LAW 4111

EVIDENCE LAW II

SEMESTER 1 2020/2021

CASE REVIEW

NAME 1. MIFHAN KARTIKA BINTI MOHD GHANI (1620514)

2. NURUL NORHIDAYAH BINTI MOHAMAD SAZALI
(1621050)

SECTION 2

LECTURER SIR IBRAHIM BIN ISMAIL

TOPIC Q4 : ADMISSIBILITY OF PRIMARY & SECONDARY DOCUMENT

INTRODUCTION

The principle of law is that, where you cannot get the best possible evidence, you must
take the next. This means if one of the evidence was not made available to be adduced to the
court, hence the party need to adduce next evidence.

Hence the main discussion of this case review, will be discussing the cases which
focusing on how the court requires the party in the case to adduce either the primary evidence
or the secondary documents. So, the main discussion of this case review will be focusing on
the admissibility of primary and secondary evidence by analyzing the case that had been
decided in past and the case decided in current time.

At the end of the discussion, the result of the case review will be discussed on how the
development of this principle been made in the decided cases.

FIRST CASE REVIEW

KPM Khidmat Sdn Bhd v Tey Kim Suei [1994] 2 MLJ 627

Gunn Chit Tuan (Malaya) CJ, Eusoff Chin and Mohamed Dzaiddin SCJJ

Supreme Court (Penang)

1.0 Introduction
This decision of the Supreme Court (Penang) in KPM Khidmat Sdn Bhd v Tey Kim Suei
[1994] 2 MLJ 627 dated 26 May 1994 was delivered by Gunn Chit Tuan (Malaya) CJ, Eusoff
Chin and Mohamed Dzaiddin SCJJ, the judges of the case at the time in an appeal on a matter
of a money claim for works done in the clearing, terracing, construction of field roads, and
others of estate land under five agreements entered into between the appellant and the
respondent in 1979 and 1980. The parties involved in the case were KPM Khidmat Sdn Bhd
as an appellant and Tey Kim Suei as a respondent.

2.0 Summary of facts

The background facts can briefly summarised as follows. In this case, it can be seen that the
respondent brought an action against the appellant for the recovery of a sum of
RM1,581,870.90 together with interest and costs, which the respondent claimed was the sum
due to him for works done under certain agreements ('the agreements'). The respondent testified
that after completing the works under the agreements, he submitted his claims by way of
summary of accounts prepared by Ah Lian, a clerk. Apparently, the summary of accounts were
taken from the respondent's own record book in which was recorded the actual work completed
by him. He was however, unable to produce the book in court. Based on the above evidence of
the respondent, there being no other supporting evidence except the summary of accounts, the
judicial commissioner found on a balance of probability that the respondent had discharged the
burden of proof of his loss and accordingly, entered judgment for the sum of RM1,581,870.90
with interest and costs.

3.0 Issues
The issues that had arisen in the case was whether summary of accounts admissible.
 4.0 Judgement

Several significant aspects of the decision of the court as to how valuations are to be conducted
and expressed are highlighted below. The court held that:-

(1) The judicial commissioner was wrong in law in relying on the summary of
accounts prepared by Ah Lian, who was not called as a witness nor made available
to the defendant. Moreover, the record book of the respondent, which was the
source document upon which the summary of accounts was prepared, was never
produced and the respondent had not been called to explain the facts and the basis
of the calculation of the amount claimed.
(2) When documentary evidence is tendered, primary evidence of the said document
must be adduced except if it can be shown that the original record had been lost or
destroyed. The burden of proving that the record book had been lost or destroyed
lies on the party seeking to adduce secondary evidence of the contents of the record
book. This the respondent had not done.
(3) Here, although the appellant did not challenge the truth of the summary of
accounts, the appellant never agreed to dispense with formal proof of the debt.
(4) Since the summary of accounts were inadmissible, the respondent could not rely
on any documentary evidence to substantiate his claim. His claim therefore failed.

