Chapter 2 - Burden & Standard of Proof: General

Question 1

GENERAL BURDEN & STANDARD OF PROOF

Overview

Answer 1

1) General meaning of b & s of proof
2) Failure to discharge b of proof
3) Meaning of “proved” under S.3

Question 2

GENERAL BURDEN & STANDARD OF PROOF

General meaning of burden & standard of proof

Answer 2

Sinnaiyah & Sons v Damai Setia Sdn Bhd:

1) Burden of proof - S.102 & S.103:

• relates to burden or obligation of proving a fact on the party who exerts the existence of any fact in issue & wishes the court to believe in its existence;
• burden never shifts.

2) Standard of proof - Re B (Children):
- degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen.

Question 3

GENERAL BURDEN & STANDARD OF PROOF

Failure to lead evidence

Answer 3

1) General - Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors:
- Since there is no evidence before the court to adjudicate upon, his assertion cannot stand at all.
2) Plaintiff’s failure to lead evidence - MGI Securities Sdn Bhd v Teong Teck Leng:
- If P has decided not to lead evidence & there was no evidence before the court to adjudicate upon, his claims ought to be dismissed.
3) Defendant’s failure to lead evidence - Syarikat Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim (FC, 2015):
- The plaintiff’s burden is not absolved even if the defendant did not lead any evidence.

Question 4

GENERAL BURDEN & STANDARD OF PROOF

Meaning of “proved” under S.3

Answer 4

Liew Kaling v PP:

• S.3 = standard of prudent man;
• varies according to the importance of the question itself;
• i.e. criminal standard & civil standard of proof;
• forms the basis of the different standard of proof in civil & criminal cases.