The expression "burden of proof" is self-explanatory. It simply means the obligation to prove. In this judgment, I am only concerned with one principal kind of burden. It is the legal burden. A legal burden is defined as the obligation imposed on a party by a rule of law to prove a fact in issue. And the standard of proof required to discharge the legal burden depends upon whether the proceedings are civil or criminal. In the former, the standard required is proof "on the balance of probabilities". In the latter, the standard required of the prosecution is proof "beyond reasonable doubt". In a negligence action, for example, where the defendant alleges contributory negligence: the plaintiff bears the legal burden on the issue of negligence while the defendant has to prove contributory negligence. By way of an analogy, reference should be made to the case of Scott and Another v. Martin and Others [1987] 2 All ER 813, CA at p. 817, where Nourse LJ, in construing a conveyance, said that the party who relies on surrounding circumstances as an aid to construction has the onus to prove them. Likewise here, the onus falls on Chin Peng to prove that he is a Malaysian citizen as claimed by him. If you say that you are a Malaysian citizen, where's the proof to support your claim?
The legal burden is often determined by the rules of substantive law set out in the predecents and statutes. As far as the statute is concerned, I must call in aid s. 106 of the Evidence Act 1950 (Act 56). That section enacts as follows:
Burden of proving fact especially within knowledge
106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
ILLUSTRATIONS
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
Concisely put, it amounts to this. If a person asserts affirmatively that a certain state of facts is present or absent, that would be an averment that he is bound to prove. Section 106 of the Evidence Act 1950 (Act 56) is an exception to s. 101 of the same Act. Buttrose J in Ho Tong Cheong & Ors. v. Oversea-Chinese Banking Corpn. Ltd. [1967] 1 LNS 55; [1967] 2 MLJ 70, FC, aptly said at p. 71 of the report, in the context of when any fact is "especially" within the knowledge of any person, to this effect:
The fact as to whether the defendants knowingly committed the breaches complained of was surely something especially within their own knowledge.
52. The determination of where the legal burden falls is a matter of plain common sense. The latin phrase that says Ei incumbit probatio qui dicit, non qui negat is quite apt. Loosely translated it means this. That he who asserts must prove. The law books are replete with authorities on this latin maxim and its meaning. The Indian court in Pachkodi Gulab Badhai v. Krishnaji and Others [1947] AIR Vol. 34 Nagpur 145 held that where a document containing material alterations was produced from the custody of the person who had possession of it, that person has to explain where and how the alterations were made. The Court of Appeal in Public Prosecutor v. Yap Chai Kee [1922-1924] Volumes 3-4 F.M.S. Law Reports 75 held that since the accused was in possession of two forged rubber coupons it raised a presumption that he knew that they were forged. Likewise here, it was especially within the knowledge of Chin Peng who knew of the existence of his birth certificate and citizenship certificate and, consequently, the burden of proving that he had them is on him.Ong Boon Hua @ Chin Peng & Anor v. Menteri Hal Ehwal Dalam Negri, Malaysia & Ors 2008 [CA] | 
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