5.0 Comment and Analysis

In my opinion, I agreed with the decision made by the judge in the Supreme Court. The court
had decided the case by relying on the Section 65 (1) of Evidence Act 1950 which the principle
laid down in this section clearly mentioned the exception to the to the general rule of
documentary evidence. Generally, when documentary evidence is tendered, primary evidence
of the said document must be adduced. This general rule stated under Section 64 of the
Evidence Act 1950. However, Section 65 of the Evidence Act 1950 had provided several
circumstances that allows secondary evidence to be adduced as evidence.

In this case, the respondent had adduced the summary of accounts prepared by Ah Lian, a clerk
as evidence. It has to be proved by calling the maker to explain the facts and the basis of the
calculation of the amount claimed. Moreover, the record book upon which the maker based her
summary must be in evidence. In this case, where the summary was based on the record kept
by the respondent, such record must be produced except if it can be shown that the original
record is lost or has been destroyed. The burden of proving that the record book is lost or
destroyed lies on the party who is seeking to adduce secondary evidence of the contents of the
record book. This follows the rule stated under Section 65(1) (c) of the Evidence Act 1950
which the court can rely on the summary of accounts only when the respondent satisfies the
court that his record book was lost to enable secondary evidence relating to the said book to be
given but this the respondent had not done.

The court also were also referred by counsel to the decision of Edgar Joseph Jr J in Popular
Industries Ltd v Eastern Garment Manufacturing Sdn Bhd in deciding based on the facts that
the appellant's counsel in the court below did not dispute the contents of the summary of
accounts. This fact had allowed the learned judge held that as the appellant did not challenge
the truth of the summary of accounts, he was of the view that the contents were true and
admissible despite the fact that the appellant never agreed to dispense with formal proof of the
debt. The Supreme Court had relied on the case of Popular Industries Ltd v Eastern Garment
Manufacturing Sdn Bhd because the facts of this case had stated that there was no objection to
the accounts books relied as evidence were never produced and the defendants never dispensed
with formal proof of the loss of profits alleged or at all but only render such oral evidence of
Mr So who the accountant. The court held that the burden of proof lies on the person wishing
to adduce the secondary evidence under Section 65 of Evidence Act 1950 which followed by
Section 104 of Evidence Act 1950 illustration (b). There was no objection and is irrelevant and
the evidence is inadmissible as no legal foundation was laid. Thus, the facts that the appellant's
counsel in the court below did not dispute the contents of the summary of accounts is irrelevant
and the summary of accounts still inadmissible as evidence.

6.0 Conclusion

In conclusion, the appellant won the appeal of the case in the Supreme Court as the court held
that appeal was allowed with costs and the judgment of the learned judicial commissioner is
set aside. The Supreme Court also ordered the deposit of the appeal be refunded to the
appellant. The reason for such a decision is because the learned judicial commissioner was
wrong in relying on the summary of accounts as sufficient proof of the debt due to the
respondent bearing in mind that the burden of proof always lies on the respondent to prove his
claim. The summary of accounts is inadmissible for reasons that as there is no documentary
evidence before the court which the respondent can rely to substantiate his claim. Moreover,
the respondent oral evidence regarding the works undertaken in the five estates was most
unsatisfactory. He never submitted the particulars of works to the appellant, but merely relied
on the summary of works.
 SECOND CASE : SRI PAANDI RESTAURANT SDN BHD & ANOR V
SARASWATHY A/P KESAVAN & ORS [2019] 11 MLJ 421
HIGH COURT (KUALA LUMPUR)
WONG KIAN KHEONG J

1.0 Introduction
This application concerned the ownership and use of Sri Paandi (‘SP’) trademarks. The first
plaintiff in this case was the registered proprietor of several trademarks and the second
plaintiff was the registered owner of the SP trademark. Meanwhile, the first defendant was
the sole proprietor of five businesses, namely Sri Paandi PJ (SPPJ), Restoran Sri Paandi
Corner (RSPC), Restoran Sri Paandi Kajang (RSPK), Sri Paandi Music (SP Music) and also
Restoran Sri Paandi Gasing (RPSG). The second defendant was a holding company, the third
defendant operated a grocery and the fourth defendant operated a restaurant in Puchong.

