By: azrinhafiz/LW222/November 2014 For Revision Purposes Only

OPINION EVIDENCE
Topic Outlines

1. Introduction: What is Evidence of Opinion (‘EO’)?

2. Fact v Opinion
3. When the need for EO arises?
4. Role of Counsel
5. General Rule
6. What are the exceptions?
6.1. Section 45
6.1.1. Qualifications of an Expert
6.1.2. Opinion of Non-Expert, when Admissible
6.2. Section 47
6.3. Section 48
6.4. Section 49
6.5. Section 50
7. Remarks on the exceptions
8. Conflict of Opinion

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By: azrinhafiz/LW222/November 2014 For Revision Purposes Only

Subject Explanations
- EO is an opinion by re-enactment of the crime conduct to form a
Introduction: part of fact.
What is EO? - It is to form the fact (what it is) and not opinion (it is a matter of
thinking).
- EO is also known as Expert Evidence (‘EE’).
Fact Opinion
Section 3 of EA 1950 fact means - Opinion is something which
and includes: someone believes to be true
(a) any thing, state of things, or but not definitely true
Fact v Opinion relation of things capable of - It is a witness perception
being perceived by the from the inferences that he
senses. had drawn from a fact
(b) Any mental condition of - E.g – suggestion / inference
which any person is
conscious
EE is admissible to furnish the EE on medical is admissible to
Court with scientific info which determine the competency of a
When the need for likely to be outside the experience witness to testify – Kee Lik Tian v
EO arises? and knowledge of a judge - Syed PP [1984] 1 MLJ 306
Abu Bakar bin Ahmad v PP
[1984] 2 MLJ 19

If the witness is making statement:

- In my opinion…
- I think…
- Possible… The counsel MAY OBJECT these
Role of Counsel
- Might… as they are OPINION!
- Most likely…
- In my mind… Thus, the Counsel must be vigilant
during the examination of witness
- EO is inadmissible
- Rationale :
the fact which was inferred by the opinion is left with the
General Rule Court to decide after the Court heard all evidences.

See: Wong Swee Chin v PP [1981] 1 MLJ 121 at page 213 (Botak
Chin’s case)

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By: azrinhafiz/LW222/November 2014 For Revision Purposes Only

Section
45

Section Section
50 47
Exceptions
to
#GR

Exceptions
Section Section
49 48

In Syed Abu Bakar bin Ahmad v PP [1984] 1 CLJ 368, the Court in the
opinion that the cases in which…Court is not in a position to form a correct
judgment…in such cases the help of experts is required.

However, in Ong Chan Tow v R [1963] 1 MLJ 60, the Court said that the
experts cannot give evidence on matters which the Court can decide by
itself otherwise they would tend to usurp the functions of the Court.
1. Matter of EO is required
i. Foreign law;
ii. Science;
iii. Art;
iv. Identity / Genuineness of
a. handwriting; or
b. finger impressions

2. When the Court needs to form the opinion on matters which are not
within its common knowledge, the Court can call EE.

Foreign Law:
Section 45 It is not limited to law of foreign country but also the law which aliens to
law practiced within the country.

Sivagami Achi v PRM Ramanathan Chettiar [1959] 1 MLJ

Case
221
It is difficult to decide without EO on Hindu law as to rules of
Principle
intestate succession under the Mitakshara system

Case Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262
The headman and registrar of Foochow marriages were
Fact allowed to give evidence on Foochow customary law relating
to marriage.

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By: azrinhafiz/LW222/November 2014 For Revision Purposes Only

Section 38 of EA provides that statements as to any law of any foreign

country contained in law books, printed or published under the authority of
the Government of that foreign country, are relevant.

Science or Art (S/A):

All subjects on which a special course of special studies or experience is
necessary for the formation of an opinion.

In Chandarasekaran v PP [1971] 1 MLJ 153, the Court held that the

expression of S/A to be elastic enough to be given a liberal/wide
interpretation… and opinion of the typewriting expert was held admissible.

The Court has a discretion to decide whether an issue is one of science or

art, and consequently whether EE is admissible (see Leong Wing Kong v
PP [1994] 2 SLR 54).

In R v Turner [1975] 1 All ER 70, the Court has made the following
decisions:
i. That the Court does not need psychiatrists to tell how the
ordinary man who is not suffering any mental illness are likely
to react to the stresses and strains of life; and
ii. That the experts can only give evidence of recognised scientific
illness – for example insanity, diminished responsibility, insane
or non insane automatism, schizophrenia and cannot give OE
where no abnormality of mind was being claimed.

List of cases where the EO is required on point of S/A:

Cases Areas of S/A
Gumbley v Blood tests, breath tests, blood-alcohol
Cunningham levels and back calculations
Jasiewicz v Jasiewicz On a point of foreign law
R v Anderson On the issue of obscenity
Facial identification by video
R v Clarke
superimposition
R v Gordon / PP v
Hanif Basree Abdul DNA or genetic fingerprint of and
Rahman / Canny individual
Ong’s case
R v Harden Handwriting expert
Road accident investigation, ballistics and
R v Hobson
battered women’s syndrome
Fingerprint identification and voice
R v Robb
identification
Psychiatric evidence on the defence of
R v Smith
automatism
R v Stockwell Facial mapping

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By: azrinhafiz/LW222/November 2014 For Revision Purposes Only

R v Strudwick A person’s mental state

To establish that an accused is suffering
R v Toner from a minor hypoglycemic state caused
by eating after a 41-day fast
Dating documents by using an Electrostatic
R v Wellington
Detection Apparatus (ESDA)

Opinion of Identity and Genuineness of Handwritng:

Case Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 19, FC

One Sgt Paou testified that he signed only on a blank form and
did not write the words ‘tiga ratus sahaja’. Meanwhile, the
defence contended that Sgt Paou wrote those words and
Facts signed.

