Witnesses ‐ Court held that there is no merit in this issue.

There is no requirement under EA to conduct a

preliminary inquiry though case laws requires the
3 Parts: competency to be tested for child under tender
1. Competency, compellability and privilege years and not child per se.

2. Corroboration ‐ Section 118 of EA only comes into issue if the

court considers that a child of ‘tender years’
3. Examination in chief and cross examination gives evidence. It is difficult to fathom how SP3
and SP10 who were school going aged 15 at the
time of giving evidence will fall within the
Competency
definition of ‘tender years’ stated in Section 118.
→ Competency is on who may testify as a witness in
‐ Section 133A also relates to ‘child of tender
court.
years’. Though there are sufficient material in the
→ Section 118: All persons shall be competent to testify judgment to satisfy that the court has taken
unless the court considers that they are prevented from cognisance of Section 133A, but again the
understanding the questions put to them or from evidence of SP3 and SP5 will not fall within the
giving rational answers to those questions by tender definition of ‘child of tender years’ on the factual
years, extreme old age, disease, whether of body or matrix of the instant case.
mind, or any other cause of the same kind.
→ Sahrul Tola v PP [2018] 1 LNS 159
Explanation—A mentally disordered person or a
‐ The Accused was charged for an offence
lunatic is not incompetent to testify unless he is
under section 376(1) of the Penal Code. The
prevented by his condition from understanding the
victim was a minor, aged 15.
questions put to him and giving rational answers to
them. ‐ The Accused raised the issue on failure to
comply with section 133A of EA. The Accused
→ General rule is that all persons are competent.
submitted that the learned trial judge had erred in
Exceptions:
law by failing to make an inquiry and/or to
‐ Unable to understand the questions put to them; satisfy herself that the child witnesses PW2 and
or PW3 possess sufficient intelligence to understand
the duty of speaking the truth.
‐ Unable to give rationale answers due to
‐ In rebuttal the Prosecution submitted that based
∙ Tender age
on the case of Steven Pangiraja & Ors v PP
∙ Extreme old age [2014] 4 CLJ 418, PW2 (victim) and her cousin,
∙ Disease of the body or mind PW3 could not be considered as children of
tender years therefore Section 133A does not
∙ Any other cause apply to both witnesses. It was explained in
→ There is no minimum or maximum age specified for paragraph [13] of this case that an evidence given
the purposes of tender age and extreme old age. by a child aged 15 years old who is attending a
Therefore, it is highly subjective and depends on the school will not be treated as an evidence given
facts of each case. by a child of tender years as long the judge in the
first instance court has been extra cautious and
→ Sidek bin Ludan v PP [1995] 3 MLJ 178
fully aware of the competency issues relating to
‐ The focus is not on the age, but on the sufficient intelligence.
intellectual capacity to understand questions and
‐ In this instant case, PW2 was 16 years old when
give rationale answers.
she gave evidence and PW3 was 15 years old
→ Steven Pangiraja v PP [2014] 4 CLJ 418 when giving her evidence. PW2 was then a Form
3 student when she stopped schooling and PW3
‐ The child witness was 13 at the time of the
was still attending school
offence and 15 at the time of trial. The issue on
appeal was due to the learned trial judge not ‐ The court went through the notes of proceedings,
conducting a preliminary enquiry to test the and it was shown that PW2 and PW3 have the
competency of witness as required under sufficient intelligence in giving evidence for this
Sections 118 and 113A. case. PW2 was able to explain the rape incident
in details. I also found that PW2 and PW3 had
 given consistent answers to the questions asked → Syed Abdul Aziz v PP [1993] 3 SLR 534
and the witness statements did not contradict
‐ After some preliminary questions, witness
each other.
informed the court that he did not want to testify.
→ Tham Kai Yau v PP [1976] 1 LNS 159
‐ General rule is that once a witness is to be
‐ The child witness was 13 at the time of incident competent, he must answer all questions.
and 14 at the time of trial. The witness was held
→ The general rule is that a witness cannot refuse to
to not be a child of tender years.
answer.
→ Loo Chuan Huat v PP [1971] 1 LNS 68
→ Section 147: When witness to be compelled to answer
‐ Child witness was 7 at the time of offence and 11
‐ If any such question relates to a matter relevant
at the time of trial where he gave unsworn
to the suit of proceeding, section 132 shall apply
evidence. Child was held to be a child of tender
thereto.
years.
→ The consequence if witness wouldn’t answer is that
→ PP v Chan Wai Heng [2008] 5 CLJ 805
the opposing party can raise adverse inference under
‐ Child witness was 7 at the time of incident and 9 Section 114(h) and under Section 148(2)(d).
at the time of trial. Witness was held to be a child
→ The exception to this rule is if the witness is
of tender years and gave unsworn evidence under
privileged (discussed later on).
Section 133A after preliminary enquiry.
→ Section 132: Witness not excused from answering on
→ Those with mental disorder are not automatically
ground that answer will criminate
incompetent. They still have capability to give
evidence as long as can give rationale answers. Refer (1) A witness shall not be excused from answering
Explanation to Section 118. any question as to any matter relevant to the matter in
issue in any suit, or in any civil or criminal proceeding,
→ Witness with disability: Chai Kor v PP [1965] 2
upon the ground that the answer to that question will
MLJ 208
criminate or may tend directly or indirectly to
‐ Court held that a deaf mute witness who could criminate, him, or that it will expose, or tend directly
not be understood was excluded and declared as or indirectly to expose, the witness to a penalty or
incompetent due to physical incapacity. forfeiture of any kind, or that it will establish or tend
to establish that he owes a debt or is otherwise subject
→ Section 119: Dumb witness
to a civil suit at the instance of the Government of
(1) A witness who is unable to speak may give his Malaysia or of any State or of any other person.
evidence in any other manner in which he can make it
(2) No answer which a witness shall be compelled by
intelligible, as, for example, by writing or by signs;
the court to give shall subject him to any arrest or
but the writing must be written and the signs made in
prosecution, or be proved against him in any criminal
open court.
proceeding, except a prosecution for giving false
(2) Evidence so given shall be deemed to be oral evidence by that answer.
evidence.
(3) Before compelling a witness to answer a question
→ Saipuddin Abdul Aziz v PP [2009] 9 CLJ 364 the answer to which will criminate or may tend
‐ The victim (SP5) is deaf and dumb. The learned directly or indirectly to criminate him the court shall
trial judge did a preliminary inquiry on the explain to the witness the purport of subsection (2).
credibility and competency of the victim and → The test for competency is the Intellectual Capacity. It
found that the victim was indeed competent to is provided for in the case of Sidek bin Ludan v PP
give testimony. [1995] 3 MLJ 178:
→ A competent witness must testify and answer all ‐ The competency of any person including a child
relevant questions. witness is a condition precedent.
→ Ghouse Haji Kader v R [1946] 1 MLJ 36 ‐ Under Section 118, court is entitled to test
‐ Court held that a competent witness who has capacity by putting proper questions.
been summoned by the court to testify is bound ‐ The court has to ascertain the intellectual
to give evidence and answer all relevant capacity and understanding of the witness
questions. including a child witness to give a rational
 account of what he has seen or heard or done on provisions of Section 133A must ordinarily be
a particular occasion. satisfied as to competency as well as to
corroboration.
→ The procedure can be seen in the case of Kee Lik
Tian v PP [1984] 1 MLJ 306 ‐ This Section must be read together with Section
118 which sets out the principle rule regarding
‐ The child witness was 12 years old with low IQ.
the competency of witnesses. Under Section 118,
‐ The first matter that has to be determined is when a child of tender years is called to give
whether the witness is competent to testify, under evidence, there is a duty upon the court to ensure
Section 118. that the child understands the nature of an oath.
‐ If not then the witness is rejected due to ‐ The evidence cannot be received without an
non-competence. If yes, then the second issue to oath if the court is of the opinion that the child
be determined is whether the witness is giving possesses sufficient intelligence to justify the
sworn or unsworn evidence. Whether the witness reception of the evidence and understands the
can take oath/affirmation (sworn) or just wants to duty of speaking the truth.
speak the truth (unsworn).
‐ In this case, there was a total failure on the part
‐ If unsworn, then there must be given a warning of the learned magistrate to comply with the
to the witness to tell only the truth. provisions of Section 118 and Section 133A,
→ Ahmani Sdn Bhd v Abu Karim Baharom & Ors thereby making the conviction in law unsafe.
[2000] 2 CLJ 625 Such a failure could not be cured by Section 422
of CPC. There was a substantial miscarriage of
‐ Every person who declares that taking of an oath justice as the child witness’ competency was not
is contrary to his religious belief or that he has no established in this case.
religious belief can affirm, instead of taking an
oath. → Section 2 of Sexual Offences Against Children Act
2017 (SOACA): Application
→ The Concise Oxford Dictionary:
(1) This Act shall apply to a child who is under the
‐ “Oath”: A solemn appeal to or revered or age of eighteen years and where this Act relates to
dreaded person or object in witness that the any other written law, to a child of such age as
statement is true. (BM: sumpah) specified in such written law.
‐ “Affirm”: Make affirmation (BM: ikrar) (2) Any reference to a child in respect of any offence
‐ “Affirmation”: Solemn declaration by person under this Act, or any offence specified in the
who conscientiously declines taking an oath. Schedule where the victim is a child shall include a
person whom an accused believes is a person of or
→ The judge will have to be satisfied that the witness has
under the age as specified in the respective provisions
sufficient appreciation of the seriousness of the
of such offences.
occasion and a realisation that taking the oath involves
something more than the ordinary duty to tell the → A literal interpretation of this Section suggests that the
truth. Act would only apply to a child, which means it
would only apply if:
‐ If not satisfied, judge should not allow the
witness to give evidence on oath or affirmation ‐ Victim is a child
but allow the witness to testify with a caution to ‐ Accused person is a child below 18
speak the truth.
→ However, only a purposive approach will work in the
→ The failure to follow these procedures would be the interpretation of this Act beased on the parliamentary
grounds of appeal. Therefore, failure to follow intention. It is clear that this Act will apply where the
procedures will be fatal. victim of any offence or in the Schedule is a child.
→ Tajudin Salleh v PP [2008] 2 CLJ 745 ‐ Therefore, this Act will apply to an accused
‐ The accused was charged for outraging modesty regardless of whether he is above or below 18.
of a 10 year old girl. The victim was 12 at the → Section 17 of SOACA: Presumption as to capacity of
time of trial. a child witness
‐ On appeal the High Court held that it is for the Notwithstanding anything contrary in any other
prosecution to establish that the witness is written law, in any proceedings against any person
competent and in the case of a child witness, the
 relating to any offence under this Act, or any offence thinks otherwise. By virtue of the appropriate
specified in the Schedule where the victim is a child, a questions asked and the correct answers given by
child is presumed to be competent to give evidence SP2, the competency of SP2 is not in doubt for
unless the court thinks otherwise. the court to opine otherwise, thus the court is
justified when it ruled that she is a competent
→ Elements of Section 17:
witness to the proceeding involving her modesty.
‐ “Notwithstanding anything contrary in any other
→ Ahmad Hafizal Darusalam v PP [2019] 1 LNS 1172
written law, in any proceedings against any
person relating to any offence under this Act, or ‐ Court referred to Section 17 and and agreed with
any offence specified in the Schedule where the the findings of the trial judge that SP1 is a
victim is a child,” competent witness and giving sworn evidence.
∙ Section 17 will prevail over Section 118 and → Section 19 of Security Offences (Special Measures)
Section 133A in cases which fail within the Act 2012 (SOSMA): Conviction based on testimony
ambit of SOACA. of a child of tender years
‐ “a child” A conviction obtained based on the uncorroborated
testimony of a child of tender years is not illegal,
∙ It is clear that it refers to a child under 18,
though not given under oath, if the court is of the
but it is unclear whether a child victim who
opinion that the child is possessed of sufficient
is a witness or can it also apply to a “child
intelligence and understands the duty of speaking the
witness” who is not the victim of the sexual
truth.
offence.
→ Evidence of Close relatives (interested witness): Liow
‐ “presumed to be competent to give evidence
Siow Long v PP [1970] 1 MLJ 40
unless the court thinks otherwise.”
‐ If close relatives of the parties are competent,
∙ So, child witnesses in cases which fall
then can give evidence. But the weight may be
within SOACA presumed to be competent,
affected and corroboration may be required.
but this competency can be challenged.
Judge can subject a child witness to → Evidence of witness who remains in court during trial:
intellectual capacity test. Judge has a Mohamed Nor v PP [1939] MLJ 305
discretion to conclude that a child is not
‐ Weight may be affected. But if the witness if
competent.
competent, then can give evidence.
∙ So this presumption is rebuttable.
→ Scenario: A witness is called and the court accepts
→ Razali Silah v PP [2019] 1 LNS 1508 that he is competent to testify, so the witness starts to
give evidence. After preliminary questions the
‐ In criminal cases, children of "tender years" are
witness’s demeanor changes and he no longer
competent to give unsworn testimony even
understands the question and does not give rationale
though they do not understand the nature of the
answers.
oath, so long as they are possessed of sufficient
intelligence to justify the reception of evidence ‐ A judge can change his opinion on the
and understand the duty of speaking the truth. competency of the witness. The entire evidence
The question whether a child is of tender years can be struck out.
and has the necessary intelligence will be
→ Chai Kor v PP [1965] 1 LNS 16
determined by the judge. Children who
understand the nature of an oath are competent to ‐ This appellant who has been convicted of murder
give sworn testimony. The test is whether the was originally charged with another accused
child has sufficient appreciation of the whom the jury acquitted at the end of the case for
seriousness of the occasion and a realization that the prosecution.
taking the oath involves something more than the ‐ The prosecution case concerns the two accused,
duty to tell the truth in ordinary day to day life (R really depended on the evidence of two witnesses
v. Hayes (1977) 1 WLR 234). only. One was Krishnasamy s/o Kandiah and his
‐ Section 17 of Act 792 which operates evidence was to the effect that he had seen both
independently of section 118 of the Evidence Act the accused assaulting the deceased with
1950 renders that SP2 is presumed to be instruments that could have been daggers.
competent to give evidence unless the court Having seen that, he himself said that he went
 home, had his meal and went to bed. He said that → Ng See Hem v Lim Ah Hooi [1950] MLJ 280
he told no one about this incident until 20 days
‐ In a civil case, a plaintiff can call defendant as
later when, as a result of an approach from the
his witness.
police, he himself went to the police. He said that
he was very friendly with the police; he even
helped them with their garden. It can only be Compellability
described as very extraordinary conduct for a
man in that position to keep the story to himself → Compelling is to force or to oblige someone to do
and not speak about it to his friends the police something.
during the whole of that 20 days. → A witness is compellable if he or she may lawfully be
‐ There are also other features in his evidence required to give evidence. There are no specific
which lead to the conclusion that his evidence provision for this, but all witnesses who are competent
should be treated with caution. At the close of the are technically compellable.
case for the prosecution the jury found the first → Ghouse Haji Kader v R [1946] 1 MLJ 36
accused not guilty. That has an important bearing
‐ General rule: All witnesses who are competent
with regard to the evidence of this witness. For
are technically compellable and required to
his evidence to the effect that No. 1 accused was
answer all questions.
one of the persons attacking the deceased was at
variance with the evidence of the other ‐ Exception: Cannot be compelled on matters
eye-witness. The other eye-witness saw only one which are privileged.
attacker and it was assumed by the Judge, and
rightly so it seems, that, by acquitting No. 1
accused, the jury was taking the view that Privilege
Krishnasamy was not a reliable witness and that 1. Marital privilege, Section 122
therefore they were not prepared to accept his
uncorroborated testimony in regard to accused 2. Public Interest privilege, Section 123
No. 1. 3. Confidential communications made to a public officer,
→ Section 120 of EA: Parties to civil suits and wives Section 124
and husbands 4. Legal Professional privilege, Section 126
(1) In all civil proceedings the parties to the suit, and
the husband or wife of any party to the suit, shall be
Marital Privilege
competent witnesses.
→ Section 122: Communications during marriage
(2) In criminal proceedings against any person the
husband or wife of that person respectively shall be a No person who is or has been married shall be
competent witness. compelled to disclose any communication made to
him during marriage by any person to whom he is or
(3) In criminal proceedings the accused shall be a
has been married; nor shall he be permitted to disclose
competent witness in his own behalf, and may give
any such communication unless the person who made
evidence in the same manner and with the like effect
it or his representative in interest consents, except in
and consequences as any other witness:
suits between married persons or proceedings in
Provided that, so far as the cross-examination relates which one married person is prosecuted for any crime
to the credit of the accused, the court may limit the committed against the other.
cross-examination to such extent as it thinks proper,
→ Must be read together with Section 120(1) and (2).
although the proposed cross examination might be
permissible in the case of any other witness. → General rule: Marital communication between
husband and wife is privileged because of public
→ Section 120 deals with competence of witness in both
policy.
civil and criminal cases. Elements:
‐ Privileged communications cannot be revealed in
‐ Civil: parties and spouses are competent
court proceedings.
‐ Criminal: spouse of the accused shall be
‐ The witness cannot be compelled and is not
competent. Accused shall be competent on his
permitted to disclose the communication due to
own behalf. (Prosecution cannot give evidence
public policy.
on behalf of accused)
→ Exception: ‐ he can be called as witness, as long as she is
competent. But she cannot reveal what he told
‐ The person who made the communication
her (privilege). But she can testify what she saw.
consents
Only communication is covered by privilege.
‐ The non witness spouse must consent
→ Lim Lye Hock v PP [1995] 1 SLR 238
→ The consent will not be necessary in cases
‐ General rule: witness cannot be compelled to
‐ Civil suit between married persons disclose marital communication. Exceptions:
‐ Prosecution of a crime against the other party to ∙ Spouse consent
the marriage
∙ Civil case between the married parties
→ Re Loh Kah Kheng [1990] 1 CLJ 823
∙ Prosecution for a crime against the other
‐ At the inquest, a police officer, DSP Eric Foong party to marriage
informed the Court that during an investigation
→ Palldas Arumugam v PP [1988] 1 CLJ 661
of the murder, the police received information
from a police informer which related to a ‐ Acts inextricably interwoven with
commission of a crime in connection with the communications will also be privileged.
death of the deceased. The information was said
‐ Where the act and communication are
to have been given in official confidence and
simultaneous, the act will also be privileged.
recorded in writing by another police officer,
ACP Raja Lope Ahmad. An application was → Ghouse Haji Kader v R [1946] 1 MLJ 36
made for the information to be divulged at the ‐ Accused kidnapped a young girl and married her
inquest. The officer assisting in the inquiry the next day. Issue is whether the young girl can
objected to disclosure of the information on the testify.
ground of privilege under ss. 124and 125 of the
Evidence Act 1950. The learned Magistrate ruled ‐ Can testify, but must get consent.
that the said written information could not be ‐ Privilege is not backdated, it only happens from
disclosed at the inquest, but held that it should be the point of marriage.
shown to her for her own consumption.
→ The section does not mention on express consent. The
‐ On appeal, the High Court held that The occasion section is also silent on whether it must be legally
for claiming privilegeunder Section 124 of the married, or customary marriage goes.
Evidence Act 1950 arises only when the
→ Section 18B of SOSMA: Communications during
evidence sought to be given is a communication
marriage
made to a public officer 'in official confidence'.
Inquest is not judicial proceeding, so not (1) A person who is or has been married shall be
protected by privilege. compelled to disclose any communication made to
him during marriage by any person to whom he is or
→ Ibrahim Awang Mat v Ibrahim Dollah [1987] 2
has been married.
MLJ 471
(2) Such person shall be permitted to disclose any
‐ The witness (PW3) was the ex-wife of the
such communication notwithstanding that the person
defendant who stated that defendant had told her
who made it does not consent.
that the land was mortgaged by the deceased to
the defendant for RM200. In view of the defence → There is no marital privilege when it comes to
Counsel's objections as regards its admissibility SOSMA. 18B prevails over 122 of evidence act.
and after hearing arguments from both sides, I When it comes to SOSMA charge, SOSMA
ruled that she was not permitted to disclose the provisions will apply under Part VII of SOSMA.
communication made by the defendant in view of
the second limb of Section 122 of the Evidence
Act 1950. Public Interest Privilege

