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Evidence Act 1950- Part 2

  • 57. Facts of which court must take judicial notice

    (1) The court shall take judicial notice of the following facts:

    (a) all laws or regulations having the force of law now or heretofore in force or hereafter to be in force in Malaysia or any part thereof; 

    (b) all public Acts passed or hereafter to be passed by the Parliament of the United Kingdom, and all local and personal Acts directed by it to be judicially noticed; 

    (c) articles of war for the armed forces or any visiting force lawfully present in Malaysia; 

    (d) the course of proceedings in Parliament, in the federal legislatures that existed in Malaysia before Parliament was constituted, in the legislature of any State in Malaysia and in the Parliament of the United Kingdom; 

    (e) the accession of the Yang di-Pertuan Agong and the accession of the Ruler of any State in Malaysia and the appointment of a Yang di-Pertua Negeri; 

    (f) the accession and the sign manual of the Sovereign for the time being of the United Kingdom; 

    (g) the seals of all the courts of Malaysia all seals which any person is authorized to use by any law in force for the time being in Malaysia or any part thereof, all seals of which English courts take judicial notice, and the seals of Courts of Admiralty and maritime jurisdiction and of notaries public; 

    (h) the accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any part of Malaysia, if the fact of their appointment to such office is notified in the Gazette or in any State Gazette; 

    (i) the existence, title and national flag of every State or Sovereign recognized by the Yang di-Pertuan Agong

    (j) the ordinary course of nature, natural and artificial divisions of time, the geographical divisions of the world, the meaning of Malay and English words, and public festivals, fasts and holidays notified in the Gazette or in any State Gazette; 

    (k) the Commonwealth countries; 

    (l) the commencement, continuance and termination of hostilities between Malaysia or any other part of the Commonwealth and any other country or body of persons; 

    (m) the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates and other persons authorized by law to appear or act before it; 

    (n) the rule of the road on the land, sea regulations and the rules of the air; 

    (o) all other matters which it is directed by any written law to notice.

    Explanation--The words "Parliament of the United Kingdom" in paragraphs (b) and (d) mean--

    (i) the Parliament of the United Kingdom of Great Britain and Northern Ireland; 

    (ii) the Parliament of the United Kingdom of Great Britain and Ireland; 

    (iii) the Parliament of Northern Ireland; 

    (iv) the Parliament of Great Britain; 

    (v) the Parliament of England; 

    (vi) the Parliament of Scotland; 

    (vii) the Parliament of Ireland prior to 1 January 1801.

    (2) In all these cases, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.

(3) If the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until the person produces any such book or document as it considers necessary to enable it to do so.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/58.Facts admitted need not be proved

58. Facts admitted need not be proved

(1) No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing or which before the hearing they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.

(2) This section has no application to criminal proceedings.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/59.Proof of facts by oral evidence

Part II PROOF

Chapter IV - ORAL EVIDENCE

59. Proof of facts by oral evidence

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

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/60.Oral evidence must be direct

60. 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;

(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. 

(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.

(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.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/61.Proof of contents of documents

Part II PROOF

Chapter V - DOCUMENTARY EVIDENCE

61. Proof of contents of documents

The contents of documents may be proved either by primary or by secondary evidence.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/62.Primary evidence

62. Primary evidence

Primary evidence means the document itself produced for the inspection of the court.

Explanation 1--Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it

Explanation 2--Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original.

Explanation 3--A document produced by a computer is primary evidence.

ILLUSTRATION

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/63.Secondary evidence

63. Secondary evidence

Secondary evidence includes--

(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did not execute them;

(e) oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means. 

ILLUSTRATIONS

(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(d) Neither an oral account of a copy compared with the original nor an oral account of a photograph or machine copy of the original is secondary evidence of the original. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/64.Proof of documents by primary evidence

64. Proof of documents by primary evidence

Documents must be proved by primary evidence except in the cases hereinafter mentioned.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/65.Cases in which secondary evidence relating to documents may be given

65. Cases in which secondary evidence relating to documents may be given

(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

(a) when the original is shown or appears to be in the possession or power--

(i) of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. 

(2)(a) In the cases referred to in paragraphs (1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.

(b) In the case referred to in paragraph (1)(b) the written admission is admissible.

(c) In the case referred to in paragraph (1)(e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible.

(d) In the case referred to in paragraph (1)(g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/66.Rules as to notice to produce

66. Rules as to notice to produce

Secondary evidence of the contents of the documents referred to in paragraph 65(1)(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the court thinks fit to dispense with it:

(a) when the document to be proved is itself a notice;

(b) when from the nature of the case the adverse party must know that he will be required to produce it;

(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(d) when the adverse party or his agent has the original in court;

(e) when the adverse party or his agent has admitted the loss of the document; or

(f) when the person in possession of the document is out of reach of or not subject to the process of the court. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/67.Proof of signature and handwriting of person alleged to have signed or written document produced

67. Proof of signature and handwriting of person alleged to have signed or written document produced

If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting shall be proved to be in his handwriting.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/68.Proof of execution of document required by law to be attested

68. Proof of execution of document required by law to be attested

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive and subject to the process of the court and capable of giving evidence.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/69.Proof where no attesting witness found

69. Proof where no attesting witness found

If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/70.Admission of execution by party to attested document

70. Admission of execution by party to attested document

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it is a document required by law to be attested.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/71.Proof when attesting witness denies the execution

71. Proof when attesting witness denies the execution

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/72.Proof of document not required by law to be attested

72. Proof of document not required by law to be attested

An attested document not required by law to be attested may be proved as if it was unattested.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/73.Comparison of signature, writing or seal with others admitted or proved

73. Comparison of signature, writing or seal with others admitted or proved

(1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person.

