TUTORIAL QUESTIONS (NUMBER 2)

ISSUE 1

Whether the opinion evidence given by Peter to testify Ah Leong is relevant and admissible?

Opinion means any inference from perceived facts and witnesses must speak only to
the facts which they themselves perceived. Section 45 of the Evidence Act 1950 stated that
opinion from expert are relevant facts when court are required to determine on an issue
which is outside of court’s experience and expertise. A court cannot rule on handwriting
without the aid of expert. (Relevant authority: Section 47)

However, section 73(2) provides that the court may direct any person present in
courts to write any words or figure for the purpose of enabling the courts to compare the
words or figures alleged to have been written by that person. Section 67 also stated if a
document is alleged to be signed or to have been written wholly or in part by any person,
the signature or the handwriting of so much of the document as is alleged to be in that
person’s handwriting shall be proved to be in his handwriting. As stated in the case of Dalip
Kaur v Pegawai Polis Daerah Bukit Mertajam, evidence by a handwriting expert should be
viewed with caution. In addition, qualification of an expert is determine when he must be
skilled in his field and he may acquire the skill by special study or by experience.

In this issue, Peter has never met Ah Leong and he only communicated with Ah
Leong using letters in several occasions about ten years ago. Hence, Peter did not know Ah
Leong in personal as he never met him. Opinion given by Peter when testifying the signature
is not valid as he is not an expert witness according to section 45. He also had not known Ah
Leong in person and cannot confirmed that the signature is his uncle’s or not. Furthermore,
Peter is not the person that have skill in handwriting by special study.
ISSUE 2

Whether the opinion evidence given by Mr Malcolm is relevant and admissible?

Evidence is admissible form an expert witness who acquired, by study or practice,

the necessary expertise on the subject. Sec 45 of Evidence Act 1950 provides that when a
court has to form an opinion upon a point of foreign law or of science or art, or as to
identity or genuineness of handwriting or finger impressions, the opinions upon that point
of persons specially skilled in that foreign law, science or art, or in questions as to identity or
genuineness of handwriting or finger impressions, are relevant facts and such persons are
called experts.

(Section 51 is more relevant as the authority; whereas case that is suitable is Junaidi bin Abdullah)

An expert is a person who is deemed to possess special skill or knowledge

concerning a subject matter in issue, one that ordinary man lacks. The expertise is normally
acquired by qualification, training, practice, extensive studies or by observation of a
particular subject matter for a substantial period of time. In Chong Kheng Phong v Chung
Keng Huat & Ors, it was held that to be an expert witness one has to satisfy 3 criteria:
qualified, experience and having testified in court before. In Leong Wing Kong v PP, it was
held that an expert must be skilled and he need not to be so by special study, suffices if it is
by experience.

In determining an expert, there are 2 criteria were set out in the case of Junaidi bin
Abdullah v PP, which are first, whether the subject matter requires expert testimony and
second whether the witness who is giving testimony is an expert in the subject matter in
dispute.

Applying to this situation, Mr Malcolm is an expert in handwriting even though he

has not received any formal education on the subject. But it is sufficient that he has
experience in given an expert opinion on handwriting in other cases before by virtue of case
Leong Wing Kong v PP, Mr Malcolm can be called as an expert under Sec 45 of EA. By virtue
of case Junaidi bin Abdullah v PP, Mr Malcolm has fulfilled the criteria where the signature
in the sale and purchase agreement is the subject matter of dispute which an expert should
be called. And Mr Malcolm is an expert in handwriting as he has experiences in given an
expert opinion on handwriting in other cases before, although he has not received any
formal education on the subject.

With regards to the situation, Mr Malcolm is an expert in handwriting. An expert

would scientifically compare and contrast the question with a known specimen of that
person’s handwriting. The courts have taken the view that a ruling may not be justifiably
made in the absence of an expert opinion on the matter. The courts are cautions that expert
opinion are not to be considered as conclusive, which means that corroborative evidence is
required to convict a person. This can be seen in the case of Teng Kum Seng v PP, where the
appellant was convicted on 3 charges under Sec 385 of Penal Code. Appellants method was
to write letter to victims demanding money followed by a telephone call. Expert evidence on
handwriting was called and he compared the letters with specimens of appellants
handwriting and formed opinion that the extortion letters were in the appellant’s
handwriting. Appellant appealed on the ground that the handwriting expert was given
undue weight. The High Court dismissed the appeal and held that there was a great deal of
other evidence such as voice identification parade and the fact that the third telephone call
was traced through speaker.

