A trial involves the calling of witnesses to adduce evidence.  Witnesses can be divided into two categories, which are witnesses of fact and witnesses of opinion. Witnesses of fact are directly related to the case (i.e. eye witnesses), meanwhile witnesses of opinion are usually experts, who are called to assist the court in forming an independent opinion or finding. The use of expert witnesses to assist the court is not a new phenomenon but it is gaining popularity in Malaysia and also in other jurisdictions due to the rise of new and more sophisticated crimes.

In simple language, if we look at the phrase “Expert Opinion” and analyse it, it means that an opinion which is given by a person who is expert in a particular field, may it be science, art, law or any other technical field. This concept is envisaged by Section 45(1) of the Evidence Act 1950 which provides that “When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that matter are relevant facts”. Subsection (2) goes on to say that “such persons are called experts”. The function of this section was further explained under the illustrations. 

“Expert” means one who is skilled in any particular art or trade, profession being professed of particular knowledge, concerning the same. If a person has acquired any special experience or special training in particular subject to which the Court enquiry relates, such a person can be considered as an expert. An expert is the one who has made the subject upon which he speaks, a matter of particular study, practice or observation and he must have a special knowledge of the subject. Any person who has the experience to give an informed opinion on a matter outside the experience of Court is an expert.

An “Opinion” is estimation, a belief or assessment, a view held as probable, what one thinks about a particular question or topic, an assessment short of grounds of proofs, a formal statement of reasons for the judgment or a formal statement of professional advice.

Expert Opinion assists the Court in the matter of scientific nature. An expert gives opinion for the matter after assessing it and this opinion is not binding in nature, it is merely advisory. The issue before the court is whether the nature of the evidence requires special skill as was decided by the court in Junaidi bin Abdullah v. PP.

The expert only gives an opinion, but not a conclusion of the matter as it is the judicial function to do so. In Ong Chan Tow v. R, the court held that the experts cannot give evidence on matters which the court can decide by itself as otherwise they would tend to usurp the function of the court. The expert opinion should be of corroborative nature to the facts and circumstances of the case. If the expert opinion contradicts an unimpeachable eye witness or documentary evidence then it will not have an upper hand over direct evidences. 

Experts have to state the facts which he has seen, heard or perceived through his sense. They are not helpful to the court in the interpretation of law. To be appointed as expert, one must have attainment in professional qualification, professional experience, have made special study in the subject, possessing special knowledge of that field or has made some observation in that field. The burden of proof is on the person who adduces an expert witness. He must prove to the satisfaction of the Court.

The court in PP v. Muhamed bin Sulaiman held that the expert may be competent either by formal study or by experience meanwhile the court in Dato Mokhtar Hashim v. PP held that one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one’s work notwithstanding that the expertise is derived from experience but not from a formal training.

In Junaidi bin Abdullah v. PP, the court held that the specialty of the skill required of an expert under Section 45 would depend on the scientific nature and complexity of the evidence sought to be proved. The more scientific and complex the subject matter, the more extensive and deeper will the court be required to enquire into the ascertainment of his qualification or experience in the particular field of art, trade or profession. 

It is a well settled law that the opinion of an Expert should be taken with a great caution and the decision of the court should not be based simply on the basis of the expert opinion without a substantial corroboration as was decided by the court in Mohamed Kassim bin Yatim v. PP in which the court said that it is a settled law that evidence by a handwriting expert can never be conclusive evidence. 

In Dr. Shanmuganathan v. Periasamy, the court held that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that the opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated, the court must consider the fact and circumstances of each particular case before reach a conclusion. 

In UAB v. Tai Soon Heng Construction Sdn Bhd, the court said “in a civil case and more so in a criminal case, the evidence of an expert on handwriting unsupported by cogent evidence showing the process by which he came to his conclusion is not worth the paper on which it is written and any reliance upon such evidence would, in our judgment, constitute a serious misdirection warranting interference by an appellate court”.

To end my submission, I conclude that an expert opinion is admissible in the court of law. However, the person who is testifying as an expert witness must first establish to the court that he is an expert as defined under Section 45(1) of the Evidence Act 1950. The burden of proof lies on the person who adduces such an expert witness. Upon the satisfaction of the court, the expert witness will give an opinion in the matter related to his expertise to assist the court in forming an independent opinion. It must be corroborated by other evidences to strengthen the advocate’s case.

Prepared By:   TAN SHOO MAY     A 130299

Lum Choi Yuen
12/11/2012 10:16:42 pm

In my humble opinion, I agreed with the commentary made by Tan Shoo May by saying that expert opinion would be admissible before the court of law for the purpose of corroboration. However, I opined that the significance of expert opinion is not that overwhelming due to two propositions. First, the value and reliability of expert opinion could be weaken as different persons in similar field might have distinctive ways of analyzing or deduction. It is doubtless to say that the weight attached to expert opinion would eventually be impaired. Secondly, expert opinion is a product of human being that armed with specified skill and knowledge. Therefore, they could not absolutely free themselves from being too emotional or biased. Hence, theso called ‘highly probable fact’ that proved by expert opinion would not reflect actual fact that has happened. Therefore, yardstick for determining the reliability of expert opinion should be restricted in achieving the real justice for accused or Plaintiff.


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