KETERANGAN PAKAR

(EXPERT EVIDENCE)
 KETERANGAN PENDAPAT
(OPINION EVIDENCE)
Saad bin Mat Takraw: dua jenis pakar iaitu pakaryang diwartakan dan
pakar di bawah Akta Keterangan 1950
Dalam Akta Keterangan 195), ada dua jenis iaitu pendapat pakar dan bukan
pakar
Keterangan bukan pakar: S.47, S.48, S.49, S.50 dan S. 51
 BEBERAPA PERKARA PENTING
TENTANG PAKAR
1. Maksud pakar
2. Peranan Pakar (bila pakar boleh dipanggil)
3. Kerelevanan Keterangan Pakar di bawah Akta Keterangan 1950
4. Kelayakan menjadi pakar
5. Percanggahan antara keterangan pakar
6. Nilai probatif keterangan pakar
 WHO IS AN EXPERT?
Expert means one who is skilled in any particular art or trade, profession
being professed of particular knowledge, concerning the same.
If a person has acquired any special experience or special training in
particular subject to which the Court enquiry relates, such a person can be
considered as an expert.
An expert is the one who has made the subject upon which he speaks, a
matter of particular study, practice or observation and he must have a special
knowledge of the subject.
Any person who has the experience to give an informed opinion on a matter
outside the experience of Court is an expert.
 WHO IS AN EXPERT?
Lord Russell CJ in The Queen v Silverlock [1894] 2 QB 766, p. 771
stated that en expert is:
someone who is skilled and has adequate knowledge in an area of
expertise.

In PP v Lee Ee Teong [1953] MLJ 244, the court held that:

A person who is skilled or knowledgeable on certain matters by
reason of his experience and exposure may be an expert.
 ROLE OF EXPERT

Expert opinion assists the Court in the matter of scientific nature.

An expert gives opinion for the matter after assessing it and this opinion is
not binding in nature, it is merely advisory.
The issue before the court is whether the nature of the evidence requires
special skill as was decided by the court in Junaidi bin Abdullah v. PP.
The expert only gives an opinion, but not a conclusion of the matter as it is
the judicial function to do so. In Ong Chan Tow v. R, the court held that the
experts cannot give evidence on matters which the court can decide by itself
as otherwise they would tend to usurp the function of the court.
 ROLE OF EXPERT

Per Raja Azlan Shah CJ (Malaya) (as his Highness then was) in Wong
Swee Chin v PP [1981] 1 MLJ 212
But, 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 judgements.
 WHEN AN EXPERT CAN BE CALLED?

When the issue beyond the Common Knowledge and Experience of judge.

R. v. Turner, 1975, p.84J:

If on the proven facts a judge or jury can form their own conclusions
without help, then the opinion of an expert is unnecessary. In such a case
if it is given dressed up in scientific jargon it may make judgment more
difficult. The fact that an expert witness had impressive qualifications
does not by that fact alone make his opinion on matters of human nature
any more helpful than the jurors themselves; but there is a danger that
they may think it does.
 PROVISIONS IN THE EVIDENCE ACT 1950

Section 45 of Evidence Act 1950

Section 46 of Evidence Act 1950
Section 51 of Evidence Act 1950
SCOPE OF SECTION 45 OF EVIDENCE ACT 1950

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 matter are relevant facts.
 CATEGORIES OF EXPERT IN SECTION 45 OF
EVIDENCE ACT 1950

1. Foreign law
2. Science or art
3. Handwriting
4. Finger impression

How about polygraph test, dog tracking, footprint, palm impression,

ear print etc.?
 HANDWRITING EXPERT
It is a well settled law that the opinion of an expert should be taken with a
great caution and the decision of the court should not be based simply on
the basis of the expert opinion without a substantial corroboration as was
decided by the court in Mohamed Kassim bin Yatim v. PP in which the court
said that it is a settled law that evidence by a handwriting expert can never
be conclusive evidence.
In Dr. Shanmuganathan v. Periasamy, the court held that there is no rule of
law, nor any rule of prudence which has crystallized into a rule of law, that
the opinion evidence of a handwriting expert must never be acted upon,
unless substantially corroborated, the court must consider the fact and
circumstances of each particular case before reach a conclusion.
 QUALIFICATION TO BE AN EXPERT

1. Academic qualification
2. Experience
3. Training

Per Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320:

while the expert must be skilled, he need not be so by special study, he
may be so by experience; and the fact that he has not acquired his
knowledge professionally goes merely to weight and not to admissibility.
 QUALIFICATION TO BE AN EXPERT

The court in PP v. Muhamed bin Sulaiman held that the expert may be competent either
by formal study or by experience meanwhile the court in Dato Mokhtar Hashim v.
PP held that one can acquire expert knowledge in a particular sphere through repeated
contact with it in the course of ones work notwithstanding that the expertise is derived
from experience but not from a formal training.