Applying to the situation, Mr Malcolm testified that he received 10 exemplars

signatures from documents signed by Ah Leong and compared it with the signature in the
Sale and Purchase Agreement. He explained to the court that the curves, slants,
proportional size, slope and the line form of all the 10 exemplars were consistent. But the
same characteristics were eventually not identical with the signature on the Sale and
Purchase Agreement. By virtue of case Teng Kum Seng v PP, even though Mr Malcolm as an
expert in handwriting give opinion that the signature on the sale and purchase agreement
was not a signature of Ah Leong, it cannot be considered as conclusive evidence. The
opinion on handwriting must be supported with corroborative evidence.

Thus, the opinion evidence given by Mr Malcolm is relevant and admissible under
sec 45 of EA
ISSUE 3

Whether the opinion evidence given by Dr Adam is relevant and admissible under section 45
of EA

Evidence of opinion means any inference given by witness based from perceived
fact. In order for evidence of opinion to be relevant and admissible by the court, it must be
given by an expert who falls under section 45 and non-expert who falls under section 46, 47,
48, 49 & 50 of EA.

Section 45 of EA provides any opinion given by an expert who are especially skilled in
foreign law, science or art or in questions as to identity or genuineness of handwriting or
finger impressions shall be relevant and admissible. However, in order for the evidence of
opinion to be relevant and admissible by the court, he must be able to establish his
qualification as an expert. An expert must prove to be skilled in his field and he may acquire
the skill by special study or by experience.

This can be seen in the case of Junaidi Bin Abdullah V PP whereby the court held
that the evidence given by the chemist is admissible as he was dealing the revolver once.
Hence, he was competent to give expert evidence of serviceability of the revolver.

By referring to this situation, Dr Adam can be considered as an expert by virtue of

section 45 of EA as had obtained a PhD in Psychology from Cambridge University, United
Kingdom which shows that he is specially skill in clinical psychologist. Plus, he is also has a
wide experience due to the fact that he has been in practice for the past 20 years and had
already examined Ah Leong on three occasions. Therefore, by virtue of section 50 of EA and
Junaidi’s case, Dr Adam shall pass the qualification to give evidence of opinion as an expert.

In conclusion, the opinion evidence given by Dr Adam shall be relevant and

admissible under section 45 of EA.
ISSUE 4

Whether the evidences given by Dr Jaswant is relevant and admissible.

The general rule of opinion evidence is that a witness is only permitted to give
evidence of facts which he has perceived, and is not entitled to state any inferences and
beliefs based on those facts. If a witness interprets the facts which he perceived, he is
therefore offering his opinion to the court. A witness may only provide evidence of fact
which he can relate to personally. Pursuant to Section 60, the court can only accept evidence
from a witness if it is direct evidence pertaining to what the witness perceived, heard or saw
with his own senses. A witness may not provide his opinion from which a conclusion can be
drawn, for example, his own assumptions as to what may have occurred. In the case of
Hollington v Hewthorne, only the facts perceived by a witness are relevant, not his opinions.

However, this general rule is subjected to an exception. Opinion evidence in Section

45 EA for science considered as one of the proviso to the general rule. Section 45 of EA
provides any opinion given by an expert who are especially skilled in foreign law, science or
art or in questions as to identity or genuineness of handwriting or finger impressions shall be
relevant and admissible. However, in order for the evidence of opinion to be relevant and
admissible by the court, he must be able to establish his qualification as an expert. An expert
must prove to be skilled in his field and he may acquire the skill by special study or by
experience. As instance, we can take a look at the case of Junaidi Bin Abdullah V PP
whereby the court held that the evidence given by the chemist is admissible as he was dealing
the revolver once. Hence, he was competent to give expert evidence of serviceability of the
revolver.

Pertaining to the qualifications of an expert, an expert witness is a person who by

virtue of education/training/skill/experience is believed to have knowledge in a particular
subject beyond the average person. The skill/experience must have been acquired for
purposes of special study on the subject matter. The expertise of an expert must be
established before his expert opinion is admitted in court. It must first be determined whether
the subject matter or nature of evidence requires special skill where in the case of R v Turner,
if, on the proven facts, a judge can form his own conclusions without help, the opinion of an
expert is unnecessary. However, in Syed Abu Bakar Ahmad, it would be erroneous for the
judge to form a conclusion on a matter which could only be properly concluded with the aid
of expert evidence.

In applying to the sub-issue, Ah Leong’s counsel have Dr Jaswant, a senior

psychiatrist from University Hospital, Petaling Jaya. Dr Jaswant had been treating Ah Leong
over the past two years, in which they had a regular meeting every month. Dr Jaswant had
been a psychiatrist for the past 10 years and has done extensive studies and presented various
papers at international conference. His area of research focused on dementia and alzheimer’s
disease, and how to differentiate them with depression. That being said, by having these
qualifications, and the fact that Dr Jaswant had been in this field for 10 years, it is sufficient
to deem him as someone who is an expert and whom the opinions can be accepted by the
court by virtue of Section 45, pertaining to evidence opinion. It is also aligned to the referred
cases cited above as Dr. Jaswant is competent enough to to give experts opinion.

