CHAPTER VII — BURDEN OF PROOF
Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
ILLUSTRATIONS
(a) A desires a court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime.
(b) A desires a court to give judgment that he is entitled to certain land in the possession of B by reason of facts which he asserts and which B denies to be true.
A must prove the existence of those facts.
On whom burden of proof lies
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
ILLUSTRATIONS
(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father.
If no evidence were given on either side, B would be entitled to his possession.
Therefore the burden of proof is on A.
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
Burden of proof as to particular fact
The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. ILLUSTRATIONS
(a) A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.
(b) B wishes the court to believe that at the time in question he was elsewhere. He must prove it.
Burden of proving fact to be proved to make evidence admissible
The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact, is on the person who wishes to give the evidence.
ILLUSTRATIONS
(a) A wishes to prove a dying declaration by B. A must prove B’s death.
(b) A wishes to prove by secondary evidence the contents of a lost document.
A must prove that the document has been lost.
Burden of proving that case of accused comes within exceptions
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances.
ILLUSTRATIONS
(a) A accused of murder alleges that by reason of unsoundness of mind he did not know the nature of the act.
The burden of proof is on A.
(b) A accused of murder alleges that by grave and sudden provocation he was deprived of the power of self-control.
The burden of proof is on A.
(c) Section 325 of the Penal Code provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt shall be subject to certain punishments.
A is charged with voluntarily causing grievous hurt under section 325.
The burden of proving the circumstances, bringing the case under section 335, lies on A.
Burden of proving fact especially within knowledge
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
ILLUSTRATIONS
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
Burden of proving death of person known to have been alive within thirty years
When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
Burden of proving that person is alive who has not been heard of for seven years
When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent
When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have
been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.
Burden of proof as to ownership
When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
Proof of good faith in transactions where one party is in relation of active confidence
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
ILLUSTRATIONS
(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.
Birth during marriage conclusive proof of legitimacy
The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.
Presumption that boy under thirteen cannot commit rape
It shall be an irrebuttable presumption of law that a boy under the age of thirteen years is incapable of committing rape.
Court may presume existence of certain fact
The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.
ILLUSTRATIONS
The court may presume—
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
(b) that an accomplice is unworthy of credit unless he is corroborated in material particulars;
(c) that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration;
(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;
(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;
(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;
(h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him;
(i) that when a document creating an obligation is in the hands of the obligor the obligation has been discharged.
But the court shall also have regard to such facts as the following, in considering whether the maxims do or do not apply to the particular case before it:
(i) as to illustration (a)—a shopkeeper has in his till a marked ringgit soon after it was stolen and cannot account for its possession specifically but is continually receiving ringgit in the course of his business;
(ii) as to illustration (b)—A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and himself;
(iii) as to illustration (b)—a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
(iv) as to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person completely under A’s influence;
(v) as to illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
(vi) as to illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
(vii) as to illustration (f)—the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
(viii) as to illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feeling and reputation of his family;
(ix) as to illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
(x) as to illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.
Presumption of fact in publication
(1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or republish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.
(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.
(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.
(4) For the purpose of this section—
(a) “network service” and “network service provider” have the meaning assigned to them in section 6 of the Communications and Multimedia Act 1998 [Act 588]; and
(b) “publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.
Estoppel
When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, otherwise than but for that belief
he would have acted, neither he nor his representative in interest shall be allowed in any suit or proceeding between himself and that person or his representative in interest to deny the truth of that thing. ILLUSTRATION
A intentionally and falsely leads B to believe that certain land belongs to A and thereby induces B to buy and pay for it.
The land afterwards becomes the property of A and A seeks to set aside the sale on the ground that at the time of the sale he had no title.
He may not be allowed to prove his want of title.
Estoppel of tenant and of licensee of person in possession
No tenant of immovable property, or person claiming through the tenant, shall during the continuance of the tenancy be permitted to deny that the landlord of that tenant had at the beginning of the tenancy a title to the immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny that that person had a title to such possession at the time when the licence was given.
Estoppel of acceptor of bill of exchange, bailee or licensee
(1) No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority to draw the bill or to endorse it.