(3) This section applies also, with any necessary modifications, to finger impressions.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/73A.Admissibility of documentary evidence in civil cases, etc.

73A. Admissibility of documentary evidence in civil cases, etc.

(1) Notwithstanding anything contained in this Chapter, in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:

(a) if the maker of the statement either--

(i) had personal knowledge of the matters dealt with by the statement; or

(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have had, personal knowledge of those matters; and

(b) if the maker of the statement is called as a witness in the proceedings: 

Provided 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 efforts to find him have been made without success.

(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence--

(a) notwithstanding that the maker of the statement is available but is not called as a witness; and

(b) notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be. 

(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish.

(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document, or the material part thereof, was written, made or produced by him with his own hand, or was signed or initialled by him, or otherwise recognized by him in writing as one for the accuracy of which he is responsible.

(5) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of subsections (1) to (4), the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner, and, where the proceedings are with assessors, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason, it appears to it to be inexpedient in the interests of justice that the statement should be admitted.

(6) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and, in particular, to the question whether or not 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.

(7) For the purpose of any rule of law or practice requiring evidence to be corroborated, or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/73AA.Admissibility of fact in criminal cases, etc.

73AA. Admissibility of fact in criminal cases, etc.

Notwithstanding anything contained in this Chapter and subject to the Criminal Procedure Code [Act 593], in any criminal proceedings, no fact whether oral or written need be proved which the parties to the proceedings have agreed to admit at the trial or which the parties to the proceedings have agreed to admit before the trial in writting.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/74.Public documents

Part II PROOF

Chapter V - DOCUMENTARY EVIDENCE

Public Documents

74. Public documents

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 records kept in Malaysia of private documents. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/75.Private documents

75. Private documents

All documents other than those mentioned in section 74 are private.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/76.Certified copies of public documents

76. Certified copies of public documents

Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate, written at the foot of the copy, that it is a true copy of the document or part thereof, as the case may be, and the certificate shall be dated and subscribed by the officer with his name and his official title, and shall be sealed whenever the officer is authorized by law to make use of a seal, and the copies so certified shall be called certified copies.

Explanation--Any officer who by the ordinary course of official duty is authorized to deliver the copies shall be deemed to have the custody of the documents within the meaning of this section.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/77.Proof of documents by production of certified copies

77. Proof of documents by production of certified copies

Copies certified in the manner set out in section 76 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/78.Proof of certain official documents

78. Proof of certain official documents

(1) The following public documents may be proved as follows:

(a) acts, orders or notifications of the Government of Malaysia or of any State in any of its departments--

(i) by the records of the departments certified by the heads of those departments respectively;

(ii) by a Minister in the case of the Government of Malaysia, and by the Chief Minister, a State Minister (if any), the State Secretary or the Permanent Secretary to the Chief Minister in the case of a State Government; or

(iii) by any document purporting to be printed by the authority of the Government concerned;

(b) the proceedings of Parliament or of any of the federal legislatures that existed in Malaysia before Parliament was constituted or of the legislature of any State--by the minutes of the body or by the published Acts of Parliament, Ordinances, Enactments or abstracts or by copies purporting to be printed by the authority of the Government concerned;

(c) proclamations, orders or regulations issued by the Crown in the United Kingdom or by the Privy Council or by any Minister or department of the Crown--by copies or extracts contained in the London Gazette or in the Gazette or in any State Gazette or purporting to be printed by Her Britannic Majesty's Printer;

(d) the acts of the Executive or the proceedings of the legislature of a foreign country--by journals published by their authority or commonly received in that country as such, by a copy certified under the seal of the country or sovereign or by a recognition thereof in some Act, Ordinance or Enactment of Malaysia or of any State;

(e) the proceedings of a municipal body, town board or other local authority in Malaysia--by a copy of the proceedings certified by the lawful keeper thereof, or by a printed book purporting to be published by the authority of that body;

(f) public documents of any other class in a foreign country--by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country. 

(2) Copies of Acts, Ordinances and Statutes passed by the legislature of any part of the Commonwealth and of orders, regulations and other instruments issued or made under the authority of any such Act, Ordinance or Statute, if purporting to be printed by the Government Printer, shall be received in evidence by all courts in Malaysia without any proof being given that the copies were so printed.

