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THE APPLICATION OF ADVERSE INFERENCE UNDER SECTION 114 ILLUSTRATION (g) OF THE EVIDENCE ACT 1950 Pang Yong Eng Nor Farhana Edayu Binti Zolkefeli Mohamad Naufal Bin Mohamed Nasorllah Antezem dan Amera Farhana Binti Saari Fakulti Universiti Kebangsaan Malaysia ABSTRACT This article aimed to find out w...

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THE APPLICATION OF ADVERSE INFERENCE UNDER SECTION 114 ILLUSTRATION (g) OF THE EVIDENCE ACT 1950

Pang Yong Eng ([email protected]), Nor Farhana Edayu Binti Zolkefeli ([email protected]), Mohamad Naufal Bin Mohamed Nasorllah Antezem ([email protected]) dan Amera Farhana Binti Saari ([email protected]) Fakulti Undang-undang Universiti Kebangsaan Malaysia

ABSTRACT This article aimed to find out when and who can apply the presumption of adverse inference under Section 114 Illustration (g) of the Evidence Act 1950 and also the effect of using it. The primary and secondary sources of material selection were used through the use of the law libraries and the internet as well as journals and cases to gather information for this article. This article reviews the application of adverse inference under Section 114 Illustration (g) of the Evidence Act 1950 in Malaysia. In the first section of the article, the authors describes the meaning, scope and nature of presumption of adverse inference. Additionally, the article explores the application of adverse inference in civil cases and criminal cases. The final section describes the difference in the application of adverse inference between Singapore and Malaysia and ends with the conclusion. In conclusion, it was observed and recommended that the need to invoke adverse inference under Section 114 Illustration (g) of the Evidence Act 1950 cannot be over emphasized unless the evidence withholded is material and important to a case.

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1.0 INTRODUCTION

Adverse inference is a legal inference, adverse to the concerned party, drawn from silence or absence of requested evidence. Adverse inference rule refers to a principle that if a party fails to produce a witness who is within its power to produce and who should have been produced, the judge may infer that the evidence is unfavourable to the party‟s case. This article mainly focuses on scope, nature and issues of the application of adverse inference under Section 114 Illustration (g) Evidence Act 19501. The general rule is that the court may presume the existence of any fact from the evidence that is not produced because of if it be produced would be unfavourable to the person who withholds it according to Section 114 Illustration (g) Evidence Act 1950. This means that if a party withholds some evidence in their possession, the court may presume that the evidence if produced would be unfavourable to the party‟s case thus invoking adverse inference against the party. Adverse inference can be raised at any stage of a proceeding.2 No restriction is placed on the type of evidence that may be presumed and the previous cases show many circumstances in which the presumptions may arise. The presumptions are to be made at the discretion of the court which is to be exercised as and when appropriate in the circumstances of the case if it is necessary in the fair interests of a fair trial and justice.

2.0 THE SCOPE AND NATURE OF SECTION 114 ILLUSTRATION (G) OF EVIDENCE ACT 1950 Basically, all parties of a trial which are plaintiffs (those who are suing in a civil case) or defendants (those being sued in a civil case) and public prosecutor or accused in criminal cases can use adverse infrence when there is a non-production of material evidence that can close the gap of a case. If adverse inference is successfully drawn against a party, the party may lose case. The scope of Section 114 Illustration (g) has been explained in the case of Munusamy v PP 3

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Section 114 Illlustration (g), Evidence Act 1950 (Act 56).

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PP v Chia Leong Foo [2000] 6 MLJ 705.

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[1987] 1 MLJ 492.

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which it is essential to appreciate the scope of Section 114 Illustration (g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important witness to the case. As such, it must be differentiated with Section 4 of the Evidence Act 1950. Section 4 of the Evidence Act 1950 is on whenever it is provided by this Act that the court may presume a fact, it may either regard the fact as proved unless and until it is disproved, or may call for proof of it. Next, whenever it is directed by this Act that the court shall presume a fact, it shall regard the fact as proved unless and until it is disproved. Lastly, when one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it 4 . Collectively, the difference which is more on to the materials to prove and disprove any materials but not to presume any facts as it is.

