Chapter 11 - Documentary Evidence

Question 1

DOCUMENTARY EVIDENCE

Overview

Answer 1

1) General principles
2) Types of documents
2) Best evidence rule
3) Parole evidence rule

Question 2

DOCUMENTARY EVIDENCE

General principles

Answer 2

1) Definition of document:
- S.3:
2) Laws relating to documentary evidence:
- Chapter V

Question 3

xx

Answer 3

xx

Question 4

xx

Answer 4

xx

Question 5

TYPES OF DOCUMENTS

Overview

Answer 5

1) Tape recordings
2) CCTV recordings
3) WhatsApp message
4) Facsimile letter
5) Documents produced by computer
6) Public documents

Question 6

TAPE RECORDINGS

Overview

Answer 6

1) Conditions for admissibility
2) Pre-requisites
3) Example - taped conversation
4) Example - taped confession in foreign language

Question 7

TAPE RECORDINGS

Conditions for admissibility

Answer 7

R v Maqsud Ali:

• Tape recording is admissible in evidence provided that:

1) the accuracy of the recording can be proved;
2) the voices recorded are properly identified;
3) the evidence is relevant & admissible.

Question 8

TAPE RECORDINGS

Pre-requisites

Answer 8

Mohd Ali bin Jaafar v PP:

• The tape was run through & found to be clean before the recording was made;
• the machine was in proper working order;
• the tape was not tampered with or alter in any way & it should be established in who is in possession that the tape was at all times;
• the witness played the tape over after making the recording & heard voices which they can identify;
• a transcript was prepared of the voice;
• the witness played the recording & checked it with the transcript to identify the identity of voices & the conversations.
• If there is no evidence to show that a taped conversation is an accurate account of a conversation that occurred, then it is not admissible.

Question 9

TAPE RECORDINGS

Example - taped conversation

Answer 9

PP v DSAI (No. 3):

• P sought to adduce parts of a taped conversation between prosecution witness;
• it had transpired that the conversations in total of 7 tapes have been edited & reduced to 4 tapes;

Held:

• The evidence indicated that the tapes have been tampered with;
  The conversation in 4 tapes is not an accurate account of what actually transpired between the parties;
• The fact that the original 7 tapes were burnt & not retained is in itself a suspicious circumstance & casts serious doubt as to the authenticity of the edited 4 tapes;
• If there is no evidence to show that a taped conversation is an accurate account of a conversation that occurred, it is inadmissible.

Question 10

TAPE RECORDINGS

Example - taped conversation in foreign language

Answer 10

R v Maqsud Ali:

• The accused was convicted for murder & prosecution has adduced a tape recording of conversations between two accused persons;
• The conversations are in foreign dialect & recorded in the room which was above a noisy bus-stop;
• In the conversations, both the accused confessed to killing;
• Translations of the taped conversations were prepared.

The Lordships held:

• Tape recording is admissible in evidence provided that pre-requisites & conditions for admissibility are fulfilled.
• OTF, it is admissible.

Question 11

CCTV RECORDING

Overview

Answer 11

1) Whether CCTV is document

2) Conditions for admissibility

Question 12

CCTV RECORDING

Whether CCTV recording is “document”

Answer 12

Ahmad Najib Aris v PP (FC):

• Before the CCTV tapes can be admitted as evidence it must be considered whether they are documents produced by a computer.
• Ref. S.3 EA: A CCTV recording is a document produced by computer.

Question 13

CCTV RECORDING

Conditions for admissibility

Answer 13

Ahmad Najib Aris v PP (FC):

• It follows that the CCTV tapes must satisfy the requirements of section 90A of the Act before they can be admitted in evidence.
• OTF, as this had not been done, they are inadmissible.

Question 14

WHATSAPP MESSAGE

Overview

Answer 14

1) Whether WA message is document
2) Conditions for admissibility
3) Example - No conclusive proof
4) Example - Existence of more reliable evidence

Question 15

WHATSAPP MESSAGE

Whether WhatsApp message is “document”

Answer 15

Mok Yii Chek v Sovo Sdn Bhd:

• print-outs of e-mails and Whatsapp messages fall within the wide meaning of “document” under the Evidence Act.
  As such, those print-outs can be treated as any other printed document when it comes to admissibility.