(3) In this section "Government Printer" means, as respects any part of the Commonwealth, the printer purporting to be the printer authorized to print the Acts, Ordinances or Statutes of the legislature of that territory, or otherwise to be the Government Printer of that territory.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/78A.Proof of public documents produced by computers

78A. Proof of public documents produced by computers

Notwithstanding anything contained in sections 77 and 78, the provisions of sections 90a, 90b and 90c shall apply to a public document.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/79.Presumption as to genuineness of certified copies

Part II PROOF

Chapter V - DOCUMENTARY EVIDENCE

Presumptions as to Documents

79. Presumption as to genuineness of certified copies

(1) The court shall presume to be genuine every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer in Malaysia who is duly authorized thereto:

Provided that the document is substantially in the form and purports to be executed in the manner directed by law in that behalf.

(2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in the document.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/80.Presumption as to documents produced as record of evidence

80. Presumption as to documents produced as record of evidence

Whenever any document is produced before any court purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge, Sessions Court Judge or Magistrate or by any such officer as aforesaid, the court shall presume that--

(a) the document is genuine;

(b) any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true; and

(c) such evidence, statement or confession was duly taken. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/81.Presumption as to Gazettes, newspapers, etc.

81. Presumption as to Gazettes, newspapers, etc.

The court shall presume the genuineness of every document purporting to be the Gazette, a State Gazette or the London Gazette, or the Government Gazette of any part of the Commonwealth, or to be the Gazette issued by the local Government of any part of the Commonwealth, or to be a newspaper or journal, or to be a copy of a private Act of Parliament printed by Her Britannic Majesty's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if the document is kept substantially in the form required by law and is produced from proper custody.

Explanation --see explanation to section 90.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/82.Presumption as to document admissible in England without proof of seal or signature

82. Presumption as to document admissible in England without proof of seal or signature

When any document is produced before any court, purporting to be a document which by the law in force for the time being in England or Northern Ireland would be admissible in proof of any particular in any Court of Justice in England or Northern Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed--

(a) the court shall presume that such seal, stamp or signature is genuine, and that the person signing it held at the time when he signed it the judicial or official character which he claims;

(b) the document shall be admissible for the same purpose for which it would be admissible in England or Northern Ireland. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/83.Presumption as to maps or plans made by authority of Government

83. Presumption as to maps or plans made by authority of Government

(1) The court shall presume that maps or plans purporting to be made by the authority of the Government of Malaysia or the Government of any State were so made and are accurate.

(2) (Deleted by P.U.(A) 261/1971).

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/84.Presumption as to collections of laws and reports of decisions

84. Presumption as to collections of laws and reports of decisions

The court shall presume the genuineness of every book purporting--

(a) to be printed or published under the authority of the Government of any country and to contain any of the laws of that country; or

(b) to contain reports of decisions of the courts of that country. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/85.Presumption as to powers of attorney

85. Presumption as to powers of attorney

The court shall presume that every document purporting to be a power of attorney, and to have been executed before and authenticated by a Notary Public or Commissioner for Oaths, or any court, Judge, Magistrate, or consular officer of Malaysia was so executed and authenticated.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/86.Presumption as to certified copies of foreign judicial records

86. Presumption as to certified copies of foreign judicial records

The court may presume that any document purporting to be a certified copy of any judicial record of any country not being a part of the Commonwealth is genuine and accurate if the document purports to be certified in any manner which is certified by any representative of the Yang di-Pertuan Agong in or for such country to be the manner commonly in use in that country for the certification of copies of judicial records.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/87.Presumption as to books, maps and charts

87. Presumption as to books, maps and charts

The court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/88.Presumption as to telegraphic messages

88. Presumption as to telegraphic messages

The court may presume that a message forwarded from a telegraph office to the person to whom it purports to be addressed corresponds with a message delivered for transmission at the office from which the message purports to be sent; but the court shall not make any presumption as to the person by whom the message was delivered for transmission.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/89.Presumption as to due execution, etc., of documents not produced

89. Presumption as to due execution, etc., of documents not produced

The court shall presume that every document called for and not produced, after notice to produce given under section 66, was attested, stamped and executed in the manner required by law.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/90A.Admissibility of documents produced by computers, and of statements contained therein

Part II PROOF

Chapter V - DOCUMENTARY EVIDENCE

Documents Produced by a Computer

90A. Admissibility of documents produced by computers, and of statements contained therein

(1) 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.

(2) 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.

(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. 

(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.

(5) 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.

(6) A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

(7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was--

(a) responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

(b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/90A.Admissibility of documents produced by computers, and of statements contained therein

Part II PROOF

Chapter V - DOCUMENTARY EVIDENCE

Documents Produced by a Computer

90A. Admissibility of documents produced by computers, and of statements contained therein

(1) 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.

(2) 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.

(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. 

(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.

(5) 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.

(6) A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

(7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was--

(a) responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

(b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/90B.Weight to be attached to document, or statement contained in document, admitted by virtue of section 90A

90B. Weight to be attached to document, or statement contained in document, admitted by virtue of section 90A

In estimating the weight, if any, to be attached to a document, or a statement contained in a document, admitted by virtue of section 90A, the court--

(a) may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise:

(b) shall have regard to--

(i) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and

(ii) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/90C. Sections 90A and 90B to prevail over other provisions of this Act, the Bankers' Books (Evidence) Act 1949, and any written law

90C. Sections 90A and 90B to prevail over other provisions of this Act, the Bankers' Books (Evidence) Act 1949, and any written law

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 [Act 33], 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.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/90D.Application of Chapter VA

Part II PROOF

Chapter VA - ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS

90D. Application of Chapter VA

Notwithstanding any other provision in this Act, this Chapter shall apply for the purpose of determining the admissibility of evidence obtained pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 [Act 621].

