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An appeal is rarely heard the week it is filed. Records have to be assembled, submissions exchanged, hearing dates found; and in the months this takes, the underlying dispute does not pause to wait. By the time the appeal is heard, the party who lost below may have something new to say: a fresh transaction, a further breach, a document that only came to light afterwards. Section 69(2) of the Courts of Judicature Act 1964 and Rule 7(2) of the Rules of the Court of Appeal 1994 anticipate exactly this.

Further evidence, they say, “may be given without leave” on interlocutory applications, or as to matters occurring after the decision appealed against. Some practitioners have tended to read that sentence as settling the question. Two court decisions in 2025 confirm that it does not.

The provision, and the trap it sets

Section 69(1) of the Courts of Judicature Act 1964 gives the Court of Appeal full discretionary power to receive further evidence, whether by oral examination, affidavit, or deposition while Section 69(2) carves out two situations in which that evidence “may be given without leave”:

“69. Hearing of appeals

(1) Appeals to the Court of Appeal shall be by way of rehearing, and in relation to such appeals the Court of Appeal shall have all powers and duties, as to amendment or otherwise, of the High Court, together with full discretionary power to receive further evidence by oral examination in court or through a remote communication technology, by affidavit, or by deposition taken before an examiner or commissioner.

(2) The further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, the further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court of Appeal.”

Rule 7 of the Rules of the Court of Appeal 1994 repeats this structure almost verbatim, with one addition that section 69 lacks:

“7. Power of Court to amend, admit further evidence, or draw inferences of fact.

(1) The Court shall have all the powers and duties, as to amendment or otherwise, of the appropriate High Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, or by deposition taken before an examiner or Commissioner.

(2) Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought.

(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent as aforesaid, shall be admitted on special grounds only, and not without leave of the Court.

(3A) At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that—

(a) at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and

(b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be.”

Read Section 69(2) in isolation, and it is easy to assume that one party does not need the Court’s permission before filing the affidavit in relation to “further evidence”. This is when practitioners must be cautious.

Three categories of “further evidence”

The Court of Appeal in Krishnasamy Kuppusamy & Anor v Pengarah Hospital Sultanah Aminah & Ors And Other Appeals [1] set out three categories of “further evidence”:

(i) evidence used on an interlocutory application in the Court of Appeal;

(ii) evidence that only came into being after the hearing below, which it called “Subsequent Evidence”; and

(iii) evidence that existed and was available at the hearing below but was not adduced there, which it called “Existent Evidence.”

Krishnasamy held that the special conditions in Rule 7(3A) apply to Existent Evidence, but not to Subsequent Evidence, as based on a literal reading, Section 69(2) and Rule 7(2) already say in terms that Subsequent Evidence may be adduced without leave.

That classification is the backdrop against which both of the 2025 decisions have to be read.

Misconception one: “without leave” means without scrutiny

The Federal Court addressed this misconception directly in The Attorney General of Malaysia v Dato’ Sri Mohd Najib Tun Haji Abdul Razak & Another Appeal[2]. The appeal turned in part on two separate pieces of evidence a party sought to put before the Court of Appeal: an affidavit sworn after the High Court’s decision, and a document described in the judgment as an “addendum order” that was found to have existed before that decision. The Federal Court treated these differently, in a way that tracks the Krishnasamy classification precisely: the affidavit, being Subsequent Evidence, “may be adduced without leave of court,” while the addendum order being Existent Evidence, required leave and had to satisfy rule 7(3A).

Despite the view that Subsequent Evidence requires no leave, the Federal Court insisted the word “may” in Rule 7(2) continues to have operative effect:

“[47] […] We think it is significant that in r 7(2) of the RCA, the word ‘may’ is used. This suggests that the court retains a discretion to allow for such evidence to be adduced but this does not mean the court must invariably allow for such evidence to be adduced without leave, without some kind of filtering mechanism.”

The reason given was institutional rather than tied to the facts of the case:

“[48] […] Such a filtering mechanism is important as a means of preventing the appellate courts from being flooded with frivolous applications to adduce fresh evidence, thus taking up precious judicial time. If such application is not subject to some measure of judicial control, it would upend finality in litigation, which is a pillar of our system of justice.”

What the Federal Court did not do, for the affidavit that needed no leave, was walk it through the three Ladd v Marshall conditions the way it walked the addendum order through Rule 7(3A). The scrutiny it applied to Subsequent Evidence was the general discretion built into the word “may”; not the full reasonable-diligence, determining-influence, and credibility test. For the addendum order, by contrast, the Federal Court applied Rule 7(3A) directly, while cautioning against treating the underlying Ladd v Marshall conditions too rigidly:

“[91] […] While the Ladd v Marshall conditions remained apposite, they should not be construed as strictly as though they have statutory or legislative force but rather, they should be treated as a set of guidelines to be adapted as the interests of justice may require according to the circumstance of a particular matter […] The Ladd v Marshall criteria serve as a useful interpretive tool when judges give legal effect to the provisions of the said rule.”

The Federal Court went on to describe Rule 7(3A) as “encapsulating” the Ladd v Marshall test, distinguishing it from saying the rule merely “codifies” or “reflects” the older common law test.

Misconception two: the classification question is now settled

It is tempting to assume that, because both authorities now confirm a filtering role for the Court, the old category boundaries between interlocutory, subsequent, and existent evidence have simply dissolved. The Court of Appeal in Cempaka Mewah Sdn Bhd v Pengarah Ukur dan Pemetaan Negeri Sembilan Darul Khusus[3] shows that assumption is premature, and that the position is more contested than it looks.

