Opinion Evidence

The general rule is that a witness may only testify on facts perceived. He cannot give his
opinion.
In Syed Abu Bakar v PP [1984] 2 MLJ 19, it was held an expert opinion is needed when the
court needs to form a correct judgment on a particular subject that required special skill or
experience.
Opinion is conclusions drawn from facts
In RW Miller & Co Pty Ltd v Krupp (Aust) Pty Ltd (1991) 34 NSWLR 129, it was held
opinion refers to evidence of a conclusion, usually judgmental or debatable reasoned from
facts
S.3 Evidence Act 1950 states fact means and includes (a) anything, state of things or relation
of things capable of being perceived by the sense (b) any mental condition of which any
person is conscious
Examples
I saw Ms Mages playing badminton yesterday. She was holding the racket with her left hand.
She must be left handed.
“ I saw Ms Mages playing badminton yesterday” this is a fact, because u perceive thru senses
“ she was holding the racket with her left hand”. This is a fact because u perceive thru senses
“she must be left handed”. This is opinion, conclusion that u draw from fact
The victim had been stabbed. This is fact, because u perceive thru sense
The nature of the wound was such it must have been inflicted by a left handed person. This is
opinion
Opinion evidence is excluded as a general rule because it is the judge who bears the
responsibility to draw conclusions from facts
To allow opinion evidence will usurp the function of the court which is the trier of fact
It is the function of the court to make inferences from facts and draw conclusions
The rule and the reason are clear but the application of the rule is highly subjective
The distinction between what is an opinion and what is a fact is highly subjective. A fact may
be an opinion in disguise
Distinction between fact and opinion:
Phipson: “It may not be easy to disentangle what is perceived (perception) from what is
inferred”
Exceptions
In certain exceptional situations opinion evidence will be allowed
Exception:
In areas where special knowledge or skills will be required.
These areas fall beyond the scope of knowledge and skills of the courts
The court will not be able to come to a decision without the assistance of those with special
knowledge and skills
Experts Opinion Evidence
S.45(1) Evidence Act 1950 states when the court has to form an opinion upon a point of
foreign law or of science or art, or as to identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that foreign law,
science or art, or in questions as to identity or genuineness of handwriting or finger
impressions, are relevant facts.
S.45(2) Evidence Act 1950 states such persons are called experts
Effect: identifies the exception to the general rule whereby expert opinion evidence will be
admissible
Not all expert evidence will fall within the definition of opinion evidence
Expert evidence can be divided into 2 categories:
a. Evidence of fact (scientific evidence of what was observed)
b. Opinion evidence on conclusions based on that which is observed
In Khoo Hi Chiang v PP [1994] 1 MLJ 265, held the evidence of the chemist on the identity
and weight of the drugs was factual evidence and not opinion evidence within the meaning of
S.45 of the Evidence Act 1950. The question of adducing evidence to show the expertise of
the chemist does not arise. However, expertise and qualification of an expert witness must be
established where the evidence consists of not only direct factual observation but of opinion.
The general rule is that only court may draw conclusions
Exception:
When the court is required to make a decision on matters which fall outside:
i) the experience, skills and knowledge of the court
ii) outside the scope of common knowledge (when special study/training/experience is
required to form a judgment)
In Syed Abu Bakar v PP [1984] 2 MLJ 19, it was held an expert opinion is needed when the
court needs to form a correct judgment on a particular subject that required special skill or
experience.
In Chou Kooi Pang v PP [1998] 3 SLR 593, it was held expert evidence was only
admissible to furnish the court with scientific information which was likely to be outside the
experience and knowledge of a judge. If, on the proven facts, a judge could form his own
conclusions without help, the opinion of an expert was unnecessary. In this case, the question
was whether the first appellant knew or at least suspected that he was carrying drugs. This
could only have been inferred from the surrounding circumstances by the trier of fact, and
was a matter entirely within the trial judge's purview.
The general rule is expert is only there to assist the court to reach a decision, the final
decision is for the court alone
Exception: purely scientific evidence
In Ong Chan Tow v R [1963] 1 MLJ 160, it was held an expert should not be asked to give
his conclusions on matters which are clearly matters for the Court to decide, otherwise he
would take over the functions of the Court. The motoring expert is there to help the Court on
technical and mechanical matters, not to draw inferences which even a layman can equally
well draw.
In Wong Swee Chin v PP [1981] 1 MLJ 212, it was held except on purely scientific issues,
expert evidence is to be used by the court for the purpose of assisting rather than compelling
the formulation of the ultimate judgments
In R v Turner [1975] 1 All ER 70, the court held the psychiatrist’s evidence was
inadmissible as an expert opinion was only necessary where the expert could furnish the court
with scientific information that was likely to be outside the experience and knowledge of the
judge and the psychiatrist's evidence was not necessary to tell them how an ordinary person
who was not suffering from mental illness was likely to react to the stresses and strains of
life.
In Lowery v R [1973] 3 All ER 662, two accused persons, K and L were charged for murder
of a young girl. A psychologist gave evidence that K is more likely to be led and dominated
by more aggressive and dominant men and who could conceivably act out or behave
aggressively to comply with the wishes or demands of another person. He further testified
that the result of the tests showed that L had a strong aggressive drive with weak controls
over the expression of those aggressive impulses. L appealed on the ground that the
psychologist’s evidence was inadmissible since it merely went to show disposition. The court
held the evidence was rightly admitted as the evidence given did not merely go to show
criminal tendencies but was scientific evidence as to the respective personalities of the two
accused. This evidence was relevant to show that because of their different personalities, the
version of facts put forward by K was more probable than that put forward by L.
Types of Experts
a) Gazetted Expert
In PP v Saad Bin Mat Takraw [1998] 3 MLJ 784, held experts are classified into 2 types
which are gazetted experts appointed by gazette notification and experts which fall within
S.45 to S.49 of Evidence Act 1950. A gazetted expert is a creature of statute and this means
the legislature must have intended that such gazetted persons be accepted by the courts as
prima facie experts without the need to lead evidence to show their expertise, which pertains
directly to the field of study for which they have been gazetted as experts.
In Tan Kay Soon v Tan Ching Ling [2020] 1 LNS 246, it was held a gazetted expert under
the Registration of Criminals and Undesirable Persons Act 1969, he was not within the
purview of S.45 Evidence Act and, there was no need to establish his expertise
b) Experts under S.45 Evidence Act 1950
Categories of Expert Evidence
S.45(1) Evidence Act 1950 states when the court has to form an opinion upon a point of
foreign law or of science or art, or as to identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that foreign law,
science or art, or in questions as to identity or genuineness of handwriting or finger
impressions, are relevant facts.
