a witness who is competent is comp ell able

EVIDENCE II

WITNESS

LINA HANINI BT ISMAIL 101153

Question 1: A witness who is competent is compellable. In view of this rule all witnesses are

required to answer all questions put to them. Discuss the accuracy of the above statement.

Introduction

First of all, what is witness? A witness is a person who gives testimony or oral evidence in

judicial proceedings. Generally, a person who comes to court and swears under the oath to

give truthful evidence, the person who being sworn or affirmed, and according to law,

deposes as to his knowledge of facts in issue between the parties in a cause.

In England till the nineteenth century, bankrupts, convicts, accused persons, husband or wife

of a party, persons without any religious beliefs were all considered to be incompetent

witness, as they may have a prejudicial interest in the case. However, these disabilities or we

called as incompetentness were gradually removed. The older theory was that a party would

naturally support his own cause and hence he would not be truthful witness.

Before we go further and discuss the competence and the compellability of a witness, the

relevancy must first come into picture, that the witnesss called to give testimony must be a

relevant witness. This can refer to Section 5 of Evidence Act 1950, Evidence may be given of

facts in issue and relevant facts. By referring to the case of Anwar Ibrahim v Dato’ Seri Dr.

Mahathir1, the facts that the defence listed a long list of witness, and where one of the

witness to be called is the Prime Minister. The defence asked the court for an order to

subpoena Prime Minister and contended that not complying with the subpoena, the Prime

Minister will be held in contempt. However, the Prime Minister, who is the witness can

question the relevancy of the questions. It is a fundamental right. There was also evidence that

the defence wanted the Prime Minister to answer questions that has already been asked by

other witnesses. The point that may be inference is by calling in the Prime Minister as the

1 [2000] 4 CLJ

Page | 1

EVIDENCE II

WITNESS


witness were just to embrass him and to waste the courts time and costs. it was not relevant to

call in the witness and the court held that it is a frivolous and vexatious exercise.

Who is competent to be a witness? A competent witness is someone who can give evidence in

court. To put it in s simpler way, all person are competent to be a witness, unless the court

consider that they might having problem of understanding the question given before them,

and might not think rationally when answering the question, such as old folks, kids who is

tender years, a person who might have mental or bodyli illness or disease ao any other that

can cause the same kind which the court think he or she is not competent, they are exceptions

to give evidence in court.

Section 118 of Evidence Act 1950, (hereinafter referred as ‘the Act’) stated the general rule

that,

“ all persons shall be competent to testify unless the court considers that they are

preveted from understanding the questions to put to them or from giving rational

answers to those questions by tender years, extreme old age, disease, whether of body

or mind, or any other cause of the same kind”.

Under Section 118 of Evidence act 1950 stated the general rule of who are competent to be a

witnesses before the court and all grounds of incompetency have been swept away by this

section, where the competency is the rule and that their incompetency is the exception to the

general rule itself. There are certain provision that was stated in the Evidence Act 1950 that

rule out the incompetency of a person can be a witnesses. The only incompetency that the

present Act reccognises is incompetency from immature or defective intellect. This may arise

from 1) infancy 2) idiocy, deafness, dumbness, 3) lunacy 4) illness. As to infancy, it is not so

much the age as the capacity to understand which is the determining factor. There is no

precise age limit can be given, as persons of the same age differ in mental growth and their

ability to understand the question and give rational answers. The sole test is whether the

Page | 2

EVIDENCE II

WITNESS


witness has sufficient intelligence to depose or whether he can appreciate duty of speaking the

truth. A lunatic is incompetent to testify on account of loss of reason, but his competency may

be restored during a lucid interval. A monomaniac may depose as to other matters save the

one. Therefore a dunkard may testify once the effects of liquor disappeared. An idiot is a

person who does not possess understanding from his birth. Such incapacity is permanent.

Deaf or dumb persons are incompetent if they are unable to understand the question put to

them or to communicate their ideas by signs or writtings. This can be seen from Section 119

of the Evidence Act 1950.

Section 119 of Evidence Act 1950, dumb Witnesses

(1) A witness who is unable to speak may give his evidence in any other manner in

which he can make it intelligible, as, for example, by writing or by signs; but the

writing must be written and the signs made in open court.

(2) Evidence so given shall be deemed to be oral evidence.

The counsel shall put questions to the witness. The witness should understand the question

and can give rational answers. His intellectual capacity must be tested but not his religious

belief unless he is prevented to do so because the witness is too young or too old. When the

witness is deemed to be insane, when he is in the state of lucidity, he can be a competent

witness. In the case of Chai Kor v PP2, Wylie CJ held that:

“ A witness whose evidence cannot be properly understood and to whom proper

questions cannot be put at all is not a competent witness. The witness was a deaf mute.

The interpreter had difficulty in communicating with him and he had incorrectly

interpreted his answers.”

2 [1965] 2 MLJ 208

Page | 3

EVIDENCE II

WITNESS


Therefore, the general rule is that the capacity of the person offered as a witnesses is

presumed, to exclude a witness on the ground of mental or moral incapacity the existence of

the incapacity must be made to appear. The main test is whether the witness has sufficient

intelligence to depose or whether he can appreciate the duty of speaking the truth.

What if the witness is an interested witness, can he be considered as competent witness? In

the case of Balasingam v PP3, where Ismail Khan J (as he then was) stateed that:

“ After all there is no legal presumption that an interested witness should not be

believed. He is entitled to credence until cogent reasons for disbelief can be advanced

in the light of evidence to the contrary and the surrounding circumstances”

Section 120 of the Evidence Act 1950, Parties to civil suits and wives and husbands

(1) In all civil proceedings the parties to the suit, and the husband or wife of any party

to the suit, shall be competent witnesses.

