BURDEN AND

STANDARD OF
PROOF
 BURDEN OF PROOF
• Who has to prove a fact?
• On whom lies the burden to proof of a fact?
• Burden of proof lies on both parties.
 Legal burden
Siapa assert, dia kena buktikan
SECTION 101 –
BURDEN OF PROOF
• “(1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove that
those facts exist.

• (2) When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.”
 SECTION 102 –
ON WHOM BURDEN OF PROOF LIES
• “The burden of proof in a suit or proceeding lies on that person who would
fail if no evidence at all were given on either side.”
 LEGAL BURDEN AND EVIDENTIAL BURDEN

• Section 101 relates to legal burden.

• Legal burden is the burden to establish a case
• Civil – burden lies on plaintiff
• Criminal – burden lies on prosecution

• Section 102 relates to evidential burden.

• It may shift to any party in the proceedings.
 SECTION 103 –
BURDEN OF PROOF AS TO PARTICULAR FACT

• “The burden of proof as to any particular fact lies on that person who wishes
the court to believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person.”
INA MELIESA HASSIM v. MALAYSIA AIRLINES
BERHAD [2020] 1 ILR 602

• Section 103 was applied by the Court of Appeal in the case of Juahir Sadikon v. Perbadanan
Kemajuan Ekonomi Negeri Johor [1996] 4 CLJ 1 as follows:

... It is clear from the above provisions on whom the onus lies. In the present case, it is the
plaintiff who had asserted that there exists a particular fact viz. that there was an offer to
sell the said land at the price of between RM7,000 to RM8,000. The onus is on the plaintiff
to satisfy the court that there was such offer.
 KIRTANA A/L SUBRAMANIAM v. PUBLIC
PROSECUTOR [2018] 1 LNS 2033

• The Kirtana A/L Subramaniam (the appellant) was charged in the Session Court Taiping under
section 392 of the Penal Code (rompakan terhadap harta). Two charges were preferred against
him.
• Learned Counsel at the defence contended that the Section 112 statement of the appellant (D6)
provided sufficient details to the investigating officer to investigate the alibi defence of the
appellant.
• The appellants alibi defence must be scrutinized and weighed against the evidence of SP2 and
SP5.
• In this respect it is trite law that the appellant would have the burden of proving the alibi
defence. Illustration (b) of section 103 of the Evidence Act is clear on this point.
 PENDAKWA RAYA v. CHONG KWONG LEONG
& SATU LAGI [2018] 5 LNS 20

• Secondly, it was asserted by the accused, Chong Kwong Leong (CKL) that a man named Ah
Meng rented the house in his raring attempt to shift the blame to Ah Meng. Initially, a man
named Ah Meng has never been suggested to any of the prosecution witness, it was not
until defence case that CKL raised a person named Ah Meng to the surface.
• For all intents and purposes, the law of evidence requires a person who asserts to prove
the facts (See section 103 of the Evidence Act 1950; Harvinder Singh a/l Joginder Singh v.
Public Prosecutor And Another Appeal [2018] MLJU 51).
 PUBLIC PROSECUTOR v. BEH BOON SIAN &
ORS [2019] 1 LNS 1359
• The 1st and 3rd Respondents were involved in an unlawful activity relating to syndicate “gores
dan menang” an offence punishable under section 420 Penal Code. The modus operandi of the
Respondents was by offering a” free gift “to attract consumers and deceiving them in buying
items such as electrical goods; luxury cars and holiday vouchers and tickets by way of lucky
draw.