S.45(2) Evidence Act 1950 states such persons are called experts
a. foreign law
b. science or art
c. handwriting
d. fingerprints
Foreign law
Our judges are deemed to be experts on:
-Malaysian law (including Islamic law)
-English law/Common law
-All other laws are deemed as foreign law and the court will require the assistance of an
expert
Science/Art
In Chandrasekaran v PP [1971] 1 MLJ 153, the court held “Science or art” includes a
subject matter that requires a course of study for a person to understand it.
Not necessary to make a distinction between science or art
Traditional fields/ New technology
In DP Vijandran v PP [1999] 1 CLJ 691, the testimony of a Japanese facial feature expert
on a pornographic video tape that the accused was the male actor in the tape was accepted by
the court.
In Leong Wing Kong v PP [1994] 2 SLR 54, the competency of an expert is a matter for the
court. An expert must be skilled by special study or by experience. The practice of drug users
and suppliers cannot be admitted under either science or art within S.47 Evidence Act (S.45
Evidence Act 1950 in Malaysia) as to do so requires the court to strain the meaning of the
term science or art.
Section 49
S.49 Evidence Act 1950 states when the court has to form an opinion as to
(a) the usages and tenets of any body of men or family
(b) the constitution and government of any religious or charitable foundation or
(c) the meaning of words or terms used in particular districts or by particular classes of
people
the opinions of persons having special means of knowledge thereon are relevant facts.
In PP v Lee Ee Teong [1953] MLJ 244, the court admitted that prosecution do frequently
and properly rely upon the evidence of detectives and other persons who by reason of their
experiences, have special knowledge of methods of gambling. This sort of evidence is not
evidence by experts, it is admissible under S.49 and not S.45 Evidence Act 1950.
In R v Lim Chin Shang [1957] 1 MLJ 125, held the detective's description of the tattoo
marks fitted exactly the marks found on the respondent and thus prima facie the respondent
has been identified as a member of this secret society. The evidence of the detective was re-
inforced by a Sub-Inspector who gave evidence as an expert, based in many years experience
in the Secret Societies Branch of the Criminal Investigation Department, of the practice and
usages of secret societies, including this particular secret society.
Questions
1. Is it accepted science?
Accepted Fields of Science:
DNA evidence/medical evidence/facial recognition/mapping (biometric recognition)
Pseudoscience: Will not be accepted
Astrology, numerology, aroma therapy, polygraph (lie detector)
2. Is it exact science?
Exact conclusive science:
DNA/Fingerprint
Non exact inconclusive science:
Handwriting/facial recognition
3. Admissibility or Weight?
Mages finds the idea of polygraph test as evidence in court as improper, she thinks we should
not allow it
In R v Beland And Phillips [1988] LRC (Crim) 203, the court rejected the polygraph
examination and held that the admission of polygraph evidence would run counter to the well
established rules of evidence. The court further held that it is a basic tenet of our legal system
that judges and juries are capable of assessing credibility and reliability of evidence
In Bernal And Moore v R (1996) 50 WIR 296, the court held polygraph evidence was not
admissible to support the credibility of the accused
In Selvi v State of Karnataka [2010] 5 LRC 137, it was held the test results of polygraph
examination by themselves cannot be admitted as evidence because the subject does not
exercise conscious control over the responses during the administration of the test. However,
any information or material that is subsequently discovered with the help of voluntary
administered test results can be admitted under S.27 of Evidence Act
In R v Gardner [2004] All ER (D) 327, a person was killed during a fire in a block of flats.
One of the experts who gave identification evidence for the prosecution used a new technique
that deployed computer software to provide an analysis of video surveillance footage. Even
though the defence did not have any material in relation to which they could cross-examine
the expert witness and enable the jury to judge the expert’s analysis and assessment that the
person identified in the surveillance footage was the defendant, the court guardedly accepted
the admissibility of this evidence. However, the court also sounded a note of caution in
relation to new techniques relating to identification where if admitting evidence of this kind
seems unfamiliar and as technology develops, evidential practice will need to be evolved to
accommodate it. While the courts must be vigilant to ensure that no unfairness results, they
should not block steps which enable the jury to gain full assistance from the technology.
In Attorney General's Reference (No 2 of 2002) [2003] 1 Cr App Rep 321, the defendant
was charged with riot. The prosecution sought to prove the defendant’s identity through a
video film of the riot through the evidence of G, a community liaison officer who knew the
defendant well and identified him from the video. The judge held since G was a witness who
possessed no special skills or abilities over and above that of the court, his evidence was
inadmissible because the original identification evidence in the form of the video was
available to the court.
In R v Stockwell (1993) 97 Cr App Rep 260, the appellant was convicted for robbery. A
facial mapping expert, N was called to compare photographs of the perpetrator of each
robbery. Although N had given evidence in other trials where his opinions were inconclusive
and he had changed his mind, he gave an opinion that the person in those photographs was
the appellant. The appellant appealed and contended that N was not an expert and his
evidence was unreliable based on his past record and that the expert should not usurp the role
of the jury. The court held where a suspect might have been in disguise, there was no reason
why expert evidence should not be given if it could provide the court with information and
assistance. However, the court should make sure that they were not bound by the expert's
opinion and that the issue was for them to decide. In the instant case, N's evidence was
admissible and the issues as to N's past record of giving evidence affect its weight and not its
admissibility. Thus, the appellant’s appeal was dismissed.
In R v Briddick [2001] EWCA Crim 984, the appellant appealed against his conviction for
5 counts of robbery. The court held although the opinion evidence of the expert witness was
based on an insufficiently scientific foundation, the court had been appropriately warned to
bear in mind those scientific shortcomings when assessing his evidence. In conclusion, the
court is satisfied with the expert’s opinion that the person shown as committing the robberies
on each of those five occasions, was the same man. Thus, the court dismissed the appellant’s
appeal.
In R. v. Atkins and Atkins (2009) 173 JP 529, the appellant contended that a facial mapping
expert should never use expressions such as “support” and “strong support” that the man in
the CCTV was the appellant but should confine his evidence simply to identifying the
similarities or dissimilarities between the faces he had compared. The court held although it
is clear that a facial mapper's conclusion should not be based a statistical database recording
the incidence of the features compared as they appear in the population at large, the absence
of such a database does not mean that the witness may not express an opinion on his
examination of the photographs. Where a photographic comparison expert gives evidence,
properly based upon study and experience of similarities or dissimilarities between a
photograph and a known person, the expert may express his conclusion as to the significance
of his findings. They are however, expressions of subjective opinion, and this must be made
clear to the court. Thus, the court dismissed the appellant’s appeal against conviction.
