Chapter 9 - Proof

Question 1

PROOF

Overview

Answer 1

1) General rule
2) General principles on judicial notice
3) Failure to object to mode of proof
4) Exception - Facts of judicial notice
5) Exception - Facts admitted in civil cases
6) Exception - Facts admitted in criminal cases

Question 2

GENERAL RULE

The law & scope

Answer 2

1) The law:
- Part II & III Evidence Act
2) Scope - Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd:

• All facts in issue & relevant facts must be proved by evidence;
• either orally (S.59) or documentary (Chapter V).

3) Principle - Low Moh & Anor v PP:

• Cases must be decided by evidence & evidence must be of such that is relevant & admissible under EA;
• Evidence must be either from:
  1) admitted documents; or
  2) the statements of witnesses; or
  3) be something of which the Court can take judicial notice must be either from admissibility of documents or statements of witness.

Question 3

GENERAL PRINCIPLES ON JUDICIAL NOTICE

Meaning of taking judicial notice

Answer 3

Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh:

• When a court takes judicial notice of a fact, it means that the court declares that it will find the fact exists.

Question 4

OBJECTION TO MODE OF PROOF

Failure to object to mode of proof

Answer 4

Noliana bte Sulaiman v PP:

• failure to object amounts to a waiver of the objection to the admissibility of the evidence.
• objection must be taken promptly & cannot be taken at appellate stage.

Question 5

EXCEPTION - FACTS OF JUDICIAL NOTICE

Overview

Answer 5

1) The law & scope
2) List of facts judicially taken
3) Other facts that may be judicially taken

Question 6

EXCEPTION - FACTS OF JUDICIAL NOTICE

The law

Answer 6

S.56:
- facts judicially taken need not be proved.

S.57:

• list down facts of which court must take judicial notice.

Question 7

EXCEPTION - FACTS OF JUDICIAL NOTICE

The scope

Answer 7

1) scope of S.56:

• Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh:
  When a court takes judicial notice of a fact, it simply means that the court declares that it will find that the fact exists.
• Pang Ah Chee v Chong Kwee Sang:
  under S.56, court may take judicial notice of matters which are of common and general knowledge.

2) scope of S.57:
- Pang Ah Chee v Chong Kwee Sang: S. 57 EA merely sets out matters which the court must take judicial notice of and the list therein is not exhaustive;

Question 8

EXCEPTION - FACTS OF JUDICIAL NOTICE

List of facts judicially taken

Answer 8

1) S.57(1)(a) - meaning of law:
- S.3 IA: includes written law, common law in so far as it is in operation in Federation or any part thereof; any custom or usage having the force of law in the Federation or any part thereof.
2) S.57(1)(j) - meaning of geographical division:
- Sarkar Law of Evidence: territorial extent of the jurisdiction & sovereignty exercised de facto by their own govt; local divisions such as states, provinces, counties, towns, etc.

Question 9

OTHER FACTS THAT MAY BE JUDICIALLY TAKEN

The test

Answer 9

Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd:

• subject of common & general knowledge;
• its existence or operation accepted by the public w/o contention;
• test: facts involved must be sufficiently notorious.

Question 10

OTHER FACTS THAT MAY BE JUDICIALLY TAKEN

Examples of sufficient notoriety

Answer 10

Japanese invasion of Malaya and the brutalities meted out during the Japanese; Re Gun Soon Thin [1997].

Asian currency turmoil in 1998; Den Norske Bank v. The Owner of the Ship or Vessek “Forum Akasaka” [1998].

Worldwide economic depression; Ram Tarak Singha v. Salgram Singha AIR

Chinese funeral expenses; Pang Ah Chee v. Chong Kwee Sang [1985] FC

Polygamous nature of Chinese marriages; Ngai Lau Shia v. Low Chee Neo (1921);

The frequency of power failure in Johor Bahru High Court; Bank Bumiputera v. Mohd Ibrahim Salleh [2000]

Commission of offences involving firearms has been prevalent in KL (for the purpose of sentencing); Lee Chow Meng v. PP

Wages earned in Singapore are substantially higher than those in Malaysia; Latiff bin Che Ngah v. Maimunah bt Zakaria [2002]

A qualified person under LPA 1976 should not hold office or engage in any employment during his pupilage without special leave in writing of the Bar Council; S Ashok Kandiah v. Dato Yalumallai Muthusamy [2011] CA

A criminal prosecution is pending against a person; Ng Chin Swee v. Koperasi Belia Bersatu Bhd [1987].

Question 11

OTHER FACTS THAT MAY BE JUDICIALLY TAKEN

Examples of insufficient notoriety

Answer 11

• Base lending rate; Suresh Emmanuel Abishegam v. RHB Bank [2011]
• customary commission of 2% of the purchase price received by broker; Pembangunan Maha Murni Sdn Bhd v. Jururus Ladang Sdn Bhd [1986]

Question 12

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

Overview

Answer 12

1) the law & scope
2) evidentiary value of judicial admission in pleading
3) failure to object
4) recent application

Question 13

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

The law & scope

Answer 13

1) The law:

• S.58
• O.18, r.13
• O.27

2) Scope:

• Encompasses judicial admission;
• Does not apply to criminal proceedings.

Question 14

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

Evidentiary value of judicial admission in pleading

Answer 14

Yam Kong Seng v Yee Weng Kai (FC, 2014):

• a judicial admission made in a pleading stands on a higher footing than evidentiary admission.

Question 15

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

Failure to object

Answer 15

Noliana bte Sulaiman v PP:

• failure to object amounts to waiver;
• objection must be taken promptly, cannot be taken at appellate stage.

Question 16

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

Recent application

Answer 16

Mohd Isha Awang v Mohamad Idris Seramal Sebaris (CA, 2020):

• It is trite that by virtue of S.58, documents which have been admitted need not be proved.

Question 17

EXCEPTION - FACTS ADMITTED IN CIVIL CASES

Recent application

CA, 2020

Answer 17

Mohd Isha Awang v Mohamad Idris Seramal Sebaris (CA, 2020):

• It is trite that by virtue of S.58, documents which have been admitted need not be proved.

Question 18

EXCEPTION - FACTS ADMITTED IN CRIMINAL CASES

Overview

Answer 18

1) The law & scope

2) Failure to object

Question 19

EXCEPTION - FACTS ADMITTED IN CRIMINAL CASES

The law & scope

Answer 19

1) The law:
- S.73AA
2) Scope & effect - Eling Jambun v PP:

• By virtue of section 73AA, these admitted & agreed facts were deemed proven & the prosecution need not prove the facts as agreed by the parties in Exhibits F, G and H.
• If the defence counsel does not agree that facts are deemed to be proven through S.73AA, objection must be taken immediately (Noliana bte Sulaiman v PP).

Question 20

EXCEPTION - FACTS ADMITTED IN CRIMINAL CASES

Failure to object

Answer 20

Eling Jambun v PP:

• Failure to object amounts to waiver.