Topic 2: Burden of Proof

2.0 Introduction

- The party who bears the burden of proof is under a duty to adduce evidence of the existence/non-
existence of that fact.
- General principle: “He who asserts must prove”, reflected in s.101 EA 1950:
(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the
existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, the burden of proof lies on that person.
- Illustrations
a) A desires a court to give judgment that B shall be punished for a crime which A says B has
committed. A must prove that B has committed the crime.
b) A desires a court to give judgment that he is entitled to certain land in the possession of B by
reason of facts which he asserts and which B. denies to be true. A. must prove the existence of
those facts.
- S.3 EA: interpretation of "proved", "disproved" and "not proved" [confusing interpretations but still
must cite]
• Proved: a fact is said to be proved when the court believes it exist/considers its existence so
probable that a prudent man, will act upon the supposition that it exists
• Disproved: a fact is said to be ‘disproved’ when the court believes it does not exist/considers its
non-existence so probable that a prudent man, will act upon the supposition that it does not exist
• Not proved: a fact is said to be ‘not proved’ when it is neither proved nor disproved
- Meaning of BOP not defined in EA, but refer common law and EA

2.1 Meaning of Burden of Proof

2.1.1 Common Law

- Has two meanings:

1. Legal Burden of Proof

- Obligation to satisfy the court of the existence of a fact according to the standard of proof set by law.
- Duty not only to adduce evidence, but to adduce enough evidence to reach the standard of proof
required by law
- Must satisfy the standard of proof required by law :
• Beyond Reasonable Doubt (BRD) - prosecution in a criminal case
• Balance of Probabilities(BOP) - civil cases + the accused in a criminal case

2. Evidential burden

- Duty to adduce some evidence but not necessary to satisfy any standards of proof .
- “casting a doubt” - only introduce evidence, no need hit standard of proof in law (much lower
standard)
- Example: defence of alibi
• Pro alleges X committed murder on 1/7/2020 between 10-11pm at KL
• Defence of alibi: X was in Penang on 1/7/2020 between 10-11pm
 • Held: X has cast a reasonable doubt that he was not in KL. Not guilty as long as accused can prove a
reasonable doubt

2.1.2 Evidence Act 1950

- BOP not defined in EA

- ‘Legal BOP’ and ‘Evidential burden’ not found in EA
- Refer s.3 EA ‘proved’, ‘not proved’, ‘disproved’
- 2 approaches of meaning of BOP in EA:

1. Lord Devlin’s Approach in R v Jayasena [legal burden only]

- R v Jayasena [1970] 1 AER 219

• Jayasena was charged and convicted of murder. Accused admitted that the deceased died of
wounds deliberately inflicted by him, his defence being that he was acting in self-defence.
• Issue: what is the BOP for self-defence?
• Held:
 applying s.3 ‘proved’ ‘disproved’ ’not proved’ to interpret s.105 (statutory defences), BOP in
EA only refers to the legal burden of proof, and does not refer to evidential burden. Rejects
common law approach. 
 Self-defence under s.105 has a legal BOP, must be proved on the balance of probabilities
 this approach is statutorily correct in the interpretation of s.105

