Dealing With Evidence

Dealing with Evidence
By
LEE SWEE SENG
Advocate & Solicitor
Certified Mediator
Notary Public
Patent Agent
Trademark Agent
www.leesweeseng.com
sweeseng@tmnet.net.my

 Determine the nature of evidence
 Assessing the client’s evidence
 Effectively structuring evidence in
chief to fit your case theory
 Handling documentary evidence
 Presenting the evidence in court
 Improper admission and rejection
of evidence

Main legislation
governing the law of
evidence in Malaysia
Evidence Act 1950

Common law
As an aid to interpretation
 When the Evidence Act is silent
PP v Yuvaraj [1969] 2 MLJ 89
Per Lord Diplock, “In Malaysia the law of evidence has been
embodied in a statutory code, the Evidence Ordinance. In
so far, as any part of the law relating to evidence is
expressly dealt with by that Ordinance, the courts in
Malaysia must give effect to the relevant provisions of the
Ordinance whether or not they differ from the common law
rule of evidence as applied by the English Court. But no
enactment can be fully comprehensive. It takes its place as
part of the general corpus of law. It is intended to be
construed by lawyers and upon matters about which it is
silent or fails to be explicit, it is presumed that it was not the
intention of the legislation to depart from the well
established principle of law.”

Determining the
nature of evidence

S.3 of the Evidence Act 1950
 provides the definition of “evidence” as:
 (a) all statements which the court permits or
requires to be made before it by witnesses in
relation to matters of fact under inquiry: such
statements are called oral evidence ;
 (b) all documents produced for the inspection of the
court: such documents are called documentary
evidence ;

Oral Evidence
 S. 59 of the EA 1950, provides that,
All facts, except the contents of
documents, may be proved by oral
evidence .
 “oral evidence” means all statement
which the Court permits or requires to be
made before it by witnesses in relation to
matters of facts under inquiry.
(S. Augustine Paul. Evidence Practice and Procedure 1994 pg. 389)

Oral Evidence
 s.60of EA 1950 Oral evidence must be
direct.
 (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;

Oral Evidence
 (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.

Oral Evidence
 (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.

Oral Evidence
 (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.

Evidential value of oral evidence
 The weight and value of oral evidence
depends on its credibility as found by the
Court in each case. The court must give
reasons for its findings on credibility.
 Balasingham v PP [1959] MLJ 193 (HC)

Documentary evidence
 s.3 of EA1950 Interpretation
 “document” means any matter expressed,
described or howsoever represented, upon any
substance, material, thing or article, including any
matter embodied in a disc, tape, film, sound track or
other device whatsoever, by means of-
 (a) letters, figures, marks, symbols, signals, signs, or
other forms of expression, description, or
representation whatsoever;
 (b) any visual recording (whether of still or moving
images);

 (c) any sound recording, or any electronic magnetic,
mechanical or other recording whatsoever and howsoever
made, or any sounds, electronic impulses, or other data
whatsoever;
 (d) a recording, or transmission, over a distance of any
matter by any, or any combination, of the means
mentioned in paragraph (a), (b), or (c),

 or by more than one of the means mentioned in
paragraphs (a), (b), (c) and (d), intended to be used
or which may be used for the purpose of expressing,
describing, or howsoever representing, that matter;

 s. 61 of the EA 1950 provides that
 The content of documents may be proved
either by primary or secondary evidence.

Document produced by
computer
 s. 90A. 90B and 90C of EA 1950 relates
to documents produced by computers.

 This section is an exception to the hearsay
rule and provides that a document
produced by a computer or a statement
contained in such document shall be
admissible as evidence of any fact stated
therein whether or not the person
tendering the same is the maker of such
document or statement.

Document produced by
computer
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.
 It applies to civil and criminal proceedings.

Assessing the client’s
evidence

 Facts in issue
 ‘…any fact from which either by itself or in
connection with other facts the existence, non-
existence, nature or extent of any right, liability or
disability asserted or denied in any suit or
proceedings necessarily follows.’ s. 3 EA 1950

 Proving facts in issue by direct evidence
 Ideally a fact in issue should be proved by direct
evidence (that is evidence of a person who himself
perceived the fact), if this is available.
 E.g. eye-witness testimony

 Relevant Facts
 More often than not, direct evidence of
the facts in issue is not available in the
facts in issue.
 These are facts from which the facts in
issue may be inferred.
(Evidence, Advocacy And The Litigation Process, 1992, Jeffrey Pinsler)

 The general categories of relevant facts
are covered by section 6 to 11 EA 1950
which are worded widely so that ‘..the
general ground on which facts are
relevant might be stated in as many and
as popular forms as possible so that if a
fact is relevant, its relevancy may be
easily ascertained.’

Evidence given by witness without
personal knowledge/not available
 Hearsay Rule
 The assertions of persons made out of
court whether orally or in documentary
form or in the form of conduct tendered
to prove the facts which they refer to (ie.
facts in issue and relevant facts) are
inadmissible unless they fall within the
scope of the established exceptions.

 The rational for such principle is that the
witness cannot verify the truth of facts of
which he has no personal knowledge.
As the person does not have personal
knowledge of the facts is not in court,
the accuracy of his perception and his
veracity cannot be assessed and tested
in cross-examination.

