Expert Opinion Evidence, s112 statements, Admission & Confession , Witness examination, Similar Fact

Purpose of s45

• to allow qualified experts to furnish the court with knowledge of certain areas which is outside the experience and knowledge of the judge

Relevancy of expert evidence

• s9 - identifies the substance which is of relevance to the fact in issue (Eg: chemist identifies petrol in containers found at crime scene)

• s7 - explains the cause of the fact in issue

  • fire dept officer testifies that fire started with inflammable liquid

  • pathologist testifies that the cause of death is XXX

Requirements to be fulfilled for expert opinion to be admissible

• [Junaidi v PP] - s45 EA50’

  • whether the nature of the evidence requires special skill, area of which the opinion to be tender must fall within s45(1) - science, art, foreign law, handwriting, fingerprints, AND

  • qualification - must be someone with special skill that area - had acquired necessary skill and has adequate knowledge to express an opinion on the matter under inquiry

[PP v Lin Lian Chen] - expertise can be acquired through academic qualification or experience

Factual Evidence VS Opinion Evidence

• whether the expert is merely adducing facts or his opinion

• Is the evidence drawn based on objective observation of fact or subjective assessment is involved?

• [Khoo Hi Chiang v PP] - evidence of chemist on the identity and weight of drugs was factual evidence and not opinion evidence within the meaning of s45 EA50’

Experts examining and interpreting test results

must note who is the maker of the report!!!

(Eg: pathology report done by Dr A - testified by Dr B - hearsay)

Can Dr B rely on the report done by Dr A to form his opinion on the extent of injuries sustained by deceased?

• [Pathmanabhan v PP] - is not hearsay - admissible as expert opinion - even though the expert witness himself did not conduct the test - admissible as long as he examined the test results himself

• [Rita Krisdanti v PP] - lab assistant carried out the test to identify drugs - PP called chemist who was supervising the machine to testify as expert - as long as the examination and interpretation of test results are done by the expert witness - not hearsay - admissible

**differentiate the cases above with report that requires more human interpretation and more subjective opinion

When there is conflicting expert evidence

[Pembinaan Teris Sepakat v Kumpulan Ikram] - crt had the right to prefer one opinion over another

Disregard to expert opinion

[Asean Securities Paper Mill v CGU Insurance] - amounts to insufficient judicial appreciation of relevant evidence

Evidence on handwriting

• direct evidence - s60 - only when the witness saw it with his own eyes that D signed the documents - if not - opinion evidence

• Generally, opinion evidence not admissible

Exceptions to general rule of opinion evidence

s47 - confirms the relevancy of opinion of person who is acquainted with the handwriting of the person who allegedly signed or written the document in issue on whether such person did sign or write the doc or not

Who is ‘person acquainted’

Explanation under s47

• has seen that person write

• OR

• has received documents purportedly written by that person in reply to documents written by the witness

  OR

• documents supposedly written by that person have been habitually submitted to the witness in the ordinary course of business

Court comparing btw specimen and signature/handwriting in dispute

• s73(1) - crt may call any person to give his specimen of signature/handwriting and the court will compare the two

• s73(2) - crt may call any person to be present in court and write or sign in court for the crt for comparison purpose

[Astana v RHB Bank] - differences so obvious to the extent that even without aid from expert - crt can personally conclude the difference and element of forgery in it

Does s73(2) contradicts with an A’s right against self-incrimination?

• s120 - competency

• s173(ha) & s181 CPC - silent

• s132 EA - witness not excused from giving incriminating answer

right against self-incrimination

• s120(3) EA - while A is competent in his own - he is not compellable

• s173(ha) & s181 CPC - A can elect to remain silent

• when he choose to testify - shall give evidence in the same manner and with the same effect and consequences as any other witness

How did s73(2) infringe A’s right against self incrimination?

• requires the A to participate even when he chooses not to testify in court - infringe right to silence

• mention s132 - but differentiate - s132 only for witness

• [PP v Datuk Haji Wasli] - s132(2) preclude pros from using evidence forced out of witness - not from using testimony in the other case against him in this current case

Admissibility of s112 statement

s113 CPC - statement made in the course of police investigation under s112 - generally inadmissible - maker should be called to testify in court

Is s112 statements privileged?

