25/02/2020 HEARSAY EVIDENCE

- Out of court statement made by someone who is not called as a witness in the court
- The purpose is to prove the truth of the statement
- Generally, in a trial you definitely bring relevant evidence to prove your case. There are
instances where the evidence is hearsay evidence because you cannot call the witness
 Subramaniam v PP
- There is a possibility of fabrication of evidence – so anyone can just add in the evidence
– because the court can make decision based on 1 witness – S134.
- If you get one witness where the source of information couldn’t be believed it is
dangerous
- If you can reduce/eliminate the possibility of fabrication, the Evidence Act permits it to
be admissible eventhough it is hearsay evidence
- There are several sections that provides exceptions to hearsay  S6, S32, S73A, S98
o S32 (famous paling digunapakai):
 Have to prove certain criteria in S32(1) first because S32(1) is a general
provision
 S32(1): Have to prove certain criteria in S32(1) first
 Your case must fall within S32(1)
 S32(1)(a)-(j)
 S32(1)(a): Dying declaration (Perisytiharan nazak)
 Rationale: Seorang yang nak mati takkan tipu that’s why S32(1)(a)
permits hearsay evidence, so it would be safe to admit the
evidence. But not in all cases dying declaration is admissible. Only
admissible if you can connect the statement with the cause of
death of the maker. If punca kematian maker is not an issue, you
cannot admit the dying declaration. So syarat dia mestilah
berkaitan dengan punca kemation of the maker.
 2 limbs in S32(1)(a):
o Cause of death
o Circumstances
 Under S32(1)(a), if you talk about transaction, there would be
series of acts.
27/2/2020:
- Hassan Ali Basri v PP
o Relying on the witness
o Refer to S60 (oral evidence) – apa yang dia Nampak
- Definition of hearsay by Black law dictionary:
- Factor to determine weightage of evidence is the credibility of the witness, so you have
to be extra careful when handling hearsay evidence
- PP v Tan Kok An
 o If direct evidence rely on that particular witness but hearsay rely upon not only
witness but some other person also
- Kekecualian kepada prinsip am:
o Fulfill syarat under S32(1)
o PP v Mohd Jamil bin Yahya [1993] 1 LNS 95 [READ THIS CASE] – called the wife to
testify
 There are times hearsay evidence is very important. It is unfortunate to
just disregard the evidence because the evidence might be true.
 Probability that hearsay evidence can be accepted so long you can reduce
the possibility of fabrication and caucation of the evidence. If yes, cannot
accept.
 In Mohd Jamil the court discussed what Sarkar said on the rationale why
you have S32(1)(a)-(j)
 Drug trafficking case. 3 people involved. The first one is accused person
and Jamil. Police jumpa drugs dalam rumah. Jamil made statement to the
police that drugs belong to first and second accused but later they found
out that Jamil also a drug dealer and ada drug record dealing with drugs.
After that he died. Whatever he says was relevant to the case – siapa
punya dadah and obviously it is relevant fact. But, court said that you
have to be EXTRA CAREFUL:
 JAMIL IS A DRUG DEALER
 HIS OFFENCE INVOLVING DRUG TRAFFICKING AND THE
PUNISHMENT IS DEATH SO YOU HAVE TO BE EXTRA CAREFUL.
- S32(1)(e): when the statement relates to the existence of any r/ship by blood, marriage
or adoption – have special means of knowledge
- S32(1)(f): or in any family pedigree or upon any tombstone, family portrait
- S32(1)(i) and (j): relates to police investigation
- Those days no technology to do Photoshop, so maybe the provision need to amend(?)
o If nak record just put the tape on someone – there is an issue of authenticity
- Question relating to S32(1)(a):
o Our provision is not the same with UK provision so don’t use Common law cases
o What are the elements that you need to prove S32(1)(a): Need to fulfill either 1:
 Cause of death
 Rightly before the death of maker – no issue of afterthought
 Circumstances of transaction
 It may take some time
o Look at illustration (a):
o In Malaysia, the statement must not be in a summary form, give word for word.
If you summarize, the problem would be it is interpreted with your own words.
That’s the reason the requirement need to be word by word.
3/3/2020
S32(1)(a):
- Mohd Jamil case (drug trafficking case) – 3 orang kena tangkap and seorang menjadi
saksi. Challenge the credibility of maker because he’s also a drug dealer. At the same
time, the court also highlighted the possibility he tried to transfer ….
- Chan Phuat Khoon v PP – credibility of the maker
- Muna binti Ali (abortion case) – tak boleh berlaku seorang diri, kena ada another party
- Dying declaration
o Can you summarize what the maker do? Cannot. If it is in writing you have to
write everything
o Why you cannot summarize? Sometimes, you summarize according to your
understanding.
o Toh Lai Heng v R
o Haji Salleh v PP – to what extent and what form of dying declaration
- 2 elements:
o Cause of death
o Circumstances
- Yeo Hock Cheng – 2 instances where the statement were made
o Logically, the day of accident – possibility of fabrication can be reduced
o Whether the court admit the first statement 11 days before the accident or the
second statement on the evening
- Transaction refers to the case of Pakala Narayanaswami [best case to illustrate
transaction]
o He receives call – fabrication – deceased told that he’s going to a particular case
to collect debt. The court held that the transaction fulfilled the requirements
under S32(1)(a).
- Difference between the first limb [cause of death] and second limb
[circumstances/transaction] in S32(1)(a)?
o Cause of death – whether A caused this to you? B tikam saya – straightaway
o Transaction/Circumstances that led to the death of deceased – not straightaway