Question 16

WHATSAPP MESSAGE

Whether admissible

Answer 16

Mok Yii Chek v Sovo Sdn Bhd:

• If party disputes the genuineness of a print-out of a Whatsapp message, the Whatsapp message may still be admitted as evidence if the following criteria is met:

1) The party who adduces the Whatsapp message must prove that the Whatsapp message concerns the existence or non-existence of a fact in issue, or that it is otherwise relevant to the proceedings; and
2) The party who adduces the Whatsapp message must meet the procedural requirements of admitting a document produced by a computer (e.g: through oral evidence that the print out was produced by the computer in the course of the ordinary use of the computer, or by providing a certificate under Section 90A of the Evidence Act 1950).

• i.e. conditions for admissibility is as those under S.90A.

Question 17

WHATSAPP MESSAGE

Example - No conclusive proof

Answer 17

Mohamad Azhar Abdul Halim v Naza Motor Trading Sdn Bhd:

• the WhatsApp snapshot image does not conclusively prove that it was indeed the Claimant who was purportedly having a conversation with COW-1;
• there is doubt as to whether the Claimant had a conversation with COW-1 at the material time and had stated the threatening and harassing messages via WhatsApp.

Question 18

WHATSAPP MESSAGE

Example - Existence of other more reliable evidence

Answer 18

Nazaruddin Mohd Shariff @ Masari & Ors v Samsyem Saam & Ors:

• The High Court concluded that this issue could easily be proven by adducing the “Sijil Faraid”, a formal document which would have conclusively shown the rightful beneficiaries of the estate, which the Defendants failed to do.
• As such, the High Court refused to admit the WhatsApp messages as evidence.

Question 19

FACSIMILE LETTER

Conditions for admissibility

Answer 19

Tempil Perkakas Sdn Bhd v Foo Sex Hong:

• facsimile is a document & admissible if conditions under S.73A is fulfilled;
• i.e. conditions for admissibility is S.73A.

Question 20

DOCUMENTS PRODUCED BY COMPUTER

Conditions for admissibility

Answer 20

Gnanasegaran Pararajasingam v PP:

• Section 90A should be read together as they form one whole provision for the admissibility of documents produced by computers.
• i.e. conditions for admissibility is those under S.90A.

Question 21

PUBLIC DOCUMENTS

Overview

Answer 21

1) What are public documents
2) Certified copies of public documents
3) Admissibility of public documents

Question 22

PUBLIC DOCUMENTS

What are public documents

Answer 22

1) The law - S.74
2) Example - Mohd Isha Awang v Mohamad Idris Seramal Baris (CA, 2020):
- a judgment of the court is a public document under S.74 of the EA.

Question 23

PUBLIC DOCUMENTS

Certified copies of public documents

Answer 23

1) The law:
- S.76 & 77
2) Requirement of certificate - Noliana bte Sulaiman v PP:

• Requirements of the certificate are mandatory;
• Without the certificate, the certified copy will be inadmissible;
• a failure to object to such inadmissible evidence will not render it admissible.

Question 24

PUBLIC DOCUMENTS

Admissibility of public documents

Answer 24

1) As an exception to rules against hearsay:

• Mohd Isha Awang v Mohamad Idris Seramal Baris (per Evidence, Practice and Procedure, 4th edn, Augustine Paul): absence of the author of a public document under ss. 74 and 78 of the EA from giving evidence does not in any way affect its admissibility.
• They are admissible as an exception to the hearsay rule.
• e.g. S.32(1)(b), S.32(1)(j)
• e.g. S.90A - 90C if it is produced by computer (Per S.78A)

2) By tendering certified copies of the document:
- S.76 + 77
3) Proof for certain official documents:

S.78

4) Proof for public documents produced by computer:
- S.78A; S.90A-90C

Question 25

BEST EVIDENCE RULE

Overview

Answer 25

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

Question 26

BEST EVIDENCE RULE

Applicability of best evidence rule

Answer 26

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

Question 27

BEST EVIDENCE RULE

Manner of proof - general

Answer 27

1) Overview - S.61:
- Contents may be proved either by primary or secondary.
2) General rule - S.64:
- Documents must be proved by primary evidence.
3) Scope of S.64 - KPM Khidmat Sdn Bhd v Tey Kim Suie:

• When documentary evidence is tendered, the primary evidence of the said document must be adduced except in the cases under s. 65 EA 1950;
• secondary evidence of the same is inadmissible until the non-production of the primary is first accounted for.

