EVIDENCE QUESTION 1

ANS:
We need to understand that the Malaysian Evidence Act 1950 is based on the
Indian Evidence Act of 1872, which is the codified form of the English law.
This was stated in the case of Looi Wooi Saik v Public Prosecutor [1962] MLJ
337 at 339 in the words of Thomson CJ:
In this country the question is governed by the terms of the Evidence
Ordinance which is the same as the Indian Evidence Act ... it is generally accepted
that the Indian act was drafted by Sir James Stephen in 1872 with the intention of
stating in a codified form the English law as it stood at that day.
The general rule is that the Act must not be construed against the background of
the common law because the Act has its origin from the common law. In Ghouse
Bin Haji Kader Mustan v R, the court held that the Evidence Ordinace must be
construed in relation to its background, the common law.
Principles of English Laws have for many years been accepted in the Malay
States where no other provision has been made by statute. Therefore, only
common law and rules of equity (and in Sabah and Sarawak, English statutes of
general application) existing in England on the dates specified in Section 3(1)
can be applied to fill the lacunae in local law. The application of Section 3(1) of
the Civil Law Act 1956 in relation to evidence law were reflected in several cases.
Buhagiar J in Saminathan & Ors v Public Prosecutor states that:
This Ordinance is in the main in accordance with English law though it does
in several respects materially diverge from that law. English decisions serve as
valuable guides and indeed are binding authorities where the English law has been
followed in the Evidence Ordinance, but such decisions upon the meaning of
particular words are of little assistance when those words have been specially
defined in the Ordinance.
Indian decisions may also be referred especially if they relate to the
interpretations of a statutory provision which is the same as that in Malaysia. If a
court in Malaysia is discussing a section in an Indian statute which is word for
word the same as the local statute, a decision of the Indian court is not binding
but persuasive on the Malaysian court. In Meelamchan & Anor v Public
Prosecutor, the court held that a decision of Indian court is not binding on this
court; but if it relates to the interpretation of a statutory provision which is the
same in India and in this country, such a judgment is entitled to the very highest
degree of respect. Where the act is clear, it would be wrong to look to Indian

authorities for the purpose of supplementing or restricting the natural meaning

of the provisions of the Act.
Decisions of other jurisdictions such as other Commonwealth countries
were also regularly referred by the Malaysian courts. These decisions were of
persuasive effect. In Ghouse Bin Haji Kader Mustan v R, the court referred to
the East African decisions and held that those cases are of course not binding on
the Malaysian court but they are entitled to great respect.
Therefore, the judge has erred in his ruling whereby he stated that rulings from
English and other foreign cases or authorities cannot be cited in Malaysian
courts.