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LAWS OF MALAYSIA
REPRINT
Act 56
EVIDENCE ACT 1950
Incorporating all amendments up to 1 January 2006
PUBLISHED BY
THE COMMISSIONER OF LAW REVISION, MALAYSIA
UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968
IN COLLABORATION WITH MALAYAN LAW JOURNAL SDN BHD AND
PERCETAKAN NASIONAL MALAYSIA BHD
2006
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EVIDENCE ACT 1950
First enacted ...
...
...
...
...
... 1950 (Ordinance
No. 11 of 1950)
Revised
...
...
...
...
...
... 1971 (Act 56 w.e.f.
1 November 1971)
PREVIOUS REPRINTS
First Reprint ...
...
...
...
...
1983
Second Reprint
...
...
...
...
1993
Third Reprint ...
...
...
...
...
1999
PREPARED FOR PUBLICATION BY
MALAYAN LAW JOURNAL SDN BHD
AND PRINTED BY
PERCETAKAN NASIONAL MALAYSIA BERHAD
KUALA LUMPUR BRANCH
2006
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Evidence
3
LAWS OF MALAYSIA
Act 56
EVIDENCE ACT 1950
ARRANGEMENT OF SECTIONS
PART I
RELEVANCY
CHAPTER I
PRELIMINARY
Section
1.
Short title
2.
Extent
3.
Interpretation
4.
Presumption
CHAPTER II
RELEVANCY OF FACTS
General
5.
Evidence may be given of facts in issue and relevant facts
6.
Relevancy of facts forming part of same transaction
7.
Facts which are the occasion, cause or effect of facts in issue
8.
Motive, preparation and previous or subsequent conduct
9.
Facts necessary to explain or introduce relevant facts
10.
Things said or done by conspirator in reference to common design
11.
When facts not otherwise relevant become relevant
12.
In suits for damages facts tending to enable court to determine amount are
relevant
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Section
13.
Facts relevant when right or custom is in question
14.
Facts showing existence of state of mind or of body or bodily feeling
15.
Facts bearing on question whether act was accidental or intentional
16.
Existence of course of business when relevant
Admissions and Confessions
17.
Admission and confession defined
18.
Admission by party to proceeding, his agent or person interested
19.
Admissions by persons whose position must be proved as against party to
suit
20.
Admissions by persons expressly referred to by party to suit
21.
Proof of admissions against persons making them and by or on their behalf
22.
When oral admissions as to contents of documents are relevant
23.
Admissions in civil cases when relevant
24.
Confession caused by inducement, threat or promise when irrelevant in
criminal proceeding
25.
Confession to police officer below the rank of Inspector not to be proved
26.
Confession by accused while in custody of police not to be proved against
him
27.
How much of information received from accused may be proved
28.
Confession made after removal of impression caused by inducement,
threat or promise relevant
29.
Confession otherwise relevant not to become irrelevant because of
promise of secrecy, etc.
30.
Consideration of proved confession affecting person making it and others
jointly under trial for same offence
31.
Admissions not conclusive proof but may estop
31A.
(Deleted)
Statements by Persons who cannot be called as Witnesses
32.
Cases in which statement of relevant fact by person who is dead or cannot
be found, etc., is relevant
33.
Relevancy of certain evidence for proving in subsequent proceeding the
truth of facts therein stated
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Evidence
5
Statements made under Special Circumstances
Section
34.
Entries in books of account when relevant
35.
Relevancy of entry in public record made in performance of duty
36.
Relevancy of statements in maps, charts and plans
37.
Relevancy of statement as to fact of public nature contained in certain
legislation or notifications
38.
Relevancy of statements as to any law contained in law books
How much of a Statement to be proved
39.
What evidence to be given when statement forms part of a conversation,
document, book or series of letters or papers
Judgments of Courts when relevant
40.
Previous judgments relevant to bar a second suit or trial
41.
Relevancy of certain judgments in probate, etc., jurisdiction
42.
Relevancy and effect of judgments, orders or decrees other than those
mentioned in section 41
43.
Judgments, etc., other than those mentioned in sections 40 to 42 when
relevant
44.
Fraud or collusion in obtaining judgment or incompetency of court may be
proved
Opinions of Third Persons when relevant
45.
Opinions of experts
46.
Facts bearing upon opinions of experts
47.
Opinion as to handwriting when relevant
48.
Opinion as to existence of right or custom when relevant
49.
Opinion as to usages, tenets, etc., when relevant
50.
Opinion on relationship when relevant
51.
Grounds of opinion when relevant
Character when relevant
52.
In civil cases character to prove conduct imputed irrelevant
53.
In criminal cases previous good character relevant
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ACT 56
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54.
Previous bad character not relevant except in reply
55.
