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Chapter VII · Burden of Proof

114. Court may presume existence of certain fact

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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—

(a)

that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b)

that an accomplice is unworthy of credit unless he is corroborated in material particulars;

(c)

that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration;

Evidence 81

(d)

that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist is still in existence;

(e)

that judicial and official acts have been regularly performed;

(f)

that the common course of business has been followed in particular cases;

(g)

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

(h)

that if a man refuses to answer a question which he is not compelled to answer by law, the answer if given would be unfavourable to him;

(i)

that when a document creating an obligation is in the hands of the obligor the obligation has been discharged.

But the court shall also have regard to such facts as the following, in considering whether the maxims do or do not apply to the particular case before it:

(i)

as to illustration (a)—a shopkeeper has in his till a marked ringgit soon after it was stolen and cannot account for its possession specifically but is continually receiving ringgit in the course of his business;

(ii)

as to illustration (b)—A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done and admits and explains the common carelessness of A and himself;

(iii)

as to illustration (b)—a crime is committed by several persons. A,

B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating

D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

(iv)

as to illustration (c)—A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person completely under A’s influence;

(v)

as to illustration (d)—it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;

(vi)

as to illustration (e)—a judicial act, the regularity of which is in question, was performed under exceptional circumstances;

(vii)

as to illustration (f)—the question is whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;

(viii)

as to illustration (g)—a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feeling and reputation of his family;

(ix)

as to illustration (h)—a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

(x)

as to illustration (i)—a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

Presumption of fact in publication 114a.  (1)  A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2)

A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3)

Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

(4)

For the purpose of this section—

(a)

“network service” and “network service provider” have the meaning assigned to them in section 6 of the

Communications and Multimedia Act 1998 [Act 588];

and

(b)

“publication” means a statement or a representation, whether in written, printed, pictorial, film, graphical, acoustic or other form displayed on the screen of a computer.

Evidence 83

Report

Chapter VIII

Estoppel

Read on from Chapter VIII

Chapter IX

Witnesses

Read on from Chapter IX

Chapter X

Examination of Witnesses

Read on from Chapter X

Chapter XI

Improper Admission and Rejection of Evidence

Read on from Chapter XI