The document discusses the principles of similar fact evidence in Malaysian law. It begins by explaining similar fact evidence and its exceptions under sections 11(b), 14 and 15 of the Evidence Act 1950. It then summarizes several important court cases that shaped the application of similar fact evidence, including Makin v AG for New South Wales, which established the general rule that previous misconduct cannot be used to prove guilt, and the Boardman case, which reformulated the Makin rule. The document analyzes how Malaysian courts have applied the Makin approach to determine whether similar fact evidence is relevant and if its probative value outweighs unfair prejudice.

1. Similar fact evidence
BOARDMAN
PRINCIPLE
DPP v P
PRINCIPLE
MAKIN
PRINCIPLE
SIMILAR
FACT
EVIDENCE

2. Similar fact evidence
• Similar fact evidence concerns circumstances in which an accused person's
previous misconduct, other than that which gives rise to the offence charged, is
made admissible to prove guilt, by virtue of them being similar to the offence.
• The similar fact evidence rule has long been accepted by judges to be
applicable under sections 11(b), 14 and 15 of the Evidence Act 1950 for ease
of understanding, these provisions are reproduced below.
• Section 11 provides facts not otherwise relevant are relevant (b) if by
themselves or in connection with other facts they make the existence or non-
existence of any fact in issue or relevant fact highly probable or improbable.
• Section 14 provides facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or good-will
towards any particular person, or showing the existence of any state of body or
bodily feeling, are relevant when the existence of any such state of mind or
body or bodily feeling is in issue or relevant.
• Section 15 provides when there is a question whether an act was accidental or
intentional or done with a particular knowledge or intention, the fact that the act
formed part of a series of similar occurrences, in each of which the person
doing the act was concerned, is relevant.

3. Similar fact evidence
• Under section 14 of the EA 1950, the general principle of law is that all
evidence of res inter alios actae is not admissible.
• This is a technical phrase which signifies acts of others. Evidence excluded
under this rule are the acts and declarations of a party with a third party, on the
ground that they have nothing to do with the present dispute. In criminal cases
such evidence of previous acts or conduct not covered by the charge for which
the accused is being tried is not admissible.
• This rule was spelt out in clear terms by the Privy Council in Makin v AG for
New South wales [1894] AC 57. In citing that case with approval, Thomson J
said in Rauf Bin Haji Ahmad v PP [1950] MLJ 190 that “The general principle
as to this type of evidence is contained in the following much quoted passage
from the judgment of Lord Herschell, L.C., in the case of Makin v Attorney-
General for New South Wales (1894) AC 57 at p 65 "It is undoubtedly not
competent for the prosecution to adduce evidence tending to show that the
accused has been guilty of criminal acts other than those covered by the
indictment, for the purpose of leading to the conclusion that the accused is a
person likely from his criminal conduct or character to have committed the
offence for which he is being tried."

4. Similar fact evidence
• The reason for the exclusion of such evidence is to be found in the following passage
from the judgment of Kennedy J. in the case of Rex v Bond (1906) 2 KB 389 at p 397:-
"It may be laid down as a general rule in criminal as in civil cases that the evidence
must be confined to the point in issue: ... When a prisoner is charged with an offence
it is of the utmost importance to him that the facts laid before the jury should consist
exclusively of the transaction which forms the subject of the indictment which alone
he can be expected to come prepared to answer. It is therefore a general rule that the
facts proved must be strictly relevant to the particular charge and have no reference to
any conduct of prisoner unconnected with such charge."
• An illustration of the general rule where evidence was erroneously admitted to suggest
that the accused had committed a similar offence on a different occasion is provided by
the case of Wong Kok Wah v R [1955] MLJ 46 where in this case at the trial of the
appellant for being in possession of uncustomed goods, evidence was given by
prosecution witness that he had been arrested for carrying certain goods of the appellant
which were Headache powders similar to those in respect of which the appellant was
charged. This witness stated that the appellant gave him the goods when he was going
off duty and that the appellant asked him to take the goods to a rubber go down and wait
for him. The witness said he was arrested before he could reach his rendezvous (meet).
Held: (1) the evidence of the witness was clearly evidence tending to suggest that
the appellant had committed a similar offence on a different occasion;
(2) such evidence was not admissible as it went to show merely that the
appellant was likely to have committed the offence charged and therefore
should not have been admitted.

