EVIDENCE ACT 1950

a Judge;

a Sessions Court Judge;

a Magistrate; and

except an arbitrator, every person legally authorized to take evidence;

“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—

letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or representation whatsoever;

any visual recording (whether of still or moving images);

any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

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),

, (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter;

A writing is a document.

Words printed, lithographed or photographed are documents.

A map, plan, graph or sketch is a document.

Evidence 15

An inscription on wood, metal, stone or any other substance, material or thing is a document.

A drawing, painting, picture or caricature is a document.

A photograph or a negative is a document.

A tape recording of a telephonic communication, including a recording of such communication transmitted over distance, is a document.

A photographic or other visual recording, including a recording of a photographic or other visual transmission over a distance, is a document.

A matter recorded, stored, processed, retrieved or produced by a computer is a document;

“evidence” includes—

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;

all documents produced for the inspection of the court:

such documents are called documentary evidence;

“fact” means and includes—

any thing, state of things or relation of things capable of being perceived by the senses;

any mental condition of which any person is conscious;

That there are certain objects arranged in a certain order in a certain place is a fact.

That a man heard or saw something is a fact.

That a man said certain words is a fact.

That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

That a man has a certain reputation is a fact;

“fact in issue” means 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 proceeding necessarily follows;

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A is accused of the murder of B.

At his trial the following facts may be in issue:

that A caused B’s death;

that A intended to cause B’s death;

that A had received grave and sudden provocation from B;

that A at the time of doing the act which caused B’s death was by reason of unsoundness of mind incapable of knowing its nature;

“film” includes a microfilm and any negative;

“microfilm” means any transparent material bearing a visual image in reduced size either singly or as a series and includes a microfiche;

“negative” means a transparent negative photograph on any substance or material, and includes any transparent negative photograph made from the original negative photograph;

“proved”: a fact is said to be “proved” when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists;

“disproved”: a fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist;

“not proved”: a fact is said to be “not proved” when it is neither proved nor disproved;

“relevant”: one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.

Presumption

Whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved.

When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue:

A’s beating B with the club;

A’s causing B’s death by the beating; and

A’s intention to cause B’s death.

A a party to a suit, does not comply with a notice given by B the other party to produce for B’s inspection a document referred to in A’s pleadings. This section does not enable A to put the document in evidence on his behalf in that suit, otherwise than in accordance with the conditions prescribed by the law relating to civil procedure.

Relevancy of facts forming part of same transaction

A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating or so shortly before or after it as to form part of the transaction is a relevant fact.

A is accused of waging war against the Yang di-Pertuan Agong by taking part in an armed insurrection in which property is destroyed, troops are attacked and gaols are broken open. The occurrence of these facts is relevant as forming part of the general transaction, though A may not have been present at all of them.

A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose and forming part of the correspondence in which it is contained are relevant facts though they do not contain the libel itself.

The question is whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively.

Each delivery is a relevant fact.

Facts which are the occasion, cause or effect of facts in issue

The question is whether A robbed B.

The facts that shortly before the robbery B went to a fair with money in his possession and that he showed or mentioned the fact that he had it to third persons are relevant.

The question is whether A murdered B.

Marks on the ground produced by a struggle at or near the place where the murder was committed are relevant facts.

The question is whether A poisoned B.

The state of B’s health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.

Evidence 19

Motive, preparation and previous or subsequent conduct

The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

Explanation 1—The word “conduct” in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2—When the conduct of any person is relevant any statement made to him or in his presence and hearing which affects his conduct is relevant.

The question is whether a given document is the will of A.

The state of A’s property and of his family at the date of the alleged will may be relevant facts.

A sues B for a libel imputing disgraceful conduct to A; B affirms that the matter alleged to be libellous is true.

The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.

The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.

A is accused of a crime.

The fact that soon after the commission of the crime A absconded from his house is relevant under section 8 as conduct subsequent to and affected by facts in issue.

The fact that at the time when he left home he had sudden and urgent business at the place to which he went is relevant as tending to explain the fact that he left home suddenly.