Character as affecting damages
PART II
PROOF
CHAPTER III
FACTS WHICH NEED NOT BE PROVED
56.
Fact judicially noticeable need not be proved
57.
Facts of which court must take judicial notice
58.
Facts admitted need not be proved
CHAPTER IV
ORAL EVIDENCE
59.
Proof of facts by oral evidence
60.
Oral evidence must be direct
CHAPTER V
DOCUMENTARY EVIDENCE
61.
Proof of contents of documents
62.
Primary evidence
63.
Secondary evidence
64.
Proof of documents by primary evidence
65.
Cases in which secondary evidence relating to documents may be given
66.
Rules as to notice to produce
67.
Proof of signature and handwriting of person alleged to have signed or
written document produced
68.
Proof of execution of document required by law to be attested
69.
Proof where no attesting witness found
70.
Admission of execution by party to attested document
71.
Proof when attesting witness denies the execution
72.
Proof of document not required by law to be attested
73.
Comparison of signature, writing or seal with others admitted or proved
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Evidence
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Section
73A.
Admissibility of documentary evidence in civil cases, etc.
Public Documents
74.
Public documents
75.
Private documents
76.
Certified copies of public documents
77.
Proof of documents by production of certified copies
78.
Proof of certain official documents
78A.
Proof of public documents produced by computers
Presumptions as to Documents
79.
Presumption as to genuineness of certified copies
80.
Presumption as to documents produced as record of evidence
81.
Presumption as to Gazettes, newspapers, etc.
82.
Presumption as to document admissible in England without proof of seal
or signature
83.
Presumption as to maps or plans made by authority of Government
84.
Presumption as to collections of laws and reports of decisions
85.
Presumption as to powers of attorney
86.
Presumption as to certified copies of foreign judicial records
87.
Presumption as to books, maps and charts
88.
Presumption as to telegraphic messages
89.
Presumption as to due execution, etc., of documents not produced
90.
Presumption as to documents twenty years old
Documents Produced by a Computer
90A.
Admissibility of documents produced by computers, and of statements
contained therein
90B.
Weight to be attached to document, or statement contained in document,
admitted by virtue of section 90A
90C.
Sections 90A and 90B to prevail over other provisions of this Act, the
Bankers' Books (Evidence) Act 1949, and any written law
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ACT 56
CHAPTER VI
EXCLUSION OF ORAL BY
DOCUMENTARY EVIDENCE
Section
91.
Evidence of terms of contracts, grants and other dispositions of property
reduced to form of document
92.
Exclusion of evidence of oral agreement
93.
Exclusion of evidence to explain or amend ambiguous document
94.
Exclusion of evidence against application of document to existing facts
95.
Evidence as to document unmeaning in reference to existing facts
96.
Evidence as to application of language which can apply to one only of
several persons
97.
Evidence as to application of language to one of two sets of facts to neither
of which the whole correctly applies
98.
Evidence as to meaning of illegible characters, etc.
99.
Who may give evidence of agreement varying terms of documents
100.
Construction of wills
PART III
PRODUCTION AND EFFECT OF EVIDENCE
CHAPTER VII
BURDEN OF PROOF
101.
Burden of proof
102.
On whom burden of proof lies
103.
Burden of proof as to particular fact
104.
Burden of proving fact to be proved to make evidence admissible
105.
Burden of proving that case of accused comes within exceptions
106.
Burden of proving fact especially within knowledge
107.
Burden of proving death of person known to have been alive within thirty
years
108.
Burden of proving that person is alive who has not been heard of for seven
years
109.
Burden of proof as to relationship in the cases of partners, landlord and
tenant, principal and agent
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Evidence
9
Section
110.
Burden of proof as to ownership
111.
Proof of good faith in transactions where one party is in relation of active
confidence
112.
Birth during marriage conclusive proof of legitimacy
113.
Presumption that boy under thirteen cannot commit rape
114.
Court may presume existence of certain fact
CHAPTER VIII
ESTOPPEL
115.
Estoppel
116.
Estoppel of tenant and of licensee of person in possession
117.
Estoppel of acceptor of bill of exchange, bailee or licensee
CHAPTER IX
WITNESSES
118.
Who may testify
119.
Dumb witnesses
120.
Parties to civil suits and wives and husbands
121.
Judges, Sessions Court Judges and Magistrates
122.
Communications during marriage
123.
Evidence as to affairs of State
124.
Official communications
125.
Information as to commission of offences
126.
Professional communications
127.
Section 126 to apply to interpreters, etc.
128.
Privilege not waived by volunteering evidence
129.
Confidential communications with legal advisers
130.
Production of title deeds of witness not a party
131.
Production of documents which another person having possession could
refuse to produce
132.
Witness not excused from answering on ground that answer will criminate
133.
Accomplice
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Section
133A.