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/90E.Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters

90E. Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters

(1) Subject to subsections (2) to (9), any testimony, statement or deposition, together with any document or thing exhibited or annexed to such statement or deposition, that is received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of the criminal matter, shall on its production be admitted in those criminal proceedings as evidence without further proof of any fact stated in the testimony, statement or deposition and in the document, if any, exhibited or annexed to such statement or deposition.

(2) The testimony, statement or deposition shall be taken--

(a) on oath or affirmation;

(b) under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or

(c) under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.

(3) The testimony, statement or deposition shall--

(a) be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made; and

(b) bear an official or public seal of--

(i) the foreign country; or

(ii) a Minister of State, or a department or officer of the government of the foreign country.

(4) A certificate by the judge, magistrate or officer referred to in subsection (3) shall, without further proof, be admitted in the proceedings as conclusive evidence of the facts contained in the certificate.

(5) All courts in Malaysia shall take judicial notice of the official or public seal referred to in subsection (3)

(6) The testimony taken under subsection (2) may be reduced to writing or be recorded on a tape, disk or other device from which sounds or images are capable of being reproduced or may be taken by means of technology that permits the virtual presence of the person in Malaysia.

(7) Where the testimony has been reduced to writing or recorded on a tape, disk or other device from which sounds or images are capable of being reproduced, the writing, tape, disk or other device shall be authenticated as provided under subsection (3).

(8) Where the testimony has been made by means of video or other means which permits the virtual presence of the person in Malaysia, that testimony shall be deemed to have been given in Malaysia.

(9) For the purposes of this Chapter, the testimony, statement or deposition need not--

(a) be in the form of an affidavit; or

(b) constitute a transcript of a proceeding in a foreign court.

(10) For the purpose of this Chapter, where the prosecutor seeks to adduce any testimony, statement, deposition, document or thing specified in subsection (1) as evidence in the criminal matter, the court shall not give any direction that such evidence or any part thereof is not to be adduced.

(11) In this Chapter, "criminal matter" has the meaning assigned to it under the Mutual Assistance in Criminal Matters Act 2002. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/90F.Certificate relating to foreign evidence

90F. Certificate relating to foreign evidence

A certificate by the Attorney General or by a person authorized by the Attorney General to make such a certificate certifying that any testimony, statement or deposition to which such certificate is attached, together with any document or thing exhibited or annexed thereto, if any, has been received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of any criminal matter referred to in the certificate, shall on its production without further proof be admitted in the proceeding as conclusive evidence of the facts contained in the certificate.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/91.Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

Part II PROOF

Chapter VI - EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

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

When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2--Wills admitted to probate in Malaysia may be proved by the probate.

Explanation 1--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2--Where there are more originals than one, one original only need be proved.

Explanation 3--The statement in any document whatever of a fact, other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

ILLUSTRATIONS

(a) If a contract is contained in several letters, all the letters in which it is contained must be proved.

(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts in writing with B for the delivery of pepper upon certain terms. The contract mentions the fact that B had paid A the price of other pepper contracted for verbally on another occasion. 

Oral evidence is offered that no payment was made for the other pepper. The evidence is admissible.

(e) A gives B a receipt for money paid by B. 

Oral evidence is offered of the payment.

The evidence is admissible.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/92.Exclusion of evidence of oral agreement

92. Exclusion of evidence of oral agreement

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms:

Provided that--

(a) any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

(b) the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document;

(c) the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

(d) the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;

(e) any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and

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

ILLUSTRATIONS

(a) A policy of insurance is effected on goods "in ships from Penang to London." The goods are shipped in a particular ship, which is lost. The fact that that particular ship was orally excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay B RM1,000 on 1 March 1893. The fact that at the same time an oral agreement was made that the money should not be paid till 31 March cannot be proved.

(c) An estate called "the Kranji Tea Estate" is sold by a document which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the document cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of Bas to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions on the ground that that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: "Bought of A a horse for RM300." B may prove the verbal warranty.

(h) A hires lodgings of B and gives B a card on which is written: "Rooms RM80 a month." A may prove a verbal agreement that these terms were to include partial board. 

A hires lodgings of B for a year, and a regularly stamped agreement drawn up by an attorney is made between them. It is silent on the subject of board. A may not prove that board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount Amay prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/93.Exclusion of evidence to explain or amend ambiguous document

93. Exclusion of evidence to explain or amend ambiguous document

When the language used in a document is on its face ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

ILLUSTRATIONS

(a) A agrees in writing to sell a horse to B for RM500 or RM600. Evidence cannot be given to show which price was to be given.