2. Augustine Paul’s Approach [Legal and evidential burden]

- Does not agree with Devlin, adopts common law approach

- BOP in EA has 2 meanings
i. S.101: Legal burden of proof (burden to establish facts)
 need to bring enough evidence to satisfy standard required
ii. S.102: evidential burden of proof (burden to introduce evidence)
 the BOP in a suit or proceeding lies on that person who would fail if no evidence at all were
given on either side
- Supported by:
a) Salleh Abbas in International Times v Leong Ho Yuen [1980] 2 MLJ 86
• There two senses of burden of proof:
i. According to s.101, the burden of proof is the burden of establishing a case which rests
throughout the trial on the party who asserts the affirmative of the issue (suggest that s.101
refers to legal BOP)
ii. According to s.102 and s.103, onus of proof relates to the responsibility of adducing evidence
to discharge the burden of proof (suggests that s.102 and s.103 refers to evidential BOP)
b) Tan Kim Khuan v Tan Kee Kiat [1998]1 MLJ 697 (own decision, weaker authority)
• the BOP rests throughout the trial on the party on whom the burden lies
• where a party on whom the BOP lies has discharged it, the evidential burden shifts to the other
party
• if the party on whom the burden lies fails to discharge it, the other party need not call any
evidence.
c) Aziz Bin Muhamad Din v PP [1996] 5 MLJ 473 (own decision, weaker authority)
• The burden of establishing a case must be contrasted with the burden of introducing evidence
(evidential burden)
• Former is governed under s.101 EA, latter is governed by s.102 EA
• The burden of establishing a case rests throughout the trial on the party who asserts the
affirmative
d) Common law which has two meanings of burden of proof
e) General principle of evidence: golden thread – ‘he who asserts must prove’
f) Wording in s.101 (talks about proving – the duty to establish the fact - legal )
g) Wording in s.102 (no evidence at all - the duty to bring in evidence - evidential)
• If both s.101 and s.102 were referring to legal BOP – it would be repetitive

Who is right? - Both

- Devlin correct to extent of s.105 EA only for statutory defences

- A. Paul looks at application of EA 1950 as a whole – there is an evidential burden
- Devlin benefits prosecution - defence will rely on APaul 

2.3 Burden for Defences in Criminal Cases

- Issue: when the accused in a criminal case raises a defence, does he have a legal burden of proof  (to
prove on a balance of probabilities) or evidential burden (to case a reasonable doubt)?
- Prosecution will argue legal BOP - defence will argue to cast a doubt
- S.105 EA: only applies to statutory defences in criminal case
• defences in the Penal Code
• defences in any other statute defining an offence
- as long as statutory defence (PC/others) is raised – accused has legal BOP to prove on a balance of
probabilities (apply s.105 + Jayasena + s.3)
- Ikau Anak Mail v PP: the defence of provocation falls under s.105 EA which must be proved by a
balance of probabilities (legal, not evidential)
- PP v Kenneth Fook Mun Lee (no.1): accused raised defence of insanity which was a statutory defence
under the penal code = legal burden of proof on balance of prob

2.3.1 Two types of defences in criminal cases

a) defences which attack elements of P’s case (denial of crime)

- If accused raised reasonable doubt on existence of AR/MR + Pro failed to prove its case BRD = accused
must be acquitted
- BOP = evidential burden. Accused need only cast a doubt to secure an acquittal
i. alibi
• Defence of alibi (eg. in kl not in melaka) = denying the charge, denying AR
• Once defence of alibi raised, Pro to prove BRD. If pro failed to prove BRD = doubt raised =
accused not guilty
ii. accident
• Accident is a defence under PC, but Pro must prove intention - accidentally killing is denying MR
• If got reasonable doubt that accused did not intend to kill - accused can be acquitted

b) defences which are independent from P’s case (justification/excuse)

- Admitted the charge but trying to justify himself - Not denying AR MR, but giving excuse
- eg. self-defence, provocation
- BOP = legal BOP. Accused has legal BOP to establish his defence on a balance of probabilities

R v Chanderasekara (!)
- When there is a reasonable doubt that the accused caused the death with intention = accused is not
guilty
- Not because A has established a defence, but by casting a doubt on the Pro’s case, Pro fails to establish
guilt BRD and discharge its burden
- If the nature of a defence is only to attack the AR and MR, the accused only has an evidential burden to
secure an acquittal (to cast a doubt)
- But if the nature of the defence is independent of the Pro’s case, the accused has the legal burden to
establish the defence on a balance of probabilities

Nagappan Kuppusamy v PP (!)

