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2025 MarsdenLR 125
FEDERAL COURT PUTRAJAYA
LIVE CAPITAL SDN BHD – Appellant
Versus
PIONEER CONGLOMERATE SDN BHD – Respondent
[Civil Appeal No: 02(f)-65-11-2023(W)]
The evidentiary burden remains on the claimant to prove authenticity and content of disputed documents; failure to do so nullifies the claim, regardless of procedural errors by lower courts.
Headnote:(A) Courts of Judicature Act 1964 - Section 96; Evidence Act 1950 - Sections 101 and 102 - Questions pertained to legality of documentary evidence, burden of proof, and admissibility and veracity of documents marked as exhibits - Claim regarding a loan versus commission for brokerage services; need for original documents and maker's testimony not met - Insufficient grounds to establish the authenticity of payment vouchers; the court ruled in favor of appellant - In legal context, evidentiary burden remained on claimant, and procedural missteps by lower courts were identified. (Paras 1-41)
Facts of the case:
The claimant filed a civil action claiming the return of RM7 million, alleged to be an interest-free loan, while the defendant argued it was a commission fee for services rendered, supported by disputed payment vouchers. (Paras 5-6)
Findings of Court:
The court reversed the lower court's decision, finding that the claimant failed to prove the authenticity and truth of the vouchers due to procedural errors and insufficient evidence, restoring the High Court's original judgment. (Paras 37-40)
Issues: The main issues included whether the contents of disputed documents could be treated as proven and the legal burden of proof for authenticity and tampering claims. (Paras 1-4)
Ratio Decidendi: The court clarified that unless the existence of a prima facie case is established, the burden does not shift to the opposing party to prove forgery, emphasizing the necessity of proper evidential procedures. (Paras 22-41)
Result: Appeal allowed with costs; the decision of the court of Appeal is set aside, and the decision of the High court is restored.
Key Points: - The evidential burden rests on the claimant to prove authenticity and content of disputed documents; failure defeats the claim. (!) (!) - Documents marked as exhibits (Part C) require proof of authenticity; simply marking them does not prove their contents and may shift burdens incorrectly. (!) (!) (!) - Original documents and maker’s testimony are necessary to prove authenticity; absence leads to inadmissibility or weight issues. (!) (!) (!) - The court criticized improper admission/marking of IDP1/IDP2 as exhs P1/P2 without calling the makers, affecting admissibility and weight. (!) (!) (!) - The proper procedure for Part C documents entails proving authenticity and contents, not assuming truth upon marking. (!) (!) - Adverse inference can be drawn when makers of disputed documents are not called. (!) (!) - Burden of proof lies on the party asserting a fact; if no evidence is given, the opposing party may succeed. (!) (!) - Prima facie evidence requires sufficient probability to shift the onus; otherwise, the respondent must prove its case. (!) (!) - The Court restored the High Court judgment, finding insufficient proof of authenticity and content of the disputed vouchers. (!) (!)
What is the burden of proof for authenticity and content of disputed documentary evidence?
What is the effect of marking documents as exhibits on their evidential value when their maker has not been called to prove authenticity?
What are the conditions for admissibility and weight of Part C documents and the proper procedure for admitting such documents?
| Table of Content |
|---|
| 1. questions of law regarding evidence and burden of proof. (Para 1 , 2 , 3 , 4) |
| 2. summary of the facts surrounding the loan and payment vouchers. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. court observations on the evidence and burden of proof. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24) |
| 4. importance of proper admission of evidence in legal proceedings. (Para 25 , 26 , 27 , 28 , 29 , 30) |
| 5. procedural requirements for the admissibility of documents. (Para 31 , 32 , 33 , 34 , 35 , 36) |
| 6. clarification of burden of proof and legal standards. (Para 37 , 38 , 39 , 40) |
| 7. final determination of the questions of law posed. (Para 41) |
[1] The four questions of law that the appellant had been granted leave to appeal under s 96 of the Courts of Judicature Act 1964 ("the CJA") concern an important area of the law of evidence and procedure. They are as follows:
(i) Where the contents/notations written on a document are disputed and/or alleged to have been added after the document was signed/initialled, are the contents/notations deemed proven upon the document being marked as an exhibit at trial?
(ii) Where the contents/notations written on a document are disputed and/or alleged to have been added after the document was signed/initialled, is it incumbent upon the party relying on the document and the disputed contents/notations to call the maker of the document and/or the author of the contents/notations to prove the same?
(iii) When a document is tendered and marked as an exhibit during a trial, is it incumbent upon the court to treat the entire contents of the said document as having been proven?
(iv) Where a document has been tendered and marked as an exhibit during a trial and part of its contents are disputed, is the court obliged to assess the veracity, truthfulness of the contents of the said document and the weight to be given to the said document on the basis of the oral and other documentary evidence adduced before the court?
[2] As can be seen, there is nothing novel about the questions. They relate to the trite and tested questions of burden of proof, admissibility of evidence and weight to be given to disputed documentary evidence produced and marked as exhibits during the course of the trial, the law on which is well settled and has not been the subject of any serious controversy as far as we are aware.
[3] The need for further argument before this court however arose due to the manner in which the court of Appeal dealt with the disputed documentary evidence which may cause confusion and uncertainty at trials, bearing in mind its written grounds of judgment as reported in Pioneer Conglomerate Sdn Bhd v. Tenggara Kapital Sdn Bhd ; , bind all courts below the court of Appeal based on the doctrine of stare decisis.
[4] It would be otherwise if no written grounds had been given, in which case the decision would have no binding effect: See the decision of this court in Tetuan Wan Shahrizal, Hari & Co v. PP ; [2023] 4 MLJ 1; [2023] 4 AMR 389 . The questions posed for our determination are therefore questions of importance upon which a decision of this court would be to the public advantagewithin the meaning of the second limb to s 96(a) of the CJA.
[5] The facts are simple. On 31 May 2019, the respondent (as plaintiff) filed a civil action in the High court against the appellant (as defendant) for the return of an interest free loan of RM7 million (Ringgit Malaysia Seven Million) that it had advanced to the appellant vide two cheques dated 3 November 2017 and 15 November 2017 in the sums of RM5 million and RM2 million respectively.
[6] The appellant admitted that it had received the said sum of RM7 million from the respondent but denied that it was an interest-free loan as claimed by the respondent. Rather, it was an agreed commission fee for the brokerage services it provided to the respondent for the acquisition of Ta Win Sdn Bhd ("Ta Win") shares, a public listed compan
