06 Facts Need Not to be Proved
• In general all facts in issue or relevant facts must be
proved by evidence.
• Section 5 of the Evidence Act 1950 clearly states:
“Evidence may be given in any suit or proceeding
of the existence or non-existence of every fact in
issue and of such other facts as are hereinafter
declared to be relevant and of no others”
• Sections 6 to 55 declare facts that are relevant. The
court cannot act on material which the opponent had
not the opportunity of rebutting or qualifying, whether
or not that material is obtained privately.
• See:
- Reynolds v. Llanelly Associated Tinplates Co. Ltd.
[1948] 1 All ER 140.
- Cavenett v. Chambers [1968] SASR 97. To do so
will be an erosion of the rules of natural justice.
- Almost half a century ago, in Low Moh & Anor v. PP
[1954] MLJ 14, 18.4 Bellamy J succinctly stated
that it was an elementary proposition of law, too
frequently overlooked with resulting confusion and
possible injustice, that "cases must be decided on
the evidence and that the evidence must be such
as is relevant and admissible under the Evidence
Ordinance, that is, it must be either from
admitted documents or statement of witnesses
or be something of which the court can take
judicial notice".
• In 1986 in Pembangunan Maha Murni Sdn. Bhd. v.
Jururus Ladang Sdn. Bhd. [1986] 2 MLJ 30
expressing a similar sentiment said that "the general
rule is that all facts in issue and relevant facts must be
proved by evidence". "There are" be noted, "however,
two classes of facts which need not be proved, viz:
(a) facts judicially noticed (ss. 56 & 57); and
(b) facts admitted (s. 58).
LAW 4110 Law of Evidence 1
Exception To General Rule That Every Facts Need To
Be Proved
1. Formal Admission ( Section 58)
2. Judicial Notice ( Section 56 and Section 57)
3. Presumption ( Section 3, Section 112 & Section 113)
Formal Admission
Section 58 of EA :
- Parties thereto/their agents agree to admit at the
hearing
- Before the hearing the agree to admit by any writing
- Rule of pleading
Order 18 rule 13 ROC 2012 :
- A party is bound by his admission/his agent
Goh Mui Teck v See Eng Kiat [1967] 2 MLJ 53
• H: The fact that there was an agreement whereby the
appellant through his former solicitor agreed to accept
the amount stated and gave judgment accordingly
Superintendent of Land & Surveys Department
Bintulu Division v Agi Ak Bungkong [2012] 1 MLJ 335
- It is a trite law that parties are bound by their own
pleading (Kanagasabai Satkuru v UMBC Bhd; State
Gov of Perak v Muniandy)
- Pleading is not evidence.
- O 18 r 7 ROC states that facts and only facts that must
be pleaded but not the evidence by which these facts
are to be proved.
- Thus what is alleged and not admitted need to be
proved.
R Ramachandran v The Industrial court of Malaysia
[1997] 1 MLJ 145
- Eusoff Chin CJ : “it is trite law that a party is bound by
its pleading”
PP v Sharma Kumari [2000] 6 MJ 254
- In the previous civil claim, the accused in her affidavit
referred her name as Sharma Kumari Sukla
- Held: if the prosecution proves that the accused is also
known by the name of Sharma Kumari Sukla, then the
avernment in para 2 of exhibits P8 & P9 by the accused
would be false.
1
Judicial Notice
- Judicial notice means that it is taken as true without
the offering of evidence by the party who should
ordinarily have done so.
- Based on two maxims :
i) Lex non requirit verificare quod appparet
curiae (the law does not require a proof of that
which is apparent to the court)
ii) Quad constat curiae opera testium non indigent
(that which is established to the knowledge of the
court does not require the aid of witness)
- Main purpose of Judicial Notice :
i) To save time because the facts is well known
ii) To save cost to prove the facts
iii) It will insult the common sense
- Effect of Judicial Notice :
Bank Bumiputra (M) Bhd v Mohd Ibrahim bin
Salleh [2000] 5 MLJ 778,
- Abdul Malik Ishak J states that :
When a court takes Judicial Notice of a fact it
simply means that the court declares that it will find
that the fact exists.