(2) No bailee, agent or licensee shall be permitted to deny that the bailor, principal or licensor, by whom any goods were entrusted to any of them respectively was entitled to those goods at the time when they were so entrusted:
Provided that any such bailee, agent or licensee may show that he was compelled to deliver up any such goods to some person who had a right to them as against his bailor, principal or licensor, or that his bailor, principal or licensor wrongfully and without notice to the bailee,
agent or licensee, obtained the goods from a third person, who has claimed them from that bailee, agent or licensee. Explanation—The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.
Who may testify
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Explanation—A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them.
Dumb witnesses
(1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but the writing must be written and the signs made in open court.
(2) Evidence so given shall be deemed to be oral evidence.
Parties to civil suits and wives and husbands
(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person the husband or wife of that person respectively shall be a competent witness.
(3) In criminal proceedings the accused shall be a competent witness in his own behalf, and may give evidence in the same manner and with the like effect and consequences as any other witness:
Provided that, so far as the cross-examination relates to the credit of the accused, the court may limit the cross-examination to such extent as it thinks proper, although the proposed cross-examination might be permissible in the case of any other witness.
Judges, Sessions Court Judges and Magistrates
No Judge and, except upon the special order of the High Court, no Sessions Court Judge or Magistrate shall be compelled to answer any questions as to his own conduct in court as Judge, Sessions Court Judge or Magistrate or as to anything which came to his knowledge in court as a Judge, Sessions Court Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.
ILLUSTRATIONS
(a) A, on his trial before the High Court, says that a deposition was improperly taken by B, the committing Magistrate. B cannot be compelled to answer questions as to this except upon the special order of the High Court.
(b) A is accused before a Sessions Court of having given false evidence before B, a Sessions Court Judge. B cannot be compelled to say what A said except upon the special order of the High Court.
(c) A is accused of attempting to murder a police officer whilst on his trial before B, a Judge of the High Court. B may be examined as to what occurred.
Communications during marriage
No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any
person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.
Evidence as to affairs of State
No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Government of Malaysia, and of the Chief Minister in the case of a department of a State Government.
Official communications
No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure:
Provided that the court may require the head of the department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications.
Information as to commission of offences
No Sessions Court Judge, Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue or the excise laws.
Explanation—“revenue officer” in this section means any officer employed in or about the business of any branch of the public revenue.
Professional communications
(1) No advocate shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.
(2) It is immaterial whether the attention of the advocate was or was not directed to the fact by or on behalf of his client.
Explanation—The obligation stated in this section continues after the employment has ceased.
ILLUSTRATIONS
(a) A, a client, says to B, an advocate: “I have committed forgery and I wish you to defend me.”
As the defence of a man known to be guilty is not a criminal purpose this communication is protected from disclosure.
(b) A, a client, says to B, an advocate: “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.”
This communication being made in furtherance of a criminal purpose is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the proceedings B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
Section 126 to apply to interpreters, etc.
Section 126 shall apply to interpreters and the clerks or servants of advocates.
Privilege not waived by volunteering evidence
If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.
Confidential communications with legal advisers
No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court necessary to be known in order to explain any evidence which he has given, but no others.
Production of title deeds of witness not a party
(1) No witness who is not a party to the suit shall be compelled to produce his document of title to any property, or any other document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such documents or some person through whom he claims.
(2) No witness who is a party to the suit shall be bound to produce any document in his possession or power which is not relevant or material to the case of the party requiring its production.
(3) No bank shall be compelled to produce its books in any legal proceeding to which it is not a party, except as provided by the law of evidence relating to banker’s books.
Production of documents which another person having possession could refuse to produce
No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his possession, except for the purpose of identification, unless the last mentioned person consents to their production, nor shall anyone who is entitled to refuse to produce a document be compelled to give oral evidence of its contents.
Witness not excused from answering on ground that answer will criminate
(1) A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon the ground that the answer to that question will criminate or may tend directly or indirectly to criminate, him, or that it will expose, or tend directly or indirectly to expose, the witness to a penalty or forfeiture of any kind, or that it will
establish or tend to establish that he owes a debt or is otherwise subject to a civil suit at the instance of the Government of Malaysia or of any State or of any other person.