5. Similar fact evidence
• In Yong Sang v PP [1955] MLJ 131, where this was an appeal against the
conviction of the appellant on a charge of having terrorist documents under his
control in contravention of reg. 6D(1) of the Emergency Regulations. The
appellant was driving a lorry when it was stopped by a party of home guards.
There were 11 people altogether in the lorry including the regular driver of the
lorry. The lorry was searched and in the seat of the driver were found two letters
which were terrorist documents within the meaning of the Emergency Regulations.
The appeal was brought on two main grounds: (a) the evidence was wrongly led
that the appellant had been seen on two occasions in association with terrorists,
and (b) there was no proof that the appellant knew of the presence of the terrorist
documents in the lorry.
• Held: (1) the evidence of association with the terrorists tended to show that
the appellant was the sort of person who was likely to commit the offence and
was therefore wrongly admitted.
• In Balasingham v PP [1959] MLJ 193 “Evidence that the appellant "caused
trouble to others" is evidence that he is a person likely to have committed the
offence, and is irrelevant and inadmissible”. In Chew Ming v PP [1960] MLJ
11 “Theoretically no offence is committed except by a person who by reason
either of psychological or moral deficiency is likely to commit offences. In that
sense any evidence as to character or disposition has at least some limited
probative value. However, the accepted rule of law is that such general
evidence is not admissible, and to make any evidence of disposition admissible
there must be some particular connection between it and the identity of the
person who has committed a crime”.

6. Similar fact evidence
• In Poon Soh Har v PP [1977] 2 MLJ 126, Held: (1) the
evidence in respect of past criminal activities of the
appellants was inadmissible; (2) the evidence in this case
was inadequate to convict the appellants on the charge
they were tried;
(3) to possess a drug for the purpose of trafficking is
something totally different from the act of "trafficking"
as defined in section 2 of the Act; (4) there was no
evidence on which the second appellant could have been
convicted of any offence under the Act. As for the first
appellant, he was guilty of the offence of having in his
possession 55.2 gms of heroin in contravention of section
6(a) of the Act. He was sentenced to 10 years'
imprisonment.

7. Similar fact evidence
• Exceptions to the general rule
• Generally, the evidence of bad character of the
accused is inadmissible because it has
prejudicial effect. However, there is an
exception to the general rule because it is
directed at the probative of the guilt. Under the
Act there are three exceptions to the general
rule. These three exceptions are contained in
sections relating to what is commonly referred
to as “similar fact evidence”. They are section
11 (b), 14 and 15 of EA 1950.

8. Similar fact evidence
• The Makin’s case
• Makin v. Attorney General for New South Wales
(1894) AC 57 is a famous decision of the Privy
Council where the modern common law rule of
similar fact evidence first originated. A husband and
wife were charged with murdering a child they were
fostering and burying it in their backyard. During
their trial evidence of twelve other babies found
buried in the backyards of their previous residences
was offered as evidence. The appeal was based on
whether this evidence was admissible or whether it
was unfairly prejudicial to their defence.
• Lord Hershell held that the evidence, in this case,
was admissible, however, as a general rule evidence
of a past similar event should not be admissible
unless there are exceptional circumstances. Their
Lordships of the Privy Council laid down the
following two principles namely:

9. Similar fact evidence
• The Makin’s case
• “It is undoubtedly not competent for the
prosecution to adduce evidence tending to
show that the accused has been guilty of
criminal acts other than those covered by
the indictment, for the purpose of leading to
the conclusion that the accused is a person
likely from his criminal conduct or
character to have committed the offence for
which he is being tried”. and

