Types of Expert Witness

There are generally 2 types of experts as held in the case of PP v Saad bin Mat Takraw by Vincent Ng J, namely:

• Gazette experts, such as the gaming experts appointed by gazette notification under Section 11(6) of the Common Gaming Houses Act 1953
•  Experts that come within the purview of section 45 to 49 of the Evidence Act 1950

As to the qualifications of an expert, an expert must be skilled in his field. He may acquire the skill by special study or by experience.

With regards to this, Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320, 322 (FC) said that: … while the expert must be skilled, he need not be so by special study, he may be so by experience and the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility.

In The Queen v Silverlock [1894] 2 QB 766, identity of handwriting was in question and a solicitor was called to give evidence on it, and Lord Russell CJ said at page 771: “it is true that the witness who is called upon to give evidence founded on a comparison of handwritings must be peritus; he must be skilled in doing so; but we cannot say that he must become peritus in the way of his business or in any definite way. The questions is, is he peritus? Is he skilled? Has he an adequate knowledge?”

Phipson on Evidence , 11^th Ed, says in paragraph 1285: “ The competency of the expert is a preliminary question for the judge 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.

Apart from that, all expert witness must as a preliminary issue, provide evidence for qualification to enable the court to consider his opinion evidence.

Hashim J in Wong Chop Saow v PP [1965] 1 MLJ 247: “May I, with respect, suggest that to avoid confusion the expert witness should give his evidence as follows. He should first state his qualifications as an expert. He should then state that he has given evidence as an expert in such cases and that his evidence has been accepted by the courts.”

Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278: Mr. Jagjit Singh complains that Gee has never given evidence in the High Court but we can see no rule requiring this as a prerequisite to accepting him as an expert. He has given evidence, as he said, in the lower courts and even if had not that would not debar him from being accepted as an expert if he could satisfy the court as to his standing, as there is always a first tie for everything. Previous testification in court as an expert witness is no doubt am added consideration but not necessarily the primary consideration for an otherwise qualified person.

In PP v Lin Lian Chen [1991] 1 MLJ 316, even if the expert is a government chemist, evidence of his qualifications must be given. However, it was held that it must be noted that previous testification in court as an expert witness is not necessarily the primary consideration for an otherwise qualified person.

In certain instances, the court may take judicial notice of the fact that an expert has previously given evidence. For example, in Chong Soo Sin (t/a Syarikat Perniagaan Moden) v Industrial and Commercial Insurance (M) Bhd [1992] 1 MLJ 636, Siti Norma Yaakob J held that the fact a person is a consultant chemist registered under the Chemists Act 1975 is sufficient to hold that he has the necessary skill and experience to qualify as an expert.

As per Seah J in Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262, 263: Dato Ting claims and I think justly claims that he is conversant with Chinese marriage customary law and particularly the Foochow custom. I take judicial notice of the fcat that Dato Ting has appeared in this court in the past as an expert on Foochow customary law relating to marriage and divorce and his evidence had been accepted without question.

But, how the court determine the competency of the expert? Abdoolcader FJ in Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232, 278 held that the competency of an expert is a preliminary question and is one upon which in practice, considerable laxity prevails.