CGU Insurance Bhd v ASEAN Security Paper Mills Sdn Bhd [2006] 2 CLJ 409 and YK Fung

Securities Sdn Bhd v James Capel [1997] 4 CLJ 300, where it was held:

... Wherever the opponent has declined to avail himself of the opportunity to put his
essential and material case in cross-examination, it must follow that he believed that the
testimony given could not be disputed at all... It has been stated on high authority of the
House of Lords that this much a counsel is bound to do when cross-examining that he
must put to each of his opponent's witnesses in turn, so much of his own case as concerns
that particular witness or in which that witness had any share. If he asked no question
with regard to this, then he must be taken to accept the plaintiff's account in its
entirety...

Court of Appeal in Sivalingam a/l Periasamy v. Periasamy & Anor [1996] 4 CLJ
545; [1995] 3 MLJ 395
Aik Ming (M) Sdn Bhd & Ors v. Chang China Chuen & Ors and Another [1995]
3 CLJ 639; [1995] 2 MLJ 770 the Court of Appeal
His Lordship Gopal Sri Ram JCA (as he then was) cited the principle
with approval in the Court of Appeal decision of Aik Ming (M) Sdn
Bhd v Chang ChingChuen [1995] 2 MLJ 770 :
"It is essential that a party's case be expressly put to his opponent's
material witnesses when they are under cross-examination. A failure in
this respect may be treated as an abandonment of the pleaded case and
if a party, in the absence of valid reasons, refrains from doing so, then
he may be barred from raising it in argument. It is quite wrong to think
that this rule is confirmed to the trial of criminal causes. It applies with
equal force in the trial of civil causes as well".
***

Wong Swee Chin v. PP [1980] 1 LNS 138 (FC)

An accepted principle of law that failure by the accused to cross-examine the

prosecution witness on a crucial part of the case will amount to an acceptance of the
witness's testimony.
[7] Raja Azlan Shah, CJ held that the failure to cross-examine a witness on material
point of the case will amount to an acceptance of the witnesss testimony.
There is a general rule that failure to cross-examine a witness on a crucial part of the
case will amount to an acceptance of the witness's testimony. But as is common with
all general rules there are also exceptions ', per Raja Azlan Shah CJ.
Quoted in other FCs, i.e Mohd Zaiham Mislan v. PP [2010] 1 CLJ 1 by Augustine,
FCJ.

PP v Abang Abdul Rahman [1982] 1 MLJ 346 it was held that whenever a witness is not
cross-examined, his evidence should be accepted. The other party to the proceedings accepts
the evidence and the court should likewise accept it.

The learned trial magistrate could not have been in a position to properly weigh the
evidence of PW5 and PW6 against that of the respondent particularly on such material
matters, as he seemed to have done. This material defect in the judgment of the lower
court made it unsound and was sufficient to cast doubt on its correctness and
reliability.

Soon Pen Yam & Anor v Bank of Tokyo-Mitsubishi (Malaysia) Bhd [2004] 2 MLJ 31,
Alauddin JCA (as he then was) observed that the failure to cross-examine a witness on a
particular area of his evidence will be deemed to be an acceptance of that part of his evidence.

[83] And where a party fails to cross-examine a witness on his evidence or any
particular part of it, like the present appeal, such failure amounts to implied acceptance
of the evidence and that party is not allowed to challenge it later. The reason for this
simple rule is this. That the rule exists to ensure fairness to the witness and to the court
in that it gives an opportunity to the witness to put his case in the face of any
contradiction which he plans to make to his testimony.
[84] Witnesses should be challenged when they are in the witness box and the failure
to do so should be held against the accused.

RE Pichi Muthu [1970] 2 MLJ 143

The learned president had misdirected himself in ignoring and overlooking the
evidence of P.W. 1 and P.W. 2 and the total lack of any cross-examination of these
witnesses touching the defence which was subsequently suggested for the first time
only when the defence was called.

Mohd Hazrin bin Md Sari v Public Prosecutor [2008] 3 MLJ 798 [CoA]; [9] A material
point was not put to Appellant during cross-examination, which must also be taken into
account when assessing the credibility of the defence case. That unfortunately was not done
by the learned trial judge. Accordingly her comment on the lack of credibility of the
appellant's evidence is not beyond criticism.