evidence law 1(12) judicial notice (pengiktirafan penghakiman)

Judicial notice (Pengiktirafan penghakiman)

• In general all facts in issue or relevant facts must be proved by evidence. Section 5 of the Evidence Act 1950 clearly states: “Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others” Section 6 to 55 declare facts that are relevant. The court cannot act on material which the opponent had not the opportunity of rebutting or qualifying, whether or not that material is obtained privately.

Judicial notice (Pengiktirafan penghakiman

• See Reynolds v. Llanelly Associated Tinplates Co. Ltd. [1948] 1 All ER 140. Cavenett v. Chambers [1968] SASR 97. To do so will be an erosion of the rules of natural justice. Almost half a century ago, in Low Moh & Anor v. PP [1954] MLJ 14, 18.4 Bellamy J succinctly stated that it was an elementary proposition of law, too frequently overlooked with resulting confusion and possible injustice, that "cases must be decided on the evidence and that the evidence must be such as is relevant and admissible under the Evidence Ordinance, that is, it must be either from admitted documents or statement of witnesses or be something of which the court can take judicial notice".


• In 1986 in Pembangunan Maha Murni Sdn. Bhd. v. Jururus Ladang Sdn. Bhd. [1986] 2 MLJ 30 expressing a similar sentiment said that "the general rule is that all facts in issue and relevant facts must be proved by evidence". "There are" be noted, "however, two classes of facts which need not be proved, viz: (a) facts judicially noticed (ss. 56 & 57); and (b) facts admitted (s. 58).


• What is judicial notice?• Per Isaas J in Holland v. Jones [1917] 23 CLR 149 states the common

law doctrine is that "whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the court 'notices' it, either simplicter or if it is at once satisfied of the fact without more, or after such information and investigation as it considers reliable and necessary in order to eliminate any reasonable doubt". Lord Sumner in Commonwealth Shipping Representative v. P and O Branch Services [1923] AC 191 at 211-2said: “Judicial notice refers to facts which a judge can be called upon to receive act to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer”.


• The principle underlying judicial notice• The doctrine of judicial notice owes its strength on the two Latin

maxims Lex non requirit verificare quod apparet curiae (the law does not require proof of that which is apparent to the court) and quad constat curiae opere testium non indigent (that which is established to the knowledge of the court does not require the aid of witnesses).

• The main purpose of the doctrine is to save time in the hearing of cases and to save costs in the proof of facts which would often be very difficult without it. It also tends to produce uniformity of decision on matters of fact where a diversity of findings might sometimes be distinctly embarrassing. See R v. Simpson [1983] All ER 789


• Judicial notice under the Evidence Act 1950• Section 56 of the Malaysian Evidence Act 1950 states that facts of

which the court takes judicial notice need not be proved. (Fakta yang diberi pengiktirafan kehakiman tak perlu dibuktikan). While s. 57 enumerates fourteen matters of which the court must take judicial notice, the last clause, ie, cl. (o) concluding the section in wide terms that the court shall take judicial notice in all other matters directed by written law to notice. And sub-s. (2) of s. 57, further states that "In all these cases, and also on matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference”. The section is not exhaustive of the matters which a court may take judicial notice".

Afterinquiry

Bystatute

Withoutinquiry

Formsof

judicialnotice

Judicial notice (Pengiktirafan penghakiman)• 1. Without inquiry: These are facts so

generally known or so notorious as not to be capable of reasonable dispute. So far as matters of common knowledge are concerned, it is saying there is no need of formally offering evidence of those things, because practically everyone knows them in advance and there can be no question of them. Some example of this types of facts are that that cats are kept for domestic purposes. (Nye v. Niblett [1918] 1 KB 23) Judicial notice has also been taken of world-wide economic depression (Ram Terak Selgram [1944] AC 153)

