Experts opinion• Section 45 of the EA 1950 provides the opinions of

experts. (Pendapat pakar) (1) 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 foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts. (Apabila mahkamah perlu membuat sesuatu pendapat atas sesuatu perkara mengenai undang-undang Negara asing atau mengenai sains atau seni, maka pendapat-pendapat atas perkara itu dari orang-orang yang khusus mahir dalam undang-undang Negara asing, sains atau seni itu dalam soal identity atau ketulenan tulisan tangan atau cap jari, dalah fakta-fakta relevan). (2) Such persons are called experts. (Orang-orang itu dipanggil pakar)

Experts opinion• Qualification of an expert: The competency of an expert is determined by

the court with considerable laxity (lenient): Per Abdoolcader FJ in Dato Mokhtar Hashim v PP [1983] 2 MLJ 232. Test to be applied to determine whether a person is an expert: Per Mohamed Azmi SCJ in Junaidi Bin Abdullah v PP [1993] 3 MLJ 217 states “the test to be applied for the purpose of s 45 of the Evidence Act 1950 is this. First, does the nature of the evidence require special skill? Second, if so, has the witness acquired the necessary skill either by academic qualification or experience so that he has adequate knowledge to express an opinion on the matter under enquiry? The answer to both questions must necessarily depend on the facts of each particular case. The speciality of the skill required of an expert witness under s 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. But in the final analysis in a non-jury trial, it is for the trial judge himself as both judge of fact and law to determine the weight to be attached to such evidence notwithstanding the outstanding qualification or experience (or the lack of it) of the expert”.

Experts opinion• Qualification of an expert:

• To use the words of Suffian LP at p 323 in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320 when he applied the case of PP v Virammal AIR 1923 Mad 178, “the jurors themselves, 'could have used a magnifying glass, or their own eyes and their own mind to the evidence and [verify] the results submitted to them' by the expert witness. The lack of qualification or experience on the part of the expert must necessarily affect the weight of the evidence rather than admissibility. But where the evidence is of a complex and scientific nature, the absence of both qualification or experience can certainly affect admissibility. No hard and fast rule should be laid down on the issue of the competency of an expert witness”.

• In PP v Sam Hong Choy [1995] 4 MLJ 121, a Chief Inspector of Police who was also an assistant armourer was competent to give evidence on the serviceability of a pistol as the evidence he gave was not of a complex and scientific nature which would require special skills.

Experts opinion• Qualification of an expert:

• An expert must be skilled in his field. He may acquire this through experience. Per Suffian LP in PP v Muhamed Bin Sulaiman [1982] 2 MLJ 320 states “…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”. A semi-skilled or semi-professional persons may qualify as expert witness (Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262) An eye witness may also give expert evidence (Lee It Leo v R [1954] MLJ 215).

• Evidence of the expertise of the witness: Need for evidence of qualification: The expert must, as a preliminary issue, give evidence of his qualifications to enable the court to consider his opinion evidence (Wong Chop Saow v PP [1965] 1 MLJ 247) However, it must be noted that previous testification in court as an expert witness is not necessarily the primary consideration to be qualified person (Dato Mokhtar Bin Hashim v PP [1983] 2 MLJ 232. In certain instances the court may take judicial notice of the fact that an expert has previously given evidence: (Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262).

Experts opinion• Distinction between evidence of fact and evidence of opinion: It must be

observed that, the delineation between the categories of evidence, namely, that of fact and opinion is affine one. If the evidence is one of fact then the ordinary rules of admissibility applies. If the evidence is one of opinion then it would come under the category of expert opinion. In Khoo Hi Chiang v PP [1994] 1 MLJ 265, both appellants were convicted in the High Court at Penang for trafficking in a dangerous drug, to wit, raw opium in contravention of s 39B(1)(a) of the Dangerous Drugs Act 1952 and sentenced to death. They appealed and their appeals were heard together. In the appeal it was argued, inter alia, that: (ii) the prosecution had failed to prove the competence of the government chemist as it was not shown that he had expertise or experience in the analysis of dangerous drugs, in particular opium; Held, dismissing the appeals: (Per Abdul Hamid Omar LP) “It was clear that the evidence of the chemist on the identity and weight of the drugs was factual evidence and not opinion evidence within the meaning of s 45 of the Evidence Act 1950”. The question of adducing evidence to show the expertise of the chemist does not arise. However, expertise and qualification of an expert witness must be established where the evidence consists of not only direct factual observation but of opinion.

