THE UPDATE SCOOP (#1/2025)

Recantation of Evidence, Burden of Proof, Interested and Expert Witnesses  │  Law of Evidence

 

By TAY & HELEN WONG – March 13, 2025

 

The Federal Court in Teoh Kiang Hong v Theow Say Know @ Teoh Kiang Seng, Henry [2025] made several interesting and vital findings of law on evidence which we summarize into five headings for ease of reading. Before that, however, we shall briefly set forth the facts.

The case which concerned the shareholders’ disputes between two siblings in family companies, namely Gary who is the youngest brother and Henry who is the eldest brother, manifested itself in three suits :- (i) a suit filed by Henry, his mother and others against Gary and others on the ground of constructive trust pertaining to fraudulent transfer of 4 parcels of land held by family companies to Gary; (ii) a suit by Henry against solicitors on grounds of conspiracy and fraud in respect of the sale and purchase agreements of the land; and (iii) a suit by Gary against Henry for the performance of a share sale agreement for the sale of Henry’s share in the family companies to Gary where Henry alleged forgery of his signature.

 

1. Recantation of Evidence

At the trial, the mother who was a co-plaintiff with Henry had elected to forego her re-examination, changed her stance and later withdrew herself as a plaintiff. Her conduct had raised a conflict in the courts below as to the admissibility and weight to be attached to her evidence following her change of stance. She later lodged a police report stating that she had lied when giving evidence on oath and that she was coached as to what to say by Henry and her former lawyers. Her police report was tendered and Gary’s counsel crossed examined her but not Henry’s counsel. The mother eventually withdrew as a party.

The trial Judge regarded her conduct as a “recantation of evidence”. It is a form of retraction or withdrawal of prior testimony. However, neither the word ‘recantation’ nor the procedure related to it are found in our Evidence Act 1950. The Court of Appeal (COA) had ruled on the two-stage application procedure where the leave of the court was sought to recall the witness; and that the effect of a recantation would be the total rejection of the evidence of the recanted witness. This was however over-turned by the Federal Court as incorrect. The apex court held that any recantation or retraction of evidence during the trial was a matter for assessment of evidence of the alleged unreliable witness. Great care and scrutiny ought to be exercised in assessing the credibility and the cogency of the evidence following a recantation.

On the question posed whether the principles stated in Khoon Chye Hin v PP[1961] to determine the evidence of a witness who has changed his testimony would also apply to a witness who has recanted his evidence, the apex court answered it in the affirmative. The principle is that a witness who tenders inconsistent and contradictory evidence is not a reliable witness and as a matter of prudence, the rest of his evidence must be scrutinised with great care and caution; however, his evidence need not be rejected as a whole. It was further held that although recantation or retraction of evidence may not be entirely the same as mere inconsistencies or discrepancies or contradictories in one’s evidence, they all share one commonality, namely, changes made to prior evidence. Hence, the principle in Khoon Chye Hin v PP is to be followed; and it boils down to a matter of proper appreciation and assessment of the evidence under scrutiny by the court when dealing with a witness who has recanted, whose credibility is being impugned.

 

2. Burden of Proof

Henry claimed that his signature in the share sale agreement (the SSA) was forged. Who bears the burden of proof ? The trial Judge placed the burden on Henry to prove that his signature was a forgery; the COA ruled otherwise, that the burden remained on Gary to prove the validity and genuineness of the SSA. Thus, the question of law was “whether the COA misdirected itself with regard to the principles set out in Letchumanan Chettiar Alagappan & Ors v Secure Plantation Sdn Bhd [2017] in relation to whether the onus of proof lies with the party asserting forgery or whether the onus of proof lies with the counter party relying on the existence of the said instrument or document to prove its validity and genuineness?”.

