Dealing with Evidence

1. Dealing with Evidence By LEE SWEE SENG Advocate & Solicitor Certified Mediator Notary Public Patent Agent Trademark Agent www.leesweeseng.com sweeseng@tmnet.net.my

2. 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

3. Main legislation governing the law of evidence in Malaysia Evidence Act 1950

4. Common law As an aid to interpretation When the Evidence Act is silent PP v Yuvaraj [1969] 2 MLJ 89 Per 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.”

5. Determining the nature of evidence

6. 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 ;

7. 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)

8. 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;

9. 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.

10. 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.

11. 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.

12. 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)

13. 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);

14. 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; (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;

15. Documentary evidence s. 61 of the EA 1950 provides that The content of documents may be proved either by primary or secondary evidence.

16. 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.

17. 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.

18. Assessing the client’s evidence

19. 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

20. 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)

21. 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.’

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

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

24. 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.

25. Under the circumstances where:- • he is dead; • he cannot be found; • he has become incapable of giving evidence; or • his attendance cannot be procured without an amount of delay and expense which under the circumstances of the case appears to the court unreasonable.

26. 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.

27. 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:

28. If the maker of the statement either • Had personal knowledge of the matters dealt with by the statement; or • 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

29. 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

30. 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.

31. 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.

32. 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.

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

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

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

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

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

38. 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.

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

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

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

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

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

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

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

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

47. Effectively structuring evidence-in-chief to fit your case theory

48. 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.

49. 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.

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