S32(1)(b):
- Talks about document, why it can become an exception to hearsay?
o Rationale: normally, in business dealing, people don’t lie. It is same when
discharge the professional duty, you record it properly
- Eg: doctor you have operation apa semua masuk dalam diary. As a lawyer you also have
a diary –
- Illustration S32(1)(b)
- Whatever stipulated in diary can be used as relevant fact
- Syarikat Jengka Sdn Bhd v Abdul Rashid [FC]
 o Berkenaan balak. They have a company that involved with balak. Some of the
respondents kept the logbook berapa balak telah ditebang and transportation of
balak. Can you bring in whatever stated in the document? Very crucial to
determine the profit.
o Documents prepared in the course of business so can fall under S32(1)(b)
- Sim Tiew Bee v PP [imported from overseas]

S32(1)(c):
- If the statement made by someone in which the statement will incriminate him. Eg:
dadah itu saya punya. Boleh percaya ke? Logically, no one will admit dadah tu dia punya
- Dituduh menyebabkan kerosakan tetapi in the statement cakap saya telah buat bukan
you buat  Exposed herself to kerugian
- Rationale:
- 32(1)(a) – orang nak mati tak tipu
- 32(1)(b) – normally in the course of business tak tipu. Eg: lawyer ada trial takkan nak
tipu tarikh and doctor yang ada operation takkan nak tipu dia operate bila
- 32(1)(c) – you would not make any statement that is against your own interest – kalau
you make statement that go against your interest, most probably perkara itu benar
- PP v Foster Frank Edald Heinrich
o If you make the statement go against your interest, there is a possibility that
thing is true

S32(1)(d): existence of any public right or custom or matter of public or general interest
- Sometimes di kampong or daerah, oleh that particular kampong amalkan adat tersebut.
Selalunya orang-orang tua yang duduk 30,40 years yang tahu pasal adat itu
- Sometimes, dalam kampong bukan ada satu orang tua tapi ramai lagi.
- Meaning of “adat kebiasaan”  practiced by the community
- Syarat-syarat 32(1)(d):
o Statement must be made before any controversy
 If you made statement after controversy, there could be intention to
handle that particular issue or being biased

S32(1)(e): existence of any relationship by blood, marriage or adoption between persons –

S32(1)(f): existence of any r/ship by blood, marriage or adoption – upon any tombstone (batu
nisan), family portrait etc
- More or less the same like (e) but with differences
- What are the similarities between (e) and (f)?
o Special relationship
o Special knowledge
o Dibuat before
- Lee Kim Luang v Lee Shiah Yee
o Ada berkenaan nama ‘nickname’ yang selalu orang panggil dia and not IC name.
o Statement made atas tombstone is admissible to prove the relationship