Commonwealth Shipping Representative Co.
[1923] AC 191
- The court held Judicial Notice refers to facts which
a judge can be called upon to receive act to act upon
either from his general knowledge of them, or from
inquiries to be made by himself for his own
information from sources to which it is proper for
him to refer.
• Section 56 of Evidence Act states that facts which
courts take Judicial Notice need not be proved.
• Section 57 of Evidence Act :
• Enumerates 14 matters of which the court takes
Judicial Notice need not be proved
• Common law leading case:
Holland v Jones [1917] 23 CLR 149
Isaac J said :
“that the basic essential to note is that the fact
judicially notice should be of a certain class that is
generally known so as to give rise to the presumption
that all persons are aware of it”
06 Facts Need Not to be Proved
Test for Judicial Notice (Section 57 is not exhaustive)
 Lee Chow Meng v PP [1976] 1 MLJ 287 ;
Held: “the matter of which a court will take Judicial
Notice must be subject of common and general
knowledge. The test is whether sufficient notoriety
attaches to the fact involved as to make it proper to
assume its existence without proof.
 In Johnson Tan v PP (Federal Court) 1977 2 MLJ 66;
Raja Azlan Shah: “Judicial Notice is the cognizance
by the court itself on certain matters are so
notorious/clearly established that evidence of their
existence is deemed unnecessary.”
 Pembangunan Maha Murni v Jurusan Ladang Sdn
Bhd (1986) 2 MLJ 30
• the respondent/plaintiff claimed the sum of
$960,000 from the appellant/defendant as the
brokerage fee or commission of 3% of the total
purchase price of real property known as Block 8
Keratong in the State of Pahang (Block 8) which the
appellant purchased from the registered owner as a
result of the alleged professional services of the
respondent as broker.
• The trial Judge gave judgment for the respondent
not for the full amount claimed but for the sum of
$460,000 calculated at 2% of the total purchase
price. The appellant being dissatisfied with the said
decision, has now appealed. There is also a cross-
appeal by the respondent for the inclusion of the
award of interest at 8% per annum with effect from
March 19, 1981 till the date of judgment which the
learned Judge has omitted to award.
• Issue : whether judicial notice should be taken by
the Court that there exists in this country a custom
that a real estate agent is entitled to a commission of
the purchase price, become rather academic
However, in view of the ground that follows, i.e.
whether it is customary that such commission was
payable at 2% of the purchase price,.
• Supreme court Syed Agil Barakbah – “The matter
which the court will take JN must be the subject of
common and general knowledge and its existence or
operation is accepted by the public without
qualification”.
LAW 4110 Law of Evidence 1
• The test is the fact involved must be so sufficiently
notorious that its become proper to assure its
existence without proof.
• The judge is in the opinion that they do not think
that it has been repeatedly recognised by the courts
in this country, superior or otherwise that there
exists a custom that a real estate agent is entitled to
a commission of the purchase price and that the
commission is at 2% thereof. There may, however,
be a common practice that estate agents are paid
commissions either by the vendor or by the
purchaser or sometimes by both. That is a rule
which yields to circumstances and depends on
negotiations between the parties
• the learned Judge allowed the brokerage of 2% to be
paid to the respondent instead of 3%
a) General rule from the above case is all facts must
be proved by evidence. There are however 2 types of
classes fact that need not to be prove :
i) Facts judicially notice
ii) Facts admitted
b) Section 57 is not exhaustive. The other party may
object and bring evidence to dispute it. The court
may also ask the proof.
c) As long as it can be proved – it will fulfil the test of
JN
Without
inquiry
Forms
of
judicial
notice
After By
inquiry statute
2
1. Without inquiry:
• Nye v. Niblett [1918] 1 KB 23
“These are facts so generally known or so
notorious as not to be capable of reasonable
dispute. So far as matters of common knowledge
are concerned, it is saying there is no need of
formally offering evidence of those things, because
practically everyone knows them in advance and
there can be no question of them. Some example of
these types of facts is that “cats are kept for
domestic purposes”.
