ULV4622- Law of Evidence II

DOCUMENTARY EVIDENCE (PART 1)

Definition of Document

 Section 3 of Evidence Act 1950 (EA) provides the definition of what

can be regarded as a document.

 “document” means any matter expressed, described, or

howsoever represented, upon any substance, material, thing or
article, including any matter embodied in a disc, tape, film,
sound track or other device whatsoever, by means of—

(a) letters, figures, marks, symbols, signals, signs, or other forms of

expression, description, or representation whatsoever;
(b) any visual recording (whether of still or moving images);
(c) any sound recording, or any electronic, magnetic, mechanical or
other recording whatsoever and howsoever made, or any
sounds, electronic impulses, or other data whatsoever;
(d) a recording, or transmission, over a distance of any matter by
any, or any combination, of the means mentioned in paragraph
(a), (b) or (c),
or by more than one of the means mentioned in paragraphs (a), (b),
(c) and (d), intended to be used or which may be used for the
purpose of expressing, describing, or howsoever representing, that
matter;
 See also the illustrations.

 What is documentary evidence? Section 3 on the definition of

“evidence” explains that the word evidence includes;

“evidence” includes—

(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;

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(b) all documents produced for the inspection of the court:

such documents are called documentary evidence;
***Please be mindful that computer generated documents admitted
under s 90A of EA which also a type of documentary evidence.

 Based on the definition in s 3 of EA, it can be seen that they are

extensive list of matters which can be regarded as a document.

 For example, in the case of R v Maqsud Ali; R v Ashiq Hussain

[1965] 2 All ER 464, a tape recording has been regarded as a
documentary evidence and admissible:

We can see no difference in principle between a tape recording

and a photograph. In saying this we must not be taken as
saying that such recordings are admissible whatever the
circumstances, but it does appear to this court wrong to deny
to the law of evidence advantages to be gained by new
techniques and new devices, provided the accuracy of the
recording can be proved and the voices recorded properly
identified; provided also that the evidence is relevant and
otherwise admissible, we are satisfied that a tape recording is
admissible in evidence.

 In Malaysia, the High Court in the case of Mohd Ali Jaafar v PP

[1998] 4 MLJ 210 held that a tape recording is a document within
the meaning of s 3 of EA. Furthermore, the Court also suggested
circumstances that must be fulfilled before a tape recording can be
admitted:

It is perhaps appropriate at this stage to consider the matters

that must be established when introducing evidence of a tape
recording. They are as follows:

(a) the tape was run through and found to be clean before the
recording was made;
(b) the machine was in proper working order;
(c) the tape was not tampered with or altered in any way — it
should be established in whose possession the tape was at all
times;

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(d) the officers (or other witnesses) played the tape over after
making the recording and heard voices which they can
identify;
(e) a transcript was prepared of the voices; if it was just taken
down in shorthand and the typed transcript prepared from the
shorthand notes then the notes should be saved;
(f) the officers (or other witnesses) played over the recording
and checked it with the transcript as to the identity of the
voices and as to the conversation.
(See also the case of Public Prosecutor v Jowy Manjoro [2007] 6
MLJ 342)

 In the case of TEMPIL PERKAKAS SDN BHD v FOO SEX HONG

(T/A AGRODRIVE ENGINEERING) [1996] 5 MLJ 542, facsimile
letter was a document within the meaning of s 3 of the Act.

 The Court of Appeal in the case of Gnanasegaran a/l

Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 held that:

We need to remind ourselves that s 90A was enacted to bring

the ‘best evidence rule’ up to date with the realities of the
electronic age. Receipts for payments in and records of
payments out of a bank account are keyed in by the tellers into
the terminals at the counter, and the information is
electronically stored in the bank’s computer. The information
so stored is not in itself visible to the naked eye. To become
visible, the raw data has to be projected on a video display unit
and/or printout. So the definition of a ‘document’ in s 3 of the
Act now provides that both the display on the video display
unit and the printout qualify as documents. The last two items
in the Illustrations to the section have spelt this out.

How to Prove Documentary Evidence in Courts?

 Documentary Evidence may be proved via ss 61 to 66 of EA.