S32(1)(g): statement is contained in any document which relates to any transaction – para 13(a)
S32(1)(h): statement was made by a number of persons and expressed feelings or impressions
**both read on your own

S32(1)(i) and (j) was inserted much more later. There is an issue whether should you read
disjunctive [or] or conjunctive [and]?  Refer to Kobra Taba [conjunctive]

S32(1)(i): statement was made in the course or for purpose of investigation/inquiry into an
offence
S32(1)(j): statement was made by a public officer in the discharge of his duties
- In crime, it is dangerous especially in drug-trafficking cases, so you need to be extra
careful
- Janab Key to the Law Evidence – pg 426
- There is a safety net to ensure that evidence is admissible – if it can reduce the
possibility of fabrication
- Kobra Taba Seidali v PP – read the provision conjunctively.
- But there are cases that disagree for (i) and (j) to be read together
- PP v Lam Peng Hoa – read disjunctively [or].
- If you want to invoke (i) and (j), need to fulfill S32(1) first. In order to avoid any misuse,
it can be seen in few cases
 o Explain your effort to trace or track the maker. If you tak jumpa seseorang saksi,
how you’re going to raise it up? Previously, they put it in the newspaper but now
no longer. If PP nak try to locate the maker, so the burden is on him. But he has
to show the effort bersungguh sungguh
- PP v Hil Lam
- PP v Tukiman Demin – court terima explanation sebab Nampak usaha usaha
- PP v Michael Anayo Akabogu
- PP v Mohd Jamil [YOU HAVE TO READ IN ORDER TO UNDERSTAND S32(1)]
o In this case, dia cuba matchkan if you talk about S32(1)(a) apa rationale dia

10/3/2020
Documentary Hearsay
- Hearsay is applicable to both oral or documentary
- Documentary hearsay  adduce particular doc with a purpose to prove the truth of
content of the particular document, you need to call the maker
o Eg: Contract – what is the purpose you want to bring in the contract document?
Because you want to prove the content i.e. terms, conditions that is relevant to
your case
- Allied Bank v Yau Jiok Hua
- Myers v DPP
o Ada satu geng curi kereta, kemudian ada satu factory involved in recycle. Kereta-
kereta yang accident ni swap dengan kereta curi, tapi guna plate number kereta
yang accident.
o How do you want to prove that it is the stolen car?
o What they have to do is they have to bring evidence that this particular number
belongs to the original car, but the numbers are now in micro film and they don’t
know who is the one preparing the document. So, how are they going to bring in
the document into the court?
o Cannot identify the staff who did it – mahkamah cakap hearsay
- Patel v Controller of Customs
o Coriander seeds from Morrocco, cukai is slightly more
o Coriander is actually produced from Morroco. Sepatutnya India atau Morroco?
PP based on their case on the label – label cakap produced of Morroco. Asalnya
adalah Morroco but it is declared from India. It means that there was a false
declaration. How PP wants to prove that he committed the offence of false
declaration? Apa evidence yang you ada?  The label outside.
o Can you bring in the label as evidence that you commit the offence? Need to
bring the maker
o If it is documentary hearsay, you only need to call the maker
- Sim Tiew Bee v PP
 o More or less the same like Patel
o Can you bring in the evidence printed on …..site as evidence without calling the
maker of statement?
o Whether the word Sim Tiew Bee …… on the site – sometimes dia tak bagi
address but nama sahaja (name of consignee).
o Refer to Patel case – Sim Tiew Bee are not evidence as the appellant was not the
consignee.
- Beh Heng Seong v PP
- Nahar Singh v Pang Hon Chin
o Ada contract. def said dia tak pernah sign the contract – impossible because dia
taka da dekat tempat tu but somewhere else (alibi). He tried to prove by
adducing document that he was overseas. Adducing ticket is sufficient – called
the maker.
- S32(1)(b) 
o Syarikat Jengka case about the Logbook
- S73A deals with documentary hearsay [VERY IMPORTANT PROVISION] – admissibility of
documentary evidence in CIVIL CASES, ETC
o Aziz Muhd Din  try to use the word ‘etc’ to include criminal cases
o S73A  can bring in documentary evidence subject that you fulfill the
requirements:
 Must have personal knowledge about that particular matter – not the
one that you get from someone else
 No personal knowledge is required in 2 nd limb but you record the
information based on what people supply to you
 Eg: Jabatan Pendaftaran Negara – the staff there didn’t know
about you but you’re the one supplying the information and they
put the information in the system – tugas dia hanyalah untuk
record
 73A refers to instances where the maker of the statement hadir untuk
memberi keterangan
o S73A refers to instances where the maker of the statement is called to the
proceeding
o Proviso 73A  Exception to S73A – where the maker cannot be called
o Whatever document that you want to bring must be relevant – go back to the
relevancy. Eg: BOC – refer to the contract
- Ada 2 subsection yang terima documentary hearsay:
o Proviso S73A
o S73A(2)
- UM Corporation Bhd v Zamri Ibrahim
o 3 circumstances:
  Where the maker is available, you called the maker
 Refer to proviso S73A(1) – condition of the maker that makes him cannot
be called as a witness
 Where the maker is available but not called as the witness (subsection 2)
– undue delay or expense – then you can admit the evidence
- For S73A, MESTI BACA Allied Bank Malaysia v Yau Jiok Hua
o Justice Augustine Paul: discuss about S32(1)(b) and S73A – important distinction
between these sections
 32(1)(b) – maker must have had personal knowledge about that
particular issue. Because court takkan terima if you have no knowledge
on that issue – you must have basis
 73A –
 Both require personal knowledge
 73A now extends to include someone who has NO personal knowledge
 Kerja you untuk record document
 Ada peruntukan provision because you can reduce the possibility
of fabrication and concoction
o 1 hand hearsay and 2nd hand hearsay ….(??)
st