Judicial notice (Pengiktirafan penghakiman)• In 1915 in Ngai Shin v. Low Chee Neo [1915] 14 SSLR 35: Polygamy amongst the Chinese. • In Rahmah v. Laton [1926] 6 FMSLR 128: Muslim law as the law of the land. • In Lee Lip Ngee v. Crown Council [1947] MLJ 68: Navigation of a port• In Lim Kong v. PP [1962] MLJ 195: General information of his own eyes and take judicial

notice of the physical features of an area well-known to him for general purpose. • In Yong Pak Yong v. PP [1959] MLJ: What is notorious of what everybody knows.• In PP v. Choo Teck Heng [1960] MLJ: Mountbatten Road in Singapore is a major road.• In Ng Yik Seng & Anor.v. Perwira Habib Bank Malaysia Bhd [1980] 2 MLJ 83: Properties in

or around Kuala Lumpur have appreciated greatly in value.• In Phang Ah Chee v. Chong Kwee Sang [1985] 1 MLJ 153: Chinese funeral expenses. • In Public Prosecutor v. Yap Sin Peng [1986] 2 CLJ 222: Offence of acting as a bookmaker

under section 6(3) (a) of the Betting Ordinance, 1953 is a serious crime

Judicial notice (Pengiktirafan penghakiman)• In Kong Nen Siew v. Lim Siew Hong [1971] 1 MLJ 262 38 the learned judge took judicial

notice "of the fact that Dato' Ting had appeared in this court in the past as an expert on Foo Chow customary law relating to marriage and divorce and his evidence had been accepted without question".

• In Balakrishnan s/o Kunjamboo Nair v. Savastine Antony s/o Francis, [1991] 1 CLJ 503 39 Abdul Malik Ahmad J (as he then was) took judicial notice of the fact that the average earnings of marble grinding contract workers was in the region of about RM700 per month.

• In Jai bin Adam @ Zainuddin bin Adam[1995] MLJU 550 40 judicial notice was taken that there was and is only one sessions court judge in the Miri registry who was and is also required to go on circuit to Bintulu and Limbang on almost monthly basis.

• In Re Gun Soon Thin [1997] 2 CLJ Supp 53 in deciding whether to draw a presumption of death of Gan Teck Heow who had been held captive by the Japanese during the Japanese Occupation in 1942, under s. 108 of the Evidence Act 1950, Justice Abdul Malik Ishak said: Occupation had taken a death toll on a higher scale

• In PP v. Zulkifli bin Omar [1998] 1 CLJ 1079 where clearly here the court took judicial notice of the bad behaviour of Malaysian motorists, when considering sentencing the guilty ones.


• 2. After inquiry: Here the court can take account of facts after investigation even though such facts are not generally known as long as they can be readily ascertained from readily available authoritative sources. This form of taking judicial notice can be exemplified in diverse ways.

• (i) The court will take judicial notice of certain political facts such as the recognition of the sovereignty of a foreign state; Duff Development Co. v. Government of Kelantan [1924] AC 797 Carl Zeiss Stiftung v. Rayner & Keeler (No. 2) [1967] 1 AC 853 the membership of a particular diplomatic mission (Engelke v. Musmann [1928] AC 433) the extent of territorial waters' (The Fagerness [1927] p. 311, CA), of the state of war (R v. Bottril [1946] 2 All ER 434) In case of uncertainty the court will act on the certificate of the appropriate Minister of State.


• (ii) The court may refer to authoritative works of learning, such as histories treatises, almanacs, and other readily available facts, to answer questions as to historical facts and past rituals, eg, in Read v. Bishop of Lincoln [1892] AC 644 the court investigated whether the practice of mixing communion wine with water was contrary to church law.

• (iii) Judicial notice may be taken of general customs which have been proved with some frequency.

• (iv) Judicial notice was also taken of the practice of professions, eg, of conveyancer or surveyors

• (v) Judicial notice is often taken of the nature, functions and workings of scientific and technical instruments like clocks, speedometers, radar speed meters thermometers, scales and electronic weapon detectors. Nevertheless evidence may be given to show that the particular device in question was defective (not working).In American case of State v. Graham 322 SW 2d 188 (1959) radar trap; United States v. Lopez 328 F supp. 1077 (1917) flux-gate magnetometer to detect aircraft hijackers.

Judicial notice (Pengiktirafan penghakiman)• Can a judge, besides resorting to reference

works inform himself by hearing evidences on matters which he is invited to notice judicially?

• This process of judicial notice can appear close to a usurpation of the function of the judge. In McQuaker v. Goddard [1940] 1 KB 687 the trial judge consulted books and experts on whether camels were wild by nature and held that they were domestic creatures. There was some dispute over that conclusion but the court of Appeal held that judicial notice could be taken of the matter. In his consultations the judge was taking evidence in the ordinary sense but conducting an inquiry prior to taking judicial notice of a fact.