The apex court sided with the High Court in this regard. It was Henry who alleged that his signature was forgery, applying the Latin maxim “onus probandi incumbit ei qui dicit, non ei qui negat” (the burden of proof lies with the one who speaks, not the one who denies the same). The COA had misdirected themselves on the principles in Letchumanan.  It was pointed out that the trial judge was satisfied, after evaluating the evidence, that Gary had discharged the burden of proving his claim that the SSA existed and that it was a valid agreement. Hence, the burden to prove forgery was correctly imposed on Henry as such assertion of forgery emanated from him in his defence against Gary’s claim.

When one “relies on some new matter which, if true, is an answer to it, the burden of proof changes sides …” and as such, this new matter, namely forgery which was raised by Henry in his statement of defence, if successful, would be a complete answer to Gary’s case. And this requires that Henry would have to discharge the burden of proving forgery that had shifted to him.

 

3. Interested Witness

Khor was the attesting solicitor of the SSA and was a defendant in one of the suits. What was the weight to be given to the evidence of Khor ? The trial Judge found that he was unlikely to concoct a fraudulent story as he had no interest under the SSA whilst the COA regarded Khor hardly a disinterested witness given the fact that he was a defendant in another suit by Henry.

The Federal Court disagreed with the COA’s findings. The COA erred in law in holding that a witness would be deemed to be an interested witness merely because he was sued as a defendant or he was a party to the suit or engaged by one. There ought to be proof obtained through the examination of witnesses that a witness is an interested witness. In the absence of any finding of fraud, conspiracy or impropriety on the part of an attesting solicitor, it is wrong in law to consider the attesting solicitor an interested witness solely for the reason that the attesting solicitor is made a party to the suit and thereby rejecting his/her evidence in totality.

The apex court combed through past authorities on the law relating to interested witness. Even when a person is considered an interested witness in any capacity or to any extent, there is no legal presumption that an interested witness should not be believed. He is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances.  In the instant case, the apex court deferred to the trial Judge’s findings of Khor’ evidence. Khor was a disinterested witness who had witnesses the signing of the SSA by Henry and who was unlikely to concoct a fraudulent story as to the existence of the SSA as he accrued no interest under it nor was he paid for the preparation of the SSA.

 

4. Expert Witnesses

Both parties had engaged their own handwriting expert witnesses. Henry used an unpaid government expert witness (PW5) whilst Gary used a paid expert witness (DW2). The trial Judge preferred the evidence of DW2 whilst the COA preferred that of PW5. The apex court pointed out the COA, when analyzing the evidence of both PW5 and DW2, did not show how it compared and contrasted their evidence — when justifying the acceptance of one over another, and how it was satisfied as to the consistency and confidence of a witness’ evidence based on the written evidence. On the other hand, the trial judge had considered the production by DW2 of hard evidence, i.e., the specimens used for comparison against the impugned signature while PW5 did not. Moreover, the documents from where the specimens were obtained and used for analysis by DW2 were not disputed by Henry. The satisfaction or otherwise of the trial judge in this respect ought to have been given due deference by the COA as those reasons advanced by him were substantiated by evidence. As such, his conclusion was therefore not plainly wrong to warrant intervention by the COA.

The apex court however held that the COA had not stated its preference of PW5 to DW2 based on the ground of the expert witness (DW2) having been paid. By way of obiter dicta, even though the court has the discretion to choose one expert’s opinion over the other, preferring the evidence of a government expert as opposed to that of an expert witness from the private sector, merely because the latter expert witness was paid for his services by one of the parties, whereas the government expert was not, would not provide a valid or reasonable ground to premise a conclusion.

 

5. Concurrent Finding of Fact

It was urged upon the Federal Court that the COA was the final court of facts such that pure findings of facts were immune from challenge before the Federal Court. The apex court rejected such proposition. Whilst it is trite that the Federal Court will not intervene in concurrent findings of facts by both the High Court and COA,  where there exists conflicting findings of facts by the two courts below, the apex court will examine how and why the COA had reversed the the trial judge’s findings of facts within the parameters permitted by the extent of the questions of law.

 

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Tags: [recantation] [changed testimony] [burden proof] [interested witness] [expert witness] [concurrent findings]