‐ Privilege will continue even after the marriage → Section 123 of EA: Evidence as to affairs of State
ends. No one shall be permitted to produce any unpublished
→ Scenario: X is charged with a murder. Y is his wife, official records relating to affairs of State, or to give
she saw him coming home and on his shirt she saw any evidence derived therefrom, except with the
blood stains. He later makes a confession to her. permission of the officer at the head of the department
 concerned, who shall give or withold permission as he → A submission that the relevant evidence falls within
thinks fit, subject, however, to the control of a Section 123 can be challenged.
Minister in the case of a department of the
→ To determine if the evidence falls within Section 123,
Government of Malaysia, and of the Chief Minister in
there are 2 preconditions:
the case of a department of a State Government.
‐ Unpublished record
→ General rule: no evidence of unpublished official
records relating to affairs of the state can be adduced. ‐ Relate to affairs of state

‐ Exception: Permission from the head of → This is where the court will determine whether the
department subject to the control of the Minister. document is an unpublished record or is it a matter of
The head of department may grant permission as affairs of state. Court needs to strike a balance
he thinks fit as his discretion. between public policy and misconduct of public
officials in camouflaging information under Section
‐ This is because of public policy, because some
123.
documents might contain sensitive information.
There might be legitimate reasons to protect ‐ Some say the court should decide if the
these information. documents fall under affairs of state because its
independent. This revolves around judicial
→ Requirements:
independence, and so this is vital for check and
‐ Unpublished official record; and balances.
‐ Relate to affairs of the state → “Affairs of State” is not defined in the Act. So must
look at cases.
→ State of Uttar Pradesh v Raj Narain AIR 1975 SC
865 → Duncan v Cammell Laird [1942] AC 624
‐ The foundation of the law behind ss. 123 and 162 ‐ A minister’s certificate is conclusive
of the Evidence Act is the same as in English law.
→ Conway v Rimmer [1968] AC 910
It is that injury to public interest is the reason for
the exclusion from disclosure of documents ‐ Minister’s cert is not conclusive. It is for the
whose contents if disclosed would injure public court to decide if the document falls within the
and national interest. Public interest which definition of affairs of state. Court has the right
demands that evidence be withheld is to be to examine. Privilege cannot be used to
weighed against the public interest in the camouflage official misconduct.
administration of justice that Courts should have → Ba Rao v Sapuran Kaur [1978] 2 MLJ 146
the fullest possible access to all relevant
materials. When public interest outweighs the ‐ The document tendered was a special internal
latter, the evidence cannot be admitted, The report by a committee to investigate. Court
Court will proprio motu exclude evidence the referred to Duncan case and Conway case.
production of which is contary to public interest. ‐ Federal court held that court has the power to
It is in public interest that confidentiality shall be examine the document to determine if it is
safeguarded. The reason is that such documents covered by the the “affairs of the State”. If yes, it
become subject to privilege by reason of their is privileged and is protected by public interest.
contents. Confidentiality is not a head of If disclosure will affect state secrets then private
privilege. interest of litigants must give way to public
‐ It is a consideration to bear in mind. It is not that interest.
the contents contain material which it would be ‐ A mere assertion of confidentiality and affairs of
damaging to the national interest to divulge but state will not do, it must be supported by
rather that the documents would be of class evidence.
which demand protection. To illustrate the class
‐ “Affairs of state” must best left undefined to
of documents would embrace Cabinet papers,
allow development and evolution. It is question
Foreign Office dispatches, papers regarding the
for the courts based on the facts of each case.
security of the State and high level
inter-departmental minutes. In the ultimate → Sri Devi Kanan & Ors v Malaysian Airline System
analysis the contents of the documents are so & Ors [2017] 2 CLJ 728
described that it could be seen at once that in the
‐ The Plaintiffs are the dependants of a passenger
public interest, the documents are to be withheld.
of MH370. They claimed against:
 ∙ The Department of Civil Aviation and its ‐ Thus, it is not correct to say that once a
Director General for negligence and breach certificate has been issued certifying that a
of statutory duty document is an official secret, it is completely
excluded from being excluded from being
∙ The Immigration Department of Malaysia
disclosed in court. The relevant provisions of EA
and its Director General for breaches of
are there to consider.
breaches of duty which led to the boarding
of two passengers whose travel documents ‐ In other words, classified documents attracts the
were purportedly falsified and/or stolen, claim of privilege but they are not totally
compromising the safety of the aircraft and excluded from the application of the relevant
its passengers and crew provisions of the EA in a court of law in this
country.
∙ The Royal Malaysian Air Force and its
Chief for their failure to take adequate steps → PP v Datuk Haji Sahar Arpan [1999] 3 CLJ 427
after their military radar detected the turning
‐ The former ADUN and state Exco member
back of MH370 from its original course;
charged with corruption when he failed to
and
declare his financial interest in a company
∙ The Government of Malaysia applying for a state land for agriculture
development. He was present during the
‐ The plaintiffs also made an application against
deliberation of the application by the Exco and
the defendants for both general and specific
had sought to influence the decision. He later
discovery of documents that were necessary to
sold the land.
identify the particular persons whom the
plaintiffs regarded as the tortfeasors in their ‐ The issue here is whether the state Exco papers
action. can be adduced in court or are they privileged.
‐ The court allowed the application for both ‐ Court held that all documents which fall under
general and specific discovery for the reason that the OSA are privileged under Section 123. Court
it was not seriously in dispute that these does not have the power to question unless the
documents remain in the possession, custody or privilege is waived.
power of the defendants. Where the defendants
‐ On the facts, the state government had waived
contend that a document is protected by privilege,
the privilege and so the document was
then whether or not privilege applies will be a
admissible.
matter for determination by the court.
→ But this brought about a conflict in decision. Which
→ Takong Tabari v Government of Sarawak [1995] 1
decision you prefer?
CLJ 403
‐ P.S. Ms Mages likes Rickard Malanjum’s
‐ Plaintiff’s husband was killed as a result of an
decision.
explosion in a premises occupied the Defendant.
An internal inquiry was held and an internal → MTUC v Menteri Tenaga, Air dan Komunikasi
report was produced for the Defendant. Plaintiff [2010] 6 CLJ 291 (HC)
wanted to inspect this report, but defendant ‐ The evidence tendered was the audit report and
refused as it was certified as an official secret the concession agreement for water supply in
under Section 16A of Official Secrets Act 1972. Selangor. The documents were discussed in
‐ Justice Richard Malanjum adopted the view that cabinet. Issue was whether all the documents
the classification of the document under Section discussed in Cabinet official secrets and
16A of OSA was not conclusive that it was an privileged automatically.
unpublished official record relating to the affairs ‐ Held that the documents contained no
of the state. information detrimental to national security or
‐ He held the view that Section 16A is not public interest, but the disclosure may lead to
intended to prohibit the admissibility in a court of public discussion and criticism against the
law of a document certified as an official secret. government. Even though classified as “Rahsia”,
Rather, it is only to oust any action directed to its classification did not in any way bar this court
question the reason or ground for the from looking at the document as a whole to see
classification of a document as an official secret. whether its disclosure would be detrimental to
national security or public interest. This must be
 the only test to be applied by the court. Court or not such disclosure would be detrimental to the
held that it was nonsensical to say any document public interest and, if the head of the department
put before Cabinet is automatically to be treated certifies that such disclosure would not be prejudicial
as “Rahsia” under Section 2A of OSA. to the public interest, then the officer shall disclose the
communications.
→ Menteri Tenaga, Air dan Komunikasi v MTUC
[2012] 9 CLJ 858 (COA) → General Rule:
‐ The majority decision was that powers and duties ‐ No public officer shall be compelled to disclosed
to declassify documents under the OSA had been
‐ Communications made to him in official
given to relevant parties and not to the courts.
confidence
The court could not usurp the power of the
Minister concerned or the public officer charged ‐ When he considers that the public interest would
with the responsibility of such declassification. suffer by the disclosure

‐ The dissenting judgement was that the report was → Exception:

not protected by the OSA. There was no ‐ The court may require the head of the department
evidence that prior to it being produced before of the officer to certify in writing whether or not
the Cabinet, the report has been classified as such disclosure would be detrimental to the
official secret under OSA. The report was also public interest; and
not legally a Cabinet document as it existed
before the Cabinet meeting, independent of any ‐ If the head of the department certifies that such
Cabinet paper. There was no affidavit evidence disclosure would not be prejudicial to the public
to state that disclosure of the report would be interest, then the officer shall disclose the
detrimental to national security or public interest. communications.