Evidence of child of tender years.
134.
Number of witnesses
CHAPTER X
EXAMINATION OF WITNESSES
135.
Order of production and examination of witnesses
136.
Court to decide as to admissibility of evidence
137.
Examination-in-chief, cross-examination and re-examination
138.
Order of examinations and direction of re-examination
139.
Cross-examination of person called to produce a document
140.
Witnesses to character
141.
Leading questions
142.
When leading questions may not be asked
143.
When leading questions may be asked
144.
Evidence as to matters in writing
145.
Cross-examination as to previous statements in writing
146.
Questions lawful in cross-examination
146A.
Restrictions on evidence at trials for rape
147.
When witness to be compelled to answer
148.
Court to decide when question shall be asked and when witness compelled
to answer
149.
Question not to be asked without reasonable grounds
150.
Procedure of court in case of question being asked without reasonable
grounds
151.
Indecent and scandalous questions
152.
Questions intended to insult or annoy
153.
Exclusion of evidence to contradict answers to questions testing veracity
154.
Question by party to his own witness
155.
Impeaching credit of witness
156.
Questions tending to corroborate evidence of relevant fact admissible
157.
Former statements of witness may be proved to corroborate later
testimony as to same fact
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Evidence
11
Section
158.
What matters may be proved in connection with proved statement relevant
under section 32 or 33
159.
Refreshing memory
160.
Testimony to facts stated in document mentioned in section 159
161.
Right of adverse party as to writing used to refresh memory
162.
Production of documents and their translation
163.
Giving as evidence of document called for and produced on notice
164.
Using as evidence of document production of which was refused on notice
165.
Judge's power to put questions or order production
166.
Power of jury or assessors to put questions
CHAPTER XI
IMPROPER ADMISSION AND REJECTION
OF EVIDENCE
167.
No new trial for improper admission or rejection of evidence
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13
LAWS OF MALAYSIA
Act 56
EVIDENCE ACT 1950
An Act to define the law of evidence.
[Peninsular Malaysia--23 May 1950,
Ord. No. 11 of 1950;
Sabah and Sarawak--1 November 1971,
P.U.(A) 261/1971]
PART I
RELEVANCY
CHAPTER I
PRELIMINARY
Short title
1.
This Act may be cited as the Evidence Act 1950.
Extent
2. This Act shall apply to all judicial proceedings in or before
any court, but not to affidavits presented to any court or officer
nor to proceedings before an arbitrator.
Interpretation
3.
In this Act, unless the context otherwise requires--
"computer" means any device for recording, storing,
processing, retrieving or producing any information or other
matter, or for performing any one or more of those functions, by
whatever name or description such device is called; and where two
or more computers carry out any one or more of those functions in
combination or in succession or otherwise howsoever conjointly,
they shall be treated as a single computer;
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"court" means a court established by or under Part IX of the
Federal Constitution and includes--
(a)
a Judge;
(b)
a Sessions Court Judge;
(c)
a Magistrate; and
(d)
except an arbitrator, every person legally authorized
to take evidence;
"document" means any matter expressed, described, or
howsoever represented, upon any substance, material, thing or
article, including any matter embodied in a disc, tape, film, sound
track or other device whatsoever, by means of--
(a)
letters, figures, marks, symbols, signals, signs, or
other forms of expression, description, or
representation whatsoever;
(b)
any visual recording (whether of still or moving
images);
(c)
any sound recording, or any electronic, magnetic,
mechanical or other recording whatsoever and
howsoever made, or any sounds, electronic impulses,
or other data whatsoever;
(d)
a recording, or transmission, over a distance of any
matter by any, or any combination, of the means
mentioned in paragraph (a), (b) or (c),
or by more than one of the means mentioned in paragraphs (a), (b),
(c) and (d), intended to be used or which may be used for the
purpose of expressing, describing, or howsoever representing, that
matter;
ILLUSTRATIONS
A writing is a document.
Words printed, lithographed or photographed are documents.
A map, plan, graph or sketch is a document.
An inscription on wood, metal, stone or any other substance, material or thing
is a document.
A drawing, painting, picture or caricature is a document.
A photograph or a negative is a document.
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A tape recording of a telephonic communication, including a recording of such
communication transmitted over distance, is a document.
A photographic or other visual recording, including a recording of a
photographic or other visual transmission over a distance, is a document.
A matter recorded, stored, processed, retrieved or produced by a computer is a
document;
"evidence" includes--
(a)
all statements which the court permits or requires to be
made before it by witnesses in relation to matters of
fact under inquiry: such statements are called oral
evidence;
(b)
all documents produced for the inspection of the court:
such documents are called documentary evidence;
"fact" means and includes--
(a)
any thing, state of things or relation of things capable
of being perceived by the senses;
(b)
any mental condition of which any person is
conscious;
ILLUSTRATIONS
(a) That there are certain objects arranged in a certain order in a certain place
is a fact.
