Malaysia-It is settled law that the mere fact that a document is marked as an exhibit did not render such documents admissible until the content is properly proven

In the Court of Appeal case of Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd  [2016] 1 MLJ 375, it was held that:-

"...It is settled law that the mere fact that a document is marked as an exhibit as P6 and P4 were in this case, did not render both documents admissible until the content is properly proven. This fundamental rule of evidence was comprehensively set out by Raus Sharif FCJ in UEM Group Bhd v Genisys Integrated Engineers.

[36] It is fundamental that it is the requirement of the best evidence rule that the maker of a document must be called to prove it. (Allied Bank (Malaysia) Bhd v Yau Jiok Hua [1998] 6 MLJ 1; [1998] 2 CLJ 33). Further s 73A of the Evidence Act states that in civil proceedings, the maker must be called as a witness in order to render it admissible in evidence. (Ooi Yoke In (f) & Anor v Public Finance Bhd [1992] MLJU 25; [1993] 2 CLJ 464). And a document cannot be admitted into evidence and marked as such until properly proven. (Chong Khee Sang v Phang Ah Chee [1984] 1 MLJ 377; [1983] 1 LNS 57). In the instant case, it is clear that both the subcontract and the fax were not properly proven and should have been disregarded. Thus, the Court of Appeal, by relying on those documents in reversing the findings of facts of the trial judge was clearly in error on evidential issues.

[54] In his judgment, Raus Sharif FCJ cited with approval the case of Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377 where Shankar J (as he then was) ruled, inter alia, that:


  • (1)
    a document does not become admissible in evidence merely because it has been handed to the adjudicating officer and marked as an exhibit; and 
  • (2)
    a document cannot be admitted into evidence and marked as such until it has been properly proved. 
..."

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