- S.105 should not be read in isolation but must be read together with the Ordinance as a whole.
- In particular s.101 and s.102, where in a criminal case, it is for the prosecution to prove the guilt of the
accused person.
- To earn an acquittal in a criminal proceeding for an offence under s.420 of the Penal Code an accused
has only to cast a reasonable doubt on the prosecution case.
- Note: if accused is not raising any specific defence he only needs to raise a doubt

Conclusion
- Concept of evidential burden exists in msia
- Devlin only confined to s.105 and interpretation of self defence
- APaul more accurate than devlin 
- Burden on an accused in criminal case – depends on type of defence raised
• Justification/excuse = legal BOP to establish on balance of probabilities
• Denial of elements of crime = evidential burden to cast a reasonable doubt to secure an acquittal

2.4 Burden of Proof in Criminal Cases

- Prosecution: s.101, s.102

- Accused: s.102, s.103, s.105, s.106

2.4.1 Prosecution

- S.101: “he who asserts must prove” - Pro has higher burden than accused
- Pro has both legal burden (s.101) + evidential burden (s.102)
- Standard of proof = BRD
- Accused no need prove innocence - only need to cast a doubt as a GR

Woolmington v DPP
- the accused was charged with murder by shooting his wife with a gun. The accused pleaded accident
that the gun went off accidentally & killed his wife.
- Trial judge: ‘once the Pro has established that the accused killed his wife, it will be presumed to be
murder unless the accused can satisfy court it was an accident [wrong - seems to suggest Pro need to
only show accused killed himself (AR)]
- Viscount Sankey: golden thread in English criminal law: it is the duty of the prosecution to prove the
prisoner's guilt as to the defence of insanity, subject to any statutory exception. If there is a reasonable
doubt, the prosecution has not made out the case and the prisoner is entitled to an acquittal.

Mat v PP [1963] 1 MLJ 263

- Appellant charged with theft and alternatively with dishonestly retaining stolen property. He gave
evidence and called witnesses in his defence.
- He was convicted because "on the whole" the learned Magistrate was "unable to believe the defence."
[seems to suggest it is the accused to prove innocent]
- Held (Suffian J):
• the learned Magistrate had seriously misdirected himself as to the meaning of the burden of proof
by the accused.
• If the court accepts the explanation given by the accused, it must acquit.
• The accused is entitled to an acquittal if the explanation raises a reasonable doubt as to his guilt, as
the onus of proving his guilt lies throughout on the prosecution.
- Position:
a) If satisfied BRD as to accused’s guilt – convict
b) If accept/believe accused’s explanation – acquit
c) If do not accept/believe accused’s explanation – do not convict, but consider below
d) If do not accept/believe accused’s explanation + explanation does not raise reasonable doubt as to
his guilt – convict
e) If do not accept/believe accused’s explanation + raises reasonable doubt as to his guilt – acquit

PP v Saimin [1971] 2 MLJ 16 (follows Woolmington)

- Magistrate: the court is partially satisfied that the charge has been proved since accused has not given
any reasonable explanation
- Held:
• It is the duty of the prosecution to prove the charge against the accused beyond all reasonable
doubt.
• The burden of proof remains on the prosecution throughout the trial.
• The falsity of the defence does not relieve the prosecution from proving the prosecution case
beyond reasonable doubt;

Exception: Shifting the burden on elements of crime to the accused

- GR: Pro has to prove all elements of charge BRD 

- burden on elements of crime be shifted to accused by statute - presumptions
- Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169
• the accused was charged with drug-trafficking under s.37(d) presumption of custody and control
and possession and s.37(da) presumption of trafficking [If presume in custody of drugs, can
presume also trafficking the drugs?]
• H: Where the prosecution relies on statutory presumptions to prove the charge, the particular
burden of proof, as opposed to the general burden, shifts to the defence to rebut such
presumptions on the balance of probabilities, which from the defence point of view is heavier than
the burden of casting a reasonable doubt but it is lighter than the burden of the prosecution to
prove BRD
- s.182A CPC: Pro to prove BRD at end of trial
• (2): if Pro proved BRD – court shall find accused guilty and may convict
• (3): if Pro has not proved BRD – court shall order an acquittal

2.4.2 Accused

- GR: Pro bears legal BOP, but in exceptional situations, legal burden on particular facts shits to the
accused
- Eg: when accused raises a defence (he asserts a fact)

