE

PresumptionIn 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.

PresumptionSection 4 of EA 1950 provides for presumptions. 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.

PresumptionSection 4 of the EA 1950 provides:(1) 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. (2) 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. (3) 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.

PresumptionSeksyen 4 Akta Keterangan 1950 memperuntukkan:(1) 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(2) 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.(3) 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

Types of presumptions

CHAPTER TWOTOPIC:PRESUMPTION OF CONTINUITY OF LIFE(ANGGAPAN MASIH HIDUP)SECTION 107

Presumption of continuity of lifeSection 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 dalm masa tiga puluh tahun) which states 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 affir