Fact judicially noticeable need not be proved
s 56
No fact of which the court will take judicial notice need be proved.
Evidence Act 1950 Part II — Proof
CHAPTER III — FACTS WHICH NEED NOT BE PROVED
Facts of which court must take judicial notice
s 57
(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.
Facts admitted need not be proved
s 58
(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.
CHAPTER IV — ORAL EVIDENCE
Proof of facts by oral evidence
s 59
All facts, except the contents of documents, may be proved by oral evidence.
Oral evidence must be direct
s 60
(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.
CHAPTER V — DOCUMENTARY EVIDENCE
Proof of contents of documents
s 61
The contents of documents may be proved either by primary or by secondary evidence.
Primary evidence
s 62
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.
Secondary evidence
s 63
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.
Proof of documents by primary evidence
s 64
Documents must be proved by primary evidence except in the cases hereinafter mentioned.
Cases in which secondary evidence relating to documents may be given
s 65
(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.
Rules as to notice to produce
s 66
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.
Proof of signature and handwriting of person alleged to have signed or written document produced
s 67
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.
Proof of execution of document required by law to be attested
s 68
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.
Proof where no attesting witness found
s 69
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.
Admission of execution by party to attested document
s 70
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.
Proof when attesting witness denies the execution
s 71
If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
Proof of document not required by law to be attested
s 72
An attested document not required by law to be attested may be proved as if it was unattested.
Comparison of signature, writing or seal with others admitted or proved
s 73
(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.
Admissibility of documentary evidence in civil cases, etc.
s 73A
(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.
Admissibility of fact in criminal cases, etc.
s 73AA
Notwithstanding anything contained in this Chapter and subject to the Criminal Procedure Code, 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 writing. Public Documents
Public documents
s 74
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.
Private documents
s 75
All documents other than those mentioned in section 74 are private.
Certified copies of public documents
s 76
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 therefore, 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.
Proof of documents by production of certified copies
s 77
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.
Proof of certain official documents
s 78
(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.
Proof of public documents produced by computers
s 78A
Notwithstanding anything contained in sections 77 and 78, the provisions of sections 90A, 90B and 90C shall apply to a public document. Presumptions as to Documents
Presumption as to genuineness of certified copies
s 79
(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.
Presumption as to documents produced as record of evidence
s 80
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.
Presumption as to Gazettes, newspapers, etc.
s 81
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.
Presumption as to document admissible in England without proof of seal or signature
s 82
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.
Presumption as to maps or plans made by authority of Government
s 83
(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).
Presumption as to collections of laws and reports of decisions
s 84
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.
Presumption as to powers of attorney
s 85
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.
Presumption as to certified copies of foreign judicial records
s 86
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.
Presumption as to books, maps and charts
s 87
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.
Presumption as to telegraphic messages
s 88
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.
Presumption as to due execution, etc., of documents not produced
s 89
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.
Presumption as to documents twenty years old
s 90
Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation—Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81. ILLUSTRATIONS (a) A has been in possession of landed property for a long time. He produces from his custody documents relating to the land, showing his titles to it. The custody is proper. (b) A produces documents relating to landed property of which he is the chargee. The chargor is in possession. The custody is proper. (c) A, a connection of B, produces documents relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper. Documents Produced by a Computer
Admissibility of documents produced by computers, and of statements contained therein
s 90A
(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.
Weight to be attached to document, or statement contained in document, admitted by virtue of section 90A
s 90B
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.
Sections 90A and 90B to prevail over other provisions of this Act, the Bankers’ Books (Evidence) Act 1949, and any written law
s 90C
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.
CHAPTER VA — ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS
Application of Chapter VA
s 90D
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].
Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters
s 90E
(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.
Certificate relating to foreign evidence
s 90F
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.
CHAPTER VI — EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE
Evidence of terms of contracts, grants and other dispositions of property reduced to form of document
s 91
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.
Exclusion of evidence of oral agreement
s 92
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 B as 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 A may 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.
Exclusion of evidence to explain or amend ambiguous document
s 93
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.
Exclusion of evidence against application of document to existing facts
s 94
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.
Evidence as to document unmeaning in reference to existing facts
s 95
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 Seberang Perai 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 Seberang Perai.
Evidence as to application of language which can apply to one only of several persons
s 96
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.
Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies
s 97
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.
Evidence as to meaning of illegible characters, etc.
s 98
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.
Who may give evidence of agreement varying terms of document
s 99
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.
Construction of wills
s 100
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.
Back to Evidence Act 1950 — full text
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 May 2017 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).
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