MALAYSIA Law and Practice Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
nesses, summary of case and witness state- ments. The court may also at this stage consider the possibility of settlement of any or all of the issues between the parties. See Order 34 r 2(2) of the Rules of Court 2012. 7.3 Jury Trials in Civil Cases There are no jury trials in Malaysia. 7.4 Rules That Govern Admission of Evidence Section 5 of the Evidence Act 1950 states that evidence may be given of facts in issue (key points of disagreement that determine the out- come of the case) and relevant facts (supporting evidentiary facts that clarify, or give context to the facts in issue), but not others. The general rule is that all relevant evidence is prima facie, admissible. Hearsay evidence provides that oral evidence must be direct, in that the witness must have perceived the fact through the medium of their own senses. Apart from oral evidence, it is common for docu- ments to be adduced in evidence. Section 73A deals with the admissibility of documentary evi- dence in civil cases, where various conditions need to be fulfilled. Further, Section 90A provides that in any crimi- nal or civil proceedings, a document produced by a computer shall be admissible in evidence if the document was produced by the computer in the course of its ordinary use. This is so whether or not the person tendering the document is the maker. 7.5 Expert Testimony When the court has to form an opinion on a point of foreign law or of science or art, or as to
identity or genuineness of handwriting or finger impressions, the opinions of persons skilled in the relevant areas are relevant facts. See Section 45 of the Evidence Act 1950. Parties may introduce expert testimony at trial through the procedure set out in Order 40A of the Rules of Court 2012. The evidence of an expert is to be given in a written report signed by the expert and exhibited in an affidavit affirmed by them, stating among other things that they accept full responsibility for the report. The expert’s duty is to assist the court on mat- ters within their expertise. This duty overrides any obligation to the person from whom the expert has received instructions or by whom they are paid. See Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia & Anor [2015] 7 CLJ 849. The court can also on its own motion appoint an independent expert to assist it on any question of fact or opinion not involving questions of law or construction. See Order 40 Rule 1. 7.6 Extent to Which Hearings Are Open to the Public In general, the public are allowed to attend hear- ings which are conducted in open court, such as trials, appeals, judicial review and winding-up petitions. However, this is subject to the court’s power to hear any matter in camera without the presence of the public and the press, if the court is satis- fied that this would be in the interests of justice, public security or propriety or for other sufficient reasons. See Section 15(1) of the Courts of Judi- cature Act 1964.
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