(2) In criminal proceedings against any person the husband or wife of that person

respectively shall be a competent witness.

This particular section must be read together with Section 122 of the said Act, which is the

communication during marriage. This Section 120 of the Act provides that party to

proceedings and their spouses are competent witnesses. The general in common law principle

is that if a witness is a competent witness, the court can subpoena him to give evidence and if

he fails to come to court he will be held in contempt of court. He is also a compellable witness

3 [1959] MLJ 193

Page | 4

EVIDENCE II

WITNESS


unless there is a specific statutory provision in the Evidence Act that could not be compelled,

then he is prevented from being compelled.

Section 122 of the Evidence Act, Communications during Marriage

“No person who is or has been married shall be compelled to disclose any

communication made to him during marriage by any person to whom he is or has been

married; nor shall he be permitted to disclose any such communication unless the

person who made it or his representative in interest consents, except in suits between

married persons or proceedings in which one married person is prosecuted for any

crime committed against the other.”

Marital communication during the tenure of marriage is privilege from being disclosed.

Husband cannot be compelled to disclose of marriage communication unless the spouse

consent to it.

Page | 5

EVIDENCE II

WITNESS


Duty of a competent witness

In Syed Abdul Aziz and Anor v PP4, stated that, after having given some preliminary

answers a witness told the court that he did not want to testify. It was only after the learned

judge trial judges had warned him that he would be punished for being in contempt of Court if

he did not testify that he agreed to do so. Section 132 of Evdence Act 1950 covers the

obligation of a witness to answer questions that will incriminate him. Sections 114(h) and

Section 148(2)(d) of the said Act deal with the inference that can be drawn from a witness’s

refusal to answer. McElwanie CJ also stated clearly in the case of Ghouse bin Haji Kader

Mustan v R5 :

“ If a witness in this Colony is competent and has been summoned he is bound to give

evidence, and to answer all relevant questions.”

Body

Can the witness be forced to give the evidence before the court? General rule stated that, a

competent witness can be forced to give evidence. which means, all competent witnesses are

compellable. However, competency of giving the evidence should be distinguished from

compellability to give evidence. There is duty of a competent witness to tell the truth and to

tell everything that he or she know to give evidence before the court. However, not all

competent witnesses are compellable before the court.

There are certain categories that the group of witnesses are competent, but they are not

compellable. A witness may be competent and yet not compellable, he may have the power of

understanding the questions and may be able to give rational answer thereto, but may not be

subject to the authority of the court, where the court cannot compel him to attend and dispose

before it. Foreign ambassadors and sovereigns cannot be compelled by a court to appear

4 [1993] 3 SLR 534 (CCA)5 [1946] MLJ 36,37

Page | 6

EVIDENCE II

WITNESS


before it to give evidence6. they are the persons competent to dispose but they are not

compellable by the court. In general, a witness who is competent and may also be compellable

, yet the law may not force him to answer certain questions. This is called restricted

compellability of privilege. Magistrates, lawyers, spouses, etc have the right to be protected

from answering certain questions when they are being examined as witnesses.

These are called as the privilege of a witness. A privilege is a power laid down under the

evidence Act, that a witness cannot be compel. In a simpler way of understanding, a privilege

is a power to withold evidence, either by not answering questions or producing documents, or

by preventing another witness from answering questions or producing documents in

interlocutory proceedings or at trial. There are 11 privileges given under the Act which are,

Judges, Presidents of Sessions court and Magistrate; (Section 121 of the Act)

Communications during marriage; (Section 122 of the Act)

Affairs of the state; (Section 123 of the Act)

Official Communications; (Section 124 of the Act)

Information (Informers) as to commission of offence; (Section 125 of the Act)

Professional communications; (Section 126 of the Act)

Self Incrimination; (Section 132 of the Act)

Production of documents which another person having possesion could refuse to

produce; (Section 131 of the Act)

Production of tittle deeds of witness not a party; (Section 130 of the Act)

Confidential communications with legal advisors; (Section 29 of the Act)

The interpreter also have the privilege as Section 126 Of the Act shall apply to them as

well. (Section 127 of the Act)

6 Batuk Lal, Law of Evidence in India, Pakistan, Bangladesh, Sri Lanka & Malaysia. 5th Edition(2004), Orient Publishing Company, Neew Delhi, Allahabad.

Page | 7

EVIDENCE II

WITNESS


1) Judges, Presidents of Sessions court and Magistrate (Section 121of the Evidence Act)

“No Judge and, except upon the special order of the High Court, no Sessions

Court Judge or Magistrate shall be compelled to answer any questions as to

his own conduct in court as Judge, Sessions Court Judge or Magistrate or as to

anything which came to his knowledge in court as a Judge, Sessions Court

Judge or Magistrate; but he may be examined as to other matters which

occurred in his presence whilst he was so acting.”

Under this Section 122 of the said Act, a judge, or magistrate shall not be compelled to

answer questions as to a) his conduct in Court as such Judge or Magistrate, or b) anything

which came to his knowledge in Court as such Judge or magistrate7, except upon special

order of a higher court, to give evidence about his conduct in relation to a case tried by him.

This can be referred to the:

Illustration (a) of the Act.

“A, on his trial before the High Court, says that a deposition was improperly taken by

B, the committing Magistrate. B cannot be compelled to answer questions as to this

except upon the special order of the High Court.”