• [Husdi v PP] FC - s112 statements are absolutely privileged

c/f

• [Siti Aisyah v PP] - as long as A can establish that it is necessary and desirable at the time of application for him to have access to s112 statement - not absolutely privileged

[DS Najib v PP] - Husdi still good law by virtue of doctrine of stare decisis

Exceptions to s113 CPC

• s113(2) - statement made to impeach the credit of witness

• (3) - A seeks to tender his own s112 to support his defense

• (4) - statement made in the course of ID parade or made by A and leads to discovery

• (5) - statement made by A who is charged with perjury or false statement

• s32(i) & (j) - MAKER MUST BE UNAVAILABLE!! ONLY FOR CRIMINAL PROCEEDINGS!!

s32(1)(i) EA50’

statement made in the course of investigation of a criminal proceeding

s32(1)(j)

statement made by a public officer in the discharge of his public duties

Should s32(i) &(j) be read conjunctively or disjunctively?

• [Kobra Taba Seidali] - the words ‘and’ at the end of s32(1)(i) & (j) shows that they are meant to be read tgt - meaning it must be a statement made in the course of investigation by a public officer discharging his public duty

c/f

• [Siti Aisyah v PP] - to read disjunctively - if Parl’s intention is to read together - unnecessary to separate into two subsections

• followed by [Lam Peng Hoa] and [Mohamad Fairus]

• s112 was made to create reasonable doubt - disallowing the admissibility because one of (i)&(j) not fulfilled - deprive A the chance to raise reasonable doubt

Wish to refer to s112 statement to refresh memory

Pre-conditions: [Moomin v PP] - s159 EA

• statement made by the witness himself or if written - was read to the witness and he signed verifying the statement to be true

• s112 statement was made at the time of transaction that she is being questioned about or soon afterwards that the court considers it likely that the transaction was likely to still be fresh in his memory

• not as of right, crt’s discretion to grant leave for the witness to refer to her s112 statement - if crt satisfied as to the reason for the non-production of the s112 statement

• [Chau Kam Hoon v PP] - s112 need not be legally admissible for the witness to refer to it

Admissibility of accomplice evidence

Relevant under s10

• where reasonable ground to believe 2 or more persons conspired together to commit an offence - anything said and done by any one of them in reference to their common intention is relevant to prove existence of conspiracy and showing that any such person was a party to the offence

• illus of s10 - does not matter if the accused is ignorant of the actions of his accomplice - the acts done by strangers - acts done before or after he joined the conspiracy

Who is regarded an accomplice?

• [PP v DSAI (No.3)] - a person who is participes criminis

• participant but not charged

• can argue not participant in the crime A is charged with (Eg: A alleged of murdering B - C only slap him before the murder - C no mens rea in murder - not accomplice

c/f

• [Lawrence v PP] - being present at the scene encourage commission of the offence where the parties have agreed for a crime to be committed (no need to the offence A is being charged with)

• Eg: A charged with murder, C agreed to beat B up

• also include parties to other crimes that A in this case is alleged to committing - when the evidence in that crime is admissible here as similar fact evidence

Are accomplices competent witness?

• s133 = YES

Is corroboration evidence needed for evidence by accomplices?

[Ghazali v PP] - corroboration required as a matter of practice and prudence

• Court has discretion to either require or dispense the need

• whether corroboration is needed would affect the weight attached to the evidence

If court choose to require corroborative evidence

[DSAI v PP] - the corroborative evidence has to be available before the court can rely on the accomplice’s evidence

• will choose to require corroboration when the court is doubtful of the credibility of the accomplice

If court choose to dispense the need of corroboration evidence

• if court found the accomplice to be credible - may dispense need - weight attached to this evidence would be the same as that of a credible witness

• Eg: role of accomplice is one that is passive [PP v Norezam]

• Judge must warn himself in the judgment of the danger of convicting the A on the witness’s uncorroborated evidence - but it does not restrain the court from securing such conviction relying on the uncorroborated witness - as long as there is sufficient evidence to prove the ingredients of the offence beyond reasonable doubt

Hearsay exception - Admission - s17(1)

• oral or written admission that suggest inference of any fact in issue or relevant issue