(b) That a man heard or saw something is a fact.
(c)
That a man said certain words is a fact.
(d) That a man holds a certain opinion, has a certain intention, acts in good
faith or fraudulently, or uses a particular word in a particular sense, or is or was
at a specified time conscious of a particular sensation, is a fact.
(e)
That a man has a certain reputation is a fact;
"fact in issue" means any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature
or extent of any right, liability or disability asserted or denied in
any suit or proceeding necessarily follows;
ILLUSTRATIONS
A is accused of the murder of B.
At his trial the following facts may be in issue:
that A caused B's death;
that A intended to cause B's death;
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that A had received grave and sudden provocation from B;
that A at the time of doing the act which caused B's death was by reason
of unsoundness of mind incapable of knowing its nature;
"film" includes a microfilm and any negative;
"microfilm" means any transparent material bearing a visual
image in reduced size either singly or as a series and includes a
microfiche;
"negative" means a transparent negative photograph on any
substance or material, and includes any transparent negative
photograph made from the original negative photograph;
"proved": a fact is said to be "proved" when, after considering
the matters before it, the court either believes it to exist or
considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists;
"disproved": a fact is said to be "disproved" when, after
considering the matters before it, the court either believes that it
does not exist or considers its non-existence so probable that a
prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it does not exist;
"not proved": a fact is said to be "not proved" when it is neither
proved nor disproved;
"relevant": one fact is said to be relevant to another when the
one is connected with the other in any of the ways referred to in
the provisions of this Act relating to the relevancy of facts.
Presumption
4. (1) Whenever it is provided by this Act that the court may
presume a fact, it may either regard the fact as proved unless and
until it is disproved, or may call for proof of it.
(2) Whenever it is directed by this Act that the court shall
presume a fact, it shall regard the fact as proved unless and until
it is disproved.
(3) When one fact is declared by this Act to be conclusive
proof of another, the court shall, on proof of the one fact, regard
the other as proved, and shall not allow evidence to be given for
the purpose of disproving it.
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Evidence
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CHAPTER II
RELEVANCY OF FACTS
General
Evidence may be given of facts in issue and relevant facts
5. Evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and of such other
facts as are hereinafter declared to be relevant, and of no others.
Explanation--This section shall not enable any person to give evidence of a
fact which he is disentitled to prove by the law relating to civil procedure.
ILLUSTRATIONS
(a) A is tried for the murder of B by beating him with a club with the intention
of causing his death.
At A's trial the following facts are in issue:
A's beating B with the club;
A's causing B's death by the beating; and
A's intention to cause B's death.
(b) A a party to a suit does not comply with a notice given by B the other
partly to produce for B's inspection a document referred to in A's pleadings. This
section does not enable A to put the document in evidence on his behalf in that
suit, otherwise than in accordance with the conditions prescribed by the law
relating to civil procedure.
Relevancy of facts forming part of same transaction
6. Facts which, though not in issue, are so connected with a fact
in issue as to form part of the same transaction are relevant,
whether they occurred at the same time and place or at different
times and places.
ILLUSTRATIONS
(a) A is accused of the murder of B by beating him. Whatever was said or
done by A or B or the bystanders at the beating or so shortly before or after it as
to form part of the transaction is a relevant fact.
(b) A is accused of waging war against the Yang di-Pertuan Agong by taking
part in an armed insurrection in which property is destroyed, troops are attacked
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and gaols are broken open. The occurrence of these facts is relevant as forming
part of the general transaction, though A may not have been present at all of
them.
(c) A sues B for a libel contained in a letter forming part of a correspondence.
Letters between the parties relating to the subject out of which the libel arose and
forming part of the correspondence in which it is contained are relevant facts
though they do not contain the libel itself.
(d) The question is whether certain goods ordered from B were delivered to
A. The goods were delivered to several intermediate persons successively. Each
delivery is a relevant fact.
Facts which are the occasion, cause or effect of facts in issue
7. Facts which are the occasion, cause or effect, immediate or
otherwise, of relevant facts or facts in issue, or which constitute
the state of things under which they happened or which afforded
an opportunity of their occurrence or transaction, are relevant.
ILLUSTRATIONS
(a) The question is whether A robbed B.
The facts that shortly before the robbery B went to a fair with money in his
possession and that he showed or mentioned the fact that he had it to third
persons are relevant.
(b) The question is whether A murdered B.
Marks on the ground produced by a struggle at or near the place where the
murder was committed are relevant facts.
(c)
The question is whether A poisoned B.
The state of B's health before the symptoms ascribed to poison and habits of
B, known to A, which afforded an opportunity for the administration of poison,
are relevant facts.
