Presumption 19/9/2015

Pg 117 Janab and pg 65 MP

General rule - To prove the existence of the facts to the court, Prosecution must bring in the
evidence under section 101 of EA.
Exception -
1. Admission.
- Facts that have already admitted need not to be proven unless otherwise required
by the court.
- Section 58 - civil
- Section 73AA - criminal

2. Judicial notice.

3. Presumption.
- A fact which is automatically accepted by the court without need of proof.
- Do not need to bring in evidence to prove the presume facts.
- Must read together with the burden and standard of proof. Section 101 EA says
must prove it, but if rely on presumption you do need to prove it.
- Where is applies it will relief the party who can rely on the presumption from
proving that particular fact as the court will accept the existence of the fact until
rebutted by the other party.
- The burden on that fact shifts from the party who rely on it to the other party. The
other party have to bring in evidence to disprove the presumption.
- If the other party succeed in disproving the presumption, the presumption is
rebutted.
- If the other party failed to disprove it, the presumption will be accepted by the
court.

Fist categorization
Presumption divided into 2:-
a. with basic facts (paying more attention)
b. without the basic facts

a. Presumptions with basic facts: (Focus on this)

- Involves the relationship between 2 sets of facts:-

o Basic fact
o Presumed fact without calling for proof
- If the Prosecution wants to rely presumption, he must first establish the existing of
basic fact BRD.
- If the accused wants to rely presumption, he must first establish the existing of
basic fact on BOP.
 - Once the basic fact has been established, the court either may/must accept the
presume fact to be proven it depends on the statute.
- The court will have the discretion if the statute used the word of “May”.
- If the court accepted the presume fact, the burden will shift to the other party to
rebut the existence of the presumed fact, the other party must now bring in
evidence to rebut the presumption.
- If he succeed, the fact will not establish.
- If he failed, the court will accept that the fact has been proven.
Example from section 114A EA
- Basic fact: A is found in possession of stolen goods shortly after the theft. (P has
already this BRD)
- Presumed fact: A is the thief (court may presume this fact without calling for
proof from Prosecution)
o Not necessary for the Prosecution to proof he is the thief. It is sufficient for
the Prosecution to prove he was found in possession of stolen goods.
- Burden shifts to A to rebut this presumption on the BP.
o If he succeed to rebut the presumption, he will not be found guilty.
o If he fails to rebut the presumption, the court may convict him.
It will assist the party who rely on it and reduce the work load.

b. Presumptions without basic facts (Not focus on this)

- Not necessary to establish any basic fact.

- Court will automatically accept the presumed fact.
- Example: presumption of innocence
o : presumption of sanity
- Both are rebuttable presumptions by evidence to the contrary.
o If the Prosecution want to establish you are guilt, he must prove it BRD.
o If the accused want to prove it at the time of crime you are insane, then he
must prove it at BOP.

Second Categorization
a. Presumptions of Fact (at discretion of court & Rebuttable).
- Once the basic fact has already be established, the court has the discretion either
may to accept or reject.
- If the court chooses to accept, the burden shifts to other party.
- If the court chooses not to accept, the party who rely on it must prove the presume
fact.
- It is always rebuttable by the evidence.
b. Presumptions of Law (No discretion & can be Rebuttable/Irrebuttable)
- Once basic fact has been established, the court must accept the presumption.
 - Even the court has no discretion, in some instances, it can be rebuttable. However,
in some instances, it is irrebuttable.

A. Presumptions with basic facts

Section 4 EA - Presumption.
- When dealing with presumption, it must begin with section 4.
- Section 4(1) falls under presumptions of fact which are determined by the
discretion of the court and always rebuttable.
o “May” (discretion of court)
o If the court accept it, it is still rebuttable.
o The court may still reject it and insist you to prove the fact.
- Example: Section 114 (presumption of fact)
o The court has the discretion. If the court accept it, it is still rebuttable.

- Section 4(2) falls under presumptions of law

o “Shall” (no discretion)
o Once the basic fact has been established, the court must accept the
presume fact.
o It is still rebuttable.
o The burden shifts to other party who must bring the evidence of contrary
to challenge that presumption.
o If succeed, the presumption will not be established.
o If failed, the presumption will be established.
- Example: Section 112 (rebuttable presumption of law)
o If a child is borne out of wedlock, the presumption is that the husband is
presume to be father of the child.
o The court has no discretion. But, it is till rebuttable.

- Section 4(3) is those presumptions of law which cannot be challenge by the

evidence.
o It is conclusive.
- Example: Section 113 (irrebuttable presumption of law)
o You cannot charge the boy under 13 for rape.