No session court judge or magistrate shall be compelled except on the special order of the

high court to nswer any questions, which are a) as to his own conduct in court as Session

Courts judge or magistrate, or b) as to anythiing which came to his knowledge in court as a

session court judge or magistrate8. This can be referred to the:

7 Ratanlal & Dhiraj Lal, law of Evidence, 20th Edition(2002), Wadhwa & Company naghpur, Pg 1170.8 Batuk Lal, Law of Evidence, 5th Edition(2004), Orient Publishing company, New Delhi. Pg 1423.

Page | 8

EVIDENCE II

WITNESS


Illustration (b) of the Act

“A is accused before a Sessions Court of having given false evidence before B, a

Sessions Court Judge. B cannot be compelled to say what A said except upon the

special order of the High Court.”

However the judge, Session Court judge or magistrate may be examined as to other matter s

which occurred in hs presence whilst he was acting as Judge, session court judge or

magistrate. Illustration (c) of the Act stated that:

Illustrations (c) of the Act

“A is accused of attempting to murder a police officer whilst on his trial before B, a

Judge of the High Court. B may be examined as to what occurred.”

It must be borne in mind that the privilege given by this section is meant only for the witness.

If he waives such privilege, or does not object to answer to such question, it does not lie in the

mouth of any other person to assert the privilege. The privilege of a Judge or Magistrate

extends only “to his own conduct in Court as such Judge or Magistrate, or as to anything

which came to his knowledge in Court as such Judge or Magistrate”. The rationale of this Act

can be seen from the case of Pavone v PP9, The fact of the case are, a police officer denied

that he had said at the earlier trial that his test of the exhibit recovered from the person o the

accused was ‘opium’. He maintained that it was an opiate and he said the same thing at the

trial. Counsel for the accused then informed the court that he intended calling the President

who presided at the original trial or the purpose of impeaching the credit of the witness. The

request was refused and counsel then applied to the High Court for the necessary order.where

Edgar Joseph Jr J( as he then was) stated in his judgment10:

9 [1986] 1 MLJ 7210 Augustine Paul, Evidence Practice and procedure, 3rd Edition( 2003), Malayan law Journal, Kuala Lumpur. Pg 923.

Page | 9

EVIDENCE II

WITNESS


“ i have a final point to make. Section 121 of the Act is based on general

grounds of convenience and public policy. Obviously, it would cause great

inconvenience and perhaps, embarrassment, if presidents or magistrate are

withdrawn from their own courts to answer questions as to their own conduct

of trials at which they have presided. It follows that it is only in altogether

exceptional circumstancess that a special order will be made under the section

and that too only when it appears essential to the just decision of a case.”

2) Communications during marriage (Section 122 of the Evidence Act)

“No person who is or has been married shall be compelled to disclose any

communication made to him during marriage by any person to whom he is or

has been married; nor shall he be permitted to disclose any such

communication unless the person who made it or his representative in interest

consents, except in suits between married persons or proceedings in which one

married person is prosecuted for any crime committed against the other.”

There are two limbs to Section 122 of the said Act, which are:

1st limb

No person shall be compelled to disclose any communication made to him by

his spouse , provided the communication was made while they were married.

Page | 10

EVIDENCE II

WITNESS


2nd limb

No person shall be permitted to disclose any such communications unless the

spouse who makes the communication or his representative in interest

consents.

Previous Section 120 of the Act give provision to the husband or wife of any party to the suit

shall be a competent witness. It has also laid down that in a criminal case against any person

the wife (if the accused is husband) or the husband ( if the accused is wife) of such person

shall be competent witness. Thus, according to section 120 of the Act, the wife or a husband

of a party to a proceeding is a competent witness and capable to testify.

Whereas Section 122 of Evidence Act 1950 lays down that a wife or husband may not be

compelled to divulge the communication of husband or wife and vice versa. According to the

section, any communication during the wedlock by the husband to his wife or by the wife to

the husband is prevented from being proved in a court of law. The protection from disclosure

of communications between husband and wife is based on the policy that relationship between

spouses ought not to be disrupted11. The communications continue to be privileged even if the

marriage comes to an end. The fact that a motion for divorce or for declaration of nullity of

marriage has been made by the wife, will not save the wife from her obligation under the

Section, whereby it continue beyond the subsistence of the marriage and even after the death

of the maker.

However, it must be noted that, the ban of the section covered to communication only. A wife

can testify to the deeds of her husband of which she was the eye-witness. In the case of Ram

Bharose v State of U.P12, the statement of the wife that the accused was seen in the early

hours while it was still dark, coming down the roof of his house, that he went to the Bhusa

kothria and came out again and had a bath and put the dhoti again is not admissible under this

11 Mariette Peters, Evidence, 2nd Edition( 2006), Lexis Nexis, Singapore. Pg 245.12 AIR 1954 SC 704

Page | 11

EVIDENCE II

WITNESS


particular Section 122,as it has reference to acts and conduct of the Appellant and not to any

communication made by him to his wife.

Thus if a wife sees her husband committing an offence , she is both competent and

compellable to testify on what she has seen. In Malaysian case, it can be explained clearly in

the case of Lim Lye Hock v PP13,

“ it follows from this that the spouse of an accused can give evidence against

him of any fact but is not compellable to disclose any marital communication

made by the accused, and if she is prepared to disclose such communication,

she is not permitted to do so without consent by the accused.”

For instance if the wife seen heer husband committing the offence or returning home with

blood stains on his clothes, in proceedings brought against the husband she is both competent

and compellable to testify on what she saw. On the other hand, if the husband confessed to her

that he committed the offence or has explained to her how the blood stains were splattered on

his clothes or has written to her a note or letter to that effect, she is not compellable to

disclose such communication or produce the note or letter and if she is prepared to disclose

such communication or produce the note or letter, she is not permitted to do so, unless he

consents to such disclosure14.