→ MTUC v Menteri Tenaga, Air dan Komunikasi → Literal reading suggests that the decision to disclose
[2014] 2 CLJ 525 (FC) rests with the public officer based on whether there is
a prejudice to public interest by disclosure subject to
‐ Under Section 2 of the Act, “official secret” the overriding decision of the head of department.
means any document specified in the Schedule
and any information and material relating thereto. → Q: Are witness statements/police statements recorded
The documents specified in the Schedule include under Section 112 of CPC privileged?
Cabinet documents, record of decisions and ‐ If yes, then they cannot be disclosed to the
deliberations including those of Cabinet defence if it would be detrimental to public
committees. interest.
‐ On the facts of this case court agreed with the → Husdi v PP [1980] MLJ 80
majority view that the audit report was an official
‐ Court was of the opinion that the prosecution
secret document on the ground that it was tabled
should not supply copies of the police statement
before and deliberated by the Cabinet in its
direct to the defence without the intervention of
meeting on 11 October 2006. It was a Cabinet
the court.
document under the Schedule to the Act. Court
was unable to agree with the minority’s view that ‐ If the prosecution is eager to supply copies of
the audit report would not automatically become police statements to the defence without the
an official secret document the moment it was intervention of the court, the defence may be
tabled before the Cabinet. tempted to ask for, and the prosecution will be
obliged to supply copies of every statement in the
police investigation file, and Malaysians will be
Confidential Communications made to a Public Officer more reluctant to come forward with evidence to
→ Section 124 of EA: Official communications incriminate their fellows.

No public officer shall be compelled to disclose → Dato Sri Mohd Najib Hj Abdul Razak v PP [2019]
communications made to him in official confidence 5 CLJ 23 (COA)
when he considers that the public interest would suffer ‐ This was an application by the appellant for
by the disclosure: pre-trial production, by the respondents of
Provided that the court may require the head of the statements and documents given by potential
department of the officer to certify in writing whether witnesses to the officers of teh Malaysian
Anti-Corruption Commission (MACC) in the
 course of the investigation. The High Court → Dato Sri Mohd Najib Hj Abdul Razak v PP [2019]
dismissed the application. 1 LNS 434 (FC)
‐ COA held that it is trite that an accused person is ‐ Appeal to secure documents other than those
not entitled to copies of police statements provided under Section 51A of CPC seeking an
recorded from witnesses in the course of order for the pre-trial production by the
investigations. Firstly, such statement is a respondent as Public Prosecutor of certain
privileged document and secondly, as a matter of documents, information and reports, statement of
public policy, it is undesirable for the prosecution witnesses, books, accounts, computerised data,
to supply the defence with the police statements articles and list of witnesses, the respondent
as there is a danger of tampering with witnesses. intends to call during the case for the
prosecution.
‐ Further, it is not in the public interest if
statements taken from witnesses and documents ‐ The appellants application is premised on the
obtained during the course of police non-obstante clauses in Section 30(9) of MACC
investigations be furnished to the appellant. Act and Section 40 of AMLATFAPUA. The
Section 124 of the EA provides that a public argument taken before this court and the courts
officer cannot be compelled to disclose below us in summary is that the said
communications made to him in official non-obstante clause renders the statements and
confidence if he considers that public interest documents collected during the course of
would suffer by such disclosure. This will also investigation automatically admissible in
include communications made to MACC officers evidence and consequently must be supplied and
in their official confidence, under Section 6(2) of delivered to the appellant. Learned counsel for
MACC Act 2009. the appellant submitted that the non-obstante
clauses in both sections are unambiguous and
‐ Providing the appellant with the documents
excludes all rules of admission and rules of
sought for in the prayers which were made in
exclusion.
official confidence to the MACC would
prejudice further investigations relating to other ‐ Section 40 of AMLA states that the record of an
cases involving the appellant. examination under paragraph 32(2)(a), any
property, document or information produced
→ PP v Raymond Chia Kim Chwee & Anor [1985] 2
under paragraph 32(2)(b) or any statement under
CLJ 457
paragraph 32(2)(c) shall, notwithstanding any
‐ The entitlement of the accused under Section 51 written law or rule of law to the contrary, be
of CPC to any document or copies of document admissible as evidence in any proceedings in any
or other material in the possession of the court for, or in relation to, an offence or any
prosecution is entirely at the discretion of the other matter under this Act or any offence under
court having regard to the justice of the case. The any other written law, regardless whether such
discretion should not however be exercised so as proceedings are against the person who was
to enable the accused to gain access to materials examined, or who produced the property,
before the trial as in the case of pre-trial document or information, or who made the
discovery and inspection of documents in a civil written statement on oath or affirmation, or
proceeding. against any other person.
‐ The accused in a criminal trial should have ‐ The Federal Court held that it is important to
sufficient notice of what is alleged against him so emphasise that as a matter of law, the
as to enable him to prepare his defence. So long non-obstante clause statements or documents are
as the requirement is satisfied the law is satisfied. not automatically admissible. Court referred to
‐ If the discretion is to be exercised before the the case of Suruhanjaya Sekuriti v Datuk
commencement of trial the court cannot Ishak bin Ismail [2016] 3 CLJ 19 where it was
anticipate how the prosecution will proceed. In held that evidence is admissible and should be
other words, the court would not be justified to received by the court unless there is legal reason
direct the prosecution to deliver to the accused all for its exclusion. Evidence of relevant facts
documents taken from him for that will not be a become inadmissible when its reception offends
correct exercise of the discretion under Section against public policy or a particular rule of law,
51 of CPC. an example of which is evidence of matters
which are privileged against disclosure.
 ‐ The Federal Court concluded that HC and COA the contention of tampering was without merit as
did not err when they held that the appellant had the prosecution had closed its case and the
failed to establish his case for the delivery of witnesses of whom the statements were sought
information and documents applied for. were offered to the defence. Once witnesses were
Accordingly, FC dismissed the appeal. offered by the prosecution, they become defence
witnesses.
→ Siti Aisyah v PP [2019] 7 CLJ 27
‐ This court makes the distinction between pre trial
‐ The appellant applied under Section 51 of CPC
discovery and privilege of documents after end
for an order to direct the prosecution to provide
of prosecution case. So Husdi v PP still remains a
to the appellant copies of statements of seven
good law, but must note this subtle difference.
named witnesses recorded under Section 112 of
CPC. HC declined to make that order holding ‐ Where a claim of public interest immunity is
that the police statements were not subject to asserted, it is inevitable that the court will be
disclosure as they were absolutely privileged faced with competing public interest where
document. disclosure is concerned. On the one hand is the
public interest of preventing harm to the nation
‐ The COA held that under Section 112(3) of CPC,
and the public service by such disclosure of
the person giving police statement ‘shall be
documents. On the other hand is the public
legally bound to state the truth’. If the police
interest of promoting the fair and effective
statement is found to be false, its maker can be
administration of justice where harm would be
charged for giving false evidence under the Penal
caused if the withholding of material evidence
Code and its maker cannot claim that the
results in the court being unable to make a fair
communication between him and the police
determination of the dispute.
officer is privileged, and therefore not admissible
in evidence. Further, pursuant to the amendment ‐ There was a duty on the prosecution to disclose
to the law in relation to admissibility of police to the defence the police statements of the
statements, the court could intervene and order witnesses offered to the defence which were
production of Section 112 of CPC statements for necessary and desirable to their case. Although
the purposes of challenging and impeaching the there was no statutory obligation to do so, there
credit of witnesses, as provided in Section was indeed such a duty at common law. There
113(2). would certainly be a miscarriage of justice if the
police statements, from especially the deceased
‐ A police statement under Section 112 can also be
persons and others who could not be brought to
admitted in evidence in other situations as
court as witnesses, were not provided to the
provided in Section 113(3), (4) and (5). Since
defence.
statutory law allows such police statements to be
admitted in evidence in certain circumstances, it ‐ The court should not disturb any decision made
seems that such police statements were never in the exercise of the judge’s discretion. However,
intended to be privileged documents. With the that discretion was exercised on a
addition of Section 51A to CPC, the prosecution misapprehension of the law which would result
has a duty to deliver certain documents to the in a miscarriage of justice. Appellate interference
accused prior to the commencement of the trial. was therefore warranted to prevent a miscarriage
of justice and to ensure a fair trial.
‐ Police statements are not to be considered as
privileged pursuant to Section 32 of EA. The
court here disagreed with the proposition as
Legal Professional Privilege
advanced in Husdi v PP that police statements
are absolutely privileged. However, Husdi v PP → An advocate and solicitor can be called as a witness.
may have been correct in the eventual outcome → Lawyers are both competent and compellable as a
on the basis that, as a matter of public policy, it witness under Section 118. However, there may be
was undesirable for the prosecution to supply the limitations to the evidence which may be given by
defence with police statements as there is a real advocate because the professional communications
danger of tampering with the witnesses. may be privileged.
‐ The issue of tampering could only arise if such → Section 126 of EA: Professional communications
statements were provided prior to the
commencement of the trial. In the instant case, (1) No advocate shall at any time be permitted, unless
with his client’s express consent, to disclose any
 communication made to him in the course and for the ‐ Any advise given by him to his client
purpose of his employment as such advocate by or on
→ Exceptions:
behalf of his client, or to state the contents or
condition of any document with which he has become ‐ Express consent from client
acquainted in the course and for the purpose of his ‐ Communication in furtherance of an illegal
professional employment, or to disclose any advice purpose
given by him to his client in the course and for the
purpose of such employment: ‐ Facts observed shows any crime/fraud has been
committed since his employment
Provided that nothing in this section shall protect from
disclosure— → Privilege is there to protect the interest interest of
client, to promote full and frank disclosure and
(a) any such communication made in furtherance of because of public policy.
any illegal purpose;
→ PP v Dato Seri Anwar Ibrahim (No 3) [1999] 2
(b) any fact observed by any advocate in the course of MLJ 1
his employment as such showing that any crime or
fraud has been committed since the commencement of ‐ The rule is for the benefit of the client and not
his employment. the advocate. It is also for public policy in the
interest of justice, to encourage full and frank
(2) It is immaterial whether the attention of the confidential communication between client and
advocate was or was not directed to the fact by or on advocate without fear of subsequent disclosure is
behalf of his client. essential for providing professional legal
→ Section 127: Section 126 to apply to interpreters, etc. assistance.

Section 126 shall apply to interpreters and the clerks → Note: At times, the application of the rule may
or servants of advocates. exclude the truth and result in injustice but the
benefits of the rule far outweigh the rare instances of
→ Section 128: Privilege not waived by volunteering
injustice.
evidence
→ PP v Haji Kassim [1971] 2 MLJ 115
If any party to a suit gives evidence therein at his own
instance or otherwise, he shall not be deemed to have ‐ Not all confidential professional communications
consented thereby to such disclosure as is mentioned are privileged. This provision only applies to
in section 126; and if any party to a suit or proceeding advocates, and not to clergymen or doctors.
calls any such advocate as a witness, he shall be → Dato Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ
deemed to have consented to the disclosure, only if he 445
questions the advocate on matters which but for such
question he would not be at liberty to disclose. ‐ Privilege only applies when the advocate is
professionally employed by the client. It covers
→ Section 129: Confidential communications with legal all communications between client and advocate,
advisers and only express consent from client in writing
No one shall be compelled to disclose to the court any will waive the privilege.
confidential communication which has taken place → Dato Anthony See Teow Guan v See Teow Chuan
between him and his legal professional adviser unless [2009] 3 CLJ 405
he offers himself as a witness, in which case he may
be compelled to disclose any such communications as ‐ A “loss of confidentiality” will not result in the
may appear to the court necessary to be known in loss of this privilege.
order to explain any evidence which he has given, but ‐ Common law maxim “once privileged, always
no others. privileged”. The exception under Section 126 of
→ General rule under Section 126: No advocate at any the Act has nothing to do with loss of
time will be allowed to disclose confidentiality elsewhere but with whether the
privilege holder (the client) is prepared to waive
‐ Any communication made to him in the course or and not the confidentiality.
for the purpose of his employment
‐ It cannot be waived impliedly. Section 126 of the
‐ To disclose the contents of documents, which he Act permits only one exception when the
has become acquainted with in the course of his privilege no longer applies, which is upon the
employment express consent of the client given and directed
 to the advocate who is called to court to disclose ∙ The client questions the advocate on matters
the professional communication made to him by which but for such question he would not be
his client or the advice given by the advocate. at liberty to disclose.
→ Berjaya Land Bhd v Wong Chee Hie & Ors [2012] ‐ In the Magistrates’ court, the plaintiff did not call
4 CLJ 356 the first defendant as a witness. Thus, even the
first condition precedent was not satisfied and
‐ The defendants had subpoenaed the plaintiff’s
although the first defendant was cross-examined,
solicitor to testify at the trial on the contents of
it was not within the ambit of the second limb of
an email. Plaintiff objected to this and claimed
Section 128 of the Act.
the witness, being an advocate and solicitor was
neither compellable, nor a competent witness by
reason of the prohibition and privilege afforded
Part 2: Corroboration
to solicitor-client communication under Section
126 of EA. → Corroboration simply means independent supporting
evidence. It deals with weight, cogency of evidence
‐ Defendants contended that the privilege will not
and creditworthiness of the witness, not with
apply as the communication was made in
admissibility and relevancy.
furtherance of an illegal purpose.
→ It can be direct or circumstantial independent
‐ Court held that the most appropriate course to
evidence, which includes:
adopt would be for the solicitor to attend as a
witness pursuant to the subpoena and to invoke ‐ Other witnesses
the privilege under Section 126 of EA at that ‐ Real evidence
stage. It would then be open for the parties to
take up the arguments set out and for the court to ‐ Documentary evidence
make a determination then. The court might → Section 134 of EA: Number of witnesses
allow or disallow certain questions in order that it
No particular number of witnesses shall in any case be
may determine the legality or otherwise of the
required for the proof of any fact.
email. The court would then be in a position to
make a ruling on the matter more fully. Section ‐ The general rule is that there is no need for
126 envisages the taking up of the issue of legal corroboration.
privilege at or during trial.
‐ A fact can be established by a single witness.
→ Chua Su Yin v Ng Sung Yee [1991] 2 MLJ 348
→ “Evidence has to be weighed and not counted”. This
‐ Preliminary consult can be covered by privilege. was stated in Indian case of Vadivelu Thevar v State
of Madras AIR 1957 SC 614. This was assimilated in
→ Wheeler v Le Marchant [1881] 17 ChD 675
the Malaysian jurisprudence in the case of Aziz bin
‐ Communications made by 3rd parties to advocate Muhamad Din v PP [1996] 5 MLJ 473.
for litigation purpose is privileged.
→ The exception to the general rule is that certain
→ Tan Chong Kean v Yeoh Tai Chuan [2018] 3 CLJ categories of witnessought to be treated with caution,
294 namely:
‐ This was a dispute between a solicitor and client. ‐ Children
The plaintiff (client) did not call his defendant
‐ Accomplice
(solicitor) as his witness during trial. The
defendant however gave evidence on his own ‐ Sexual offences complainants
behalf and was subject to cross examination by
→ There are two main rules in corroboration:
Plaintiff’s counsel. The question was is there an
implied waiver to privilege under Section 128. ‐ Corroboration required by law