Exceptions to the hearsay rule
 Statement of persons who cannot be called as
witness under s.32 s.33 of the EA 1950
 S.32 of the EA provides for various categories
of circumstances in which oral and written
statements may be admitted as long as the
maker is unavailable for one of the prescribed
reasons.

Under the circumstances where:-
1. he is dead;
2. he cannot be found;
3. he has become incapable of giving evidence;
or
4. his attendance cannot be procured without
an amount of delay and expense which under
the circumstances of the case appears to the
court unreasonable.

 Weight to be given to statement under
section 32 and 33 of EA 1950.
 s.158 of EA 1950 provides that
 Whenever any statement relevant under s.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.

 s. 73A(1)(a) of EA 1950 provides that
 …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 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.
Provides 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 effort to find him have been made
without success

 Weight

 s.73A(6) of EA 1950
 Court may consider whether 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.

 JohoreState Economic Development
Corp v Queen Bee Sdn Bhd [1995] 4 MLJ
371 HC
A document which had been admitted
was discounted as it was not made
contemporaneously with the occurrence
of the facts stated therein.

Arab-Malaysian Merchant Bank Bhd v Chong On
Foh Medical Hall & Liquor Dealers [1997] 4 MLJ
532 HC
 The plaintiff, a licensed merchant bank, sued the
defendant, a firm, based on a factoring
agreement dated 12 March 1985.
 At the hearing one Simon a/l Jones Ganesh, an
officer of the plaintiff (`the officer`), gave
evidence and wanted to tender the agreement.
 On behalf of the plaintiff, the agreement was
signed by one Dr Junid and one Dr Cheah Teoh
Keong, a managing director. The document was
kept by the bank.

532 HC

 Itwas the officer's duty to provide
information regarding accounts of clients
who failed to repay the plaintiff. Dr Junid,
who had knowledge of the document, had
left the plaintiff.
 Dr Cheah, on the other hand, could not
come to the Magistrate`s Court, Bukit
Mertajam from Kuala Lumpur as he was a
busy man.

532 HC

 The defendant objected to the tendering of
the agreement. The learned magistrate
ruled that the agreement was not
admissible and adjourned the case for the
plaintiff to appeal.
 The plaintiff appealed and the issue
concerned the admissibility of the
document and the interpretation of s 73A
of the Evidence Act 1950.

532 HC

Held: (Abdul Hamid J)
 Under s 73A of the Act, a statement was
admissible under three circumstances, namely:
 (i) where the maker of the statement was called to
give evidence;
 (ii) where the maker was not available but the
proviso to sub (1) of s 73A was satisfied; and
 (iii) where the maker was available but was not
called as a witness under the circumstances
provided by sub (2) of s 73A.

532 HC

 Under sub (2) of s 73A of the Act, a statement was
admissible if the court was satisfied that undue
delay or expense would be caused in order to call
the maker to give evidence.
 The circumstances of this case justified the
agreement to be admitted under sub-s (2) of s 73A
of the Act. Dr Cheah himself had come to Bukit
Mertajam from Kuala Lumpur five or six times for the
same case. The claim was only for a sum of
RM5,425.82 while the costs incurred by the plaintiff
were more than what it was claiming.
 Appeal allowed.

Allegation of Fraud
 Where a client alleges fraud it is
prudent to make them swear a
statutory declaration stating the
particulars of fraud.

United Malayan Banking Corp Bhd v Palm and
Vegetable Oils (M) Sdn Bhd & Ors [1994] 3
MLJ 73

 In1979, the appellant filed a writ and
a statement of claim against the
respondents, claiming for moneys
owed under banking facilities. In
1981, the appellant filed an
application for an O.14 judgment, but
the court refused to grant leave to
enter summary judgment.

MLJ 73

 In 1986, the appellant's solicitors took out
a summons for directions and the senior
assistant registrar ordered the parties,
inter alia, to serve on each other a list of
documents and file an affidavit verifying
such list within 60 days. The appellant's
solicitors accordingly filed such an
affidavit, which was served on the
respondents on the same date.

MLJ 73

 As there was no response at all from
the respondents, the appellant's
solicitors filed the request for setting
down the action for trial in 1988.
 In 1989, the respondents filed a
summons-in-chambers to apply for a
dismissal of the appellant's claim for
want of prosecution.

MLJ 73

 The appellants, however, contended that
there had been reasonable and credible
excuse for the delay as there were several
negotiations between the parties which
continued even after the action had been
set down for trial. The judge upheld the
decision of the senior assistant registrar.
 The appellants have appealed.

MLJ 73

 The senior assistant registrar granted the
application and accordingly struck out the suit.
 On appeal by the appellants, the respondents
contended that nine years had passed since
the filing of the writ and during that period,
important key witnesses had died and the
control of the appellant bank had changed
hands a few times and this would substantially
prejudice them if the action were to go to trial.

MLJ 73

Held: (Mohamed Dzaiddin SCJ)
 (1).An action may be dismissed for want of prosecution
when a party has been guilty of intentional and
contumelious default and where there has been
inordinate and inexcusable delay in the prosecution of
the action.
 On the question of inordinate and inexcusable delay, the
power should be exercised only where the court is
satisfied that there has been inordinate and inexcusable
delay on the part of the plaintiff and that such delay
would give rise to a substantial risk that it was not
possible to have a fair trial or is likely to cause serious
prejudice to the defendants.