Who can make admission?

s18

• party to the proceedings

• parties to suit / reps

• person who have proprietary or pecuniary interest in the subject matter (TP)

• persons from whom the parties to the suit derived their interest in the subject matter

eg:

• in a case of recovery of debt - debtor made a statement asking for discount from creditor - infer debt due

• in case of negligence - D made offer to settle - infer existence of liability

Admissions by persons whose position proved to be against party to suit

see illustration in s19

• A undertakes to collect rent from C to B

• B sues A for not collecting rent from C to B

• A denies that C owes rent to B

• statement from C admitting that he owed B rent - admission - relevant fact under s17 - proves his position as against A who denies that C owes B rent

In what circumstances can admissions to tendered to prove the truth of statement?

• s21 - may be proved against the maker or his rep

• cannot be proved by or on behalf of the maker - for the benefit of the maker unless one of s21(a)- © applies

Confession - s17(2)

• ONLY IN CRIMINAL PROCEEDINGS

• admission made by A stating that he committed the offence

whether the statement amounts to a confession

• objective reasonableness test

• [Anandagoda v R] - whether the statement amount to a confession or suggest such inference to the mind of a reasonable person reading the statement at the time - must look at it as a whole - do not consider extrinsic facts

Mixed statement

• statement contains material that infer admission to guilt but also include exculpatory statement/ protestations of innocence - I didn’t do it

• look for conflicting statements

• [Lemanit v PP] - immaterial - still count as confession

Can confession to tendered for the benefit of the A?

• s21 applies like in admission

• only to prove against the A unless one of s21(a)-© applies

  • if the maker of the statement is dead and the statement is relevant under s32

  • it consists of a statement of the existence of any state of mind or body that would render its falsehood improbable

  • it is relevant other than as an admission

Vitiating factors that could render confession irrelevant thus inadmissible

• s24 - made under inducement, threat or promise from person in authority

• s23 - without prejudice rule

s24

inducement, threat, promise

• [R v Thompson] - tell me where the things are and I will be favorable to you

person in authority

• indirect approach - eg: mannerism of speech or conduct - sufficient - did A truly believe at the time of confession that he was dealing with someone who had some degree of control over him

s23 - without prejudice

• ONLY FOR CIVIL

• admission made on express condition that evidence of it is not to be given or crt can infer from the circumstances it was made that the parties intended for evidence of it not to be given

• to encourage litigants to settle their differences out of court

When can communication be privileged under the without prejudice rule

• [Dusun Desaru v Wong Ah Yu]

  • individuals in dispute

  • attempted to negotiate with each other

  • communications contained terms that would lead to settlement of dispute

Exceptions to without prejudice rule - where communications made in out of court negotiations can be admitted as evidence

• [A-B Chew Investments v Lim] - D himself made references to the privileged discussions - amounts to waiver of such privilege

c/f

• [Machinchang v Lembaga Pembangunan Langkawi] - when it is an issue of law - estopped P to plead the issue of limitation in without prejudice letter

Will a document headed ‘without prejudice’ automatically be rendered this privilege?

[Wong Nget Thau v Tay] - NO - does not conclusively or automatically render privilege - will look at the surrounding circumstances - whether the letter was part of a genuine attempt to settle a dispute

What doesn’t negate the relevancy of confession

• s29 - confessions made under promise of secrecy/ deception/ intoxication/ not warned that he does not need to confess or answer questions he need not answer - relevant fact

• In other words, tricking the A into confessing does not make the confession irrelevant

• s28 - if the confession was made after the impression of the inducement, threat, or promise have been fully removed

Information that lead to discovery of fact - admissible

• s27 EA50

• [Mohamad Zainuddin v PP]

  • info supplied after commission of offence

  • A under custody of police when he supplied the info

  • info supplied did lead to discovery

  • police had no prior knowledge of the whereabouts of the article recovered

  • info provided voluntarily

    [Francis v PP] - crt has discretion to exclude if it is satisfied that there is involuntariness in the disclosure of info

    [PP v Azilah] - judge will balance between prejudicial effect and probative value

• BOP - A only need to suspicious circumstances - evidential burden - pros has no duty to prove voluntariness [Siew Yoke Keong v PP]

