Chapter 9 - Proof Flashcards
PROOF
Overview
1) General rule
2) General principles on judicial notice
3) Failure to object to mode of proof
4) Exception - Facts of judicial notice
5) Exception - Facts admitted in civil cases
6) Exception - Facts admitted in criminal cases
GENERAL RULE
The law & scope
1) The law:
- Part II & III Evidence Act
2) Scope - Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd:
- All facts in issue & relevant facts must be proved by evidence;
- either orally (S.59) or documentary (Chapter V).
3) Principle - Low Moh & Anor v PP:
- Cases must be decided by evidence & evidence must be of such that is relevant & admissible under EA;
- Evidence must be either from:
1) admitted documents; or
2) the statements of witnesses; or
3) be something of which the Court can take judicial notice must be either from admissibility of documents or statements of witness.
GENERAL PRINCIPLES ON JUDICIAL NOTICE
Meaning of taking judicial notice
Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh:
- When a court takes judicial notice of a fact, it means that the court declares that it will find the fact exists.
OBJECTION TO MODE OF PROOF
Failure to object to mode of proof
Noliana bte Sulaiman v PP:
- failure to object amounts to a waiver of the objection to the admissibility of the evidence.
- objection must be taken promptly & cannot be taken at appellate stage.
EXCEPTION - FACTS OF JUDICIAL NOTICE
Overview
1) The law & scope
2) List of facts judicially taken
3) Other facts that may be judicially taken
EXCEPTION - FACTS OF JUDICIAL NOTICE
The law
S.56:
- facts judicially taken need not be proved.
S.57:
- list down facts of which court must take judicial notice.
EXCEPTION - FACTS OF JUDICIAL NOTICE
The scope
1) scope of S.56:
- Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh:
When a court takes judicial notice of a fact, it simply means that the court declares that it will find that the fact exists. - Pang Ah Chee v Chong Kwee Sang:
under S.56, court may take judicial notice of matters which are of common and general knowledge.
2) scope of S.57:
- Pang Ah Chee v Chong Kwee Sang: S. 57 EA merely sets out matters which the court must take judicial notice of and the list therein is not exhaustive;
EXCEPTION - FACTS OF JUDICIAL NOTICE
List of facts judicially taken
1) S.57(1)(a) - meaning of law:
- S.3 IA: includes written law, common law in so far as it is in operation in Federation or any part thereof; any custom or usage having the force of law in the Federation or any part thereof.
2) S.57(1)(j) - meaning of geographical division:
- Sarkar Law of Evidence: territorial extent of the jurisdiction & sovereignty exercised de facto by their own govt; local divisions such as states, provinces, counties, towns, etc.
OTHER FACTS THAT MAY BE JUDICIALLY TAKEN
The test
Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd:
- subject of common & general knowledge;
- its existence or operation accepted by the public w/o contention;
- test: facts involved must be sufficiently notorious.
OTHER FACTS THAT MAY BE JUDICIALLY TAKEN
Examples of sufficient notoriety
Japanese invasion of Malaya and the brutalities meted out during the Japanese; Re Gun Soon Thin [1997].
Asian currency turmoil in 1998; Den Norske Bank v. The Owner of the Ship or Vessek “Forum Akasaka” [1998].
Worldwide economic depression; Ram Tarak Singha v. Salgram Singha AIR
Chinese funeral expenses; Pang Ah Chee v. Chong Kwee Sang [1985] FC
Polygamous nature of Chinese marriages; Ngai Lau Shia v. Low Chee Neo (1921);
The frequency of power failure in Johor Bahru High Court; Bank Bumiputera v. Mohd Ibrahim Salleh [2000]
Commission of offences involving firearms has been prevalent in KL (for the purpose of sentencing); Lee Chow Meng v. PP
Wages earned in Singapore are substantially higher than those in Malaysia; Latiff bin Che Ngah v. Maimunah bt Zakaria [2002]
A qualified person under LPA 1976 should not hold office or engage in any employment during his pupilage without special leave in writing of the Bar Council; S Ashok Kandiah v. Dato Yalumallai Muthusamy [2011] CA
A criminal prosecution is pending against a person; Ng Chin Swee v. Koperasi Belia Bersatu Bhd [1987].
OTHER FACTS THAT MAY BE JUDICIALLY TAKEN
Examples of insufficient notoriety
- Base lending rate; Suresh Emmanuel Abishegam v. RHB Bank [2011]
- customary commission of 2% of the purchase price received by broker; Pembangunan Maha Murni Sdn Bhd v. Jururus Ladang Sdn Bhd [1986]
EXCEPTION - FACTS ADMITTED IN CIVIL CASES
Overview
1) the law & scope
2) evidentiary value of judicial admission in pleading
3) failure to object
4) recent application
EXCEPTION - FACTS ADMITTED IN CIVIL CASES
The law & scope
1) The law:
- S.58
- O.18, r.13
- O.27
2) Scope:
- Encompasses judicial admission;
- Does not apply to criminal proceedings.
EXCEPTION - FACTS ADMITTED IN CIVIL CASES
Evidentiary value of judicial admission in pleading
Yam Kong Seng v Yee Weng Kai (FC, 2014):
- a judicial admission made in a pleading stands on a higher footing than evidentiary admission.
EXCEPTION - FACTS ADMITTED IN CIVIL CASES
Failure to object
Noliana bte Sulaiman v PP:
- failure to object amounts to waiver;
- objection must be taken promptly, cannot be taken at appellate stage.