‐ Court held that there are 2 condition precedents, ‐ Corroboration required by practice and prudence
namely: → Corroboration required by law means that there must
∙ The client must be the party calling the be corroborating evidence before there can be
advocate as a witness in a suit or proceeding conviction. The court will not be able to convict the
accused without the corroborating evidence.
 ‐ Even if convicted without corroborating evidence, ∙ Medical evidence
the conviction will be quashed. It can be a
∙ DNA
ground of appeal.
∙ Condition of the accused
‐ Eg: Corroborating evidence is mandatory when
the evidence is an unsworn evidence of a child. ∙ Conduct of the accused

→ Corroboration required by practice is the requirement → The fact that the victim showed distress after the act
for the court to be on guard against the risks involved can be a corroboration. But must be treated with
in convicting without corroborating evidence. caution because some people can easily fake and
simulate distress.
‐ The court must warn itself of the risks involved
and the need for caution which is mandatory. → R v Redpath [1962] 46 Cr App R 266

‐ The warning must be found in the grounds of ‐ Distress can amount to corroboration under
judgment. certain circumstances.

‐ Provided that the warning has been given the → Examples:

judge can go on to convict on uncorroborated ‐ Witness observed accused approaching a child
evidence on condition that he is satisfied that the who becomes very distressed. The child was not
case has been proven beyond reasonable doubt. aware that he / she was observed by the witness.
‐ Eg: Sexual offences complainants, Accomplice. ∙ This is independent corroborating evidence.
→ Note that the requirement for corroboration or the ‐ Mother of the victim observes that the victim is
corroboration warning will only apply for witnesses crying alone in the room. When questioned, she
for the Prosecution. refuses to say anything.
→ The definition and requirement of corroboration is ∙ There is a subtle difference between 1st and
provided in R v Baskerville [1916] 2 KB 658. This 2nd example. Second is less independent.
was assimilated into the Malaysian jurisprudence in But she might not say anything maybe
the case of Dowse v AG [1961] MLJ 249: because she’s ashamed.
‐ Must be independent ∙ The court will probably accept this, but the
‐ Must implicate the accused weight and cogency of second example is
relatively lesser than the 1st.
‐ Must show that the crime was committed
‐ Girl returns home late and is questioned by her
‐ Must show that the crime was committed by the
father, she becomes very distressed.
accused
∙ It can be inferred that she was distressed
→ Thavanathan Balasubramaniam v PP [1997] 3 CLJ
because of the father.
150
→ R v Wilson [1973] 58 Cr App R 307
‐ Corroborating evidence must confirm the
evidence requiring corroboration. ‐ Caution must be exercised as distress may spring
from a number of causes. Where it is part of a
‐ Can be direct or circumstantial evidence
complaint there is a risk that it is simulated.
‐ Corroborating evidence must:
→ R v Chauhan [1981] 73 Cr App R 232
∙ Itself be admissible
‐ Accused and victim were in the office alone.
∙ Come from independent source Victim was seen by another colleague running
out crying and upset. Victim then made an
∙ Must show that crime was committed by the
immediate complaint that accused had molested
accused
her. This can amount to corroboration.
*P.S. For the definition and requirements, must refer the
→ Liew Kim Yong v PP [1989] 3 MLJ 323
Baskerville case and Thavanathan case in exam.
‐ Victim's mother had found her in a distressed
→ R v Baskerville [1916] 2 KB 658
state barely a few hours after the rape. The
‐ Examples that could amount to corroborative circumstances under which the mother found her
evidence (not exhaustive): did not suggest that victim was putting on an act
∙ Crying / Distress / Complaint and was simulating distress. Her mother had
 found her crying in the bedroom and, when → Aziz bin Muhamad Din v PP [1996] 5 MLJ 473
questioned, had refused to tell the mother what
‐ Although the medical evidence was relevant to
had happened because she was too ashamed to do
establish penetration, such evidence given by two
so. Victim's distressed condition lent support to
medical officers called as witnesses for the
her story of being raped.
prosecution, was at variance with each other.
‐ Court held that it is well established that there
‐ The incident happened on 31/03. SP5 examined
must be a guarded approach to ex post facto
the victim on 03/04 and said that the tear was one
crying or distress as evidence of corroboration
week old. SP9 examined the victim on 04/04 and
because distress might result from other causes
said that the tear happened between 48 hours to 3
dissociated from the alleged offence; or the
months.
complainant " might be putting on an act or
simulating distress. That the learned trial Judge ‐ If the evidence of SP5 is to be accepted then it
warned himself of the danger is manifest. would not be corroboration of the factum of rape,
as it would have happened at a point of time prior
‐ The trial Judge seems to have concluded, by the
to the date of the incident.
use of the words "... lent support to the story "
that the evidence of distress fell somewhat short ‐ SP9’s conclusion would not rule out the
of corroboration, in the accepted sense of possibility that the tear to victim’s hymen was
confirmation, and amounted to little more than caused after the alleged incident.
evidence of consistency. ‐ Therefore, the court’s view was that it is unsafe
→ Tang Kin Seng v PP [1997] 1 SLR 46 to rely on the evidence of both SP5 and SP9 to
corroborate the evidence of victim on the factum
‐ it is dangerous to convict on the words of the
of rape.
complainant alone unless her evidence is
unusually compelling or convincing. → Condition of the accused can also serve as a
corroboration. For example, any injury suffered by the
→ Medical evidence is prima facie independent
accused.
corroborating evidence. Injuries suffered by the victim
and other physical evidence such as DNA evidence → Conduct of the accused serves as a corroboration.
can amount to corroboration in rape cases or assault However, this is a question of fact. It can be a
cases. subsequent or a previous conduct under Section 8 of
EA. It also can be a conduct of guilt or a conduct of
‐ However, medical evidence is not necessarily
innocence.
conclusive as it is a question of fact. Medical
evidence can be faked or can be disputed (Bunya → Dowse v AG [1961] MLJ 249
Jalong v PP - discussed under cross ‐ Victim deposed that sexual intercourse had taken
examination) place between them on the occasions charged, he
→ James v R [1970] 55 Cr App R 299 deposed that it had not. The trial Judge accepted
her evidence on this point and rejected the
‐ Medical evidence (DNA) which establishes that
appellant's denial. He directed himself however
the victim had intercourse at about the time of
that, considering the nature of the issue, he ought
the alleged offence by itself will not be sufficient
not to act on Miss. Tan's evidence unless he
as corroboration because it does not establish the
found independent corroboration in some
absence of consent.
material particular. This corroboration he found
→ Syed Abu Tahir v PP [1988] 3 MLJ 485 in the appellant's conduct at and after an incident
which took place on 12 August 1958 and which
‐ Issue of consent is irrelevant if it is an offence of
will be referred to later.
statutory rape. Medical evidence can serve as
corroboration under this circumstance. ‐ Having dealt with the facts and the credibility of
the respective witnesses in this way, the Judge
→ Example: It is a sexual assault case. The incident
held that the appellant's conduct on this occasion
happened on 06/01/2017 and the doctor examined the
provided the necessary corroboration of victim's
victim on 07/01/2017. The conclusion by the doctor
story.
was that the tear in the hymen is at least 1 week old.
→ Chan Kwok Keung v The Queen [1990] 1 CLJ 411
‐ Here, it is not corroboration because it is
inconsistent with the charge. ‐ The accused ran away after the incident. This is a
conduct of guilt and can serve as a corroboration.
→ Choo Chang Teik v PP [1991] 3 CLJ 2387 ∙ Self corroboration is not independent. There
is no such thing as a self corroboration.
‐ Both of the accused ran towards the balcony and
the 2nd appellant managed to jump out of the ‐ R v Virgo [1978] CRIM L.R 557
window. He was finally arrested also some
∙ Accomplice cannot be corroborated by his
distance away from the house.
own diary
‐ This shows to the guilt of the accused and can
‐ R v Whitehead [1929] 1 KB 99
serve as a corroboration.
∙ “For an evidence to amount to corroboration,
→ A deliberate lie by the accused can also serve as a
it must be extraneous to the witness who is
corroboration.
to be corroborated. A girl cannot
→ R v Lucas [1981] 3 WLR 120 corroborate herself, otherwise it is only
necessary for her to repeat her story 25
‐ This deliberate lie must relate to the material
times to get 25 corroborations of it.”
issue. The motive for the lie must be realisation
of guilt of fear of truth. The statement of the → Section 157 seems to suggest that a witness can be
accused must also clearly be shown a lie by corroborated by his former statement as a form of self
independent evidence. corroboration. Where the elements of Section 157 is
satisfied, the former statement may be used to
→ Syed Ali bin Syed Abdul Hamid v PP [1982] 1 MLJ
corroborate the witness’s testimony. Elements of the
132
provision include:
‐ It must be proven beyond reasonable doubt that
‐ Witness has given evidence in court
the statement of the accused is a lie. If can show
this, then the statement can serve as a ‐ Witness has made a previous statement with
corroboration towards the victim. regard to the same fact.
→ Scenario: X is charged with a robbery. Y is his ‐ The former statement can be written or verbal
accomplice who is now a witness for the prosecution.
‐ Former statement was made at or about the same
Y testifies how X is the mastermind who planned and
time when the fact took place or was made
committed the robbery. The question is whether Y is a
before any legal authority.
credible witness.
→ The term “statement” does not necessarily mean it
‐ Y is an accomplice, it can be presumed there is
must be communicated. It must be made at or about
no corroboration because could be currying
the time of event. Proximity is essential and it should
favour from Prosecution. Not a credible witness.
be as early as reasonably expected before opportunity
Refer Section 114(b).
for concoction.
‐ If the prosecution tenders Y’s diary to
‐ Or it may be made to a person in authority. In
corroborate his testimony, it is called
this case, the proximity element does not apply.
self-corroboration.
→ PP v Dato Seri Anwar Ibrahim (No 3) [1999] 2
→ A witness who require corroboration can self
MLJ 1
corroborate through his own former consistent
statements made out of court before trial. ‐ Statements made under Section 112 made to a
police officer can be admitted under Section 157.
→ Section 157 of EA: Former statements of witness may
Privilege can be waived by the prosecution.
be proved to corroborate later testimony as to same
fact → PP v Paneerselvan [1991] 1 MLJ 106

In order to corroborate the testimony of a witness, any ‐ The prosecution is seeking to have admitted, as
former statement made by him whether written or corroboration under Section 157 of Evidence Act
verbal, on oath, or in ordinary conversation, relating 1950, certain statements which took the form of
to the same fact at or about the time when the fact entries in 14 pages torn from an exercise book
took place, or before any authority legally competent and corresponding entries in summary form, in a
to investigate the fact, may be proved. pocket notebook.