3.0 APPLICATION OF ADVERSE INFERENCE IN MALAYSIA

3.1 Criminal Cases Referring back to Illustration (g) in Section 114 of the Evidence Act 1950, it deals with the presumption which arises from the withholding of evidence and spoliation or suppression of evidence.5 Generally, the prosecutor has discretion as to whether or not to call any particular witness, provided there is no wrong motive and in particular has discretion not to call in support of his case a witness whom he does not believe to be a witness of truth. In the case of Murni bin Hj Mohd Taha v Public Prosecutor6, the appellant, a paymaster in Tutong Camp of the Royal Brunei Malay Regiment, was charged with three offences of 4

Section 4, Evidence Act 1950 (Act 56).

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Sripada Venkata Joga Rao, Sir John Woodroffe & Syed Amir Ali’s Law of Evidence, 17th edition, Volume 3, Lexis Nexis Butterworths India, New Delhi, 2002, p 4441. 6

[1986] 1 MLJ 260.

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criminal breach of trust under Section 405 of the Penal Code and three alternative charges of dishonest misappropriation under section 403 of the Penal Code. He was found not guilty on the 2nd charge and its alternative. He was convicted on the 1st and 3rd charges and was sentenced respectively to one month's imprisonment and five months' imprisonment. The appellant appeals only against conviction on the 1st and 3rd charges. The evidence shows that as paymaster he was entrusted in 1978 and 1979 with substantial sums of public money in relation to which he was the accounting officer. As a result of indents signed by the appellant, the Treasury issued cheques to him to be encashed by him for payment of serving soldiers. It was his duty to balance payments shown in the Acquittance Rolls, and the amount of unpaid money returned to him against the amount of the cheques which had been drawn by the Treasury and cashed by him at the bank. The appellant in his defence had asserted that unspent money for miscellaneous claims was kept by various prosecution witnesses. They denied this and said that all unclaimed money was handed to the appellant. The Magistrate accepted their evidence and rejected that of the appellant. It was then argued that the Prosecution should have called every paying officer who had received money during the period when the defendant was paymaster at Tutong, to show that they had in fact handed back the unpaid balances. However, the court stated that there is ample authority for the proposition that it is wholly a matter for the prosecution to decide whom they wish to call as witnesses. If they do not call every possible witness, they run the risk of leaving gaps in their case, but the discretion remains theirs. The question of how should the Section 114 Illustration (g) of the Evidence Act should be applied was raised by the court. Roberts CJ in answering the question, has referred to several cases78 and suggested that adverse inference in that particular provision ‘…should only been used where what was called an oblique motive on the part of the prosecution could be detected. If there is any evidence that the prosecution is failing to call, or make available to the defence, a witness who is likely to give evidence hostile to the prosecution case, this might well be a proper occasion on which the court would adopt a presumption under section 114 of the Evidence Ordinance.’ Besides that, the court had also highlighted the point that ‘…it is a matter of discretion for a Court as to whether or not it presumes the existence of any fact. Secondly, as a 7

Khoon Chye Hin v Public Prosecutor [1961] MLJ 105.

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Gurbachan Singh v Public Prosecutor [1966] 2 MLJ 125.