Motive, preparation and previous or subsequent conduct
8. (1) Any fact is relevant which shows or constitutes a motive
or preparation for any fact in issue or relevant fact.
(2) The conduct of any party, or of any agent to any party, to
any suit or proceeding in reference to that suit or proceeding, or
in reference to any fact in issue therein or relevant thereto, and
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Evidence
19
the conduct of any person an offence against whom is the subject
o f any proceeding, is relevant if the conduct influences or is
influenced by any fact in issue or relevant fact, and whether it
was previous or subsequent thereto.
Explanation 1--The word "conduct" in this section does not include
statements unless those statements accompany and explain acts other than
statements; but this explanation is not to affect the relevancy of statements under
any other section of this Act.
Explanation 2--When the conduct of any person is relevant any statement
made to him or in his presence and hearing which affects his conduct is relevant.
ILLUSTRATIONS
(a) A is tried for the murder of B.
The facts that A murdered C, that B knew that A had murdered C and that B had
tried to extort money from A by threatening to make his knowledge public are
relevant.
(b) A sues B upon a bond for the payment of money. B denies the making of
the bond.
The fact that at the time when the bond was alleged to be made B required
money for a particular purpose is relevant.
(c)
A is tried for the murder of B by poison.
The fact that before the death of B, A procured poison similar to that which was
administered to B is relevant.
(d) The question is whether a certain document is the will of A.
The facts that not long before the date of the alleged will A made inquiry into
matters to which the provisions of the alleged will relate, that he consulted
lawyers in reference to making the will, and that he caused drafts of other wills
to be prepared of which he did not approve are relevant.
(e)
A is accused of a crime.
The facts that either before or at the time of or after the alleged crime A
provided evidence which would tend to give to the facts of the case an
appearance favourable to himself, or that he destroyed or concealed evidence or
prevented the presence or procured the absence of persons who might have been
witnesses or suborned persons to give false evidence respecting it are relevant.
(f)
The question is whether A robbed B.
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The facts that after B was robbed, C said in A's presence: "The police are
coming to look for the man who robbed B" and that immediately afterwards A
ran away are relevant.
(g) The question is whether A owes B RM10,000.
The facts that A asked C to lend him money, and that D said to C in A's
presence and hearing: : "I advise you not to trust A for he owes B RM10,000,"
and that A went away without making any answer are relevant facts.
(h) The question is whether A committed a crime.
The fact that A absconded after receiving a letter warning him that inquiry was
being made for the criminal and the contents of the letter are relevant.
(i)
A is accused of a crime.
The facts that after the commission of the alleged crime he absconded, or was
in possession of property or the proceeds of property acquired by the crime, or
attempted to conceal things which were or might have been used in committing
it are relevant.
(j)
The question is whether A was ravished.
The facts that shortly after the alleged rape she made a complaint relating to
the crime, the circumstances under which and the terms in which the complaint
was made are relevant.
The fact that without making a complaint she said that she had been ravished
is not relevant as conduct under this section, though it may be relevant--
(i) as a dying declaration under section 32(1)(a); or
(ii) as corroborative evidence under section 157.
(k)
The question is whether A was robbed.
The fact that soon after the alleged robbery he made a complaint relating to the
offence, the circumstances under which and the terms in which the complaint
was made are relevant.
The fact that he said he had been robbed without making any complaint is not
relevant as conduct under this section, though it may be relevant--
(i) as a dying declaration under section 32(1)(a); or
(ii) as corroborative evidence under section 157.
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Evidence
21
Facts necessary to explain or introduce relevant facts
9. Facts necessary to explain or introduce a fact in issue or
relevant fact, or which support or rebut an inference suggested by
a fact in issue or relevant fact, or which establish the identity of
any thing or person whose identity is relevant, or fix the time or
place at which any fact in issue or relevant fact happened or which
show the relation of parties by whom any such fact was transacted,
are relevant so far as they are necessary for that purpose.
ILLUSTRATIONS
(a)
The question is whether a given document is the will of A.
The state of A's property and of his family at the date of the alleged will may
be relevant facts.
(b) A sues B for a libel imputing disgraceful conduct to A; B affirms that the
matter alleged to be libellous is true.
The position and relations of the parties at the time when the libel was
published may be relevant facts as intoductory to the facts in issue.
The particulars of a dispute between A and B about a matter unconnected with
the alleged libel are irrelevant, though the fact that there was a dispute may be
relevant if it affected the relations between A and B.
(c)
A is accused of a crime.
The fact that soon after the commission of the crime A absconded from his
house is relevant under section 8 as conduct subsequent to and affected by facts
in issue.
The fact that at the time when he left home he had sudden and urgent business
at the place to which he went is relevant as tending to explain the fact that he left
home suddenly.