(b) A document contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/94.Exclusion of evidence against application of document to existing facts

94. Exclusion of evidence against application of document to existing facts

When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

ILLUSTRATION

A conveys to B by memorandum of transfer "my estate at Kranji containing 100 acres." A has an estate at Kranji containing 100 acres. Evidence may not be given of the fact that the estate meant was one situated at a different place and of a different size.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/95.Evidence as to document unmeaning in reference to existing facts

95. Evidence as to document unmeaning in reference to existing facts

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

ILLUSTRATION

A conveys to B by memorandum of transfer "my plantation in Penang."

A had no plantation in Penang, but it appears that he had a plantation in Province Wellesley of which B had been in possession since the execution of the memorandum.

These facts may be proved to show that the memorandum related to the plantation in Province Wellesley.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/96.Evidence as to application of language which can apply to one only of several persons

96. Evidence as to application of language which can apply to one only of several persons

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things, evidence may be given of facts which show to which of those persons or things it was intended to apply.

ILLUSTRATIONS

(a) A agrees to sell to B for RM500 "my white horse." A has two white horses. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Halifax. Evidence may be given of facts showing whether Halifax in Yorkshire or Halifax in Nova Scotia was meant. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/97.Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies

97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies

When the language used applies partly to one set of existing facts and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

ILLUSTRATION

A agrees to sell to B "my land at X in the occupation of Y." A has land at X, but not in the occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/98.Evidence as to meaning of illegible characters, etc.

98. Evidence as to meaning of illegible characters, etc.

Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.

ILLUSTRATION

A, a sculptor, agrees to sell to B, "all my mods." A has both models and modelling tools. Evidence may be given to show which he meant to sell.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/99.Who may give evidence of agreement varying terms of document

99. Who may give evidence of agreement varying terms of document

Persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

ILLUSTRATION

A and B make a contract in writing that B shall sell A certain tin to be paid for on delivery. At the same time they make an oral agreement that three months' credit shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected his interests.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/100.Construction of wills

100. Construction of wills

Nothing in sections 91 to 99 shall affect the construction of wills, but in the States of Malacca, Penang, Sabah and Sarawak or any of them they shall, subject to any written law, be construed according to the rules of construction which would be applicable thereto if they were being construed in a Court of Justice in England.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/101.Burden of proof

Part III PRODUCTION AND EFFECT OF EVIDENCE

Chapter VII - BURDEN OF PROOF

101. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

ILLUSTRATIONS

(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed. 

A must prove that B has committed the crime.

(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true. 

A must prove the existence of those facts.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/102.On whom burden of proof lies

102. On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

ILLUSTRATIONS

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. 

If no evidence were given on either side, B would be entitled to his possession.

Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. 

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore the burden of proof is onB.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/103.Burden of proof as to particular fact

103. Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

ILLUSTRATIONS

(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C.A must prove the admission.

(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/104.Burden of proving fact to be proved to make evidence admissible

104. Burden of proving fact to be proved to make evidence admissible

The 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.

ILLUSTRATIONS

(a) A wishes to prove a dying declaration by B. A must prove B's death.

(b) A wishes to prove by secondary evidence the contents of a lost document. 

A must prove that the document has been lost.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/105.Burden of proving that case of accused comes within exceptions

105. Burden of proving that case of accused comes within exceptions

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.

ILLUSTRATIONS

(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act. 

The burden of proof is on A.

(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self control. 

The burden of proof is on A.

(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments. 

A is charged with voluntarily causing grievous hurt under section 325.

The burden of proving the circumstances, bringing the case under section 335, lies on A.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/106.Burden of proving fact especially within knowledge

106. Burden of proving fact especially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

ILLUSTRATIONS

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/107.Burden of proving death of person known to have been alive within thirty years

107. Burden of proving death of person known to have been alive within thirty years

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 affirms it.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/108.Burden of proving that person is alive who has not been heard of for seven years

108. Burden of proving that person is alive who has not been heard of for seven years

When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/109.Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent

109. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/110.Burden of proof as to ownership

110. Burden of proof as to ownership

When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/111.Proof of good faith in transactions where one party is in relation of active confidence

111. Proof of good faith in transactions where one party is in relation of active confidence

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

ILLUSTRATIONS

(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney

(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/112.Birth during marriage conclusive proof of legitimacy

112. Birth during marriage conclusive proof of legitimacy

The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/113.Presumption that boy under thirteen cannot commit rape

113. Presumption that boy under thirteen cannot commit rape

It shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/114.Court may presume existence of certain fact

114. Court may presume existence of certain fact

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

ILLUSTRATIONS

The court may presume--

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars;

(c) that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration;

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;

(e) that judicial and official acts have been regularly performed;

(f) that the common course of business has been followed in particular cases;

(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him;

(i) that when a document creating an obligation is in the hands of the obligor the obligation has been discharged. 