Handwriting
2 main sections on Opinion Evidence on handwriting:
S.45 – expert opinion on handwriting
S.45(1) Evidence Act 1950 states when the court has to form an opinion upon a point of
foreign law or of science or art, or as to identity or genuineness of handwriting or finger
impressions, the opinions upon that point of persons specially skilled in that foreign law,
science or art, or in questions as to identity or genuineness of handwriting or finger
impressions, are relevant facts.
S.45(2) Evidence Act 1950 states such persons are called experts
S.47 – non expert opinion on handwriting
S.47 Evidence Act 1950 states when the court has to form an opinion as to the person by
whom any document was written or signed, the opinion of any person acquainted with the
handwriting of the person by whom it is supposed to have been written or signed, that it was
or was not written or signed by that person, is a relevant fact.
S.73(1) Evidence Act 1950 states in order to ascertain whether a signature, writing or seal is
that of the person by whom it purports to have been written or made, any signature, writing or
seal, admitted or proved to the satisfaction of the court to have been written or made by that
person, may be compared by a witness or by the court with the one which is to be proved,
although that signature, writing or seal has not been produced or proved for any other
purpose.
S.73(2) Evidence Act 1950 states the court may direct any person present in court to write
any words or figures for the purpose of enabling the court to compare the words or figures so
written with any words or figures alleged to have been written by that person.
There are 3 methods to prove handwriting
Augustine Paul states a court cannot rule on handwriting without the aid of experts
Even the opinions of the handwriting expert is not conclusive unless supported by cogent data
as it is not an exact science
In Syed Abu Bakar Bin Ahmad v PP [1984] 2 MLJ 19, held while a judge is entitled to
weigh all the evidence, to put his magnifying glass to determine the probabilities and form his
own opinion or judgment, it would be erroneous for him to form a conclusion on a matter
which could only be properly concluded with the aid of expert evidence. In this case as the
document was not examined by an expert in handwriting, it was not correct for the judge to
come to a finding of fact that the writing on the receipt appeared to come from the same pen
used by the appellant to sign his name and write the receipt number
In Letchumanan Chettiar Alagappan v Secure Plantation Sdn Bhd [2017] 4 MLJ 697,
the Federal Court held that the modes of proof under S.45 and 47 are not exclusive to prove
the genuineness of a document. Comparison may be made, by a handwriting expert under s
45, by anyone familiar with the handwriting of the person concerned under s 47, or by the
court itself.
The court has the power to compare the disputed signature with the admitted signature under
S.73 of the Evidence Act 1950 and if the feature of writing and signature on the documents
are so glaring that the court can form an opinion by itself, then further exercise under S.45
will be unnecessary.
Evidentiary value of handwriting expert evidence
In PP v Mohamed Kassim Bin Yatim [1977] 1 MLJ 64, held that evidence by a
handwriting expert can never be conclusive
In Srikant v KE [1905] 2 ALJ 444, it was held to based a conviction upon the evidence of
an handwriting expert is generally unsafe.
In Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam [1992] 1
MLJ 1, held that evidence by a handwriting expert should be viewed with caution as it is
only an opinion evidence
In United Asian Bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182, it
was held the evidence of an expert on handwriting unsupported by cogent data showing the
process by which he came to his conclusion is worthless
Opposite Position
In Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai, held there was no rule
saying that the evidence of handwriting experts must be corroborated. Each case must be
dealt with on its own merits.
Fingerprints
Has reached a degree of exactitude
In Himachal Pradesh Administration. Versus Shri Om Parkash (1972) 1 MLJ (Crl) 404,
held the reason why the reports of the Director of the Finger Print Bureau is treated as
evidence without examining the person giving the report is that the comparison and
identification of finger prints has now developed into a science and the results derived have
reached a stage of exactitude. As long as the report shows that the opinion was based on
observations which lead to a conclusion, that opinion can be accepted, but should there be
any doubt it can always be decided by the calling of the person making the report.
In PP v Toh Kee Huat [1965] 1 MLJ 76, the accused was charged with theft of a motor car.
There was evidence of the accused’s fingerprints on the inside surface of the glass of the car.
It was held the weight of evidence of fingerprints can never be attacked and a clear prima
facie case had been made out which if unrebutted warranted conviction.
Qualifications
There are 2 types of experts who may be called as a witness:
Gazetted Expert
In PP v Saad Bin Mat Takraw [1998] 3 MLJ 784, held experts are classified into 2 types
which are gazetted experts appointed by gazette notification and experts which fall within
S.45 to S.49 of Evidence Act 1950. A gazetted expert is a creature of statute and this means
the legislature must have intended that such gazetted persons be accepted by the courts as
prima facie experts without the need to lead evidence to show their expertise, which pertains
directly to the field of study for which they have been gazetted as experts.
In Tan Kay Soon v Tan Ching Ling [2020] 1 LNS 246, it was held a gazetted expert under
the Registration of Criminals and Undesirable Persons Act 1969, he was not within the
purview of S.45 Evidence Act and, there was no need to establish his expertise
Expert under S.45
Evidence of qualification required to establish expertise
For a witness to give opinion evidence under S.45, he or she must be specially skilled in the
field.
The witness must be an expert
Evidence of the witness’s qualifications must be adduced as a precondition for the court to
accept the witness as a witness as an expert under S.45
Experts can prove their qualifications by formal study or experience
In Junaidi bin Abdullah v PP [1993] 3 MLJ 217, it was held the test to be applied for the
purpose of S.45 Evidence Act 1950 is firstly, does the nature of the evidence require special
skill? Secondly, has the witness acquired the necessary skill either by academic qualification
or experience so that he has adequate knowledge to express an opinion on the matter under
enquiry? An expert must prove his skills through academic qualifications or experience. The
speciality of the skill required of an expert witness under S.45 would depend on the scientific
nature and complexity of the evidence sought to be proved. The more scientific and complex
the subject matter, the more extensive and deeper will the court be required to enquire into
the ascertainment of his qualification or experience. The lack of qualification or experience
on the part of the expert only affects the weight of the evidence rather than admissibility. But
where the evidence is of a complex and scientific nature, the absence of both qualification or
experience can certainly affect admissibility.
