Documentary Evidence

 S 3 “evidence” – oral evidence and documentary evidence

 S 3 “document” – wide definition
o Includes CCTV, video, audio recordings etc
 Rules regarding Documentary Evidence
o General provisions – s 59, ss. 61-66
o Specific provisions for specific types (eg: s 90A for computer generated doc)

Specific
Is the machine a computer?
 Computer generated documents
o S 90A – 90C Is is primary evidence (Expl 3 s 62)
o S 3 “computer”
Admissible under s 90A?
o Explanation 3 s 62 EA
o DNA – Hanafi Mat Hassan & Ahmad Najib Aris
o CCTV Images – Ahmad Najib Aris
o Automatic tickets – Hanafi Mat Jassan
o Call logs/SMS – Azilah Hadri & Pathmanabhan
o Bank Statement – Gnanasegaran
o Note: Mohd Khayry
 Tape/Voice Recording
o R v Maqsud Ali
 There is no difference in principle between a tape recording and a
photograph
 Tape recording is admissible provided that the accuracy can be proven and
voices can be identified
o Mohd Ali bin Jaafar v PP
 Special requirements for a tape recording to be admissible:
 Tape must be run through and clean
 Recording machine must be in proper working order
 Tape must not be tampered
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 Witness must played over the tape and heard voices which they
can identified
 Transcript prepared
 Tape played over with the transcript checked by the witness
o PP v DSAI (No. 3)
 Actual recording contains 7 tapes but the evidence tendered consist of 4
tapes
 Held: Inadmissible
o CF: Ahmad Najib Aris (distinguished)
 Relevant frame of CCTV footage was tendered as evidence.
 Held: Admissible. CCTV is a recording of images and not done for
specific aim at accused. It is to detect undesirable activities and no reason
to fear that video tape is tampered
 Note: FC held CCTV not complied with s 90A
 Video/ CCTV footage
o Recording device falls within ambit of computer under s 3
o Expl 3 s 62 – such footage is a primary evidence
o Ahmad Najib Aris
 s 90A must be satisfied for it to be admitted
 Video must be relevant
 Video must be authentic and not tampered with
 Recording device must be in proper working order
o Note: Mohd Khayry – CCTV admitted under res gestae
 Photos
o PP v Ayub Kahn Ismail
 Must be relevant
 Must be authentic and not tampered with
 If possible, maker (photographer) should be called
 Original memory card should be produced
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General Provisions
s 59 > s 61 > s 62 > s 63 > s 64 > s 65

General Provisions
 S 59 EA – All facts may be proved by oral evidence except contents of documents
 S 61 EA – Contents may be proved by primary or secondary evidence
o PP v Tan Huang Hiang – ss. 61 – 66 applies to both civil and criminal
proceedings
 S 62 EA – Primary Evidence
o Documents itself produced for court’s inspection
o Explanation 1
 Where a document is executed in several parts, each part is primary
evidence
 EG: Document signed by A and B in duplicate or triplicate; all
copies are primary and original evidence
 Where a document is executed in counterpart, each counterpart is primary
evidence against parties executing it
 EG: Document 1 signed by X, keep by Z; Document 2 signed by
Z, keep by X; Doc 1 is primary evidence against X; Doc 2 is
primary against Z
o Explanation 2
 Where documents are made by one uniform process, each is primary
evidence
 EG: Carbon copies
 PP v Rengasamy
 Carbon copies are primary evidence within Expl 2 of s 62 EA for it
was created in the same uniform process
 CF: Kok Kee Kwang v PP
 Carbon copies are secondary evidence, it is a question of facts
 Tsia Development v Awang Dewa
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 Unable to accept that a typewritten carbon copy is primary

evidence as the signatures were not made in the same uniform
process
 Allied Bank v Yau Jiok Hua
 In order for a carbon copy to qualify as primary evidence,
signature must be made in same uniform process
 Ooi Thean Chuan v Banque de Paris
 There can be more than 1 originals as long as they are made with a
same uniform process
 S 63 EA – Secondary Evidence
o Definition uses “includes” – indicates it is not exhaustive
o Note: scanned copy of doc may fall within s 63
o Lee Weng Kin v Menteri Hal Ehwal dalam Negeri
 A copy is a document prepared from the original. It is an accurate and true
copy of original
o Lee Kok Nam v PP
 A Photostat is a secondary evidence and will only be available as evidence
under s 65 and s 63(b) of EA
 S 64 – Documents must be proven by Primary Evidence (GR)
o Codification of best evidence rule
o Popular Industries v Eastern Garment Manufacturing
 It is well established rule requiring primary evidence of the document to
be tendered by the production of document itself [by s 64 + s 62]
 However, there are exceptions to the rule and are specifically provided for
in s 65(1) EA. The burden is on the party seeking to admit the document
 Failure to object is not fatal
o KPM Khidmat v Tey Kim Suie
 As a general rule, primary evidence must be tendered. However, pursuant
to s 65, secondary evidence may be admissible
o Allied Bank v Yau Jiok Hua
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 Admissibility of a document can be affected by:

 Relevancy
 If it is to prove the truth of contents, maker must be called
(hearsay & exceptions)
 Primary evidence must be tendered (s 64/s 73A), unless exceptions
applies where secondary evidence is admissible
 S 65(1) – Secondary Evidence may be given of the existence, condition, or contents of
document admissible in evidence in the following cases:
o Para (a) – (g)
o Note: to invoke s 65(1)(a), s 66 must be complied
o KPM Khidmat v Tey Kim Suie
 The section is the exception to Best Evidence Rule & the GR that only
primary evidence is allowed
 4 Conditions must be satisfied for s 65 to apply (3 pre-conditions + 1
para)
Conditions
 Original must be admissible in evidence (satisfy relevancy/hearsay)
o Allied Bank v Yau Jiok Hua
o Re Neo Guan Chye
 Proof of execution
o If a document is executed, there must be proof of execution before secondary
evidence can be given
o Proof by
 s 67 EA – proof of signature and handwriting; or
 s 45 EA – expert
o Tsia Development v Awang Dewa
o GR: to admit secondary evidence, due execution of the original must be proven
o Exception: Court may exercise s 136(2) and allow secondary evidence to be
adduced subject to undertaking by the counsel to prove execution
o Note: If document is in agreed bundle, s 67 is satisfied
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o Note: s 68, s 69
 Stamp duty must be paid
o S 52 Stamp Act – originals must be properly stamped
o GR: Where a document subjected to Stamp Act was unstamped, it is inadmissible
o Exception: Document can be admitted once duty and penalty is paid; does not
apply to criminal cases; documents executed by/on behalf of Government of
Malaysia or foreign government need not to be stamped
o Documents identified under 1st Schedule of Stamp Act requires stamping
o Chiew Vui Kiet v Chong Fook Tien
 Once established that original is unstamped, it will be presumed to remain
unstamped until contrary is proven
o Malayan Banking v Agencies Services S/B
 Purpose of such rule is to help to collect taxes
o Note: counsel may object on the ground that document is unstamped but it is
unethical under r 58 LPPER
 Para (a) – (g)
o Popular Industries v Eastern Garment Manufacturing
o At least one of the paragraphs under s 65 must be satisfied
o S 65(1)(a)
 When original is in possession or power of the adverse party/outside reach
of court/any person legally bound to produce it AND
 When notice under s 66 EA has been given but such person does not
produce it
 Secondary evidence under s 65(1)(a) can only be adduced where notice
under s 66 is given
 However, Proviso of s 66 provides an exception: no notice is required to
tender secondary evidence under s 65(1)(a) in situations as the court thinks
fit
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 Note: hence to tender secondary evidence under s 65(1)(a), notice under s

66 is not mandatory and can be dispensed with one of the grounds under
proviso of s 66 or at court’s power
 Chua Neoh Kow v Malayan Banking Berhad
 Where notice under s 66 is issued, evidence that it was served on
the other party is required
o S 65(1)(b)
 When existence/confections/contents of the original have been proven to
be admitted in writing by adverse party
o S 65(1)(c)
 Secondary evidence may be given if original has been destroyed or lost; or
cannot for any reason arising from his own fault, be produced
 Note: two limbs are disjunctive, first limb need not to prove neglect
 Kwang Boon Keong v PP
 If a document is destroyed or lost, there is no need to show neglect
or fault
 KPM Khidmat v Tey Kim Suie
 Party offering secondary evidence under s 65(1)(c) must produce
sufficient evidence of search for original and explanation
 Kalki Jewllery v Mani Samikkannu
 Photostat copy of thermal paper faxes which faded in time was
allowed under s 65(1)(c)
o S 65(1)(d) - When original is not easily movable (eg: tombstone)
o S 65(1)(e) – When original is a document which a certified copy is permitted to
be given as evidence
o S 65(1)(f) – when original is too numerous to be proved
o Note: s 65(2)
o Note: s 73A(1) – GR; s 73A(2) Exception
o Note: s 90A
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Exclusion of oral evidence

 Ss. 91 – 99
 Known as Parole Evidence Rule
 GR: No oral evidence of the terms of a contract which has been reduced into writing
o Only the contract itself or secondary evidence is admissible
 S 91 EA
o Terms of contract reduced into writing
o No evidence shall be given in proving the terms
o Except the document itself or secondary evidence under s 65
 S 92 EA
o When any terms of contract proved by s 91, no oral agreement shall be admitted
for the purposes of: contradicting, varying, adding or subtracting
 Chan Kay Siew v Choo Ban Hong
o Datuk Tan Leng Teck v Sarjana S/B
 Document must first be proved under s 91 before s 92 may applies to
exclude oral evidence
 Once the terms of contract has been proven under s 91, no oral evidence
can be permitted to prove the term
o Eng Mee Yong v Letchumanan
 No oral evidence may be admitted to contradict the SPA
o Proviso to s 92 (exception)
 (a) Oral evidence may be given to invalidate any document
 Ganam v Somoo
 (b) Oral evidence may be given on any matter that the document is silent
and it’s consistent with the written document
 Tan Chong v Alan Mcknight
 Chase Perdana v Md Afendi
o Proviso (b) of s 92 will not admit oral evidence which
contradicts the written contract
 (c) Oral evidence may be given of conditions precedent
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 Gansan v Baskaran

Public Documents
 S 74 EA
 PP v Lim Sooi Booi – post mortem report
 Husdi v PP – witness statement
 Anthony Gomez v Ketua Police Daerah Kuantan – FIR