• [17] It is clear the position here is that once the Applicant produced prima facie proof that all the
properties belongs to the 1st and 3rd Respondents were the proceeds of unlawful activities, the
burden shifted to the Respondents to show to the contrary, by virtue of s. 103 of the Evidence
Act 1950.
 PUBLIC PROSECUTOR v. GOH CHAI HONG &
ANOR [2019] 5 LNS 28

• This is a case where both the accused persons were charged under section 5(2) of the Moneylenders Act 1951
[MLA] read together with Section 34 of the Penal Code and both the accused persons claimed trial.
• This Court finds that during the raid, both the accused persons was not at the premise and was not basically the
one running the business of moneylending. The company itself [Poly Mortgage and Loan Sdn Bhd] and the
persons first hand running the business would be the worker at the premise during the raid.
• This Court opine that in order to bring in the Directors as the accused persons in this case, the prosecution must
prove nexus between the act committed that is moneylending by the directors. In order to bring in the directors
and to prove nexus between the company and both the accused running a business of moneylending, this Court
opines statements of account of the company must be adduced and tendered to the Court to prove that the
directors under the name of the Company is running a business of moneylending.
• The Court therefore finds that the prosecution has failed to discharge their duty under Section 103 of the Evidence
Act 1950 and thus failed to establish a prima facie case against the accused on the said charge, and therefore, the
court ordered that both the accused be discharge and acquitted from the charge against them.
 TAM WAI SENG v. MOHD SAIFUL BIN
MOHAMAD NASIR [2020] 1 LNS 224
• Menurut mahkamah:
Saya telah pertimbangkan keterangan Perayu bahawa terdapat kenderaan lain yang masuk
ke laluannya dan bagi mengelakkan kemalangan, Perayu telah merentas garisan
berkembar dan masuk ke laluan yang bertentangan arah. Bagaimanapun keterangan
Perayu tidak disokong oleh keterangan bebas atau Responden (jika betul ia berlaku).
Mengambil kira beban bukti ialah ditanggung oleh Perayu (s. 103 Akta Keterangan), saya
dapati Perayu gagal untuk menyempurnakan beban pembuktian ini dan tidak dapat
menjadikan keterangan Perayu sebagai sandaran dalam penghakiman ini. (sila lihat Ng
Chul Sia v. Maimon Bt Ali [1982] 1 LNS 95).
INA MELIESA HASSIM v. MALAYSIA AIRLINES
BERHAD [2020] 1 ILR 602

• The claimant had been employed by the company as an Airline Stewardess and then as a Flight
Supervisor. Approximately 23 years into her employment with it, her weight had been found to
be in excess of her Body Mass Index (‘BMI’) and she had been subjected to a weight
management program, grounded from flying and two years later, terminated from service. The
claimant now contends that her dismissal had been without just cause and excuse.

• In this regard, it was the company’s submission that the claimant has failed to satisfy s. 103 of
the Evidence Act 1950 wherein her assertion of other airlines such as British Airways, Lufthansa,
Qantas and KLM not implementing minimum BMI weight for Cabin Crews had not been
substantiated.
 SECTION 104 –
BURDEN OF PROVING FACT TO BE PROVED TO
MAKE EVIDENCE ADMISSIBLE
“The burden of proving any fact necessary to be proved in order to enable any person to give
evidence of any other fact, is on the person who wishes to give the evidence.”

• Illustrations:

(a) A wishes to prove a dying declaration by B. A must prove B’s death.

(b) A wishes to prove by secondary evidence the contents of a lost document. A must prove
that the document has been lost.
 SECTION 105 –
BURDEN OF PROVING THAT CASE OF
ACCUSED COMES WITHIN EXCEPTIONS
• “When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal
Code, or within any special exception or proviso contained in any other part of the
same Code, or in any law defining the offence, is upon him, and the court shall
presume the absence of those circumstances.”
 SECTION 106 –
BURDEN OF PROVING FACT ESPECIALLY WITHIN
KNOWLEDGE
• “When any fact is especially within the knowledge of any person, the burden
of proving that fact is upon him.”
 CHAN PHAIK LENG v. MAHKAMAH PERUSAHAAN
MALAYSIA & ANOR [2019] 1 LNS 1240

• [69] Section 106 was designed to meet certain exceptional cases in which it would be impossible, or
at any rate disproportionately difficult for one party to establish facts which are especially within the
knowledge of the other and which he could prove without difficulty or inconvenience: per Augustine
Paul J in Hoo Chee Keong v. PP [1994] 4 MLJ 451.
 KUMARESAN A/L NADARAJAN v. PUBLIC
PROSECUTOR [2019] 1 LNS 715

