The contributors are students from the Law Faculty of UKM doing their very best, thus we apologize in advance for the stumbles or any inaccuracy and we welcome feedback or criticism.
The core of this blog is intellectual discourse on the specific issue of expert witness in evidence law. Our endeavour is purely in the interest of education and for the sole purpose of encouraging further intellectual discussion.
In our everyday conversation, people inadvertently give
their input into a topic. It could be facts, or it could even be an opinion.
Their opinion would generally have some sort of basis, something that has
shaped their opinion. Their principles, Their moral compass, Their religious
beliefs, or Their experience. Regardless, we filter through these opinion. Why
do we believe some, but not the others. It is human nature, we put our trust
into the words of some, but not the other.
In the courts, when one is adducing expert opinion, that
expert opinion could change the course of the entire trial. Though the court
does not HAVE to accept the expert’s opinion, but where the court has no
knowledge on the matter, an expert’s opinion could swing the trial one way or
another. So who are these experts? What makes them an expert?
An expert must be skilled in his field
Mohamed Azmi SCJ in Junaidi bin
Abdullah v Public Prosecutor  3 MLJ 217 considered this issue. The
speciality of the skill required of an expert under section 45 of the Evidence
Act would depend on the scientific nature and the complexity of the evidence sought
to be proved. Therefore, the more scientific and complex the subject matter,
the more extensive and deeper the court will be required to enquire into
ascertaining the expert’s qualification or experience in the particular field.
BUT, in the final analysis, it is
still the trial judge himself as both judge of fact and law to determine the
weight to be attached to such evidence notwithstanding the outstanding qualification
or experience (or lack of it) of the expert. The lack of qualification or evidence
on the part of the expert must necessarily affect the weight of the evidence
rather than the admissibility.
On the other hand, where the
evidence is of a complex and scientific nature, the absence of both
qualification or experience can certainly affect admissibility.
THERE IS NO
HARD AND FAST RULE ON THE ISSUE OF THE COMPETENCY OF AN EXPERT WITNESS.
The expert may acquire the skill by special
study or by experience.
Suffian LP in Public Prosecutor v
Muhamed bin Sulaiman  2 MLJ 320 held that while an expert must be
skilled, he need not be by special study, he may be so by experience. The fact
that he has not acquired his knowledge professionally goes towards weight not
to admissibility. In this case, it was held that a government chemist was
qualified by training and practical experience to be a ballistic expert.
In Phipson on Evidence 11 th
Edition in para 1285:
“The competency of the expert is a
preliminary question for the judges and is one upon which, in practice
considerable laxity prevails. Though the expert must be “skilled”, by special
study or experience, the fact that he has not acquired his knowledge
professionally goes merely to weight and not to admissibility.”
In Kong Nien Siew v Lim Siew Hong  1 MLJ 262,
a husband petitioned ofr dissolution of his marriage on the sole ground that
the respondent wife was incurably of unsound mind. The wife contested the allegations.
Chang Pak Hong, a psychiatric nurse gave evidence for the husband petitioner.
Despite objection from the counsel for the respondent, Seah J held that Chang
Pak Hong is qualified to be an expert within the meaning of Section 45 of the
Evidence Ordinance and thus might give evidence.
Another case we can have a look as
is the case of Public Prosecutor v Sam
Hong Choy  4 MLJ 121 where it was held that a Chief Inspector of Police
who was also an assistant armourer was competent to give evidence on the
serviceability of a pistol as the evidence he gave was not of a complex and
scientific nature which would require special skills.
However, curiously in Commercial
Union Assurance Co plc v Lee Siew Khuan  2 MLJ 541 it was held that an
advocate and solicitor was qualified by virtue of his knowledge of diamonds to
be able to give an assessment of the value of a diamond ring. I would think
that though it is not only a jeweler that knows diamonds but the business of an
advocate and solicitor is the legal practice. As much as he is familiar with
diamonds, it is not his business.
The competency of an expert is determined by the
The expert must as a preliminary
issue give evidence of his qualifications to enable the court to consider his
opinion evidence as per Hashim J in Wong Chop Saow v Public prosecutor  1
MLJ 247. The court may even take judicial notice of the fact that an expert
witness had previously given evidence. In Kong Nen Siew v Lim Siew Hong 
1 MLJ 262, Seah J acknowledged Dato Ting as someone coversant with Chinese
marriage customary law, particularly the Foochow custom and took judicial
notice that Dato ting has appeared in court in the past as an expert on Foochow
customary law relating to marriage and divorce and his evidence was accepted
Yet, it is clear in Dato Mokhtar
bin Hashim v Public Prosecutor  2 MLJ 232 that previous testification in
court as an expert witness is not necessarily the primary consideration for an
otherwise qualified person. However in that case, the expert had never given
evidence in High Court but had done so before in the lower courts.
Abdoolcader FJ in that very case “There is always a first time for everything”!
From the cases presented and the
judges decision we can see that the competence of an expert is determined by
the court with considerable laxity. When the court decided that there is no
strict rule, we can see that there really is no strict rule throughout the may
cases and the courts have applied their discretion based on the facts as well
as circumstance of the case. Though it is rather apparent in cases where there
are criminal elements, the courts are not as lax as divorce petitions so forth.
The more serious, the more complex and the more the court scrutinize the expert
and the expert’s opinion.