But the court shall also have regard to such facts as the following, in considering whether the maxims do or do not apply to the particular case before it:

(i) as to illustration (a)--a shopkeeper has in his till a marked ringgit soon after it was stolen and cannot account for its possession specifically but is continually receiving ringgit in the course of his business;

(ii) as to illustration (b)--A , a person of the highest character is tried for causing a man's death by an act of negligence in arranging certain machinery. B , a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and himself;

(iii) as to illustration (b)--a crime is committed by several persons. A, B and C , three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

(iv) as to illustration (c)--A , the drawer of a bill of exchange, was a man of business. B , the acceptor, was a young and ignorant person completely under A's influence;

(v) as to illustration (d)--it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

(vi) as to illustration (e)--a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

(vii) as to illustration (f)--the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

(viii) as to illustration (g)--a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feeling and reputation of his family;

(ix) as to illustration (h)--a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

(x) as to illustration (i)--a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/114A.Presumption of fact in publication

114A. Presumption of fact in publication

(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4) For the purpose of this section--

(a) "network service" and "network service provider" have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and

(b) "publication" means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/115.Estoppel

Part III PRODUCTION AND EFFECT OF EVIDENCE

Chapter VIII - ESTOPPEL

115. Estoppel

When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing.

ILLUSTRATIONS

A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale he had no title.

He may not be allowed to prove his want of title.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/116.Estoppel of tenant and of licensee of person in possession

116. Estoppel of tenant and of licensee of person in possession

No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/117.Estoppel of acceptor of bill of exchange, bailee or licensee

117. Estoppel of acceptor of bill of exchange, bailee or licensee

(1) No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw the bill or to endorse it.

(2) No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted:

Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor wrongfully and without notice to the bailee, agent or licensee, obtained the goods from a third person, who has claimed them from that bailee, agent or licensee.

Explanation--The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/118.Who may testify

Part III PRODUCTION AND EFFECT OF EVIDENCE

Chapter IX - WITNESSES

118. Who may testify

All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation--A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/119.Dumb witnesses

119. Dumb witnesses

(1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court.

(2) Evidence so given shall be deemed to be oral evidence.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/120.Parties to civil suits and wives and husbands

120. Parties to civil suits and wives and husbands

(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.

(2) In criminal proceedings against any person the husband or wife of that person respectively shall be a competent witness.

(3) In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness:

Provided that, so far as the cross-examination relates to the credit of the accused, the court may limit the cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/121.Judges, Sessions Court Judges and Magistrates

121. Judges, Sessions Court Judges and Magistrates

No Judge and, except upon the special order of the High Court, no Sessions Court Judge or Magistrate shall be compelled to answer any questions as to his own conduct in court as Judge, Sessions Court Judge or Magistrate or as to anything which came to his knowledge in court as a Judge, Sessions Court Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

ILLUSTRATIONS

(a) A, on his trial before the High Court, says that a deposition was improperly taken by B, the committing Magistrate. B cannot be compelled to answer questions as to this except upon the special order of the High Court.

(b) A is accused before a Sessions Court of having given false evidence before B, a Sessions Court Judge. B cannot be compelled to say what A said except upon the special order of the High Court.

(c) A is accused of attempting to murder a police officer whilst on his trial before B, a Judge of the High Court. B may be examined as to what occurred. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/122.Communications during marriage

122. Communications during marriage

No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/123.Evidence as to affairs of State

123. Evidence as to affairs of State

No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/124.Official communications

124. Official communications

No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure:

Provided that the court may require the head of the department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/125.Information as to commission of offences

125. Information as to commission of offences

No Sessions Court Judge, Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue or the excise laws.

Explanation--"revenue officer" in this section means any officer employed in or about the business of any branch of the public revenue.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/126.Professional communications

126. Professional communications

(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure--

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment. 

(2) It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client.

Explanation--The obligation stated in this section continues after the employment has ceased.

ILLUSTRATIONS

(a) A, a client, says to B, an advocate: "I have committed forgery and I wish you to defend me." 

As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure.

(b) A, a client, says to B, an advocate: "I wish to obtain possession of property by the use of a forged deed on which I request you to sue." 

This communication being made in furtherance of a criminal purpose is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the proceedings B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. 

This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/127. Section 126 to apply to interpreters, etc.

127. Section 126 to apply to interpreters, etc.

Section 126 shall apply to interpreters and the clerks or servants of advocates.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/128.Privilege not waived by volunteering evidence

128. Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/129.Confidential communications with legal advisers

129. Confidential communications with legal advisers

No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/130.Production of title deeds of witness not a party

130. Production of title deeds of witness not a party

(1) No witness who is not a party to the suit shall be compelled to produce his document of title to any property, or any other document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such documents or some person through whom he claims.

(2) No witness who is a party to the suit shall be bound to produce any document in his possession or power which is not relevant or material to the case of the party requiring its production.

(3) No bank shall be compelled to produce its books in any legal proceeding to which it is not a party, except as provided by the law of evidence relating to banker's books.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/131.Production of documents which another person having possession could refuse to produce

131. Production of documents which another person having possession could refuse to produce

No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, except for the purpose of identification, unless the last mentioned person consents to their production, nor shall anyone who is entitled to refuse to produce a document be compelled to give oral evidence of its contents.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/132.Witness not excused from answering on ground that answer will criminate

132. Witness not excused from answering on ground that answer will criminate

(1) A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to that question will criminate or may tend directly or indirectly to criminate, him, or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or forfeiture of any kind, or that it will establish or tend to establish that he owes a debt or is otherwise subject to a civil suit at the instance of the Government of Malaysia or of any State or of any other person.

