Witness

Part I – Competency, Compellability & Privilege

Competency
 Any person who is competent may testify in court
 S 118 EA – All persons are competent
o Unless he is unable to understands the questions put to them; or unable to give rationale
answers due to tender age, extreme old age, disease or any reasons
 Tender age and extreme old age is a question of fact
 Expl 1 s 118 – Mentally disordered person is not automatically incompetent unless falls under
exception of s 118
 Chai Kor v PP
o Deaf witness. Court satisfied witness can communicate by sign language
o During trial, found out witness has a different sign language
o Held: A deaf mute witness who could not be understood was excluded and declared
incompetent
 Note: s 119 – witness who cannot speak may give evidence in any other manner
 Ghouse Haji Kader v R
o A competent witness who has been summoned is bound to give evidence and answer all
relevant questions
 Syed Abdul Aziz v PP
o Once witness is deemed competent, he must answer all questions and cannot refuse to testify
 Note: s 132(1) – Witness shall not be excused from answering questions which will incriminate him
o Exception – s 132(2)
 Note: s 114, illustration (h)
 Note: s 148(2) – refuse to answer may allow the court to draw adverse inference
 Test for competency – Intellectual Capacity Test
o Sidek bin ludan v PP
 The competency of any witness (including a child) is a condition precedent
 Under s 118, court is entitled to test capacity of witness by putting proper questions
 Court has to ascertain if the witness has the intellectual capacity to understand
question and give rational answers
o Kee Lik Tian v PP (two step enquiry)
 Firstly, determine whether witness is competent to testify
 Then, determine whether the witness is giving sworn or unsworn evidence
Witness
 Judge will have to be satisfied that the witness has sufficient appreciation of the
seriousness of the occasion and a realization that taking the oath involves
something more serious than ordinary duty to tell the truth
 If that is not satisfied, judge should allow the witness to testify with a caution to
speak the truth (unsworn)
o Ahmani S/B v Abu Karim
 Every person who declares that taking an oath is contrary to his religious belief or has
no religious belief may take affirmation
 Sexual Offences Against Children Act (SOACA)
o S 2(1) – SOACA applies to a child below the age of 18 and where it relates to any other law,
the age specified in such law
o S 2(2) – Any reference to a child shall include a person whom an accused believes is a person
of or under the age as specified in the respective provisions of such offence
o S 17 – In proceedings for sexual offences against children, a child is presumed to be
competent to give evidence unless the court thinks otherwise
 Note: competency can still be challenged; court may still subject test to a child
 Evidence of Certain Categories of Witness
o Close relative/interested witness
 Liow Siow Long v PP – they may still be called as witness. S. 118 does not
discriminate close relative as witness.
 Note: however, the weight of such evidence is a different consideration.
o Witness who remains in court during trial
 GR: witness cannot be in court while the other witness is testifying, except expert
witness.
o Mohamed Nor v PP – they may still be called as witness but it affects the weight of evidence
o Chai Kor v PP – witness started to be competent and found to be incompetent later, whole
testimony must be struck out
 S 120 – deals with competency of witness in both civil and criminal
o S. 120(1): in civil proceeding, the parties to the suit and the husband/wife of any party to the
suit shall be competent witnesses
o S. 120(2): in criminal proceeding, the spouse of accused shall be competent witnesses
o S. 120(3): in criminal proceeding, accused shall be competent witness in his own behalf
Compellability
Witness
 No specific provision
 GR: All competent witness are compellable
 Ghouse Haji Kader – All witnesses who are competent are compellable and required to answer all
questions
 Exceptions: privilege

Privilege
 S 122 – marital communication
o Must be read together with s 120
o GR: no person who is married shall be compelled to disclose any marital communication
o Exceptions: spouse consent, civil suit between married persons, prosecution for a crime
against the other party to marriage
o Re Loh Kah Keng
o Ibrahim Awang v Ibrahim Dollah
 Privilege continues even after marriage ended
o Lim Lye Hock v PP
 GR: marital communication is privilege. Exceptions: refer above
o Pallas Arumugam v PP
 Acts which inextricably interwoven with marital communications are protected
o Ghouse Haji Kader v R
 Victim was kidnapped on 25/4 and married 26/4
 Privilege does not operate retrospectively, victim may testify
 S 123 – executive privilege/public interest privilege
o GR: No evidence of unpublished official records relating affairs of the state
o Exception: Permission from head of department subject to control of Minister
o State of Uttar Prdesh v Raj Narain
 Interest of justice and public interest of safeguarding state affairs must be balanced
o Note: affairs of state is undefined
o Duncan v Cammell Laird
 Ministers cert is conclusive and privileged (note: decision was during world war)
o CF: Conway v Rimer
 Minister cert is not conclusive and it is for the court to decide if the document falls
within affairs of the state
Witness
 Privilege should not be used to camouflage official misconduct
o Ba Rao v Sarupan Kaur
 Special internal report to investigate a doctor causing death negligently is no
privileged
 Court has the power to examine the document to determine if it is affairs of the state.