Experts opinion• When the need for expert evidence arises: Expert evidence is only

admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge. Per Abdul Hamid FJ in Syed Abu Bakar Bin Ahmad v PP [1984] 2 MLJ 19 states “The scope of this section can be found in the commentary in Sarkar on Evidence 12th ed. at page 488 where, while recognising that opinion in so far as it may be founded on legal evidence shall be the function of the tribunal whose province alone it is to draw conclusions of law or fact -- "There are however cases in which the Court is not in a position to form a correct judgment without help of persons who have acquired special skill or experience on a particular subject, e.g. when the question involved is beyond the range of common experience or common knowledge or when special study of a subject or special training or special experience therein is necessary. In such cases the help of experts is required. In these cases, the rule is relaxed and expert evidence is admitted to enable the court to come to a proper decision."

Experts opinion• When the need for expert evidence arises:

• In Chou Kooi Pang v PP [1998] 3 SLR, Held, dismissing the appeals:(1) The gist of the first appellant's defence was that he was an innocent courier. An expert witness was called by the defence to give evidence on the mental state of the first appellant at the time of the offence. However, low or subnormal intellect was not unsoundness of mind and was not a defence to a criminal charge, and an educationally subnormal person could be criminally culpable for his actions. Further, on the evidence, including that of the expert witness called by the prosecution in rebuttal, it was not proved that the appellant was of low or subnormal intellect (see P 11-15); PP v Rozman bin Jusoh [1995] 3 SLR 317 followed. (2) Expert evidence was only admissible to furnish the court with scientific information which was likely to be outside the experience and knowledge of a judge. If, on the proven facts, a judge could form his own conclusions without help, the opinion of an expert was unnecessary. Here, the question was whether the first appellant knew or at least suspected that he was carrying drugs. This could only have been inferred from the surrounding circumstances by the trier of fact, and was a matter entirely within the trial judge's purview

Experts opinion• When the need for expert evidence arises:

• R v Turner [1975] 1 All ER 70, Held - (i) The psychiatrist's evidence was relevant in that it provided an opinion from a knowledgeable person about the appellant's personality and mental make-up which could play an important part in human judgments (ii) The evidence was not, however, admissible, and the appeal would therefore be dismissed, for the following reasons -- (a) An expert opinion was only necessary where the expert could furnish the court with scientific information that was likely to be outside the experience and knowledge of the judge or jury and the psychiatrist's evidence was not necessary to tell them (a) how an ordinary person who was not suffering from mental illness was likely to react to the stresses and strains of life, and (b) what reliance they could place on the evidence of someone who was not mentally disordered

• Lawton LJ said “The foundation of these rules was laid by Lord Mansfield CJ in Folkes v Chadd [1782] 3 Doug KB 157 at 159 and was well laid: “The opinion of scientific men upon proven facts, he said, may be given by men of science within their own science. An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary.

Experts opinion

• Types of experts: In PP v Saad Bin Mat Takraw [1998] 3 MLJ 784, there are two types of experts, namely: (i) gazetted experts, such as gaming experts appointed by gazette notification under s 11(6) of the Common Gaming Houses Act 1953; and (ii) experts that come within the purview of ss 45 to 49 of the Evidence Act 1950.

• Categories of expert evidence: Under section 45 of EA 1950, expert evidence is admissible on matters of foreign law, science or art, or as to identity or genuineness of handwriting or finger impressions.

Experts opinion• Handwriting: A court cannot rule on handwriting without the aid of

experts. Per Abdul Hamid FJ in Syed Abu Bakar Bin Ahmad v PP [1984] 2 MLJ 19 states Held: It is a settled principle that while a judge who sits alone is entitled to weigh all the evidence, to put his magnifying glass to determine the probabilities 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 of expert evidence. In this case as the document was not examined by an expert in handwriting, it was not correct for the judge to come to a finding of fact that the writing on the receipt appeared to come from the same pen used by the appellant to sign his name and write the receipt number. In the present case Sgt. Paou testified that the signed only on a blank form and he did not write the words "tiga ratus shaja". On the other hand, the defence contended that Sgt. Paou wrote those words "tiga ratus shaja" and signed. There was therefore a dispute as to handwriting and as such it was necessary for the learned Judge as tribunal of fact to make a finding as to the author of those words and figure "three hundred". Since the document was not examined by any person who has acquired a special skill or expert in the particular subject, i.e. handwriting, the question therefore is was the learned Judge right in making the finding of fact that he did in the absence and without the aid of expert evidence?. Answer – NO.