4) Failure to account for non-production of the primary - Kerajaan Malaysia v Eng Sim Leong:
- Failure to adduce evidence to prove that the original document is lost or destroyed and real effort had been made to retrieve the original will render the secondary evidence inadmissible.

Question 28

BEST EVIDENCE RULE

Manner of proof - exceptions

Answer 28

S.65(1)

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

Question 29

BEST EVIDENCE RULE

Burden of proof

Answer 29

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

Question 30

BEST EVIDENCE RULE

Failure to object

Answer 30

1) Failure - Noliana bte Sulaiman v PP:
- failure to object on the manner of proof amounts to waiver;
2) When to object - Suppiah v Ponnampalam:
- any objection relating to the mode of proof must be taken before the document is marked as an exhibit & admitted to the record.
3) When to object - Noliana bte Sulaiman v PP:

• Objection must be taken promptly;
• It cannot be taken at the appellate stage.

Question 31

PRIMARY EVIDENCE

Overview

Answer 31

1) the law

2) whether carbon copies are primary evidence

Question 32

PRIMARY EVIDENCE

The law

Answer 32

S.62

Question 33

PRIMARY EVIDENCE

Carbon copies

Answer 33

1) Principle - Sarkar on Evidence:

• Carbon copies produced by typewriters may be regarded as equivalent, though the impression of lower sheets are likely to be imperfect;
• they are produced by the same stroke which makes the surface impression.
• ref. to in TSIA Development Enterprise Sdn Bhd v Awang Dewa.

2) Application - PP v Rengasamy:
- Carbon copies were held as primary evidence under explanation 2 for being documents made by one uniform process.
3) Application - cf. TSIA Development Enterprise Sdn Bhd v Awang Dewa:

• Having regard to wording of explanation 2, the judge held that a typewritten carbon copy should be admitted as an original.
• Further, there is no evidence that the signature in the document sought to be produced to have been made by one uniform process.
• Therefore, carbon copies are not primary evidence having regards to explanation above.

4) Application - cf. Alliedbank v Yau Jiok Hua:

• a carbon copy signed after the top copy had been signed cannot constitute primary evidence as the whole document would not have been made in one uniform process.
• i.e. the signatures are made in different process.

Question 34

SECONDARY EVIDENCE

Overview

Answer 34

1) The law

2) Photostat copies

Question 35

SECONDARY EVIDENCE

The law

Answer 35

S.63

Question 36

SECONDARY EVIDENCE

Photostat copies

Answer 36

1) Tan Sri Tan Hian Tsian v PP:
- A photostat copy of the original document is a type of secondary evidence which falls under s. 63 (b) EA 1950, namely copy made from the original by mechanical processes.
2) Lee Kok Nam v PP:

• A photostat copy would fall within S.63 but it is only available as evidence if conditions under S.65 & 63(b) are fulfilled;
• It will not available as evidence if an explanation was not given as to why the original was not produced.

Question 37

PAROLE EVIDENCE RULE

Overview

Answer 37

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

Question 38

MODE OF PROOF FOR CONTENTS OF DOCUMENTS

Overview

Answer 38

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

Question 39

MODE OF PROOF FOR CONTENTS OF DOCUMENTS

The law, scope & effect

Answer 39

1) The law:
- S.91
2) Scope - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd:

• where a contract has been reduced to writing, the court can only look at the writing to determine the terms made by the parties.
• S. 91 is consistent with S.59, i.e. all facts, except the contents of document, may be proved by oral evidence.

3) Effect of S.91 - Eng Mee Yong v Letchumanan:

• By virtue of S.91, oral evidence was held to be inadmissible to contradict the contents of documents;
• OTF, oral evidence was held to be inadmissible to contradict the written sale and purchase agreement.

Question 40

MODE OF PROOF FOR CONTENTS OF DOCUMENTS

Rationale for S.91

Answer 40

Bai Hira Devi v Official Assignee:

• S.91 EA 1950 is based on the best evidence rule.
• The best evidence of the contents of a document is the document itself.
• Thus, S.91 requires the production of the document itself to prove its contents and excludes the admission of oral evidence.

Question 41

MODE OF PROOF FOR CONTENTS OF DOCUMENTS

Relationship with S.92

Answer 41

1) Effect of both sections - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd:
- Where the terms of the contract have been proved in accordance with s. 91 EA 1950, s. 92 EA 1950 comes into play to exclude any oral evidence given for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract.
2) Relationship between two sections - Datuk Tan Leng Teck v Sarjana Sdn Bhd:

• Both S.91 and 92 EA 1950 supplement each other.
  They make the proof of the document conclusive of its contents.
• Therefore, in order to prove contents of documents, the documents itself must be tendered AND oral evidence must be excluded.

