1. Are statements not made under oath
Statements from the Bar are unsworn statements.[1]
This can also be gleaned from the Court of Appeal’s decision in Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (“Ng Hee Thong”):
“It is a principle fundamental to our system adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel giving evidence from the Bar, as was done in this case, is to be deprecated.”[2]
2. Can be made by a party’s counsel or by the party himself/herself
Commonly, statements from the Bar are made by a party’s counsel.[3]
In Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang @ Tham Sow Seng & Ors [2001] 1 MLJ 585, VT Singham JC made the following observation:
“This court is of the view that a statement of fact which is used or relied as a ground to support to prove or disprove or to oppose an application for summary possession of any other application before the court must necessarily be expressed in the affidavit and not raised by way of a statement from the bar table by counsel for one of the parties or litigants.”[4] (Emphasis ours)
3. Includes statements made in Written and/or Reply Submissions
In Dr Lim Boon Ping v Sun Pharmaceutical Sdn Bhd [2020] MLJU 1645, the High Court remarked that the statement from the Bar was made in the Written Submission:
“The Defendant’s written submission at para 30 in fact appears to be a statement from the Bar and as such to be ignored …”[5]
Similarly, in Dian Kiara Sdn Bhd v GCH Retail (M) Sdn Bhd [2020] 12 MLJ 570, the statement from the Bar was also made in the Written Submission:
“Most importantly, the affidavit affirmed by Jason Chong at para 6 of encl 18 remains unrebutted and unchallenged. It is noted that the plaintiff had ample time to rebut, contradict and challenge the contents of encl 18 which the plaintiff failed to do. It is nonetheless admitted that the plaintiff submitted the issue in passing in their written submission which in my view is insufficient, at best, it is merely a statement from the Bar.”[6]
4. Is not evidence
This is a position consistently taken by the appellate courts in Malaysia.
In Pernas Construction Sdn Bhd v Sykt Rasabina Sdn Bhd [2004] MLJU 759, Mokhtar Sidin JCA held the following:
“Obviously this is merely a statement from the Bar table. This is no evidence.”
Abdul Hamid Mohamad FCJ in Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373 was of the view that:
“… that is merely a statement from the bar.It is not evidence and should not have been accepted as evidence.”[7]
5. Disapproved of by the courts
Pre-Ng Hee Thong, some courts were willing to accept statements from the Bar on a case by case basis.[8]
However, since Ng Hee Thong was decided, it appears that the courts generally disapprove of the practice.
In Sematan Shrimp Hatchery Company v Aqua Fresh Co [2005] MLJU 404, the High Court was of the view that statements from the Bar are inadmissible:
“It is improper for the Court to accept the explanation of Mr. Ng with regard to the omission in filing the Supplementary Record of Appeal earlier because that statement is a statement from the Bar and it is inadmissible.”
The Court of Appeal in Malayan Banking Bhd (formerly known as ‘ Mayban Finance Bhd’ ) v Boo Hock Soon @ Boo Choo Soon [2013] 2 MLJ 843 could arguably have narrowed the scope of rejection of statements from the Bar to very crucial issues:
“Be that as it may, the defendant guarantor ought not to be allowed to challenge the correctness of the certificate of indebtedness because the defendant guarantor has not alluded to this in any of his affidavits in reply nor was there any averment that there were manifest errors in the said certificate. A submission from the bar on this very crucial issue will not be entertained by this court (Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281; [1995] 1 CLJ 609 (CA); and Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287; [1995] 2 AMR 1174; [1995] 4 CLJ 339 (HC)).”[9] (Emphasis mine)
[1] See e.g. Public Prosecutor v Arumugam a/l Nadeson and Others [2009] MLJU 739; Sheng Lien @ Sheng Len Yee v Tan Teng Heng & Anor [2010] MLJU 2216
[2] Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281, at p. 287
[3] See e.g. Mathavi a/p Narayanasamy v Murugan a/l Krishnan & Ors [2020] MLJU 2062, at paragraph 88; Allianz General Insurance Company (M) Bhd v Best Re (L) Ltd [2017] MLJU 1962
[4] Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang @ Tham Sow Seng & Ors [2001] 1 MLJ 585, at p. 598
[5] Dr Lim Boon Ping v Sun Pharmaceutical Sdn Bhd [2020] MLJU 1645, at paragraph 36
[6] Dian Kiara Sdn Bhd v GCH Retail (M) Sdn Bhd [2020] 12 MLJ 570, at paragraph 12
[7] Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373, at paragraph 16
[8] See e.g. Malayan Finance Corp Bhd v NKM Credit Sdn Bhd & Ors [1986] 1 CLJ 89, Public Prosecutor v Mat Radi [1982] 1 MLJ 221
[9] Malayan Banking Bhd (formerly known as ‘ Mayban Finance Bhd’ ) v Boo Hock Soon @ Boo Choo Soon [2013] 2 MLJ 843, at paragraph 35
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