THE UPDATE SCOOP (#6/2025)
“Proof of Documents Tampered With” | Evidence Law
By TAY & HELEN WONG – 25 June, 2025
In a strongly worded decision, the Federal Court reversed the decision of the Court of Appeal in Live Capital Sdn Bhd v Pioneer Conglomerate Sdn Bhd [2025]. The facts are uncomplicated. P claimed against D for the return of an interest-free loan of RM7 million that it had advanced vide 2 cheques. D denied that it was an interest-free loan but it was an agreed non-refundable commission fee for the brokerage services that D had provided to P. There were two (2) vouchers for the issuance of the 2 cheques. In the first one, DW2 on behalf of D confirmed he had signed on the voucher but maintained that the typewritten words “Being paid as Advance to Tenggara Kapital Sdn Bhd” were not there at the time he signed the document (Tenggara Kapital was the former name of D). Such words gave the impression that the amount was an advance as per P’s claim and not a commission as pleaded by D. In the other voucher, there was a deletion of the typed-words “Being ===” which were substituted with the handwritten notation “Advance to Tenggara”. Likewise, the handwritten notation was not there when DW2 signed the document. Similar impression was projected as in the first voucher.
Both the documents were in Part C documents, meaning both the authenticity and contents of the documents were disputed and required strict proof. At the trial, during the examination of PW1 whose company prepared the vouchers, they were marked as IDP1 and IDP2, meaning the documents were produced for identification purpose only and not to prove authenticity or truth of the contents. At the defence stage, during the examination of DW2, he confirmed that the two signatures on the two vouchers were his. P’s counsel’s moved for the documents to be marked as “exhibits” but it was objected by D’s counsel. The learned trial Judge resolved the disagreement by marking them as exhibits P1 and P2 “conditionally”, reserving D’s right in disputing the correctness or otherwise of the content/description of the vouchers (the Notations) at submissions stage.
As it turned out, P did not adduce any evidence to explain the Notations (when made and who added the same on the vouchers after DW2 had signed). The High Court ruled in favour of D and held that P had failed to produce any cogent evidence to prove the genuineness of the vouchers and to discharge its burden of proof that the RM7 million was an advance.
The Court of Appeal (the COA) however over-turned the trial Judge decision. Among others, the COA held that the evidential burden had shifted to D to prove the RM7 million was not an interest-free advance, which D failed. That the Notations were added after DW2 had signed on the vouchers was tantamount to an allegation of forgery and/or tampering which had to be proven by D but D failed. Thus, the trial Judge ought to have accepted the contents of the vouchers as the truth and to enter judgment for P.
The apex court disagreed with the COA findings. Firstly, the conditions for the admission of the two vouchers under s.73A(1) of the Evidence Act 1950 had not been fulfilled. The originals were not produced, and no reasonable efforts had been shown to have been made to find the maker(s). DW2 was not the maker of the documents. Both the clerk and company secretary of P would have been in a position to adduce the best evidence available as they would be able to testify on the Notations. They were not called; and adverse inference was invoked against P for failing to call material witness.
In the words of the final appellate court, what the COA set as a dangerous precedent was that the authenticity and contents of disputed documents, i.e. Part C documents, need not be verified by the maker of the documents before they could be admitted in evidence and that all that was required of the party seeking to rely on such documents was to have them marked as exhibits, and once that was done, the contents of the documents were deemed to be the truth. Such procedure adopted was wrong. Unless the authenticity of the two vouchers had been verified by calling the maker(s) of the documents, the contents of the documents remained hearsay as the purpose of producing them was to prove the truth of the contents and not merely to prove that the Notation and alterations were made. They were, therefore, caught by the rule against hearsay. A document could not be admitted in evidence and marked as such until it had been properly proven. Such a document had no evidential value, was irrelevant and should not be admitted in evidence, and if admitted, must be disregarded.
The four questions of law posed to the Federal Court were thus answered as follows “
(1) 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?
Answer: No.
(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?
Answer: Yes.
(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?
Answer: No.
(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?
Answer: Yes, provided the document has been properly admitted in evidence.
D’s appeal was allowed with costs.
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Tags: [admissibility of disputed document] [marking as exhibit] [proof of contents before marking] [who to call maker or author of document] [s 78A Evidence Act 1950] [burden of proof]