If yes, it is privileged
 If disclosure will affect the state, then private interest of the litigant must give way to
public interest
 Examples of privileged papers: cabinet papers, national security matters
 A mere assertion of confidentiality is insufficient, must be supported by evidence
 Affairs of the state is best left undefined to allow development
o Sri Devi Kanan v MAS
o Plaintiffs applied for both general and specific discovery of documents to identify the
particular tortfeasors
o Held: Allowed application as it was not seriously in dispute that the documents are with
Defendants & whether privilege applies or not is determined by the court
 What if document is classified as official secret under Official Secret Act?
o Takong Tabari v Govt of Sarawak
 Internal inquiry report was certified as official secret under s 16A
 Held: the court may question and order the production of document for inspection. S.
16A is not conclusive; the court has the discretion to decide whether a document
amounts to official secret. The EA prevails over OSA
o PP v Datuk Haji Sahar
 Whether the state EXCO paper which was marked as official secret under OSA may
be adduced in court.
 Held: All documents which fall under OSA are privileged under s. 123. The court has
no power to question it unless such privilege is waived.
 Held: OTF privilege was waived and document admissible
o MTUC v Menteri Tenaga, Air dan Komunikasi
 Audit report and concession agreement for water supply in Selangor. The documents
were discussed in Cabinet.
 Held (HC): Although it is labeled as ‘rahsia’, the court has the power to inspect and
see whether its disclosure would be detrimental to national security/public interest
Witness
 Held (CA): the power to classify whether a document is official secret is given to the
relevant parties but not the court.
 Held (FC): the audit report is an official secret document and is privileged.
 S 126 – professional communications
o No Advocate and Solicitor may disclose
 Communication made to him during employment
 Contents of documents which he acquainted during employment
 Any advice given by him to his client
o Exception:
 Express client’s consent
 Communication for an illegal purpose
 Facts observed which show crime/fraud committed
o Dato Seri Anwar Ibrahim – s. 126 is designed for the benefit of client but not lawyer. The
public policy demands full and frank confidential communication between client and lawyer
without fear of subsequent disclosure. S. 126 may sometimes be misused but its benefits
outweigh the harm.
o Note: Not all professional communications are privileged (clergymen and doctors are
inapplicable)
o PP v Haji Kassim – s 126 applies to A & S only
o Dato Au Ba Chi v Koh Keng Kheng
 S 126 only applies where A & S is professionally employed by client and it covers all
communications
 Once privileged, always privileged
 Chua Su Yin v Ng Sung Yee– preliminary consult is covered by privilege
 Tan Thiam Wah – legal aid is covered by privilege
 Wheeler v Le Merchant – communication by 3rd party to A&S for litigation purpose is privileged
 s. 127: s. 126 shall apply to interpreters/ clerks/servants of advocates. (intern law student/chambering
student is also covered by privileged)

Part II – Corroboration
 Corroboration deals with weight and not admissibility
 Corroborating evidence – independent supporting evidence in the form of other witness, real
evidence or documentary evidence
Witness
 GR: NO corroboration needed as a fact can be established by a single witness
o S 134 EA – no limit of number of witnesses
 Aziz bin Muhamad Dib v PP
o Evidence has to be weighed and not counted
 Exception: 3 categories of witnesses ought to be treated with caution
o Children, Accomplice, Witnesses in Sexual Offences
 Note: corroboration only applicable to Prosecution Witnesses
Corroboration required by Law
 There must be corroboration evidence before court can convict accused
 If the court convict accused without corroborating evidence, conviction may be quashed
 Corroboration is mandatory
Corroboration required by Practice
 The court must warn itself of the risk involved and the need for caution
 The warning must be found in judgment
 After the warning is given, the judge may convict on uncorroborated evidence provided he is
satisfied that the case has proved BRD
Definition
 R v Baskerville (adopted in Dowse v AG; Malaysian case)
o Must be independent
o Must implicate the accused
o Must show crime has been committed by the accused
 Thavanathan v PP
o can be direct/circumstantial evidence
o must be admissible, come from independent source and must show crime was committed by
Accused
What amounts to corroboration?
