EVIDENCE LAW 1

1. Judicial notice (Pengiktirafan
penghakiman)
• 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”
Section 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.

2. Judicial notice (Pengiktirafan
penghakiman
• 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".

3. Judicial notice (Pengiktirafan
penghakiman)
• 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).

4. Judicial notice (Pengiktirafan
penghakiman)
• What is judicial notice?
• Per Isaas J in Holland v. Jones [1917] 23 CLR 149 states the
common law doctrine is that "whenever a fact is so generally
known that every ordinary person may be reasonably presumed
to be aware of it, the court 'notices' it, either simplicter or if it is at
once satisfied of the fact without more, or after such information
and investigation as it considers reliable and necessary in order to
eliminate any reasonable doubt". Lord Sumner in
Commonwealth Shipping Representative v. P and O Branch
Services [1923] AC 191 at 211-2said: “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”.

5. Judicial notice (Pengiktirafan
penghakiman)
• The principle underlying judicial notice
• The doctrine of judicial notice owes its strength on the
two Latin maxims Lex non requirit verificare quod
apparet curiae (the law does not require proof of that
which is apparent to the court) and quad constat curiae
opere testium non indigent (that which is established to
the knowledge of the court does not require the aid of
witnesses).
• The main purpose of the doctrine is to save time in the
hearing of cases and to save costs in the proof of facts
which would often be very difficult without it. It also
tends to produce uniformity of decision on matters of
fact where a diversity of findings might sometimes be
distinctly embarrassing. See R v. Simpson [1983] All
ER 789

6. Judicial notice (Pengiktirafan
penghakiman)
• Judicial notice under the Evidence Act 1950
• Section 56 of the Malaysian Evidence Act 1950 states
that facts of which the court takes judicial notice need
not be proved. (Fakta yang diberi pengiktirafan
kehakiman tak perlu dibuktikan). While s. 57
enumerates fourteen matters of which the court must
take judicial notice, the last clause, ie, cl. (o) concluding
the section in wide terms that the court shall take
judicial notice in all other matters directed by written
law to notice. And sub-s. (2) of s. 57, further states that
"In all these cases, and also on matters of public
history, literature, science or art, the court may resort
for its aid to appropriate books or documents of
reference”. The section is not exhaustive of the matters
which a court may take judicial notice".

7. After
inquiry
By
statute
Without
inquiry
Forms
of
judicial
notice

8. Judicial notice (Pengiktirafan penghakiman)
• 1. Without inquiry: 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 this types
of facts are that that cats are kept
for domestic purposes. (Nye v.
Niblett [1918] 1 KB 23) Judicial
notice has also been taken of
world-wide economic depression
(Ram Terak Selgram [1944] AC
153)

9. Judicial notice (Pengiktirafan penghakiman)
• 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.
• In Lee Lip Ngee v. Crown Council [1947] MLJ 68: Navigation of a port
• 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

10. Judicial notice (Pengiktirafan penghakiman)
• In Kong Nen Siew v. Lim Siew Hong [1971] 1 MLJ 262 38 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 39 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 40 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.
• 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.

11. Judicial notice (Pengiktirafan
penghakiman)
• 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 the recognition of the sovereignty of a
foreign state; Duff Development Co. v. Government of
Kelantan [1924] AC 797 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.

12. Judicial notice (Pengiktirafan
penghakiman)
• (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).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.

13. Judicial notice (Pengiktirafan penghakiman)
• 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.

14. Judicial notice (Pengiktirafan penghakiman)
• 3. Judicial notice by statute:
• In PP v. Mohamed Ali, [1962] MLJ 259 66 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 68 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.
• In Sivagami Achi v. PMR Ramanathan Chettiar, [1959] MLJ 221 it was
held that the court may take judicial notice of Hindu law, as it was foreign
law.
• In PP v. Saad bin Mat Takraw [1998] 3 CLJ 380. 70 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.

15. Judicial notice (Pengiktirafan penghakiman)
• 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.

16. General
knowledge
v
Personal
knowledge

17. Judicial notice (Pengiktirafan penghakiman)
• 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.

18. Judicial notice (Pengiktirafan penghakiman)
• 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”. "

19. Judicial notice (Pengiktirafan penghakiman)
• 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".

20. Judicial notice (Pengiktirafan penghakiman)
• 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 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.”