According to the case of PP v Tan Huang Hiang [1990] 2 MLJ 24,
ss 61 to 66 are applicable in both civil and criminal cases.

 Section 61 of EA states that:

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The contents of documents may be proved either by primary or

by secondary evidence.
Lucas v Williams & Sons [1892] 2 Q.B. 113

“Primary” and “secondary” evidence mean this: primary

evidence is evidence which the law requires to be given first;
secondary evidence is evidence which may be given in the
absence of the better evidence which the law requires to be
given first, when a proper explanation is given of the absence
of that better evidence.

 Therefore, the general rule is that the best evidence must be

produced if it can possibly be obtained. If it is not available, then the
next best evidence that can be obtained will be admitted.

Primary Evidence

 Section 62 of EA states that:

Primary evidence means the document itself produced for the

inspection of the court.

Explanation 1—Where a document is executed in several parts,

each part is primary evidence of the document.

Where a document is executed in counterpart, each

counterpart being executed by one or some of the parties only,
each counterpart is primary evidence as against the parties
executing it

Explanation 2—Where a number of documents are all made by

one uniform process, as in the case of printing, lithography or
photography, each is primary evidence of the contents of the
rest; but where they are all copies of a common original they
are not primary evidence of the contents of the original.

Explanation 3—A document produced by a computer is

primary evidence.

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First Limb of Explanation 1 of s 62 —Where a document is executed

in several parts, each part is primary evidence of the document.

 Where a document is executed by all parties in duplicate or

triplicate, each is one is primary evidence of the other. Each one is
considered as primary evidence.

 For example, an agreement signed by both parties and there are

three original copies of the agreement.

Second Limb of Explanation 1 of s 62 - Where a document is

executed in counterpart, each counterpart being executed by one
or some of the parties only, each counterpart is primary evidence
as against the parties executing it.

 This limb explains circumstances whereby a document is prepared

in duplicate or triplicate or more copies but they are not executed by
all parties to it.

 A signed a document and then delivered to B. Since A has

signed the document, it will become a primary evidence
against A because he has executed it and must be bound by it.

 However, the document signed by A in the above will become a

secondary evidence against B because B did not execute the
document.

 This is the law as laid down in s 63(d) of EA which states that

secondary evidence includes:

(d) counterparts of documents as against the parties who did

not execute them;

(See the case of Katihar Jute Mills Ltd. vs Calcutta Match Works
(India) Ltd & Anor AIR 1958 Pat 133)

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Explanation 2 of s 62

 This provision deals with circumstances where documents are

produced by one uniform process, each is primary evidence
of the contents of the rest.

 There has been an issue whether documents known as “carbon

copies” can also be regarded as primary evidence?

PUBLIC PROSECUTOR v RENGASAMY [1974] 1 MLJ 223

I hold that the carbon copies of the analysis cash books are not
secondary evidence under section 63(b). I hold that they are
primary evidence falling under section 62 (Explanation 2) of the
Evidence Act, being documents made by one and the same
uniform process as the top copies, and therefore they are
admissible as primary evidence under section 62.

 However, in the case of Kok Kee Kwong v PP [1972] 1 MLJ 124, it

was held that carbon copies cannot be regarded as primary
evidence and can only be admissible as a secondary evidence.
Similarly, in the case of TSIA DEVELOPMENT ENTERPRISE SDN
BHD v AWANG DEWA [1984] 1 MLJ 301, the Court held that a
type-written carbon copy should not be admitted as primary
evidence.

 Nevertheless, many cases decided after the above two cases have
explained that carbon copies are considered as primary evidence.

Ooi Thean Chuan v Banque Nationale de Paris [1992] 2 MLJ

526

It is often overlooked that there can be more than one original of a

document. As far back as 1796, Eyre CJ held in Gotlieb v Danvers
(1796) 170 ER 418 that where two copies of the same document are
made at the same time, both should be deemed originals. Signed
carbon copies may also be deemed originals.

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Tube Home (M) Sdn Bhd v P Shanmugam @ SA Ponmugam & Anor

[2010] 1 MLJ 206

The court finds that the letter ID2 amounts to an 'original

document' as it is a carbon copy of the same letter sent by the
registry to the plaintiff.