It should also be noted that, the privilege only apply to the husband and wife only, if there is a

third party who were to adduced evidence of the conversation, it may not be privileged15.

In the case of Ghouse bin Haji Kader Mustan v R16, the appellant appealed against his

conviction on a charge of kidnapping a Muslim Girl under the age of 16 years old from the 13 [1995] 1 SLR 23814 [1995] SLR 23815 Mariette Peters, Evidence, 2nd Edition( 2006), Lexis Nexis, Singapore. Pg 246.16 [1946] MLJ 36

Page | 12

EVIDENCE II

WITNESS


lawful guardianship of her father. On appeal, it was argued , that the only material witness as

to the kidnapping was the girl herself and as the appellant hd married the girl she could not be

compelled to give evidence against him. He had kidnapped her on 25 July 1941 and had

married her on 26 July 1941. McElwanie CJ stated in his judgment:

“ if a witness in this Colony is competent and has been summoned, he is bound

to give evidence, and to answer all relevant questions. There is no class of

witness who can be called as compellable witness. The words compellable

when used in evidence ordinance relate not much to a witness as to a type of

evidence. in my opinion, a witness may be compelled to give it.”

The district judge was fully within his rights in compelling the wife to give evidence, as her

evidence did not fall under any of the Section 122 of the Act that she cannot be compelled to

give such evidence. it is understood that at the time of the offence takes place, the parties were

not married and thus the privilege contained in the section did not apply.

There are always exception to the general rule, and same goes to this Section 122 of the Act.

There are exception to it privilege, where

a) In suits between married person

b) Proceedings in which one married person is prosecuted for a crime committed

against the other.

c) Unless the person who made it or his representative in interest consents.

Page | 13

EVIDENCE II

WITNESS


The issue is whether the exceptions apply to both the first and second limb or only to the

second limb?

As regards to the first view, by referring to the case of Ghouse bin Haji Kader Mustan v

pp17 the court took the view that the exceptions under Section 122 apply to both limbs. In was

held in this case, privilege is never absolute. Spouse can be compelled to disclose in suits

between married persons, or criminal proceedings where accused is prosecuted for a crime

committed against his spouse.

On the other hand, the second view came from Jeffrey Pinsler, who state in his book,

Evidence, Advocacy and the Litigation Process, the exceptions apply to the second limb only

as there is a semi colon that separate there first limb from the second limb. In the case of

Public Prosecutor v Abdul Majid18:

“The accused was charged or murder under section 302 of the Penal Code (FMS Cap

45). At the premilinary enquiry, the prosecution attempted to call the accused’s wife as a

witness for the prosection. The accused’s counsel objected to this on the ground that

although she was a competent witness, she could not be compelled to tender evidence

against her own husband. The prosecution then referred the matter to the High Court for

determination while preliminary enquiry was put on hold. It was held that the accused’s

wife could be compelled to give evidence.”

3) Affairs of the state (Section 123 of the Act)

17 [1946] MLJ 3618 [1994] 3 MLJ 487

Page | 14

EVIDENCE II

WITNESS


“No one shall be permitted to produce any unpublished official records relating to

affairs of State, or to give any evidence derived there from, except with the permission

of the officer at the head of the department concerned, who shall give or withhold

permission as he thinks fit, subject, however, to the control of a Minister in the case of

a department of the Government of Malaysia, and of the Chief Minister in the case of

a department of a State Government”

This section deals with executive privilege. It provides that no person shall be permitted to

produce any unpublished official records relating to affairs of state or to give any evidence

derived therefrom. However, he may do so with the permission of his Head of Department,

who shall give or withold permission as he thinks fit19. The head of department is subject to

the control of a Minister in the case of a Federal Department and the Chief Minister in the

case of a State Department. This Section must be read together with Section 162 of the Act.

Subject to the overriding power of the court to disallow the claim of privilege in exceptional

cases, the following provide working rules of guidance for the courts in the matter of deciding

the question of privilege in regard to unpublished documents pertaining to matters of State20:

a) regards relating to affairs to State means documents of States whose production would

endanger the public interest; b) documents pertaining to public security defence and foreign

relations are documents relating to affairs of State; c) unpublished documents relating to

trading, commercial or contractual activities of the State are not ordinarily, to be considered

as documents retating to “affairs of State”; but in special circumstances they may pertake of

that character; d) in case of the documents mentioned in c) above, it is a question of fact that

whether they relate to affairs of State or not in the sense that if they are disclosed public

interest would suffer.

19 Augustine Paul, Evidence Practice and procedure, 3rd Edition( 2003), Malayan law Journal, Kuala Lumpur. Pg 92920 Batuk Lal, Law of Evidence in India, Pakistan, Bangladesh, Sri Lanka & Malaysia. 5th Edition(2004), Orient Publishing Company, Neew Delhi, Allahabad, Pg 1429.

Page | 15

EVIDENCE II

WITNESS


It is important to note that "Affairs of the state" is not defined under Evidence Act.

However, we may refer to the principle derived from decided cases for the general idea of

these words.