Section 114 EA - Court may presume existence of certain fact.

- Read based on section 4(1).
- “May presume”
- It is a very wide presumption.
- Illustration (a), (b) and (g). In particular (g).
Elements
- Deals with rebuttable presumptions facts.
 - The section uses the term “may” and if interpreted using section 4(1), the
operation of the presumptions in section 114 are not automatic but at the
discretion of the court.
- The court has a discretion either to accept the presumption and call for evidence to
the contrary or it may reject the presumption and order that the facts which are the
subject matter of the presumption to be strictly proven.
- Section 101 must be read together with section 114.
Mohamad Ali v PP
- Court held that presumption under section 114 is at the discretion of the court
because the act uses the word of “may”.
PP v Krishna Rao Gurumurthi
- Whether section 114 confined to the illustration or it can operate outside the
operation.
- The court held that section 114 is not confined to illustration.
- There is always a new way to operate outside of it.

Bold is basic fact

Italic is presume fact
Underline is the fact can be rebutted.
Illustration Para (a)
- The court may presume –
- (a) 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 possessions;
Breakdown
- If court decided not to accept the presumption then the Prosecution has to lead
evidence of these facts and prove it BRD.
- If the court accepts the presumption then the burden shifts to the Accused who has
the burden to establish that he is not the thief or handling stolen goods on the BP.
- PP v Hong Ah Huat
o The application of section 114(1) was discussed in this case.
o The court asserted that three basic facts must be established before section
114(a) will become operative.
a. the property in question must be stolen property.
b. the accused was in possession.
c. possession was soon after the theft.
- PP v Kasmin bin Soeb
o The only evidence adduced connecting the accused with the crime was the
fact that about three days after the property was stolen, he merely led the
police to the place where the property was recovered.
 o It was held that there was no evidence of possession to raise the
presumption of theft, as what was established by the Prosecution was only
the accused’s knowledge of the whereabouts of the stolen property, and
this did not fulfil the requirement of possession.

Illustration Para (b)

- The court may presume –
- (b) That an accomplice is unworthy of credit unless he is corroborated in material
particulars
o Must look at the caution.
o Must look at the corroboration.
o Must read together section 133.
(Paper 1 will not deal with corroboration)

Para (g) (very important)

- The court may presume:
- (g) That evidence which could be and is not produced would if produced be
unfavourable to the person who withholds it;
o No rebuttal stated here.
o If you cannot produce evidence which can be produced, then there is a
presumption that the evidence will go against you.
 You must rebut it by arguing that the evidence is not important.
 You must rebut it by arguing that the case already had enough
evidence.
o Where it applies the court may draw an adverse interference against the
party who has withheld the evidence.
o Effect is the party against whom such an inference is drawn will not be
able to discharge the burden of proof.
o Tool which can be used by the Defence as against the Prosecution.
o If the Defence succeeded, the Prosecution will not be able to discharge
their burden.
o It can be used during submissions at the close of the Prosecution case.
 To let the Prosecution failed to establish his prima facie case.
o It can be used at the close of the trial.
 To show the court that the case was not proved BRD.
o Evidence which is material was not proved or brought to the court.
o There is a gaps in the narrative.
o Note: courts very reluctant to draw such inference unless elements are
satisfied.
Elements of section 114(g)
- Applies to both civil and criminal cases.
- Not mandatory but discretionary as the judge will decide whether to draw adverse
inference. (section 4(1))
- Basic fact: that evidence which would be and is not produced.
- Presumed fact: that evidence would be adverse to the party withholding.
- It must be material evidence which was deliberately withheld.
- The choice of words suggest that it must be more than mere failure but deliberate
withholding of evidence with an ulterior motive.
- Reason of doing so is because if Prosecution present that material evidence, it will
collapse his case.
Withholding material evidence.
- Before the inference is drawn, it is important to ensure that the evidence withheld
is material to the case.
- Munusamy v PP (case in point)
o The evidence withheld was a witness (a typist) whom the defence argues,
was necessary to explain a clerical error made in addressing the exhibits.
o It was held that section 114(g) should not be invoked as the typist was not
a material witness to the case.
- An adverse inference can only be drawn if there is withholding or suppression of
material evidence and not merely on account of failure to obtain evidence. There
must be deliberate and ulterior motive.
- Whether it is deliberate and ulterior motive is essentially a question of fact.
- PP v DSAI (No.3)
o The accused was charged with abusing his powers as the (former) Deputy
Prime Minister in preventing the investigation into the allegation of his
sexual misconduct.
o DC argues that failure to call the PM by the Prosecution should have
drawn an adverse inference.
o However, the court held that he was not the material witness and no
adverse inference.
- Azilah Bin Hadri & Anor v PP & PP v Azilah Hadri & Anor (must read
important)
o DSP MUSA was the first person to be approached by the Razak Baginda
when the deceased came to harass him.
o DSP MUSA was allegedly the person who introduced the two accused
person to the Razak Baginda.
o He was not called as a witness.
o Defence argued that DSP MUSA was the material witness and failure to
call should draw an adverse inference.
o On appeal, whether failure to call DSP MUSA will attract the section
114(g).
o COA held that DSP MUSA is a material witness of unfolding narrative.
Failure will trigger the adverse inference against the Prosecution. Hence,
the two accused had been acquittal.
o FC held that DSP MUSA is not a material witness. Section 114(g) is not
applicable. Completely reverse in FC.
- At the end, the judge will decide whether the evidence/witness is a material
evidence/witness.
- PP v Chia Leong Foo
o A witness who was not material at Prima facie stage, but may be material
during the defence stage, resulting in adverse inference against Prosecution.
- Murugan v Lew Chu Cheong
o Held that although a potential witness was not present in court, the
inference was not drawn, as the absence of that person had been explained,
since his address was unknown.
- However, a case cannot be said to have been proved simply by explaining away
the absence of a witness whose evidence is crucial.
- Failure to produce the witness to testify may result in the prosecution’s failure to
discharge its burden.