1. S.105: BOP for statutory defences in criminal cases = legal BOP on balance of probabilities
• (Refer infront)
 • General and special exceptions + proviso in Penal Code
• Any exceptions/defences in any other law
• S.3 EA + Jayasena
• Ikau, Kenneth, Chanderasekara, Nagappan

2. S.103: BOP as to ‘any particular fact’

- S.103: the BOP of any particular fact lies on the person who wishes the court to believe it exists, unless
provided otherwise
- S.103 Illustration (b): B wishes the court to believe that at the time in question, he was elsewhere. He
must prove it. (alibi defence)
- Definition of Alibi: assertion made by the Accused in a criminal case or by a Defendant in a civil case
that he was elsewhere at or about the time of the offence/incident.
- Alibi is a common law defence, not a statutory defence. Therefore, s.105 is not applicable to alibi, alibi
is governed under illustration (b) to s.103 EA.
- S.11 illustration (a): the question is whether A committed a crime at KL on a certain day. The fact that
on the day, A was at Taiping is relevant. [can bring in evidence to prove alibi]
- s.402A CPC: procedure for alibi notice
• S.402A(1): the court shall inform the accused to his right to put forward a defence of alibi at the
time the accused was being charged.
• S.402A(2): where the accused put forward defence of alibi, he shall put forward a notice of his alibi
during the case management process.
• S.402A(3); the accused may adduce evidence in support of alibi at any time during the trial with 2
conditions:
a) The accused must give written notice of the alibi to PP; and
b) The PP is given reasonable time to investigate the alibi before such evidence can be adduced.

Issue: What is the burden for defence of alibi?

- Defence counsel will argue Evidential burden; Pro counsel will argue BOP - cases suggest both
- If s.103 is read in isolation = s.3 + jayasena = alibi would have a legal BOP to be established on a balance
of probabilities
- s.103 should not be read in isolation 
- Dato Mokthar Hashim v PP
• accused was charged with murder and raised the defence of alibi.
• Held: alibi has a legal burden of proof to be proven on a balance of probabilities
• This was the wrong approach as the learned judge referred to s.402A CPC instead of s.103 EA
- Yau Heng Fang v PP (1985) 2 MLJ 335 (disagreed with mokthar)
• Defences such as alibi only places an evidential burden of introducing some evidence enough to
create a reasonable doubt in the minds of the jury.
• In all criminal trials, the accused is deemed to be innocent until proven guilty. There is no burden
placed on the accused to prove his innocence.
- Illian v PP and Arumugam v PP (disagreed with mokthar)
• Burden of proof for the defence of alibi is evidential burden.

Therefore, defence of alibi bears an evidential burden

- However, years of uncertainty ended with decision in Empati Mat v PP (2010) 1 CLJ 814, CA
• Held (trial judge): In proving alibi, the accused bears the legal burden to prove the defence on BOP
• Held (CA): the CA agreed with the trial judge but at the same time, the judge held that ‘the defence
failed to cast a reasonable doubt’. ‘Cast a reasonable doubt’ refers to evidential burden of proof.
• Confusing: whether the judge agreed with legal or evidential burden?
- Rosli Md Idrus v PP (2010) 1 LNS 121, HC
• The high court referred to Dato Mokhtar’s case and Empati Mat’s case
• the burden of proof of the defence of alibi is on the balance of probabilities.
• In another word, the accused bears the legal burden of proof.
- Magendran Mohan v PP [2011] 1 CLJ 805, FC
• The appellant's defence of alibi is credible or at least raised a reasonable doubt on the
prosecution's case.
• all that an accused person had to do is to raise a reasonable doubt that he was the person at the
scene of the crime.
• Therefore, the court applied evidential burden
- Mohamad Najidi v PP [2011] 1 LNS 172 (HC) [great decision]
• Held: The correct burden was the usual evidential burden cast upon an accused person, that is, to
raise a reasonable doubt as in Yau Heng Fang v. PP and Illian v PP.
• Court applied Magendran Mohan, and held that the onus to establish the defence of alibi is merely
to cast a reasonable doubt on the prosecution's case [evidential burden]
- Duis Akim & Ors v PP [2013] 9 CLJ 692, FC
• The evidence of alibi need only raise a reasonable doubt that he committed the crime
- Azilah Hadri & Anor v PP [2015] 1 CLJ 579, FC [unclear FC decision]
• In CA: defence of alibi bears an evidential burden
• In FC: accused must adduce credible evidence that can cast a reasonable doubt over the
prosecution’s case [altho they say it is to cast reasonable doubt - still referred to mokhtar hashim]