In Gov-Gen v H Peer Mohd Khuda Bux , Kholsa J said that:

"affairs of state "refers to "matters of public nature in which the state is concerned

and the disclosure of which will be prejudicial to the public interest or injurious to

national defence or detrimental to good diplomatic relations"

How to determine whether the documents are affairs of State? It is for the court, not the

executive , ultimately to determine whether certain documents are affairs of state21. In the case

of Ba Rao & Ors v Sapuran Kaur & Anor22, Raja Azlan Shah FJ (as he then was) stated:

“In Civil Suit No 10 of 1974 the estate of the deceased is claiming damages for his

death as a result of the alleged negligence of the medical officers of Bentong and

Mentakab District Hospitals where the latter was admitted and treated as a patient as

a result of a motor car accident along the Karak/Kuantan main trunk road. The

government is brought in as their employer. As in the court below, it was argued that

Section 123 of Evidence Act is applicable and the documents are privileged from

disclosure. It is contended that the learned judge erred both in fact and law in holding

that the notes and findings of the Committee of Inquiry were not unpublished official

records relatting to affairs of state in terms of the Section 123 of the Act.”

21 Rafiah Salim, Evidence in Malaysia& Singapore, Cases, Materials & Commentary, 2nd Edition( 1994) , Butterworths, Malaysia. Pg 176.22 [1978] 2 MLJ 146

Page | 16

EVIDENCE II

WITNESS


Prior to Conway v Rimmer23, the position in England was that the court culd not go behind

the minister’s certificate that disclosure of a class of documents or the contents of particular

documents would be injurious to the public interest. His certificate was conclusive.

What is the position if the disputes is between a third parties and the government, does this

have the privileged under Section 123 of the Act? A file relating to tender documents between

third parties and the government is not privileged24.

By referring to the case of Government of State of Selangor v Central Lorry Service &

Construction Ltd25, as Mohamed Azmi J (as he was then) stated in his judgment:

“This is an application by summons in chambers by the defendants....for discovery and

inspection of documents under O31 of the Rules of Supreme Court. The relevant

application is for an order that the plantiff be ordered to produce for inspection the

file relating to the second tender or contract, in particular, the tender documents of

Messrs Soon Tat & Co and all other contractors who also tendered for the second

contract. Counsel for the plaintiff, the goverenment of the State of Selangor, objected

the application... on the grond of privilege under Section 126(1) of the Evidence

Ordinance. I come to the conclusion that the file in question is not by its nature

privileged under Section 126(1) of the Ordinance, and i also find it is most relevant to

the defence. ....on the question of privilege, I do not think that the file in question by its

very nature comes within the ambit of the provision of Section 126(1) evidence

Ordinance. ....in this case, the file relating to the tender documents of all th eother

contractors who together with Messers Soon Tat & Co tendered for the second

contract is not, in my view, confidential communication between solicitor and client.

There is no evidence to support that it contains documents which the plaintiff has

23 [1968] 2 AC 910.24 Rafiah Salim, Evidence in Malaysia& Singapore, Cases, Materials & Commentary, 2nd Edition( 1994) , Butterworths, Malaysia. Pg 180.25 [1972] 1 MLJ 102.

Page | 17

EVIDENCE II

WITNESS


submitted to its solicitor cofidentially or with which the solicitor has become

acquinted in the course and for the purpose of his professional employment...therefore,

from the circumstances of this case,and from the nature of the documents, the claim

for privilege cannot be sustained.”

There are two approaches in deciding if the document relates to affairs of state.

First approaches are to look at the nature of the document. In B.A Rao v Sapuran

Kaur26, Mohd Zahir J appeared to given more consideration to nature of the

document in deciding whether it related of affairs. He said ‘from the affidavit of the

Deputy Secretary, General Minister of health, after applying the principles of law as I

understand them to be. They do not fall into the class of documents for example police

information, or military secrets or concerning diplomatic relations.

The second approach is that the courts will look at the nature of the documents as well

as the effect of disclosure, that is would the disclosure be injurious to the public. If

yes, then it relates to affairs of state and if not, then it does not relate to affairs of the

state.

This approach can be state is not defined in the Evidence Act because each ease has to be

decided in its own merits. The primary consideration is whether disclosure would be injurious

to the public interest. Obvious examples where it is against the public interest to discose are

Cabinet papers and matters relating to national security or diplomatic relations with foreign

countries. On the facts of the case, the court said that a dispute between employer and

employee arising out of a contract of service could hardly be said to be an affairs of state

within the meaning of Section 123 of the Evidence Act. Merely because the minister

exercised functions under the industrial Relations Act does not make the matter.

26 [1978] 2 MLJ 146

Page | 18

EVIDENCE II

WITNESS


How to Reconcile S122 and S162(2)?

There are three possible position:

o First Position

Absolute prohibition on the inspection of the document and the taking of other evidence.

This was the view taken by Kapur J in his dissenting judgment in State of Punjab v

Sodhi Sukhdev Singh27. The court is debarred from overruling the discretion of the head

of Department.

o Second Position

No inspection of the document is permitted, but the taking of other evidence is permitted.

(Circumstantial evidence) this was the view taken by the majority in State of Punjab v

Sodhi Sukhdev Singh28 and was also the approach taken by Mohd Zahir J in B. A.Rao v

Sapuran Kaur29. He said it is for the court to decide whether a document relatives to

affairs of state or not and if it did, then the heard of department must decide on the risk of

disclosure.

o Third Position

Inspection of the document is permitted. Two Indian Supreme court have taken this

approach.

In Amar Chand Butial v Union of India and others and State of Uttar Pradesh v Raj

Narain30, it were ruled that that the courts can inspect the documents and decide if it relates to

affairs of state or not. The court can examine the documents and can override the

27 AIR 1961 SC 49328 AIR 1961 SC 49329 [1978] 2 MLJ 14630 AIR 1975 SC 865

Page | 19

EVIDENCE II

WITNESS


Departmental Head concerned if it concludes that the disclosure would not be harmful to the

public. This indirectly overrules Sodhi Sukhdev Singh.