(See also Genneva Malaysia Sdn Bhd v Abdul Ghani bin Sher
Mohamad [2017] MLJU 1819)

 Based on the above, we can see that if documents made by “one

uniform process”, all of them can be regarded as primary
evidence.

 However, it is important to note that in order for a signed carbon

copy to qualify as an original, the signature must also have
been produced in the same uniform process.

 For example, if the original document and the carbon copies of the
documents are signed separately and not in the same uniform
process, the carbon copies cannot be regarded as primary
documents.

ALLIEDBANK (MALAYSIA) BHD v YAU JIOK HUA [1998] 6 MLJ

1

In order for a signed carbon copy to qualify as an original, the

signature must also have been produced in the same uniform
process…
…
Thus a carbon copy signed separately after the top copy had
been signed is not something ' … produced at the same time
… ' and ' … is not a complete copy including the signature … '
as stated in the above case to qualify as an original

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***Explanation 3 of s 62 must be read together with s 90A of EA.

The effect from the explanation is that a computer generated
document is regarded as primary evidence!!!

Secondary Evidence

 Section 63 of EA defines documents that amount to secondary

evidence. Section 63 states that secondary evidence includes:

(a) certified copies given under the provisions hereinafter

contained;

(b) copies made from the original by mechanical processes,

which in themselves ensure the accuracy of the copy, and copies
compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did

not execute them;

(e) oral accounts of the contents of a document given by some

person who has himself seen or heard it or perceived it by
whatever means.

 Please be mindful that the use of the word “includes” in the section
similar to s 3 of EA indicates that the types of secondary evidence
as listed in s 63 are not exhaustive. (See also NOLIANA BTE
SULAIMAN v PUBLIC PROSECUTOR [2000] 4 MLJ 752)

 The word “copy” is not defined in the Act. However, in the

Supreme Court in the case of LEE WENG KIN v MENTERI HAL
EHWAL DALAM NEGERI, MALAYSIA & ORS [1991] 2 MLJ 472 in
referring to a decision of the Supreme Court of Indiain M/s
Hindustan Construction Co Ltd v The Union of India AIR 1967
SC 526 explains that:

Obviously, therefore, a copy means a document prepared from

the original which is an accurate or true copy of the original. In

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Webster's New World Dictionary, the word 'copy' means 'a

thing made just like another, full reproduction or transcription'.

 For example, a Photostat copy being a copy made from the original
by a mechanical process within the meaning of s. 63(b), is
undoubtedly secondary evidence. (See LEE KOK NAM v. PP
[1999] 5 CLJ 283).

 Section 63(a) which deals with certified copies must be read

together with ss 76, 77, 78, 79 and 86 of EA.

Manner of Proving Documentary Evidence

 The best way to prove a documentary evidence is by producing the

primary evidence in courts (The Best Evidence Rule). This has been
explained in s 64 of EA.

 The maker of the document must be called to prove it unless it falls

under exceptions in ss 32 or 73A of EA. (See ALLIEDBANK
(MALAYSIA) BHD v YAU JIOK HUA [1998] 6 MLJ 1).

 If a document has not been properly proved and properly admitted,

the document must be discounted as evidence in a trial. (See PP v
Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180 &
ALLIEDBANK (MALAYSIA) BHD v YAU JIOK HUA [1998] 6 MLJ
1)

 However, s 65(1) (a) to (g) of EA provides circumstances in which

secondary evidence relating to documents may be given. For
example, if the original document in possession of the opposite
party or third party, the original is destroyed or lost, or the original
document is not to be easily moveable.

 There are several conditions to be fulfilled before a secondary

evidence can be given during trials.

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 First, it must be proved that the original document is relevant to the

case and admissible. If the original document is inadmissible, the
secondary evidence of the document cannot be given (RE NEO
GUAN CHYE, DECEASED [1935] 1 MLJ 271).