Question 42

EXCLUSION OF ORAL EVIDENCE

Overview

Answer 42

1) The law & scope

2) Relationship with S.91

Question 43

EXCLUSION OF ORAL EVIDENCE

The law & scope

Answer 43

1) the law:
- S.91
2) scope:

• No oral evidence is admissible to contradict, vary, add to or subtract from the terms.
• This is so unless the exception under S.92 applies.

Question 44

EXCLUSION OF ORAL EVIDENCE

Relationship with S.91

Answer 44

1) Effect of both sections - Tractors Malaysia Bhd v Kumpulan Pembinaan Malaysia Sdn Bhd:
- Where the terms of the contract have been proved in accordance with s. 91, s. 92 comes into play to exclude any oral evidence given for the purpose of contradicting, varying, adding to or subtracting from the terms of the contract.
2) Relationship between two sections - Datuk Tan Leng Teck v Sarjana Sdn Bhd:

• Both S.91 and 92 EA 1950 supplement each other.
  They make the proof of the document conclusive of its contents.
• Therefore, in order to prove contents of documents, the documents itself must be tendered AND oral evidence must be excluded.

Question 45

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Overview

Answer 45

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

Question 46

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Facts invalidating documents

Answer 46

1) The law:
- S.92(a)
2) Application - Ganam Rajamany v Somoo Sinnah:

• oral evidence was allowed to show that there was want or failure of consideration.
  failure of consideration renders a contract void for want of consideration & thus invalid.

Question 47

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Oral agreement not inconsistent with documents

Answer 47

1) The law:
- S.92(b)
2) Application - Padang Serai Kilang Kayu v Khor Kia Fong:

• When there is prior oral agreement pertaining to a matter which the document is silent, evidence relating to its nature (formality), factual background, or surrounding circumstances may be given.
• This is provided that such agreement is not inconsistent with or contradict the terms of the document.
• In the absence of any evidence to the contrary, explanation of party seeking to adduce oral evidence must be accepted.

3) Application - Chase Perdana Bhd v Md Afendi Hamdan:
- Oral agreement cannot be construed as a collateral contract if it contradicted the written agreement AND it did not fulfil the requirements of written law.

Question 48

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Oral agreement constituting condition precedent

Answer 48

1) The law:
- S.92(c)
2) Application - Ganesan & Anor v Baskaran:

• A separate oral agreement constituting a condition precedent to the sale of land is admissible.
• OTF, the oral undertaking of the respondent vendor to obtain the requisite approval for the transfer was admissible.

Question 49

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Oral agreement to rescind or modify

Answer 49

1) The law:
- S.92(d)
2) Scope - Goss v Nugent:
- after an agreement has been reduced into writing, the parties can, at any time before the breach of it, waive, dissolve or annul the agreement by a new contract not in writing.
3) Application - Voo Min En v Leong Chung Fat:

• Although there was subsequent oral agreement, such agreement was, by law, required to be in writing.
• “distinct subsequent oral agreement” to modify earlier written agreement could only be proved in limited cases.
• It cannot be proved when the law requires it to be in writing.

Question 50

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Usage or custom

Answer 50

1) The law:
- S.92(e)
2) Application - Brown v Byrne:

• Evidence of mercantile custom & usage is admitted in order to expound it & arrive at its true meaning.
• In such cases, the evidence neither adds to nor qualifies, nor contradicts, the written contract;
• It only ascertains it by expounding the language.

Question 51

EXCEPTIONS TO EXCLUSION OF ORAL EVIDENCE

Language of documents

Answer 51

1) The law:
- S.92(f)
2) Object of the law - Sarkar’s on Evidence:

• To ascertain real intentions of the parties but those intentions must be gathered from the language of the documents.
• No evidence of any intention contrary to the plain meaning of words used can be admitted;
• As the object of proviso (f) is not to vary the language used but merely to explain the sense of words used.

3) Application - Tan Suan Sim v Chang Fook Shen:

• Agreement stipulated for completion ‘at a later date’;
  Held:
• it meant a date, if not earlier, at least before the rescission of the agreement.
• Evidence is accepted as it clarified the latent ambiguity in the agreement.