MLJ 73

 Here, the trial judge had misapplied the above
principles as, since the affidavit was filed by the
appellants, there had been no further evidence
to show which key witnesses of the respondents
had since died.

MLJ 73

 The judge also overlooked the fact that the
respondents themselves had yet to file
their list of documents within the stipulated
period under the order of the senior
assistant registrar in the summons for
directions.
 This was certainly a factor to be taken into
account as to whether the respondents
had contributed to the delay.

MLJ 73

 Looking at the pleadings, the entire case of the
appellant would depend on documents which
are still in existence. Having regard to the above
observations and bearing in mind that the
prejudice alleged must be shown to be `serious`,
on the facts and circumstances of this case, no
serious prejudice to the respondents had been
made out.
 The delay in the present case was due to the
earnest desire of both parties to reach an
amicable settlement which did not succeed .

Effectively structuring
evidence-in-chief to fit
your case theory

Adducing evidence by
examination in chief of witness
 Our main method of adducing evidence in
chief is by way of a sworn witness
statement.
 S.137(1) of EA 1950 provides that
 Examination of witness by the party who calls
him shall be called examination in chief.

Adducing evidence by
examination in chief of witness
 S.138 of EA 1950 provides that
(1)Witness shall be first examined in chief then if
the adverse party so desire cross-examine
them if the party calling them so desires re-
examine.
(2) The examination and cross-examination
must relate to relevant fact but the cross-
examination need not be confined to the fact
to which the witness testified on his
examination in chief.

 Commencing the examination in chief:
introducing and personalising the witness
 For better appreciation of the testimony of the
witness and may enhance the credibility of the
witness.
 Help witness to settle down in the intimidating
atmosphere of the court room and enable him to
adopt to the course of question which is to be
asked.

 There is risk in spending too much time on
introduction but more leeway is allowed when
advocate examine his own client because the
character of the party may have bearing on the
evidence.

 Elicitingthe background facts and the
facts which constitute the series of
incidents leading up to the main facts of
the case
 This is where the chronological question begins.
 The objective is to draw from the witness the clear
and logical progression of the event as they
occurred.

 Eliciting the main facts
 This is an essential part of the examination in
chief as it will determine the liability or non-
liability.
 It is therefore necessary for the advocate to ask
question in a manner that will elicit responses
which recreate as clearly and accurately as
possible the details of the incident.

Manner of questioning
 Leading question
 S.142 of EA 1950 provides that
(1)Leading question may not, if objected to by the
adverse party, be asked in examination in chief or
in re-examination, except with the permission of
the court
(2) The court shall permit leading question as to
matters which are introductory or undisputed, or
which have in its opinion been already sufficiently
proved.

Handling
Documentary
Evidence

Primary Evidence
 s.61 of EA1950
 Primary evidence means the document itself
produced for the inspection of the court.

Soo Boon Siong V. Saw Fatt Seong & Ors
[2008] 1 CLJ 365

Held: (Mokhtar Sidin CJA)
 ‘It is a firmly established rule (to which there are
exceptions) requiring that when documentary
evidence is tendered, primary evidence of the
document, that is to say the production of the
documents itself is essential.’

Secondary Evidence

 s.63 of the EA 1950 provides for the
categories of secondary evidence.
 Refers to evidence of the contents of the
original document which comes by report,
or in some other second hand or
derivative way.

Secondary Evidence
 s.65 of EA 1950 deals with the conditions
to be satisfied before the admission the
secondary evidence.
 E.g. a copy of the original document, or
oral evidence from a person who has seen
the original and can recall its contents

Admission of documentary
evidence in civil law

Without prejudice communication

Rush & Tompkins Ltd v. Greater London
Council & Anor [1989] 1 A.C. HL
 “The (without prejudice) rule applies to exclude all negotiations
genuinely aimed at settlement whether oral or in writing from
being given in evidence. A competent solicitor will always head
any negotiating correspondence “without prejudice” to make
clear beyond doubt that in event the negotiations being
unsuccessful they are not to be referred to as the subsequent
trial. However, the application of the rule is not dependent upon
the use of the phrase “without prejudice” and if it is clear from the
surrounding circumstances that the parties were seeking to
compromise the action, evidence of the content of those
negotiations will, as a general rule, not be admissible at the trial
and cannot be used to establish an admission or partial
admission.”

Malayan Banking v Foo See Moi [1981] 2
MLJ 17 FC
 Held: (Chong Min Tat FJ)
 “It is a settled law that letters written without
prejudice are inadmissible in evidence of the
negotiations attempted. But it is also settled law
that where the negotiations conducted with
prejudice lead to a settlement, then the letters
become admissible in evidence of the terms of
the agreement, unless of course the agreement
has become incorporated in another document
which would then be the evidence of the
agreement.”

Overseas Investment Pte Ltd v Anthony
William O`Brien & Anor
[1988] 3 MLJ 332

Facts:
 In this case summary judgment had been obtained by
the plaintiff against the defendant for the sum of
S$120,689.02.
 The plaintiff levied execution by way of a writ of seizure
and sale and some household goods were seized at the
premises alleged to be the residence of the defendant.
 The wife of the defendant claimed that the goods had
been bought jointly and severally by her and her
husband but said she was unable to produce receipts
immediately.