In Junaidi bin Abdullah v. PP, the court held that the specialty of the skill required of an
expert under Section 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 in the particular field of art, trade or profession.
 PRESUMED TO BE COMPETENT
In Junaidi bin Abdullah v Public Prosecutor [1993] 3 MLJ 217,
Supreme Court (Mohamed Azmi SCJ) stated that:

We were therefore of the opinion that since the evidence sought to be

proved by the prosecution was limited only to serviceability of an ordinary
revolver, Mr Cheong (PW6), a chemist in the chemistry department, was
competent to give expert evidence of such an uncomplicated matter. In the
circumstances of this case, the court was entitled to accept his position
as a government chemist as sufficient, without going into his
academic qualification or experience.
 CONFLICTING EXPERT OPINION

The court has a right to prefer one opinion over the other.
CLR v Alagappa Chettiar [1971] 1 MLJ 43
Dato Mokhtar Hashim v PP [1983] 2 MLJ 232
Singapore Finance Ltd v Lim Kah Ngam [1984] 2 MLJ 202
PP v Ang Soon Huat [1991] 1 MLJ 1

The court can call an additional expert.

The court can reject both expert and decide the case based on other
evidence available.
 CONFLICTING EVIDENCE OF
EXPERTS
PP v Ang Soon Huat [1991] 1 MLJ 1:
It is necessary for the prosecutor to produce additional expert evidence. e.g. From the
writings of another internationally accepted expert in the field.

Singapore Finance v Lim Kah Ngam:

Where there is a conflict, the court has a right to prefer one opinion to the other.
 SECTION 51 OF EVIDENCE ACT 1950
Grounds of opinion when relevant.

Whenever the opinion of any living person is relevant, the grounds on which his
opinion is based are also relevant.

Illustration: An expert may give an account of experiments performed by him for the
purpose of forming his opinion.
DOES THE COURT BOUND TO ACCEPT
EXPERT EVIDENCE?
In the case of Kulasingam v. Thambipillai (1997)1 MLJ 288, Court of Appeal held that:

Expert witness may give opinion evidence but the court is free to draw its own conclusions.

In Law Society of India v. Fertilizer and Chemicals Travancore Ltd. AIR 1994 Ker 308, p. 367, it
was held that:

The court is not bound to follow blindly the opinion of the experts.
 PROBATIVE VALUE OF EXPERT EVIDENCE

The expert opinion should be of corroborative nature to the facts and

circumstances of the case.
If the expert opinion contradicts an unimpeachable eye witness or
documentary evidence then it will not have an upper hand over direct
evidences.
 PROBATIVE VALUE OF EXPERT
EVIDENCE
In the case of Syed Abu Bakar bin Ahmad v PP [1984] 2 MLJ 12,
Abdul Hamid FJ stated that:

It is settled principle that while it is true that a Judge who sits alone is
entitled to weigh all the evidence, to put his own magnifying glass to
determine the probabilities so to speak 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 for
expert evidence.
 PROBATIVE VALUE OF EXPERT
EVIDENCE
In the case of PP v. Samundee Devan Muthu Kerishnan [2006] 3 CLJ
161, p. 173, the court opined that it is trite law expert do not decide, the
ultimate decision with the judge.

Evidence of the experts is only opinion. It is not conclusive.

 BAGAIMANA PULA DENGAN KETERANGAN
BUKAN PAKAR?

Seksyen 47 apa bezanya dengan Seksyen 45 Akta Keterangan 1950?

Seksyen 48
Seksyen 49
Seksyen 50
 Thank you!!!
DR. RAMALINGGAM RAJAMANICKAM
Faculty of Law
Universiti Kebangsaan Malaysia (UKM)
43600 Bangi, Selangor
Emel: rama@ukm.edu.my
Tel. No.: 017-7157174