EVIDENCE LAW 1

1. Character evidence
Good character Bad character

2. Character evidence
• Section 52 to 55 of the Evidence Act 1950 deal with the
relevancy of character evidence.
• Character evidence in civil cases
• Section 52 provides in civil cases character to prove
conduct imputed (ascribed) irrelevant. It states that “In civil
cases the fact that the character of any person concerned in
such as to render (make) probable (likely) or improbable
any conduct imputed to him is irrelevant, except so far as
his character appears from facts otherwise relevant”. This
section provides that evidence of character does not assist
in the determination of the issues involved in a civil case.
• The exception to this rule can be found in section 55
where it provides for character as affecting damages
where it states “In civil cases the fact that the character
of any person is such as to affect the amount of damages
which he ought to receive is relevant”. The principle
underlying this section is based on the fact that in certain
types of civil actions the amount of damages to be awarded
would depend on character of a person. Character evidence
thus becomes a relevant fact in certain type of cases like
defamation cases; evidence of character of the plaintiff
would be relevant.
• In Sandison v Malayan Times Ltd [1964] MLJ 332 is a
defamation case where the previous conduct of the plaintiff
was considered by the court in assessing damages.

3. Character evidence
• Character evidence in criminal cases
• As for criminal cases, section 53 provides that “In criminal proceedings the fact that
the person accused is of a good character is relevant”.
• Per Mahajan J in Habeeb Mohamed v State of Hyderabab AIR 1954 SC 51 states “In
criminal proceedings a man’s character is often a matter of importance in explaining his
conduct and in judging his innocent or criminality. Many acts of an accused person would
be suspicious or free from all suspicion when we come to know the character of the person
by whom they are done. Even on the question of punishment an accused is allowed to prove
general good character”.
• However character evidence is a very weak type of evidence as stated by Subba Rao J in
Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682. Raja Azlan shah said in
Syed Ismail v PP [1967] 2 MLJ 123 that “In cases of bribery, like all criminal cases, the
golden rule is that the accused person cannot be convicted unless the court is satisfied
beyond reasonable doubt that he is guilty. This rule admits of no qualification in relation to
the character of the accused or of the witnesses. It cannot be argued that if the accused is of
bad character, persons who show tendencies towards perjury and fabrication of evidence
may be relied upon when giving evidence against him, though if the accused's character is
exemplary their evidence would be regarded as worthless on account of their inability to
adhere to the truth. But where the accused person in a bribery case pleads and produces
evidence of good character which the court regards as satisfactory, and if it appears to the
court that a person possessing such a character would not be likely to act, in the
circumstances proved to have existed at the time, in the manner alleged by the prosecution,
such improbability must be taken into account in determining the question whether or not
there is reasonable doubt as to the guilt of such accused person”.

4. Character evidence
• Character evidence in criminal cases
• However character evidence is a very weak type of
evidence as stated by Subba Rao J in Bhagwan Swarup v
State of Maharashtra AIR 1965 SC 682.
• Raja Azlan shah said in Syed Ismail v PP [1967] 2 MLJ
123 that “In cases of bribery, like all criminal cases, the
golden rule is that the accused person cannot be convicted
unless the court is satisfied beyond reasonable doubt that
he is guilty. This rule admits of no qualification in relation
to the character of the accused or of the witnesses. It
cannot be argued that if the accused is of bad character,
persons who show tendencies towards perjury and
fabrication of evidence may be relied upon when giving
evidence against him, though if the accused's character is
exemplary their evidence would be regarded as worthless
on account of their inability to adhere to the truth. But
where the accused person in a bribery case pleads and
produces evidence of good character which the court
regards as satisfactory, and if it appears to the court that a
person possessing such a character would not be likely to
act, in the circumstances proved to have existed at the
time, in the manner alleged by the prosecution, such
improbability must be taken into account in determining
the question whether or not there is reasonable doubt as to
the guilt of such accused person”.

5. Character evidence
• Character evidence in criminal cases
• Character evidence also plays a prominent role in the
sentencing process. It is accepted practice for the court to
inquire whether or not the accused person has previous
convictions before imposing sentence. Section 173A and
294 of the Criminal Procedure Code require the court to
have regard to the character of the accused before
imposing the sentence prescribed in those sections. Good
character is a matter that must be taken into account in
assessing sentence.
• Per Wee Chong Jin CJ in Melvani v PP [1971] 1 MLJ
137 states “Another ground was that the trial judge failed
to take into consideration the evidence of good
character… Similarly good character is always a
circumstance which a court ought to consider in assessing
sentence. Taking into consideration the fact that he had
pleaded guilty, the fact that he had a good character, the
fact that for a person in his situation in life a sentence of
imprisonment however short it may be would be a real
punishment for this offence in every sense of the word for
him and the fact that his other two co-accused were
sentenced to a lesser term of imprisonment I would
reduce the sentence to a similar term of two years”.