• Ram Terak Selgram [1944] AC 153
“Judicial notice has also been taken of world-wide
economic depression.”
So Notorious
- So far as matters of common knowledge are
concerned, it is saying there is no need of formally
offering evidence of those things, because practically
everyone knows them in advance and there can be
no question of them.
• Morris v KLM Royal Dutch Airlines [2001] 3 All
ER 126
- Judges do not travel exclusively in first-class seats
and can take judicial notice of the fact that those
who travel economy have to accept relatively
cramped conditions which bring them into close
proximity with their neighbours.
• In 1915 in Ngai Shin v. Low Chee Neo [1915] 14
SSLR 35: Polygamy amongst the Chinese.
• In Rahmah v. Laton [1926] 6 FMSLR 128: Muslim
law as the law of the land.
“The Muhammadian law is the law of the land as
such it is not a foreign law to be proved by expert
evidence but is law of which the court must take
judicial notice and it is for the court to declare what
the law is”
• In Lee Lip Ngee v. Crown Council [1947] MLJ 68:
Navigation of a port
06 Facts Need Not to be Proved
• In Lim Kong v. PP [1962] MLJ 195: General
information of his own eyes and take judicial
notice of the physical features of an area well-known
to him for general purpose.
• In Yong Pak Yong v. PP [1959] MLJ: What is
notorious of what everybody knows.
• In PP v. Choo Teck Heng [1960] MLJ:
Mountbatten Road in Singapore is a major road.
• In Ng Yik Seng & Anor.v. Perwira Habib Bank
Malaysia Bhd [1980] 2 MLJ 83: Properties in or
around Kuala Lumpur have appreciated greatly
in value.
• In Phang Ah Chee v. Chong Kwee Sang [1985] 1
MLJ 153: Chinese funeral expenses.
• In Public Prosecutor v. Yap Sin Peng [1986] 2 CLJ
222: Offence of acting as a bookmaker under
section 6(3) (a) of the Betting Ordinance, 1953 is
a serious crime
• In Kong Nen Siew v. Lim Siew Hong [1971] 1 MLJ
262: the learned judge took judicial notice "of the
fact that Dato' Ting had appeared in this court in the
past as an expert on Foo Chow customary law
relating to marriage and divorce and his evidence
had been accepted without question".
• In Balakrishnan s/o Kunjamboo Nair v. Savastine
Antony s/o Francis, [1991] 1 CLJ 503: Abdul
Malik Ahmad J (as he then was) took judicial
notice of the fact that the average earnings of
marble grinding contract workers was in the region
of about RM700 per month.
• In Jai bin Adam @ Zainuddin bin Adam[1995]
MLJU 550: judicial notice was taken that there was
and is only one sessions court judge in the Miri
registry who was and is also required to go on
circuit to Bintulu and Limbang on almost monthly
basis.
LAW 4110 Law of Evidence 1
• In Re Gun Soon Thin [1997] 2 CLJ Supp 53 in
deciding whether to draw a presumption of death of
Gan Teck Heow who had been held captive by the
Japanese during the Japanese Occupation in 1942,
under s. 108 of the Evidence Act 1950, Justice
Abdul Malik Ishak said: Occupation had taken a
death toll on a higher scale.
• In PP v. Zulkifli bin Omar [1998] 1 CLJ 1079
where clearly here the court took judicial notice of
the bad behaviour of Malaysian motorists, when
considering sentencing the guilty ones.
2. After inquiry:
• Here the court can take account of facts after
investigation even though such facts are not
generally known as long as they can be readily
ascertained from readily available authoritative
sources. This form of taking judicial notice can be
exemplified in diverse ways.
(i) The court will take judicial notice of certain
political facts such as:
Duff Development Co. v. Government of
Kelantan [1924] AC 797 - the recognition of
the sovereignty of a foreign state.
- The court relied on the government’s official
information on the status of foreign estate.