The details of the business on which he left are not relevant, except in so far as
they are necessary to show that the business was sudden and urgent.
(d) A sues B for inducing C to break a contract of service made by him with
A. C on leaving A's service says to A: "I am leaving you because B has made me
a better offer." This statement is a relevant fact as explanatory of C's conduct,
which is relevant as a fact in issue.
(e) A accused of theft is seen to give the stolen property to B, who is seen to
give it to A's wife. B says as he delivers it: "A says you are to hide this." B's
statement is relevant as explanatory of a fact which is part of the transaction.
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(f) A is tried for a riot and is proved to have marched at the head of a mob.
The cries of the mob are relevant as explanatory of the nature of the transaction.
Things said or done by conspirator in reference to common
design
10. Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of
those persons, in reference to their common intention after the
time when the intention was first entertained by any one of them,
is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was
a party to it.
ILLUSTRATIONS
Reasonable ground exists for believing that A has joined in a conspiracy to
wage war against the Yang di-Pertuan Agong.
The facts that B procured arms in Europe for the purpose of the conspiracy, C
collected money in Malacca for a like object, D persuaded persons to join the
conspiracy in Province Wellesley, E published writings advocating the object in
view at Singapore, and F transmitted from Singapore to G at Djakarta the money
which C had collected at Malacca, and the contents of a letter written by H giving
an account of the conspiracy are each relevant, both to prove the existence of the
conspiracy and to prove A's complicity in it, although he may have been ignorant
of all of them, and although the persons by whom they were done were strangers
to him, and although they may have taken place before he joined the conspiracy
or after he left it.
When facts not otherwise relevant become relevant
11. Facts not otherwise relevant are relevant--
(a)
if they are inconsistent with any fact in issue or
relevant fact;
(b)
if by themselves or in connection with other facts they
make the existence or non-existence of any fact in
issue or relevant fact highly probable or improbable.
ILLUSTRATIONS
(a) The question is whether A committed a crime at Kuala Lumpur on a
certain day.
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23
The fact that on that day A was at Taiping is relevant.
The fact that near the time when the crime was committed A was at a distance
from the place where it was committed, which would render it highly
improbable, though not impossible, that he committed it is relevant.
(b) The question is whether A committed a crime.
The circumstances are such that the crime must have been committed either by
A, B, C or D. Every fact which shows that the crime could have been committed
by no one else and that it was not committed by either B, C or D is relevant.
In suits for damages facts tending to enable court to determine
amount are relevant
12. In suits in which damages are claimed any fact which will
enable the court to determine the amount of damages which ought
to be awarded is relevant.
Facts relevant when right or custom is in question
13. Where the question is as to the existence of any right or
custom the following facts are relevant:
(a)
any transaction by which the right or custom in
question was created, claimed, modified, recognized,
asserted or denied or which was inconsistent with its
existence;
(b)
particular instances in which the right or custom was
claimed, recognized or exercised or in which its
exercise was disputed, asserted or departed from.
ILLUSTRATIONS
The question is whether A has a right to a fishery. A document conferring the
fishery on A's ancestors, a pledge of the fishery by A's father, a subsequent grant
of the fishery by A's father irreconcilable with the pledge, particular instances in
which A's father exercised the right, or in which the exercise of the right was
stopped by A's neighbours, are relevant facts.
Facts showing existence of state of mind or of body or bodily
feeling
14. Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or
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goodwill towards any particular person, or showing the existence
of any state of body or bodily feeling, are relevant when the
existence of any such state of mind or body or bodily feeling is in
issue or relevant.
Explanation 1--A fact relevant as showing the existence of a relevant state of
mind must show that the state of mind exists not generally but in reference to the
particular matter in question.
Explanation 2--But where upon the trial of a person accused of an offence the
previous commission by the accused of an offence is relevant within the meaning
of this section, the previous conviction of that person shall also be relevant fact.
ILLUSTRATIONS
(a) A is accused of receiving stolen goods, knowing them to be stolen. It is
proved that he was in possession of a particular stolen article.
The fact that at the same time he was in possession of many other stolen articles
is relevant as tending to show that he knew each and all of the articles of which
he was in possession to be stolen.
(b) A is accused of fraudulently delivering to another person a counterfeit
coin, which at the time when he delivered it he knew to be counterfeit.
The fact that at the time of its delivery A was possessed of a number of other
pieces of counterfeit coin is relevant.
The fact that A had been previously convicted of delivering to another person
as genuine a counterfeit coin, knowing it to be counterfeit, is relevant.
(c)
A sues B for damage done by a dog of B's which B knew to be ferocious.
The facts that the dog had previously bitten X, Yand Z, and that they had made
complaints to B, are relevant.