→ However, under common law self corroboration is not ‐ The word 'statement' in Section 157 means
allowed. 'something that is stated' and the element of
communication to another person is not included
‐ R v Baskerville [1916] 2 KB 658
in it. Accordingly, it was held by the Supreme
 Court in India in BC Pandya v. State of → There are 2 differing school of thoughts on statements
Bombay AIR 1959 SC 356 (foll) notes of under Section 157, namely that it amounts to
attendance prepared by a prosecution witness corroboration and that it not amounts to corroboration
recording conversations that took place between but only for consistency.
him and other prosecution witnesses in
→ The below cases illustrate that statements under
connection with the defalcation made by the
Section 157 is not for corroboration but is only
accused would be statements within the meaning
admissible to show consistency.
of Section 157 and would be admissible to
corroborate his evidence. → Ah Mee v PP [1967] 1 MLJ 220

→ Kanapathy v PP [1960] MLJ 26 ‐ Corroboration in the legal sense connotes some

independent evidence of some material fact
‐ It was argued that hearsay evidence was wrongly
which implicates the accused person and tends to
admitted of statements which the complainant
confirm that he is guilty of the offence.
made to other witnesses in the absence of the
Consistency is not such corroboration and
appellant. This evidence to be admissible must
Section 157 of the Evidence Ordinance should be
come within Section 158 of the Evidence
read in this light.
Ordinance and such statements must be made
either at or about the time when the fact to which → Aziz bin Mohamed Din v PP [1997] 1 CLJ Supp
they relate took place or before any authority 523
legally competent to investigate. ‐ Augustine Paul concluded that statement under
‐ In the court’s view, the complainant's statement Section 157 is not corroboration based on
admissible. The learned District Judge having Section 73A(7).
heard the evidence found that the statement was ‐ Section 157 must be read subject to Section
made immediately after the complainant was 73A(7).
released on bail. The only reasonable inference to
be drawn from the evidence is that it was made at → Lim Guan Eng v PP [1998] 3 MLJ 14
or about the time when the events took place. ‐ Gopal Sri Ram: that which is tainted cannot
‐ The statements made to Ramoo and remove its taint by repetition.
Ramakrishnan by the complainant were not made → The below cases illustrate that statements made under
at or about the time when the events took place. Section 157 is not corroboration but is only admissible
They must therefore to be admissible be made to show consistency.
before an authority legally competent to
→ R v Koh Soon Poh [1935] MLJ 120
investigate which, of course, Ramoo clearly was
not. In other words they must be made in the ‐ Although Counsel on the appeal tried to dispute
course of an investigation. They were not the genuineness of this book of transaction
admissible under section 114 of the Criminal records (Exhibit G), it was accepted as genuine
Procedure Code and they therefore fall within the by Counsel for the defence in the Court below
prohibition of section 121 of the Criminal and this Court sees no reason to doubt that it is
Procedure Code. The evidence of the statements genuine. It is argued however that in any event
made to Ramoo and Ramakrishnan were this book could not be accepted as corroboration
therefore inadmissible. of Lim Thai Hock's evidence in view of the rule
laid down in England that a witness cannot
→ PP v Mohammad Terang bin Amit [1999] 1 MLJ
corroborate himself.
154
→ Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119
‐ The expression ‘at or about the time the fact took
place’ is not to be limited in terms of hours or ‐ Statement under Section 157 is corroboration but
days. It is limited by the terms ‘first reasonable the value that should be attached to it is a
opportunity’ or ‘as speedily as could reasonably question of fact.
be expected’.
→ Lim Guan Eng v PP [1998] 3 MLJ 14
‐ In this case, it was not made as reasonably as
‐ Under Section 157, a former statement made by a
expected, and so the statement was precluded as
witness is admissible in order to corroborate in
capable of corroborating the evidence of the
testimony. The weight of such a statement for the
victims.
purpose of corroboration depends on the facts of
a particular case.
 ‐ Therefore, it is settled that former statements of ‐ If not then the witness is rejected due to
witness may amount to corroborative evidence of non-competence. If yes, then the second issue to
such witness. be determined is whether the witness is giving
sworn or unsworn evidence. Whether the witness
→ Mohamed Ali v PP [1962] MLJ 230
can take oath/affirmation (sworn) or just wants to
‐ Admissibility must not be confused with weight. speak the truth (unsworn).
The corroboration must be distinguished from
‐ If unsworn, then there must be given a warning
“corroboration” under Section 157. The value of
to the witness to tell only the truth.
such a statement may be infinitesimal.
→ Muhammad Zakwan Zainuddin v PP [2019] 1 LNS
1908
Categories of Witness to be treated with Caution: Child
‐ This criminal appeal pertains a rape case where
Witnesses
the victim who was 15 years 10 months old at the
→ Evidence of a child witness must be treated with time of incident was raped by 6 individuals.
caution because a child might find it difficult to
‐ The testimony by the victim was clear, lucid and
distinguish between fantasy and reality. They find it
detailed, thus her account is credible. She did not
difficult after a lapse of time to distinguish between
waiver or change her story although she was
the results of observation and results of imagination.
questioned and challenged by the defence on her
They may misinterpret what they saw.
evidence. Her long and vivid description of the
→ Chao Chong v PP [1960] MLJ 238 events on that day were consistent and elaborate.
‐ One reason why children's evidence is regarded The victim was able to provide description of the
with suspicion is that there is always the danger four men who had raped her and elaborated on
that a child may not fully understand the effect of the sexual acts which included the moments
taking an oath. In this country where evidence is before and after penetration took place. More
taken on affirmation that consideration loses importantly, she was able to remember the
much of its force. sequence of the men who had raped her. It can be
concluded that the victim's evidence is reliable
‐ Another reason, however, which in this country and she has emerged as a credible witness.
possesses undiminished force is that it is a matter
of common knowledge that children at times find ‐ It is trite as how to deal with a child witness and
it difficult to distinguish between reality and the rules of evidence applicable are explicit. The
fantasy. They find it difficult after a lapse of time law is found in section 118 Evidence Act
to distinguish between the results of observation 1950 (Act 56) which prescribes all persons,
and the results of imagination. In our view including a child, are competent to testify, unless
something of the sort should have been put to the the court considers that they are prevented from
jury. At the very lowest they should have been understanding the questions put to them or from
invited to consider their own experience in giving rational answers to those questions. Thus,
connection with stories told by children. It was the trial judge has to determine a child's
not sufficient merely to observe that there is a competency to testify by ensuring that she
risk in acting on the uncorroborated evidence of a understands the oath she takes. If she is able to
child. understand, then the child may pursue with her
testimony. If she is unable, then the trial will
→ Procedure on how a child witness may testify in court proceed with her unsworn testimony.
is provided under Section 118 of EA.
‐ The child must be able to differentiate between
→ Sidek bin Ludan v PP [1995] 3 MLJ 178 telling the truth and untruth in court and if she is
‐ The focus is not on the age, but on the untruthful, what could be the consequence. In
intellectual capacity to understand questions and that regard, a sieve through the questions posed
give rationale answers. to SP1, in this case by the DPP during
examination in chief demonstrates that she is
→ Kee Lik Tian v PP [1984] 1 MLJ 306
fully aware that she is testifying in court and
‐ The child witness was 12 years old with low IQ. know that she has to speak the truth. In
cross-examination, she has testified that she
‐ The first matter that has to be determined is
knows of the effect of not telling the truth. It is
whether the witness is competent to testify, under
apparent from the record, that SP1 understands
Section 118.
 the sanctity and effect of the oath taken. She too ‐ The Accused was charged for an offence
knows of the effect of not telling the truth in the under section 376(1) of the Penal Code. The
witness box. The effect of the oath taken by SP1 victim was a minor, aged 15.
is strengthened by her steady and vivid testimony.
‐ The Accused raised the issue on failure to
The trial judge was convinced of SP1's
comply with section 133A of EA. The Accused
competency, thus she was allowed to testify.
submitted that the learned trial judge had erred in
Premised on those factors, SP1 is both a
law by failing to make an inquiry and/or to
competent and credible witness. The answers
satisfy herself that the child witnesses PW2 and
rendered by her is commendable as she could
PW3 possess sufficient intelligence to understand
very well recollect what has happened to her with
the duty of speaking the truth.
no uncertainty. This coupled with her
consistency in testimony which only leads to the ‐ In rebuttal the Prosecution submitted that based
conclusion that her evidence is rightly accepted on the case of Steven Pangiraja & Ors v PP
and admitted by the trial judge. [2014] 4 CLJ 418, PW2 (victim) and her cousin,
PW3 could not be considered as children of
→ Yusaini Mat Adam v PP [1999] 3 MLJ 582
tender years therefore Section 133A does not
‐ It was held that a total failure to follow these apply to both witnesses. It was explained in
procedures may be fatal. paragraph [13] of this case that an evidence given
by a child aged 15 years old who is attending a
→ Section 19 of SOSMA: Conviction based on
school will not be treated as an evidence given
testimony of a child of tender years
by a child of tender years as long the judge in the
A conviction obtained based on the uncorroborated first instance court has been extra cautious and
testimony of a child of tender years is not illegal, fully aware of the competency issues relating to
though not given under oath, if the court is of the sufficient intelligence.
opinion that the child is possessed of sufficient
‐ In this instant case, PW2 was 16 years old when
intelligence and understands the duty of speaking the
she gave evidence and PW3 was 15 years old
truth.
when giving her evidence. PW2 was then a Form
→ Steven Pangiraja v PP [2014] 4 CLJ 418 3 student when she stopped schooling and PW3
‐ The child witness was 13 at the time of the was still attending school
offence and 15 at the time of trial. The issue on ‐ The court went through the notes of proceedings,
appeal was due to the learned trial judge not and it was shown that PW2 and PW3 have the
conducting a preliminary enquiry to test the sufficient intelligence in giving evidence for this
competency of witness as required under case. PW2 was able to explain the rape incident
Sections 118 and 113A. in details. I also found that PW2 and PW3 had
‐ Court held that there is no merit in this issue. given consistent answers to the questions asked
There is no requirement under EA to conduct a and the witness statements did not contradict
preliminary inquiry though case laws requires the each other.
competency to be tested for child under tender → PP v Chan Wai Heng [2008] 5 CLJ 805
years and not child per se.
‐ Child witness was 7 at the time of incident and 9
‐ Section 118 of EA only comes into issue if the at the time of trial. Witness was held to be a child
court considers that a child of ‘tender years’ of tender years and gave unsworn evidence under
gives evidence. It is difficult to fathom how SP3 Section 133A after preliminary enquiry.
and SP10 who were school going aged 15 at the
→ Tajudin Salleh v PP [2008] 2 CLJ 745
time of giving evidence will fall within the
definition of ‘tender years’ stated in Section 118. ‐ The accused was charged for outraging modesty
of a 10 year old girl. The victim was 12 at the
‐ Section 133A also relates to ‘child of tender
time of trial.
years’. Though there are sufficient material in the
judgment to satisfy that the court has taken ‐ On appeal the High Court held that it is for the
cognisance of Section 133A, but again the prosecution to establish that the witness is
evidence of SP3 and SP5 will not fall within the competent and in the case of a child witness, the
definition of ‘child of tender years’ on the factual provisions of Section 133A must ordinarily be
matrix of the instant case. satisfied as to competency as well as to
corroboration.
→ Sahrul Tola v PP [2018] 1 LNS 731
 ‐ This Section must be read together with Section ‐ By virtue of the appropriate questions asked and
118 which sets out the principle rule regarding the correct answers given by the victim, the
the competency of witnesses. Under Section 118, competency of victim is not in doubt for the
when a child of tender years is called to give court to opine otherwise, thus the court is
evidence, there is a duty upon the court to ensure justified when it ruled that she is a competent
that the child understands the nature of an oath. witness to the proceeding involving her modesty.
‐ The evidence cannot be received without an → If the child of tender age does not understand the
oath if the court is of the opinion that the child nature of the oath and the higher duty to tell the truth
possesses sufficient intelligence to justify the when under oath he may be allowed to give unsworn
reception of the evidence and understands the evidence under Section 133A provided that:
duty of speaking the truth.
‐ He has sufficient intelligence to justify its
‐ In this case, there was a total failure on the part reception (intellectual capacity test); and
of the learned magistrate to comply with the
‐ He understands the duty to tell the truth
provisions of Section 118 and Section 133A,
thereby making the conviction in law unsafe. → Proviso to Section 133A:
Such a failure could not be cured by Section 422 ‐ Unsworn evidence of a child if given on behalf
of CPC. There was a substantial miscarriage of of the prosecution, the accused not liable to be
justice as the child witness’ competency was not convicted unless corroborated.
established in this case.
∙ Corroborating evidence is mandatory
→ Ahamit Umping v PP [2018] 1 LNS 518
→ Sidek bin Ludan v PP [1995] 3 MLJ 178
‐ Nowhere in the notes of proceedings was it
recorded that such preliminary examinations ‐ If the child gives sworn evidence, corroboration
before or even after PW5 took the oath, were is required by practice and prudence. A warning
carried out contrary to what was stated in the is mandatory.
Grounds of Judgment. ‐ If the child gives an unsworn evidence,
→ Ahmad Hafizal Darusalam v PP [2019] 1 LNS 1172 corroboration is required by law. The
corroborating evidence itself is mandatory.
‐ The accused was charged under Section 14(a) of
SOACA 2017. The victim was 9 at the time of → Section 18 of SOACA 2017: Evidence of child
the offence and 10 at the time of the trial. witness

‐ The court referred to Section 17 of SOACA and Notwithstanding anything contrary in any other
held that once the intellectual capacity test was written law, in any proceedings against any person
carried out by the judge on the victim, it was relating to any offence under this Act, or any offence
found that the victim understood the meaning of specified in the Schedule where the victim is a child,
the oath and understood that she had to speak the court may convict such person of such offence on
only the truth. Hence, the judge allowed the the basis of the uncorroborated evidence of a child,
victim to give sworn evidence. given upon oath or otherwise.

