Live Capital Sdn Bhd V Pioneer Conglomerate Sdn Bhd [2025] MLJU 1706

Federal Court (Putrajaya)

Evidence – Burden of Proof – Admissibility – Hearsay

1. In 2019, the Respondent, Pioneer Conglomerate Sdn Bhd, filed a civil action in the High Court against the Appellant, Live Capital Sdn Bhd, seeking repayment of RM7 million. The Respondent alleged that this sum, advanced via two cheques dated 3 November 2017 (RM5 million) and 15 November 2017 (RM2 million), was an interest-free loan which the Appellant had failed to repay.
2. The Appellant admitted receiving the RM7 million but denied that it was a loan. Instead, it asserted that the amount was a non-refundable commission fee for brokerage services rendered in assisting the Respondent to acquire control of Ta Win Sdn Bhd, a public-listed company. According to the Appellant, the brokerage services had been provided through the Respondent’s Managing Director, and the agreed commission was duly paid.
3. Central to the dispute were two payment vouchers prepared by the Respondent. The first voucher, dated 3 November 2017, bore the signature of one of the Appellant’s directors but also contained typewritten words “Being paid as Advance to Tenggara Kapital Sdn Bhd” (the Appellant’s former name). The Appellant claimed that this notation was not present at the time of signing. The second voucher, dated 15 November 2017, also contained alterations — the typed words “Being ===” had been replaced with the handwritten notation “Advance to Tenggara.” The Appellant again disputed the authenticity of these alterations, alleging they were inserted after the documents were signed.
4. Before trial, the Appellant requested inspection of the original vouchers, but the Respondent did not respond. The Appellant then lodged a police report alleging tampering. At trial, it was agreed that the vouchers were “Part C documents,” meaning their authenticity and contents were disputed and required strict proof. The vouchers were initially tendered for identification purposes only (IDP1 and IDP2). However, after the Appellant’s director confirmed his signature on them, the Judicial Commissioner admitted them conditionally as exhibits P1 and P2, while expressly reserving the Appellant’s right to dispute their contents.
5. The High Court ultimately dismissed the Respondent’s claim, finding that the Respondent had failed to discharge its burden of proof in establishing the authenticity of the vouchers or that the RM7 million was a repayable loan. The Court of Appeal, however, reversed the decision, holding that the burden had shifted to the Appellant to prove forgery or tampering of the vouchers. Dissatisfied, the Appellant appealed to the Federal Court, which was tasked with determining key questions of law regarding admissibility of documentary evidence and burden of proof.

1. Whether disputed notations on a document are automatically deemed proven once marked as an exhibit?
2. Whether the party relying on disputed documents must call the maker/author to prove authenticity and truth?
3. Whether admission of a document as an exhibit requires the Court to accept its entire contents as true?
4. Whether courts are obliged to assess the truth and weight of disputed documentary contents only after proper admission?

(1)  Whether disputed notations on a document are automatically deemed proven once marked as an exhibit?

(a) The Federal Court answered this question in the negative, holding that the mere admission of a disputed document as an exhibit does not prove its contents. The Court stated –

“A document cannot be admitted in evidence and marked as such until it has been properly proved… Such document has no evidential value, is irrelevant and should not be admitted in evidence and if admitted must be disregarded.” (para [33])

(b) The Court stressed that marking the vouchers as exhibits P1 and P2 did not automatically establish their authenticity or the truth of their contents, since they were “Part C documents” whose contents had been disputed. The Court warned that accepting disputed documents as proven merely by tendering would allow tampering without verification, which “cannot be a correct position of the law.” (para [34]).

(2)  Whether the party relying on disputed documents must call the maker/author to prove authenticity and truth?

(a) The Federal Court answered in the affirmative. The Court held that the party who relies on disputed documents carries the burden under sections 101 and 102 of the Evidence Act 1950 to prove their authenticity. The Court explained that –

“Unless the authenticity of the two vouchers had been verified by calling the maker or makers of the documents, the contents of the documents remained hearsay as the purpose of producing them was to prove the truth of the contents…” (para [32])

(b) In this case, the Respondent failed to call the clerk or company secretary who prepared the vouchers, both of whom were “in a position to adduce the best evidence available.” Their absence meant that the Court could draw an adverse inference –

“Everything is to be presumed against a party who keeps his adversary out of possession of evidence by taking means of retaining the evidence in his own custody.” (para [35])

(3)  Whether admission of a document as an exhibit requires the Court to accept its entire contents as true?

(a) The Federal Court answered in the negative. The Court held that while documents may be admitted, “that goes more to the issue of weight rather than to the issue of admissibility.” (para [30]) It explained that once admitted, the Court must still assess the evidential value of the contents against other oral and documentary evidence.

(b) The Court acknowledged that the Respondent’s own General Ledger, signed by its Managing Director, recorded the RM7 million under “Investment – Ta Win” with no mention of “advance.” The Court noted this omission was “rather odd if indeed the RM7 million was an advance” (para [14]). This documentary inconsistency undermined the Respondent’s claim and showed that the vouchers had little probative value.

(4)  Whether courts are obliged to assess the truth and weight of disputed documentary contents only after proper admission?

(a) The Federal Court answered in the affirmative, but clarified that such an obligation only arises where the documents have been properly admitted into evidence. Otherwise, the court cannot proceed to weigh their probative value. The Court observed –

“For any weight to be attached to the contents of the documents, the documents must first of all be documents that had properly been admitted in evidence. Nothing short of that will suffice.” (para [30])

(b) The Court found that the Respondent had not satisfied subsection 73A(1) of the Evidence Act 1950, as the makers were never called and the originals of the vouchers were not produced. Thus, the vouchers “should remain as IDP1 and IDP2… and not for the purpose of proving the truth of their contents.” (para [29])

(c)  Without properly admitted evidence, the Respondent failed to establish a prima facie case, and its entire claim collapsed.

1. The Federal Court allowed the appeal, set aside the Court of Appeal’s decision, and restored the High Court’s judgment dismissing the Respondent’s claim.

1. Burden of proof lies on the claimant to establish a prima facie case; if not, the defendant need not prove anything.
2. Disputed documents (Part C) must be strictly proven; signatures alone do not prove authenticity of contents.
3. Marking a document as an exhibit does not bypass evidential rules; authenticity must be established.
4. Courts cannot shift the burden to defendants to prove forgery unless forgery is a pleaded issue.
5. Adverse inference applies when material witnesses are not called.