• [15] As was held by the Supreme Court of India in Ashok v. State of Maharashtra 4 Supreme
Court Case 393, when the prosecution has established that the accused was the last person
seen with the deceased, the prosecution is exempted from proving the exact happening of
the incident because the accused himself would have special knowledge of the incident and
the burden of proof therefore lies with him under section 106 of the Evidence Act 1872
(which is a pari materia with our own section 106 of the Evidence Act 1950) to explain what
had happened.
 PUBLIC PROSECUTOR v. GOH CHAI HONG &
ANOR [2019] 5 LNS 28
• The act of omission of the PW1 when he has the authority to investigate or to do his search whether or not
Poly Mortgage & Loan Sdn Bhd has moneylending license is doubtful and this does not convince this Court.
This loophole or gap is left unfilled. This gives reason to the Court to invoke Section 114 (g) of the Evidence
Act 1950.

• In a Court of Appeal case of Clearpath Marketing Sdn Bhd v. Malayan Banking Berhad [2019] 1 LNS 111, the
Court held that:-
“DW1 had no personal knowledge of the transactions, and was not even the person in the exchange of
email communications between the parties. Her evidence had also turned out to be inconsistent.
Consequently, this was an apt case for the imputation of adverse inference against the respondent under
sections 106 of the Evidence Act 1950 read with section 114(g) of the same.”
 QQ TRADING SDN. BHD. v. HONG CHENG SEAFOOD SUPPLIES
SDN. BHD. [2020] 1 LNS 45
“I’m nobody’s prawn”
• Here it is the claim of the plaintiff against the defendant. The problem began when payments for
prawns were stopped on the basis of low-quality prawns sold by the plaintiff. When payments were
not made, the plaintiff assumed that the defendant had a financial problem. And the defendant began
shifting the blame to the plaintiff by stating that it had supplied low quality prawns.

• On the issue of merchantability, it is a fact within the special knowledge of the defendant, hence they
bear the burden of proof to prove that the prawns supplied were not of merchantable quality pursuant
to section 106 of the Evidence Act 1950 (Act 56).
 QM RESOURCES SDN BHD v. PARADE HOTEL
SDN BHD & ORS [2019] 1 LNS 864
• It was claiming that the building that it had successfully purchased at the public auction by being the successful
bidder, had comprised the property as described in the Proclamation of Sale [P3].
• Defendants had asserted the material fact that their units on the ground floor in the building ought not to be
included in the sale as publicly proclaimed pursuant to P3. It was, with respect, incumbent on them to prove that
material fact. This, they could prove in court, by calling the very witnesses that they had identified that ought to
have been called by the Plaintiff.

• Section 106 of the Evidence Act 1950 further provides that if a particular fact is within the special knowledge of a
person, then he must prove such fact. Clearly in this case, the allegation that the units on the ground floor of the
building rightfully belonged to the Defendants must have been premised on such fact having been in the special
knowledge of the Defendants. Such fact was definitely not in the knowledge of the Plaintiff, whose knowledge of
the building was based almost entirely on the contents of P3.
 KIM LIN CHAN v. LEE HUA SING
[2019] 1 LNS 1576
• The learned SCJ allowed MYR36,000 for actual loss of earnings based on an estimate salary of
MYR6,000 for 6 months. The Plaintiff’s cross-appeal was for MYR72,000 on the basis that the
Plaintiff’s earnings was MYR12,000 per month. The Plaintiff’s employer attended court to give
evidence that the Plaintiff’s earnings were MYR12,000 per month. However, it is pertinent to note that
his evidence was based merely on unsigned handwritten payment vouchers, which in the opinion of
the learned SCJ, was not proof of what the Plaintiff actually earned.
• It is a well-established principle that special damages, in contrast to general damages, have to be
specifically pleaded and strictly proved: Ong Ah Long v. Dr S Underwood [1983] 2 MLJ 324.
• Since the salary is within knowledge of the Plaintiff, this attracts section 106 of the Evidence Act 1950.
 SECTION 107 –
BURDEN OF PROVING DEATH OF PERSON KNOWN
TO HAVE BEEN ALIVE WITHIN THIRTY YEARS
• “When the question is whether a man is alive or dead, and it is shown that he
was alive within thirty years, the burden of proving that he is dead is on the
person who affirms it.”
 SECTION 108 –
BURDEN OF PROVING THAT PERSON IS ALIVE
WHO HAS NOT BEEN HEARD OF FOR SEVEN YEARS
• “When the question is whether a man is alive or dead, and it is proved that he has not
been heard of for seven years by those who would naturally have heard of him if he
had been alive, the burden of proving that he is alive is shifted to the person who
affirms it.”
 STANDARD OF PROOF
• Standard of proof also known as quantum of proof or degree of proof.