‐ Here, although the victim was presumed to be → Where section 18 applies, Section 133A of EA does
competent, the judge still carried out the not apply.
competency test. Meaning, it is mandatory. ‐ Section 133A is still good law, but it applies to
→ Razali Silah v PP [2019] 1 LNS 1508 all offences other that SOACA or SOSMA or any
other acts than specifically excludes.
‐ The accused was charged under Section 14(a) of
SOACA. The victim was 13 at the time of → Court may convict on uncorroborated evidence of a
offence and during trial, she gave sworn child witness given upon oath or otherwise
evidence. ‐ This suggests that court has a discretion to decide
‐ The High Court held that Section 17 which whether to convict on an uncorroborated
operates independently of Section 118 of EA evidence or insist there must be corroboration.
renders that victim is presumed to be competent ‐ The question that arises is even though clear
to give evidence unless the court thinks corroboration has been abolished by SOACA,
otherwise. does the rule for corroboration as a matter of
practice and prudence apply?
→ Ahmad Hafizal Darusalam v PP [2019] 1 LNS 1172 → Loo Chuan Huat v PP [1971] 2 MLJ 167
‐ Court held that although Section 18 of SOACA ‐ Formal warning of risk of acting on
allows for a child witness’s testimony without uncorroborated evidence is required, but the
corroboration, it is a sound law that the testimony court can convict on uncorroborated evidence if
must be corroborated. The court in this case was it is convinced beyond reasonable doubt.
of the view that finding of the trial court that
→ Tham Kai Yau v PP [1977] 1 MLJ 174
testimony given by the victim is enough without
corroboration because the trial judge has ‐ Federal court held that there is no need for
cautioned himself before accepting the formal warning if not of tender years, if the judge
testimony. has taken a prudent approach. Court can convict
on uncorroborated evidence.
→ Razali Silah v PP [2019] 1 LNS 1508
→ PP v Gurdial Singh [2003] 1 CLJ 37
‐ Court held that with the coming into force of the
Section 18 of SOACA, under which the accused ‐ If it is a sworn evidence of a child witness, there
was charged, corroboration of the child witness’s is no need for a formal warning. However, it is
evidence is not necessary. The court may convict critically essential for the judge to be cautious.
an accused of an offence under SOACA on the
basis of uncorroborated evidence of a child,
given upon oath or otherwise. Categories of Witness to be treated with Caution:
Complainants of Sexual Offences
‐ The child witness was cross-examined on this
matter even though corroboration was not → This is a rule of corroboration required by practice
required. and prudence.

→ Section 19 of Security Offences (Special Measures) ‐ Mandatory: only the corroboration warning
Act 2012: Conviction based on testimony of a child of ‐ Can be convicted on uncorroborated evidence if
tender years court is satisfied beyond reasonable doubt.
A conviction obtained based on the uncorroborated Corroboration is desirable because of the nature
testimony of a child of tender years is not illegal, of the offence.
though not given under oath, if the court is of the ‐ These rules will apply to all victims of sexual
opinion that the child is possessed of sufficient offences regardless of gender.
intelligence and understands the duty of speaking the
→ Din v PP [1964] MLJ 300
truth.
‐ The desirability of corroboration of evidence of
→ DPP v Hester [1973] AC 296
the prosecution in a rape case springs not from
‐ One unsworn child cannot corroborate another the nature of the witness but from the nature of
unsworn child. the offence.
→ PP v Mohd Terang Amit [1999] 1 MLJ 154 ‐ It is both practice and prudence that demands that
‐ The expression ‘at or about the time the fact took a rape victim’s evidence be corroborated.
place’ is not to be limited in terms of hours or → There is a need for caution, but essentially it is a
days. It is limited by the terms ‘first reasonable question of facts.
opportunity’ or ‘as speedily as could reasonably
→ Aziz bin Muhamad Din v PP [1996] 5 MLJ 473
be expected’.
‐ Generally in Malaysia there is no specific rule of
‐ In this case, it was not made as reasonably as
law that requires the evidence of a witness to be
expected, and so the statement was precluded as
corroborated except in the case of the evidence of
capable of corroborating the evidence of the
a child of tender years under Section 133A.
victims.
However, in certain types of cases there is a rule
→ When it comes to a sworn evidence of a child witness, of practice ehich requires evidence to be
corroboration is required by practice and prudence. corroborated.
‐ Only the corroboration warning is mandatory. ‐ This includes the evidence of a complainant in a
‐ The accused can be convicted on this case involving a sexual offence. Even in such
uncorroborated evidence if court is satisfied cases a conviction based on uncorroborated
beyond reasonable doubt. evidence is not illegal. But the rule of practice
 regulates the manner in which uncorroborated only insertion of his fingers which were smeared
evidence is to be treated, that is to say, the judge with his semen into her vagina (factum of rape
must warn himself of the dangers of convicting and corroboration).
on such evidence.
‐ The second issue: that there was failure to
→ Dato Seri Anwar Ibrahim v PP [2004] 3 MLJ 405 appreciate the evidence of a specialist
obstetrician and gynecologist (PW8) who said it
‐ The appellant was convicted of an offence under
was possible conception in the instant case could
Section 377A of PC. One of the issues for
have occured without sexual intercourse if
consideration was whether the complainant,
fingers containing freshly ejaculated spermatozoa
whose evidence the prosecution relied upon, was
had been introduced into the vagina (opinion
a credible witness, hence dispensing with the
evidence + corroboration).
requirement of corroboration.
‐ The third issue: that victim was not a credible
‐ It was held that although a conviction founded on
witness and her evidence was not adequately
the uncorroborated evidence of the complainant
corroborated (corroboration).
is not illegal, it would be unsafe to convict on an
uncorroborated testimony of a sexual ‐ COA held that there was confirmation by the
complainant unless for any special reason that prosecution’s own expert witness, PW8, that if
testimony is of special weight freshly ejaculated semen laden with spermatozoa
was introduced into the vagina by the fingers,
‐ In this case, it was, in fact, unsafe to convict the
conception could occur. Thereafter, no further
appellant on complainant’s uncorroborated
evidence was adduced by the prosecution that
evidence alone. The judge therefore may still
PW8 was incorrect. No steps was taken to call a
insist on the requirement of corroboration but if
more experienced doctor to testify to explain
he dispenses with it, the corroboration warning is
away PW8’s testimony and the court was left
then required as matter of law.
with only one inference, a reasonable doubt.
→ Dato Seri Anwar Ibrahim v PP [2015] 2 CLJ 145
‐ The finding as to victim’s credibility based upon
(FC)
her demeanour from the trial judge’s audio-visual
‐ Court held that EA 1950 does not require any advantage was flawed and unsafe. The record
corroboration in sexual offences and a conviction contained no remark as to her demeanour. The
for such offences may rest entirely on the impression as to demeanour from the
credibility of the complainant. audio-visual advantage was something not easily
‐ The need for corroboration remains a rule of capable of being scrutinised directly not only on
good practice and prudence. A judge is entitled appeal, but such impression could be affected by
in law to convict even without corroboration if any delay made in assessing and noting that
convinced of the truth of a complainant’s demeanour. Hence, Section 271 of CPC provided
evidence. for it to be noted at the end of the notes as to that
witness’s testimony. Without such
‐ If the evidence of a complainant in a sexual contemporaneous notation, references to
offence inspires confidence then it should be demeanour to support a decision suffered from
relied upon without the need of corroboration. the impression of likelihood that it was more of
‐ In the present case, the trial judge had considered an excuse to support the decision.
the following independent evidence and
concluded that they were corroborative of
witness’s testimony of having been sodomised by Categories of Witness to be treated with Caution:
the appellant. Accomplice

→ Bunya Anak Jalong v PP [2015] 5 MLJ 72 (COA) → Section 133 of EA: Accomplice

‐ This was a rape charge where the victim was An accomplice shall be a competent witness against
below 15 years. In 2012, the victim gave birth to an accused person; and a conviction is not illegal
a baby boy. DNA evidence established that the merely because it proceeds upon the uncorroborated
appellant was the baby’s father. He was testimony of an accomplice.
convicted, and he appealed. → Section 114(b) of EA: The court may presume that an
‐ The first issue on appeal: that he never had accomplice is unworthy of credit unless he is
sexual intercourse with the victim, that there was corroborated in material particulars.
→ R v Lim Yam Hong [1919] 14 SSLR 162 (1) Notwithstanding any written law or rule of law to
the contrary, in any proceedings against any person
‐ This is the rule of corroboration required by
for an offence under this Act—
practice and prudence. Court can convict without
corroboration if it is satisfied of guilt beyond (a) no witness shall be regarded as an accomplice
reasonable doubt. However, corroboration by reason only of such witness having—
warning is mandatory.
(i) accepted, received, obtained, solicited,
→ Note that this principle may be statutorily set aside by agreed to accept or receive, or attempted to
express provisions in an Act. obtain any gratification from any person;
→ Tan See Boon v PP [1966] 1 MLJ 238 (ii) given, promised, offered or agreed to
give any gratification; or
‐ An accomplice is an infamous person and as such
not deserving of belief. He has an obvious (iii) been in any manner concerned in the
interest in diverting blame from himself to the commission of such offence or having
person against whom he testifies. He also has an knowledge of the commission of the
obvious interest in currying favour with the offence;
authorities in whose hands his own fate lies and
(b) no agent provocateur, whether he is an officer
by reason of his knowledge as an accomplice he
of the Commission or not, shall be presumed to
is in a peculiarly favourable position to concoct
be unworthy of credit by reason only of his
plausible false evidence.
having attempted to commit, or to abet, having
→ Davies v DPP [1954] 1 AC 378 abetted or having been engaged in a criminal
conspiracy to commit, such offence if the main
‐ Definition of accomplice:
purpose of such attempt, abetment or engagement
∙ All persons who participate in the offence was to secure evidence against such person; and
∙ Or receive stolen goods (c) any statement, whether oral or written, made
∙ Or involved in other offences admissible in to an agent provocateur by such person shall be
relation to the charge. admissible as evidence at his trial.

→ Teja Singh [1950] 1 MLJ 71 (2) Notwithstanding any written law or rule of law to
the contrary, a conviction for any offence under this
‐ Agent provocateur is not an accomplice, because Act solely on the uncorroborated evidence of any
if he is an agent of the police before the crime is accomplice or agent provocateur shall not be illegal
committed, he is not an accomplice. and no such conviction shall be set aside merely
→ Tee Thian See v PP [1996] 3 MLJ 209 because the court which tried the case has failed to
refer in the grounds of its judgment to the need to
‐ An accomplice confesses himself to be a criminal,
warn itself against the danger of convicting on such
and may have a motive for giving information, as
evidence.
it may purchase immunity for his offence.
→ One accomplice cannot corroborate another
‐ An agent provocateur may be an honest man. He
may think that the course he pursues is absolutely → Bhuboni Sahu v The King AIR [1949] PC 257
essential for the protection of his own interests ‐ The confession is only one element in the
and those of society. They are entirely consideration of all the facts proved in the case;
distinguished in fact and in principle in it can be put into the scale and weighed with the
accomplices, and although their evidence is other evidence. Their Lordships think that the
entirely for the jury to judge of, the court was of view which has prevailed in most of the High
the view that they are not such persons as it is the Courts in India, namely that the confession of a
practice to say require corroboration. co-accused can be used only in support of other
→ In corruption cases, there is no automatic finding that evidence and cannot be made the foundation of a
a person is an accomplice merely because he conviction is correct.
participated in the offence. → Section 26 of SOSMA: Evidence of accomplice and
→ Section 52 of MACC Act: Evidence of accomplice agent provocateur
and agent provocateur (1) Notwithstanding any rule of law or any other
written law to the contrary, in any proceedings against
any person for a security offence—
 (a) no witness shall be regarded as an accomplice → Section 3 of ECWA: How evidence of child witness
by reason only of such witness having been in may be given
any manner concerned in the commission of the
(1) A child witness may, at any stage of a trial, give
security offence or having knowledge of the
evidence in any one or a combination of the following
commission of the offence; and
manner:
(b) no agent provocateur shall be presumed to be
(a) by having a screen between him and the accused
unworthy of credit by reason only of his having
or a child charged with any offence;
attempted to abet or abetted the commission of a
security offence by any person if the attempt to (b) by live link; or
abet or abetment was for the sole purpose of (c) by video recording.
securing evidence against such person.
(2) For the purposes of this section, any evidence
(2) Notwithstanding any rule of law or any other given under subsection (1) shall be deemed to be
written law to the contrary, and that the agent evidence given in an open court.
provocateur is a police officer whatever his rank, any
statement, whether oral or in writing made to an agent → Section 4 of ECWA: Screening
provocateur by any person who is subsequently (1) A child witness, while giving evidence in the
charged with a security offence shall be admissible as Court, may be prevented by means of a screen or
evidence at his trial. other arrangement from seeing and being seen by the
accused or a child charged with any offence.
(2) The screen or other arrangement shall not prevent
Examination in Chief and Cross Examination
the child witness from being able to see, and to be
1. Evidence of Child Witness Act 2007 seen by—
2. Examination in Chief (a) the Court;
3. Cross examination (b) the prosecutor;
4. Re-examination (c) the advocate for the accused or the child
charged with any offence; and
(d) the interpreter.
Evidence of Child Witness Act 2007 (ECWA)
(3) Where two or more advocates are acting for the
→ Section 2: “child witness” means a person under the
accused or the child charged with any offence, the
age of sixteen years who is called or proposed to be
requirement of paragraph (2)(c) is satisfied if the child
called to give evidence in any proceedings but does
witness is able at all material times to see and be seen
not include an accused or a child charged with any
by at least one of them.
offence.
→ Section 5 of ECWA: Evidence by live link
→ Evidence Act still will continue to operate in relation
to child witness. ECWA enhances certain things, fills (1) Where a child witness gives evidence by means of
in the gaps. Evidential rules have to fall back on EA. a live link from a location other than the courtroom,
that location is deemed to be part of the courtroom in
→ Section 16: Application of Evidence Act 1950 and
which the proceeding is being held for the purposes of
Criminal Procedure Code
this section.
The provisions of the Evidence Act 1950 and the
(2) The Court may make an order specifying—
Criminal Procedure Code [Act 593] shall continue to
apply except in so far as those provisions are (a) that a member of the Court staff be present at
expressly modified by this Act. that location;
→ Objective of ECWA: It has introduced additional (b) the interpreter for the proceedings;
procedural measures aimed at making testifying in
(c) any adult permitted by the Court to
legal proceedings less traumatic and more child
accompany the child witness;
friendly.
(d) the persons in the courtroom who must not
→ The manner where a child may give evidence in
be heard, or seen and heard, by the child witness
provided in ECWA
and by the persons accompanying the child
witness;
 (e) the persons in the courtroom who must be (7) In the case of a child witness who has been sworn,
able to see and hear the child witness and the the Court shall admit the statement made by the child
persons accompanying the child witness; witness in the video recording as sworn evidence.
(f) the method of operation of the live link (8) In the case of evidence of a child witness of
system including compliance with such tender years, the Court, when considering the
minimum technical standards as may be statement in the video recording as evidence shall
determined by the Chief Justice of the Federal assess and form an opinion as to whether the child
Court; and witness possesses sufficient intelligence and
understands the duty of speaking the truth, though not
(g) any other matter as the Court considers
given upon oath.
necessary in the interest of justice.
→ Section 8 of ECWA: Examination of child witness
→ Section 6 of ECWA: Video recording of a child
through intermediary
witness
(1) Any examination of a child witness may be
(1) Where a video recording of a child witness is
conducted through the Court or an interpreter or any
given in evidence, such video recording shall be
other person authorized by the Court, acting as an
admitted as evidence of examination-in-chief of the
intermediary, for the purposes of this section.
child witness:
(2) The function of an intermediary is to
Provided that the contents of the video recording shall
communicate—
be subject to the Evidence Act 1950 [Act 56].
(a) to the child witness, questions put to the child
(2) A video recording under subsection (1) shall not
witness; and
be admitted unless—
(b) to any person asking such questions, the
(a) accompanied by a transcript of the original
answers given by the child witness in reply to
language used in the video recording; and
them,
(b) accompanied by a translation of the transcript,
and to explain such questions or answers so far as
if the language used in the video recording is
necessary to enable them to be understood by the
other than the national language.
child witness.
(3) A certificate by a person who did the video
(3) An intermediary shall not—
recording pursuant to subsection (1) shall, until the
contrary is proven, be admitted as a prima facie (a) prompt the child witness to answer any
evidence of the authenticity of the content of the video question;
recording.
(b) influence the answers of the child witness; or
(4) Where a video recording is admitted under this
(c) disrupt the questioning of the child witness.
section, the child witness shall be called to be further
examined-in-chief by the party who tendered the (4) An unrepresented accused shall not be entitled to
video recording in evidence on any matter which, in question a child witness directly but may do so
the opinion of such party, has not been dealt with through an intermediary.
adequately in the child witnesses recorded testimony. → Section 10 of ECWA: Formal attire may be dispensed
(5) Notwithstanding any provision of this Act, where with
a child witness is called to be further The Court may direct that the wearing of coats,
examined-in-chief under subsection (4), he may give jackets, gowns or other formal attire of a judge and
evidence by means of having a screen between him Court officers to be dispensed with during the giving
and the accused or child charged with any offence or of evidence by a child witness.
by means of a live link.
→ PP v Tan Yean Siang [2017] 1 CLJ 606
(6) Where a video recording is given in evidence
under this section, any statement made by the child ‐ This was a case involving murder charge where
witness which is disclosed in the recording shall be the accused was charged for killing a child. The
treated as if given by that child witness in direct oral victim’s sister aged 4 had given evidence via
evidence. video recording under Section 6 of ECWA. She
was interviewed in Mandarin by a police officer.
The recording was transferred into a CD and a
 transcript in BM was prepared. Both the CD and her accept the evidence of victim’s parents as
the BM transcript were tendered in evidence. credible despite them being interested witnesses.
Therefore the appeal was allowed.
‐ It was held that this evidence cannot be
admissible as teh transcript in the original → How to make sure that the recording is made with the
language was not tendered in evidence. This is a view?
mandatory requirement under Section 6(2)(a).
‐ Opening statement in the recording which says
→ Samuel John Marisinapen v PP [2018] 6 CLJ 526 that this is recording for exam-in-chief for this
said person.
‐ The accused was convicted for using criminal
force with the intention for outraging modesty. → Note:
This is an appeal. The victim who was called as a
‐ Section 6(1): Video recording admitted as
witness was 12 years during the incident and 13
examination in chief. Provided that the contents
at the time of trial.
of the video shall be subject to EA
‐ A video recording of the victim’s police
‐ Section 6(2): transcript (a+b)
recording was taken. At the trial the prosecution
produced the video recording as ‐ Section 6(3): certificate of authenticity
evidence-in-chief for victim pursuant to Section ‐ Section 6(4): child shall be called to be further
6 of ECWA. The video recording was produced examined in chief
as exhibit P6 and its transcript was produced as
exhibit P6A. Victim also testified in court under ‐ Section 6(8): shall assess and form an opinion
Section 133A giving unsworn evidence. → Muhammad Adib Sufyan Azman v PP [2019] 8
‐ The issues on appeal were: CLJ 254