Experts opinion

• Evidentiary value of the evidence of a handwriting expert: It is settled law that evidence by a handwriting expert can never be conclusive because it is only opinion evidence. In re B Venkata Row (1913) ILR 36 Mad 159, 14 IC 418, 13 cr LJ a quotation from Dr. Lawson's work on the Law of Expert and Opinion Evidence, which runs as follows: "The evidence of the genuineness of the signature based upon the comparison of handwriting and of the opinion of experts is entitled to proper consideration and weight. It must be confessed however that it is of the lowest order of evidence or of the most unsatisfactory character. We believe that in this opinion experienced laymen unite with the members of the legal profession. Of all kinds of evidence admitted in a court this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence."

Experts opinion

• In Srikant v King Emperor AIR 1963 SC 1728, two learned judges of the Allahabad High Court observed that: "To base a conviction upon the evidence of an expert in handwriting is, as a general rule, very unsafe." and this observation was approved of by a bench of two other learned judges of the same court in Kali Charan Mukerji v Emperor (1909) 9 Cr LJ 498, 2 IC 154. In Dalip Kaur v Pegawai Polis Daerah Bukit Mertajam [1992] 1 MLJ 1 it was observed that it is was trite of law that evidence by a handwriting expert should be viewed with caution. But such evidence is entitled to be given proper consideration and weight in the context of the other evidence available to the court. The Supreme Court of India's decision in Murarilal v State of MP AIR 1980 SC 531 at p 534 states “the opinion evidence of a handwriting expert should not be acted upon without substantial corroboration”.

Experts opinion• In Dr Shanmuganathan v Perisamy s/o Sithambaram Pillai [1997]

3 MLJ 61 states the opinion of expert witnesses was admissible in evidence and there was no requirement in law that such evidence be corroborated. The learned trial judge should have accepted the expert evidence of PW1 that the signature in the will was not the signature of the deceased. The learned judge ought to have so concluded having regard to the evidence in its totality, including the very unlikelihood of an extremely careful and cautious non practising lawyer like the deceased to have simply walked into a law firm to have his last will drawn up by a solicitor with whom he had no previous dealing, and yet leaving the will at the solicitor's office without making any payment or even collecting it or leaving any instructions to the solicitor. These suspicious circumstances in which the will had suddenly appeared together with the evidence of the expert, PW1, proved beyond reasonable doubt that the will was a forgery.

Experts opinion• In Fakhruddin v State of Madhya Pradesh AIR 1967 SC 1326; 1967

Cri LJ 1197, Hidayathullah J said: “Where an expert's opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness. These observations lend no support to any requirement as to corroboration of expert testimony. On the other hand, the facts show that the court ultimately did act upon the uncorroborated testimony of the expert though the judges took the precaution of comparing the writing themselves”. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated.

Experts opinion

• The evidence of an expert on handwriting must be supported by reasons: Per Anuar J in United Asian bank Bhd v Tai Soon Heng Construction Sdn Bhd [1993] 1 MLJ 182 states “In a civil case and more so in a criminal case, the evidence of an expert on handwriting unsupported by cogent data showing the process by which he came to his conclusion is worthless and any reliance upon such evidence would constitute a serious misdirection warranting interference by an appellate tribunal”.

Experts opinion

• Other methods of proving handwriting:• Section 47 of EA 1950 provides Opinion as

to handwriting when relevant. (Bila pendapat mengenai tulisan tangan relevan). When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to have been written or signed, that it was or was not written or signed by that person, is a relevant fact. (Apabila mahkamah perlu membuat sesuatu pendapat tentang siapakah orang yang telah menulis atau menandatangani sesuatu dokumen, maka pendapat seseorang yang kenal akan tulisan tangan orang yang dikata telah menulis atau menandatangani dokumen itu, bahawa dokumen itu telah atau tidak ditulis atau ditandatangani oleh orang itu, adalah sesuatu fakta relevan).