10. Similar fact evidence
• The Makin’s case
• “On the other hand, the mere fact that the evidence
adduced tends to show the commission of other crimes
does not render it inadmissible if it be relevant to an
issue before the jury, and it may be so relevant if it bears
upon the question whether the acts alleged to constitute
the crime charged in the indictment were designed or
accidental, or to rebut a defence which would otherwise
be open to the accused. The statement of these general
principles is easy, but it is obvious that it may often be
very difficult to draw the line and to decide whether a
particular piece of evidence is on the one side or the
other”.

11. Similar fact evidence
Makin’s case
SFE is
inadmissible
SFE is
admissible
Prejudice Relevant
1st
Limb 2nd
Limb
Categorization
approach

12. Similar fact evidence
• Evidence of similar facts can only be admitted if it is both relevant and probative to a
degree that it substantially outweighs the unfair prejudicial effect. The Makins approach
was applied in the Malaysian cases below:
• X v. PP [1951] MLJ 10 where the appellant in this case was charged and convicted
under Regulation 4C(1) of the Emergency Regulations, 1948. The case for the
prosecution was that the appellant, who was a tapper on an estate in Johore, on or about
the 14th October, 1950, went to the bungalow of a member of the staff of the estate, and
told him that the bandits came and wanted some money from him, that the appellant first
asked for 10% of his salary and, when told by him that he had no money, the appellant
then asked him to give at least $ 10, and that when he refused to do so the appellant
insisted that he should give $ 10 on pay-day. Evidence was led by the prosecution to
show that the appellant consorted with bandits who visited the same estate on the 27th
October, 1950, and that during their visit he aided and abetted them. This evidence was
admitted after a submission by the Deputy Public Prosecutor that it was admissible
under section 11(b) of the Evidence Ordinance, 1950, as going to show that the money
demanded was, in fact, intended for the use of the bandits. On hearing of this appeal Mr.
Nair, on behalf of the appellant, submitted that the evidence as to the latter incident was
inadmissible as it tended to show that the accused had been guilty of a criminal act other
than the one covered by the charge, that the two acts did not form part of the same
transaction and that an interval of fourteen days is too remote, alternatively, "that if the
evidence was admissible on any technical ground it should not have been admitted
because it was too prejudicial to the accused".

13. Similar fact evidence
• While it is not competent for the prosecution to adduce evidence tending to show that
the accused has been guilty of a criminal act other than that covered by the charge, for
the purpose of leading to the conclusion that he is a person likely from his criminal
conduct to have committed the offence for which he is standing his trial, the mere fact
that the evidence adduced tends to show the commission of another offence does not
render it inadmissible if it be relevant to an issue before the Court, and it may be so
relevant if it is indicative of a state of mind, such as intention.
• Under section 11 of the Evidence Ordinance facts not otherwise relevant are declared
to be relevant "if by themselves or in connection with other facts they make the
existence or non-existence of any fact in issue or relevant fact highly probable or
improbable", and section 14 of the Ordinance provides that facts showing the existence
of any state of mind, such as intention, are relevant when the existence of any such state
of mind is in issue or relevant. In order to make out their case, the prosecution had to
satisfy the Court, inter alia, that the money demanded by the appellant was intended for
the use of persons who intended or were about to act or had recently acted in a manner
prejudicial to public safety or the maintenance of public order.
• In our opinion, the evidence which was led as to the conduct of the appellant during the
incident which took place on the 27th October, 1950, makes it highly probable that his
statement regarding his object in making the demand correctly represented his intention
at that time. We are also of the opinion that his conduct on the occasion of the second
incident was relevant as indicating that his intention as expressed at the time the demand
was made was in fact his intention, regarding the use to which the money was to be put.
In our view, therefore, the evidence complained of by Mr. Nair was admissible under
section 11 and also under section 14 of the Evidence Ordinance, and the appeal is
accordingly dismissed. Evidence which is indicative (pointing) of the state of mind is
admissible under sections 11(b) and 14.