In Muhammad Zulkarnain Mohamed Rokani v Pengarah Hospital Sultan Ismail Johor
Bahru [2020] 1 LNS 1155, the plaintiffs argued that the defendant’s witness a rehabilitation
physician was not registered under the National Specialist Register of the Malaysian Medical
Council and, therefore, could not be an expert to give evidence on the suitability and cost of a
prosthesis for the First Plaintiff. The defendant however contended that the witness called by
the Plaintiffs a clinical prosthetist and orthotist was neither qualified, nor experienced to give
opinion evidence on what prosthesis would be apt for the First Plaintiff. The court rejected
both the plaintiff’s and defendant’s contention. The court further held the plaintiff’s witness
had obtained a degree in Biomedical Engineering Prosthesis and Orthosis from the University
of Malaya and had been employed as a clinical prosthetist and orthotist for six years. He had
also informed the Court that he had given evidence before and he had complied the procedure
to establish his expertise as an expert witness. In the final analysis, it is for the trial judge
himself as both decider of fact and law to determine the weight to be attached to the evidence
of the expert witness, regardless of his qualification or experience. Furthermore, the court
held the role of the expert is to assist the court on the matters within his expertise and the
court must be vigilant when expert witnesses give evidence in court.
In Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, held the semi-skilled or semi
professional psychiatric nurse may qualify as expert witness as he had been working in a
mental hospital for 5-6 years.
In PP v Muhamed Bin Sulaiman [1982] 2 MLJ 320, held although the chemist had no
academic training in forensic ballistics, he might, by virtue of his education, his scientific
qualification and his practical experience gained in the Department of Chemistry, be regarded
as an expert for the purpose of determining whether or not the bullet had been fired through
the respondent's rifle. The learned trial judge was thus wrong in treating him as a non-expert
In PP v Sam Hong Choy [1995] 4 MLJ 121, the court held an assistant armourer is
competent to give evidence on the serviceability of the pistol as he does possess a particular
skill with regard to firearms and its serviceability. Furthermore, the evidence which he gave
was not of a complex and scientific nature which would require special skills.
Procedure
In Junaidi bin Abdullah v PP [1993] 3 MLJ 217, it was held the test to be applied for the
purpose of S.45 Evidence Act 1950 is firstly, does the nature of the evidence require special
skill? Secondly, has the witness acquired the necessary skill either by academic qualification
or experience so that he has adequate knowledge to express an opinion on the matter under
enquiry? An expert must prove his skills through academic qualifications or experience. The
speciality of the skill required of an expert witness under S.45 would depend on the scientific
nature and complexity of the evidence sought to be proved. The more scientific and complex
the subject matter, the more extensive and deeper will the court be required to enquire into
the ascertainment of his qualification or experience. The lack of qualification or experience
on the part of the expert only affects the weight of the evidence rather than admissibility. But
where the evidence is of a complex and scientific nature, the absence of both qualification or
experience can certainly affect admissibility.
In Dato Mokthar Hashim v PP [1983] 2 MLJ 232, the court held to qualify to give expert
evidence the witness must satisfy the court that he is indeed an expert, that he is specially
skilled in the field of the enquiry carried out by him. An expert is one who is skilled in
any particular art, trade or profession being possessed of peculiar knowledge concerning
the same. The witness must have made a special study of the subject or have acquired
special experience on the subject.
In Wong Chop Saow v PP [1965] 1 MLJ 247, the court held an expert witness should give
his evidence as follows: He should first state his qualifications as an expert. He should then
state that he has given evidence as an expert in such cases and that his evidence has been
accepted by the courts. He should then proceed to describe the various documents and give
his reasons for his expert opinion for that matter. The court must then accept or reject the
evidence of the expert witness
Is the witness an expert?
In Lin Lian Chen v PP [1991] 1 MLJ 316, it was held the Prosecution must first establish
the expert’s expertise before calling the expert. Although the witness is a government chemist
this does not make him an expert in the particular field of drugs. Besides, Where expert
witnesses are called to give evidence in court, their reports should only be used to corroborate
their evidence.
In PP v Chong Wei Kian [1990] 3 MLJ 165, the court held that the witness giving evidence
as to the heroin and its weight was not an expert witness as no evidence was tendered to show
his qualifications and experience except the fact that he had been a chemist for 18 years.
Without the evidence of an expert, the court cannot find that the substances found are defined
as heroin under the Dangerous Drugs Act 1952.
In Commercial Union Assurance v Lee Siew Khuan [1991] 2 MLJ 541, it was held an
expert need not be qualified professionally to be accepted as an expert. If the court is satisfied
that the witness has sufficient knowledge or expertise to qualify as an expert, he can be
regarded as such. The court was entitled to rely on the evidence of the advocate and solicitor
as he was shown to know enough about diamonds to assess their value.
In PP v Muhamed Bin Sulaiman [1982] 2 MLJ 320, held although the chemist had no
academic training in forensic ballistics, he might, by virtue of his education, his scientific
qualification and his practical experience gained in the Department of Chemistry, be regarded
as an expert for the purpose of determining whether or not the bullet had been fired through
the respondent's rifle. The learned trial judge was thus wrong in treating him as a non-expert
In Kumaraguru a/l N Muniandy v PP [1994] 1 MLJ 254, it was held as no evidence was
led to satisfy the court that the chemist had any experience in the analysis of drugs including
heroin, the court could not presume that he was clothed with this expertise just because he
was a chemist with 12 years' experience. Thus, the prosecution had failed to provide the basis
for the reception of expert opinion under S.45 of the Evidence Act 1950.
In Kek Siong Uteh v Aw Siew Keon [2016] MLJU 57 the testator left behind 2 wills, where
the 2nd will left all his property to his 2 nd wife and leaving nothing to his children with the 1 st
wife. The validity of the 2nd will was challenged by the children. The Court of Appeal held
since the Doctor who treated the deceased as a patient testified the deceased had poor
memory and was lacking in concentration after examining him, and there was no evidence
by the appellant to rebut the Doctor’s testimony, the deceased was clearly suffering from
dementia and not of sound mind when the will was made. Furthermore, as the doctor had
treated the deceased as a patient, there was no reason to doubt the truthfulness of his
evidence.