6. Character evidence
• Character evidence in criminal cases
• In Siah Ooi Choe v PP [1988] 2 MLJ 342, the appellant was
charged for having abetted an offence under section 406(a) of
the Companies Act (Cap.50, 1985 Ed.) by inducing a bank,
through deceitful means, to give credit to his company. Three
other similar charges of similarly inducing three other banks
on three separate occasions to grant credit to his company
were taken into consideration for the purpose of determining
the sentence. The appellant pleaded guilty to the charge and
was convicted and sentenced to a term of nine months'
imprisonment. He appealed against the sentence. The
appellant had an unblemished (Clear) record before the
commission of the present offences.
• Held, allowing the appeal (2) the charge preferred against
the appellant is one of the lowest levels in terms of
criminality under section 406(a) of the Companies
Act; (4) in the circumstances of this case and in particular
the background of the appellant's character and his
contribution to society and the country, the "clang of prison
gates" principle should apply. The principle is that in the case
of a man with an unblemished record, the fact that he has a
criminal conviction and finds himself in prison is a very
grave punishment and a short prison term should in certain
circumstances suffice. This was a case par excellence where a
short term of imprisonment was adequate punishment; (5) a
term of imprisonment of three months would be adequate in
all the circumstances. The sentence of nine months'
imprisonment was set aside and a sentence of three months
was substituted.

7. Character evidence
• Section 53 must be read with section 54 of the Act. section 54
provides for the previous bad character not relevant except in reply
where is states that in subsection (1) In criminal proceedings the fact
that the accused person has a bad character is irrelevant, unless
evidence has been given that he has a good character, in which case
it becomes relevant.
• Explanation 1 clearly provides that “This section does not apply to
cases in which the bad character of any person is itself a fact in
issue”.
• (See Wong See Har v PP [1968] 1 MLJ 32) and explanation 2
provides that “A previous conviction is relevant as evidence of bad
character”. Section 54 lays down the general rule that in criminal
proceedings, the fact that the accused has a bad character is
irrelevant.

8. Character evidence
• Examples of cases where evidence of bad character was excluded
• In the case of Lim Kong v PP [1962] MLJ 195 Adams J referred to some cases where
evidence led showed that the accused either had previously convicted or was guilty of
some grave moral misconduct.
• In the case of Loke Soo Har v Public Prosecutor [1954] MLJ 149 evidence came out
that the accused was a notorious pickpocket.
• In the case of Balasingham v Public Prosecutor [1959] MLJ 193 the evidence was that
the accused "caused trouble to others".
• In the case of R v Bartlett [1959] Cr LR 285 where the accused was charged with
indecent assault evidence was given that an obscene photograph was found in his
possession at the time of his arrest.
• In Austin's case [1958] Cr Cases and Comment 93 on a charge of stealing, evidence
was given that the accused had falsified an income tax return and had been convicted. In
Rodley's case 9 Cr App R 69 evidence of immoral conduct subsequent to the
commission of housebreaking with intent to rape was held to be inadmissible.
• In Morrissey's case 23 Cr App R 189 questions were asked tending to establish that the
accused had previously robbed church money boxes.
• In Taylor's case 25 Cr App R 46 as a result of questions by the Judge it was necessary
to disclose previous convictions by defence counsel. Here the conviction was quashed.
• In Palmer's case 25 Cr App R 97 the jury about to try the prisoner happened to
overhear counsel in the previous case referring to his client as the son of a notorious
shoplifter, who was the accused to be tried by that jury.

9. Character evidence
• Examples of cases where evidence of bad character was excluded
• In Muthusamy v PP [1948] MLJ 57, Taylor J said that evidence adduced to
show that the accused is a quarrelsome person and that he had quarreled before
and on other occasions is irrelevant.
• In Girdari Lall v PP [1946] MLJ 87 the police photograph of the first accused
was produced and put in evidence. It mounted on a card with several other
photos of Indians. It bore a police number and was a combined profile and full
face photo. McElwaine CJ said that it was obviously a police record and putting
it in evidence was tantamount to saying that the accused was of bad character.
• His Lordship also referred to the case of Lai Ah Kam v R [1939] MLJ 306
where the Colony Court of Criminal Appeal following R v Dwyer [1925] 2 KB
799 quashed a conviction because such a photograph was shown to the jury.
• In PP v Choo Chuan Wong [1992] 2 CLJ 1242, Edgar Joseph Jr in
disallowing questions put by the prosecution to the witness as to whether he
was a gangster said at page 1250 that “…the learned deputy…asked him if he
was a gangster but, upon objection being taken by learned counsel for the
defense, I disallowed the question on the ground that the question, if answered
in the affirmative, would be evidence of bad character and such evidence would
be inadmissible”.