3. S.104: Burden of proving preconditions 

- S.104:  The burden of proving any fact necessary to be proved to enable any person to give evidence of
any other fact, is on the person who wishes to give the evidence.
- Illustrations
a) A wishes to prove a dying declaration by B. A. must prove B's death.
b) A wishes to prove by secondary evidence the contents of a lost document.
A must prove that the document has been lost.

4. S.106: Burden of proving fact especially within knowledge.

- S.106: When any fact is especially within the knowledge of any person, the burden of proving that fact
is upon him.
- Exception to the general rule in S.101 that the Pro has to prove all elements of the charge: It is not a
defence
- Pro can rely on s.106 to shift burden to accused, shifts BOP of element of charge from Pro to accused
- applies when a fact is within the special knowledge of the accused [difficult for Pro to prove, but can be
proved by accused easily]
- S.106 generally only applies to NEGATIVE AVERMENTS in a charge
• eg: Accused is charged “without lawful authority”, “without a license”, “without a ticket”
• Illustration b: if a person is charged with travelling on railway without a ticket, the burden of
proving that he had ticket is upon him.
- S.106 as a general rule will NOT apply to positive averments in a charge
• eg. ‘with intention’, ‘with knowledge’
- Reasoning: to establish a negative averment which is within the special knowledge would be difficult
and time consuming for the Prosecution if compared to the Accused + It was practical to use S 106 to
shift the burden to the Accused
R v Turner
- the accused was charged with hunting without lawful authority (negative averment)
- H: Pro need only prove that he was hunting. The burden of establishing lawful authority shall be on
the accused on a balance of probabilities as lawful authority is within the special knowledge of the
accused.

Lee Chin Hock v PP

- The accused was charged for having possession of prohibited documents without lawful excuse
- H: S.106 will apply to the issue of lawful excuse. It is the accused who will bear the burden to prove
he has lawful authority. Prosecution need only prove that the accused had in possession the
prohibited documents.

PP v Lim Kwai Thean

- the accused was charged with failure to produce his identity card when asked for by a police officer.
- The defence argued that the Prosecution must prove that the accused did not have his IC + the
accused does not fall under exempted class of persons not required to carry IC
- Held: Prosecution need not establish the negative that the accused did not fall within the
exceptions. This was a fact especially within the knowledge of the accused and the burden to prove
that fact was upon him.
- Especially within knowledge does not mean sole/exclusive knowledge

Re Tan Kheng Cheng

- S.106 will only apply where Pro has made out a prima facie case with regards to all the other
elements of the charge

Burden of proving intention may not be shifted from the prosecution to accused under s.106

- Even though accused has specific knowledge of intention + difficult for prosecution to prove the MR =
cannot apply s.106 bc the presumption of innocence would fail
- Attygalle v The King
• whether the burden of proving MR can be shifted to accused.
• H: s.106 cannot be used in proving MR as MR is a positive averment.
- Mary Ng v R
• the accused was charged for attempting to cheat. The main ingredient of the offence is
‘dishonesty’.
• Held: it was not for the accused to prove that he had not acted dishonestly but it was for the
prosecution to prove that he had acted dishonestly.
- BUT, in PP v Hoo Chee Keong 1997
• Held (APaul): Proof of knowledge is often a matter of inference. The possession of forged
documents readily gives rise to an inference against the accused of the required knowledge and
intention.
• The burden of proving fact of knowledge was on the accused under s.106 EA
• if the accused did not have any knowledge that the cards were forged or that he had intended to
use them as genuine, then it was a matter especially within his knowledge
• Impact of this decision: knowledge is something within knowledge of accused, burden of proving
no knowledge shifts from Pro to accused under s.106 – Pro only needs to prove possession
[dangerous decision, moving s.106 from negative to positive averments, but still need apply]
- Gnanasegaran v PP 1997 CA: Prosecution cannot be expected to prove a negative averment. That
burden is on the accused as it is especially within the knowledge of accused. s.106 applies to negative
averments 
2.5 Burden of Proof in Civil Cases