Failure to evaluate testimony of witness

• prima facie case - at the close of pros case - s173(f) CPC

• pros has adduced credible evidence to prove the ingredients of the offence which if rebutted would warrant a conviction - s173(h)(iii) CPC

• [Balachandran v PP] - in establishing prima facie - crt must undertake maximum evaluation of evidence - to determine whether the ingredients have been proved and the credibility of witness

INCORRECT

Failure to cross examine pros witness on material points of evidence

• [Ayoromi Helen v PP] - amounts to acceptance of witness testimony - confirmed in [Sembagavally v Tee] - not challenged - deemed admitted

c/f

• [PP v Radhakrishnam] - does not that court bound to accept - must weigh the merits of competing assertions and take into account the standard of proof that each party must discharge

• Court must ask itself whether the testimony has given rise to a reasonable doubt? - If yes - must acquit

Witness has sitting in open court throughout the proceedings, can he be called?

• Sequestration of witness - witness should be separated and excluded from courtroom until they are called to testify

• Purpose:

  • to prevent the witness from tailoring his testimony to that of previous witnesses

  • aids in detecting testimony that is less candid

Witnesses who are exempted from sequestration

• A in a criminal trial - A will be the first defense witness - prevent him from testifying every details that the other DW forgot to mention

• expert witness - [Dr Soo v Foo Fio Na] - to avoid surprise or delay - to enable the expert witness to comment on the expert evidence of the other party when it is his turn to give evidence

Is the pros obliged to call all witnesses?

• s134 - no particular number of witness that the pros must call to prove a fact

• [Teoh Hoe Chye v PP] - PP has absolute discretion whether to call - if sufficient evidence have been adduced to secure conviction - discharged burden to prove BRD

• [Looi Kow Chai v PP] - If A is called to enter defense and he elects to remain silent , am I ready to convict the A on the totality of evidence contained in pros evidence

• if PP decides to call suspect witness - corroboration needed as a matter of law - eg: accomplice - interest of diverting blame from himself to the person he is testifying against - [DSAI v PP] - can convict without corroboration - must warning needed

• crt must assess credibility of pros witness during prima facie stage

• If court opined that a failure to call a certain witness create a serious gap in the pros case - may draw adverse inference under s114(g) against the pros

When will a witness be subject to impeachment

• when a witness has turned hostile -

  • no desire to tell the truth to the party calling him

  • displays animus

  • gives evidence adverse to the party who called him

  • refuse to give evidence altogether

• For judge to decide whether the witness has turned hostile

• s155, 145, s113(2)CPC

s113(2) CPC

• s112 statement of a witness may be used to impeach his credit

Situations where witness could be impeached

• s155 -

  • another witness testifying that they believe the hostile witness is unworthy of credit

  • proof of witness being bribed

  • proof of former statements inconsistent with any part of his present testimony

s155 EA50’

• may be impeached by adverse party or consent of court or by the party who calls him

• If party seeks to impeach his own witness - must obtain leave of court as a matter of law

• If party seeks to impeach opposing party’s witness - leave required just as a matter of prudence and practice

How to obtain leave of court to impeach own witness?

• has to inform intention to impeach

AND

• highlight discrepancies btw witness statement and his previous statement

[Muthusamy v PP] - leave will be granted if there is material discrepancies - mere omission by witness in the present testimony of something stated in his previous statement does not amount to discrepancy or inconsistency

Procedure of a impeachment proceedings

• after obtaining leave (if necessary),

• crt will ask the witness whether he made the statement

• if he admits making the former statement - crt will explain the conflicting versions and give opportunity to explain - if can give satisfactory explanation - credit saved - if not doubtful

• if denies - matter is dropped or party seeking to impeach prove that he made the statement

When referring to previous statement

• s145(1) - if cross-examining him on his previous written statement to contradict him as to inconsistency - must draw his intention to those parts

• s145(2) - if referring to oral evidence - must mention the circumstances when he made the statement and ask him whether or not he made such statement

Will an impeachment order be given immediately when the witness is found to be hostile in a voir dire?