∙ Video not admissible as it was not made ‐ Accused was charged under Section 377 of the
with a view to its admission as evidence in Penal Code. The victim was 13 at the time of
chief (Section 2 - interpretation of video incident and above 16 at the time testifying in
recording). court. The evidence tendered was the video
recording of victim’s interview obtained in the
∙ Trial magistrate did not adequately caution course of investigations was tendered as
herself on the risks of relying on victim’s Examination in Chief under Section 6 of ECWA.
parents as corroborating witnesses because
they are interested witnesses. ‐ HC held that a notable feature of the ECWA is
the introduction of video recording of a child
‐ Hight Court held that in order to be admissible witness during the course of investigations. The
under Section 3(1)(c) of the Act, the video ECWA allows the evidence of a child to be
recording of the oral evidence of the child obtained outside the courtroom environment but
witness must be made with a view to its has the weight of a testimony in court. Section
admission as evidence of examination-in-chief of 6(7) and (8) of the ECWA provides a similar test
the child witness. If the video recording was not to ascertain the competence of a child as
made with a view to its admission, it was not a provided for in Section 133A.
‘video recording’ envisaged under Section 2 to
be admissible under Section 3 of the Act. The ‐ The necessary prerequisites of Section 6 of
prosecution must lead evidence. Court decided ECWA had been fulfilled by the prosecution.
this from the definition of “video recording” in The evidence of the police officer who
Section 2, read together with Section 3(1)(c) and interviewed SP2 and the officer in charge of
Section 6. carrying out the recording of the interview at the
CIC clearly showed that there was a transcript of
‐ The magistrate relied on the evidence of victim’s the video recording admitted as P9 and the
parents and stated in her grounds that, in doing so, certificate issued by SP6 who made the video
she had cautioned herself when she considered recording was admitted as P14 was in conformity
the evidence because they were of interested with the requirements of Section 6(3) of ECWA.
witnesses. However, the magistrate dis not As such, the video recording of SP7’s testimony
elaborate or explain the nature and extent of the at the CIC could be admitted as SP7’s testimony
caution she took when she cautioned herself in the trial.
when accepting the evidence of victim’s parents.
Neither did the Magistrate elaborate what made
 ‐ This was in addition to the testimony of SP7 ‐ Exception: in the absence of any such law by the
during the further examination in chief by the discretion of the court
DPP. Although SP7 had attained the age of 16 at
→ In a criminal case, it is the duty of the prosecution to
the time he testified in court, the recording of his
produce its witness first. If the accused is called to
evidence was admissible under Section 7 of
enter his defence then he may call his witness.
ECWA.
→ In a civil case, the general rule is that the plaintiff will
‐ It was also contended that the learned judge had
open the case by calling his witness followed by the
wrongly applied Section 157 of EA when she
defendant.
ruled that the testimony of SP7 in the video
recording during investigation was his previous → Section 137 of EA: Examination-in-chief,
statement and thus, could be admitted as cross-examination and re-examination
corroboration, SP7 cannot corroborate himself. (1) The examination of a witness by the party who
‐ The court accepted that there was an error on the calls him shall be called his examination-in-chief.
part of the learned judge when she readily ruled (2) The examination of a witness by the adverse party
that the evidence of SP1 and SP2 corroborated shall be called his cross-examination.
SP7. SP1 and SP2 were merely collecting and
collating evidence that came from SP7, the (3) Where a witness has been cross-examined and is
source of the said information. It is not then examined by the party who called him, such
independence evidence that implicates the examination shall be called his re-examination.
appellant. To agree with the learned judge would → Section 138 of EA: Order of examinations and
mean any person who is told by a victim of his direction of re-examination
accounts of the events is a corroborative witness.
(1) Witnesses shall be first examined-in-chief, then, if
This flies in the face of the requirement of
the adverse party so desires, cross-examined then,
Baskerville.
if the party calling them so desires, re-examined.
‐ Similarly, the learned judge fell into error when
(2) The examination and cross-examination must
she held that the evidence of the video recording
relate to relevant facts, but the cross-examination need
of SP7 corroborated SP7’s testimony. This is
not be confined to the facts to which the witness
contrary to Section 6(1) of ECWA where it
testified on his examination in chief.
stipulates that the purpose of the video recording
is to form part of a witness’ examination in chief. (3) The re-examination shall be directed to the
explanation of matters referred to in
‐ While this court may accept the argument that
cross-examination; and if new matter is, by
the learned judge was in error in the areas
permission of the court, introduced in re-examination,
mentioned above, it however does not mean that
the adverse party may further cross-examine upon that
the entire assessment of evidence and reasoning
matter.
of the learned judge in this case crumbled. This
court is of the view that at best it meant that the (4) The court may in all cases permit a witness to be
evidence of SP7 did not have any corroborative recalled either for further examination-in-chief or for
support. So the appeal was dismissed. further cross examination, and if it does so, the
parties have the right of further cross-examination
and re-examination respectively.
Examination of Witnesses: Oral Testimony
→ Section 135 of EA: Order of production and
Examination in Chief
examination of witnesses
→ Purpose of Examination in chief to elicit from witness
The order in which witnesses are produced and
all material evidence to support and prove your case.
examined shall be regulated by the law and practice
However, it can only be confined to relevant facts.
for the time being relating to civil and criminal
procedure respectively, and in the absence of any such → Section 141 of EA: Leading questions
law by the discretion of the court.
Any question suggesting the answer which the person
‐ General rule: The order in which witnesses are putting it wishes or expects to receive or suggesting
produced and examined shall be regulated by the disputed facts as to which the witness is to testify, is
law and practice for the time being relating to called a leading question.
civil and criminal procedure respectively
 ‐ Eg: “You saw the accused coming out of the → The purpose of cross examination is to elicit answers
house didn’t you?”, “It was a clear night?”, “You in favour of the opposing party and to weaken the
saw the accused with the victim” evidential value of matters testified during the
examination in chief.
→ Section 142 of EA: When leading questions may not
be asked → PP v Wong Yee Sen [1990] 1 MLJ 187
(1) Leading questions may not, if objected to by the ‐ Cross examination is beyond doubt the greatest
adverse party, be asked in an examination-in-chief or engine ever invented for the discovery of the
in a re-examination, except with the permission of the truth:
court.
∙ Asking leading question under Section 143
(2) The court shall permit leading questions as to
∙ To impeach for previous inconsistent
matters which are introductory or undisputed, or
statement under Section 145
which have in its opinion been already sufficiently
proved. ∙ To test the accuracy, veracity and credibility
under Section 146(a)
→ The exception is provided in Section 154.
∙ To shake the credit of a witness by injuring
→ Section 154 of EA: Question by party to his own
his character under Section 146(c)
witness
→ Note that the failure to cross examination can as a
The court may, in its discretion, permit the person
general rule proof to be fatal and can amount to
who calls a witness to put any questions to him which
acceptance of the testimony.
might be put in cross examination by the adverse
party. → PP v Dato Sri Mohd Najib Tun Abdul Razak [2020]
8 CLJ 319
→ Court will usually allow leading questions when you
own witness turns hostile and want to impeach the ‐ “I accept that as a general rule the failure of the
witness (treat him as a witness from the opposing prosecution to cross examine DW3 on this issue
side). can be said to amount to the acceptance of that
testimony”
‐ A witness is not to be regarded as hostile just
because his testimony is against the party calling → Hanafi bin Mat Hassan v PP [2003] 6 CLJ 459
him. This is a question of fact for judge. ‐ If the defence had felt that the evidence of PW11
→ Dato Haji Azman bin Mahalan v PP [2010] 6 CLJ was not sufficient he ought to have been cross
34 (COA) examined on the matters now raised. However,
the DNA evidence given by PW11 was not
‐ The respondent was charged with two counts of
subjected to any form of cross examination.
corruption under the provisions of
Anti-Corruption Act 1997. He was alleged to → PP v Master Ibrahim [2012] 4 CLJ 872
have given the bribe to PW1, in order to ‐ It is the duty of the adverse party to put teh case.
pursuade him not to accept an offer of settlement
from his bankrupted debtor, PW6. → Bunya Jalong v PP [2015] 5 MLJ 72

‐ On the issue of whether PW1 should be treated ‐ Cross examination of PW8, Dr Nurulhuda
as an accomplice, it was held that that rested on Q15: In a normal case where a woman is fertile
the intestion of PW1, which is whether he had, in and the man is fertile, conception can occur as
actual fact, intended to appropriate the long as semen bearing the spermatozoa is
gratification for himself and acquiesce to the introduced to vagina?
criminal intention of the respondent.
A: Yes, that’s possible.
‐ Taking into account the conduct of PW1 in
Q16: You don’t actually need to supervise
reporting to the Anti-Corruption Agency (now
medical process as in the intrauterine
MACC), and also informing PW6, he could not
insemination if they are fertile?
be labelled an accomplice, and thus there was no
requirement for his evidence to be corroborated. A: Possible.
‐ In re-examination, PW8 testified:
Cross Examination Q6: How about the percentage of success in
intrauterine insemination?
 A: Roughly between 4% to 16%. Very low. (1) A witness may while under examination refresh
his memory by referring to any writing made by
Q7: Can this process be done without medical
himself at the time of the transaction concerning
facilities?
which he is questioned, or so soon afterwards that the
A: No. court considers it likely that the transaction was at that
Q8: Refer to Q8 A No 11 of cross-examination. time fresh in his memory.
Can you confirm that if a freshly ejaculated (2) The witness may also refer to any such writing
semen laden with spermatozoa is introduced to made by any other person and read by the witness
the vagina by the finger inserted, could within the time aforesaid, if, when he read it, he knew
conception occur? it to be correct.
A: It is possible. (3) Whenever the witness may refresh his memory by
DPP: No further question. reference to any document, he may, with the
permission of the court, refer to a copy of that
‐ Prosecution should have stopped at Q7 in document:
Re-examination. Should not have asked the final
question, which was damaging the Prosecution’s Provided the court is satisfied that there is sufficient
case. reason for the non-production of the original.