[1988] 3 MLJ 332

 The sheriff took out an interpleader summons.
 At the hearing the claimant produced some receipts
and the matter was adjourned to enable her to
produce more receipts. The plaintiff agreed to release
11 items only.
 At the adjourned hearing the claimant gave oral
evidence. The registrar on the material before him
dismissed her claim.
 The goods were subsequently sold.
 She appealed to the High Court.

[1988] 3 MLJ 332

Held: (M. Shankar J)
 Where a case is to be decided on a context of affidavits,
the rule is that material allegations which are not
contradicted are deemed to be admitted.
 The plaintiff in this case had produced no evidence of
the defendant's title in the goods.
 Where one party gives sworn uncontradicted testimony
to prove a fact, that evidence must be accepted because
there is nothing in the other end of the scales. The
plaintiff had produced no evidence whatsoever.

[1988] 3 MLJ 332

 The doctrine of harta sepencarian applied to all
property acquired in the course of a marriage out of
the joint resources or the joint efforts of the spouses.
In the absence of clear evidence that the property was
the sole property of one spouse, both have an equal
share.
 Where a wife is in possession of chattles in the
matrimonial home and she gives sworn testimony that
they were hers, an execution creditor cannot be held
to have displaced her claim merely by producing
evidence that the husband was living in the same
home and is in receipt of good income.

[1988] 3 MLJ 332

 This is not just a case of wrongful irregular execution. It
was an execution levied by the plaintiff on goods which
have been proved to be the property not of the
defendant`s but a third party against whom the plaintiff
has no judgment. Such wrongful seizure is an actionable
trespass and the remedy is in damages.

 The decision of the registrar must be set aside and the
plaintiff be ordered to pay all damages suffered by the
claimant as a result of the seizure and sale.

Agreed/disagreed bundle
document

Chong Khee Sang V Pang Ah Chee [1984] 1
MLJ 377 CA
 On 24 April 1978 one Cheah Soi Moi ("the deceased")
was killed when the motorcycle he was riding was
knocked into by a motor car. On 17 July 1979 his mother
commenced an action, suing the car driver as
administratrix of the deceased`s estate and in her own
capacity as dependant, for damages under ss 7 and 8 of
the Civil Law Act, 1956. In default of defence, an order
was made precluding the defendant from defending the
action. The case was set down for hearing for damages
to be assessed.
 Solicitors for both parties corresponded and were agreed
on the contents of an Agreed Bundle but in the event,
the P's solicitors failed to prepare and file the Agreed
Bundle.

MLJ 377 CA
 P’s counsel adverted to the oral and written
consent of Defence Counsel to include the
disputed receipts in the proposed Agreed
Bundle. Defence Counsel qualified that his
consent to include the receipts in the Agreed
Bundle was not an admission that he accepted
that payments as proved.
 The learned President, having already admitted
the documents and marked them as and when
they were tendered by the P in her examination-
in-chief, ordered the case to proceed.

MLJ 377 CA
 No evidence was given by the P that she had
disbursed the money for motorcycle repairs and
funeral expenses nor did she call on the issuers of the
receipts to prove the payments. The receipts were left
to prove themselves.
 In his judgment, the learned President stated that to
his own knowledge Chinese funerals were expensive
and gave it as his opinion that $2,000 for funeral
expenses was fair and reasonable. He did not address
his mind to the issue whether the expenses were
proved.
 The D appealed on the ground that the P had not
proved her case.

MLJ 377 CA

Held: (Mahadev Shankar J)
 a document does not become admissible in
evidence merely because it has been handed to
the adjudicating officer and marked as an
exhibit;
 a document cannot be admitted into evidence
and marked as such until it has been properly
proved;
 a receipt is a document like any other and if it is
to be proved as a document such proof must be
given by its maker.

MLJ 377 CA

 In this case none of the receipts which the
plaintiff tendered were properly proved.
 The plaintiff did not give evidence that she
paid these monies, she did not witness
payment of the monies, she did not call
the people who had paid the monies, and
she did not call the people who had
received these monies

MLJ 377 CA
 by not objecting to the admissibility of the documents
when they were tendered in examination-in-chief but
only during cross-examination, there was no waiver on
the facts of this case especially as it had only become
apparent during cross-examination that the plaintiff
had no first-hand knowledge of the contents of these
documents;
 once a document is included in an Agreed Bundle, it is
no longer necessary to prove their existence or
execution. Nor is it necessary to produce the original.
But so far as the contents of the documents are
concerned, the truth of the same has still to be proved,
in the absence of any specific admission of the facts
therein contained.

MLJ 377 CA

 Practice Note 2 of 1977 issued on 8 February
1977
 To clarify the position the note expressly states:-

 "It will make for willing compliance if solicitors
and counsel consider or realise that agreeing on
documents implies merely dispensation with
proof of their existence or execution and does
not dispense with proof of the averments or
allegations therein, unless agreed to on the
pleadings or in other admissions."

MLJ 377 CA

A further Practice Note 4 of 1977 was also
issued which appears to have done away
with the necessity of filing a bundle of
documents not agreed.
 All these practice notes designed to protect
counsel in the preparation of cases and to
save time and expense of all concerned,
have over the years undoubtedly been
honoured more in their breach rather in their
observance.