- The court will take JN of certain political facts
such as the recognition of the sovereignty of a
foreign state.
- the state of Kelantan was recognized as a
sovereign independent state and its Sultan the
sovereign Ruler thereof, and as such, the
English courts had no jurisdiction to enforce
any arbitration award unless the Kelantan
Government had submitted to the jurisdiction
of the court.
• Mighell v Sultan of Johore
- Fact are not so notorious.
- Mighell sued Sultan of Johore for breach of
promise to marry.
- Counsel submitted that Sultan cannot be sued
as this is Judicial Notice.
3
- Court takes Judicial Notice due to confirmation
made by Secretary.
- the Sultan was recognized as an independent foreign
sovereign of the state of Johor
• Carl Zeiss Stiftung v. Rayner & Keeler (No. 2)
[1967] 1 AC 853 - the membership of a particular
diplomatic mission.
• Engelke v. Musmann [1928] AC 433 - the extent of
territorial waters.
• The Fagerness [1927] p. 311, CA - of the state of
war.
• R v. Bottril [1946] 2 All ER 434 - In case of
uncertainty the court will act on the certificate of the
appropriate Minister of State.
(ii) The court may refer to authoritative works of
learning, such as histories treatises, almanacs,
and other readily available facts, to answer
questions as to historical facts and past rituals, eg,
in Read v. Bishop of Lincoln [1892] AC 644 the
court investigated whether the practice of mixing
communion wine with water was contrary to
church law.
(iii) Judicial notice may be taken of general
customs which have been proved with some
frequency.
(iv) Judicial notice was also taken of the practice of
professions, eg, of conveyancer or surveyors
(v) Judicial notice is often taken of the nature,
functions and workings of scientific and
technical instruments like clocks,
speedometers, radar speed meters
thermometers, scales and electronic weapon
detectors. Nevertheless evidence may be given to
show that the particular device in question was
defective (not working).
06 Facts Need Not to be Proved
• In American case of State v. Graham 322 SW 2d
188 (1959) radar trap; United States v. Lopez
328 F supp. 1077 (1917) flux-gate
magnetometer to detect aircraft hijackers.
Readily material
• Section 57(2) – the court may resort to appropriate
book/documents of reference
• Can a judge, besides resorting to reference
works inform himself by hearing evidences on
matters which he is invited to notice judicially?
• This process of judicial notice can appear close to a
usurpation of the function of the judge.
• In McQuaker v. Goddard [1940] 1 KB 687
- the trial judge consulted books and experts on
whether camels were wild by nature and held that
they were domestic creatures. There was some
dispute over that conclusion but the court of
Appeal held that judicial notice could be taken of
the matter. In his consultations the judge was
taking evidence in the ordinary sense but
conducting an inquiry prior to taking judicial
notice of a fact.
- The judge takes judicial notice of the ordinary
course of nature and in this particular case of
ordinary case of nature in regards to the position
of camels among other animals.
3. Provided by Statute (Section 57)
• In PP v. Mohamed Ali, [1962] MLJ 259
- it was held that the magistrate was bound to take
judicial notice under s. 57(1)(a) of the Evidence
Ordinance of Legal Notifications which are
regulations having the force of law.
• In Johnstan Tan & Ors. v. PP [1977] 2 MLJ 66 the
Federal Court held that once a proclamation under
a Parent Act or Ordinance is made and an area under
it is proclaimed to be a security area ss. 56 and 57
of the Evidence Act become applicable.
• PP v. Rajamah, [1980] 2 MLJ 80 - the Federal Court
held that it was bound to take judicial notice of a
notification of a Government gazette; obviously this
was by virtue of s. 57, though it did not mention it.
LAW 4110 Law of Evidence 1
• In Sivagami Achi v. PMR Ramanathan Chettiar,
[1959] MLJ 221
- Wife claimed that she is the sole beneficiary under
Mitakshara system of Hindu Law.
- Court held that Hindu law is not a local law.