The details of the business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

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A sues B for inducing C to break a contract of service made by him with A. C on leaving A’s service says to A: “I am leaving you because B has made me a better offer.” This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.

A accused of theft is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it: “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.

A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

Things said or done by conspirator in reference to common design

if they are inconsistent with any fact in issue or relevant fact;

if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

The question is whether A committed a crime at Kuala Lumpur on a certain day.

The fact that on that day A was at Taiping is relevant.

The fact that near the time when the crime was committed A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it is relevant.

The question is whether A committed a crime.

The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B,

C or D is relevant.

In suits for damages facts tending to enable court to determine amount are relevant

any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;

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particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from.

The question is whether A has a right to a fishery. A document conferring the fishery on A’s ancestors, a pledge of the fishery by A’s father, a subsequent grant of the fishery by A’s father irreconcilable with the pledge, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.

Facts showing existence of state of mind or of body or bodily feeling

A is accused of receiving stolen goods, knowing them to be stolen.

It is proved that he was in possession of a particular stolen article.

The fact that at the same time he was in possession of many other stolen articles is relevant as tending to show that he knew each and all of the articles of which he was in possession to be stolen.

A is accused of fraudulently delivering to another person a counterfeit coin, which at the time when he delivered it he knew to be counterfeit.

The fact that at the time of its delivery A was possessed of a number of other pieces of counterfeit coin is relevant.

The fact that A had been previously convicted of delivering to another person as genuine a counterfeit coin, knowing it to be counterfeit, is relevant.

Evidence 25

A sues B for damage done by a dog of B’s which B knew to be ferocious.

The facts that the dog had previously bitten X, Y and Z, and that they had made complaints to B, are relevant.

The question is whether A, the acceptor of a bill of exchange, knew that the name of the payee was fictitious.

The fact that A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee, if the payee had been a real person, is relevant, as showing that A knew that the payee was a fictitious person.

A is accused of defaming B by publishing an imputation intended to harm the reputation of B.

The fact of previous publications by A respecting B, showing ill-will on the part of A towards B, is relevant, as proving A’s intention to harm B’s reputation by the particular publication in question.

The facts that there was no previous quarrel between A and B, and that

A repeated the matter complained of as he heard it, are relevant as showing that A did not intend to harm the reputation of B.

A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C who was insolvent, suffered loss.

The fact that at the time when A represented C to be solvent C was supposed to be solvent by his neighbours, and by persons dealing with him, is relevant, as showing that A made the representation in good faith.

A is sued by B for the price of work done by B upon a house of which A is owner by the order of C, a contractor.

A’s defence is that B’s contract was with C.

The fact that A paid C for the work in question is relevant as proving that A did in good faith make over to C the management of the work in question, so that C was in a position to contract with B on C’s own account and not as agent for A.

A is accused of the dishonest misappropriation of property which he had found, and the question is whether, when he appropriated it, he believed in good faith that the real owner could not be found.

The fact that public notice of the loss of the property had been given in the place where A was is relevant as showing that A did not in good faith believe that the real owner of the property could not be found.

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The fact that A knew or had reason to believe that the notice was given fraudulently by C, who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A’s good faith.

A is charged with shooting at B with intent to kill him.

In order to show A’s intent, the fact of A’s having previously shot at B may be proved.

A is charged with sending threatening letters to B.

Threatening letters previously sent by A to B may be proved as showing the intention of the letters.

The question is whether A has been guilty of cruelty towards B, his wife.

Expression of their feelings towards each other shortly before or after the alleged cruelty are relevant facts.

The question is whether A’s death was caused by poison.

Statements made by A during his illness as to his symptoms are relevant facts.

The question is, what was the state of A’s health at the time when an assurance on his life was effected?

Statements made by A as to the state of his health at or near the time in question are relevant facts.

A sues B for negligence in providing him with a carriage for hire not reasonably fit for use whereby A was injured.

The fact that B’s attention was drawn on other occasions to the defect of that particular carriage is relevant.

The fact that B was habitually negligent about the carriages which he let to hire is irrelevant.