- GR: “He who asserts must prove”

- S.101: applies to both civil and criminal cases
• legal burden of proof would be on the Plaintiff/Claimant in civil cases, to establish the elements of
his claim.
• Standard of proof : balance of probabilities

2.5.1 Exceptions

1. S.103: burden of proving particular fact, if he wishes the court to believe those facts

- if an accused raises a defence, he is said to ‘assert a fact’. Therefore, s. 103 becomes applicable
- Eg of civil defences : Consent / Contributory Negligence/ Frustration / Mistake etc.
- Standard of proof: balance of probabilities.

**s. 105 is not applicable to civil case, only criminal case.

2. S.106: negligence situations – res ipsa loquitur

- Apply to civil cases based on the principle of res ipsa loquitur (the occurrence of an accident implies
negligence)
- The impact of s.106 to civil case: it shifts the burden to prove negligence from plaintiff to defendant.
Defendant must rebut the presumption of negligence on BOP.
- David Chelliah v Monorail Malaysia (2009) 4 MLJ 253
• P was struck by a safety wheel falling from a monorail train.
• H: the safety wheel of a monorail train does not, in the ordinary course of things, fall off and hit
persons on the ground below.
• A plaintiff prima facie establishes negligence where:
a) it is impossible for him to prove precisely what was the relevant act/ omission which cause the
accident; and
b) on the evidence, it is more likely that the cause of the accident was due to the act/omission of
the defendant
• The P had therefore made out a prima facie case of negligence on the defs.
• Defs has a legal burden to rebut the presumption of balance of probabilities
- SJIC Bina Sdn Bhd v Zulkifli Wong Abdullah [2020] 1 LNS 248
• Applied David Chelliah, H: When the doctrine of res ipsa loquitur is invoked, the burden shifts to
the def to rebut the presumption of negligence on a balance of probabilities
• Rationale for shifting burden to def: def would know how the accident occurred, since he was in
control of the situation

2.5.2 Issue of criminal allegations in civil cases

- The law is settled on the standard of proof for civil cases involving a criminal allegation
- Eg: fraud/forgery
a. Common law

- Hornal v Neuberger [1957] 1 QB 247

• In criminal allegations in a civil case, the standard of proof will be the civil standard of balance of
probabilities.
• However the more serious the allegation the higher the degree of probabilities which will be
required, but it need not reach the criminal standard.

b. Malaysia

- Eastern Enterprises v Ong Choo Kim [1969] 1 MLJ 236

• the general rule is that common law principle applies
- Boonsom Boonyanit v Adorna Properties [2001] 1 MLJ 241
• In an allegation of forgery in a civil case, the standard of proof will be the civil standard of BOP
- Yong Tim v Hoo Kok Cheong [2005]3 MLJ553 (FC)
• In an allegation of fraud in a civil case, the standard of proof will be the criminal standard of BRD.
- Asean Securities Paper Mills Sdn Bhd [2007]2 MLJ 301
• FC: it is now a settled law that in the allegation of fraud in civil case, the standard of proof is
criminal standard of BRD.
- Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584, FC [overruled Yong and Asean]
• There are only two standards of proof: criminal standard of BRD and civil standard of BOP.
• In allegation of fraud in civil case, the standard of proof = civil standard of BOP
• Seriousness of the allegation or consequences should not make any difference to the standard of
proof.