Adverse inference in criminal cases

1. Presumption of adverse inference against the Prosecution
- Generally, Court is reluctant to draw an adverse inference against the Prosecution.
- However, in doing so, several factors are considered:-
a. As long as there is no oblique motive, the prosecution has the discretion to call
a particular witness, or to refrain from calling one in whom he does not
believe to be witness of truth.
o Khoon Chye Hin v PP
 Prosecution has a discretion to call witness provided there is no
ulterior motive.
o PP v Chee Kon Fatt
 A witness essential to the unfolding of the narrative & the
discharge of the burden must be called.
o Note: the Prosecution’s duty to discharge the case BRD will prevail over
the discretion to call witness.
o Dato Haji Azman v PP
 Prosecution must be conducted in a manner so as not to create any
unfairness to the Accused and the greater demands of justice &
truth.
b. Whether the Prosecution had offered such witness to the Defence.
o The practice of making available a witness is to prevent the Defence from
commenting upon the honesty of the Prosecution.
o Samsudin v PP
 GR no adverse inference if witness has been offered to that defence,
but equally no automatic adverse inference just because witness is
not offered.
o PP v Dato’ Seri Anwar Ibrahim (No 3)
 The fact that the Prosecution witnesses were made available to the
defence was one of the factor which precluded an adverse inference
from being drawn.
  The offering of a witness, however, is not a guarantee for avoiding
an adverse inference, and conversely, the mere failure by the
Prosecution to offer the witness to the Defence may not be
sufficient for adverse comments.
o PP v Azilah Hadri & Anor
c. Whether there was already sufficient evidence to support the Prosecution’s
case.
o Namasiyiam v PP
 If Prosecution has adduced other evidence sufficient to discharge
the burden - no adverse inference.
o PP v Dato’ Seri Anwar Ibrahim (No 3)
 The fact that the prosecution’s evidence was already sufficient in
establishing a prima facie case.
 No adverse inference was drawn even though the Prosecution had
failed to produce certain witnesses such as PM and former IGP.

2. Presumption of adverse inference against the accused

- General rule is No adverse inference against the accused.
- Goh Ah Yew v PP
o GR no adverse inference against the accused because he is not under the
burden of proof.
- The principle of Goh Ah Yew was followed in Illian v PP
o It was held that since all that the accused person had to do in establishing
the defence of alibi was to raise a reasonable doubt.
o The fact that the accused failed to produce a particular witness could not
be the basis of an adverse inference.
- Exception is where the burden of proof of particular fact is on the accused, failure
to call a material witness can be drawn an adverse inference against him.
- Baharom v PP
o Exception is when the burden is on the accused to prove. Adverse
inference will be drawn against him if he fails to prove.
o The accused had been convicted murder and he relied on the defence of
insanity.
o The court held that the accused could have called the prison medical
officer to testify his state of mind.
o Failure to produce this evidence will entitle the court to draw an adverse
inference.