S.399 Criminal Procedure Code: Reports of certain persons
S.399(1) Criminal Procedure Code states any document purporting to be a report under
the hand of any of the persons mentioned in subsection (2) upon any person, matter or
thing examined or analysed by him or any document purporting to be a report under the
hand of the Registrar of Criminals upon any matter or thing relating to finger impressions
submitted to him for report may be given in evidence in any inquiry, trial or other
proceeding under this Code unless that person or Registrar shall be required to attend as
a witness
(a) by the Court or
(b) by the accused, in which case the accused shall give notice to the Public Prosecutor
not less than three clear days before the commencement of the trial
Proviso to S.399(1) Criminal Procedure Code states in any case in which the Public
Prosecutor intends to give in evidence any such report he shall deliver a copy of it to the
accused not less than ten clear days before the commencement of the trial.
S.399(2) Criminal Procedure Code states the following are persons to whom the provisions
of this section apply:
(a) officers of the Institute for Medical Research
(b) Government Medical Officers
(c) chemists in the employment of any Government in Malaysia or of the Government of
Singapore
(d) any person appointed by the Minister by notification in the Gazette, to be a Document
Examiner
(e) Inspector of Weights and Measures appointed as such under any written law relating to
weights and measures in force in Malaysia and
(f) any person or class of persons to whom the Minister by notification in the Gazette declares
that the provisions of this section shall apply
S.399(2)(d), (e) and (f) are gazetted expert
S.399(2)(a), (b) and (c) are expert in S.45
S.399(3) Criminal Procedure Code states the persons referred to in subsection (2) and the
Registrar of Criminals are bound to state the truth in reports made under their hands.
Effect:
Reports of all persons identified S.399(2) can be admitted in evidence without calling the
maker as a witness provided:
PP has delivered the report to defence 10 clear days before trial
However the witness must be called if:
a. Court requires it
b. The accused requires it (but must give notice to PP 3 clear days before trial)
In PP v Kit Chee Wan [1999] 1 MLJ 16, held even though S.11 Common Gaming Houses
Act 1953 is silent as to the requirement that an expert must establish his status as an expert
for prosecution purposes, it is established that case laws require an expert to prove his
background and capability. The usage of the word 'may' in S.11 merely meant that an expert
may be appointed, but that appointment must be done by the Minister of Finance and
announced in the Gazette. The two preconditions must be fulfilled. The gazetting in the
present case was therefore invalid. Since there was no other evidence available for the court's
consideration, the court was not convinced that the common gaming expert had been properly
appointed. Therefore, it could not be said that the prosecution had proved beyond reasonable
doubt that the exhibits were gaming documents. Without successfully proving that they were
related to public lottery, the presumption under S.11(1) of the Act could not be utilized by the
prosecution and the accused is acquitted.
Note: S.399 is an exception to the hearsay rule
In Shamsul Kamar Karia v PP [2013] 9 CLJ 387, in the instant case, the chemist had
passed away and as such the appellant could not give any notice under S.399(1)(b) Criminal
Procedure Code to require the attendance of the chemist as a witness. The prosecution had
not complied with the 10 days requirement under S.399(1) Criminal Procedure Code and they
intend to adduced the chemist report under S.32(1)(i) and (j) of Evidence Act 1950. The court
held that the oral evidence of the chemist is the best evidence. Besides the court held the
requirements in S.399 prevails over S.32(1)(i) and (j) Evidence Act 1950 because the
admissibility of the chemist report must be governed by S.399(1) CPC, not according to S.32
of Evidence Act 1950 and that the general provisions of the same provision must give way to
the specific provisions of S.399(1) CPC.
Function of the Court
S.51 Evidence Act 1950 provides Whenever the opinion of any living person is relevant, the
grounds on which his opinion is based are also relevant.
In Sim Ah Oh v PP [1962] MLJ 42, held the court’s duty is to consider the expert’s reasons
before it decides the case
In Sim Ah Song v R [1951] MLJ 150, held the bare expression of the expert’s opinion has
no evidential value
In Chin Sen Wah v PP [1958] MLJ 154, it was held the Magistrate has the duty to form his
own decision for the case in light of the evidence given by the expert
In Wong Swee Chin v PP [1981] 1 MLJ 212, it was held except on purely scientific issues,
expert evidence is to be used by the court for the purpose of assisting rather than compelling
the formulation of the ultimate judgments
In Muhammad Zulkarnain Mohamed Rokani v Pengarah Hospital Sultan Ismail Johor
Bahru [2020] 1 LNS 1155, the plaintiffs argued that the defendant’s witness a rehabilitation
physician was not registered under the National Specialist Register of the Malaysian Medical
Council and, therefore, could not be an expert to give evidence on the suitability and cost of a
prosthesis for the First Plaintiff. The defendant however contended that the witness called by
the Plaintiffs a clinical prosthetist and orthotist was neither qualified, nor experienced to give
opinion evidence on what prosthesis would be apt for the First Plaintiff. The court rejected
both the plaintiff’s and defendant’s contention. The court further held the plaintiff’s witness
had obtained a degree in Biomedical Engineering Prosthesis and Orthosis from the University
of Malaya and had been employed as a clinical prosthetist and orthotist for six years. He had
also informed the Court that he had given evidence before and he had complied the procedure
to establish his expertise as an expert witness. In the final analysis, it is for the trial judge
himself as both decider of fact and law to determine the weight to be attached to the evidence
of the expert witness, regardless of his qualification or experience. Furthermore, the court
held the role of the expert is to assist the court on the matters within his expertise and the
court must be vigilant when expert witnesses give evidence in court.
Conflict between 2 experts
PP v Ang Soon Huat [1991] 1 MLJ 1 held since there was a dispute between the
prosecution and defence experts as to the weight of the drugs, it was important for the
prosecution to produce additional expert evidence. Since no such evidence was adduced, a
reasonable doubt had been raised on the prosecution evidence.
In Collector of Land Revenue v Alagappa Chettiar [1971] 1 MLJ 43, the Privy Council
held that where there is a conflict between two experts, the judge’s decision in preferring
the opinion of one expert witness over another should not be disturbed by an appellate
court unless it could be shown that the judge who heard and saw them give their evidence
had misunderstood it or that his reasons for preferring one to the other were clearly
unsound.
In Tengku Jonaris Badlishah v PP [1999] 2 SLR 260. the Court of Appeal held that an
appellate court should not interfere with the trial judge’s decision in accepting one expert
opinion over the other so long as he had weighed the respective theories carefully and
dispassionately and had reached a clear conclusion of fact
In Lim Teck Kong v Dr Abdul Hamid Rashid [2006] 3 MLJ 213, the issue is whether
more weight was given to the evidence of the expert whose investigations were carried out
closer to the time of the incident taking place. The court held the learned judge preferred the
view of Dr Ramli over Dr Toh was because Dr Ramli had carried out the investigation soon
after the collapse when the instability of the ground could still be seen but Dr Toh on the
other hand, carried out his investigation 6 years after the collapse where the ground had
stabilised.