‐ The evidence of the expert following the line of (4) An expert may refresh his memory by reference to
cross-examination and re-examination, the court professional treatises.
in this case can infer that there is a reasonable → Section 155 of EA: Impeaching credit of witness
doubt in the prosecution’s case.
The credit of a witness may be impeached in the
→ Section 143 of EA: When leading questions may be following ways by the adverse party or, with the
asked consent of the court, by the party who calls him:
(1) Leading questions may be asked in (a) by the evidence of persons who testify that they
cross-examination, subject to the following from their knowledge of the witness believe him to be
qualifications: unworthy of credit;
(a) the question may not put into the mouth of (b) by proof that the witness has been bribed, or has
the witness the very words which he is to echo accepted the offer of a bribe, or has received any other
back again; and corrupt inducement to give his evidence;
(b) the question may not assume that facts have (c) by proof of former statements inconsistent with
been proved which have not been proved, or that any part of his evidence which is liable to be
particular answers have been given contrary to contradicted;
the fact.
(d) (Deleted by Act A729).
(2) The court, in its discretion, may prohibit leading
Explanation—A witness declaring another witness to
questions from being put to a witness who shows a
be unworthy of credit may not, upon his
strong interest or bias in favour of the
examination-in-chief, give reasons for his belief, but
cross-examining party.
he may be asked his reasons in cross-examination, and
the answers which he gives shall not be contradicted,
Re-examination though, if they are false, he may afterwards be charged
with giving false evidence.
→ The purpose of re-examination is to reconcile any
discrepancies between chief and cross. It is confined → Muthusamy v PP [1948] 1 MLJ 57
to matters arising in cross examination. Basically its ‐ In the case where the credit of a witness is to be
for damage control. impeached by proof of former statements which
→ No new matters are allowed to be brought up except are inconsistent with any part of his evidence, the
with the leave of court. party who conducts the impeachment must first
draw the witness’ attention to the inconsistent
→ Witnesses can refer to notes or other documents part of his statement, before confronting him
during oral testimony. with it, the intention being to give the witness an
→ Section 159 of EA: Refreshing memory opportunity of either explaining away the
 inconsistent part of the statement, or correcting → A child witness who gives an unsworn evidence can
his evidence so as to remove the inconsistency. be cross examined.
‐ If as a result of his explanation or correction, → Ip Ying Wah v PP [1958] MLJ 34
there is no more inconsistency, the matter ends
‐ Accused who gave dock statement cannot be
there; otherwise the witness is liable to be
cross examined. A witness cannot give a dock
contradicted. Thus, as a first step, it is essential
statement.
that the court should be given the discretion to
determine a preliminary question whether the → Section 173(e) of CPC: The accused shall be allowed
witness’ former statement is inconsistent with his to cross-examine all the witnesses for the prosecution.
evidence, otherwise much time will be wasted if → Section 173(ha) of CPC: When the Court calls upon
it is found later that his former statement is not the accused to enter on his defence under
really irreconciliable with his evidence. subparagraph (h)(i), the Court shall read and explain
‐ The judge therefore must be shown the statement the three options to the accused which are as follows:
as a first step in the impeachment procedure. The (i) to give sworn evidence in the witness box;
passages in the former statement should then be
marked to highlight the inconsistencies, if at all. (ii) to give unsworn statement from the dock; or
The court should then read the former statement (iii) to remain silent.
to determine the discrepancy, if any. Minor
→ Samuel John Marisinapen v PP [2018] 6 CLJ 526
dispcrepanices should be ignored.
‐ Witness gave unsworn evidence under Section
‐ However, if the discrepancy is material enough
133A. The witness was cross-examined, even if
to affect his credit, the court should ask the
its an unsworn evidence.
witness if he had made the former statement. If
the witness denies making the statement, that → All witnesses can be cross examined. It is a
statement has to be formally proved. Once the fundamental rights of an accused. There is only one
document has been proved, or where the witness exception to this, which is Section 8(4), cross
admits making the statement, the two conflicting examination through intermediary.
versions must be compared and explained to the
‐ Even then, there is cross examination. So no
wtiness, for the witness to justify the differences.
absolute rule that says no need cross
‐ It is the witness’ right to explain the examination.
contradiction. If the court accepts his explanation,
→ Loo Chuan Huat [1971] 1 LNS 68 (FC)
his credit is intact. If the court rejects his
explanation, his evidence will be considered as a ‐ The child witness was aged 7 at the time of
whole before the court decides if he has been offence and 11 when he gave unsworn evidence.
impeached. Upon impeaching the credit of a He was not sworn but was cautioned by the trial
witness, his evidence becomes worthless. Judge to speak the truth.

→ Dato Seri Anwar Ibrahim v PP [2015] 2 CLJ 145 ‐ He was cross-examined, even when it was only
an unsworn evidence.
‐ “We accept that the courts below did not
explicitly consider the political conspiracy → Director of Public Prosecutions v Hester [1972] 3
defence which was raised by the appellant in his All ER 1056 (HOL)
unsworn statement from the dock. In law, a trial ‐ The child witness was 9 when the time of trial.
judge will not give much weight to what an She gave unsworn evidence. She was cross
accused has said in his unsworn statement as he examined, even though it was only unsworn
is not subject to cross examination by the evidence. She was also re-examined to clarify
prosecution nor can he be questioned by the trial what happened during the incident.
judge.”
→ Sulaiman bin Aswari v Pendakwa Raya [2020]
→ Azahan Mohd Aminallah v PP [2005] 1 CLJ 374 MLJU 1291
(COA)
‐ The victim is a child of tender years who was 4
‐ For the purposes of a trial, an unsworn statement at the time of the offence. The victim’s testimony
from the dock is ‘evidence’. Hence, an accused was allowed by the trial judge after conducting
who elects to make an unsworn statement from the intellectual capacity test on the victim. The
the dock “elects to give evidence”. trial judge found that the victim did not
 understood the meaning of the oath, and so an → Public Prosecutor v Muhammad Shan Abdullah
unsworn testimony of the victim was taken. [2020] MLJU 2260
→ Section 120(3) of EA: In criminal proceedings the ‐ It is indisputable that the Respondent is facing a
accused shall be a competent witness in his own charge on a sexual offence against a child and,
behalf, and may give evidence in the same manner therefore, as pointed out by the prosecution, any
and with the like effect and consequences as any other defect in the Charge on date and time of the
witness: incident would not make it defective.
Provided that, so far as the cross-examination relates ‐ The Court is satisfied that the prosecution had
to the credit of the accused, the court may limit the correctly referred to a binding Court of Appeal
cross-examination to such extent as it thinks proper, authority on the provision of an analogous statute
although the proposed cross examination might be namely section 90A of the Evidence Act 1950
permissible in the case of any other witness. (Act 56) where there is a provision similar to that
of section 6(3) of the Evidence of Child Witness
‐ There are limitations of questions if for the
Act 2007
accused, but for other witnesses there are no
limitations. → Kassim bin Tahir v Public Prosecutor [2020]
MLJU 1489
→ Section 146A of EA: Restrictions on evidence at trials
for rape ‐ The main issue of this appeal revolved around
the evidence of PW 2. It was contended by
Notwithstanding anything in this Act, in proceedings
counsel for the appellant that the conviction of
in respect of the offence of rape, no evidence and no
the appellant was unsafe as the learned Sessions
question in cross-examination shall be adduced or
Court Judge had relied on the evidence of PW2.
asked, by or on behalf of the accused, concerning the
PW 2 was 14 years old at the time he gave
sexual activity of the complainant with any person
evidence in court.
other than the accused unless—
‐ Section 133A establishes a mandatory procedure
(a) it is evidence that rebuts, or a question which
to be complied with in cases involving a child of
tends to rebut, evidence of the complainant’s sexual
tender years who is required to give evidence.
activity or absence thereof that was previously
Section 133A of the Evidence Act 1950 provides
adduced by the prosecution;
for the evidence of a child of tender years. The
(b) it is evidence of, or a question on, specific evidence of a child of tender years can be
instances of the complainant’s sexual activity tending accepted by the court, provided that the court has
to establish the identity of the person who had sexual conducted an inquiry into whether the child
contact with the complainant on the occasion set out understands the nature and effect of giving
in the charge; or evidence under oath.
(c) it is evidence of, or a question on, sexual activity ‐ The case of Muharam bin Anson v PP (1981) 1
that took place on the same occasion as the sexual MLJ 222 stated that to ensure a child giving
activity that forms the subject matter of the charge, evidence in court understands the nature of an
where that evidence or question relates to the consent oath, an inquiry should be held. Hence, a judge
that the accused alleges he believed was given by the should conduct a preliminary inquiry to
complainant. determine the ability of the child to give
‐ Type of questions that cannot be asked in a rape evidence.
trials. These are restrictions, but only for certain ‐ An examination of the grounds of judgment of
type of question. the learned Sessions Court Judge and the Notes
‐ A big difference is that it does not mean you of Proceedings disclose that the learned Sessions
cannot cross examine the witness at all. Never Court Judge had not performed a preliminary
says that. inquiry to determine the ability of the child to
give evidence.
→ PP v Rahayu Hassan dan rayuan yang lain [2019]
1 LNS 1049 ‐ Courts generally consider a child below 12 years
of age as a child of tender years. Children above
‐ Victim was 5 at the time of incident and was a 12 years of age are not considered to be of tender
victim of abuse by the first appellant years. In this case, the child was 14 years of age
(stepmother). when he gave evidence. Grounded on the cases
 mentioned, this court is of the view that a child ‐ At the close of the case, the learned SCJ found
of 14 years is not a child of tender years. that the appellant‟s defence was a bare denial
and an afterthought and that SD2 and SD3 being
‐ The notes of proceedings and the grounds of the
the appellant‟s brother and mother accordingly,
decision of the learned Sessions Court Judge
are interested witness. According to the learned
indicate that no prior inquiry was conducted. The
SCJ, the evidence of SD2 and SD3 must be
learned Sessions Court Judge had observed and
corroborated by some other independent
made findings in respect to the child’s ability to
evidence. The appellant was found to have failed
understand the importance of telling the truth.
to raise reasonable doubt on the prosecution case
Nonetheless, despite the observations made by
and the learned SCJ found him guilty as charged
the learned Sessions Court Judge, there was no
and convicted him accordingly.
preliminary inquiry conducted by the learned
Sessions Court Judge. ‐ In regards to SP2, there was no police report
lodged as to the incident that had happened to her.
‐ Failure to hold a preliminary inquiry is fatal to
Nevertheless, the learned SCJ was satisfied that
the conviction. In Mohd Naki bin Mohd Yusuf
the elements of the offence of physical sexual
v Pendakwa Raya [2014] 5 AMR 204, the
assault under s 14(a) of Act 792 were proven
accused was charged and convicted of murder.
solely on the evidence of SP2 who at the time of
The prosecution, in this case, relied on the direct
giving her evidence in court was 12 years old.
evidence of two child witnesses. The Federal
Although the learned SCJ had stated that he was
Court in setting aside the conviction and sentence
satisfied that SP2 understood the nature of an
found, inter alia, that the trial judge who heard
oath, the need to give an exhaustive warning on
the evidence of the child witnesses had not
the dangers on such uncorroborated evidence
conducted a preliminary inquiry as to their
must be applied. In discussing the distinction
comprehension of the duty of speaking the truth
between an unsworn and sworn testimony of a
and the nature of an oath or affirmation.
child witness after the amendment to Section
‐ In this appeal, the learned Sessions Court Judge 133A of the Evidence Act 1950.
relied on the evidence of PW 5 and PW 6. Both
‐ There is no rule of law that require corroboration
PW 5 and PW 6 are medical doctors who had
in sexual offences but as a rule of prudence it is
physically examined the child and gave their
nevertheless unsafe to convict in such cases
opinions. Succinctly, as the alleged incidents
unless the quality of evidence of a young and
happened several months prior to the physical
tender age witness is consistent with the high
examination of the child by PW 5 and PW 6,
standard of proof beyond reasonable doubt. The
neither PW 5 nor PW 6 could confirm if sodomy
grounds of judgment failed to portray whether
had happened. This is due to the fact that in the
the learned SCJ was aware of the danger of
event that there was an act of sodomy, any
convicting on uncorroborated evidence of SP2.
wound to the anus as a result of that act of
sodomy would have healed due to the lapse in ‐ Further, the evidence of SD2 and SD3 cannot be
time when the physical examination was rejected solely on the ground that they were
conducted. Therefore, this court further finds that „interested witness‟. There must be consideration
the evidence of the child PW 2 was not and evaluation of their evidence in light of the
corroborated by any material evidence. prosecution case to which this court finds the
learned SCJ had again failed to do.
→ Dolly bin Surop v Pendakwa Raya [2020] MLJU
1613
‐ The learned SCJ was convinced that the incidents
of rape on SP1 and the physical sexual assault on
SP2 did happen and could not be invented or
exaggerated by both SP1 and SP2 as their
evidence were said to have been corroborated by
SP3, SP4 and SP5. Upon evaluation of the
evidence adduced by the prosecution, the learned
SCJ was satisfied that all the elements of the
offences have been proven on a prima facie basis
and had called upon the appellant to enter his
defence.