14. Similar fact evidence
• Evidence of similar facts can only be admitted if it is both
relevant and probative to a degree that it substantially outweighs
the unfair prejudicial effect. The Makins approach was applied
in the Malaysian cases below:
• R. v. Raju & Ors. [1953] MLJ 21 where this appeal raises an
important point as to the principles which should guide the Court
in admitting evidence of similar facts. The 1st and 2nd appellants
appealed against their conviction in the lower Court on two
charges of corruption and the 3rd appellant against his conviction
of abetting these offences. There was no evidence that the first
two appellants received the sums of money as charged. There
was some evidence that the 3rd appellant received the moneys
but no evidence that he passed them to the first two appellants.
However evidence was admitted that on different occasions
certain persons had paid money to the 2nd appellant. The learned
President considered these similar facts as relevant and
admissible because they showed system (Coordination).

15. Similar fact evidence
• The Boardman case: Reformulation of the rule in Makin’s case
• In Boardman v DPP [1975] AC 412, the House of Lords
reformulated the rule relating to the admissibility of similar fact
evidence. In this case the appellant, the headmaster of a boarding
school for boys, was charged with, inter alia, buggery (The English
term buggery is very close in meaning to the term sodomy) with S, a
pupil aged 16, and inciting H, a pupil aged 17, to commit buggery on
him. At the trial, the judge ruled, and directed the jury, that the
evidence of S on the count concerning him was admissible as
corroborative evidence in relation to the count concerning H, and vice
versa. The jury convicted the appellant, and his appeal against
conviction on the counts concerning S and H on the ground, inter alia,
that the judge's ruling as to the admissibility of the boys' evidence had
been wrong (was dismissed by the Court of Appeal). On appeal by the
appellant:-
• Held, dismissing the appeal, that there were circumstances in which,
contrary to the general rule, evidence of criminal acts on the part of an
accused other than those with which he was charged became
admissible because of their striking similarity to other acts being
investigated and because of their resulting probative force; that it was
for the judge to decide whether the prejudice to the accused was
outweighed by the probative force of the evidence and to rule
accordingly; and that, on the facts of the present case, the judge had
been entitled to direct the jury as he had done.

16. Similar fact evidence
• The Boardman case: Reformulation of the rule in Makin’s case
• The main similarities in the testimonies of S and H were in the
accused’s approaches towards them: he woke them at night in the
school dormitory, spoke in certain tone of voice, invited them to do the
act in the sitting room and indicated that he wished to be the passive
partner.
• The House of Lords reformulated the determining factor for the
admission of similar fact evidence by declaring that the essence of the
exclusionary rule is to allow such evidence if it has a sufficient degree
of probative force so as to override any prejudicial effect that it might
have.
• Lord Cross and Lord Hailsahm proposed that if the evidence is “so
very relevant” or “strikingly similar” that to exclude it would be an
affront (insult) to common sense, then it should be admitted. Lord
Salmon stated “The similarity would have to be so unique or striking
that common sense makes it inexplicable (strange) on the basis of
coincidence (chance/luck/accident)”. Applying this principle to the
facts their Lordships were unanimously of the view that the similarity
of the evidence was sufficient to justify the admission. The possibility
of prejudice which might arise if S and H had been conspiring against
the appellant was unlikely in the circumstances of the case.

