Chapter 11 - Documentary Evidence Flashcards

Question

BEST EVIDENCE RULE Overview

Answer 1

1) Applicability 2) Manner of proof - general 3) Manner of proof - exceptions 4) Burden of proof 5) Failure to object 6) Primary evidence 7) Secondary evidence

Answer 2

1) Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri: - Where the document is a public document, the best evidence rule does not apply. 2) Per Mohd Isha Awang: - public documents like judgments will be admissible as exception to hearsay rule; 3) Per S.76 + Noliana bte Sulaiman v PP: - Certified copies of public documents may be tendered.

Answer 3

1) Overview - S.61: - Contents may be proved either by primary or secondary. 2) General rule - S.64: - Documents must be proved by primary evidence. 3) Scope of S.64 - KPM Khidmat Sdn Bhd v Tey Kim Suie: - When documentary evidence is tendered, the primary evidence of the said document must be adduced except in the cases under s. 65 EA 1950; - secondary evidence of the same is inadmissible until the non-production of the primary is first accounted for. 4) Failure to account for non-production of the primary - Kerajaan Malaysia v Eng Sim Leong: - Failure to adduce evidence to prove that the original document is lost or destroyed and real effort had been made to retrieve the original will render the secondary evidence inadmissible.

Answer 4

S.65(1) - (a) Original is in possession of other party; - (b) Proved to be admitted in writing - (c) Lost or destroyed: * KPM Khidmat Sdn Bhd v Tey Kim Suie: - secondary evidence is inadmissible until the non-production of the primary is first accounted for. * Kerajaan Malaysia v Eng Sim Leong: - Failure to adduce evidence to prove that the original document is lost or destroyed under s. 65(1)(c) and real effort had been made to retrieve the original will render the secondary evidence inadmissible. - (d) Not easily moveable; - (e) Original is a public document: - Ng Hoong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri: best evidence rule does not apply to public documents, certified copies may be tendered under S.76. - (f) Certified copy is permitted by the Act or any other law; - (g) Originals consist of numerous accounts.

Answer 5

1) Burden - Popular Industries Ltd. v Eastern Garment Manufacturing Sdn Bhd: - The burden of proving the existence of the circumstances bringing the case within any of the exceptions under s. 65 EA is on the party seeking to adduce the secondary evidence. 2) Absence of proof - Hargit Singh v R: - In the absence of proof of the required conditions, the secondary evidence is inadmissible.

Answer 6

1) Failure - Noliana bte Sulaiman v PP: - failure to object on the manner of proof amounts to waiver; 2) When to object - Suppiah v Ponnampalam: - any objection relating to the mode of proof must be taken before the document is marked as an exhibit & admitted to the record. 3) When to object - Noliana bte Sulaiman v PP: - Objection must be taken promptly; - It cannot be taken at the appellate stage.

Answer 7

1) the law | 2) whether carbon copies are primary evidence

Answer 8

1) Principle - Sarkar on Evidence: - Carbon copies produced by typewriters may be regarded as equivalent, though the impression of lower sheets are likely to be imperfect; - they are produced by the same stroke which makes the surface impression. - ref. to in TSIA Development Enterprise Sdn Bhd v Awang Dewa. 2) Application - PP v Rengasamy: - Carbon copies were held as primary evidence under explanation 2 for being documents made by one uniform process. 3) Application - cf. TSIA Development Enterprise Sdn Bhd v Awang Dewa: - Having regard to wording of explanation 2, the judge held that a typewritten carbon copy should be admitted as an original. - Further, there is no evidence that the signature in the document sought to be produced to have been made by one uniform process. - Therefore, carbon copies are not primary evidence having regards to explanation above. 4) Application - cf. Alliedbank v Yau Jiok Hua: - a carbon copy signed after the top copy had been signed cannot constitute primary evidence as the whole document would not have been made in one uniform process. - i.e. the signatures are made in different process.

Answer 9

1) The law | 2) Photostat copies

Answer 10

1) Tan Sri Tan Hian Tsian v PP: - A photostat copy of the original document is a type of secondary evidence which falls under s. 63 (b) EA 1950, namely copy made from the original by mechanical processes. 2) Lee Kok Nam v PP: - A photostat copy would fall within S.63 but it is only available as evidence if conditions under S.65 & 63(b) are fulfilled; - It will not available as evidence if an explanation was not given as to why the original was not produced.