2.0 Summary of facts

The plaintiffs claimed for firstly, that the three assignments signed in India were valid and had
assigned SP trademarks with their goodwill to the first plaintiff. Secondly, the first to fourth
defendants had infringed a trademark belonging to the plaintiffs. Lastly, the defendants passed
off their business as the business of the first plaintiff. The defendants filed a counterclaim which
claimed for the following: (1) a court order to expunge the trademarks owned by the plaintiffs
from the register of trademarks (‘the register’); (2) a declaration that the defendants were
entitled to continue to use SP trademarks in any form; and (3) a perpetual injunction to restrain
the plaintiffs from interfering with the defendants use of SP.

The SP trademark was first used in 1987 by a restaurant at Brickfields (‘SP Brickfields') which
consisted of two partners which formed the first partnership. Five partners subsequently
joined the first partnership. The business registration of the first partnership expired on 24
January 2004 which was not renewed. On 17 May 2006 a second partnership was formed with
the name Sri Paandi Restaurant to carry on the restaurant business of SP Brickfields which
consisted of seven partners which included the second plaintiff. All the partners in the second
partnership resigned save for the second plaintiff, hence the second plaintiff was presently the
sole proprietor of SP Brickfields who still operated a restaurant business.

3.0 Issues

One of the issue discussed in this case is whether the ID documents can be admissible as
evidence to prove the ownership of the trademark.

4.0 Judgement
As the ID documents had not been classified as Part A or Part B documents under
Order 34 Rules 2(2)(d) and (e)(i) of the Rules of Court 2012, to admit ID documents as
evidence, the party tendering the ID documents has to satisfy the conditions to identify the
authenticity of the document. Firstly, the person who intended to adduce the document either
call the makers of the documents or to rely on any one of the exceptions to the hearsay rule.
Secondly, to adduce primary evidence or secondary evidence.
In this case, the parties tendering the ID documents had not fulfilled the first condition,
which they failed to adduce the maker of the documents, the court could not consider the
contents of the ID documents and the oral evidence adduced concerning the ID documents.

5.0 Comment and Analysis

I agree with the decision of the court in this case as the court refers to Order 34 Rules
2(2)(d) and (e)(i) of the Rules of Court 2012 respectively, which mention that, in the case of
admitting the ID documents as evidence, the party tendering the ID documents has to satisfy
the following two conditions which firstly confer that the party intended to adduce the
documents either to call the makers of the ID documents so as to admit as evidence the ID
documents or to rely on any one of the exceptions to hearsay rule. Second condition is that,
the party need to adduce either Primary Evidence as being defined in Section 62 of the
Evidence Act as required by Section 64 of the Evidence Act which requires the party to adduce
the primary evidence of the adduced documents to the court, or if there is no primary evidence,
then the party must adduce secondary which defined under Section 63 of the Evidence Act if
the circumstances of the case fall within the exceptions mentioned under Section 65(2) of the
Evidence Act 1950.
The court refers to the case of KTL Sdn Bhd v Leong Oow Lai [2014] MLJU 1405,
whereas the court in this case referred to Order 34 rules 2(2)(d), (e)(i) and (ii) of the Rules of
Court 2012 that provides the parties may, at the pre-trial management, agree to both the
authenticity and contents of documents to be adduced and used at trial and it must be put in
Part A Documents. Second, the parties may agree only to the authenticity but dispute the
contents of documents to be adduced and used at trial and shall be marked under Part B
Documents. Part B Documents are documents where parties agree to their authenticity but
dispute the weight to be attached to these documents. Lastly, the parties may dispute both the
authenticity and contents of documents to be adduced and used at trial to be put in Part C
Documents.
If a document is classified as a Part C Document, the party adducing that document
bears the evidential burden to satisfy the court on a balance of probabilities based on two
conditions namely the maker of the Part C Document has to be called as a witness as been
required under Section 73A(1)(a) of Evidence Act 1950 if and primary evidence of the Part
C Document as understood in s62 EA must be adduced in court as required by s64 EA. If
primary evidence of a Part C Document is not available, s64 EA provides that secondary
evidence within the meaning of s63(a) to (e) EA of the Part C Document can only be admitted
as evidence if there is proof of the application of any one of the paragraphs in s65(1)(a) to (g)
EA.
The 2 Conditions of Admissibility need not be fulfilled in respect of Part A Documents
and Part B Documents.
Comparing the referred case into the current case, the court held that, as the ID documents
have not been classified as Part A or Part B documents, the party tendering the ID documents
must satisfy the conditions to identify the authenticity of the document which either to call
the maker or to rely on exceptions to hearsay and to adduce primary evidence or secondary
evidence to prove the authenticity of the documents tendered.