Civil cases
- Plaintiff or the claimant has the burden of proof and the adverse inference will
draw against him if he fails to call up the material witness.
- General rule it will not draw an adverse inference against the defendant since he
has no burden of proof.
- Selvaduray v Chinniah
 o It was held that since the burden of proof was not on the defendant, his
failure to call a material witness would not raise an adverse inference.
-
- Exception is when the burden of proof has shifted to the accused, if he failed to
call up material witness, an adverse inference will draw against him.
Bold is basic fact
Italic is presume fact
Underline is the fact can be rebutted.
114A. Presumption of fact in publication
- Section 114A introduces a new section to provide for the presumption of fact in
publication in order to facilitate the identification and proving of the identity of
anonymous person involved in publication through the internet.
- In essence, this amendment attempts to hold liable the owners of internet site, etc.
for any offensive publication posted through their registered networks or data
processing device by raising the presumption of guilt subject to the said person
proving his innocence.

(1) A person whose name…publication is presumed to have published…publication

unless the contrary is proved.
- The implication of sub-s (1) is that you are deemed to have published anything
posted on the internet if that posting is published under your name.
- Thus, if someone creates as much as an email in your name, you are presumed to
have published the contents sent from that email address, unless you prove
otherwise.
- What may be of concern is that the phrase 'or who, in any manner, facilitates to
publish or republish the publication' in sub-s (1), as the meaning of 'facilitates'
may be very wide, thus capturing categories of persons who may not even have
any specific knowledge of the contents of the publication.

(2) A person who is registered…from is presumed to be the person…publication

unless the contrary is proved.
- The implication of sub-s (2) is that if a posting originates from your account with
a network service provider, you are deemed to be the publisher unless the contrary
is proved.
- This could affect restaurant operators who commonly provide free wireless
fidelity ('wifi') services.
- If a person accesses these free wifi services and posts comments, the restaurant
operator is deemed to be the pub-lisher.
- It must also be remembered that one does not even have to be in the premises of
the restaurant to access such services.
- Subsection (2) would even affect individual subscribers who do not secure their
wifi account, the subscriber of the account is presumed to be the publisher.
(3) Any person who has in his custody…originates from is presumed to have
published…publication unless the contrary is proven.
- A further presumption in sub-s (3) relates to the contents that originate from a
computer.
- The first aspect of sub-s (3) that needs to be emphasised is the meaning of
'computer'. The definition of computer is intended to encompass a wide array of
devices. Text messages sent from a cell-phone, therefore, would amount to
publication that originates from a computer.
- The second aspect sub-s (3) is the phrase 'custody or control'. Custody and
control are concepts which have long been debated and they are not necessarily
synonymous with ownership. This would, in effect, mean that you do not have to
be the owner of a computer to be deemed to be the publisher of materials that
originate from such computer.
Elements
- Applies to both civil (online defamation) & criminal (Penal Code, Computer
Crimes Act 1997, Communications & Multimedia Act 1998, sedition etc)
- The presumption could apply to any publication on the internet (email, blogs,
online forums, social networking sites etc).
- It’s clear that the presumption is rebuttable by evidence to the contrary, whether is
in civil or criminal, it have to rebut in balance of probabilities.
- Section 114A is rebuttable.
The Concerns
- Section 114A is based on the owner-onus principle. This principle is commonly
used in traffic offences where the owner of the vehicle is guilty of an offence
regardless of who was actually driving that vehicle at the time of the infraction.
- Some argued it is not suitable to use this principle in the technology as the
offender might impersonate to other to commit crime.
- Some also argued that the section tends to impose the burden on a person to prove
his innocence as opposed to the prosecution to prove his guilt.
- Nevertheless, section 114A of the Evidence Act is also viewed as an inroad into
the freedom of speech
Issues
1. Whether the presumption is discretionary or mandatory.
- The section 114A used the word of “is presumed” which is a new term other than
“may or shall”. Thus, section 4(1) cannot be brought in to interpret the
presumption under section 114A.
- The words 'is presumed' may give rise to the argument that the presumption is
automatic, hence giving the court no discretion at all, once the basic facts are
proved.
- The heading of section 114A “Presumption of Fact” suggested that the court has
the discretion to invoke such presumption and the discretion should be based on
the facts and circumstances of each case.
- Tong Seak Kan v Loke Ah Kin
o High Court in civil defamation.
o The judge in this case held that the presumption is automatic. Section
114A is automatic and not discretionary. However, it is rebuttable.
- However, based on the article wrote by Mariette Peters it is submitted therefore,
that the presumption in s 114A should not be interpreted as an automatic one, as
the words 'is presumed' in the section should be read as 'may presumed'.
- Whilst the court should consider all the circumstances of the case before it
invokes the presumption, the adverse party should be given the opportunity of
convincing the court not to do so.