17. Similar fact evidence
Boardman case
SFE is
admissible
Probative value Striking similarity

18. Similar fact evidence
• Malaysian cases adopting Boardman’s principle
• 1. PP v Veeran Kutty [1990] 3 MLJ 498 where two
accused and some others took part in a robbery at Batu
Gajah on 7 September 1983. They were apprehended
outside the town after being chased by police. During the
chase they were observed to have been holding a pistol
each. When arrested, they were no longer in possession
of the pistols. After being interrogated, both accused led
the police back to the place where they were arrested and
two pistols and 11 rounds of ammunition were
recovered. They were subsequently charged under the
Internal Security Act 1960 for unauthorized possession
of firearms. In the course of the trial the prosecution
sought to admit the accused's cautioned statements and
the defence sought to introduce evidence of the armed
robbery. Both applications were objected to by the
respective opposing parties. Held, convicting both
accused: Similar fact evidence may be allowed if it has
a sufficient degree of probative force to override any
prejudicial effect that it might have and that the said
sufficient degree would exist if such evidence of similar
fact is very relevant as being strikingly similar that to
exclude it would be an affront to common sense. The
evidence of the armed robbery was therefore admissible.

19. Similar fact evidence
• Malaysian cases adopting Boardman’s principle
• 2. Junaidi bin Abdullah v PP [1993] 3 MLJ 217 where the appellant was
convicted for possession of a firearm under s 57(1)(a) of the Internal Security Act
1960 ('the Act') and was sentenced to death. The appellant appealed on the grounds
that:
(a) the trial judge was wrong in law in not examining the evidence at the close of the
prosecution's case to determine whether a prima facie case had been established by
the prosecution and to record his reasons for so finding;
(b) the trial judge was wrong in admitting prejudicial and inadmissible bad character
evidence although no objection had been raised by the defence counsel; and
(c) that the government chemist was not competent to give evidence of the serviceability
of the revolver as an expert witness.
• Held, dismissing the appeal: Where the purpose of adducing evidence of similar facts
or similar offences was justifiable on the ground of relevancy and necessity to rebut
any defence which would otherwise have been open to the accused (in addition to
those under ss 14 and 15 of the Evidence Act 1950), evidence of bad character was
admissible in evidence, provided that the probative value of such evidence
outweighed its prejudicial effect. There must be a real anticipated defence to be
rebutted and not merely crediting the accused with a fancy defence. Here, the
evidence of the physical possession of the revolver by another person during the
earlier robbery was vital to the defence and relevant under s 11 of the Evidence Act
1950 to cast a reasonable doubt on the prosecution case that the accused was in
possession of the revolver at the time of the arrest. Therefore, the prosecution was
entitled to adduce evidence to rebut such a defence.

20. Similar fact evidence
• The DPP v P’s case
• In Director of Public Prosecutions v P [1991] 3 WLR 161
the defendant was tried and convicted of two indictments of
rape against his two daughters. The basis of his appeal was
that the daughters had colluded in their evidence, and by
allowing evidence from daughter to stand in the indictment
against the other, the jury had been unduly prejudiced by the
cumulative evidence. The defendant argued that the test laid
down by the House of Lords in DPP v Boardman 1975, for
cross-admissibility of multiple allegations, was that there
should be a striking similarity between the offences alleged (as
the term `striking similarity' would be understood when
considering the admissibility of Evidence. In fact, in this case,
the offences, although despicable if they were proved, were
`commonplace' rapes with no striking features at all. The
House of Lords held that, although `striking similarity' was
one of the criteria by which the cross-admissibility could be
determined, it was not the only one. Whether the evidence had
sufficient probative value to overcome the inevitable prejudice
it would create against the defendant was to be determined on
the facts of each case. In the present case, the large number of
points of similarity between the offences, even though these
similarities were not in themselves particular striking, was
sufficient that their probative value was very high.