(2) No answer which a witness shall be compelled by the court to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by that answer.

(3) Before compelling a witness to answer a question the answer to which will criminate or may tend directly or indirectly to criminate him the court shall explain to the witness the purport of subsection (2).

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/133.Accomplice

133. Accomplice

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/133A.Evidence of child of tender years

133A. Evidence of child of tender years

Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code [Act 593] shall be deemed to be a deposition within the meaning of that section:

Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/134.Number of witnesses

134. Number of witnesses

No particular number of witnesses shall in any case be required for the proof of any fact.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/135.Order of production and examination of witnesses

Part III PRODUCTION AND EFFECT OF EVIDENCE

Chapter X - EXAMINATION OF WITNESSES

135. Order of production and examination of witnesses

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/136.Court to decide as to admissibility of evidence

136. Court to decide as to admissibility of evidence

(1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of the fact and the court is satisfied with the undertaking.

(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.

ILLUSTRATIONS

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. 

The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.

(b) It is proposed to prove by a copy the contents of a document said to be lost. 

The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced.

(c) A is accused of receiving stolen property, knowing it to have been stolen. 

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The court may in its discretion either require the property to be identified before the denial of the possession is proved or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C andD) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The court may either permit A to be proved before B, C or D is proved or may require proof of B,Cand D before permitting proof of A. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/137.Examination-in-chief, cross-examination and re-examination

137. Examination-in-chief, cross-examination and re-examination

(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.

(2) The examination of a witness by the adverse party shall be called his cross-examination.

(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/138.Order of examinations and direction of re-examination

138. Order of examinations and direction of re-examination

(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.

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

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/139.Cross-examination of person called to produce a document

139. Cross-examination of person called to produce a document

A person summoned to produce a document does not become a witness by the mere fact that he produces it, and may not be cross-examined unless and until he is called as a witness.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/140.Witnesses to character

140. Witnesses to character

Witnesses to character may be cross-examined and re-examined.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/141.Leading questions

141. Leading questions

Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/142.When leading questions may not be asked

142. When leading questions may not be asked

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

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

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/143.When leading questions may be asked

143. When leading questions may be asked

(1) Leading questions may be asked in cross-examination, subject to the following qualifications:

(a) the question may not put into the mouth of the witness the very words which he is to echo back again; and

(b) the question may not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact. 

(2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/144.Evidence as to matters in writing

144. Evidence as to matters in writing

Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to the evidence being given until the document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Explanation--A witness may give oral evidence of statements made by other persons about the contents of documents if the statements are in themselves relevant facts.

ILLUSTRATION

The question is whether A assaulted B.

C deposes that he heard A say to D : "B wrote a letter accusing me of theft and I will be revenged on him." The statement is relevant as showing A's motive for the assault and evidence may be given of it though no other evidence is given about the letter.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/145.Cross-examination as to previous statements in writing

145. Cross-examination as to previous statements in writing

(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he made such statement.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/146.Questions lawful in cross-examination

146. Questions lawful in cross-examination

When a witness may be cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend--

(a) to test his accuracy, veracity or credibility;

(b) to discover who he is and what is his position in life; or

(c) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/146A.Restrictions on evidence at trials for rape

146A. Restrictions on evidence at trials for rape

Notwithstanding anything in this Act, in proceedings in respect of the offence of rape, no evidence and no question in cross-examination shall be adduced or asked, by or on behalf of the accused, concerning the sexual activity of the complainant with any person other than the accused unless--

  • (a) it is evidence that rebuts, or a question which tends to rebut, evidence of the complainant's sexual activity or absence thereof that was previously adduced by the prosecution; 

    (b) it is evidence of, or a question on, specific instances of the complainant's sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or 

    (c) it is evidence of, or a question on, sexual activity that took place on the same occasion as the sexual activity that forms the subject matter of the charge, where that evidence or question relates to the consent that the accused alleges he believed was given by the complainant. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/147.When witness to be compelled to answer

147. When witness to be compelled to answer

If any such question relates to a matter relevant to the suit of proceeding, section 132 shall apply thereto.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/148.Court to decide when question shall be asked and when witness compelled to answer

148. Court to decide when question shall be asked and when witness compelled to answer

(1) If any question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it.

(2) In exercising its discretion, the court shall have regard to the following considerations:

(a) the questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(b) the questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he testifies;

(c) the questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence;

(d) the court may, if it sees fit, draw from the witness's refusal to answer, the inference that the answer, if given, would be unfavourable. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/149.Question not to be asked without reasonable grounds

149. Question not to be asked without reasonable grounds

No such question as is referred to in section 148 shall be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.

ILLUSTRATIONS

(a) An advocate is instructed by another advocate or reliable source that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he is a professional gambler.

(b) An advocate is informed by a person in court that an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a professional gambler.

(c) A witness of whom nothing whatever is known is asked at random whether he is a professional gambler. There are here no reasonable grounds for the question.