In the case of Gurbachan Singh v Public Prosecutor, the appellant convicted on a charge

under S4 (a) of the Prevention of corruption Act 1961. During appeal, the appellant sought to

introduce further evidence for the admission of a police inquiry paper. A certificate had been

issued by the Minister of Home Affairs objection to the production of the file. It was held that

where the Minister claims privilege over a class of documents, the courts can inspect the

document to ascertain whether the production is injurious to public on the facts court held

contents of file not affairs of state.

B.A. Rao v Sapuran Kaur31, it was held that:

“In this country, objection as to production as well as admissibility contemplated in

sections 123 and 162 of the Evidence Act is decided by the court in an inquiry of all

available evidence. This is because the court understands better than all others the

process of balancing competing considerations. It has the power to call for the

documents, examine them, and determine for itself the validity of the claim Unless the

court is satisfied that there exists a valid basis for assertion of the privilege the

evidence must be produced. This strikes a legitimate balance between the public and

private interest. Where there is a danger that disclosure will divulge, say, state secrets

in military or international affairs or Cabinet documents, or departmental policy

documents, private interest must give way.”

It is therefore for the court and not for the executive ultimately to determine that there is a real

basis for the claim that 'affairs of the state is involved', before it permits non-disclosure.

31 [1978] 2 MLJ 146

Page | 20

EVIDENCE II

WITNESS


Furthermore, in Takong Tabari v Govt of state of Sarawak32, it is held that it is not correct

to say that once the document is certified as an official secret it is completely excluded from

being disclosed in court. Court is entitle to invoke Section 162(2) of the Act.

4) Official Communications (Section 124 of the Act)

“No public officer shall be compelled to disclose communications made to him in

official confidence when he considers that the public interest would suffer by the

disclosure: Provided that the court may require the head of the department of the

officer to certify in writing whether or not such disclosure would be detrimental to the

public interest and, if the head of the department certifies that such disclosure would

not be prejudicial to the public interest, then the officer shall disclose the

communications.”

Under this section a public officer cannot be compelled to disclose communications made to

him in confidence if he considers that public interest would suffer by the disclosure. This

section is designed to prevent the knowledge of official papers that is to say papers in official

custody, beyond that circle which would obtain knowledge of them in confidence whether the

confidence was express or implied. A public officer is someone with public duties, who

receives communications, which if disclosed, would injure public interest. The court has to

decide whether the communication was made to an officer in official confidence33. The officer

concerned can claim privilege if the court holds that a particular communication was made in

official confidence. The final decision of both the departmental head as well as the presiding

judge will be goverened by only one consideration, whether the disclosure would result in any

injury being caused to the public interest. The right to claim this privilege is availble only to

public servants.

32 [1995] 1CLJ 40333 Hamid Ibrahim, Maimoonah Hamid, Law of Evidence, 1993, Central Law Book Corporation Sdn Bhd, Kuala Lumpur, Pg 484.

Page | 21

EVIDENCE II

WITNESS


But even though there is a protection, but misuse of this section will not be problem due to the

reason that the resistance to disclose by public officer needs the clarification and certification

by the head of department of the officer that the disclosure of any information by his

subordinate will pose threat to public interest. If the certification not being given, then the

officer is obliged to disclose the communication. Thus the withholding of this communication

will not consider as the breach of natural justice. It can be clearly seen in the case of Mak Sik

Kwong v Minister of Home Affairs34 which the Abdoolcader J (as he then was) laid down

the principle that the section 123,124 and 162 of Evidence act provide protection from

disclosure of any unpublished official records relating to affairs of State… confidential

official communications that the disclosure of which would be detrimental or prejudicial to

the public interest. This section must be read with section 162 of Evidence Act together.

When a document is summoned the officer concerned must bring it to the court. It is for the

court to decide as to whether the document is privilege. In order to decide the question the

court may hold an inquiry and inspect the document.

In Re Neo Guan Chye35, The beneficiaries of an estate wanted to examine the affidavit filed

by an executor or administrator for the Commission of Estate Duties. This was a quasi-

confidential document and there was no law which gave a beneficiary a right to inspect it. The

solicitor-general introduced an affidavit by the Treasurer to the effect that the information was

made to him in official confidence and that the public interests would suffer by disclosure.

Terrel J rejected the argument that the affidavit was a document made in official confidence

within the meaning of Section 124 of the said Act.

Thus the position seems to be that once the judge decides that the communication was made

to the public officer in ‘official confidence’, he must accept the decision of the latter

regarding the issue of whether disclosure would endanger the public interest.the only way to

34 (No2) [1975] 2 MLJ 175 (HC)35 [1935] 4 MLJ 271.

Page | 22

EVIDENCE II

WITNESS


challenge the public officer’s assesment is probably to claim that he is mala fide or has made

a capricious decision.

For Section 124 of the Act can be apply, the information must be communicated in official

confidence.In the case of Re Loh Kah Kheng (deceased)36, Mohd Dzaiddin J of the

Malaysian High Court considered the conditios which must be satisfied before privilege can

be claimed under Section 124 of the Act, in relation to information received on the murder of

the deceased. His lordship said:

“ First, on the magistrate’s ruling that the written information in the custody of DSP

Eric Foong be not disclosed, I am of the opinion that although she was right in her

decision, she had however acted prematurely in arriving at the decision because she

failed to consider the provision of Section 124 and Section 162 of the Act. The

commentary in Sarkar’s Law of Evidence, p 1230 says that the occasion for claiming

privilege under Section 124 of the Act arises only when the evidence sought to be

given is a communication made to public officer in official confidence. This is the

condition precedent before privileged can be claimed. ...In the result, I am compelled

to overrule her first ruling and direct her to record further evidence in order to comply

with Section 124 of the Evidence Act 1950 before making any ruling for the non-

disclosure of the written information.”

