Hearsay

Sec. 60: All oral evidence must be direct in order for it to be admissible.
A hearsay statement, which is an out-of-court statement made by someone who
cannot be present in court to repeat it, does not fall within the ambit of Sec. 60, thus
making it inadmissible.

The general rule as in Subramaniam v PP: A statement is hearsay and inadmissible

when the object of the evidence is to establish the truth of what is contained in the
statement.

Exceptions to the general rule of hearsay evidence:

-

The res gestae principle under Sec. 6

Admission and confession under Sec. 17 30
Public documents and records
Exceptions under Sec. 32

Sec. 32(1): There are four categories of persons to which the exceptions under the provision
apply:
-

A person who is dead

- The death of the maker of the statement must be proven by:
- Documentary evidence (certificate of death)
- Oral evidence (through the officer who conducted the post mortem)
- A superior confirming the death of his officer
- A relative confirming the death of the deceased

A person who cannot be found

- There must be proof that attempts to search for the persons whereabouts has
been made, and it must be such that the court is satisfied that a reasonable
search has been conducted.
- PP v Lee Jun Ho & Ors: The court rejected evidence of recorded statements of
two important witnesses as no action was taken to trace the witnesses when
the trial began in 2006, and efforts to locate them were only made in 2008.
- The seriousness of the case (e.g: murder) would demand greater efforts to
ensure that the witnesses were present.

A person who has become incapable of giving evidence

- Incapability need not necessarily be a permanent form of incapacitation, it
may also refer to extreme old age or mental incapacity (Sarkar on Evidence)
- The witness incapability to give evidence must be proven strictly, but it is not
necessary for a confirmation from a medical practitioner to be obtained or for
a medical certificate to be produced.

A person whose attendance cannot be procured without unreasonable delay or

expenses
- Enough evidence must be adduced to show that it would involve such delay
and expenses if his presence is procured.
- Allied Bank (Malaysia) Bhd v Yau Jiok Hua: Where the witness had migrated to
Australia and his exact whereabouts were unknown, the court found that the
plaintiffs argument that it was not cost-effective to bring the witness to court
was unacceptable where the amount of the claim was over RM1 million.
- PP v Lam Peng Hoa: Unless it is proven that due diligence and reasonable
exertion in trying to locate the witness had been employed, there could be no
basis to in contending that the witness attendance could not be procured
without an amount of delay or expenses.

Once it has been established that the maker of the statement falls under any one of the four
categories of persons proven to be absent, the evidence must then be tendered under the
exceptions in Sec. 32.
Sec. 32(1)(a):
-

Common Law dying declaration:

- Must relate only to the death of the maker of the statement.
- For it to be admissible, it must have been made in the settled expectation of
death.

However, Sec. 32(1)(a) is much wider in scope as the statement relates to:
- The cause of the makers death
- The circumstances of the transaction which led to his death.
The maker of the statement is not required to be in a dying state when the statement
is made.

There are two distinct interpretations of the provision:

Narrow interpretation:
- Boota Singh v PP: Where the accused was convicted of murder, a police report
made by the deceased against the accused nine months before the murder
could be regarded as a report concerning any circumstances which resulted in
the murder within the meaning of the provision.
- Haji Salleh v PP: A statement made by the deceased a month before his death
stating that he was afraid the accused might kill him was inadmissible under
the provision.

Broader interpretation:
- Yeo Hock Cheng v R: The deceased in this case made two statements:
- The first was made to her father eleven days before her death denying
that she had slept at the accuseds house out of fear of being killed by
the accused if she were to tell her father the truth.

The second was made to her sister on the evening of her death
informing her that she was going out with the accused and that he had
told her to wear mans clothing.
Held: The first statement was inadmissible under the provision as it was too
remote and could not be treated as one of the circumstances resulting in her
death. However, the second statement when viewed with the evidence of the
body led to the conclusion that the murder was premeditated. The accused
himself arranged for the deceased to wear mans clothing, presumably to avoid
recognition, which amounts to the circumstances resulting in her death,
making the statement relevant under the provision.
PN Swami v King Emperor: Where the deceased was found to have been
murdered, a statement he made a day before his death that he was going to
the place where the accused lived to meet the accuseds wife was admissible
under the provision as it was clearly a statement as to the circumstances of the
transaction which resulted in his death.
Lord Atkin in this case stated:
- The statement may be made before the cause of death had arisen, or
before the deceased had any reason to expect to be killed.
- General expressions of fear or suspicion not directly related to the
occasion of death will not be admissible.
- The circumstances must have some proximate (close) relation to the
actual occurrence.
- Statements made by the deceased that he was proceeding to the spot
where he was then killed, or his reasons for proceeding, or that he was
going to meet a person, or that he had been invited by such person to
meet him, amounts to circumstances of the transaction, regardless of
whether the person was unknown or not the accused.

Sec. 32(1)(b):
-

When a statement is made by a person through an entry, or memorandum made in

books kept in the ordinary course of business, or in the discharge of professional duty.

For the statement to be acceptable as an exception, the maker must have personal
knowledge of the matter in the statement to avoid the possibility of multiple hearsay.
Allied Bank (Malaysia) Bhd v Yau Jiok Hua: Where the witness tendering the evidence
was not the maker of the documents (as the maker had migrated to Australia), the
documents were inadmissible.
- The provision is confined to statements made based on the personal
knowledge of the maker, thus not allowing multiple hearsay.
- Unlike the provision, Sec. 73A allows for the admissibility of a statement even
when its maker did not have personal knowledge of its contents, thus allowing
multiple hearsay.

Similarly, if a police officer (who cannot then appear in court) interviewed witnesses
and recorded the information in his diary, the information contained cannot be said
to be within his personal knowledge as he would not have perceived the
circumstances. Thus, the information would amount to multiple hearsay evidence,
falling outside the scope of the provision.

However, if a police officer (who cannot then appear in court) conducted a search in
a premise and seized items which he then recorded in an inventory, such information
would fall within the scope of the provision as it would be first-hand hearsay evidence
of the contents of the inventory.

Sec. 32(1)(c):
-

The statement made must be against the makers interest that could be injurious to
him, either by exposing him to criminal prosecution or a civil suit for damages.
Illustration (e), (f) to Sec. 32

Secs. 32(1)(i) and (j):

-

The statement was made in the course of, or for the purposes of, an investigation or
inquiry into an offence under or by virtue of any written law, and
The statement was made by a public officer in the discharge of his duties

PP v Micheal Anayo Akabogu: Secs. 32(1)(i) and (j) are conjoined by the word and
between it, which shows that the intention of the legislature was to bind the two
subsections.
- In criminal proceedings, any ambiguity in the language of a provision has to be
narrowly construed.
- When read conjunctively, the provisions would mean that the statement must
be made by a police officer, in the discharge of his duty, in the course of an
investigation.
- Both provisions, which must be read conjunctively, is only related to public
officers, and not witnesses.

A disjunctive reading of the provisions would result in it covering a large variety of

statements, which is not within the spirit of Sec. 32 (Kobra Taba Seidali v PP)
- Regardless, the court in PP v Lam Peng Hoa was of the view that it should be
read disjunctively, and that the word and which joins the provision was only
the drafters preference in the writing of the provisions.
- PP v Mohamed Fairuz Omar: A conjunctive reading of the provisions is an
improper construction of Sec. 32.

Despite the distinct approaches, recent cases such as Kobra Taba Seidali v PP and
PP v Sim Kay Chay have indicated that the more preferable approach of the courts is
a conjunctive reading of the provisions.