21. Similar fact evidence
• The DPP v P’s case
• Here the House of Lords retreated (move
away) from the law laid down in the
Boardman case relating to the requirement
of striking similarity and said that it was
inappropriate to single out striking similarity
as an essential element in every case.
However, following Boardman, it was held
that the essential feature of admissibility of
such evidence was that its probative force in
support of the allegation that an accused
person committed a crime is sufficiently
great to make it just to admit the evidence
notwithstanding that it is prejudicial to the
accused in tending to show that he was
guilty of another crime.
DPP v P’s case
SFE is
admissible
Probative value
Striking
similarity

22. Similar fact evidence
• Cases that followed DPP v P
• PP v Teo Ai Nee & Anor [1995] 2 SLR 69 where Yong Pung How said that
“With the abandoning of the requirement that such evidence should have
‘striking similarity’ in the modern test set out in DPP v P, the test for
admissible ‘similar fact’ evidence is that its probative force in support of the
allegation that an accused person committed a crime must be sufficiently great
to make it just to admit the evidence, and sufficiently great to outweigh any
prejudice to the accused in tending to show that he is guilty of another crime.”
• Lee Kwang Peng v PP [1997] 3 SLR 278, 290 where it was stated that the
similar facts sought to be adduced need not bear a striking similarity to the
facts of the case to warrant admission however the fact must necessarily be
probative.
• Tan Meng Jee v PP [1996] 2 SLR 422, 434-435 where it states that the
similar facts can be 'similar' but not striking. The more 'similar' the evidence,
the more probative. If the possibility of prejudice is higher, then the degree of
similarity needs to be correspondingly higher before the evidence is
admissible. There is no magic in the term 'similar'. In reality, what is 'similar'
enough is only so because its prejudicial effect has been outweighed by the
sheer (total) probity of the similar fact evidence.

23. Similar fact evidence
• Note that Singapore Evidence Act has
section 2(2) that receives principles of
English Common Law, which is absent in
the Malaysian Ordinance. If we accept that
the Malaysian Evidence Act is a facilitative
Act, the courts can readily receives new
principles at Common Law. At the moment
our courts are stuck at Veeran Kutty and
Junaidi. Maybe we can receive the
Singapore decisions that endorse DPP v P
in the future. Our lawyers have to make our
judiciary aware of these new developments.

24. Similar fact evidence
• Similar fact evidence also applies to civil cases
• Mood Music Publishing Co Ltd v De Wolfe Ltd [1976]
1 All ER 763. The plaintiffs owned the copyright of a
musical work. The defendants supplied a musical work for
use in a television play. The plaintiffs complained that that
work infringed the plaintiffs' copyright in their work. The
defendants conceded that the works were very similar and
that their work had been composed after the plaintiffs', but
asserted that the similarity was coincidental. The plaintiffs
brought an action for infringement of copyright and
procured evidence which indicated that in three other
cases the defendants had reproduced musical works which
were subject to copyright. The plaintiffs, having given the
defendants notice of their intention, sought to adduce that
evidence at the trial of the action.
• Held - In civil cases the courts would admit evidence of
similar facts if it was logically probative and it was not
oppressive or unfair to the other side to admit the
evidence. Since the issue in the action was whether the
resemblance between the two works was mere coincidence
or the result of copying by the defendants, the evidence
procured by the plaintiffs concerning the other three cases
was of sufficient probative weight to render it
admissible…

25. Similar fact evidence
• Similar fact evidence also applies to civil cases
• Hales v Kerr [1908] 2 KB 601. The plaintiff
in an action of negligence alleged that he had
contracted an infectious disease through the
negligence of the defendant, a barber, in using
razors and other appliances in a dirty and
insanitary condition. In support of his case he
tendered the evidence of two witnesses who
deposed that they had contracted a similar
disease in the defendant's shop: Held that, as
the negligence alleged was not an isolated act
or omission, but was a dangerous practice
carried on by the defendant, the evidence of
these witnesses was admissible.

26. Similar fact evidence
• Similar fact evidence also applies to civil
cases
• Nahar Singh v Pang Hon Chin [1986] 2
MLJ 141 where the judge referred to learned
authors of Kerr on Fraud & Mistake, 7th
Edition, at p. 674 that "Evidence of similar
frauds on the part of the defendant committed
on other parties in the same manner are
admissible in evidence, if they tend to prove
the motive or intention which actuated the
defendant in the transaction under
investigation. In a vast number of cases such
evidence is the only means of establishing
fraud. ...".