Dealing With Evidence

Dealing with Evidence By LEE SWEE SENG Advocate & Solicitor Certified Mediator Notary Public Patent Agent Trademark Agent www.leesweeseng.com sweeseng@tmnet.net.my       Determine the nature of evidence Assessing the client’s evidence Effectively structuring evidence in chief to fit your case theory Handling documentary evidence Presenting the evidence in court Improper admission and rejection of evidence Main legislation governing the law of evidence in Malaysia Evidence Act 1950 Common law As an aid to interpretation  When the Evidence Act is silent PP v Yuvaraj [1969] MLJ 89 Per Lord Diplock, “In Malaysia the law of evidence has been embodied in a statutory code, the Evidence Ordinance In so far, as any part of the law relating to evidence is expressly dealt with by that Ordinance, the courts in Malaysia must give effect to the relevant provisions of the Ordinance whether or not they differ from the common law rule of evidence as applied by the English Court But no enactment can be fully comprehensive It takes its place as part of the general corpus of law It is intended to be construed by lawyers and upon matters about which it is silent or fails to be explicit, it is presumed that it was not the intention of the legislation to depart from the well established principle of law.” Determining the nature of evidence S.3 of the Evidence Act 1950    provides the definition of “evidence” as: (a) all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence ; (b) all documents produced for the inspection of the court: such documents are called documentary evidence ; Oral Evidence   S 59 of the EA 1950, provides that, All facts, except the contents of documents, may be proved by oral evidence “oral evidence” means all statement which the Court permits or requires to be made before it by witnesses in relation to matters of facts under inquiry (S Augustine Paul Evidence Practice and Procedure 1994 pg 389) Oral Evidence  s.60 of EA 1950 Oral evidence must be direct  (1) Oral evidence shall in all cases whatever be direct, that is to say   (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; Oral Evidence   (c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds Oral Evidence  (2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of the treatise if the author is dead or cannot be found or has become incapable of giving evidence , or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC Facts:  The P obtained a judgment against the first D in the Republic of Singapore which had been registered as a judgment of the High Court of Malaya The P then obtained an ex parte Mareva injunction  Among the assets affected by the ex parte Mareva injunction were several bank accounts, two in the name of the first D, two in the name of the eleventh defendant company, one in the name of the twelfth D company and four in the name of the fifteenth D Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  The details of those bank accounts were discovered by a private investigator engaged by the P His affidavit went in support of the P's ex parte application The P's managing director also affirmed an affidavit in support of the ex parte application Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  By the present applications, the first D, the eleventh and twelfth Ds and the fifteenth D sought leave to crossexamine the private investigator and the managing director on their affidavits in order: Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  (i) to establish that in the obtaining of the information relating to the bank accounts, there had been a breach of s 97 of the Banking and Financial Institution Act 1989 It was contended that if there has been a breach of s 97, the information is inadmissible and consequently those bank accounts should not have been subjected to the ex parte injunction; and Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  (ii) to elicit the full circumstances of the obtaining of the information in contravention of s 97 in order to make out a case of coming to equity without clean hands and without disclosing those circumstances Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  The first is whether evidence obtained in contravention of s 97 is admissible The second is whether the clean-hand principle applies in the circumstances of this case Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC Held: (Abdul Aziz J)  It is obvious that the intention of Parliament in enacting s 97 is to protect the secrecy of the affairs and account of a customer of a financial institution as such a customer, but, in giving effect to that intention, Parliament has gone only to the extent of creating offences of the prohibited disclosures Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  Parliament has not gone further to deal with the question of the admissibility or otherwise in criminal or civil proceedings of any information or document disclosed in contravention of s 97, which is a matter of the law of evidence, where the law is that evidence illegally obtained is nonetheless admissible if relevant Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  The Ds had failed to present any convincing argument against the application of the general law to a disclosure in evidence in contravention of s 97 of information or document relating to the affairs or account of a customer of a financial institution Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  The general law being such, it will require an express enactment of Parliament to render inadmissible the evidence so disclosed It will therefore be irrelevant to elicit evidence to show that the existence and particulars of the bank accounts are inadmissible and the Ds cannot be given leave to cross-examine the private investigator and the managing director for that purpose Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC  The P had come to court for a Mareva injunction with evidence that was admissible in law of the existence and particulars of the bank accounts and that was true, notwithstanding that it may be an offence against s 97 to have obtained or disclosed it and notwithstanding that those sections are aimed at protecting the secrecy of those accounts Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ 401 HC   It would be unconscionable to bar the P from the relief sought on the ground of any wrongdoing in obtaining the evidence The principle of clean hands does not prevail in the circumstances of the case The principle was irrelevant and the D could not be given leave to cross-examine the private investigator and the managing director for the purpose of showing that the P had not come to court with clean hands Conclusion     Cases are won or lost based primarily on evidence Proper presentation of evidence is of utmost importance A Court of Law can only decide based on the evidence before it The lack of evidence can prove fatal to one’s case Thank You Assisted by Valerie Chong LLB (Hons) CLP