- Summary S73A:
o Terpakai kepada pernyataan yang terkandung dalam sesuatu dokumen
o Hanya terpakai dalam civil cases sahaja
o Pada amnya, seksyen ini memperuntukkan kebolehterimaan sesuatu pernyataan
yang dibuat dalam sesuatu dokumen yang mana pembuatnya dipanggil untuk
memberi keterangan di mahkamah
o Seksyen ini juga memperuntkkan kebolehterimaan pernyataan yang mana
pembuatnya tidak dipanggil sebagai saksi di mahkamah
- Arab Malaysian Merchant Bank v Chong On Foh Medical Hall & Liquor Dealers
- Mahmod bin Kailan v Goh Seng Choon [1976] 2 MLJ 239
o Pf was a labour sub-contractor.
o 73A where the maker is available and witness ada and secondly if dia falls in the
proviso
o So, he tried to use proviso S73A
o Can also use S73A(2) – maker is available but to avoid undue delay or expense
o One of the syarat adalah if all reasonable effort to find him as to be made
without success – kena ada usaha on your part supaya taknak ada misuse of
proviso. Kalau you benarkan dengan mudah, ianya sangat bahaya kerana hearsay
- S90A: Admissibility of documents produced by COMPUTERS
o Insert this provision to cater the computer generated documents
o Definition of document and computer  refer to S3.
o Canny Ong’s case  CCTV footage
 o Suzaili case  computer engineer who was murdered in bus – involves
computer printed ticket bus
o Applicable to both criminal and civil cases
o “ordinary use” 
o S90A (2): In order for you to prove the computer is an ordinary use, you have to
produce CERTIFICATE
 Sometimes you see “this is computer generated document, signature is
not required”
 That’s why you have to tender certificate to prove that the computer is
an ordinary use
o S90A (4): good working order
o S90A (6): A bit controversial and few FC cases discuss on this
 Mohd Najib Aris
- Gnanasegaran v PP
o S90A was enacted as best evidence rule
o 2 options in this case where you either:
 Adduce the certificate to prove the computer is an ordinary use; OR
 Call the officer-in-charge to testify that the computer-generated
document is an ordinary use