 Secondly, there must be evidence of execution of the original

document before secondary evidence can be given (for example if
the document contains a signature of a person, it must be first
established that the person has indeed signed the document. See
also s 67 of the EA 1950)

TSIA DEVELOPMENT ENTERPRISE SDN BHD v AWANG DEWA

[1984] 1 MLJ 301

In this respect, I am prepared, in exercise of my discretion

under the same section, to allow the defendant to prove the
contents of the document sought to be produced under
section 65(1) (c), subject to learned counsel for the defendant
giving a satisfactory undertaking that due execution will be
proved. If, therefore, it is alleged that the original is similarly
executed as the document sought to be produced, due
execution of the original must be proved.

 In addition, the original document must have been stamped in

accordance to the Stamp Act 1949 because unstamped document
is inadmissible in courts as provided under s 52 of the Stamp Act
1949. (Refer to First Schedule of the Stamp Act 1949 on the list
of instruments which required to be stamped under the law)

CHIEW VUI KIET & ANOR v CHONG FOOK TIEN & ORS [1971] 2
MLJ 158 (FC)

In the instant case there is no evidence that the original had

been stamped. It follows, therefore, that no secondary
evidence can be offered of its terms even on payment of the
duty and penalty, if any, for the provisions of the Stamp
Ordinance regarding stamping of a document on payment
apply only to the original document if produced.

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 However, unstamped document can still be admissible once the

penalty is paid for the late stamping by virtue of proviso (a) of s
52(1) and read together with s 47A of the Stamp Act 1949.

AMERICAN EXPRESS INTERNATIONAL BANKING

CORPORATION v TAN LOON SWAN [1992] 1 MLJ 727 (SC)
We were referred to and agree with the decision of the Federal
Court in Malayan Banking Bhd v Agencies Service Bureau Sdn
Bhd & Ors 3, in which the Federal Court held at p 200 that it
was clear that under s 52(1) of the Stamp Ordinance 1949,
except for certain types of instruments, prohibition against
admissibility of an instrument on account of not being duly
stamped is not an absolute prohibition but conditional on
payment of a duty or a penalty, if any, under ss 43 and 47 of
that Ordinance. We would also agree with the views of the
Federal Court that it is the responsibility of the court under s
51 of that Ordinance to impound unstamped documents, if
produced, and to admit them under proviso (a) to s 52(1) on
payment of stamp duty or penalty, if any.
See also MALAYAN BANKING BHD v AGENCIES SERVICE
BUREAU SDN BHD & ORS [1982] 1 MLJ 198 (FC).
 It is important to note that a party who wishes to adduce
secondary evidence bears the burden to prove that the
existence of any circumstances mentioned in s 65(1) (a) to (g).

POPULAR INDUSTRIES LIMITED v EASTERN GARMENT

MANUFACTURING SDN BHD [1989] 3 MLJ 360

Equally clearly, the burden of proving the existence of any

circumstances bringing the case within any of these exceptions
lies upon the party seeking to adduce secondary evidence of the
contents of the document. (See s 104 illus (b) of the Evidence Act).

(See also KPM Khidmat Sdn Bhn v Tey Kim Suie [1994] 2 MLJ 627)

 Failure to discharge this burden will make secondary evidence

inadmissible (See HARJIT SINGH v REGINA [1963] 1 MLJ 287)

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Section 65(1) (a) & Section 66 of EA

 Section 65(1)(a) allows Secondary evidence to be given of the

existence, condition or contents of a document admissible in
evidence in the following cases:

(a) when the original is shown or appears to be in the

possession or power—

(i) of the person against whom the document is sought to

be proved;

(ii) of any person out of reach of or not subject to the

process of the court; or

(iii) of any person legally bound to produce it,

and when after the notice mentioned in section 66 such
person does not produce it;

 On the other hand, s 66 of EA States that:

Section 66. Rules as to notice to produce.

Secondary evidence of the contents of the documents referred

to in paragraph 65(1)(a) shall not be given unless the party
proposing to give such secondary evidence has previously
given to the party in whose possession or power the document
is, or to his advocate, such notice to produce it as is
prescribed by law; and if no notice is prescribed by law, then
such notice as the court considers reasonable under the
circumstances of the case;

 Therefore, if a document is in the hands of the opposite party it is

necessary to serve him or his advocate with a notice to
produce it.