[PP v Munusamy] - YES - no cross examination by other side

c/f

[Dato Mokhtar Hashim v PP] - NO - only at the end of prosecution case - will only decide whether to disregard after crt assess his credit with the rest of the evidence - entitled to cross-examination and re-examination - credit may be repaired during cross ex or re ex.

If civil case - impeachment order will be given together with the final judgment

Re-opening of case

• after pros closed case or defense closed defense

• s138(4) - crt may permit reopening of case and calling of witness after closing of pros case of defense

• [Tan Kah Khim v Liew] - Crt will consider whether any prejudice or surprise will be caused to the other party

• More likely to allow if application made after party close case - less likely after defense close case and just before judgment

• CRIMINAL - s425 CPC - if the evidence appears to the court to be essential to the just decision of the case

When and under what circumstances do courts take judicial notice?

all facts in issue and relevant issue must be proved by evidence

• s56 - facts which courts take judicial notice need not be proved

Facts that courts will take judicial notice

• [Pembangunan Maha Murni v Jururus Ladang] - subject of common and general knowledge that is accepted by public without contention or qualification

• refer to list under s57 - but it is non-exhaustive - continually extended to keep pace with the advance of art, science and general information

• [Pang Ah Chee v Chong] - Chinese funeral expenses - it is normally incurred - only amount would vary

• Test: sufficiently notorious - proper to presume its existence without proof

• Eg: bank slips - take judicial notice that it is a computer produced document

What is ‘facts admitted’?

• ONLY FOR CIVIL CASES - s58(2)

• s73AA EA for criminal proceedings - replicate the first two - criminal proceedings have no pleadings - charge

s58 - facts that are admitted by parties in court/ in writing before hearing/ in pleadings - need not be proved

Examples of facts admitted

• in court - evidence sought to be tendered without complying to the mode of proof - party entitled to oppose did not raise objective - waiver of objection to admissibility - [Norliana v PP]

• in writing - during PTCM - parties admitted to certain evidence in writing

• pleadings (SOC , SOD) - Statement of agreed facts between both parties

Difference between facts admitted s56 and admission s17

s17 Admissions are statement that could infer fact in issue of relevant fact - need to prove

• can be made by anyone who have proprietary or pecuniary interest in the matter or anyone who derived their interest from the parties to the suit

• allows third party who is not party to the suit to make admissions

• allows statements made by someone in their respective suit that was deemed relevant to also be relevant in the current suit

• admission can be made in both civil and criminal

• confession only criminal

s56 - facts admitted - parties admit the existence of facts - need not be proved

• only can be made by parties to the suit

• only in criminal proceedings

• s73AA for criminal

Evidence marked as exhibit or ID documents

• exhibits - documents tendered and accepted by court, having fulfilled all relevancy and admissibility reqa

• if reqs of admissibility has not yet been fully proven - will mark as ID document

• Crt will convert them to exhibits after reqs satisfied

Are ID documents admissible?

[Joseph v Bank Buruh] - ID document that are not converted to exhibits cannot be relied upon

c/f

[Bank of Tokyo v Sim Lim] - s73A empowers the court to make documents that have yet to pass the test of admissibility as ID documents - crt will assess its admissibility at the end of trial during submission stage

Effect of oral testimony based on ID documents

[Henry v Petrozchem] - such evidence should be equally disregarded

Written agreement evidence

Parole Evidence Rule

• s91 - when terms of an agreement has been set out in writing - the agreement itself or secondary evidence of its content must be tendered to prove the terms of the contract

• s92 - no oral agreements can be tendered to contradict or vary or add or subtract the terms of the written agreement unless (a)-(f) under proviso to s92 is satisfied

Proviso to s92

(a) fact to invalidate the written agreement on grounds of illegality (eg: money lending agreement)

[Lori Msia v Arab Malaysia Finance] - courts are slow to declare commercial contracts as void on grounds of illegality but would not shy away from doing so if the circumstances so warrant

(b) oral agreement isnt inconsistent with the main contract

© oral agreement is a condition precedent to the main contract

(d) distinct oral agreement to rescind or modify the contract except for contracts where the law requires for it to be in writing (Eg: [Voo Min En v Leong] - NLC requires SPA to be in writing)

illegal moneylending transaction masquerading as SPA

• crts are entitled to go behind the impugned agreement to ascertain the true nature of such agreement