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matter of practical common sense, it is a section which ought to be narrowly construed. If it were broadly construed, it would impose on the prosecution an obligation to call many numbers of witnesses to give identical, or almost identical evidence and would gravely fetter the principle that it is for the prosecution to decide which witnesses to call.’ In a landmark case of Munusamy v Public Prosecutor9, the question of adverse inference was raised in the appeal. In this case, the appellant has attacked the conviction for the offence of trafficking in cannabis, a dangerous drug on several grounds. The argument on the first three grounds evolved around the provision of adverse inference under Section 114 Illustration (g) of the Evidence Act 1950 on (i) the non-production of the unknown informer, (ii) the nonproduction of the typist of the Chemistry Department, and (iii) the absence of accuracy certificate in respect of the weighing machine used by the Government Chemist. On the first ground which involves the informer, the appellant and his wife, in his frameup defence, sought to prove that the informer with DPC Lian had participated in the crime by placing the two packages of cannabis on the carrier of his bicycle without his knowledge. The trial judge rejected the frame-up story and the appellant argued that the learned judge was wrong in law in failing to conclude that the failure to call the informer as a witness would attract the adverse inference against the prosecution under section 114(g) Evidence Act. However, the court was not persuaded that adverse inference can be applied in this case. It was stated in the court‟s judgment that: Obviously the provision of section 114(g) cannot be misused in that fashion for the purpose of overcoming the statutory protection given to informers by section 40(1) Dangerous Drugs Act. Further it must be noted that no application was made during the trial for the exercise of the court's discretion under section 40(3). Moving to the second ground of appeal in regards to the non-production of the typist of the Chemistry Department. The appellant argued that the wrong cannabis had been produced because both the envelope (Exhibit P10) containing the chemist report and as well as the chemist report itself (Exhibit P8) were addressed to the OCPD "Sungei Siput" and not to the OCPD "Taiping". As a result, the appellant argued the trial judge was wrong in accepting the evidence

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[1987] 1 MLJ 492.

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of prosecution witnesses that the reference to "Sungei Siput" was a typing error because by dispensing with the evidence of the typist who was available in court, and therefore an adverse inference should have arisen against the prosecution. However, the typing error was then explained by the investigating officer ASP Ahmad and Mr. Ng the government chemist. The trial judge had considered and accepted the explanation given and thus held that it was not essential to call the typist notwithstanding her presence in court. The Supreme Court in the appeal was satisfied that there was no valid reason to disagree with the learned judge's finding. The court viewed that there was overwhelming evidence that the cannabis produced in court were indeed the ones recovered by the police from the appellant, and the evidence were sufficient to rebut any adverse inference under Section 114 Illustration (g) of the Evidence Act 1950. On the final ground involving the absence of accuracy certificate, the court had decided to reject the argument and stated that the issue in this ground was clearly based on another misunderstanding of the scope of section 114(g) Evidence Act. During the trial, the chemist was requested to produce the certificate of testing of his weighing instrument. Then, a certificate of testing dated May 31, 1985 from the Inspector of Weight and Measure was produced and marked as Exhibit D15. The chemist admitted in evidence that he had no certificate for this particular instrument for the years prior to 1985, although the instrument was checked by the Chemistry Department itself prior to that year. Thus, the only official certificate in his possession was Ex. D15. In those circumstances, it cannot be said that the prosecution had withheld or suppressed documentary evidence in their possession so as to raise an adverse inference. Based on the abovementioned judgment held on adverse inference in Munusamy v PP, it can be concluded that adverse inference can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in its possession, or for non-production of not just any witness but an important and material witness to the case.