 Distress
o Crying or distress by sexual offences victim may amount to corroboration but caution must
be exercised
o R v Redpath
 Distress may amount to corroboration under certain circumstances
o R v Wilson
Witness
 Caution must be exercised as distress may spring from a number of causes and there
is a risk of simulation
o R v Chauhan
 Accused and victim were in office alone. Victim was seen by another colleague
running out the office and crying. The victim complained to colleague that accused
molested her.
 Held: distress
 Medical evidence
o Injuries suffered by victim and other physical evidence (eg: DNA) may amounts to
corroboration.
o Bunya Ak Jalong v PP – the corroborating evidence is only conclusive as to establishing
accused as the father of the child but not as to consent was given or not
o James v R
 Medical evidence which established that victim had sexual intercourse at about the
time of alleged offence by itself will not be sufficient ad corroboration as it does not
establish absence of consent
 DNA evidence may only establish sexual intercourse but not consent.
 Syed Abu Tahir v PP
o The issue of consent is not relevant in statutory rape. Medical evidence is the corroboration.
 Aziz Muhamad Din v PP
 Fact: rape case - 2 doctors of prosecution testified differently as to the age of tear.
 Held: although medical evidence is relevant to establish penetration, it is unsafe to rely on the
evidence by either doctor.
 Condition of accused
 Conduct of accused
o Chan Kwok Keung – act of accused of running away may be corroboration (it may show that
A is guilty of offence)
 Dowse v AG
o Fact: a man was accused of adultery. To prove it, prosecution brought evidence that accused
asked his doctor’s friend to examine her and paid for abortion
o Held: the act of paying for abortion may be corroboration that accused had omitted adultery.
 Deliberate lie
Witness
o R v Lucas – deliberate lie must relate to material issue. Motive for the lie must be able to
show the guilt/fear of truth
 Self-corroboration
o Common Law
 No self-corroboration can be made
 R v Virgo – Accomplice cannot be corroborated by his own diary
 R v Whitehead – evidence must be extraneous to the witness to be corroboration
o S 157 EA
 Witness has given evidence in court
 Witness had made a previous statement regard to the same fact
 Former statement can be written or verbal
 Formal statement was made at or about the time when the fact took place
 Statement was made before any authority competent to investigate
 Where all elements are satisfied, former statement may be used to corroborate
witness’ testimony
 PP v Paneerselvan
 Statement - anything stated not necessary for it to be communicated.
 It must be made at/about the time of event (proximity) – to prevent
concoction/fabrication
 It must be made to a person in authority (proximity element does not apply
here)
 Note: may indicates court’s discretion
 PP v DSAI – 112 statement made to PO is admitted under s 157
 Whether s 157 EA amounts to corroboration or only to show consistency?
o Not corroboration but only to show consistency
 Ah Mee v PP
 Aziz bin Mohamad Din v PP
 A. Paul – s 157 is not corroboration based on s 73A(7)
 Note: s 73A applies to civil only
 Lim Guan Eng v PP - s. 157 only deals with consistency but not self-corroboration
o S 157 EA amounts to corroboration
 R v Koh Soon Poh
 R v Velayuthan – s 157 amounst to corroboration but its value is a question of fact
Witness
 Lim Guan Eng v PP (FC) – s 157 refers to self-corroboration
 Mohamed Ali v PP
 Admissibility must not be confused with weight. True corroboration must be
distinguished from “corroboration” under s 157. The value of such a
statement may be low
3 categories of witnesses ought to be treated with caution
o Child witness
o Chao Chong v PP - evidence of child witness must be treated with caution. A child may find
it difficult to distinguish between fantasy and reality.