Documents produced by
Computer

 Conditions to be satisfied before the document
can be admitted in evidence.
 s.90(1) of EA 1950 provides that

 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.

 For the purpose 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 which that computer was used.

Gnanasegaran a/l Prarajasingam v PP
[1997] 3 MLJ 1,11 CA
 The appellant appealed, arguing that the computer
print-out evidence was not admissible because
s.90A of the Evidence Act 1950 required that in
the case of computerized records, a certificate had
to be produced to authenticate the records.
 (Per Mahadez Shankar JCA) section 90(1) is an
updating of the ‘best evidence rule’ with the realities
of the electronic age, and now it is no longer
necessary to call the actual teller or bank clerk who
keyed in the date provided he did in the court of
ordinary use of the computer.

[1997] 3 MLJ 1,11 CA
 (Per Shaik Daud JCA ) s. 90A of the EA 1950
makes computerized records made in the
course of its ordinary use admissible if the
following is proven, ie that: (i) the documents
were produced by a computer; and (ii) the
computer records are produced in the course of
its ordinary use.

[1997] 3 MLJ 1,11 CA
 Proof can either be by a certificate signed by
someone solely in charge of the computer which
produced the printout as required by s 90A(2),
or by an officer of the bank.
 In this case, Zainal was able to testify with
regard to the documents because he was in
charge of the operations of current accounts.
 dismissing the appeal

Presenting the
evidence in court
Deemed clause of service
S.91 s.92 of EA 1950
Entire agreement clause
Conclusive evidence

TA Securities Bhd v Ng Yen Ling
[2000] 3 MLJ 743 HC
 The Ps claimed for contra losses suffered by
them in share trading carried out under the D’s
account with them. In applying to open the
account, the D agreed with the P in para 23 of
the covenant and undertakings annexed to the
application form that service of any legal
process were to be by way of prepaid
registered post sent to the D’s address and
that the legal process shall be deemed to have
been duly served and duly received by the D
upon the expiry of three days after the posting
was effected.

[2000] 3 MLJ 743 HC
 The P obtained a judgment in default of appearance
against the D. The defendant filed an application to
set aside the default judgment which was dismissed
by the senior assistant registrar. The D appealed.
 The D claimed that she did not receive the writ and
contending that the deeming was rebuttable, argued
that although it was not possible for the D to prove
non-receipt of the writ, the conduct of the D had
been consistent with her not having received the writ
and therefore her claim of not receiving the writ
should be accepted as cogent and credible.
 Appeal dismissed.

[2000] 3 MLJ 743 HC
Held: (Abdul Aziz J)
 The writ in this case was sent by prepaid
registered post to the proper address of the
defendant and the deeming of para 23 and of O
10 r 3(1)(b) of the Rules of the High Court
1980 came into operation.
 The words `shall be deemed` in para 23 meant
`shall be regarded as`, meaning that the
deeming was not meant to be a presumption
and was therefore not something that was
rebuttable.

[2000] 3 MLJ 743 HC
 The court was bound by authorities to hold that
the defendant was precluded from showing that
she did not receive the writ.
 The court had to take it as conclusive that the
writ was served on her. It was therefore not
necessary for the court to consider the conduct
of the defendant

Lee Chee Wei v Tan Hor Peow Victor and Others
and another Appeal [2007] 3 SLR 537; [2007]
SGCA 22
 In February 2005, the P entered into an
agreement to sell his shares in Distribution
Management Solutions Pte Ltd (“DMS”) (the
“Agreement”), a subsidiary of Accord
Customer Care Solutions Ltd (“ACCS”), to
the fourth defendant for $4.5m. The
Agreement expressly provided for the
parties’ position if listing did not take place
and further contained an “entire agreement”
clause.

SGCA 22

 Shortly thereafter, the Commercial Affairs Department
began an investigation into the affairs of ACCS and
some of its senior officers, which included the first,
third and fourth Ds. As a result, the prospective listing
plans of DMS were abandoned, and the fourth D
refused to complete the agreement. The first, third and
fourth Ds were subsequently convicted and sentenced
to imprisonment for engaging in a conspiracy to cheat
and the falsification of documents.
 The plaintiff commenced proceedings against all four
Ds for breach of the Agreement, alleging that the
fourth D entered into the Agreement on behalf of all
the Ds.

SGCA 22

 The Ds argued that the P was not entitled to
enforce the Agreement on the grounds that:
 (a) the failure to list DMS on the Main Board of the
Singapore Exchange, a contingent condition of the
Agreement;
 (b) the failure to provide a resolution of the board
of directors of DMS approving the registration of
the transfer of the shares as required by the
Agreement; and
 c) that the failure to list DMS frustrated the
purpose of the Agreement.

SGCA 22

 The trial judge rejected the D’s arguments
and found that the first and third Ds were
the principal parties interested in the
purchase of the plaintiff’s shares and
accordingly held the first, third and fourth
Ds liable for breach of the Agreement.

SGCA 22

 Nonetheless, the trial judge ordered
nominal damages of $300 and disallowed
the P’s claims for specific performance or
damages in lieu of specific performance
due to the failure by the p to plead for
damages “to be assessed”.