In conclusion, the opinion evidence given by Dr Adam shall be relevant and

admissible under section 45 of EA.
ISSUE 5

Which opinion for the court to adopt between Dr Adam and Dr Jaswant’s testimony.

In cases where there is conflicting opinions between experts called by both parties, the court
has the discretion and freedom to choose which opinion to follow in making decisions. There
are few factors by which the court may take into consideration in choosing which experts
opinion to follow. The court must consider the reliability of the expert’s opinion. By this, the
court must consider the expert’s qualification in terms of his experience and knowledge.
According to the case of Sakthivel Punithavathi v PP it was provided that qualification is not
limited to academic qualification but also extends to experiences.

Secondly, the court must also take into consideration the scientific grounds and basis
by which that particular experts relied on. This is supported by the case of Chua Seng Sam
Realty v Say Chong where the scientific grounds when taken in totality must always lead to a
sound inference. Hence, the court must evaluate the grounds upon which the expert had
relied. This is also supported by the case of Leong Wing Kong v PP where in resolving the
conflict of opinions, it is often that the court took into consideration the methodology by
which an expert has reached his conclusions and the demeanour of the expert, rather than
merely relying on his academic qualifications.

An example of cases where the courts had to determine between two conflicting
experts opinions can be seen in the case of Nilai-3 Porcelain Inn Sdn Bhd v Berjaya Sompo
Insurance Bhd, where there are two experts reports related to the fire investigation is served
to the court. One of the report is given by a senior officer who had seven years of experience
and attended 200 courses and had investigated 700 cases. The other expert which was called
by the defendant did not carry out the investigation on the day of the fire, had not checked the
wiring and had kept the samples for a few days.

In deciding this issue, the court had referred to the case of Guan Teik Sdn Bhd v Haji
Mohd Noor bin Haji Yakob & Ors where the court had stated that in determining the issues
of conflicting opinions, it is the duty of the court not only to weight such evidence on the
balance of probabilities but the court must also consider the surrounding factors and weight
the documents that may tend to establish the truth or otherwise of a given fact.
 Another example in relating to this issue can be seen in the case of PP v Dato’ Seri
Anwar Ibrahim [2014] where the prosecution and the defence counsel had brought in their
experts to give evidence in the court. The court in this case looked at not only how the reports
was analysed by the experts of the prosecution but also the qualification held by them. The
prosecution’s experts had conducted physical examination of the complainant and the
examination was conducted carefully and thoroughly.

Meanwhile, the reports given by the defendant experts comprised of criticisms of the
method used by the prosecution. The defendant experts were chemists and had called by the
defence to give opinion on the evidence reported by the prosecution’s experts. Here, the
Court of Appeal in this case had commented the defence counsel experts opinion as a mere
‘armchair experts’ which only based on textbooks and theories. Hence, the court ruled that
the expert’s opinion given by the prosecution is more credible and the probative value
outweight the prejudicial effects. The court contended that the prosecution experts had
conducted various tests and analysis on the samples as opposed to the defence experts where
they did not do the analysis of the samples and had given only mere opinions. The court also
considered the qualifications of both experts where the prosecution experts have excellent
credential, holding a PhD in Forensic DNA and also the head of the Serious Crime Unit,
Chemistry Department of Malaysia.

Application: When applying the laws to the present issue, there are two conflicting experts
evidence given by Dr Jaswant for Ah Leong’s counsel and Dr Adam for Raju’s counsel. In
determining which opinions court needs to follow, the court must determine the reliability of
the experts opinions in terms of their qualifications and the scientific grounds upon which
they claimed. By virtue of the case of Nilai-3 and Dato’ Seri Anwar Ibrahim, it is likely for
the court to adopt the opinions given by Dr Jaswant given the fact that he had extensive
experience as a senior psychiatrist and also had treated Ah Leong for over the past two years.

He had also presented a scientific basis on the fact that Ah Leong did not suffer any
memory loss as he only suffered from depression and not dementia as his cognitive functions
are not affected by it. His qualification on this matter is also excellent as he had conducted
studies and research on the differences between dementia and depression. Meanwhile, Dr
Adam although had been in practice for 20 years, he merely has the PhD in Psychology. His
claims were only mere opinions without any scientific basis. This is slightly similar to the
case of PP v Dato Anwar Ibrahim where mere opinions carry little weight compared to
scientific evidences and research.

To conclude, the court are more likely to adopt Dr Jaswant’s experts evidence
compared to Dr Adam’s.