Experts opinion• Other methods of proving handwriting:

• Principle and scope: Under this section the opinion of any person acquainted with the handwriting of a person is relevant when the court has to form an opinion on the handwriting of such person. Per Coleridge J in Doe D Mudd v Suckermore [1836] 5 Ad & E 703 states “The rule as to the proof of handwriting, where the witness has not seen the party write the document in question, may stated generally thus. Either the witness has seen the party write on some former occasion or he has corresponded with him…”. The knowledge may have been acquired, either by seeing the party write, in which case it will be stronger or weaker according to the number of times and the periods, and other circumstances under which the witness has seen the party write, but it will be sufficient knowledge to admit the evidence of the witness even if he has seen him write but once, and then merely signing his surname: See Garrells v Alexander [1801] 4 Esp 37, Powell v Ford [1817] 2 Stark NPC 164, and Lewis v Sapio [1827] M & M 39.

Experts opinion• Other methods of proving handwriting:• Evidentiary value of such evidence: Per Hashim Yeop A Sani J in PP v

Mohamed Kassim Bin Yatim [1977] 1 MLJ 64 states “The other two witnesses were familiar with the handwriting of the accused. The cumulative effect of all their combined evidence cannot however be stronger than ordinary opinion evidence. Sarkar says it is certain that all such proof is even in its best form "precarious and often extremely dangerous." It has been well remarked that many persons write alike”. Per Syed Agil Barakbah SCJ in Chu Choon Moi v Ngan Sew Tin [1986] 1 MLJ 34 states “It is not proper to attempt making any conclusion on the genuineness of a signature in a document by comparing two similar handwriting without resorting to the opinion of a handwriting expert who is specialised in this field. The requirement becomes incumbent when the handwriting is in Chinese characters in which the Judge in question has no knowledge whatever. It is insufficient to rely on the opinion of an ordinary witness and the more so an interested party in the person of David Yong who in his testimony said he was not certain whether the signature on the third agreement (Ex. P.1) was that of his father. Although he ventured an explanation, he only suspected that the signature was not written by his father. He might be familiar with his father's handwriting…”

Experts opinion

• Other methods of proving handwriting:• Section 67 of EA 1950 provides Proof of

signature and handwriting of person alleged to have signed or written document produced. (Bukti mengenai tandatangan dan tulisan tangan orang yang dikatakan telah menandatangani atau menulis dokumen yang dikemukakan) If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting shall be proved to be in his handwriting (Jika sesuatu dokumen dikatakan sebagai ditandatangani atau sebagai telah ditulis kesemuanya atau sebahagiannya oleh seseorang, maka tandatangan atau tulisan tangan mengenai sekian banyak dari dokumen itu yang dikatakan sebagai dalam tulisan tangan orang itu hendaklah dibuktikan sebagai dalam tulisan tangannya)

Experts opinion• Other methods of proving handwriting:

• Principle and scope: This section deals with proof of the signature and handwriting of a person on a document. The method of proving the signature and handwriting of a person is governed by sections 45, 47 and 73 of the Act while section 90 of the Act relates to the presumption of signatures of ancient document. Per Sarkaria J in State (Delhi Administration) v Pali Ram AIR 1979 SC 14 states “Just as in English Law, the Indian Evidence Act recognizes two direct methods of proving the handwriting of a person: a) By an admission of the person who wrote it and b) By the evidence of some witness who saw it written. These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are a) By the evidence of a handwriting expert (section 45) b) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question (section 47) and c) Opinion formed by the court on comparison made by itself (section 73)”. A signature or handwriting may also be proved by circumstantial evidence. Per Abdoolcader FJ in Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232 states

Experts opinion

• Other methods of proving handwriting:• Section 73 provides Comparison of

signature, writing or seal with others admitted or proved. (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal, admitted or proved to the satisfaction of the court to have been written or made by that person, may be compared by a witness or by the court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. (2) The court may direct any person present in court to write any words or figures for the purpose of enabling the court to compare the words or figures so written with any words or figures alleged to have been written by that person. (3) This section applies also, with any necessary modifications, to finger impressions.

Experts opinion

• Other methods of proving handwriting:• Principle and scope: Apart from section 45

and 47 of the Act, this is the third provision in the Act which deals with proof of handwriting of a person. It provides that the court may form its opinion on handwriting based on a comparison made by witness or by itself. The methods of comparison provided by this section are:

• By comparison of any signature, writing or seal, admitted or proved to the satisfaction of the court with the one which is to be proved. This was the method adopted by the court to compare signatures in Ng Yik Seng v Perwira Habib Bank Malaysia Bhd [1980] 2 MLJ 83.