• The standard of proof denotes the quantum or nature of evidence that a

litigant has to adduce to convince a Judge that a fact exists.

• What is the level of proof needed in a case? – this is the meaning of standard
of proof.
 STANDARD OF PROOF –
CRIMINAL CASE
• Generally, the standard of proof is on beyond reasonable doubt (BRD).

• However, there is situation where the court held that the standard of proof
when a case rely on wholly circumstantial evidence is irresistible conclusion.

• There is only one standard i.e. BRD. Irresistible conclusion is BRD when a
case rely on wholly circumstantial evidence .
 STANDARD OF PROOF –
CIVIL CASE
• In civil proceedings, the standard of proof is on a balance of probabilities.

• However, where there is an allegation of fraud in civil proceedings, the standard

of proof in criminal cases, namely, beyond reasonable doubt, has been applied by
our Courts.

• This standard is a high degree of probability although it need not reach certainty.
However, in some cases our Courts have also applied the standard of balance of
probabilities.
 STANDARD OF PROOF –
FRAUD IN CIVIL CASES
• In Lau Kee Ko & Anor v. Paw Ngi Siu [1973] 1 LNS 71; [1974] 1 MLJ 21, trhe Federal
Court held that fraud in civil proceedings needed only to be proved on a
balance of probabilities, albeit a very high degree of probability would be
required.

• In Saminathan v. Pappa [1980] 1 LNS 174; [1981] 1 MLJ 121, the Privy Council
(without considering Lau Kee Ko) endorsed the Federal Court’s decision which
adopted the principle set out in A L N Narayanan Chettyar v. Official Assignee,
where High Court Rangoon held that fraud, whether in civil or criminal cases,
must be proved beyond reasonable doubt.
 STANDARD OF PROOF –
FRAUD IN CIVIL CASES
• In Ang Hiok Seng v. Yim Yut Kiu [1997] 1 CLJ 497; [1997] 2 MLJ 45, the Federal Court
seemingly attempted to reconcile the two conflicting principles by holding that the
standard of proof in civil cases for criminal fraud is beyond reasonable doubt, whereas the
standard of proof for purely civil fraud is on a balance of probabilities. This distinction was
confusing as in most if not all cases on allegation of fraud will involve a criminal element.

• In Yong Tim v. Hoo Kok Cheong [2005] 3 CLJ 229, the Federal Court (without considering Lee
You Sin or Ang Hiok Seng) held that the standard of proof for fraud in civil proceedings is
beyond reasonable doubt, endorsing Saminathan. This approach was followed by the
Federal Court in Asean Securities Paper Mills Sdn Bhd v. CGU Insurance Bhd [2007] 2 CLJ 1;
[2007] 2 MLJ 301 in 2007.
SINNAIYAH & SONS SDN BHD v. DAMAI
SETIA SDN BHD [2015] 7 CLJ 584
• In Sinnaiyah, the Federal Court comprehensively analysed the earlier Federal
Court and Privy Council cases on standard of proof for fraud in civil
proceedings.

• The Federal Court then adopted the position in England in In re B (Children),

that is, fraud need only be proved on a balance of probabilities irrespective of
the seriousness of the allegation. The Federal Court further overruled its
earlier decisions in Lee You Sin, Ang Hiok Seng and Yong Tim.
 Thank you.
SEE YOU IN NEXT LECTURE.