Answer 11

1) Mode of proof for contents of documents 2) Exclusion of oral evidence 3) Exception to exclusion of oral evidence

Answer 12

1) the law, scope & effect 2) rationale for S.91 3) relationship with S.92

Answer 13

1) The law: - S.91 2) Scope - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd: - where a contract has been reduced to writing, the court can only look at the writing to determine the terms made by the parties. - S. 91 is consistent with S.59, i.e. all facts, except the contents of document, may be proved by oral evidence. 3) Effect of S.91 - Eng Mee Yong v Letchumanan: - By virtue of S.91, oral evidence was held to be inadmissible to contradict the contents of documents; - OTF, oral evidence was held to be inadmissible to contradict the written sale and purchase agreement.

Answer 14

Bai Hira Devi v Official Assignee: - S.91 EA 1950 is based on the best evidence rule. - The best evidence of the contents of a document is the document itself. - Thus, S.91 requires the production of the document itself to prove its contents and excludes the admission of oral evidence.

Answer 15

1) Effect of both sections - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd: - Where the terms of the contract have been proved in accordance with s. 91 EA 1950, s. 92 EA 1950 comes into play to exclude any oral evidence given for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract. 2) Relationship between two sections - Datuk Tan Leng Teck v Sarjana Sdn Bhd: - Both S.91 and 92 EA 1950 supplement each other. They make the proof of the document conclusive of its contents. - Therefore, in order to prove contents of documents, the documents itself must be tendered AND oral evidence must be excluded.

Answer 16

1) The law & scope | 2) Relationship with S.91

Answer 17

1) the law: - S.91 2) scope: - No oral evidence is admissible to contradict, vary, add to or subtract from the terms. - This is so unless the exception under S.92 applies.

Answer 18

1) Effect of both sections - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd: - Where the terms of the contract have been proved in accordance with s. 91, s. 92 comes into play to exclude any oral evidence given for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract. 2) Relationship between two sections - Datuk Tan Leng Teck v Sarjana Sdn Bhd: - Both S.91 and 92 EA 1950 supplement each other. They make the proof of the document conclusive of its contents. - Therefore, in order to prove contents of documents, the documents itself must be tendered AND oral evidence must be excluded.

Answer 19

1) Facts invalidating documents 2) Oral agreement not inconsistent with documents 3) Oral agreement constituting condition precedent 4) Oral agreement to rescind or modify 5) Usage or custom 6) Language of documents

Answer 20

1) The law: - S.92(a) 2) Application - Ganam Rajamany v Somoo Sinnah: - oral evidence was allowed to show that there was want or failure of consideration. failure of consideration renders a contract void for want of consideration & thus invalid.

Answer 21

1) The law: - S.92(b) 2) Application - Padang Serai Kilang Kayu v Khor Kia Fong: - When there is prior oral agreement pertaining to a matter which the document is silent, evidence relating to its nature (formality), factual background, or surrounding circumstances may be given. - This is provided that such agreement is not inconsistent with or contradict the terms of the document. - In the absence of any evidence to the contrary, explanation of party seeking to adduce oral evidence must be accepted. 3) Application - Chase Perdana Bhd v Md Afendi Hamdan: - Oral agreement cannot be construed as a collateral contract if it contradicted the written agreement AND it did not fulfil the requirements of written law.

Answer 22

1) The law: - S.92(c) 2) Application - Ganesan & Anor v Baskaran: - A separate oral agreement constituting a condition precedent to the sale of land is admissible. - OTF, the oral undertaking of the respondent vendor to obtain the requisite approval for the transfer was admissible.

Answer 23

1) The law: - S.92(d) 2) Scope - Goss v Nugent: - after an agreement has been reduced into writing, the parties can, at any time before the breach of it, waive, dissolve or annul the agreement by a new contract not in writing. 3) Application - Voo Min En v Leong Chung Fat: - Although there was subsequent oral agreement, such agreement was, by law, required to be in writing. - “distinct subsequent oral agreement” to modify earlier written agreement could only be proved in limited cases. - It cannot be proved when the law requires it to be in writing.

Answer 24

1) The law: - S.92(e) 2) Application - Brown v Byrne: - Evidence of mercantile custom & usage is admitted in order to expound it & arrive at its true meaning. - In such cases, the evidence neither adds to nor qualifies, nor contradicts, the written contract; - It only ascertains it by expounding the language.

Answer 25

1) The law: - S.92(f) 2) Object of the law - Sarkar's on Evidence: - To ascertain real intentions of the parties but those intentions must be gathered from the language of the documents. - No evidence of any intention contrary to the plain meaning of words used can be admitted; - As the object of proviso (f) is not to vary the language used but merely to explain the sense of words used. 3) Application - Tan Suan Sim v Chang Fook Shen: - Agreement stipulated for completion ‘at a later date’; Held: - it meant a date, if not earlier, at least before the rescission of the agreement. - Evidence is accepted as it clarified the latent ambiguity in the agreement.

Chapter 11 - Documentary Evidence Flashcards

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