THE SCOPE AND THE EFFECTS

OF SECTION 4 OF EVIDENCE
ACT 1950 (EA)
By Florence A. Jefferson
 SECTION 4(1) OF EVIDENCE ACT
1950
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.

In other words, the Court may exercise its

discretion in the application. There are
several provisions in the Act that give the
court the discretion to presume certain facts.
SECTION 86: PRESUMPTION OF GENUINENESS &
ACCURACY OF COPIES OF FOREIGN JUDICIAL
RECORDS

The Court may presume that any document purporting to be a

certified copy of any judicial record of any country not being a part
of the Commonwealth is genuine & accurate if the document
purports to be certified in any manner which is certified by any
representative of the YDPA, in or for such country, to be the manner
commonly in use in that country for the certification of copies of
judicial records.
EDMUND MING KWAN V EXTRA EXCEL
SDN BHD [2013] 4 CLJ 842

This case involves a minority shareholder filing a

petition for alleged breach of fiduciary duties and the
filing of a cross-petition for alleged oppression by the
first petitioner.
Judgment: The Court may not presume that the Utah
Court transcripts were genuine or accurate as they
were not duly certified as true copies, since there was
no production of any certification from the Utah Court
or its officers having lawful custody of the Utah Court
transcripts that they were true copies.
 SECTION 90: PRESUMPTION OF EXECUTION
OF DOCUMENTS 20 YEARS OLD

Where any document purporting or proved to be 20 years old is produced from any
custody which the court in the particular case considers proper, the Court may
presume that the signature and every part of the document which purports to be in
the handwriting of any particular person is in that persons handwriting, and in the
case of a document executed or attested, that it was duly executed and attested by
the persons whom it purports to be executed and attested.

Note: In this section, the person presenting the document is relieved of the necessity
of proving that it was executed by the person who is purported to be the executant.
 GHAZALI BIN ARIFFIN V AHMAD BIN BAKAR
[1992] 1 MLJ 282
This case involves a document of a sale and purchase agreement. Where the plaintiff is the son of

Ariffin bin Osman and the administrator of his estate. The defendants are the beneficiaries of one

Bakar bin Awang Ahmad's estate. Both Ariffin and Bakar have died. The plaintiff pleaded that his

father, Ariffin, purchased from Bakar 1/3 of Bakar's undivided share of the land. The land was alleged

to have been purchased pursuant to a sale and purchase agreement dated according to the Muslim

calendar so the now registered owners of the said share.

The plaintiff seeks a declaration that the defendants are bare trustees of the said share and for an

order that the defendants do execute a transfer of the said share to him as an administrator of the

estate of Ariffin bin Osman, deceased.

In this case, the evidence shows that the purported purchaser of the land, Ariffin, had the document of

title in respect of the land in his possession and was inoccupation of the land until he himself died.
 JUDGMENTS
The Court may presume the genuineness of the signature of the purported
vendor and purchaser, and the thumbprint of the purported person who
witnesses the execution of the agreement.

Reasoning: No evidence as to the time when Bakar died. And there is

nothing to indicate that he could not have signed the document because
he had died earlier. On the other hand, the evidence shows that the
purported purchaser of the land, Ariffin, had the document of title in
respect of the land in his possession and was inoccupation of the land until
he himself died in 1984. The inference is that having regard to the common
course of natural events, Bakar must have passed it to him.

In this case, the court considered the evidence external and internal of the
document in order to enable them to decide whether in any particular
case they should or should not presume proper signature and execution.
 SECTION 114: GENERAL PRESUMPTION

The Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human
conduct and public & private business, in their relation to the facts of the particular
case.

For instance: Presumption of theft or receipt of stolen property in Illustration (a) of

Section 114 provides that

The Court may presume that a man who is in possession of stolen goods soon after the
theft is either the thief or has received the goods knowing them to be stolen, unless he
can account for his possession
 PUBLIC PROSECUTOR V HONG AH HUAT
[1971] 1 MLJ 52
Before Section 114 can be applied, it must be proved,
a) That the property is stolen;
b) That a person is in the possession of the property and
c) That this was soon after the theft

Note: The word possession implies

A physical capacity to deal with a thing as we like to the exclusion of everyone, and
a determination to exercise that a physical power on ones own behalf.
Dominion and consciousness in the mind of the person having dominion over the
object.
Meaning, it must be conscious & intelligent possession, not merely the physical
presence of the accused in proximity or even close proximity to the object.
 PUBLIC PROSECUTOR V KASMIN BIN SOEB
[1974] 1 MLJ 230
In this case, the only evidence adduced connecting the accused with the
crime was the fact that about 3 days after the property was stolen, he merely
led the police to the place where the property was recovered.

Judgement: No evidence of possession to raise the presumption of theft.

Reason: Prosecution had only established the accuseds knowledge of the

whereabouts of the stolen property. In short, this did not fulfil the requirement of
possession. The possession of stolen property must have been discovered soon
after.
 PUBLIC PROSECUTOR V FOO KIM LAI
[2009] 1 MLJ 211
In this case, the vehicle was discovered 5 days after it was reported to have been stolen.

Judgement: The period of 5 days was too long a time for the presumption to be invoked.

BUT

In the case of Public Prosecutor v Wan Mohd Rahim [2007] 5 CLJ 708, a time lapse of 17
days to dispose a motorcycle was not a long period to be precluded the application of
the presumption in Section 114(a) of the Act.