(d) A witness of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a professional gambler. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/150.Procedure of court in case of question being asked without reasonable grounds

150. Procedure of court in case of question being asked without reasonable grounds

If the court is of opinion that any such question as is referred to in section 148 was asked without reasonable grounds, it may, if it was asked by an advocate, report the circumstances of the case to the High Court or other authority to which the advocate is subject in the exercise of his profession.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/151.Indecent and scandalous questions

151. Indecent and scandalous questions

The court may forbid any questions or inquiries which it regards as indecent or scandalous, although they may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/152.Questions intended to insult or annoy

152. Questions intended to insult or annoy

The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/153.Exclusion of evidence to contradict answers to questions testing veracity

153. Exclusion of evidence to contradict answers to questions testing veracity

When a witness has been asked and has answered any question which is relevant to the inquiry only so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence.

Exception 1--If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2--If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.

ILLUSTRATIONS

(a) A claim against an underwriter is resisted on the ground of fraud. 

The claimant is asked whether in a former transaction he had not made a fraudulent claim. He denies it.

Evidence is offered to show that he did make such a claim.

The evidence is inadmissible.

(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. 

Evidence is offered to show that he was dismissed for dishonesty.

The evidence is not admissible.

(c) A affirms that on a certain day he saw B at Malacca. 

A is asked whether he himself was not on that day at Penang. He denies it.

Evidence is offered to show that A was on that day at Penang.

The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Malacca.

(d) A is tried for a rape on B. B is asked in cross-examination whether she has not had illicit intercourse with C and D. She denies it. Evidence is offered to show that she has had such intercourse with C and D. The evidence is not admissible. 

In each of the cases in illustrations(c)and (d) the witness might, if the denial was false, be charged with giving false evidence.

(e) A is asked whether he has not said that he would be revenged on B, against whom he gives evidence. He denies it 

He may be contradicted on the ground that the question tends to impeach his impartiality.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/154.Question by party to his own witness

154. Question by party to his own witness

The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/155.Impeaching credit of witness

155. Impeaching credit of witness

The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:

(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit;

(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

(d) (Deleted by Act A729). 

Explanation--A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives shall not be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

ILLUSTRATIONS

(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. 

Evidence is offered to show that on a previous occasion he said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted for the murder of B. 

C says that B, when dying, declared that A had given B the wound of which he died.

Evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his presence.

The evidence is admissible.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/156.Questions tending to corroborate evidence of relevant fact admissible

156. Questions tending to corroborate evidence of relevant fact admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which the relevant fact occurred, if the court is of opinion that the circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he testifies.

ILLUSTRATION

A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents, unconnected with the robbery, which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/157.Former statements of witness may be proved to corroborate later testimony as to same fact

157. Former statements of witness may be proved to corroborate later testimony as to same fact

In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/158.What matters may be proved in connection with proved statement relevant under section 32 or 33

158. What matters may be proved in connection with proved statement relevant under section 32 or 33

Whenever any statement relevant under section 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.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/159.Refreshing memory

159. Refreshing memory

(1) A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.

(2) The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct.

(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of that document:

Provided the court is satisfied that there is sufficient reason for the non-production of the original.

(4) An expert may refresh his memory by reference to professional treatises.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/160.Testimony to facts stated in document mentioned in section 159

160. Testimony to facts stated in document mentioned in section 159

A witness may also testify to facts mentioned in any such document as is mentioned in section 159 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

ILLUSTRATION

A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/161.Right of adverse party as to writing used to refresh memory

161. Right of adverse party as to writing used to refresh memory

Any writing referred to under section 159 or 160 must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/162.Production of documents and their translation

162. Production of documents and their translation

(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.

(2) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility.

(3) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence, and if the translator disobeys the direction, he shall be held to have committed an offence under section 166 of the Penal Code.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/163.Giving as evidence of document called for and produced on notice

163. Giving as evidence of document called for and produced on notice

When a party calls for a document which he has given the other party notice to produce, and the document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is relevant.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/164.Using as evidence of document production of which was refused on notice

164. Using as evidence of document production of which was refused on notice

When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party or the order of the court.

ILLUSTRATION

A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He may not do so.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/165.Judge's power to put questions or order production

165. Judge's power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that--

(i) the judgment must be based upon facts declared by this Act to be relevant and duly proved;

(ii) this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which the witness would be entitled to refuse to answer or produce under sections 121 to 131 if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with the primary evidence of any document, except in the cases hereinbefore excepted. 

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/166.Power of jury or assessors to put questions

166. Power of jury or assessors to put questions

In cases tried by jury or with assessors the jury or assessors may put any questions to the witnesses through or by leave of the Judge, which the Judge himself might put and which he considers proper.

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56,,/167.No new trial for improper admission or rejection of evidence

Part III PRODUCTION AND EFFECT OF EVIDENCE

Chapter XI - IMPROPER ADMISSION AND REJECTION OF EVIDENCE

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

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

Unannotated Statutes of Malaysia - Principal Acts/EVIDENCE ACT 1950 Act 56/EVIDENCE ACT 1950 ACT 56/LIST OF AMENDMENTS