Judicial notice (Pengiktirafan penghakiman)• 3. Judicial notice by statute: • In PP v. Mohamed Ali, [1962] MLJ 259 66 it was held that the magistrate was bound to

take judicial notice under s. 57(1)(a) of the Evidence Ordinance of Legal Notifications which are regulations having the force of law.

• In Johnstan Tan & Ors. v. PP [1977] 2 MLJ 66 the Federal Court held that once a proclamation under a Parent Act or Ordinance is made and an area under it is proclaimed to be a security area ss. 56 and 57 of the Evidence Act become applicable.

• PP v. Rajamah, [1980] 2 MLJ 80 68 the Federal Court held that it was bound to take judicial notice of a notification of a Government gazette; obviously this was by virtue of s. 57, though it did not mention it.

• In Sivagami Achi v. PMR Ramanathan Chettiar, [1959] MLJ 221 it was held that the court may take judicial notice of Hindu law, as it was foreign law.

• In PP v. Saad bin Mat Takraw [1998] 3 CLJ 380. 70 Vincent Ng J said that s. 57(i)(j) provides that the courts shall take judicial notice of the territorial extent of the jurisdiction and sovereignty exercised de facto by their own government, yet the courts are not obliged to judicially notice their precise limits.


• The limits of judicial notice: However as was said by Chang Min Tat FJ in Weng Seng v. PP [1978] 1 MLJ 168 at p. 171, "though the list of matters of which the Court may take judicial notice is of course not exhaustive, . . . . . it is clear from the authorities that in order to avoid conflict between the bar on a Judge importing his own knowledge into a case and what he may take judicial notice of there is a limitation to ‘what is notorious, of what everybody knows. . .’ " Earlier in Sivagi Achi v. PRM. Ramanathan Chettiar [1959] 25 MLJ 221 Ong J had refused to take judicial notice of Hindu Laws as to rules of intestate succession under the Mitakshara System.

General knowledge

vPersonal knowledge

Judicial notice (Pengiktirafan penghakiman)• R v. Rosser [1836] 7 C & P 648 where it was held that in order to

prove a particular value of an article the jury though they could utilize knowledge of the subject, any one of them could not utilize his particular knowledge on the subject acquired by his being in the trade. He should instead be sworn and examined as a witness.

• R v. Jones Cent. Criminal Court 1841 M.S where on an indictment for making a seditious speech at a public meeting, Lord Denman told the jury that they could take into account what they knew of the state of the country and of society generally at that time when the language was used in deciding whether it was seditious, but that they could not take into consideration without proof of them, particular facts attending the public meeting at which the words were spoken.

Judicial notice (Pengiktirafan penghakiman)• In Lee Seow Kuan v. R [1940] MLJ 211

Terrel Ag CJ said “The Court cannot take judicial notice of the fact that Chap Ji Ki is a lottery within the meaning of the definition in S. 2 of the Common Gaming Houses Ordinance. Unless and until Chap Ji Ki is declared by law to be a lottery within that definition the fact has to be proved in each case”. "

Judicial notice (Pengiktirafan penghakiman)• In PP v. Lee Ee Teong [1953] MLJ 244, 245 It is not open

to any Judge or Magistrate to import his personal knowledge on the point into a criminal trial so as to help out evidence for the prosecution which would otherwise be inadequate to support a conviction. Thomson J as he then was said "I know and the magistrate knows, all about the 1,000 characters lottery; ... Unfortunately, however, it is not open to any judge or magistrate to import his personal knowledge on the point into a criminal trial so as to help out evidence for the prosecution which would otherwise be inadequate to support a conviction".


• In VT Singam JC in Norshaharin v. PP [2002] 5 CLJ 492 where it was held that “The learned Sessions Court judge had wrongly allowed himself to be influenced by consideration outside the evidence by importing his personal knowledge as seen in his judgment of the case, as to the genuineness of the RM50 currency note. The court ought not to be influenced or governed by any notions of personal knowledge as a substitute for evidence. The court must only act on evidence placed before it and not depart from this established principle. As such, the Sessions Court judge had erred in law and this court was not able to confirm the conviction and instead quashed it. Consequently, it was also not necessary to hear the submission on the sentence.”