SGCA 22

A counterclaim by the fourth D for
repayment of the sum of $750,000 paid as
an initial deposit under the agreement was
also allowed on the basis that the P was
not entitled to retain the money paid
unless the Agreement specifically
provided that it was paid as a non-
refundable deposit or if the P actually
performed his part of the bargain.

SGCA 22

 The P was dissatisfied and appealed on the
grounds:
 (a) that specific performance of the sale and
purchase agreement for shares in a public
company should have been ordered;
 (b) if not, damages in lieu of specific performance
and the assessment should have been granted;
and
 (c) that the counterclaim for payment of the sum of
$750,000 should have been allowed. The fourth
defendant cross-appealed in relation to the finding
of liability.

SGCA 22

Held: (VK Rajah JA)
 The effect of an entire agreement clause was
essentially a matter of contractual interpretation and
necessarily depended upon its precise wording and
context. Generally, such clauses were conducive to
certainty as they defined and confined the parties’
rights and obligations within the four corners of the
written document, thereby precluding any attempt to
qualify or supplement the document by reference to
pre-contractual representations.

SGCA 22

 However, in so far as contracts were not
interpreted in a vacuum, objective facts could
potentially assist in the interpretation of
ambiguous terms.
 Entire agreement clauses would usually not
prevent a court from justifiably adopting a
contextual approach in contract
interpretation. Such clauses had little bearing
on textual or interpretative controversies as to
the meaning of particular words or terms in
contracts

s.91 of EA 1950 - Evidence of terms of
contracts, grants and other dispositions of
property reduced to form of document.
 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.

s.92 of EA 1950 - Exclusion of evidence
of oral agreement

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 -

s.92 of EA 1950 - Exclusion of evidence of
oral agreement
 (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;

oral agreement
 (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;

oral agreement

 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.

Tan Chong & Sons Motor Co (Sdn) Bhd V
Alan Mcknight [1983] 1 MLJ 220 FC
 In this case the respondent was a squadron leader
in the Royal Australian Air Force. He wanted to buy
a car and get the benefit of exemption from duty in
Malaysia and Australia.
 He would have obtained the exemption if the motor
car was taken out of Malaysia and if it compiled with
the Australian Design Regulations. He agreed to
buy a car from the appellants and signed a Buyer`s
Order which contained a condition that no guarantee
or warranty of any kind whatsoever was given by the
company.


 However the respondent only bought the car on the
representations of the appellant`s salesman that the
car conformed to the Australian Design Regulations.
 The car supplied did not comply with the
Regulations and the respondent had to sell the car
for $6,500 thereby incurring a loss of $11,219.54
($17,719.54-$6,500). The respondent also lost the
fiscal advantage of importing the car to Australia
duty free. The respondent claimed damages for
breach of warranty.


 The learned trial judge found that there had
been a warranty and this was breached by
the appellants. He awarded general damages
of $10,500 with interest at 8% from the date
of the writ to the date of payment and costs of
the suit at the Subordinate Court`s scale. No
special damages were awarded as these
were not pleaded and an application for
amendment of the pleadings was refused.


 The appellants appealed to the Federal Court
contending that they were not liable or that
the damages were too high while the
respondents cross-appealed on the ground
that the damages were too low and that he
was entitled to interest from the date of
accrual of the cost of action and to costs of
the suit at the High Court scale and to special
damages.


 Atthe hearing of the appeal, counsel for the
appellants accepted the findings of facts by
the learned trial judge. The appeal was
therefore confined to legal issues on liability
and quantum only.


 Held: (Gunn Chitt TuanJ)
 there can be no doubt that it was the
representations by the salesman expressed
by words and conduct that led to the
respondent to enter into the agreement to
purchase the car. There was abundance of
evidence showing that the representations
were not innocent and on the contrary could
even be considered to be deceitful or plain
lies;


 there was clear evidence that had it not been for
the promise of the salesman to deliver him a car
complying with the Australian Design
Regulations, the respondent would not have
signed the Buyer`s Order;

 therepresentations made by the
salesman was binding on the appellants. It
would lead to great mischief in the law and
certainly would not be in the interest of
business efficacy if representations made
by a salesman in the course of his
employment could not be relied upon by
an intending purchaser whom he was
dealing with;


 the prohibition against admissibility of
evidence under s 92 only applies where all
- as opposed to some only - of the terms
of the contract are written into the
agreement. Thus where some terms are
given orally and some in writing oral
evidence can be given to prove the terms
agreed to orally;


 where the oral representations as in this
case are in conflict with the printed
condition in the written contract, the
representations must be given an
overriding effect and the printed condition
must therefore be rejected;

Citibank Na V Ooi Boon Leong & Ors [1981]
1 MLJ 282
 In this case the appellant bank sued the
respondents on a contract of guarantee
for banking accommodation given to a
company.
 The respondents were the directors of the
company and in the contract of guarantee
they had agreed in effect to waive their
rights in respect of any variation or
alteration of the contract between the
appellant bank and the company.

1 MLJ 282

 Theadvances were not repaid and the
appellant bank sued the respondents. The
appellant bank then applied for summary
judgment under O 14 of Rules of the
Supreme Court. The Assistant Registrar
made an order in terms but this order was
reversed in the High Court.