The application in Cempaka Mewah itself concerned Existent Evidence; two documents from an earlier, unrelated project that had been available to the applicant for well over a decade before the hearing below, but were never adduced there. On Krishnasamy’s own classification, Rule 7(3A) plainly applied, and the applicant lost on the first limb: it could not show the evidence was unavailable or unobtainable with reasonable diligence. On those facts alone, the outcome required no departure from Krishnasamy at all.

The majority judgment went further. It held that a purposive reading of the whole scheme requires the Ladd v Marshall conditions, “as codified under r 7(3A) of the RCA,” to be applied “cumulatively and conjunctively […] as against all Applications to admit further evidence (notwithstanding any type or class of new evidence)” [4]. This language reaches beyond Existent Evidence and into the territory Krishnasamy had carved out for Subsequent Evidence. The reasoning was systemic and practical, in terms reminiscent of the Federal Court’s concern in Najib: a leave-free rule for Subsequent Evidence, the majority said, risks flooding the Court with untested new material and leaves no formal mechanism to test whether evidence really is subsequent in the first place, before it is used at the substantive hearing.

The minority judgment in the same appeal took a narrower path to the same result. Wong Kian Kheong JCA, delivering a separately reasoned judgment, agreed the application should fail, but on the footing that the two documents were plainly Existent Evidence, so Krishnasamy simply had no application; and, on that footing, “this court cannot therefore overrule Krishnasamy in any event.”[5] That judgment went on to list the practical benefits of Krishnasamy’s approach to genuine Subsequent Evidence: it spares the Court of Appeal a flood of leave applications, avoids delaying the hearing of appeals, and saves the parties the cost of affidavits and submissions on a question: “is this really new evidence, and should it be let in?” that can, on that view, still be tested at the substantive hearing itself rather than gatekept in advance.

The result is that Cempaka Mewah does not speak with one voice on the fate of Subsequent Evidence specifically. The majority judgment would subject it to the full Ladd v Marshall test regardless of classification. The other treats that as unnecessary to decide and would preserve Krishnasamy’s carve-out. Practitioners relying on Subsequent Evidence e.g. later transactions, later breaches, later documents, cannot yet assume either position is settled law.

What the Court actually looks for

Strip away the classification and the procedural questions, and the underlying test has not changed since the Federal Court adopted it in Lau Foo Sun v Government of Malaysia[6], following the English Court of Appeal in Ladd v Marshall[7]. In Lau Foo Sun, the Federal Court refused an application to adduce a witness’s evidence on appeal, holding that three conditions had to be satisfied before further evidence would be received:

“First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible.”[8]

Both Najib and Cempaka Mewah decisions accept these three conditions as the substantive core of the inquiry, but they differ on how rigidly to apply them. Najib treats them as “guidelines to be adapted as the interests of justice may require.” The majority in Cempaka Mewah treats them as cumulative and conjunctive requirements that must each be independently satisfied, notwithstanding any type or class of new evidence.

Lessons for practitioners

Anyone relying on subsequent evidence should be ready to satisfy all three Ladd v Marshall conditions even where leave is procedurally not required, rather than relying on the bare fact that the evidence relates to events after the decision in the court below. The supporting affidavit should address reasonable diligence, materiality, and credibility expressly, since a failure on any one limb is fatal regardless of which decision the Court prefers to follow.

A party facing such an application is not without recourse simply because no leave was technically required. It can point to Najib’s filtering mechanism, built into the word “may,” and if the evidence is genuinely subsequent, they can also invite the Court to adopt the majority approach in Cempaka Mewah and test the evidence against all three Ladd v Marshall conditions regardless of its classification.

Closing thought

The practical lesson is one of mindset. Section 69(2) is often treated as a free pass: the events happened after the decision, or the appeal is interlocutory, so the affidavit is filed and assumed to be part of the appeal. After Najib and Cempaka Mewah, that assumption is not safe. Being excused from asking for leave is not the same as having a right to be heard on the evidence. Being spared the need to ask permission has never been the same as being entitled to an answer of yes. Admission is not automatic, and it is not as of right.

This article is for general information only. It is not legal advice, it is not a statement of settled authority, and it should not be relied on in place of reading the provisions and the cases themselves or taking advice on a particular matter.

Efa Sakinah Razak, LL.B (Hons) (UiTM) (Senior Legal Associate)

Ryan Jaafar, LL.B (University of Reading) (Partner)

[1] Krishnasamy Kuppusamy & Anor v Pengarah Hospital Sultanah Aminah & Ors And Other Appeals [2024] 1 MLRA 344.

[2] The Attorney General of Malaysia v Dato’ Sri Mohd Najib Tun Haji Abdul Razak & Another Appeal [2025] 6 MLRA 155; also reported at [2025] 8 CLJ 951 (Federal Court, 13 August 2025).

[3] Cempaka Mewah Sdn Bhd v Pengarah Ukur dan Pemetaan Negeri Sembilan Darul Khusus [2026] 1 MLRA 459 (Court of Appeal, 18 March 2025).

[4] Cempaka Mewah, majority judgment of Azimah Omar JCA, at [47].

[5] Cempaka Mewah, judgment of Wong Kian Kheong JCA, at [83].

[6] Lau Foo Sun v Government of Malaysia [1970] 1 MLRA 219 (Federal Court, 2 March 1970).

[7] Ladd v Marshall [1954] 3 All ER 745 (CA).

[8] Lau Foo Sun, judgment of Suffian FJ, at [4]–[7], adopting the tests enunciated by Denning LJ at p 748 in Ladd v Marshall.