(2) No answer which a witness shall be compelled by the court to give shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by that answer.
(3) Before compelling a witness to answer a question the answer to which will criminate or may tend directly or indirectly to criminate him the court shall explain to the witness the purport of subsection (2).
Accomplice
An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Evidence of child of tender years
Where, in any proceedings against any person for any offence, any child of tender years called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 269 of the Criminal Procedure Code shall be deemed to be a deposition within the meaning of that section:
Provided that, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him.
Number of witnesses
No particular number of witnesses shall in any case be required for the proof of any fact.
CHAPTER X — EXAMINATION OF WITNESSES
Order of production and examination of witnesses
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.
Court to decide as to admissibility of evidence
(1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.
(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of the fact and the court is satisfied with the undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
ILLUSTRATIONS
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.
The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.
(b) It is proposed to prove by a copy the contents of a document said to be lost.
The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced.
(c) A is accused of receiving stolen property, knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of the denial depends on the identity of the property. The court may in its discretion either require the property to be identified before the denial of the possession is proved or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The court may either permit A to be proved before B, C or D is proved or may require proof of B, C and D before permitting proof of A.
Examination-in-chief, cross-examination and re-examination
(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his reexamination.
Order of examinations and direction of re-examination
(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
Cross-examination of person called to produce a document
A person summoned to produce a document does not become a witness by the mere fact that he produces it, and may not be crossexamined unless and until he is called as a witness.
Witnesses to character
Witnesses to character may be cross-examined and re-examined.
Leading questions
Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.
When leading questions may not be asked
(1) Leading questions may not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court.
(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.
When leading questions may be asked
(1) Leading questions may be asked in cross-examination, subject to the following qualifications:
(a) the question may not put into the mouth of the witness the very words which he is to echo back again; and
(b) the question may not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.
(2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.
Evidence as to matters in writing
Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to the evidence being given until the document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation—A witness may give oral evidence of statements made by other persons about the contents of documents if the statements are in themselves relevant facts.
ILLUSTRATION
The question is whether A assaulted B.
C deposes that he heard A say to D: “B wrote a letter accusing me of theft and I will be revenged on him.” The statement is relevant as showing A’s motive for the assault and evidence may be given of it though no other evidence is given about the letter.
Cross-examination as to previous statements in writing
(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he made such statement.
Questions lawful in cross-examination
When a witness may be cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(a) to test his accuracy, veracity or credibility;
(b) to discover who he is and what is his position in life; or
(c) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Restrictions on evidence at trials for rape
Notwithstanding anything in this Act, in proceedings in respect of the offence of rape, no evidence and no question in crossexamination shall be adduced or asked, by or on behalf of the accused, concerning the sexual activity of the complainant with any person other than the accused unless—
(a) it is evidence that rebuts, or a question which tends to rebut, evidence of the complainant’s sexual activity or absence thereof that was previously adduced by the prosecution;
(b) it is evidence of, or a question on, specific instances of the complainant’s sexual activity tending to establish the identity of the person who had sexual contact with the complainant on the occasion set out in the charge; or
(c) it is evidence of, or a question on, sexual activity that took place on the same occasion as the sexual activity that forms the subject matter of the charge, where that evidence or question relates to the consent that the accused alleges he believed was given by the complainant.
When witness to be compelled to answer
If any such question relates to a matter relevant to the suit or proceeding, section 132 shall apply thereto.
Court to decide when question shall be asked and when witness compelled to answer
(1) If any question relates to a matter not relevant to the suit or proceeding, except so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the court shall have regard to the following considerations:
(a) the questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(b) the questions are improper if the imputation which they convey relates to matters so remote in time or of such a character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he testifies;
(c) the questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(d) the court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable.
Question not to be asked without reasonable grounds
No such question as is referred to in section 148 shall be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.
ILLUSTRATIONS
(a) An advocate is instructed by another advocate or reliable source that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he is a professional gambler.
(b) An advocate is informed by a person in court that an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a professional gambler.