1 MLJ 282

 The respondents had contended that their
liabilities under the guarantee were
conditional on the bank securing certain
acts on the part of the company, the
directors and the shareholders. Such acts
were not contained in the guarantee but
were contained in a letter which set out
the terms and conditions of the loan.

1 MLJ 282

 The respondents relied on the fact that the
bank had not obtained
 (a) a valid debenture on the company`s
assets containing a provision to enable
receivers to be appointed in the event of
default;
 (b) a letter of undertaking from the
shareholders who held 40% of the issued
share capital not to divest their shareholdings
without the bank`s consent.

1 MLJ 282

Held: (Raja Azlan Shah)
 In any event the contract of guarantee in this case
contained express provisions giving the bank the
right to do or omit to do certain things without
thereby prejudicing the right against the
respondents. As the respondents had agreed to
waive any variation or alteration and the bank had
proceeded with the performance of the contract on
that basis it would be inequitable to allow them to
resile from the contract

1 MLJ 282

 in this case the respondents were bound
under the contract of guarantee to accept the
certificate of indebtedness duly executed by
the Vice-President of the bank as conclusive
evidence of the debt due to the bank. On this
footing the bank was entitled to summary
judgment.

Putting and suggesting
evidence in cross-examination

 put – when matters are ‘put’ in cross
examination by defence counsel it is implied
that positive evidence will be called to prove
the matters put.
 Suggest – where all that is done is to
‘suggest’ to a witness that a fact is not so,
then what is meant is that the assertions of
the witness are inherently incredible but that
no positive evidence will be called to
contradict the statement.
(putting and suggesting in cross-examination, M. Shankar J, January 1984)

 If the accused intends to suggest that a
prosecution witness is not speaking the
truth on a particular point, the witness’s
attention must be directed to the fact in
cross-examination.

 Browne v Dunn (1893) 6 R 67
 (Lord Chancellor Herschell)

 “…..seem to be to be absolutely essential to the proper conduct
of a cause where it is intended to suggest that a witness is not
speaking the truth on a particular point, to direct his attention to
the fact, by some question put in cross-examination showing that
that imputation is intended to be made, and not to take his
evidence and pass it by as a matter altogether unchallenged and
then, when it is impossible for him to explain, as perhaps he
might have been to do if such questions had been put to him, the
circumstance which it is suggested indicate that the story he tells
ought not to be believed, to argue that he is a witness unworthy
of credit.”

 The effect of failure to cross-examine a witness on
material point of the case will amount to an acceptance
of the witness’s testimony. (per Raja Azlan Shah CJ in
Wong Swee Chin v PP [1981] 1 MLJ 212.
 The nature of the defence is to be ascertained not only
from the evidence of the accused himself but also from
the trend of the cross-examination of the prosecution
witnesses and from the argument of the accused’s
counsel at the close of the trial.

 It is therefore important for the accused to put
his essential and material case to the
prosecution witness in cross-examination.
(Mukhrji J AEG Carapiet v AY Derderian AIR
1961 Cal 359

 Failureby the defence to put its case to the
prosecution witness.
 Alcontara a/l Ambross Anthony v PP
[1996] 1 MLJ 209 (Edgar Joseph Jr FCJ)
 Failure of the defence to put its case, as
aforesaid, can never, by itself, relieve the
prosecution of its duty of establishing the charge
against the accused beyond any reasonable
doubt.

 Marking of agreed bundle of document where
P and D agree to its admissibility of its
contents.
 Marking of disagreed bundle of documents
where one party disagrees to its
authenticity/contents/maker- party to adduce
documents/witness to corroborate evidence.

 Marking on plaintiff’s exhibit by the plaintiff of
documents relied by the plaintiff
 Marking of defendant’s exhibit by the
defendant of document relied by the
defendant.
 Marking of Identification evidence “ID” –
where one party objects to its authenticity
and maker not called –generally no weight is
attached to it.

Improper admission
and rejection of
evidence

s. 167 EA 1950 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.

Malayan Banking Bhd v Dr
Betharajoo a/l Krishnasamy [2000] 3
MLJ 391
 The appellant granted a loan to the borrower
which the respondent guaranteed. The
borrower defaulted in repayment of the loan
as a result of which the appellant
commenced proceedings against the
respondent. A letter of demand dated 17
December 1987 and an AR card were
included in the disputed bundle of
documents.

MLJ 391
 Atthe trial, the letter of demand and the AR
card were admitted in evidence and marked
as exhibits P7 and P8 respectively. During
submission, the respondent contended that
P7 and P8 were inadmissible in evidence.
The sessions court judge ruled that although
both P7 and P8 had been admitted in
evidence and marked as exhibits, they were
inadmissible and accordingly rejected them.
The appellant appealed.

MLJ 391
 The appellant contended that when P7 and
P8 were sought to be introduced in evidence
and the court was asked to mark them as
exhibits, the respondent should have but did
not object to their being so marked and
having failed to do so, could not object to
their admissibility at the submission stage of
the hearing.

MLJ 391
 Itwas further submitted that once a
document was marked as an exhibit, its
contents became admitted in evidence for the
purpose of the trial and accordingly P7 and
P8 should not have been rejected but instead
considered by the sessions court judge in
arriving at her decision.

MLJ 391
 The respondent argued that as the two
documents formed part of the `disagreed
bundle`, it was imperative that the maker of the
documents be called to tender them in evidence.