- It is a foreign law thus the Court is not entitled to
take judicial notice of Hindu law and in the
absence of expert evidence.
• In PP v. Saad bin Mat Takraw [1998] 3 CLJ 380.
70
- It was held that JN cannot be taken to prove an
ingredient in a charge in a criminal trial.
- Vincent Ng J said that s. 57(i)(j) provides that the
courts shall take judicial notice of the territorial
extent of the jurisdiction and sovereignty
exercised de facto by their own government, yet
the courts are not obliged to judicially notice their
precise limits and in the case of the open sea,
unlike terra firma the courts are also not obliged
to judicially notice the territorial extent or
distance of one country from another or limits of
their territorial waters as determined through
maritime conventions or treaties from time to
time, unless there is before the court evidence of
such conventions or treaties.
- The court is not obliged to judicially notice their
precise limits thus proof is required
• The limits of judicial notice:
• However as was said by Chang Min Tat FJ in Weng
Seng v. PP [1978] 1 MLJ 168 at p. 171, "though the
list of matters of which the Court may take judicial
notice is of course not exhaustive… it is clear from
the authorities that in order to avoid conflict
between the bar on a Judge importing his own
knowledge into a case and what he may take judicial
notice of there is a limitation to ‘what is notorious, of
what everybody knows. . .’ “Earlier in Sivagi Achi v.
PRM. Ramanathan Chettiar [1959] 25 MLJ 221
Ong J had refused to take judicial notice of Hindu
Laws as to rules of intestate succession under the
Mitakshara System.
4
General knowledge v Personal knowledge
• R v. Rosser [1836] 7 C & P 648 where it was held that
in order to prove a particular value of an article the
jury though they could utilize knowledge of the
subject, any one of them could not utilize his particular
knowledge on the subject acquired by his being in the
trade. He should instead be sworn and examined as a
witness.
• R v. Jones Cent. Criminal Court 1841 M.S where on
an indictment for making a seditious speech at a public
meeting, Lord Denman told the jury that they could
take into account what they knew of the state of the
country and of society generally at that time when the
language was used in deciding whether it was
seditious, but that they could not take into
consideration without proof of them, particular facts
attending the public meeting at which the words were
spoken.
• In Lee Seow Kuan v. R [1940] MLJ 211 Terrel Ag CJ
said “The Court cannot take judicial notice of the fact
that Chap Ji Ki is a lottery within the meaning of the
definition in S. 2 of the Common Gaming Houses
Ordinance. Unless and until Chap Ji Ki is declared by
law to be a lottery within that definition the fact has to
be proved in each case”.
• In PP v. Lee Ee Teong [1953] MLJ 244, 245 It is not
open to any Judge or Magistrate to import his personal
knowledge on the point into a criminal trial so as to
help out evidence for the prosecution which would
otherwise be inadequate to support a conviction.
Thomson J as he then was said "I know and the
magistrate knows, all about the 1,000 characters
lottery; ... Unfortunately, however, it is not open to any
judge or magistrate to import his personal knowledge
on the point into a criminal trial so as to help out
evidence for the prosecution which would otherwise
be inadequate to support a conviction".
• In VT Singam JC in Norshaharin v. PP [2002] 5 CLJ
492 where it was held that “The learned Sessions
Court judge had wrongly allowed himself to be
influenced by consideration outside the evidence by
importing his personal knowledge as seen in his
06 Facts Need Not to be Proved
judgment of the case, as to the genuineness of the
RM50 currency note. The court ought not to be
influenced or governed by any notions of personal
knowledge as a substitute for evidence. The court must
only act on evidence placed before it and not depart
from this established principle. As such, the Sessions
Court judge had erred in law and this court was not
able to confirm the conviction and instead quashed it.
Consequently, it was also not necessary to hear the
submission on the sentence.”
• PP v Sharma Kumari [2000] 6 MJ 254
- “It is settled law that judge cannot without giving
evidence as witness, import a case by his own
knowledge of particular facts”
• Loh Moh & Anor v PP [1954] MLJ 14
- Ballamy J held that a judge could not without giving
evidence as a witness import into a case his own
knowledge of particular facts.
