The End of the Best Evidence Rule in Singapore?

This article discusses the recent Singapore Court of Appeal decision of Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals and examines whether the court’s suggested preliminary approach in interpreting ss 63 to 67 of the Singapore Evidence Act signals the end of the best evidence rule in Singapore.

Introduction

‘[T]he time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired.’ This statement by Jonathan Parker LJ in the 2001 English Court of Appeal decision of Masquerade Music Ltd & Ors v Mr Bruce Springsteen,¹ it seems, has finally sounded the death knell for the best evidence rule.

The reverberations of Jonathan Parker LJ’s announcement have been felt in Hong Kong and Singapore. In Tang Yiu Hong Eric v HKSAR,² the Hong Kong Court of Final Appeal observed that ‘[f]ar from the best evidence rule being an established norm … the very existence of that rule is much in doubt’.³

In Singapore, the recent Court of Appeal decision in Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another and other appeals⁴ highlighted the gradual downfall of the best evidence rule in England and Canada in the last century to support the proposed diminished role of the best evidence rule in the Singapore Evidence Act.⁵

What exactly is the best evidence rule? At its widest, the aphorism states that a party must ‘call the best evidence that the nature of the case will allow’.⁶ More recently, it appears that only one aspect of the rule survives at common law, namely, ‘if an original document remains in one’s hands, one must produce it.’⁷ However, with Jonathan Parker LJ’s proclamation, even this remaining instance has disappeared.

Before Jet Holding, it was not clear if, in the absence of an agreed bundle of documents, a party could still introduce documents into evidence even though the requirements of the Evidence Act were not satisfied. In this article, I shall discuss whether the court’s suggested preliminary approach in Jet Holding signals the end of the best evidence rule in Singapore. Part II of this article will discuss the role of the best evidence rule in ss 63 to 67 of the Evidence Act. Part III will set out briefly the relevant facts of Jet Holding and the tentative approach offered by the Court of Appeal. In Part IV, I will evaluate the court’s approach and discuss various issues which may need to be addressed by a future decision of the court.

The Best Evidence Rule in the Evidence Act

Section 66 of the Evidence Act epitomises the best evidence rule:⁸

Documents must be proved by primary evidence except in the cases mentioned in section 67.’ [emphasis added]

The contents of documents may be proved by primary or secondary evidence: s 63. Notwithstanding the word ‘may’, s 63 is exhaustive of the mode of proof of the contents of documents.⁹ Section 64 defines primary evidence as ‘the document itself produced for the inspection of the court’. Primary evidence is ‘the best or highest evidence’ or the ‘kind of proof which, in the eye of the law, affords the greatest certainty of the fact in question’.¹⁰ All evidence falling short of primary evidence is secondary evidence.¹¹ The meaning of secondary evidence is prescribed by s 65.

The proper approach in complying with the requirements of ss 63 to 67 of the Evidence Act is of paramount importance to litigation practitioners in Singapore. As the Court of Appeal noted in Jet Holding, “any definitive approach adopted would have wide-ranging implications in an extremely important area of legal practice.”¹² Because the Court of Appeal in that case was not addressed fully on the proper approach to be taken, it could only offer a preliminary approach that would seek to reconcile the underlying rationale of ss 66 and 67 on the one hand, and the need to prevent any ensuing inefficiency and unfairness on the other.¹³

The Approach Offered By the Court of Appeal in Jet Holding

In Jet Holding, the manager of an oil-rig (‘the third plaintiff’) had found two slip joints on board the vessel unfit for use. The third plaintiff proceeded to contract with a manufacturer of slip joints (‘the first defendant’) on behalf of the owner of the vessel at that time (‘the second plaintiff’) to refurbish and repair the two slip joints. The first defendant subcontracted the refurbishment of the unused parts of the two slip joints to the second defendant, who fashioned a new slip joint from those parts and returned it to the vessel. After a new owner (‘the first plaintiff’) took over the vessel, the new slip joint fractured and caused a significant amount of the vessel’s equipment to be damaged or lost at sea. The defendants were sued for breach of contract and negligent breach of duty in failing to discover and rectify the problems with the new slip joint.¹⁴

The High Court held that the first defendant had breached its contract with the third plaintiff and that both the defendants had breached their duty of care to the first and second plaintiffs.¹⁵ The latter sought damages from the defendants amounting to approximately US$22 million for, among other items, the value of the damaged or lost equipment. As the High Court found that the first and second plaintiffs had not sufficiently proved their claims, they were only awarded damages of US$1 million and an additional sum of $10 being nominal damages for the other heads of damage claimed.¹⁶

