Best Evidence Rule In Malaysia

Best evidence rule means that if there are two ways of proving a matter and one method is more cogent than the other the more cogent method must be adopted. Circumstantial evidence is not to be adduced if there is direct evidence available. Evidence to show that a party consented to a particular matter should not be given by others if the party himself can be called as a witness.

Does Malaysia apply best evidence rule? Before knowing the answer let we see a brief history of best evidence rule. Its beginnings manifested itself around the years 1699-1700 when Holt CJ in Ford v. Hopkins in allowing a goldsmith’s note as evidence against a stranger of the fact that the goldsmith had received money, said that the Court must take notice of the usage of the trade; that "the best proof that the nature of the thing, will afford is only required". Of course we can't ignore a famous landmark case named Omnychund v Barker, the Judges and sages of the law have laid it down that there is but one general rule of evidence; the best that the nature of the case will allow.

Some how later, in the case of  Garton v. Hunter Lord Denning MR said that:

That old rule has gone by the board long ago. The only remaining instance of it that I know is that if an original document is available in one’s hand, one must produce it. One cannot give secondary evidence by producing a copy. Nowadays we cannot confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. It changes the best evidence rule. It brings out a scenario that if one have the original copy of evidence, one must produce it but not a photocopy of it. However, if one only have the photocopy of the evidence, the court still render it as admissible but the weight of the evidence will be decided by the court.

In Kajala v. Noble the defendant was charged with using threatening behaviour likely to cause a breach of the peace, in a serious disturbance in a public street during which a large group of mainly Asian youths hurled missiles at the police. A prosecution witness had identified the defendant as one of those youths. He had recognised him on a BBC news item about the incident. The prosecution had relied on a video cassette recording, which the Court was satisfied was an authentic copy of the original. On appeal against his conviction on the ground inter alia that only the copy of the video film was produced when the original film which existed should have been produced, and that the prosecution were not entitled to rely upon a copy, since it was secondary evidence, the production of which could not be justified under those circumstances, Ackner LJ said:

We cannot agree. The old rule that the party must produce the best evidence that the nature of the case will allow and that any less good evidence is to be excluded, had gone by the board long ago. The only remaining instance of it is that, if an original document is available in one’s hands one must produce it; that one cannot give secondary evidence by producing a copy. Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility. The old rule is limited and confined to written documents in the strict sense of the term, and has no relevance to tapes or films.

How about position of Best Evidence rule in Malaysia?

In Malaysia How Chien v. PP was one of the earliest cases in which the best evidence rule was invoked. In that case Mills J in quashing the appellant’s conviction for smuggling forty packets of cigarettes, for want of the evidence of the smuggled objects themselves stated "I rule that ordinarily prosecuting officers should produce before the Court such real evidence as circumstances reasonably permit; if it is not reasonably practicable to produce the material thing itself they should produce a portion of it, or a sample of it or a photograph, or a sketch or some other evidence which may supply the Court with the best evidence reasonably obtained under the circumstances." To support his decision he cited the ruling of an English Judge that "it is clear to everybody that if justice is to be administered, the greatest precautions must be taken to see that the best evidence available is presented to the Court.

It is clearly shows that Malaysia has applied the Best evidence rule. Look at S65 of Evidence Act 1950. 

In conclusion, Malaysia has applied the principle of best evidence rule but if best evidence is not available, the courts still admit all relevant evidence then only decide the weight.