Section 136: Court to decide as to admissibility of evidence.
Section 165: Judge has power to put questions about any fact relevant or irrelevant, but the judgement must be based upon facts declared by the Evidence Act to be relevant and duly proved.
PP v Dato’ Seri Anwar Ibrahim (No: 3)  2 MLJ 1
Fact in issue must be relevant to fact in issue
PP v. Haji Kassim  2 MLJ 115 (Federal Court)
Whatever is logically probative is not necessarily admissible in evidence unless it is declared so under the Act.
Section 5 is the backbone of the Evidence Act. It gives evidence of facts in issue and facts that are relevant to the facts in issue as herein after declared section 6 – 55 and of no others. It can be read together with section 136 where the judge can ask in what way is the evidence relevant to the facts in issue – as exercised by Augustine Paul J in the Dato’ Seri Anwar Ibrahim’s case. If the judge asked the lawyer about relevancy under section 136, you should direct the judge’s mind to section 5.
Section 5 declares what is relevant evidence, i.e. only evidence that is declared relevant by the Act and “of no others”. The significance of this section is apparent. Whatever is not provided for in the Act is irrelevant and therefore inadmissible. Consequently, only evidence declared by the Evidence Act, 1950 could be considered as judicial evidence in Malaysia. Section 5 must be read with section 136(1) of the Act.
Augustine Paul J in PP v. Dato’ Seri Anwar bin Ibrahim(No3)  2 MLJ 1, 170 (HC) held:
“Questions of admissibility of evidence are questions of law and are determinable by the judge. If it is the duty of the judge to admit all relevant evidence, it is no less his duty to exclude all irrelevant evidence. Section 5 of the Evidence Act, 1950 declares that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as declared to be relevant under the provisions of the Evidence Act, 1950. The judge is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give, the judge may also ask the party proposing to give evidence, in what manner the alleged facts, if proved, would be relevant, and he may then decide as to its admissibility.
PREPARED BY: KIRUBINI A/P G.SUBRAMANIAM A130056