The High Court held that the first and second plaintiffs had not sufficiently proved their claims because the 12 volumes of photocopied documents that purportedly proved the loss sustained by them (‘the Damages Bundle’) had not been properly admitted in evidence. The Damages Bundle did not form part of an agreed bundle of documents between the parties, and did not satisfy the requirements of ss 66 and 67 of the Evidence Act. The first and second plaintiffs failed to furnish for the court’s inspection the original documents and did not explain their whereabouts or why they had not been submitted to the court.¹⁷

On appeal, the first and second plaintiffs contended that the defendants had in fact agreed to admit the Damages Bundle in the High Court.¹⁸ The Court of Appeal found, however, that the defendants had objected to the admission of the documents.¹⁹

The key evidential issue which the Court of Appeal had to consider in Jet Holding was whether the relevant provisions of the Evidence Act permitted a party to tender in good faith documents in support of his case (where there was no agreed bundle of documents), notwithstanding that the requirements of the Evidence Act were not satisfied.

Based on notions of fairness and wider policy considerations,²⁰ the court took the preliminary view that:

… whilst … a party seeking to introduce documents into evidence ought to comply with the provisions in the Evidence Act, if these documents are in fact marked and admitted into evidence without that party in fact satisfying the requirements in the Evidence Act and where there has been no objection taken by the other party at that particular point in time, then that other party cannot object to the admission of the said documents later …²¹ [emphasis in original]

I will discuss the court’s approach set out above (referred to as ‘the waiver principle’ from here onwards for convenience) in greater detail in Part IV below.

Evaluation of the Waiver Principle

The evidential dispute in Jet Holding can be separated into two basic issues as follows:

1    Should a party be permitted to introduce documents into evidence in good faith, even though the requirements of the Evidence Act were not met?; and

2    If so, would the waiver principle be sufficient to protect the interests of both parties?

Introduction of documents that do not satisfy the requirements of the Evidence Act

On the first issue, the Court of Appeal raised strong reasons to support its opinion that a party should be permitted to introduce documents into evidence in good faith, even though this would result in undermining the best evidence rule in s 66.

First, it would ensure that a party who was genuinely unable to comply with the requirements of the Evidence Act would not be unnecessarily inconvenienced.²² This notion of fairness is inherent in s 67, which is intended ‘to protect persons who in spite of best efforts are unable on account of circumstances beyond their control to place before the court primary evidence’.²³ However, s 67 is limited to seven cases permitting a party to introduce secondary cases. The Court of Appeal rightly recognised that s 67 could not encompass the myriad scenarios where it would be fair to allow a party to adduce secondary evidence.

Second, valuable court time would be saved as the court would not need to hear the maker of the documents or peruse the original documents for them to be admitted into evidence.²⁴ The concept of saving court time is not novel to the Evidence Act, especially where voluminous documents are involved. It is in fact intrinsic to s 67(1)(g)²⁵ which states:

Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence … when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. [emphasis added]

Section 67(1)(g) allows secondary evidence to be given as to the general result of the documents by an expert who has examined the copious documents, but the original documents must still be available before the court.²⁶ Section 67(1)(g) probably did not apply in Jet Holding because the fact to be proved there was the content of each document, and not the general result of the whole collection.²⁷

However, a caveat should be made that in cases involving voluminous documents, practical difficulties may arise in determining whether a party is seeking to introduce each document ‘in good faith’, as documents have varying probative values. Thus, the more documents are involved, the more the court should exercise vigilance to ensure that the introduction of voluminous documents is not meant to overwhelm the opposing party at short notice or in extreme cases, to admit ‘wholly bogus documents’²⁸ into evidence. If a party did not adduce secondary evidence in good faith, he should, like a party who made a frivolous or vexatious objection, be subject to a sanction by way of an order for costs.

Sufficiency of the waiver principle

On the second issue, the waiver principle, which was approved by a long line of Indian authorities and probably originated from 18th and 19th century English and Canadian decisions,²⁹ is certainly incontrovertible. As the issue of proof of a document is an issue of procedure, it can be waived.³⁰

However, the waiver principle as tentatively formulated in Jet Holding might have leaned too much in favour of the party adducing secondary evidence. There are three key issues which will be discussed further below:

1    Whether there is any limitation to the waiver principle;

2    When would an objection be considered frivolous or vexatious?; and

3    Whether the waiver principle could be extended to a case where the document admitted was not secondary evidence.

Any limitation to waiver principle?

