Opinion Evidence
General Rule: witness may only give evidence of facts, not opinion
o Opinion are conclusion drawn from facts
o Judge has the duty to draw conclusion from facts
o To allow opinion evidence would usurp the function of court
S 3 EA – “fact”
Exception: Opinion Evidence will be allowed in
o Areas where special knowledge or skills are required
o Areas that fall beyond the scope of knowledge and skills of court
Opinion Evidence
o Expert opinion evidence – s 45, s 46, s 51
o Non-expert opinion evidence – ss. 47-50, s 51
Expert Opinion Evidence
S 45(1) EA: when the court has to form an opinion of foreign law or science or art or to
identify handwriting or finger impressions, opinions of persons specially skilled in such area
are relevant
o Expert opinion evidence is admissible
Expert opinion evidence may be divided into:
o Evidence of fact (scientific evidence of what was observed) - perceived
o Opinion evidence on conclusions drawn based on observations - inferred
Khoo Hi Chiang v PP
o Chemist identification of drugs (his conclusion) is based on objective observation of
facts, hence his evidence is evidence of fact
Syed Abu Bakar v PP (when expert is needed)
o Expert evidence is needed when court is required to make a decision on matters
outside of the skills and knowledge of court; or outside the scope of common
knowledge
Chou Kooi Pang v PP
o Expert opinion is only to furnish the court with scientific information which is likely
to be outside the experience of the court
o If a judge can form conclusions without assistance, opinion of expert is not needed
Opinion Evidence
Note: Court is not bound by opinion of an expert
o However, court is bound to accept purely scientific evidence
GR: experts are only to assist the court to reach a conclusion, court has the discretion
o Exception: purely scientific evidence
Ong Chan Tow v R
o Expert opinion evidence is only needed for skills and knowledge outside the court
Wong Swee Chin v PP
o Except on purely scientific issues, expert evidence is to be used to assist the court but
not to compel the court
o It is for the judge to weight all evidence and reach a conclusion
R v Turner
o Accused called a psychiatrist to testify how a sound person was likely to react to
stresses of life
o Held: Inadmissible
Lowrey v R
o Evidence: Psychologist testified on two personality types (Type A = aggressive; Type
B = Passive)
o Held: Evidence admissible
Types of expert
Gazetted
o PP v Saad bin Mat Takraw
A gazetted expert is a creature of statute
o Court cannot question qualification/skills
Experts under s 45 EA
o Must provide evidence of qualification or evidence
o Duty on the party calling such expert
Categories of Expert Evidence under s 45
Foreign Law
o Malaysian judges are expert on Malaysian & Common law
Opinion Evidence
o Experts may be needed for foreign law (all other laws)
Science/ Art
o Chandrasekaran v PP
Science and art is given a liberal interpretation and includes all subjects
which a course of study or experience is required
o Note: Typing is considered an art
o Note: No need to distinct science from art
o Traditional fields & New technology
DP Vijandran v PP
Evidence: Expert testified sex video was clean & accused is the
person in it
Accused objected on the grounds that such expertise is new
Held: Admissible. Test is whether it require a course of study
o Leong Wing Kong v PP
Art or science is not confined to pure art or science and include all fields
which require a special course of study (question of facts)
Held: practices of drug users & suppliers are not art or science (public policy
decision)
Evidence: Police who has expertise with
o PP v Lee Eng Teong secret society.
o R v Lim Chin Shang Held: inadmissible under s. 45 but
admissible under s. 49
Handwriting
o A court cannot rule on handwriting without the aid of experts but expert opinion is
not conclusive unless supported by data
o Expert opinion – s 45
o Non-expert – s 47
o S 73(2) EA – judge may direct any person to write in court and compare himself
o Syed Abu Bakar v PP (expert requires in handwriting)
It is settled principle that a judge may weigh all evidence to form his
judgment but it is wrong for him to form a conclusion on a matter which
required the aid of expert evidence
o CF: Letchumana Chettiar v Secure Plantation (experts not necessarily needed)
Opinion Evidence
Mode of proof under EA: s 45 (by expert) and s 47 (by non-expert). However,
court has power to compare the handwriting under s 73
If the feature of writing and signature are so glaring, the court can form an
opinion by itself and further exercise under s 45 may be unnecessary
o Evidence value of handwriting expert
Mohamad Kassim v PP
Evidence of experts is only an opinion and can never be conclusive
(handwriting experts included)
Srikant v KE
It is unsafe to base a conviction based solely on evidence of
handwriting experts
Dalip Kaur
It is trite law that evidence of handwriting experts must be viewed
with caution but should ve given proper consideration
Conclusion: Admissible but low value (not conclusive)
o UAB v Tai Soon Heng
Experts must still provide his reasoning and explain his findings
Fingerprints
o Can be used to convict a person if BRD is achieved
o Conclusive evidence
o PP v Toh Kee Huat
Only 1 set of fingerprints found inside the stolen car
Qualifications of Experts
Expert – academic qualification and/or experience
Junaidi v PP – two stage test
o First stage is to determine whether the nature of evidence require special skills (Syed
Abu Bakar test)?
o If yes, determine whether witness have the skills either by academic qualification or
experience
GR: If a skill was acquired by experience and not study, weight is affected, not admissibility
Opinion Evidence
o Exception: on highly complex and scientific evidence, lack of experience or formal
study may affect admissibility
o Note: Question of fact
Kong Nen Siew v Lim Siew Hong
o Semi-qualified psychiatric nurse was accepted as expert
PP v Muhamed bin Sulaiman
o Court may accept an expert based on both experience and formal study
Note: court has the discretion
PP v Sam Hong Choy
o Police officer who has no formal study but experience on guns is accepted as expert
Procedures
Junaidi v PP
o Is expert needed? If yes, is the witness an expert?