The trial judge made decision in the absence and without the
aid of expert evidence
It would be erroneous for a judge who sits alone to form
Held conclusion on a matter which would be properly concluded
with the aid of expert evidence.

Case PP v Toh Kee Huat [1965] 1 MLJ 76

Identity of the accused person was determined by the evidence
Facts of fingerprints on the inner surface of glass pane of the stolen
car made by the evidence of EO.
The resemblance of the fingerprints discovered on the glass
Held with the fingerprints of accused are self-evident to support a
conviction

Case PP v Mohamed Kassim bin Yatim [1977] 1 MLJ 64

It is settled in law that evidence by a handwriting expert can
Held
never be conclusive because it is only opinion evidence

United Asian Bank Bhd v Tai Soon Heng Construction

Case
Sdn Bhd [1993] 1 MLJ 182
The evidence of an expert on handwriting must be supported
Principle
by cogent reasons.
He must be at least qualified to be testified under Section 118 of EA.

An expert witness = who by virtue of his

Qualifications of education/training/skills/experience is believed to have knowledge in a
an Expert particular subject-matter beyond the average person and the others rely on
(Peritus) him.

The test of peritus can be seen in the following cases:

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Case PP v Muhamed bin Sulaiman [1982] 2 MLJ 320

It is enough if he has had sufficient experience, sufficient
Principle practical experience, to acquire the necessary skill, so that he
has adequate knowledge.

Case Dato’ Mokhtar bin Hashim v PP [1983] 2 MLJ 232

The witness must have:
Principle - made a special study of the subject; or
- acquired special experience on the subject.

Sun Ho SB v Alliance Bank Malaysia Bhd [2008] 6 MLJ

Case
457
Counsel for the defendants challenged the competency of
PW1 as an expert witness as he had no formal forensic
document examination qualification and what expertise he
had was through an attachment stint with the Los Angeles
Fact
Police Department which did not cover the identification of
handwriting in Chinese Characters. PW1 was at various times
attached to certain departments which had nothing to do with
documents examination.
The fact that PW1 at the relevant time was a gazetted
document examiner (P1) and the expert's report was prepared
during his tenure as the Head of the Documents Section of
Jabatan Kimia where he was stationed from 1990 to 1994, and
Held then from 1999 till 2004 as head of that section. PW1 also had
given evidence in court in respect of signatures/handwriting
disputes of which five to six times involved Chinese
handwritings. He had also testified that there is no difference
in principles in examining different scripts.

In case of semi-professional/semi-skilled:

Case Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262
The psychiatric nurse attached to the Mental Health Unit in
Sibu gave evidence for the petitioner is qualified to be an
Held
expert within the meaning of section 45 of the Evidence
Ordinance
Opinion of Person Acquaintance with Another Handwriting:

A non-expert Explanation to the S. 47: Who is acquaintance witness?

opinion is also i) he has seen that person write;
admissible. ii) he has received documents purporting to be written by that
person; or
Section 47 iii) he has received documents to answer that documents under his
authority

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Case PP v Mohamad Kassim bin Yatim [1977] 1 MLJ 64

Chief Clerk and Assistant Information Officer were familiar
Fact
with the handwriting of the accused.
It is settled law that evidence by a handwriting expert can
Held
never be conclusive because it is only opinion evidence.
Opinion as to existence of right or custom:

Case R v Lim Chin Shang [1957] 1 MLJ 125

The detective identified a tattoo mark on an accused person’s
Fact body to prove that the latter was a member of secret society,
Section 48 as the former was the head of that secret society.

Case PP v Lee Ee Teong [1953] 1 MLJ 244

The evidence of a detective or other person, who, by reason of
Held experience has special knowledge of methods of gambling, is
admissible.
Opinion as to usages, tenets, etc:

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 orcharitable
Section 49 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.
Opinion on relationship:

When the court has to form an opinion as to the relationship of one person
to another, the opinion expressed by conduct as to the existence of such
relationship of any person who as a member of the family or otherwise has
special means of knowledge on the subject is a relevant fact.

Illustrations to the Section 50:

Section 50
(a) The question is whether A and B were married.
The fact that they were usually received and treated by their
friends as husband and wife is relevant.

(b) The question is whether A was a legitimate son of B.

The fact that A was always treated as such by members of
the family is relevant
 EO is not conclusive
Remarks on the
 Court not bound to accept opinion in all cases
exceptions
 EO is a matter to be decided by the Court

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It is discretion of the judge, which is the most reliable opinion, by:

a) Qualification of the expert(see Dato’ Mokhtar Hashim v PP
[1983] 2 MLJ 232);

b) Evaluation by examining scientific ground and bases on which

experts rely (see Singapore Finance Ltd v Lim Kah Ngam [1984]
Conflicts of
2 MLJ 202);
Opinions
c) Allowing one witness to explain to Court why his opinion is
differing from others (see Pavone v PP [1986] 1 MLJ 423; or

d) Not considering the partiality of the expert witness (see Syarikat

Perkapalan Timor v UMBC [1982] 2 MLJ 202).

References:

1. Evidence Act 1950 (Act 56).

2. S. Augustine Paul, Evidence: Practice and Procedure (4th Edition), 2010, Lexis Nexis:
Petaling Jaya, Selangor.
3. LAW 591 – Law of Evidence II’s lecture outlines by Encik Mohd Yunus bin Abu Samah,
Senior Lecturer, Faculty of Law, Universiti Teknologi MARA, Malaysia.

P/s: Thanks so much for your attention!

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