S. 114(g) and the withholding of Expert evidence: Case Analysis of Fung Shaw Yiew (CA)

S. 114(g) EA 1950

S. 114(g) of the Evidence Act 1950 is oft-misunderstood. The assumption would be that not calling a witness will automatically give rise to an adverse inference being drawn.

This is untrue.

S. 114(g) provides:

114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.

The court may presume—

(g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

In Pannir Selvam v Tan Chia Foo [2021] 7 MLJ 384, Evrol Mariette JC (presiding Judge) noted that a 114(g) adverse inference could only be drawn if there was a deliberate withholding of evidence.

Her Ladyship determined that the evidence withheld must also be relevant and material. A deliberate withholding may be inferred from a lack of a reasonable explanation to produce a witness.

Case Analysis of Fung Shaw Yiew (CA)

Recently, the CA in PBB v Fung Shaw Yiew & 2 ors. (heard together with Fung Lee Mee v Fung Shaw Yiew & 2 ors.) [Civil Appeal No.: S-01(NCVC)(W)-379-08/2020] considered the drawing of an adverse inference in the context of expert evidence.

The facts

Fung Shaw Yiew involved a tragic family dispute.

A father died in 1991. He left a commercial corner-lot shoplot.

The shoplot was transferred into the names of his 5 daughters in 1992.

In 2004, a Memorandum of Transfer (MOT) was signed by Fung Shaw Yiew (P) to transfer the shoplot into the name of Fung Lee Mee (D).

D charged the property to Public Bank Berhad (PBB) for a loan of RM220,000. D contended that a secret trust was established by the father for the benefit of their mother. D transferred a sum of RM170,000 (from the loan) to their mother.

The dispute

In 2014, the Plaintiff claimed that the MOT had been forged by the Defendants. The Plaintiff sought to set-aside the MOT and dismantle the entire transaction (including the charge placed on the shoplot by PBB).

PBB was added as a Defendant to the suit.

At trial

At trial, it transpired that P had lodged a police report in 2014 on the purported forgery.

The police testified that they had conducted their investigation and a Chemist’s Report had been prepared. However, said Chemist's Report was not tendered into evidence. The police claimed that the document was ‘classified’ and that the investigation was ongoing.

P never wrote to ask for the chemist’s report to be released and/or declassified.

The trial proceeded without any expert evidence being called. At trial, the learned HCJ concluded that the MOT was a forgery. The entire transaction was rescinded and PBB’s charge was set-aside.

The appeal

Dissatisfied, D and PBB appealed.

The core focus of the CA was whether there had been a withholding of the chemist’s report by P. After all, the chemist’s report would have proven conclusively whether there was a forgery or not.

Decision of the CA

The CA allowed both PBB and D’s appeal.

The CA discussed the need to call expert evidence in a matter. The CA applied the FC decision of Letchumanan Chettiar v Secure Plantation [2017] 4 MLJ 697 and noted that expert evidence is not the be-all and end-all evidence in determining forgery. However, the CA cautioned as follows:

[38] It is an entirely distinct circumstance between:

a. Consciously opting to not opt for handwriting expert in full belief of other circumstantial evidence surrounding the case; and

b. Surreptitiously withholding a chemist report upon the signatures when the chemist report already existed and should have been made available for the Court’s benefit and scrutiny.

[39] If a chemist report on the signatures has already existed, then the best evidence rule would dictate that the chemist report should be the best evidence that the Plaintiffs should have tendered into Court for examination at trial. The chemist report would then be the ‘best evidence’.

As such, one can certainly run a case on circumstantial evidence. However, if one has procured expert evidence and then refuses to divulge the same, that would give rise to the adverse inference.

The CA noted that no attempt was made by P to have the chemist’s report released:

[40] There was neither any evidence led by the Plaintiffs that any attempt was made to secure the release or ‘declassification’ of the chemist report. The Plaintiffs knew that the chemist report existed, and simply let it remain idle within the Police’s archives for almost a decade. There was not even a letter produced to show the Plaintiffs’ genuine attempt of securing the chemist report. It was resoundingly obvious that the Plaintiffs were disinterested in shedding light onto the truth by scientific means.

Her Ladyship Azimah proceeded to hold that an adverse inference was to be drawn against P for the deliberate withholding of the chemist’s report:

[41] It is only when there was no expert evidence at all that the best evidence available to the Court would be the other evidence surrounding the case. Thus, it would be remiss if we were to let this glaring withholding of evidence by the Plaintiffs to remain unscathed. We must justly and appropriately draw the necessary adverse inference under Section 114(g) of the Evidence Act 1950 for the Plaintiffs’ failure and refusal to tender the chemist report especially when it was readily testified by their own witness that the chemist report was already in existence. We cannot stand by and accept the lacklustre excuse that the chemist report was still ‘classified’ after almost 10 years of ‘investigation’ into the authenticity of their signatures. It is only just and appropriate that the Federal Court decision in Letchumanan (supra) be distinguished from the case before us.

?

The CA also noted that the learned HCJ had failed to conduct an examination of the impugned signatures:

[45] We have examined the Learned Judge’s judgment and we found no measure at all of any examination as to the discrepancy or at least degree of discrepancy in the alleged forgeries perpetrated by the 1st Defendant. Thus, it is unfortunately clear that the Learned Judge has failed to address her mind of these qualifications before her examination into the circumstantial evidence surrounding the case. This alone was an appealable error and failure of judicial appreciation of evidence.

The CA undertook a discussion as to the failure of the learned HCJ to give due weight to the testimony of the disinterested, objective witnesses from the Land Office, who witnessed P’s signature on the MOT (paragraphs 76-78, GOJ).

The CA ultimately held that the appeal would be allowed with costs.

Analysis and key takeaways

From Fung Shaw Yiew, it is manifest that there exists a duty upon a Plaintiff to prove what one asserts. The adage of “she who asserts must prove” holds true. The HC failed to judicially appreciate that P’s case hinged totally on their own self-serving assertion that the document was a forgery.

An interesting discussion was also undertaken by the CA on the classification of Part A documents. At trial, several documents (including the MOT) were marked as “Part A” documents (please see a previous article of mine on the Bundles A, B and C of trial).

The learned HCJ was rather “taken” by the classification of documents by D as Part A documents (paragraphs 25(b) and 47 of the GOJ). The learned HCJ took the classification of these documents as Part A documents to be equated with an admission that P was to retain her 1/5 portion in the shoplot.

However, P had also marked the MOT as a Part A document.

Whilst not the focus of the judgment, the remarks of the CA bear repetition:

[56] In fact, if we were to go by the Learned Judge’s logic on the supposed ‘admission’ via the placement of the Documents in Part A, then the same logic should equally apply to fortify the Defendants’ case. It must be minded that the Land Title to the Property (which bears endorsement of the transfers under the MOT), and the Memorandum of Charge to the 3rd Defendant Bank were also classified as Part A Documents (“Defendants’ Documents”). Thus, by the same reasoning, the Learned Judge should have similarly found that the Plaintiffs have admitted to the truth of their signing of the MOT and the valid creation of the charge under the Trust.

This ought to serve as a cautionary tale to solicitors with regard to the marking of documents.

Conclusion

Fung Shaw Yiew discusses an interesting aspect of S. 114(g), in the context of expert evidence. From the above, it is clear that parties are not at liberty to discard evidence as and when it pleases them.

The chemist’s report (which was relevant and material) would have conclusively determined whether P’s signature on the MOT was a forgery. With P knowing that said document existed (and then proceeding nonchalantly to trial without said document) correctly gave rise to an adverse inference being drawn against her.

GAVIN JAYAPAL

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