Note: Despite the fact that the Court has discretion to decide that the accused is the
receiver of the stolen property, the Court also has the right to find on the facts of the case
that he was disposing.
Illustration (b): Presumption of uncreditworthiness of accomplices
An accomplice may be presumed to be unworthy of credit unless he is corroborated in
material particulars.
Whether the presumption applies or otherwise, the court will consider the fact to be taken
into account. Refer to clarification in (ii) & (iii) of Illustration (b).
For instance, A is a person of the highest character is tried for causing a mans death by an
act of negligence in arranging for certain machinery. B on the other hand, is a person of
equally good character who also took part in the arrangement, describes precisely what was
done, admits and explains the common carelessness of A and himself.
Then, in (iii) states that a crime is committed by several persons. A, B and C are criminals
captured on the spot & kept apart from each other. Each gives an account of the crime
implicating D, and the accounts corroborate each other in such a manner as to render
previous concert highly probable.
 SECTION 114 ILLUSTRATION (E): PRESUMPTION OF
REGULARITY OF JUDICIAL AND OFFICIAL ACTS
What: The Court may presume that judicial and official acts have been regularly performed.
Case: Public Prosecutor v Mohamad Aziz Musaini [1999] 6 CLJ 221
Fact: The accused was charged with possession of drugs (Section 6 of Dangerous Drugs Act 1952). The
Chemists evidence found that the substance is a cannabis.
Held: Since the evidence brought by the Chemist was not challenged, the Court invoked the
presumption in this Illustration and presumed that the official acts of the Chemist had been regularly
performed.
However the Court will not invoke the presumption if it is regarding the deficiency of proofof an
ingredient in the facts.
Case: Loo Keck Leong v Public Prosecutor [1992] 2 MLJ 177
Facts: The accused was charged with trafficking cannabis but the Chemist was not sure of the
substance.
Held: It was inappropriate to invoke the presumption to supply the deficiency in the proof of the
ingredient, in light of the objections raised by the defence and doubts expressed by the Chemist
himself. Since the presumption is rebuttable and the Court has the discretion in invoking it.
 ILLUSTRATION (G)-(I)
Illustration (g): The Court may presume that the evidence which could be and is not
produced would, if produced, be unfavourable to the person who withholds it.

Illustration (h): The Court may presume that if a man refuses to answer a question which
he is not compelled to answer by law, the answer if given would be unfavourable to
him. The Court refers to clarification (ix) which states that:

A man refuses to answer a question which he is not compelled by law to answer, but
the answer to it might cause loss to him in matters unconnected with the matter in
relation to which it is asked.

Illustration (i): The Court may presume that when a document creating an obligation is
in the hands of the obligator, the obligation has been discharged.
 SECTION 114A: PRESUMPTION OF
FACT IN PUBLICATION
Subsection (1): If a persons name, photograph or pseudonym appears on
any publication, presumably on the Internet, representing himself as the
publisher, he is presumed to have published the contents if such publication.

Meaning, if someone creates an email in another persons name, the person

is presumed to have published the contents sent from the email address
unless if s/he proves otherwise.

Reason: A person is deemed to have published it if the posting published is

under his/her name.
 Subsection (2): If a posting comes from a persons account with a network
service provider, the person is deemed to be the publisher of the post unless
s/he can prove otherwise.

For instance, if someone accesses free wi-fi services and posts defamatory
comments about the other person in a hotel, the hotel owner is deemed to
be the publisher because a person does not have to be in the place to
access such services.

Negative: This would affect individual subscribers who do not secure their Wi-
Fi account and subsequently attracting piggy back riders.
SECTION 4(2) OF THE EVIDENCE ACT
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.

In short, the Court must invoke the presumption once the basic
facts are established.
In Sections 79, 80, 81, 82 , 83 , 84 , 85 & 89 of the Evidence Act,
the word shall presume are present.
FOR INSTANCE: SECTION 81 (PRESUMPTION
OF GAZETTES & NEWSPAPERS)
Case: Arunamari Plantations Sdn Bhd v Lembaga Minyak Sawit
Malaysia [2011] 1 MLJ 705

In this case, the English Version of the Gazettes had shown that there
was a consultation took place with the Minister of Finance

Pertaining to Section 81, the Court shall presume the genuineness of

every document purporting to be the Gazettes.
 SECTION 4(3): IRREBUTTABLE
PRESUMPTIONS OF LAW

Where one fact is declared by the Act to be conclusive proof of another, the
Court must, on proof of the one fact, regard the other as proved, and may not
allow evidence to be given for the purpose of disapproving it.

In other words, once a party has established the basic facts, the adverse party
cannot rebut it.

113 of the Evidence Act and Section 82 of Penal Code are irrebuttable
presumption law

For instance: It shall be irrebuttable presumption of law that a boy under the
age of 13 years is incapable of committing rape Section 113 of the Act
 CONCLUSION
Presumption of fact:

A court when it may presume a fact, has a discretion to presume it as proved, or

call for confirmatory evidence of it, as the circumstances require. Presumptions of
fact or natural presumptions have been described as inferences which are
naturally and logically drawn from experience and observation of the course of
nature, the constitution of human mind, the springs of human action and usages
and habits of society.

Rebuttable presumption of law:

Basic fact in the absence of further evidencemust be presumed. The party relying
on this presumption bears the burden of establishing the basic fact. Once he has
adduced sufficient evidence on that fact, his opponent bears the legal burden of
disproving the presumed fact.

Irrebuttable presumption of Law

This presumption shall stand good only until it is disproved.