36 [1990] 2 MLJ 126.

Page | 23

EVIDENCE II

WITNESS


Another case that I would like to refer is the case of Huzir bin Hassan v Ketua Polis Johor

Bahru37, it was defined as uncautioned statement is not document within the meaning of

official confidence. Basically, the definition of official confidence is on the discretionary of

the court after examine the evidence and other document before came with the conclusion.

5) Information (Informers) as to commission of offence (Section 125 of the Act)

“ No session Court Judge, magistrate or police officer shall be compelled to say

where he got any information as to the commission of any offence, and no revenue

officer shall be compelled to say whence he got any information as to the commission

of any offence against the public revenue or the exercise laws.”

Explanation-“revenue officer” in this section means any officer employed in or about

the business of any branch of the public revenue.”

This section deals with the receipt of information concerning the commission of offences. It

protects only Magistrates, police officer and revenue officers. It has been held that statements

made in the course of police investigations are absolutely privileged. Basically, in a simpler

way, this section is based on a policy which precludes magistrates, Police officers or

presidents of session courts from being compelled to give eevidence as to sources of

information.

It basically deals with the protection of informer and is based upon public policy. It provides

that judicial, police or revenue officer need to disclose the information that he received as to

the commission of an offence. But this privilege also cover the identity of the informer but not

37 [1994] 2 MLJ 385

Page | 24

EVIDENCE II

WITNESS


to the content of his statement. For example, if someone act as informant for some offence, he

didn’t need to present to the court to testify but the evidence that he/she gave can be admitted.

If the defence counsel need the information of his statement for defence purpose, the

prosecution has no power to stop from getting the particular statement

In the Indian case of PP v Govindaraja38, it was held that information regarding the person

whose account books are seized in the course of investigation, can be given. The only

prohibition is in relation to the source from whom the Magistrate or the police officer or the

President of the Session court obtained the information in relation to the commission of the

offence.

6) Professional communications (Section 126 of the Act)

“(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 purpose

of his employment as such advocate by or on behalf of his client, or to state the

contents or condition of any document with which he has become acquainted in the

course and for the purpose of his professional employment, or to disclose any advice

given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such

showing that any crime or fraud has been committed since the commencement of his

employment.”

(2) It is immaterial whether the attention of the advocate was or was not directed to

the fact by or on behalf of his client.

38 AIR 1954 Mad 1023

Page | 25

EVIDENCE II

WITNESS


Explanation—The obligation stated in this section continues after the employment has

ceased.

The word privilege, it does sound synonym, but what is clearly the definition under this

particular section? The meaning of this word is clearly illustrated in the high profile case of

PP v Dato’ Seri Anwar bin Ibrahim(No.3)39, Augustine Paul ( as he then was) explained

the rule of privilege. He explained that this rule is made for protection for the client but not

advocate because the role of advocate in our society is very important no matter business or

daily life. Thus, concealment of the information due to the communication must be made

which to guarantee the right of their client.40 But it is not all the communication that made by

the client is included into this privilege. The privilege also extends to the acts done by the

client which being observed by the advocate.41. Eusoff Chin J (as he then was) in the case of

Dato Au Ba Chi& Ors v Koh Keng Kheng &Ors42 explained that the privilege covers the

both solicitor or barrister. For solicitor, even they are being called as witnesses, other

document such a will, deed, other papers and etc made by him and the clients is protected

under this section. This protection still prevail even though there are third party exist at that

time the communication being delivered. In the case of Bullock v Corry43, the court laid

down that the principle of that a communication is privileged is always privileged. This

principle also taken into consideration in the case of See Teow Chuan v Dato Anthony See

Teow44 which the judge reiterated the same principles. In the same case, the court explained

that document that already in the possession of defendant is not entitled to have this kind of

protection.

Commuication in furtherance of illegal purpose.

39 [1999] 2 MLJ 1, 17940 Refer to the case of Jones v Great Central Railway Company [1910] ac 4; Lyell v Kennedy (No2)(1883) 9 App Cas 81; Wheeler v Le Merchant (1881) 17 Ch D675. 41 See Robson v Kemp 5 Esp 5242 [1989] 3 MLJ 445,44743 [1878] 3 QBD 35644 [1999] 4 MLJ 42

Page | 26

EVIDENCE II

WITNESS


The meaning of the above requirements can be seen in a very famous case of Re The

Detention of Leonard Teoh Hooi Leong45, a solicitor cannot be compelled to disclose

legitimate communications passing directly between him and his client. But this privilege will

dropped if the communications made in furtherance of fraud or criminal act. In this case,

Leonard Teoh was taken as prima suspect and remand is given by the court towards him

because he refused enclosed the whereabout of Nor’aishah. In this case the police suspect

there were a kidnapping case of Nor’aishah happens but Leonard as her advocate which the

police suspects that he knew her whereabout. Even though the applicant try to seek for the

privilege of section126 of Evidence Act, but the court refuse because it is involved a criminal

investigation.The privilege also extends to the thing that lodged with legal adviser for the

purpose of obtaining immunity from production. It is clearly laid clearly explained in the case

of AG Hong Kong v Lorrain Esme Osman46 which the court refuse to accept the

explanation by the lawyers that it is under privilege given by section 126 of Evidence Act.