(d) The question is whether A, the acceptor of a bill of exchange, knew that
the name of the payee was fictitious.
The fact that A had accepted other bills drawn in the same manner before they
could have been transmitted to him by the payee, if the payee had been a real
person, is relevant, as showing that A knew that the payee was a fictitious person.
(e) A is accused of defaming B by publishing an imputation intended to harm
the reputation of B.
The fact of previous publications by A respecting B, showing ill will on the part
of A towards B, is relevant, as proving A's intention to harm B's reputation by
the particular publication in question.
The facts that there was no previous quarrel between A and B, and that A
repeated the matter complained of as he heard it, are relevant as showing that A
did not intend to harm the reputation of B.
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(f) A is sued by B for fraudulently representing to B that C was solvent,
whereby B, being induced to trust C who was insolvent, suffered loss.
The fact that at the time when A represented C to be solvent C was supposed
to be solvent by his neighbours, and by persons dealing with him, is relevant, as
showing that A made the representation in good faith.
(g) A is sued by B for the price of work done by B upon a house of which A
is owner by the order of C, a contractor.
A's defence is that B's contract was with C.
The fact that A paid C for the work in question is relevant as proving that A did
in good faith make over to C the management of the work in question, so that C
was in a position to contract with B on C's own account and not as agent for A.
(h) A is accused of the dishonest misappropriation of property which he had
found, and the question is whether, when he appropriated it, he believed in good
faith that the real owner could not be found.
The fact that public notice of the loss of the property had been given in the
place where A was is relevant as showing that A did not in good faith believe that
the real owner of the property could not be found.
The fact that A knew or had reason to believe that the notice was given
fraudulently by C, who had heard of the loss of the property and wished to set up
a false claim to it, is relevant as showing that the fact that A knew of the notice
did not disprove A's good faith.
(i)
A is charged with shooting at B with intent to kill him.
In order to show A's intent, the fact of A's having previously shot at B maybe
proved
(j)
A is charged with sending threatening letters to B.
Threatening letters previously sent by A to B may be proved as showing the
intention of the letters.
(k)
The question is whether A has been guilty of cruelty towards B, his wife.
Expression of their feelings towards each other shortly before or after the
alleged cruelty are relevant facts.
(l)
The question is whether A's death was caused by poison.
Statements made by A during his illness as to his symptoms are relevant facts.
(m) The question is, what was the state of A's health at the time when an
assurance on his life was effected?
Statements made by A as to the state of his health at or near the time in question
are relevant facts.
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(n) A sues B for negligence in providing him with a carriage for hire not
reasonably fit for use whereby A was injured.
The fact that B's attention was drawn on other occasions to the defect of that
particular carriage is relevant.
The fact that B was habitually negligent about the carriages which he let to hire
is relevant.
(o) A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasions shot at B is relevant as showing his intention
to shoot B.
The fact that A was in the habit of shooting at people with intent to murder
them is irrelevant.
(p) A is tried for a crime.
The fact that he said something indicating an intention to commit that
particular crime is relevant.
The fact that he said something indicating a general disposition to commit
crimes of that class is irrelevant.
Facts bearing on question whether act was accidental or
intentional
15. When there is a question whether an act was accidental or
intentional or done with a particular knowledge or intention, the
fact that the act formed part of series of similar occurrences, in
each of which the person doing the act was concerned, is relevant.
ILLUSTRATIONS
(a) A is accused of burning down his house in order to obtain money for
which it is insured.
The facts that A lived in several houses successively, each of which he insured,
in each of which a fire occured, and after each of which fires A received payment
from a different insurance office, are relevant as tending to show that the fire was
not accidental.
(b) A is employed to receive money from the debtors of B. It is A's duty to
make entries in a book showing the amounts received by him. He makes an entry
showing that on a particular occasion he received less than he really did receive.
The question is whether this false entry was accidental or intentional.
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27
The facts that other enteries made by A in the same book are false, and that the
false entry is in each case in favour of A are relevant.
(c)
A is accused of fraudulently delivering to B a counterfeit ringgit.
The question is whether the delivery of the ringgit was accidental.
The facts that soon before or soon after the delivery to B, A delivered counterfeit
ringgit to C, D and E are relevant as showing that the delivery to B was not
accidental.
Existence of course of business when relevant
16. When there is a question whether a particular act was done,
the existence of any course of business, according to which it
naturally would have been done, is a relevant fact.
ILLUSTRATIONS
(a) The question is whether a particular letter was despatched.
The facts that it was the ordinary course of business for all letters put in a
certain place to be carried to the post, and that particular letter was put in that
place, are relevant.
(b) The question is whether a particular letter reached A.
The facts that it was posted in due course and was not returned through the
Dead Letter Office are relevant.