Factors which can influence the court in preferring the opinion of 1 expert over
another:
1. Qualifications and experience
2. Reasoning used by the expert (sound principles)
3. Methodology (accepted scientific)
4. Other factors (time, direct observations etc)
In Dato’ Seri Anwar Ibrahim v PP [2015] 2 CLJ 145, the Federal Court held the trial judge
had erred in accepting the evidence of the medical experts of the appellant as the medical
experts did not do any test but merely interpreted the findings of the experts of the
prosecution. It is also a fact that the medical expert of the appellant had his last proficiency
test seven years prior to the trial whereas the experts of the prosecution had undergone
proficiency test once every 6 months. Thus, the evidence of the medical experts of the
appellant did not raise any reasonable doubt in the prosecution’s case.
Expert can be present when another expert is testifying
In Dr Soo Fook Mun v Foo Fio Na [2001] 2 MLJ 193, it was held that it is a common
occurrence for experts on one side to be present in court during the evidence of the other side.
This is to enable the expert not only to advice counsel during cross-examination but also to
comment on the expert evidence of the other side when he in turn gives evidence. It avoids
surprise and delay. If for any reason, an expert is unable to be present when the other side is
giving evidence, it is perfectly proper for him or her to later study the notes of the evidence to
ascertain the nature of the evidence given
Testimony of expert is of limited value
In Shen Yuan Pai v Dato Wee Hoon Teck [1976] 1 MLJ 16, the court held that the
testimony of an expert is often considered to be of limited value because they are probably
biased in favour of the side which calls them.
Cases on DNA Evidence
DNA Profiling Evidence – S.45 & Relationship with S.90A Evidence Act
Cases which focuses on expert opinion evidence on DNA profiling (S.45) and
S.90A(documents produced by a computer)
The expert on DNA (chemist) will give his opinion based on the interpretation of an DNA
Analysis Report (electrophoreogram), which is a computer generated document
The expert opinion will be whether the DNA profile of the accused matches the DNA profile
which is found at the scene of the crime. The matching of the DNA profile or the lack of it
may have a very high probative value
DNA Evidence in Court
Widely used in Malaysia and is adduced through an expert witness under S.45
Steps to adduce DNA evidence in court:
Generally same steps as with any other expert evidence
Step 1: is special knowledge required
Step 2: does the witness have special knowledge? (Syed Abu Bakar/Junaidi/Wong)
Step 3: Give opinion and reasons for conclusions
DNA evidence has been accepted by Malaysian Courts
In PP v Loo Seng Yip [2004] 8 CLJ 496, the accused and victim were lovers and the victim
was killed where blood stains were found at the crime scene. The prosecution tendered
evidence from a chemist that the DNA profile of the accused matched the DNA profile from
blood stains found near the crime scene. it was held an expert must give reasons for his
conclusions. In the case of DNA evidence, it is the number of matches and their DNA
characteristics that will explain the relationship between the samples analysed. The number
of matches will also facilitate a calculation of the random occurrence ratio. These will
constitute the reasons for the conclusion arrived at by the chemist. However, the
chemist did not explain the nature of the DNA characteristics and the number of
matches that were similar. Neither did he explain on his finding that the probability of a
randomly selected unrelated individuals having such matching DNA profile, based on
the Malaysian Chinese population database, was approximately one in 14 billion. The
chemist had given evidence only of his conclusions without adverting to the reasons. Thus,
the evidence given by the chemist had no evidential value.
In Hanafi Mat Hassan v PP [2006] 3 CLJ 269, the accused was convicted of rape and
murder. The offence was committed in a bus driven by him. The issue on appeal is that the
DNA analysis should not be admitted in evidence as S.90A is not satisfied. Thus, the entire
DNA evidence should be excluded. Another issue is that the DNA expert evidence should not
be admitted as he had not explained the reason for his conclusions. The court held the DNA
profiling result falls under the category of computer generated document and thus it must
comply with the requirements of S.90A where a certificate or oral evidence must be adduced
to prove that the computer was in good working order. There was evidence to show that the
DNA analyser and the thermalcycler are in good working order and this is sufficient to show
that the computers were operating properly throughout the material part of the period during
which the document was produced. This evidence is sufficient to prove the requirements of
S.90A(4) in the absence of a certificate having been tendered. The court admitted the DNA
analysis as evidence. As for the second issue, the court held the DNA expert must explain the
nature of the match and the frequency of such a match in the population at large. Based on
the evidence the expert had satisfied this requirement and S.51 was satisfied. Thus, the expert
opinion evidence is also admissible.
In Ahmad Najib Aris v PP [2009] 2 CLJ 800, the appellant was convicted of rape and
murder. The evidences are blood stains on the accused’s jeans matched the victim’s DNA.
His semen was found in the victim’s vaginal swab and the victim’s blood stains and hair was
found in the car. Another evidence is a CCTV image from the car park. The issue is the
admissibility of documents produced by a computer pursuant to S.90A Evidence Act 1950
which involves both the chemist report and the CCTV tapes. The court held the fact that a
document was produced by a computer in the course of its ordinary use may be proved by the
tendering of certificate under S.90A(2) or by oral evidence. Such oral evidence must consist
not only a statement that the document was produced by a computer in the course of its
ordinary use but also the matters presumed under S.90A(4). On the other hand, the
presumption contained in S.90A(6) can be resorted to only when the document was not
produced by a computer in the course of its ordinary use. In this case, no certificate was
tendered and no oral evidence was adduced to show that the report was produced by a
computer in the course of its ordinary use. However, the chemist report is admissible in
evidence as it can be presumed under S.90A(6) that the report was produced by the computer
in the course of its ordinary use. As for the CCTV tapes, since a CCTV tape is a document
produced by a computer, the CCTV tapes must satisfy the requirements of S.90A before they
can be admitted in evidence. as this had not been done, they are inadmissible.
Document produced by Computer: S.90A
Section 90A(1) Evidence Act 1950 provides In any criminal or civil proceeding a document
produced by a computer, or a statement contained in such document, shall be admissible as
evidence of any fact stated therein if the document was produced by the computer in the
course of its ordinary use, whether or not the person tendering the same is the maker of
such document or statement.
