Professional Documents
Culture Documents
General rule
1. Section 101 (Burden throughout the case)
Whoever desires any court to give judgement as to any legal right or liability,
dependent on the existence of facts which he asserts, must prove that those facts exist.
2. Section 102
The burden of proof in a suit or proceeding lies on that person who would fail if no
evidence at all were given on either side.
Criminal Cases
Burden of proof:
1. The general rule is that an accused is presumed to be innocent until he is proven
guilty.
2. In criminal cases, prosecution has the legal burden to prove the case and this burden
remains on him throughout the trial in respect of the facts in issue.
3. The accused on the other hand, has the evidential burden to weaken the effect of the
prosecutions case either by cross-examination, or if he is called to present his case,
by adducing evidence himself and through his witnesses.
4. The accused has to merely cast a reasonable doubt.
Standard of proof:
1. In criminal cases, the burden is on the prosecution, throughout, to prove the case
beyond reasonable doubt.
2. Prudent man under Section 3
3. Section 3 Proved
after considering the matters before it, the court either believes it to exist or
considers its existence so probable that a prudent man, ought under the
circumstances of the particular case, to act upon the supposition that it exists.
the different standard of proof namely beyond reasonable doubt and balance of
probabilities.
PP v Yuvaraj [1969] 2 MLJ 89
The degree of beyond reasonable doubt is well settled. It need not reach certainty but
it must carry a high degree of probability.
While the prosecutions duty is to prove the case beyond reasonable doubt, the
accused has to merely cast a reasonable doubt.
Reasonable doubt is a doubt which makes one hesitates as to the correctness of the
conclusion that one reaches. It must be a doubt so solemn and substantial as to
produce in the minds of the jurors some uncertainty as to the verdict to be given.
A reasonable doubt must be a doubt arising from the evidence or want of evidence
and cannot be an imaginary doubt or conjecture unrelated to evidence.
It is well settled that when a case rests entirely on circumstantial evidence, such evidence
must satisfy three tests.
i.
ii.
iii.
2. Proving defences
If the accused relies on statutory defence, reference should be made to Sec 105
Section 105
When a person is accused of any offence, the burden of proving the existence of
circumstances bringing the case within any of the general exceptions in the Penal Code or
within any exception or proviso contained in any other part of the same Code, or in any
law defining the offence is upon him, and the court shall presume the absence of those
circumstances.
The accused has the legal burden to prove statutory defence on a balance of probabilities.
Ikau Anak Mail v PP [1973] 2 MLJ 153 Federal Court
The accused had the burden to prove his defence of provocation on a balance of
probabilities. In other words, the accused has the legal burden to prove the defence he
raises within any of the general or special exception or the provisos in the Penal Code.
PP v Kenneth Fook Mun Lee(No 1) [2003] 3 MLJ 581
The burden of establishing evidence of insanity was on the accused and there was no
obligation on the prosecution to adduce evidence to show that the accused was sane at the
time of the commission of the offence.
PP v Wong Haur Wei [2008] 1 MLJ 670
The accused was charged under s55B(1) of the Immigration Act for employing three
foreign workers without valid passes. The magistrate acquitted the accused on the ground
that he had a good defence under s79 of the Penal Code that he had used and paid the
service of an agent where he thought that all the 3 workers possessed valid passes. The
magistrate court held that the burden of proof remained on the prosecution and the
accused did not have to prove that he was cheated by his agent.
HC: s105 dictated that the burden of proof be cast upon the accused to prove his defence
under s79 on a balance of probabilities.
Whether s105 casts a legal burden or only an evidential burden upon the accused
person to prove his defence?
R v Chandrasekara (1942) 44 NLR 97
There are two types of defences namely those who affect some elements of the
prosecutions case (accident, insanity, intoxication) and those that do not (provocation or
private defence). For the first type, it is enough for the accused to adduce evidence merely
to cast a reasonable doubt. For second type, the legal burden is imposed on the accused
person.
i.
ii.
Rationale for first type: when accused relies on defence which affect some
elements of the prosecution case, he is in fact disputing the element of actus rea or
mens rea in the prosecution case. In such case, the accused may be entitled to an
acquittal if he casts a doubt that his act was intentional. If he succeed, it is not
because he has established his defence, but because placing the essential element
of prosecutions case in doubt.
Rational for second type: For instance if accused pleads the defence of
provocation, he is in actual fact, conceding to the elements of the prosecution case
and he then brings evidence to excuse him. In such instance where the statute lays
down that there is a legal burden on the accused, he may be said to bear the full
risk of non-persuasion. A failure to convince the judge on a balance of
probabilities, it may result in the defence being rejected.
Civil cases
General Rule
1. Section 101 provides that he who alleges must prove whereas Section 103 is a test to
identify the party who has the burden of proof.
2. Plaintiff has the legal burden to prove the case on a balance of probabilities while the
Defendant assumes the evidential burden to raise sufficient evidence.
3. Balance of probabilities is a probability which is not so high as required in a criminal
case, more probable than notbut if he probabilities are equal, it is not discharged.
John v Dharmaratnam [1962] MLJ 187 Court of Appeal
11
In a civil action, the party who makes an allegation bears the burden of proving that
allegation.
International Times v Leong Ho Yuen [1980] 2 MLJ 86 Federal Court
Where the burden is on the defendant to prove his defence and he fails to do so, he will have
to suffer the consequences provided by section 102.
Exceptions to general rule
1. Proof of particular fact
Section 103
The burden of proof as to any particular fact lies on that person who wishes the court to
believe its existence, unless it is provided by any law that the proof of that fact shall lie on
any particular person.
This exception may be used to shift the burden of proof to the defendant where the defendant
puts forward a claim which goes beyond a mere denial of the plaintiffs case and actually
raises new issues which the plaintiff did not raise.
Thus, if the plaintiff sues the defendant for negligence, the plaintiff has the burden to prove
the elements of negligence. However, if the defendant raises contributory negligence, he will
now have the legal burden to prove it on a balance of probabilities, as it is a fact that the
defendant wants the court to believe in.
Fraud
Lee You Sin v Chong Ngo Khoon [1982] 2 MLJ 15 Federal Court
The standard of proof imposed upon the plaintiff in a civil case is that of proof on a balance
of probabilities.
Chu Choon Moi v Ngan Sew Tin [1986] 1 MLJ 34 Supreme Court
Fraud whether made in civil or criminal proceedings must be proved beyond reasonable
doubt and cannot be based on suspicion and conjecture.
Ang Hiok Seng v Yim Yut Kiu [1997] 2 MLJ 45 Federal Court
Justice Mohd Azmi:
Standard of proving fraud would depend on the nature of the fraud alleged. Criminal fraud
should be proved beyond reasonable doubt, only balance of probabilities is expected of civil
fraud.
12
Eric Chan Thiam Soon v Sarawak Securities Sdn Bhd [2000] 4 MLJ 399 High Court
Ian Chin J disagreed with the distinction between civil and criminal fraud. It is difficult to
find purely civil fraud since fraud involves dishonesty which forms the basis of many
criminal offences.
Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 1 MLJ 241- Forgery cases
The standard of proof required to prove forgery in civil cases is on a balance of probabilities.
ii.
Adopted the principle in re B (Children) where the court held that there is only
one civil standard of proof and that is proof that the fact in issue more probably
occurred than not. Now, in the absence of statutory provision to the contrary, proof
in civil proceedings of facts amounting to the commission of a crime need only be
on a balance of probabilities.
The principle pronounced in Ang Hiok Seng and Lee You Sin are no longer the
law.
14