2. Whether section 114A is a presumption of guilt.

- It is not accurate to conclude that section 114A is a presumption of guilt.
- Firstly, it is a presumption that may apply also to civil cases, thus it is a
misconceived notion to conclude that it automatically presumes guilt.
- Secondly, section 114A is not a provision that creates an offence in itself.
- Thirdly, it is for the court ultimately to decide whether the presumption should be
invoked.
- Fourthly, defences contained in those substantive provisions of the law would be
available to the person being charged or sued on the basis of the publication.
- Fifthly, it must also be remembered that since the prosecution's standard of proof
is beyond a reasonable doubt, it may not be accurate to conclude that section
114A by itself sustains a conviction.
o PP v Muslim bin Ahmad
 The accused was being charged under s 233 of the
Communications and Multimedia Act 1998 for posting insulting
comments about the Sultan of Perak on the Sultan's portal.
 The session’s judge acquitted him on the basis that although the
comments were traced to his IP address, there was a possibility of
someone else using that IP address. This therefore, raised a doubt
in the prosecution's case.

3. The reference to name, photograph and pseudonym in s 114A is vague.

- According to Reg 4 of the National Registration Regulations 1990, a person's
name refers to his full name as it appears in his certificate of birth.
- However, in the course of businesses or daily affairs, the use of the full name of a
person is not common.
- In fact, most persons use their first name, one of their names, abbreviated name or
even pen-name.
- The issue that arises therefore is whether these are included in 'name' in s 114A.
- It appears that the mere attribution of a person's name to a publication may not be
sufficient to prefer a charge or attach liability to that person named.
 4. Other issues
- Does it have a chilling effect on the presumption of innocence?? Yes, the burden
of proof has shifted to the accused, it has reduced the duty of the Prosecution to
prove its case BRD.
- What would constitute evidence to the contrary?? Prosecution in a criminal case
with the full resources of the state at its disposal face a greater challenge in
proving the publication. However, a private citizen is even facing a much difficult
challenge to prove the contrary as he has only possess limited resources.
- The impact in civil cases may be even graver. “He who asserts, just needs to
assert”. Plaintiff has to prove it (online defamation) but need not to prove the
publication. This is called chilling effect.

It can be concluded that whatever interpretation is to the section, it may be misleading to

suggest that section 114A is an automatic presumption of guilt.

B. Presumptions of Law (No discretion & can be Rebuttable/Irrebuttable)

Meaning of 'publication'
For the purposes of this section, 'publication' means 'a statement or a representation, whether
in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of
the computer.'
6 MLJ ciii at cix
Although the intention of Parliament in drafting the section may have been to address internet
anonymity, the definition raises several questions related to whether publication is confined
only to the online form. One may interpret this definition to mean that the reference to
'statement or representation' should be read dis-junctively from the phrase 'or other form
displayed on the screen of the computer'. On the basis of such interpretation, this would mean
that 'statement or representation, whether written, printed, pictorial, film, graphical, acoustic'
are those other than that 'displayed on the screen of the computer'.
An alternative interpretation is that the 'statement or representation' intended to be captured
by the definition are those that must be 'displayed on the screen of the computer'. Although
this interpretation is aligned with the rationale of s 114A, it makes it difficult to envisage how
statements or representations that are printed could, at the same time, be displayed on the
screen of the computer, bearing in mind that the word 'print-ed'18 implies that the
publication is in hardcopy -- unless it envisages a publication that is written or printed and
perhaps displayed on the screen of the computer using a scanning machine.

Section 88 of the Evidence Act

Section 114A may also be inconsistent with other provisions in the Evidence Act. An
example of this is s 88, which deals with the presumption as to the telegraphic messages.19
Although the section presumes that the telegraphic message that was sent from the telegraph
office to the addressee corresponds with the tele-graphic message delivered to that
telegraphic office for transmission, it specifically prohibits the court from presuming the
identity of the person who sent that message. Section 88 reads as follows:

The court may presume that a message forwarded from a telegraph office to the person to
whom it purports to be addressed corresponds with a message delivered for transmission at
the office from which the message purports to be sent; but the court shall not make any
presumption as to the person by whom the message was delivered for transmission.

If the court shall not make any presumption as to the identity of the person who sent the
message, the issue that arises is whether it makes sense to allow the court to presume, based
on s 114A, the identity of the person who publishes the messages over the electronic medium.