6 Things About Judicial Notice

6 Things About Judicial Notice

1. Facts which are judicially noticeable do not need to be proved

This is provided for under Section 56 of the Evidence Act 1950:

“No fact of which the court will take judicial notice need be proved.”

2. Section 57 of the Evidence Act 1950 contains a list of facts which the Court must take judicial notice of

3. The list in Section 57 of the Evidence Act 1950 is not exhaustive

The Federal Court in Lee Weng Sang v Public Prosecutor [1978] 1 MLJ 168 held that:

The list of matters of which the court may take judicial notice of [which is found in Section 57 of the Evidence Act 1950] is of course not exhaustive. But while there does not appear to be any statutory limitation to what a judge may take judicial notice of, it is clear from the authorities that, in order to avoid a conflict between the ban on a judge importing his own knowledge into a case and what he may take judicial notice of, there is a limitation to “what is notorious, (of) what everybody knows”: see Yong Pak Yong v Public Prosecutor [1959] MLJ 176.”[1] (Emphasis mine)

The same position was taken by the Federal Court in Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153,[2] and by the Supreme Court in Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ 30.[3]

4. For facts not listed in Section 57 of the Evidence Act 1950, the notoriety test applies

In Johnson Tan Han Seng v Public Prosecutor (and other cases) [1977] 2 MLJ 66 (“Johnson Tan”), Suffian LP was of the view that:

“Judicial notice is the cognizance taken by the court itself of certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary; see Phipson on Evidence, 11th Ed., page 10.”[4] (Emphasis mine)

Johnson Tan was relied on recently by the Federal Court in Raqeem Rizqin Enterprise dan lain-lain lwn Ketua Polis Negara dan satu lagi [2019] 5 MLJ 693.[5]

In Pembangunan Maha Murni Sdn Bhd v Jururus Ladang Sdn Bhd [1986] 2 MLJ 30, a test similar to the one in Johnson Tan was propounded by Syed Agil Barakbah SCJ:

“The matter which the Court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention. The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof. The opponent, however, is not prevented from disputing the matter by adducing evidence if he disputes it. (See Sarkar on Evidence, 13th Edn. paras. 606–609).”[6] (Emphasis mine)

5. Courts should not take judicial notice of foreign law

The Federal Court in The “Lung Yung” The “Lung Yung” & “Thai Yung” Owners ^Ors v Sadit Timber Sdn Bhd & Ors [1984] 1 MLJ 29 unequivocally held the following:

“The whole matter appears to have proceeded on false premises in that the question in issue was presented and indeed determinded [sic] by the learned Judge virtually taking judicial notice of the relevant laws of Taiwan that appeared to be applicable. This was clearly wrong as foreign law on a particular topic is a question of fact which is to be and can be proved by evidence of experts [ section 45(1) of the Evidence Act, 1950; Mak Sik Kwong v Minister of Home Affairs, Malaysia (No.2) [1975] 2 MLJ 175 181 (at page 181)].”[7] (Emphasis mine)

6. Courts take judicial notice of illegality in contracts

In Lim Kar Bee v Duofortis Properties (M) Sdn Bhd [1992] 2 MLJ 281 (“Lim Kar Bee”), Peh Swee Chin SCJ opined that:

“Courts have always set their face against illegality in any contract. It is very well settled that the courts take judicial notice of such illegality and refuse to enforce the contract, and such judicial notice may be taken at any stage, either at the court of first instance or at the appellate stage irrespective of whether illegality is pleaded or not where the contract is ex facie illegal.”[8]

The above extract in Lim Kar Bee was relied upon by the Federal Court in Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay bin Abdullah [2015] 5 MLJ 619.[9]