 It was submitted that the appellant had tendered
the documents through a witness who had no
knowledge of their contents and that tantamount
to tendering hearsay evidence and where
hearsay evidence was sought to be introduced,
it matters not that no objection was taken or that
the documents had become marked as exhibits
-hearsay evidence remained inadmissible.

MLJ 391

Held: (Clement Skinner JC)
 The court found that when the respondent
objected to the `admissibility` of P7 and P8,
he was really objecting to the mode by which
these two documents were being proven.
 Since it was the mode of proving these two
documents that the respondent was objecting
to, the objection should have been taken at
the trial before the documents were marked
and admitted in evidence.

MLJ 391
A party seeking to rely on a document which
is placed in a disputed bundle is not
precluded or prevented from trying to have
that document admitted in evidence and
marked as exhibit without having to formally
prove it.
 And if such attempt is made, as it was in this
case, it is incumbent on an opposing counsel
to remain vigilant and object to it immediately
so that the party trying to introduce the
document is put to strict proof of it.

MLJ 391
 But if opposing counsel is content to remain
silent and allow the document to come in
without being formally proved, then it would
be too late to take objection at the
submission stage of the trial because by then
it would be beyond the power of counsel
relying on that document to formally prove it.

MLJ 391
 The sessions court judge misdirected herself
in law when she allowed the respondent to
object to the admissibility of P7 and P8 at the
submission stage and in subsequently
rejecting them

MLJ 391
 What has resulted from the failure of the
respondent to object to P7 and P8 being marked
as exhibits was that they had become admitted
in evidence without formal proof of their
existence or authenticity having to be
established and to that extent P7 and P8 had
become like any other document, placed without
any conditions attaching thereto in an agreed
bundle.
 The questions concerning the weight to be given
to the documents and whether their contents
stand proven were matters to be decided by the
trial court.

Wako Merchant Bank (Singapore) Ltd v Lim
Lean Heng & Ors [2000] 3 MLJ 401 HC

Facts:
 The P obtained a judgment against the first D in
the Republic of Singapore which had been
registered as a judgment of the High Court of
Malaya. The P then obtained an ex parte
Mareva injunction.
 Among the assets affected by the ex parte
Mareva injunction were several bank accounts,
two in the name of the first D, two in the name of
the eleventh defendant company, one in the
name of the twelfth D company and four in the
name of the fifteenth D.


 Thedetails of those bank accounts were
discovered by a private investigator
engaged by the P. His affidavit went in
support of the P's ex parte application.
The P's managing director also affirmed
an affidavit in support of the ex parte
application.


 By the present applications, the first D,
the eleventh and twelfth Ds and the
fifteenth D sought leave to cross-
examine the private investigator and the
managing director on their affidavits in
order:


 (i) to establish that in the obtaining of the
information relating to the bank accounts,
there had been a breach of s 97 of the
Banking and Financial Institution Act 1989.
It was contended that if there has been a
breach of s 97, the information is
inadmissible and consequently those bank
accounts should not have been subjected
to the ex parte injunction; and


 (ii)to elicit the full circumstances of the
obtaining of the information in
contravention of s 97 in order to make out
a case of coming to equity without clean
hands and without disclosing those
circumstances


 The first is whether evidence obtained in
contravention of s 97 is admissible. The
second is whether the clean-hand
principle applies in the circumstances of
this case.


Held: (Abdul Aziz J)
 It is obvious that the intention of Parliament in
enacting s 97 is to protect the secrecy of the
affairs and account of a customer of a financial
institution as such a customer, but, in giving
effect to that intention, Parliament has gone
only to the extent of creating offences of the
prohibited disclosures.


 Parliament has not gone further to deal with
the question of the admissibility or otherwise in
criminal or civil proceedings of any information
or document disclosed in contravention of s
97, which is a matter of the law of evidence,
where the law is that evidence illegally
obtained is nonetheless admissible if relevant.


 TheDs had failed to present any convincing
argument against the application of the
general law to a disclosure in evidence in
contravention of s 97 of information or
document relating to the affairs or account of
a customer of a financial institution.


 The general law being such, it will require an
express enactment of Parliament to render
inadmissible the evidence so disclosed. It will
therefore be irrelevant to elicit evidence to
show that the existence and particulars of the
bank accounts are inadmissible and the Ds
cannot be given leave to cross-examine the
private investigator and the managing
director for that purpose.


 The P had come to court for a Mareva
injunction with evidence that was admissible in
law of the existence and particulars of the bank
accounts and that was true, notwithstanding
that it may be an offence against s 97 to have
obtained or disclosed it and notwithstanding
that those sections are aimed at protecting the
secrecy of those accounts.


 It would be unconscionable to bar the P from the relief
sought on the ground of any wrongdoing in obtaining
the evidence. The principle of clean hands does not
prevail in the circumstances of the case.
 The principle was irrelevant and the D could not be
given leave to cross-examine the private investigator
and the managing director for the purpose of showing
that the P had not come to court with clean hands

 Cases are won or lost based primarily on
evidence.
 Proper presentation of evidence is of utmost
importance.
 A Court of Law can only decide based on the
evidence before it.
 The lack of evidence can prove fatal to one’s
case.

Thank You
Assisted by Valerie Chong
LLB (Hons)
CLP

Dealing With Evidence

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