6.0 Conclusion

As the parties tendering the ID documents in this case have not fulfilled the first
condition, the court does not consider the contents of the ID documents and the oral evidence
adduced as secondary evidence concerning the ID documents.

COMPARISON BETWEEN OLD CASE AND NEW CASE ON THE ADMISSIBILITY

OF PRIMARY AND SECONDARY EVIDENCE

In the case of KPM Khidmat Sdn Bhd v Tey Kim Suei [1994] 2 MLJ 627, it stated the principle
on admissibility documentary evidence. This case laid down that the general rule is that the
documents must be proved by primary evidence as followed the Section 64 of the Evidence
Act 1950. However, there is an exception in several circumstances in which secondary
evidence is admissible as evidence as followed Section 65(1) of the Evidence Act 1950. This
case shows that the respondent only relied on a summary of accounts as evidence although the
respondent needed to bring the record book which is the primary evidence. The court
mentioned that the summary of accounts can only be admissible as evidence only when it can
be shown that the original record had been lost or destroyed. The respondent carries the burden
of proving that the record book had been lost or destroyed as it lies on the party seeking to
adduce secondary evidence of the contents of the record book. This the respondent had not
done. Thus, the court concluded that the summary of accounts is inadmissible as evidence.

In the case of Sri Paandi Restaurant Sdn Bhd & Anor v Saraswathy a/p Kesavan & Ors [2019]
11 MLJ 421, the main concern in this case is regarding the admissibility of the document if the
maker of the document was not being called as a witness to give testimony on the authenticity
of the document in court. The documents that had been adduced in this case were not being
identified as Part A or Part B and identified by certain witnesses marked as ID documents.

Since the documents were not being identified as Part A or Part B in accordance with Order 34
Rule 2(2) of the Rules of Court, this means the authenticity of the documents was being
disputed by parties. Hence, the court relies on the rules that the authenticity of the documents
need to fulfill two conditions in order to adduce it to the court. Firstly, the maker of the
documents needs to be called as a witness to testify the authenticity, or the parties need to rely
on the exceptions on hearsay. Secondly, the primary evidence of the document needs to be
adduced to the court & if the primary evidence is not available, the party needs to adduce
secondary documents. In this case, the party adduced witnesses as a secondary evidence to
testify the authenticity of the documents, however, the maker of the document was not being
called.

Therefore, the court does not consider the admissibility of the documents as well as the oral
evidence since the first condition was not being fulfilled. This means, the court will not
consider the admissibility of a secondary document if the first condition i.e. to call the maker
of the document was not being fulfilled.

Comparing the old case with the new case, both of the cases use the same principle on the
admissibility of documentary evidence which basically, it must be proven with primary
evidence first but there are several exceptions that allow secondary evidence to be admissible
as evidence.

CONCLUSION

In conclusion, the development of this principle being made in the decided cases still contained
the same principle.