Advertisement
Evidence Act 1950 [Act 56]

90C Sections 90A and 90B to prevail over other provisions of this Act, the Bankers' Books (Evidence) Act 1949, and any written law

Sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers' Books (Evidence) Act 1949 [Act 33], or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding.

Chapter VA

ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS REQUESTS

90D Application of Chapter VA

Notwithstanding any other provision in this Act, this Chapter shall apply for the purpose of determining the admissibility of evidence obtained pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 [Act 621].

90E Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters

(1) Subject to subsections (2) to (9), any testimony, statement or deposition, together with any document or thing exhibited or annexed to such statement or deposition, that is received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of the criminal matter, shall on its production be admitted in those criminal proceedings as evidence without further proof of any fact stated in the testimony, statement or deposition and in the document, if any, exhibited or annexed to such statement or deposition.

(2) The testimony, statement or deposition shall be taken-

(a) on oath or affirmation;

(b) under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or

(c) under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.


(3) The testimony, statement or deposition shall-

(a) be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made; and

(b) bear an official or public seal of-

(i) the foreign country; or

(ii) a Minister of State, or a department or officer of the government of the foreign country.


(4) A certificate by the judge, magistrate or officer referred to in subsection (3) shall, without further proof, be admitted in the proceedings as conclusive evidence of the facts contained in the certificate.

(5) All courts in Malaysia shall take judicial notice of the official or public seal referred to in subsection (3).

(6) The testimony taken under subsection (2) may be reduced to writing or be recorded on a tape, disk or other device from which sounds or images are capable of being reproduced or may be taken by means of technology that permits the virtual presence of the person in Malaysia.

(7) Where the testimony has been reduced to writing or recorded on a tape, disk or other device from which sounds or images are capable of being reproduced, the writing, tape, disk or other device shall be authenticated as provided under subsection (3).

(8) Where the testimony has been made by means of video or other means which permits the virtual presence of the person in Malaysia, that testimony shall be deemed to have been given in Malaysia.

(9) For the purposes of this Chapter, the testimony, statement or deposition need not-

(a) be in the form of an affidavit; or

(b) constitute a transcript of a proceeding in a foreign court.


(10) For the purpose of this Chapter, where the prosecutor seeks to adduce any testimony, statement, deposition, document or thing specified in subsection (1) as evidence in the criminal matter, the court shall not give any direction that such evidence or any part thereof is not to be adduced.

(11) In this Chapter, "criminal matter" has the meaning assigned to it under the Mutual Assistance in Criminal Matters Act 2002.

90F Certificate relating to foreign evidence

A certificate by the Attorney General or by a person authorized by the Attorney General to make such a certificate certifying that any testimony, statement or deposition to which such certificate is attached, together with any document or thing exhibited or annexed thereto, if any, has been received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal Matters Act 2002 in respect of any criminal matter referred to in the certificate, shall on its production without further proof be admitted in the proceeding as conclusive evidence of the facts contained in the certificate.

Chapter VI

EXCLUSION OF ORAL BY DOCUMENTARY EVIDENCE

91 Evidence of terms of contracts, grants and other dispositions of property reduced to form of document

When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exception 1-When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.

Exception 2-Wills admitted to probate in Malaysia may be proved by the probate.

Explanation 1-This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document and to cases in which they are contained in more documents than one.

Explanation 2-Where there are more originals than one, one original only need be proved.

Explanation 3-The statement in any document whatever of a fact, other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.

ILLUSTRATIONS

(a) If a contract is contained in several letters, all the letters in which it is contained must be proved.

(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.

(c) If a bill of exchange is drawn in a set of three, one only need be proved.

(d) A contracts in writing with B for the delivery of pepper upon certain terms. The contract mentions the fact that B had paid A the price of other pepper contracted for verbally on another occasion.

Oral evidence is offered that no payment was made for the other pepper. The evidence is admissible.

(e) A gives B a receipt for money paid by B.

Oral evidence is offered of the payment.

The evidence is admissible.

92 Exclusion of evidence of oral agreement

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms:

Provided that-

(a) any fact may be proved which would invalidate any document or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, the fact that it is wrongly dated, want or failure of consideration, or mistake in fact or law;

(b) the existence of any separate oral agreement, as to any matter on which a document is silent and which is not inconsistent with its terms, may be proved, and in considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document;

(c) the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved;

(d) the existence of any distinct subsequent oral agreement, to rescind or modify any such contract, grant or disposition of property, may be proved except in cases in which the contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents;

(e) any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved if the annexing of any such incident would not be repugnant to or inconsistent with the express terms of the contract; and

(f) any fact may be proved which shows in what manner the language of a document is related to existing facts.


ILLUSTRATIONS

(a) A policy of insurance is effected on goods "in ships from Penang to London." The goods are shipped in a particular ship, which is lost. The fact that that particular ship was orally excepted from the policy cannot be proved.

(b) A agrees absolutely in writing to pay B RM1,000 on 1 March 1893. The fact that at the same time an oral agreement was made that the money should not be paid till 31 March cannot be proved.

(c) An estate called "the Kranji Tea Estate" is sold by a document which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the document cannot be proved.

(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B as to their value. This fact may be proved.

(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions on the ground that that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.

(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.

(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words: "Bought of A a horse for RM300." B may prove the verbal warranty.

(h) A hires lodgings of B and gives B a card on which is written: "Rooms RM80 a month." A may prove a verbal agreement that these terms were to include partial board.

A hires lodgings of B for a year, and a regularly stamped agreement drawn up by an attorney is made between them. It is silent on the subject of board. A may not prove that board was included in the terms verbally.

(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this.

(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered.

93 Exclusion of evidence to explain or amend ambiguous document

When the language used in a document is on its face ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.

ILLUSTRATIONS

(a) A agrees in writing to sell a horse to B for RM500 or RM600. Evidence cannot be given to show which price was to be given.

(b) A document contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.

94 Exclusion of evidence against application of document to existing facts

When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

ILLUSTRATION

A conveys to B by memorandum of transfer "my estate at Kranji containing 100 acres." A has an estate at Kranji containing 100 acres. Evidence may not be given of the fact that the estate meant was one situated at a different place and of a different size.

95 Evidence as to document unmeaning in reference to existing facts

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.

ILLUSTRATION

A conveys to B by memorandum of transfer "my plantation in Penang."

A had no plantation in Penang, but it appears that he had a plantation in Seberang Perai of which B had been in possession since the execution of the memorandum.

These facts may be proved to show that the memorandum related to the plantation in Seberang Perai.

96 Evidence as to application of language which can apply to one only of several persons

When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things, evidence may be given of facts which show to which of those persons or things it was intended to apply.

ILLUSTRATIONS

(a) A agrees to sell to B for RM500 "my white horse." A has two white horses. Evidence may be given of facts which show which of them was meant.

(b) A agrees to accompany B to Halifax. Evidence may be given of facts showing whether Halifax in Yorkshire or Halifax in Nova Scotia was meant.



SEARCH LEGISLATION
Title:


Number:

ADS