o Procedure – s 118 & Sidek bin Ludan (Intellectual Capacity Test) > Kek Lik Tian (sworn or
unsworn)
o Yusaini Mat Adam v PP – failure to comply may be fatal
o Unsworn evidence of a child
 S. 133A: If a child witness does not understand the nature of oath, he is allowed to
give unsworn evidence provided:
 He has sufficient intelligence to justify its reception (Sidek bin Ludan –
intellectual capacity test)
 He understands the duty to tell the truth
 Note: for sworn evidence, warning is mandatory; for unsworn evidence,
corroborating evidence is mandatory
 Proviso of s. 133A: unsworn evidence of a child, if given on behalf of prosecution,
the accused is not liable to be convicted unless there is corroboration. ( = Such
corroborating evidence is required by law)
 S 18 SOACA – Notwithstanding anything contrary to any law, court may now
convict an accused in sexual offence proceeding based on uncorroborated evidence of
a child
 Note: corroboration is no longer mandatory for sexual offences under
SOACA
 DPP v Hester – one unsown child cannot corroborate another unsworn child
o Sworn evidence of a child witness
 Corroboration required by practice and prudence
 Warning is mandatory
 Can convict on accused on uncorroborated evidence if satisfy BRD
 Loo Choon Huat v PP
Witness
 Formal warning of risk of acting on uncorroborated evidence is required
 The court, however, can convict on uncorroborated evidence if BRD is
satisfied
 Tham Kai Yau v PP
 No need for formal warning if the child is not of tender years
 If the judge has taken a prudent approach, he may convict accused on
uncorroborated evidence
 CF: PP v Gurdial Singh – the court must be cautious & for sworn evidence, there is
no need for a formal warning
o Victims of sexual offences
o Corroboration required by practice and prudence
o Warning is mandatory
o Can convict accused on uncorroborated evidence if BRD is satisfied
 Din v PP – if a woman complained that she was raped, both prudence and practice
demand that her evidence should be corroborated
 Dato Seri Anwar Ibrahim (sodomy 1) – conviction on uncorroborated evidence is not
illegal. However, it is unsafe to act on the uncorroborated evidence of a sexual
offence complainant unless there are special reasons
 Cf: Dato Seri Anwar Ibrahim (sodomy 2) – no corroboration is required as the
evidence is clear
o Accomplice
o S 133: an accomplice shall be competent witness; conviction based on uncorroborated
testimony of an accomplice is not illegal. ( = only demand corroboration of practice)
o Note: s. 114(b): the court may presume that an accomplice is not creditworthy unless he is
corroborated
o R v Lim Yam Hong – for corroboration of practice & prudence, warning is mandatory. The
court may convict on uncorroborated evidence if the case has proved BRD.
o Davies v DPP – there is difference between co-accused and accomplice. Accomplice is
witness for prosecution; co-accused is the witness for himself.
o Teja Singh – an agent provocateur (police’s informer) is not accomplice. He is the agent of
police even before crime is committed. Accomplice only assists prosecution after crime is
committed.
o Bhuboni Sabu v The King – one accomplice cannot corroborate another.
Witness
* READ BUNYA AK JALONG V PP!!!!!!
Evidence of Child Witness Act (ECWA)
 S. 2: ‘child witness’ = under 16; not include child accused who is charged with offence.
 Note: s. 16: EA prevails over ECWA
 Manner of giving evidence:
o S. 4: screen
o S. 5: live link (child is at different room, his testimony will be live stream in court)
o S. 6: video recording
o S. 8: intermediary
o S. 10: formal attire to be dispensed with.
 PP v Tan Yean Siang
o Accused killed a child. Victim’s sister (aged 4) had given evidence via video recording (s. 6).
She was interviewed in mandarin. The recording was transferred to CD and transcript in BM
was prepared.
o Held: the transcript is not admissible as s 6(2)(a) requires the transcript to be in original
language (Mandarin in this case)
 Mohammad Nizam – the application of ECWA is not mandatory in all cases involving a child
witness as s. 3 uses the word ‘may’

Part III Examination of Witnesses

 S. 135 EA
o GR: the order of which witnesses are produced and examined shall be regulated by
civil/criminal procedure
o Exception: in the absence of such law, by the discretion of court
o Note: civil cases, Plaintiff will open the case by calling his witnesses
o Note: criminal cases: DPP to call his witness first
 S. 137: examination in chief, cross examination & re-examination
 S. 138: order of examination
o Note: s. 138(2): cross examination does not confined to facts in examination in chief
 Examination in Chief (EIC)
o Purpose: to elicit from witnesses all material evidence to prove the case.
o GR: s. 141: leading question = …
o GR: s. 142: leading question may not be asked in EIC
Witness
o Exception: s. 154 - when witness turns hostile
o Note: Q of fact
o Dato Haji Azman v PP – a witness is not regarded as hostile just because his testimony is
against the party who calls him. A witness who shows no desire to tell the truth is a hostile
witness.
 Cross-examination
o Purpose: to elicit answer in favour of opposing party and to weaken the evidentiary value of
matters testified during EIC.
o S. 143: leading question may be asked during cross-exam subject to … (refer Act)
o PP v Wong Yee Sen – cross examination the greatest engine for discovery of truth, it may:
 Ask leading question – s. 143
 Impeach previous inconsistent statement – s. 145
 Test the accuracy, veracity and credibility of witness – s. 146(a)
 Shake the credit of witness by injuring his character – s. 146(c)
o Hanafi Mat Hassan v PP – failure to cross-exam can be fatal and may amount to acceptance
of testimony.
o PP v Mastor Ibrahim – there is duty of adverse party to challenge the other party.
 Re-examination
o Purpose: to reconcile any discrepancies between EIC and cross-examination. (only confine to
matter arising in cross-examination)
o S. 155: witness may be impeached
o S. 159: witness may refresh memory