• have to determine whether it is actually a sham or a genuine transaction where one party tries to resile from and alleges it an illegal agreement

[Global Globe v Jangka Prestasi] - referred to [AG Securities v Vaughan]

• defines ‘sham’

• an agreement which incorporates clauses by which neither party intends to be bound and is a smoke screen to cover the real intention of the contracting parties - merely to give third party an appearance of them creating such legal rights and obligations

Pannir Selvam v Tan Chia Foo

• 2 previous agreements are unusual, linked, strikingly similar to render a very high probability of a pattern where the Ps are given loans cloaked as deposit payment upon execution of SPA when in fact the execution of the documents are to render the property as security for the loans. Upon repayment of loan, the plaintiffs are required to execute a deed of revocation, cloaked as in form of agreed liquidated damages

BOP to prove in such a case

• The party seeking for the agreement to be enforced shall prove its enforceability

• Then, the burden lies on the other party to prove that the agreement was tainted by illegality - have to move the court to go beyond the facade and ascertain the actual intention

Admissibility of similar fact evidence

• [Azahan v PP] - crt will assess the prejudicial effect against its probative value as implied by s14 & s15 EA

• whether the evidence is of a high degree of relevance that its probative value outweighs its prejudicial effect

• [PP v Mohamad Roslan] - striking evidence is not necessary

• s11(b), s14, s15

When to use s11(b) to admit similar fact evidence

• when it make the existence of a fact in issue highly probable

• Eg: identification

• [Abubakar] - done the same thing several times within a month immediately prior to the 2 occasions he was charged for - highly probable that he did it - the fact in issue

When to use s14/s15?

• [PP v Mohamad Fairus] - has to establish actus reus first before admitting SFE

• to prove mens rea

• s14 - state of mind in reference to the matter in question - not for past offences - illus (n) - can consider s15

• s15 or s11(b) -

  • accidental or intentional OR act was done with the particular alleged intention

  • act formed part of a series of similar occurrences

• [Wong Yew Ming v PP] - evidence of selling dangerous drugs on previous occasions - admissible under s15 as SFE - not to show done once before likely to do another - but to show intention or knowledge - not accidental

Is good character evidence admissible in criminal cases?

• s53 - good character evidence admissible

• weight : to show that the A would not be likely to act in the manner alleged by prosecution - to raise reasonable doubt as to A’s guilt

• [Bhagwan v State of Maharashtra] - very weak - cannot outweigh positive evidence that proves his guilt - may work in doubtful cases - may afford background as to why

• [Melvani v PP] - shall be taken in account in assessing sentence

What is character evidence?

• Exp to s55 - reputation + disposition

• Reputation - general credit of a person amongst the public

• Disposition - inherent qualities of a person

• evidence that indicates A has a negative history and would create bad impression on the witness concerned

• [Wong Foh Hin v PP] - previous incestuous relationship with daughter - bad character

Is bad character evidence admissible in criminal cases?

• s54 - bad character evidence inadmissible UNLESS:

  • (2)(a) - previous convictions in cross-examination - if not - go for SFE

  • (2)(b) - A has asked PW questions with a view to establish good character - has given evidence that he has good character

  • (2)© - has given evidence against any other person charged with the same offence (co-D)

    [Murdoch v Taylor] - provided materials support to pros case or undermined the defence of co-D- no need to show hostile intent

• [Wong Foh Hin v PP] - as long as evidence relevant - does not matter if it is an evidence of bad character

• Evidence of suspicion (eg: previous arrest ) - not admissible

Admissibility of character evidence in civil cases

• only general character - not particular acts where character is shown

• s55 - affect the amount of damages awarded - a corollary to s12 - any fact which will enable the court to determine the amount of damages - relevant

Exceptions

• s52 - character appears from facts that are relevant

  Eg: defamation suit - concerns character of the person being allegedly defamed - defamatory statement consisted in attributing bad qualities to the P and D is seeking to justify these qualities

Defenses in defamation

• defense of justification - to prove the truth of the contents

• defense of qualified privilege - to prove that he acted in good faith and had the duty to publish - can be rebutted by arguing mala fide - acted with malice

Presumption - DDA 1952

• s37(d) - any person who is found to

  • have had in his custody or his control any dangerous drug shall be deemed to have been in possession and to have known the nature of such drug until the contrary is proved.