• By the court directing any person present in court to write any words or figures to enable the court to compare the words or figures so written with any words or figures alleged to have been written by that person.

Experts opinion

• Experts should not give conclusions on matters which are eminently matters for the court to decide (Ultimate issue) Per Winslow J in Ong Chan Tow v R [1963] MLJ 160 states “Such an expert should not be asked to give his conclusion on matters which are eminently matters for the court to decide, otherwise he would tend to arrogate to himself the functions of the court. The motoring expert is there to help the court on technical and mechanical matters, not to draw inferences which even a layman can equally well draw”.

Experts opinion• Per Winslow J in Lim Ting Hong v PP [1966] 2 MLJ 119 states “Apparently

the reason for the withdrawal lies in the fact that the expert was asked whether he could say that the appellant was a member of the Ang Bin Hoey triad society. In reply, the expert said that he could not. In my opinion, the expert should not have been asked whether the appellant was a member of the Ang Bin Hoey triad society or not, as this was a matter which the court itself had to determine on the evidence of the finding of the writings in his possession and after considering the presumption arising under section 15(1) and the case as a whole. The expert was in no position to say whether or not the appellant was such a member. What he could and did say was that these poems were used by the Ang Bin Hoey triad society as part of its ritual. He could usefully have said nothing more on this subject”. The appellant was found guilty of possession of writings relating to a triad society. The expert gave evidence that the poems found in the possession of the appellant related to the Ang Bin Hoay triad society. On appeal it was contended that the evidence should have been analysed by the district judge and as he had failed to do so, the conviction should be set aside. Held: this was a pure and simple case of possession and on the facts the district judge had found that the appellant was in possession of the poems, which were shown to relate a triad society, and therefore the appellant was correctly convicted. (However sentenced reduced).

Experts opinion• In UAB v Tai Soon Heng Construction Sdn Bhd [1993]

1 MLJ 182 (1) The issue whether a signature on a document has been forged is a question of fact. It is a matter for the trial court to determine after considering the credibility of the witnesses it has seen and heard and taking into account any expert evidence on the point.

• In Wong Swee Chin v PP [1981] 1 MLJ 21 “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 judgments. In the ultimate analysis it is the tribunal of fact, whether it be a judge or jury, which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must come to its own opinion”

Experts opinion• In Chin Sen Wah v PP [1958] MLJ 154 “Where an

accused person is charged with the offence of assisting in the carrying on of a public lottery, contrary to section 4(1)(c) of the Common Gaming Houses Ordinance, 1953, the ultimate responsibility of determining whether or not there is a public lottery rests with the Magistrate. He does that with the assistance of such experts as may be called before him to explain what the lottery is, how it is run, and how the facts adduced and the exhibits produced in the case before him establish in the opinion of the expert the existence of a public lottery. But it is for the Magistrate to form his decision in the light of the evidence given by the expert” See Ang Chwee Keong v Regina (1955) MLJ 36, Public Prosecutor v Lee Ee Teong (1953) MLJ 244 and Sim Ah Seng v Rex (1951) MLJ 150.

Experts opinion• Evidentiary value of expert evidence• Per BTH Lee J in Shen Yuan Pai v Dato’d Wee Hood Teck [1976] 1 MLJ

16 “The law on the value of an expert evidence is found in Phipson on Evidence, 10th Edn., para. 1286, p. 481. It reads: The testimony of experts is often considered to be of slight value, since they are proverbially, though perhaps unwittingly biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of preconceived theories, moreover, support or opposition to given hypothesis can generally be multiplied at will”.

• Per Hashim Yeop A Sani J in PP v Mohamed Kassim Bin Yatim [1977] 1 MLJ 64 states “Evidence of an expert can never go beyond an opinion and can never therefore be of absolute certainty. It has always been accepted that expert evidence especially of handwriting can never be conclusive”.

• Per Mohamed Azmi SCJ in Junaidi Bin Abdullah v PP [1993] 3 MLJ 217 states “The lack of qualification or experience on the part of the expert must necessarily affect the weight of the evidence rather than admissibility. But where the evidence is of complex and scientific nature, the absence of both qualification and experience can certainly affect admissibility