The waiver principle does not completely eradicate the best evidence rule in s 66. Where there is a proper objection made, the waiver principle does not apply and the party adducing secondary evidence is required to comply with the requirements of the Evidence Act.³¹ The best evidence rule is therefore preserved in that scenario.³²

On the other hand, where there is no objection made, the best evidence rule in s 66 is not followed and the waiver principle applies. However, in this situation, the court did not appear to have conclusively accepted the well-established distinction in Indian case law between an objection made on the admissibility³³ of a document (which was ‘a matter of substantive law’), as compared to one made on its mode of proof (which was purely procedural).³⁴ In the latter case, the waiver principle applied. But in the former, the court in Vijayawada observed that where ‘the objection is as to the admissibility of the document, then the mere marking of the document as an exhibit, does not preclude any objection being raised later as to its admissibility’.³⁵

Although the court seemed to have accepted this distinction at para 52 of Jet Holding³⁶ where it referred to the observations of the Indian Privy Council in Gopal Das v Sri Thakurji³⁷ to the same effect, it also endorsed the modern common law approach which was to admit all the evidence and assign the appropriate weight to the evidence instead.³⁸ The proper constraints of the waiver principle should be clarified.

When would an objection be frivolous or vexatious?

It is the prerogative of the opposing party to make a proper objection to the admission of secondary evidence.³⁹ As the court observed in Jet Holding, the primary purpose of ss 63 to 67 was ‘to ensure that fairness results to both parties’.⁴⁰ Viewed through the prism of fairness, reasonable time should therefore be given to the opposing party to peruse the documents to decide whether an objection should be made and for which document it should be made.

The court noted in Jet Holding that costs could be ordered against a party whose objection was frivolous or vexatious.⁴¹ However, in deciding the case, the court focused only on the factual issue of whether there was an objection by the defendants. Having found that an objection had been made, the court did not go on to consider whether or not it could be frivolous or vexatious.⁴²

What is the purpose of an objection (as to the mode of proof) to the admission of secondary evidence? Ratanlal & Dhirajlal’s The Law of Evidence states:

The object of the rule is obvious, if objection is taken in the first court, the party producing the copy can ask for an adjournment in order to get the original or else to give evidence justifying the admission of the secondary evidence.⁴³

Thus, any objection by the opposing party would likely be based on the valid concern that the party adducing the evidence had failed to meet the requirements of the Evidence Act. It therefore does not seem equitable for costs to be imposed against the opposing party as it is a judgment call for the court to make in each case whether notions of fairness and policy outweigh the need to adhere to the requirements of the Evidence Act.

The uncertainty surrounding the meaning of a ‘frivolous’ or ‘vexatious’ objection is exacerbated in cases involving numerous documents as much time and energy would likely be expended in deciding the matter. None of the Indian cases cited in Jet Holding dealt with the issue of a frivolous or vexatious objection or the admission of copious documents. The scope of a frivolous or vexatious objection should be clarified.

Extension of waiver principle to a case where the document admitted was not secondary evidence?

Jet Holding suggested that even if the secondary evidence sought to be admitted did not fall within any of the categories stated in s 65, the waiver principle could still apply. The Court of Appeal observed at para 55:

There has, however, been some suggestion that whilst the concept of objecting is relevant, the document concerned must also satisfy the criteria laid down for secondary documents under s 65 of the Evidence Act (see, for example, Kalyan Singh v Smt Chhoti AIR 1973 Raj 263, especially at [15]). The difficulty with such an approach is, however, that by its very terms, s 65 does not appear to limit secondary documents solely to the categories listed therein.⁴⁴ [emphasis in original]

However, the court did not go on to explain why s 65 did not appear to limit secondary documents only to the categories listed therein. It is submitted that secondary evidence is limited only to the categories expressly stated in s 65 given that it uses the phrase ‘means and includes’ to enumerate the 
five categories.

The phrase ‘means and includes’ has been interpreted in Singapore case law to mean that the definition is “both explanatory and exhaustive”: see the 1993 Singapore Court of Criminal Appeal decision of Chin Seow Noi & Ors v Public Prosecutor.⁴⁵ There is a significant difference between the phrase ‘means and includes’ and the use of the single word ‘includes’.⁴⁶ In Chin Seow Noi, the court held that because s 3 of the Indian Evidence Act defined ‘evidence’ as ‘means and includes’, it ‘was clearly intended to be an exhaustive one’.⁴⁷ On the other hand, because s 3 of the Evidence Act only used the word ‘includes’ in defining ‘evidence’, the court did not confine the meaning of ‘evidence’ to the express statutory definition, but extended it to ‘its ordinary, popular and natural meaning’ where applicable.⁴⁸

Ratanlal & Dhirajlal’s The Law of Evidence also states that s 65:

is exhaustive in regard to the kinds of secondary evidence admissible under the Act. The expression “means and includes … ” makes it clear that the five clauses referring to secondary evidence are exhaustive.⁴⁹

If the categories of secondary evidence in s 65 ought to be expanded, such change should be left to Parliament given the unambiguous meaning of the phrase ‘means and includes’ in s 65.