• [Munuswamy v PP] - raise defence of innocent carrier - A has legal burden to prove this to rebut the presumption

Can the presumption of drug possession under s37(d) be used to presume drug trafficking under s37(da)?

• [Alma Nudo v PP] - FC struck out the s37A inserted for the purpose of double presumption - held that it is unconstitutional under Art 5 and Art 8 FC

• Rationale : ‘deemed possession’ under s37(d) cannot be equated with ‘found possession under s37(da)

Presumption of fact of publication (defamation suit)

s114A - presumed to have published the publication

[Peguam Negara Malaysia v Mkini Dotcom]

• only publisher could be held liable for defamation

Website published article - defamatory comments below by anonymous reader - Can the publisher be held liable for defamation?

• relevancy - s5 - fact in issue

• not hearsay - not tendered for truth of truth of its contents

• Publisher need to dispute that these statements are found on their website - or it would amount to waiver to object to the admissibility of these comments on mode of proof

• the plaintiff would then have to prove that the comments are found on the Publisher’s website

• Who is the publisher?

Is the plaintiff limited to suing the anonymous commenter only or the publisher can also be subjected to a defamation suit?

• s114A

  • (1) owner of account - any internet posting done by someone using a person’s account details is presumed to have been published by the person with that account unless can prove otherwise

  • To rebut - the presumed publisher has to prove the post is not published by them or they do not own the account

  • (2) owner of a network service (wifi)

  • (3) owner of computer

  • To rebut: need to prove do not have editorial control over the content posted using their services/ computer/ websites

Purpose of s114A

• to ensure that users of online platforms do not exploit their anonymity provided by in the internet to escape the consequences of their actions

• to encourage service providers to be more diligent with the recording of the users of their service

Impact of s114A

• essentially reversed the burden of proof for plaintiff to prove his case but requires the plaintiff to disprove the allegation

• network providers/ websites operators and all users of online platforms are now responsible to active monitoring their account and what was being posted on their websites

• see recent case of [Peguam Negara Msia v Mkini Dotcom]

[Peguam Negara Msia v Mkini Dotcom]

• Mkini found liable for contempt over comments published by its subscribers

Argument

• Mkini argued that they had no knowledge of the comments until being alerted by police

• have multiple safeguard mechanism in place to monitor comments

Majority judgment of Mkini

Held - majority

• Mkini presumed to be the publisher under s114A EA

• failed to rebut the presumption

• CONTROL - Mkini had complete control over comments on their website - had a well-established team of editors - did not deny knowledge of comments - did not explain how it escaped their radar

• compared the facts to [Re: Prashant Bushan] - where a third party who tweeting contemptuous remarks was found guilty but Twitter wasn’t - Twitter did not have control over the content posted by its users

• KNOWLEDGE - Failed to establish ignorance to those comments - ought to have known or foreseen such comments considering the public sentiment at the timing of the publication

• monitoring system in place insufficient and inadequate since it failed to prevent the publication of these comments

Minority judgment in Mkini

• KNOWLEDGE - system only allows administrator to approve or reject comments after it has been published - cannot detect sentences which are more complex - editors could not have been aware until the monitoring software flagged it up

• cannot be deemed as publishers as knowledge is one of the key elements in publication

• the judge also referred to the Communications and Multimedia Code - internet intermediaries are only liable the moment it becomes aware of the existence and content of third party comments - untenable to expect supervision 24/7

• rejected the ‘ought to have known’ test adopted by majority judges

• referred to CMC - ntg in this code should be construed as permitting censorship on the internet - contradicting with what is required now under this case

• CMC does not require a host to monitor the activities of their subscribers

• s98(2) CMC also provides that compliance with CMC is a defense against any legal action if it relates to a matter to be dealt with under CMC

• Mkini is not a publisher - had no knowledge - complied with CMC - comments removed 12 minutes after became aware of them

Republishing of defamatory statement

[Raja Syahrir v Manjeet Singh] - every republication of a libel is a new libel and each publisher is answerable for his acts to the same extent as if the calumny originated with him