A is tried for the murder of B by intentionally shooting him dead.

The fact that A on other occasions shot at B is relevant as showing his intention to shoot B.

The fact that A was in the habit of shooting at people with intent to murder them is irrelevant.

A is tried for a crime.

The fact that he said something indicating an intention to commit that particular crime is relevant.

Evidence 27

The fact that he said something indicating a general disposition to commit crimes of that class is irrelevant.

Facts bearing on question whether act was accidental or intentional

A is accused of burning down his house in order to obtain money for which it is insured.

The facts that A lived in several houses successively, each of which he insured, in each of which a fire occurred, and after each of which fires A received payment from a different insurance office, are relevant as tending to show that the fire was not accidental.

A is employed to receive money from the debtors of B. It is A’s duty to make entries in a book showing the amounts received by him.

He makes an entry showing that on a particular occasion he received less than he really did receive.

The question is whether this false entry was accidental or intentional.

The facts that other entries made by A in the same book are false, and that the false entry is in each case in favour of A are relevant.

A is accused of fraudulently delivering to B a counterfeit ringgit.

The question is whether the delivery of the ringgit was accidental.

The facts that soon before or soon after the delivery to B, A delivered counterfeit ringgit to C, D and E are relevant as showing that the delivery to B was not accidental.

Existence of course of business when relevant

The question is whether a particular letter was despatched.

The facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant.

The question is whether a particular letter reached A.

The facts that it was posted in due course and was not returned through the Dead Letter Office are relevant.

Admissions and Confessions

Admission and confession defined

A confession is an admission made at any time by a person accused of an offence, stating or suggesting the inference that he committed that offence.

Subsection (2) shall have no application in Sarawak.

Admission by party to proceeding, his agent or person interested

Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character.

Statements made by—

an admission may be proved by or on behalf of the person making it when it is of a nature that, if the person making it were dead, it would be relevant as between third persons under section 32;

an admission may be proved by or on behalf of the person making it when it consists of a statement of the existence of any state of mind or body relevant or in issue, made at or about the time when that state of mind or body existed and is accompanied by conduct rendering its falsehood improbable;

an admission may be proved by or on behalf of the person making it if it is relevant otherwise than as an admission.

The question between A and B is whether a certain document is or is not forged. A affirms that it is genuine; B that it is forged.

A may prove a statement by B that the document is genuine, and B may prove a statement by A that the document is forged; but A cannot prove a statement by himself that the document is genuine, nor can B prove a statement by himself that the document is forged.

A, the captain of a ship, is tried for casting her away.

Evidence is given to show that the ship was taken out of her proper course.

A produces a book kept by him in the ordinary course of his business, showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statements because they would be admissible between third parties if he were dead under paragraph 32(1)(b).

A is accused of a crime committed by him at Kuala Lumpur. He produces a letter written by himself and dated at Penang on that day, and bearing the Penang postmark of that day.

The statement in the date of the letter is admissible, because if A were dead it would be admissible under paragraph 32(1)(b).

A is accused of receiving stolen goods, knowing them to be stolen.

He offers to prove that he refused to sell them below their value.

Evidence 31

A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.

A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit.

He offers to prove that he asked a skilful person to examine the coin as he doubted whether it was counterfeit or not, and that that person did examine it and told him it was genuine.

A may prove these facts for the reasons stated in illustration (d).

When oral admissions as to contents of documents are relevant

(Deleted by Act A324).

Confession by accused while in custody of police not to be proved against him

(Deleted by Act A324).

How much of information received from accused may be proved

(Deleted by Act A324).

Confession made after removal of impression caused by inducement, threat or promise relevant

(Deleted by Act A324).

Evidence 33

Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.

(Deleted by Act A324).

Consideration of proved confession affecting person making it and others jointly under trial for same offence

(Deleted by Act A324).

Explanation— “offence” as used in this section includes the abetment of or attempt to commit the offence.

when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

Such a statement is relevant whether the person who made it was or was not at the time when it was made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;

when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him;

Evidence 35

when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;

when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when the statement was made before any controversy as to the right, custom or matter had arisen;

when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised;

when the statement is contained in any document which relates to any transaction as is mentioned in paragraph 13(a);

when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question;

when the statement was made in the course of, or for the purposes of, an investigation or inquiry into an offence under or by virtue of any written law; and

where the statement was made by a public officer in the discharge of his duties.