Admissions and Confessions
Admission and confession defined
17. (1) An admission is a statement, oral or documentary, which
suggests any inference as to any fact in issue or relevant fact, and
which is made by any of the persons and under the circumstances
hereinafter mentioned.
(2) A confession is an admission made at any time by a person
accused of an offence, stating or suggesting the inference that he
committed that offence.
(3) Subsection (2) shall have no application in Sarawak.
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Admission by party to proceeding, his agent or person
interested
18. (1) Statements made by a party to the proceeding or by an
agent to any such party whom the court regards under the
circumstances of the case as expressly or impliedly authorized by
him to make them are admissions.
(2) Statements made by parties to suits, suing or sued in a
r e p r e se n t a t i v e character, are not admissions unless they were
made while the party making them held that character.
(3) Statements made by--
(a) persons who have any proprietary or pecuniary interest
in the subject matter of the proceeding, and who make
the statement in their character of persons so interested;
or
(b) persons from whom the parties to the suit have derived
their interest in the subject matter of the suit,
are admissions if they are made during the continuance of the
interest of the persons making the statements.
Admissions by persons whose position must be proved as
against party to suit
19. Statements made by persons whose position or liability it is
necessary to prove as against any party to the suit are admissions
if the statements would be relevant as against those persons in
relation to the position or liability in a suit brought by or against
them, and if they are made whilst the person making them
occupies that position or is subject to that liability.
ILLUSTRATIONS
A undertakes to collect rents for B.
B sues A for not collecting rent due from C to B.
A denies that rent was due from C to B.
A statement by C that he owned B rent is an admission and is a relevant fact,
as against A if A denies that C did owe rent to B.
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Admissions by persons expressly referred to by party to suit
20. Statements made by persons to whom a party to the suit has
expressly referred for information in reference to a matter in
dispute are admissions.
ILLUSTRATIONS
The question is whether a horse sold by A to B is sound.
A says to B: "Go and ask C; C knows all about it." C's statement is an admission.
Proof of admissions against persons making them and by or on
their behalf
21. Admissions are relevant and may be proved as against the
person who makes them or his representative in interest; but they
cannot be proved by or on behalf of the person who makes them
or by his representative in interest except in the following cases:
(a)
an admission may be proved by or on behalf of the
person making it when it is of a nature that, if the
person making it were dead, it would be relevant as
between third persons under section 32;
(b)
an admission may be proved by or on behalf of the
person making it when it consists of a statement of the
existence of any state of mind or body relevant or in
issue, made at or about the time when that state of
mind or body existed and is accompanied by conduct
rendering its falsehood improbable;
(c)
an admission may be proved by or on behalf of the
person making it if it is relevant otherwise than as an
admission.
ILLUSTRATIONS
(a) The question between A and B is whether a certain document is or is not
forged. A affirms that it is genuine; B that it is forged.
A may prove a statement by B that the document is genuine, and B may prove
a statement by A that the document is forged; but A cannot prove a statement by
himself that the document is genuine, nor can B prove a statement by himself that
the document is forged.
(b) A, the captain of a ship, is tried for casting her away.
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Evidence is given to show that the ship was taken out of her proper course.
A produces a book kept by him in the ordinary course of his business, showing
observations alleged to have been taken by him from day to day, and indicating
that the ship was not taken out of her proper course. A may prove these
statements because they would be admissible between third parties if he were
dead under paragraph 32(1)(b).
(c) A is accused of a crime committed by him at Kuala Lumpur. He produces
a letter written by himself and dated at Penang on that day, and bearing the
Penang postmark of that day.
The statement in the date of the letter is admissible, because if A were dead it
would be admissible under paragraph 32(1)(b).
(d) A is accused of receiving stolen goods, knowing them to be stolen.
He offers to prove that he refused to sell them below their value.
A may prove these statements though they are admissions, because they are
explanatory of conduct influenced by facts in issue.
(e) A is accused of fraudulently having in his possession counterfeit coin
which he knew to be counterfeit.
He offers to prove that he asked a skilful person to examine the coin as he
doubted whether it was counterfeit or not, and that that person did examine it and
told him it was genuine.
A may prove these facts for the reasons stated in illustration (d).
When oral admissions as to contents of documents are relevant
22. Oral admissions as to the contents of a document are not
relevant unless and until the party proposing to prove them shows
that he is entitled to give secondary evidence of the contents of the
document under the rules hereinafter contained, or unless the
genuineness of a document produced is in question.
Admissions in civil cases when relevant
23. In civil cases no admission is relevant if it is made either
upon an express condition that evidence of it is not to be given, or
under circumstances from which the court can infer that the
parties agreed together that evidence of it should not be given.
Explanation--Nothing in this section shall be taken to exempt any advocate
from giving evidence of any matter of which he may be compelled to give