Dato Mokhtar Hashim v PP
o Competency of expert is a preliminary issue and a question for the court
o Note: expert must give evidence of his qualification & experience as a preliminary
matter for court to decide is he an expert and is his evidence admissible
Wong Chop Saow v PP
o Expert must first state his qualifications and then whether has he given evidence
before any court & whether it was accepted
o Note: previously gave evidence is not a pre-requisite; it adds more weigh but not
affecting admissibility
S. 399 CPC
o Report of expert can be admitted without calling the expert unless he is required to
attend as witness or called by accused
o S. 399(2) CPC – persons listed
o Witness may be called if Court/Accused requires
o PP v Kit Chee Wan - S 399 CPC is an exception to hearsay rule
Lin Lian Chen v PP
Opinion Evidence
o Chemist who has been in the department for 13 years and degree in chemistry is not
accepted as expert
o Held: expertise of witness must first be established (just because he is a chemist does
not make him a drug expert)
o Held: where an expert is called as a witness, his report is only to corroborate his
evidence
Shamsul Kamar Karia v PP
o PP failed to comply with the 10 days requirement of s 399 CPC; applied to tender it
under s 32(1)(i) & (j) of EA
o Held: s 399 CPC prevails over EA. 10 days’ requirement must be strictly complied
with. Failure to comply, inadmissible
PP v Chong Wei Kian
o Chemist worked for 18 years is not sufficient to prove he is an expert
Commerical Union Assurance v Lee Siew Khuan
o Advocate and Solicitors who has been dealing with diamonds consistently is an
expert
PP v Muhamed bin Sulaiman
o Chemist who had working experience with ballistics is accepted as expert
Kumaraguru v PP
o Witness who worked for 12 years and given evidence in court before was not
accepted
Function of the Court
Sim Ah Oh v PP
o Duty of the court is to consider the reasoning of experts to reach a conclusion
Sim Ah Song v R
o A bare expression of opinion without reasons has no evidential value
Chin Sen Wah v PP
o Final decision on accepting expert evidence or not is with the court
Wong Swee Chin
o Expert on purely scientific issues is only to assit the court
Opinion Evidence
Conflict between 2 experts
o PP v Ang Soon Huat
Court has discretion to prefer opinion of 1 expert over another
If there is a conflict, PP should first call a third expert
Collector of Land Revenue v Alagappa Chettiar
o The finding of the trial court that accepted the opinion of 1 expert over another is
usually not disturbed by appellate court
o Unless it can be shown that trial judge misunderstood the evidence or evidence is
unsound
Tengku Jonaris Badlishah v PP
o Appellate court will not disturb the finding of trial judge as long as evidence of both
experts were considered carefully
Lim Teck Kong v Dr Abdul Hamid Rashid
o Factors that can influence the court in preferring opinion of 1 expert over the other
Qualifications and experience
Reasoning of expert
Methodology used
Other factors
DSAI v PP
o Defence called 2 experts who testified that unlikely to trace semen 36 hours after
assault, thus impossible for PP’s expert witness to collect sperm cells after 56 hours
o HC: result of analysis are irreconcilable, defence’s witnesses has raised a reasonable
doubt
o COA: Defence’s experts are mere armchair experts who had not done any analysis
o FC: Defence’s evidence ought to be rejected as they did conduct any analysis but
interpreted PW’s findings
Dr Soo Fook Mun v Foo Fio Na
o GR: witness cannot be present when another witness is testifying
o Exception: expert can be present while another expert testifies
DNA Evidence
DNA profiling evidence
Opinion Evidence
o Expert evidence under s 45 for experts will give opinion on interpretation of DNA
report
o S 90A EA for DNA report is a computer generated document
PP v Loo Seng Yip
o Evidence: DNA profile of accused matched the DNA found on blood stains near
crime scene
o Defence objected: Expert did not explain how he came to such conclusion
o Held: Expert must give reasons for his conclusions
In DNA evidence, it is the number of matches that constitute the reasons for
conclusion arrived by expert. On the facts, chemist failed to explain.
Rejected
Hanafi Mat Hassan v PP
o Evidence:
Accused was assigned to drive the bus and bus ticket issued from machine
found in victim’s bag
Chemist who confirmed semen found in victim matched accused
o Held: the bus ticket and DNA report must satisfy s 90A of EA for both are computer
generated documents
o Held: in DNA cases, expert must explain the nature of match and frequency of such
match (give reasons)
Ahmad Najib Aris v PP
o Evidence:
CCTV recording
DNA (semen, bloodstains and hair found on accused)
o Issue: admissibility of documents produced by a computer under s 90A EA
o Held: DNA report admissible, CCTV inadmissible
Computer generated document under s 90A
In course of ordinary use Not in the course of ordinary use
Opinion Evidence
- Certificate under s 90A(2); or Oral - S 90A(6); and satisfy s 90A(4)
evidence which include matters in s - By oral evidence or certificate
90A(4)
Examples of documents that must satisfy s 90A
DNA report – Hanafi & Ahmad Najib
CCTV – Ahmad Najib
Automated tickets – Hanafi
Call logs/ SMS – Azilah Hadri
How to challenge DNA evidence?
Degradation of DNA which render it unreliable
Break in chain of custody of evidence which has a risk of contamination
Conflicting expert evidence
S 90A not satisfied
Experts not qualified or did not give reasons