1. In the course of Ordinary use
Certificate
S.90A(2) Evidence Act 1950 states for the purposes of this section it may be proved that a
document was produced by a computer in the course of its ordinary use by tendering to the
court a certificate signed by a person who either before or after the production of the
document by the computer is responsible for the management of the operation of that
computer, or for the conduct of the activities for which that computer was used.
By oral evidence
Oral evidence must include matters in S.90A(4)
S.90A(4) Evidence Act 1950 states where a certificate is given under subsection (2), it shall
be presumed that the computer referred to in the certificate was in good working order and
was operating properly in all respects throughout the material part of the period during which
the document was produced.
In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, the court held there are two
ways to prove that the document is produced by the computer in the course of its ordinary
use which are firstly, by tendering a certificate signed by the person in charge of the
computer which produced the document under S.90A(2) or secondly, oral evidence by the
person in charge of the management and operation of the computer used to produce the
document
In Hanafi bin Mat Hassan v PP [2006] 3 CLJ 269, the court further held oral evidence can
substitute the use of certificate so long the matters presumed under S.90A(4) are proven by
oral evidence
In Ahmad Najib Aris v PP [2009] 2 CLJ 800, the court held the fact that a document was
produced by a computer in the course of its ordinary use may be proved by the tendering of
certificate under S.90A(2) or by oral evidence. Such oral evidence must consist not only a
statement that the document was produced by a computer in the course of its ordinary use but
also the matters presumed under S.90A(4).
2. Not in Ordinary Use
S.90A(6) Evidence Act 1950 states a document produced by a computer, or a statement
contained in such document, shall be admissible in evidence whether or not it was produced
by the computer after the commencement of the criminal or civil proceeding or after the
commencement of any investigation or inquiry in relation to the criminal or civil proceeding
or such investigation or inquiry, and any document so produced by a computer shall be
deemed to be produced by the computer in the course of its ordinary use.
Conditions in S.90A(4) must be satisfied
By oral evidence or by certificate
In Hanafi Mat Hassan v PP [2006] 3 CLJ 269, the accused was convicted of rape and
murder. The offence was committed in a bus driven by him. The issue on appeal is that the
bus ticket should not be admitted in evidence because S.90A is not satisfied. The court held
the ticket machines installed on the buses were computers and the ticket was produced by one
of those ticket machines. The court held the fact that a document was produced by a
computer in the course of its ordinary use may be proved by the tendering of certificate under
S.90A(2) or by oral evidence. Such oral evidence must consist not only a statement that the
document was produced by a computer in the course of its ordinary use but also the matters
presumed under S.90A(4). If it is not a computer in the course of its ordinary use, the
deeming provision in S.90A(6) will operate to admit provided the elements of S.90A(4) are
satisfied. The effect of S.90A(6) is that, once its deeming part becomes applicable to a
document which was not produced by a computer in the ordinary course of its use, the
condition precedent in S.90A(1) would have been satisfied in order to render it admissible.
However, the requirements of S.90A(4) must still be established. This can be done by
tendering in evidence the certificate under S.90A(2) or by way of oral evidence.
In Ahmad Najib Aris v PP [2009] 2 CLJ 800, the appellant was convicted of rape and
murder. The evidences are blood stains on the accused’s jeans matched the victim’s DNA.
His semen was found in the victim’s vaginal swab and the victim’s blood stains and hair was
found in the car. Another evidence is a CCTV image from the car park. The issue is the
admissibility of documents produced by a computer pursuant to S.90A Evidence Act 1950
which involves both the chemist report and the CCTV tapes. The court held the fact that a
document was produced by a computer in the course of its ordinary use may be proved by the
tendering of certificate under S.90A(2) or by oral evidence. Such oral evidence must consist
not only a statement that the document was produced by a computer in the course of its
ordinary use but also the matters presumed under S.90A(4). On the other hand, the
presumption contained in S.90A(6) can be resorted to only when the document was not
produced by a computer in the course of its ordinary use. In this case, no certificate was
tendered and no oral evidence was adduced to show that the report was produced by a
computer in the course of its ordinary use. However, the chemist report is admissible in
evidence as it can be presumed under S.90A(6) that the report was produced by the computer
in the course of its ordinary use. As for the CCTV tapes, since a CCTV tape is a document
produced by a computer, the CCTV tapes must satisfy the requirements of S.90A before they
can be admitted in evidence. as this had not been done, they are inadmissible.
The CCTV Tapes
CCTV tapes are documents produced by a computer within S.3 Evidence Act 1950
(documents and computer)
S.3 Evidence Act 1950 defines document as any as any matter expressed, described on any
material, thing including any matter in a device by (a) letters, figures, symbols or other
forms of expression or description or (b) any visual recording
S.3 Evidence Act 1950 defines computer as an electronic or data processing device
performing logical, arithmetic, storage and display functions
It follows that the CCTV tapes must satisfy the requirements of S.90A Evidence Act 1950
before they can be admitted in evidence. As this had not been done they are inadmissible.
In Mohd Khayry Ismail v PP [2014] 1 LNS 412, the court held even though the CCTV
recording did not satisfy the requirements under S.90A, the CCTV recording can still be
admitted under res gestae in S.6 EA1950, as truth of its contents even though they may be
hearsay or self-serving statement
Examples of documents which must satisfy S.90A
a. DNA analysis
In Hanafi Mat Hassan v PP [2006] 3 CLJ 269, the accused was convicted of rape and
murder. The offence was committed in a bus driven by him. The issue on appeal is that the
DNA analysis should not be admitted in evidence as S.90A is not satisfied. Thus, the entire
DNA evidence should be excluded. Another issue is that the DNA expert evidence should not
be admitted as he had not explained the reason for his conclusions. The court held the DNA
profiling result falls under the category of computer generated document and thus it must
comply with the requirements of S.90A where a certificate or oral evidence must be adduced
to prove that the computer was in good working order. There was evidence to show that the
DNA analyser and the thermalcycler are in good working order and this is sufficient to show
that the computers were operating properly throughout the material part of the period during
which the document was produced. This evidence is sufficient to prove the requirements of
S.90A(4) in the absence of a certificate having been tendered. The court admitted the DNA
analysis as evidence. As for the second issue, the court held the DNA expert must explain the
nature of the match and the frequency of such a match in the population at large. Based on
the evidence the expert had satisfied this requirement and S.51 was satisfied. Thus, the expert
opinion evidence is also admissible.