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The question is whether A was murdered by B; or

A dies of injuries received in a transaction in the course of which she was ravished.

The question is whether she was ravished by B; or

The question is whether A was killed by B under circumstances that a suit would lie against B by A’s widow.

Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

The question is as to the date of A’s birth.

An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

The question is whether A was in Kuala Lumpur on a given day.

A statement in the diary of a deceased advocate regularly kept in the course of business that on a given day the advocate attended A at a place mentioned in Kuala Lumpur for the purpose of conferring with him upon specified business is a relevant fact.

The question is whether a ship sailed from Penang harbour on a given day.

A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Penang harbour is a relevant fact.

The question is whether rent was paid to A for certain land.

A letter from A’s deceased agent to B, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.

The question is whether A and B were legally married.

The statement of a deceased clergyman that he married them under circumstances that the celebration would be a crime is relevant.

The question is whether A, a person who cannot be found, wrote a letter on a certain day.

The fact that a letter written by him is dated on that day is relevant.

Evidence 37

The question is what was the cause of the wreck of a ship?

A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

The question is whether a given road is a public way.

A statement by A, a deceased Penghulu of the Mukim, that the road was public is a relevant fact.

The question is what was the price of shares on a certain day in particular market.

A statement of the price made by a deceased broker in the ordinary course of his business is a relevant fact.

The question is whether A, who is dead, was the father of B.

A statement by A that B was his son is a relevant fact.

The question is what was the date of the birth of A?

A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

The question is whether and when A and B were married.

An entry in a memorandum book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

A sues B for a libel expressed in a printed caricature exposed in a shop window.

The question is as to the similarity of the caricature and its libellous character.

The remarks of a crowd of spectators on these points may be proved.

The provisions of paragraphs (1)(i) and (j) shall apply only in relation to a criminal proceeding.

Admissibility of evidence given under section 265a of the

Criminal Procedure Code 32a.  Notwithstanding any other provision in this Act, evidence taken in accordance with section 265a of the Criminal Procedure

Code [Act 593] shall be admissible in any criminal proceedings.

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Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated

the proceeding was between the same parties or their representatives in interest;

the adverse party in the first proceeding had the right and opportunity to cross-examine;

the questions in issue were substantially the same in the first as in the second proceeding.

Explanation—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Statements Made Under Special Circumstances

Entries in books of account when relevant

any legislation enacted by Parliament or by the legislature of any part of the Commonwealth;

any legislation enacted by the legislature of any State;

or

any printed paper purporting to be—

the Gazette printed under the authority of the

Government of Malaysia or of any State;

Such judgment, order or decree is conclusive proof—

A and B separately sue C for a libel which reflects upon each of them. C in each case says that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case or in neither.

A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.

A prosecutes B under section 498 of the Penal Code for enticing away C, A’s wife.

B denies that C is A’s wife, but the court convicts B.

Afterwards C is prosecuted for bigamy in marrying B during A’s lifetime.

C says that she never was A’s wife.

The judgment against B is irrelevant as against C.

A has obtained a decree for the possession of land against B. C, B’s son, murders A in consequence.

The existence of the judgment is relevant as showing motive for a crime.

A is charged with theft and with having been previously convicted of theft.

The previous conviction is relevant as a fact in issue.

A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.

Fraud or collusion in obtaining judgment or incompetency of court may be proved

Such persons are called experts.

The question is whether A was poisoned by a certain poison.

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The fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is relevant.

The question is whether an obstruction to a harbour is caused by a certain sea wall.

The fact that other harbours similarly situated in other respects but where there were no such sea walls began to be obstructed at about the same time is relevant.

Opinion as to handwriting when relevant

the usages and tenets of any body of men or family;

the constitution and government of any religious or charitable foundation; or

the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon are relevant facts.

Opinion on relationship when relevant