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SELANGOR INDUSTRIAL CORPORATION SDN BHD v. KESUMA

MURNI SDN BHD & ORS [2016] 1 LNS 1631

Section 65(1)(a)(i) of the EA states that secondary evidence may be

given of the existence, condition or contents of a document
admissible in evidence when the original is shown or appears to be
in the possession or power of the person against whom the
document is sought to be proved. That particular provision has to
be read together with s. 66 of the EA which says that secondary
evidence of the contents of the documents referred to in paragraph
65(1)(a) shall not be given unless the party proposing to give such
secondary evidence has previously given to the party in whose
possession or power the document is, or to his advocate, such
notice to produce it as is prescribed by law; and if no notice is
prescribed by law, then such notice as the court considers
reasonable under the circumstances of the case.

(See also the case of Kok Kee Kwong v PP [1972] 1 MLJ 124 & Tube
Home (M) Sdn Bhd v P Shanmugam @ SA Ponmugam & Anor
[2010] 1 MLJ 206)

 There must be evidence to show that the notice to produce the

original document is duly served to the party who is in possession of
the document (CHUA NEOH KOW v MALAYAN BANKING BHD
[1986] 2 MLJ 396)

 Secondary evidence in which the original is in possession of the

opposite party can only be admissible if the party does not produce
it despite has been served with the notice.

Kok Kee Kwong v PP [1972] 1 MLJ 124

Section 65(a)(i) states that secondary evidence of the contents

of a document may be given when the original is shown or
appears to be in the possession or power of the accused and

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when after due notice as mentioned in section 66 the accused

does not produce it.

Circumstances When Notice to Produce is not Required or Can be

Dispensed With

 The proviso in s 66 of EA provides 6 circumstances where a court

may dispense the requirement for the notice to produce before
secondary evidence can be admitted.

 For example, in the case of SELANGOR INDUSTRIAL

CORPORATION SDN BHD v. KESUMA MURNI SDN BHD & ORS
[2016] 1 LNS 1631 the Court held that:

Under proviso (b) to s. 66 of the EA, the notice to produce shall

not be required to render secondary evidence admissible when
from the nature of the case the adverse party must know that
he will be required to produce it.

(See also Tube Home (M) Sdn Bhd v P Shanmugam @ SA

Ponmugam & Anor [2010] 1 MLJ 206)
 In another example, the Court in Kok Kee Kwong v PP [1972] 1
MLJ 124 held that:

But notice is not necessary when it appears or is proved that

the accused has obtained possession of the original by fraud
or force (proviso (c) to section 66).

The Effects to Parties When a Notice to Produce Has Been Issued

 Section 163 of EA deals with the effect to the party who issued the
notice to produce.

Section 163. Giving as evidence of document called for and

produced on notice.

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When a party calls for a document which he has given the other party
notice to produce, and the document is produced and inspected by the
party calling for its production, he is bound to give it as evidence if
the party producing it requires him to do so and if it is relevant.

 The main purpose of this provision is to prevent a notice from being

used as a method to inspect a document (fishing expedition) and to
prevent a party from refusing to use it if it is shown that the original
document does not favour the party who requested for its
production.

 Section 164 of EA on the other hand deals with the effect to the
party who have been served with the notice to produce but refuse to
produce it as requested.

Section 164. Using as evidence of document production of which

was refused on notice.

When a party refuses to produce a document which he has had

notice to produce, he may not afterwards use the document as
evidence without the consent of the other party or the order of the
court.

ILLUSTRATION

A sues B on an agreement, and gives B notice to produce it. At the

trial A calls for the document, and B refuses to produce it. A gives
secondary evidence of its contents. B seeks to produce the
document itself to contradict the secondary evidence given by A, or
in order to show that the agreement is not stamped. He may not do
so.

 Thus, a party who has been issued with the notice to produce a
document but refused to do so cannot afterwards use the document
as evidence unless the party who requested for it gives consent or
with the order by the court.

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*** Please be mindful that ss 73A and 90A of EA also deal with
documentary evidence. We have studied the two sections in
Trimester 1 under the topic of exception to hearsay evidence.

*THANK YOU*

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