In Ahmad Najib Aris v PP [2009] 2 CLJ 800, the appellant was convicted of rape and
murder. The evidence is blood stains on the accused’s jeans matched the victim’s DNA. His
semen was found in the victim’s vaginal swab and the victim’s blood stains and hair was
found in the car. The issue is the admissibility of documents produced by a computer
pursuant to S.90A Evidence Act 1950 which involves the chemist report. The court held the
fact that a document was produced by a computer in the course of its ordinary use may be
proved by the tendering of certificate under S.90A(2) or by oral evidence. Such oral evidence
must consist not only a statement that the document was produced by a computer in the
course of its ordinary use but also the matters presumed under S.90A(4). On the other hand,
the presumption contained in S.90A(6) can be resorted to only when the document was not
produced by a computer in the course of its ordinary use. In this case, no certificate was
tendered and no oral evidence was adduced to show that the report was produced by a
computer in the course of its ordinary use. However, the chemist report is admissible in
evidence as it can be presumed under S.90A(6) that the report was produced by the computer
in the course of its ordinary use.
b. CCTV images
In Ahmad Najib Aris v PP [2009] 2 CLJ 800, the appellant was convicted of rape and
murder. One of the evidences is a CCTV image from the car park. The issue is the
admissibility of documents produced by a computer pursuant to S.90A Evidence Act 1950
which involves the CCTV tapes. The court held the fact that a document was produced by a
computer in the course of its ordinary use may be proved by the tendering of certificate under
S.90A(2) or by oral evidence. Such oral evidence must consist not only a statement that the
document was produced by a computer in the course of its ordinary use but also the matters
presumed under S.90A(4). Since a CCTV tape is a document produced by a computer, the
CCTV tapes must satisfy the requirements of S.90A before they can be admitted in evidence.
as this had not been done, they are inadmissible.
c. Automatic tickets
In Hanafi Mat Hassan v PP [2006] 3 CLJ 269, the accused was convicted of rape and
murder. The offence was committed in a bus driven by him. The issue on appeal is that the
bus ticket should not be admitted in evidence because S.90A is not satisfied. The court held
the ticket machines installed on the buses were computers and the ticket was produced by one
of those ticket machines. The court held the fact that a document was produced by a
computer in the course of its ordinary use may be proved by the tendering of certificate under
S.90A(2) or by oral evidence. Such oral evidence must consist not only a statement that the
document was produced by a computer in the course of its ordinary use but also the matters
presumed under S.90A(4). If it is not a computer in the course of its ordinary use, the
deeming provision in S.90A(6) will operate to admit provided the elements of S.90A(4) are
satisfied. The effect of S.90A(6) is that, once its deeming part becomes applicable to a
document which was not produced by a computer in the ordinary course of its use, the
condition precedent in S.90A(1) would have been satisfied in order to render it admissible.
However, the requirements of S.90A(4) must still be established. This can be done by
tendering in evidence the certificate under S.90A(2) or by way of oral evidence.
d. Evidence of call logs/SMS provided by telco
In PP v Azilah Hadri & Anor [2015] CLJ 579 held since the call logs were produced by
computers in the course of their ordinary use by the very makers, thus dispensing with the
requirements of tendering to the court signed certificates that they were responsible for the
management of the operation of the computers, or for the conduct of the activities for which
those computers were used for. The need to adduce the certificates as required by s. 90A(2)
of the Evidence Act 1950 had thus become redundant.
e. Email print outs
In Petroliam Nasional (Petronas) v Khoo Nee Kiong [2003] 4 CLJ 303, the court held
there is no necessity for the plaintiffs to exhibit a s. 90A certificate in the affidavit-in-support
of the plaintiffs' application in respect of the computer printouts containing the impugned
email and statements. The reason is because the plaintiffs need only tender the s.
90Acertificate if the plaintiffs do not wish to call the officer who has personal knowledge as
to the production of the computer printouts by the computer to testify to that effect in the trial
proper
f. WhatsApp
In Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] 1 LNS 448, the court held a print out of an
email and whatsapp message is a document produced by a computer under Section 3
Evidence Act. To tender it as evidence the party adducing such a document must fulfil one of
these 3 alternative conditions, 1st there is oral evidence that the Disputed Print-out is
produced by the computer in the course of the ordinary use of the computer, 2 nd there is a
certificate given under s 90A(2) EA by a person responsible for (1) the management of the
operation of the computer; or (2) the conduct of the activities for which the computer is used
that the Disputed Print-out is produced by the computer in the course of the ordinary use of
the computer. 3rd if the Disputed Print-out is not produced by a computer in the course of its
ordinary use, S.90A(6) EA deems such a document "to be produced by the computer in the
course of its ordinary use " if a party adducing the Disputed Print-out can prove the following
2 cumulative conditions (i) the computer in question was in good working order; and (ii) the
computer was operating properly in all respects throughout the material part of the period
during which the document was produced.
S.90C Evidence Act 1950 provides S.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, 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
How to challenge DNA evidence: Loo Seng Yip, Hanafi, Ahmad Najib Aris, Dato’ Seri
Anwar Ibrahim
1. Degradation of DNA samples. Argument that because of the degradation, the DNA
profiling was rendered unreliable
2. There was break in the chain of custody of the evidence and exhibits. Possibility of
contamination
3. Conflicting expert evidence
4. S.90A
5. S.45, S.46, S.51
In Dato’ Seri Anwar Ibrahim v PP [2015] 2 CLJ 145, the issue in this appeal is the swab
samples as analysed by PW5 had suffered from serious degradation which impaired the
analyses undertaken and the results. Another issue is there was a break in the chain of
custody of the exhibits. For the first issue, the Federal Court held while the biological
samples might have undergone a slight degradation, the was not so substantial as to destroy
the DNA entirely or affect the reading of the samples. The DNA profiles obtained from the
first prosecution witness’s rectum and rectal region by the chemist were clear and
unambiguous. The degradation, in other words, had no effect on the DNA profiles obtained
from those samples. Thus it is incorrect and misleading to presume that because of the
degradation, the DNA profiling became unreliable. As for the second issue, the Federal Court
held that there was no break in the chain of custody of the evidence and exhibits as the
investigating officer was extremely careful in handling the exhibits and the investigating
officer had also confirmed that she did not detect any tampering of the seals of the exhibits.
Thus, the Federal Court upheld the decision of the Court of Appeal in concluding that the
integrity of the samples was not compromised.