• Re Gun Soon Thin [1997] 2 CLJ Supp 53 in deciding
whether to draw a presumption of death of Gan Teck
Heow who had been held captive by the Japanese
during the Japanese Occupation in 1942, under s. 108
of the Evidence Act 1950, Justice Abdul Malik Ishak
take Judicial Notice that during Japan occupation, the
Japanese is very cruel against the Chinese and had
taken a death toll on a higher scale.
• PP v Lee Ee Teong [1953] 1 MLJ 244
- Thomson J said that it is not open to any judge or
magistrate to import his personal knowledge into
a criminal trial so as to help out evidence for a party
which would otherwise be inadequate to support a
verdict.
• Lo Khi On (t/a Fuji Hairdressing Saloon) v Tanjong
Aru Hotel [1994] 3 MLJ 766
- Judge refused to take JN of the fact that a barber
chair costs RM 12, 000 a piece as it is not a notorious
fact.
- This is because out of the hairdressing trade, no one
knows the price of barber chair and it cannot
therefore be said that it is a well-known fact that a
barber chair cost RM12,000.
LAW 4110 Law of Evidence 1
- 3 circumstances to invoke Judicial Notice
i) If it is provided by Statute (Section 57)
ii) If it is so notorious/well known (by requiring
proof would insult common sense)
iii) By looking to readily assessable material/books
PRESUMPTIONS (Section 4 of EA)
- Assumption/inference that you made from certain
facts that are either admitted or prove OR admitted
and prove.
- Example of presumption :
• PP v Yuvaraj
- Charged with anti- corruption act
- He was public officer
- When somebody gives you a gift when you hold your
position as public officer, there is rebuttable
presumption that you had received it corruptly.
- In order to draw the presumption, the prosecutor
has to prove 2 facts :
1) He is a public officer
2) He was given gratification and received such
gratification
- When both facts exist, then there is presumption.
- This is rebuttable presumption – BOP shifted to the
accused.
1. Section 4(1) – whenever it is provided by this Act that
the court may presume a fact, it may either regard the
fact as proved unless and until it is disproved, or may
call proof for it.
- The word ‘may’ indicates that it is discretionary.
- This is presumption of fact
- Section 114 of EA :
“court may presume existence of certain facts..”
Illustration (g)  that evidence which could be and
is not produced would if produced be unfavourable
to the person who withholds it
• Thus, for example if prosecutor did not call up the
essential witness for unfolding the case, then the
defence counsel will ask the court to draw adverse
presumption that the witness will give evidence
against prosecution.
5
• Court will draw adverse inference, if the court in the
view that evidence is withheld and deliberately
suppress (withholding and wilful suppression)
• Munusamy v Azmi
- Court draw only wilful suppression
2. Section 4(2) – whenever it is directed by this Act that
the court shall presume a fact, it shall regard the fact as
proved unless and until it is disproved.
- The word “shall” presume a fact indicates
presumption of law
• Jayasina v PP
- Rebuttable presumption
- Section 105 (defence is on the accused)
- There is presumption that those defence
(exeption) are absent
- Absent of exception circumstances – rebuttable
presumption
- Defendant must rebut this (BOP is on the accused)
- Section 105 is pari materia with Sri Lanka, India
& Singapore
- Charged with crime in Sri Lanka
- Court found him guilty because the ground
counsel submitted that BOP which is shifted on
accused it is not evidential burden but legal
burden
- Thus he must prove on the balance of
probabilities that he had acted on self-defence.
- Privy council – since EA is based on Common
law, if burden shifted on accused it is evidential
burden and not legal burden – thus must prove on
balance of probabilities.
3. Section 4(3) of Evidence Act – Conclusive proof
- It is irrebuttable presumption
- Section 113 – presumption that boy under 13
cannot commit rape – this is conclusive proof
- Section 112 – birth during marriage conclusive
proof of legitimacy – not conclusive because the
words ‘unless it can be shown…”