(c) A witness of whom nothing whatever is known is asked at random whether he is a professional gambler. There are here no reasonable grounds for the question.
(d) A witness of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a professional gambler.
Procedure of court in case of question being asked without reasonable grounds
If the court is of opinion that any such question as is referred to in section 148 was asked without reasonable grounds, it may, if it was asked by an advocate, report the circumstances of the case to the High Court or other authority to which the advocate is subject in the exercise of his profession.
Indecent and scandalous questions
The court may forbid any questions or inquiries which it regards as indecent or scandalous, although they may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Questions intended to insult or annoy
The court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court needlessly offensive in form.
Exclusion of evidence to contradict answers to questions testing veracity
When a witness has been asked and has answered any question which is relevant to the inquiry only so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence.
Exception 1—If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2—If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
ILLUSTRATIONS
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether in a former transaction he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c) A affirms that on a certain day he saw B at Malacca.
A is asked whether he himself was not on that day at Penang. He denies it.
Evidence is offered to show that A was on that day at Penang.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Malacca.
(d) A is tried for a rape on B. B is asked in cross-examination whether she has not had illicit intercourse with C and D. She denies it. Evidence is offered to show that she has had such intercourse with C and D. The evidence is not admissible.
In each of the cases in illustrations (c) and (d) the witness might, if the denial was false, be charged with giving false evidence.
(e) A is asked whether he has not said that he would be revenged on B, against whom he gives evidence. He denies it.
He may be contradicted on the ground that the question tends to impeach his impartiality.
Question by party to his own witness
The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in crossexamination by the adverse party.
Impeaching credit of witness
The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:
(a) by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit;
(b) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(d) (Deleted by Act A729).
Explanation—A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives shall not be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
ILLUSTRATIONS
(a) A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that on a previous occasion he said that he had not delivered the goods to B.
The evidence is admissible.
(b) A is indicted for the murder of B. C says that B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his presence.
The evidence is admissible.
Questions tending to corroborate evidence of relevant fact admissible
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which the relevant fact occurred, if the court is of opinion that the circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he testifies.
ILLUSTRATION
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents, unconnected with the robbery, which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
Former statements of witness may be proved to corroborate later testimony as to same fact
In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
What matters may be proved in connection with proved statement relevant under section 32 or 33
Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
Refreshing memory
(1) A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.
(2) The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid, if, when he read it, he knew it to be correct.
(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of that document:
Provided the court is satisfied that there is sufficient reason for the non-production of the original.
(4) An expert may refresh his memory by reference to professional treatises.
Testimony to facts stated in document mentioned in section 159
A witness may also testify to facts mentioned in any such document as is mentioned in section 159 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. ILLUSTRATION
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
Right of adverse party as to writing used to refresh memory
Any writing referred to under section 159 or 160 must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.
Production of documents and their translation
(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.
(2) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility.
(3) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence, and if the translator disobeys the direction, he shall be held to have committed an offence under section 166 of the Penal Code.
Giving as evidence of document called for and produced on notice
When a party calls for a document which he has given the other party notice to produce, and the document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is relevant.
Using as evidence of document production of which was refused on notice
When a party refuses to produce a document which he has had notice to produce, he may not afterwards use the document as evidence without the consent of the other party or the order of the court.
ILLUSTRATION
A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He may not do so.
Judge’s power to put questions or order production
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness or of the parties, about any fact relevant or irrelevant; and
may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to crossexamine any witness upon any answer given in reply to any such question:
Provided that—
(i) the judgment must be based upon facts declared by this Act to be relevant and duly proved;
(ii) this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which the witness would be entitled to refuse to answer or produce under sections 121 to 131 if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with the primary evidence of any document, except in the cases hereinbefore excepted.
Power of assessors to put questions
In cases tried with assessors the assessors may put any questions to the witnesses through or by leave of the Judge, which the Judge himself might put and which he considers proper.
CHAPTER XI — IMPROPER ADMISSION AND REJECTION OF EVIDENCE
No new trial for improper admission or rejection of evidence
The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case
if it appears to the court before which the objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.
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LAWS OF MALAYSIA
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).