10. MOTIVE
SIMILAR
FACT
EVIDENCE
RES
GESTAE
EXCEPTIONS

11. Character evidence• Admissibility of character evidence under other
provisions of the Act
• It must be noted that section 54 has no application to
character evidence being rendered admissible by other
provisions of the Act.
• In Wong Foh Hin v PP [1964] MLJ 149 the appellant was
convicted of the murder of his daughter. Evidence was
admitted at the trial of an incident 3 months before the
daughter's death where the wife had complained to the
village headman that the appellant had "interfered with his
daughter and that the matter had been disposed of by the
village headman stating that if this occurred again the matter
would be reported to the police. On appeal the sole question
was whether the evidence of the above incident and also
evidence of a similar incident just before the daughter's
death were properly admitted. It was contended for the
appellant that (i) the evidence of the incidents which
suggested an incestuous relationship between the appellant
and his daughter amounted to evidence of bad character and
was therefore inadmissible (it) and alternatively if it was
admissible the trial Judge should have exercised his
discretion to exclude it on grounds that its pre-judicial effect
far outweighed its probative value.
• Held: (1) the evidence of the incidents was admissible. It
was not rendered inadmissible merely because it tended to
show bad character or the commission of another offence;
(2) in this case as there was only circumstantial evidence of
the murder, strong and convincing evidence of motive would
probably have high evidential value.

12. Character evidence
• The other provisions of the Act under which such
evidence may be adduced are as follows:
a) Section (Evidence of res gestae)
• If the evidence complained of forms part of res gestae it
is admissible as it is on entirely different footing to
evidence tending to show the previous bad character of
an accused. Per Buttrose J in Kanapathy v R [1960]
MLJ 26 states “The whole of that evidence was, in my
opinion, clearly part of the res gestae and was material
and relevant. It is on an entirely different footing to
evidence tending to show the previous bad character of
an accused person which would have been
inadmissible”.

13. Character evidence
• The other provisions of the Act under which such evidence may be
adduced are as follows:
b) Section 8 (Motive)
• If the evidence of bad character indicates the motive in respect of
the offence for which the accused is charged then it is admissible.
In Wong Foh Hin v PP [1964] MLJ 149, the judge states “The
evidence objected to is clearly the strongest possible evidence of
motive. This applies to the evidence of both incidents. For the
evidence concerning the interview with the Orang Tua on the first
occasion shows how strong the motive must have been when the
wife went off in the night time on the second occasion. It showed
that applicant was likely to be very concerned that this time there
would be a police investigation and the daughter would be the
most important person the police would interview and the most
dangerous from his point of view”.

14. Character evidence
• The other provisions of the Act under which such
evidence may be adduced are as follows:
c) Similar fact evidence
• If the acts sought to be proved are so connected with the
offence charged as to form part of the evidence upon
which it is proved then it is admissible. Per Thomson J in
Rauf Bin Haji Ahmad v PP [1950] MLJ 190 where
amount the issue discussed were on the admissibility of
evidence tending to show accused is guilty of criminal acts
other than those charged states “ Such evidence therefore
cannot be admitted unless it be relevant to the issues
actually in contest and as to when it is so relevant”.

15. Character evidence
• Application of the section
a) Evidence of subsequent conduct
• Evidence of subsequent conduct is not evidence of bad character. In PP v Omar
Bin Daud (Penang Criminal Trial No 58-3-84, unreported) Counsel for the
first accused asked the second accused about his attempt to escape from prison
while on remand. Counsel for the second accused objected to this line of
questioning saying that if the question is allowed it would lead to the
introduction of evidence of bad character against second accused. In overruling
the objection, Edgar Joseph Jr J said at pages 51 – 52 that “I was of the view,
however, that the evidence sought to be elicited by the question would not be
evidence of bad character; it merely evidence of the subsequent conduct of the
accused and would be admissible under section 8 of the Evidence Act”.
b) Evidence of other pending charges
• Evidence relating to other charges “pending” against the accused is not
admissible under section 54 of the Act as it tends to show that he had committed
those other offences. (See Datuk Haji Harun Haji Idris v PP [1977] 2 MLJ
155).