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3.2 Civil Cases In civil cases, an adverse inference by virtue of Section 114 Illustration (g) can only be drawn against a party who alleges a fact and fails to produce evidence or a witness in relation to that fact. This has been clearly shown in the case of Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor 10. In this case, the respondent developed a piece of land in the Mukim of Johor Bahru into a housing estate and built low cost houses ('the premises') and rented them out. The appellant was one of the occupiers of the premises. The terms and conditions of the appellant's tenancy were governed by a tenancy agreement dated 6 September 1977 which included an option to purchase the premises on completion of a period of tenancy of three years at a price to be determined by the respondent. The appellant exercised his option to purchase the premises in June 1980 and the respondent offered to sell the premises to the appellant for a sum of RM14,000. However, the appellant rejected the offer on the basis that it was not in compliance with an oral representation made by the representative of the respondent, one Tan Sri Dato' Hj Basir ('Tan Sri Basir') who was present at the meeting in September 1978, together with other officers of the respondent and a member of the state legislative assembly (PW2), which was held for the purpose of discussing the option where the purchase price was quoted as being between RM 7000-RM 8000. Consequently, the respondent withdrew their offer of sale. In December 1985, the respondent gave the appellant a month's notice to vacate the premises. At trial stage, the judge has dismissed the appellant‟s claim. In this appeal, the appellant has failed to serve the subpoena to Tan Sri Basir. The issues then raised before the court, inter alia, were whether Tan Sri Basir made the representation. And if so, whether the burden shifted to the respondent when the appellant failed to serve the subpoena on Tan Sri Basir and whether an adverse inference could be invoked against the respondent. As per Siti Norma Yaakob JCA in delivering the judgment on this particular issue: He who alleges must prove such allegation and the onus is on the appellant to do so. See s 103 of the Act. Thus, it is incumbent upon the appellant to produce Tan Sri Basir as his witness to prove the allegation. The fact that the appellant was unable to secure the attendance of Tan Sri Basir as a witness does not shift the burden to the respondent to produce the witness and 10

[1996] 3 MLJ 627.

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testify as to what he had uttered, as firstly, the respondent never raised such an allegation and, secondly, has denied even making one. For this very reason, the adverse inference under s 114(g) of the Act relied upon by the appellant cannot be accepted as establishing that if the witness had been produced, his evidence would work against the respondent. There is no obligation in law for the respondent to produce the witness as that obligation rests with the appellant, the party who alleges, and the fact that the appellant was unable to do so is fatal to his case. For this very reason too, the adverse inference under s 114(g) is invoked against the appellant. The judgment in this case shows that the court in applying adverse inference under Section 114 Illustration (g) in civil cases, such presumption can be invoked against the party who make the allegation as the burden of prove rests with the appellant to produce the evidence. Furthermore, the issue on whether an adverse inference can be invoked on the non-calling of witnesses was again raised in the Federal Court‟s case of Silver Corridor Sdn Bhd v Gallant Acres Sdn Bhd & Anor11 whereby the Court has referred back to the case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor (No 2)12 which was previously held in the Federal Court in 2010. The law on the presumption of adverse inference was made clear and settled as the court has quoted principle laid down in the latter: Two consequences followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. Firstly, the evidence given by the appellant ought to have been presumed to be true. The judge was under a duty to accept the appellant’s evidence as true in the absence of any evidence from the first respondent going the other way. His failure to direct himself in this fashion thereby occasioned a serious miscarriage of justice. Secondly, the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. The trial judge in the present case ought to have held that the failure of the first respondent to give evidence apart from discrediting her case strengthened the appellant’s case on those vital points that lay at 11

[2016] 5 MLJ 1.

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[2010] 2 MLJ 181.

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the axis of the dispute between the parties. Instead, he treated the first respondent’s failure to appear and give evidence as a matter of no apparent consequence. His nondirection upon such a crucial point amounted to a misdirection which occasioned a miscarriage of justice.

3.3 Non-application of Adverse Inference In some circumstances, the presumption of adverse inference under Section 114 Illustration (g) of the Evidence Act is not applicable. By way of example, the presumptions does not arise where the prosecution has made sufficient attempts to trace an important witness, but this view must be read with caution in situations where if the testimony of the witness is essential for unfolding its case.13 In addition to this, no adverse inference can also be drawn against the accused when a witness has been made available to the defence and the defence did not call the witness.14 This particular circumstance was supplemented by the authority in Abdullah Zawawi v PP15, as per Tun Salleh Abas LP: The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act. But where the prosecution evidence falls short of proving a prima facie case at the end of its case, the right not to call such witness/witnesses and to make him/them available to the defence will be of no avail. If the doubt consists of the gap arising out of the matters adumbrated earlier, the prosecution must close t...