Conclusion

The Singapore courts are on the cusp of developing a new approach to interpreting the requirements of ss 63 to 67 of the Evidence Act. It is too early to say whether the waiver principle would achieve the necessary balance between strict adherence to the requirements of the Evidence Act on the one hand, and equity to, as well as between, both parties on the other.

The best evidence rule in the Evidence Act has not been totally eclipsed by the waiver principle – yet. However, it is no longer the touchstone of the law of evidence, be it in Singapore, Hong Kong or England. The prognosis for the continued survival of the best evidence rule in Singapore appears bleak and the best that proponents of the evanescent rule can hope for is that it does not completely pass into oblivion like its common law counterpart.

Alvin Chen⁵⁰

The Law Society of Singapore

E-mail: alvin@lawsoc.org.sg

Notes

1    [2001] EMLR 25 at para 85.

2    [2006] HKCU 92.

3    Ibid. at para 5.

4    [2006] 3 SLR 769.

5    (Cap 97, 1997 Rev Ed Sing).

6    Elizabeth A Martin, ed, A Dictionary of Law, 5th ed (Oxford: Oxford University Press) sv ‘best-evidence rule’.

7    Kajala v Noble (1982) 75 Cr App R 149, at 152.

8    Honourable Mr Justice YV Chandrachud et al, Ratanlal & Dhirajlal’s The Law of Evidence, 20th Ed (New Delhi: Wadhwa and Company Nagpur, 2002) at 647. Sections 61 to 65 of the Indian Evidence Act (Act 1 of 1872) are substantially similar to ss 63 to 67 of the Evidence Act.

9    Sudipto Sarkar and VR Manohar, Sarkar’s Law of Evidence, 15th Ed (New Delhi: Wadhwa and Company, 1999) at 1055.

10 Ibid at 1056.

11 Ibid.

12 Supra, note 4, at 790, para 47.

13 Ibid at 790 and 794, paras 47 and 56.

14 Ibid at 776–778, paras 3 to 9.

15 Ibid at 777, para 9.

16 Ibid at 779, para 15.

17 Jet Holding Ltd and others v Cooper Cameron (Singapore) Pte Ltd and another [2005] 4 SLR 417, at 463 and 465, paras 145 and 149.

18 Supra, note 4, at 790, para 45.

19 Ibid at 798, para 68.

20 Ibid at 791, paras 49 and 50.

21 Ibid at 792, para 52.

22 Ibid at 791, para 49.

23 Rama Chandra Majhi v Hambai Majhi 65 (1988) CLT 586, at 593.

24 Supra, note 4, at 791, para 50.

25 Supra, note 8, at 665.

26 Ibid at 665–66.

27 Section 67(1)(g) was not expressly discussed in Jet Holding.

28 Supra, note 4, at 786, para 36.

29 See The Land Acquisition Officer, Vijayawada Thermal Station v Nutalapati Venkata Rao AIR 1991 AP 31, at 36, para 19.

30 Supra, note 8, at 666.

31 Ibid at 802–03, para 73.

32 Taking into account that it is to some extent neutralised by the seven exceptions in s 67.

33 Section 67 only allows secondary evidence to be given for a document admissible in evidence.

34 Supra, note 29, at 34, para 10.

35 Ibid.

36 Supra, note 4, at 793, para 52.

37 AIR 1943 Privy Council 83, at 87.

38 Supra, note 4, at 796–797, paras 62 and 65.

39 Ibid at 792, para 50.

40 Ibid at 789, para 40 [emphasis in original].

41 Ibid at 792, para 50.

42  Ibid at 798–802, paras 68 to 72.

43 Supra, note 8, at 666.

44 Supra, note 4, at 793–94.

45 [1994] 1 SLR 135, at 156.

46 Ibid.

47 Ibid.

48 Ibid.

49 Supra, note 8, at 637 (emphasis in original).

50  The views expressed herein are solely the author’s own.