This privileged is in relation to the legal profession and it stated that 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 purpose of his employment as such advocate by or on

behalf of his client, or to state the contents or condition of any document with which he has

become acquainted in the course and for the purpose of his professional employment, or to

disclose any evidence given by him to his client in the course and for the purpose of such

employment.

Communication made to a legal adviser by a client in the course of the employment of the

legal adviser is considered professional and therefore privileged. This privileged also applies

to contents or conditions of any document which the legal adviser has become acquantinted

with in the course of giving advise to the client. Such privileged communication cannot be

disclosed by the legal adviser. The basis of this presumption is that a person would not

willingly disclose all relevant information to his lawyer if such person was not certain that

45 [1998] 1 MLJ 75746 [1993] 2 MLJ 347, 352

Page | 27

EVIDENCE II

WITNESS


such communication would be privileged. This rule of privilege is made in the interests of

justice to enable a lawyer to fully prepare his or her client’s case.

By referring to the case of Yeo Ah Tee v Lee Chuan Meow47, that a statement made by a

client to an officer of the Legal Aid Bureau, acting as his solicitor, is privileged. Buttrose J

held that:

“ this was an action for damages for personal injuries suffered by the plaintiff

and alleged to have been caused by the negligence of the defendant in the

driving of a motor vehicle. In dismissing the plaintiff’s claim, the learned trial

judge said that he accepted the evidence of the defendant and found that he

was not negligent in any way.

The substantial point taken on the appeal was the wrongful admission of what

was describe as a statement alleged to have been made by the plaintiff to an

officer of the legal aid bureau, who was at that time acting as his solicitor, and

also of the evidence of two of its officers in connection therewith in that they

were privileged communications...

On the face of the evidence, I am able to construe it as an express waiver by

the plaintiff’s of the privilege and indeed, in my view, it falls short that express

consent of the client which is required before any such disclosure can be made.

His counsel objected strongly to the evidence and claimed privilege

throughout. I must confess I am unable to see how the plaintiff could be said to

expressly consent to the production of a statement which he insists he never

made. I have the misfortune to disagree with the learned judge and I have come

to the conclusion that the plaintiff did not expressly waive privilege, therefore it

was improper for the trial judge to have compelled the plaintiff to disclose the

communication which took place between him and the Legal Aid Bureau”

47 [1962] MLJ 413

Page | 28

EVIDENCE II

WITNESS


In the case of PP v Haji Kassim48, Ong CJ stated that the only relevant provision in our

Evidence Ordinance excuding professional confidences is in section 126, which states that no

advocate and solicitor shall at any time be permitted, unless with his client’s express consent,

to disclose any communication made to him and in the course of his employment as such.

This rule is founded on the principle that the conduct of legal business without professional

assistance is impossible and on the necessity, in order to render such assistance effectual, of

securing full and unreserved intercourse between the two. This privilege does not protect

professional disclosure made to clergymen or doctors.49 In this case, means, the privilege does

not protect professional disclosures made to clergymen or doctors.

The explanation to the section provides that the obligation stated in section 126 continues

even after the employment has ceases. Before the privilege applies, there must be an existence

of a professional relationship as held in Chua Su Yin v Ng Sung Yee50.

In the case of Tan Thian Wah v Tan Tiak Tok51 this privilege only applies to the

communications between a solicitor and his client and such communications remain

privileged even after the death of the client. The court held that issues pertaining to a copy of

a will fell within section 126 of the EA and that the privilege had not been terminated by the

death of the testator52.

Further, ‘Document’ within this context does not embrace all documents with which the

advocate and solicitor has become familiar with in the course of his business. It was stated

that only documents that come into existence for the purpose of litigation are privileged.

48 [1971] 2 MLJ 11549 Mariette Peters, (2002), MLJ CLP Series EVIDENCE, Malayan Law Journal, Kuala Lumpur; pg 21550 [1991] 2 MLJ 34851 [1998] 5 MLJ 80152 Mariette Peters, (2002), MLJ CLP Series EVIDENCE, Malayan Law Journal, Kuala Lumpur; pg 215

Page | 29

EVIDENCE II

WITNESS


In the case of Government of the State of Selangor v Central Lorry Services &

Constructions Ltd53, the issue was whether the contract and tender documents fell within the

scope of section 126 of the Evidence Act. Mohamed Azmi J explained that54 further, in the

case of Chadlick v Bowman, it was held that documentary information from third persons not

called into existence by the solicitor, though obtained by him for purposes of litigation, is not

privileged. Similarly in this case, the document concern tenders by third parties (the

contractors) with the State Drainage and Irrigation Engineer….As stated by Jessel MR in

Wheeler v Le Marchant55:

‘In the first place, the principle protecting confidential communications is of a very

limited character. It does not protect all confidential communications which a man

must necessarily make in order to obtain advice, even when needed for the

protection of his life, or of his honour, or of his fortune. There are many

communications which, though absolutely necessary because without them the

ordinary businesses of life cannot be carried on, still are not privileged….Therefore

it must not be supposed that there is any principle which says that every confidential

communication which it is necessary to make in order to carry on the ordinary

business of life is protected. The protection is of very limited character, and in this

country is restricted to the obtaining the assistance of lawyers, as regards the

conduct of litigation or the rights to property. It has never gone beyond the

obtaining of legal advice and assistance, and all things reasonably necessary in the

shape of communication to the legal advisers are protected from production of

discovery in order that the legal advice may be obtained safely and sufficiently.”56

It was stated in the case of Syarikat Chin Seng Supermarket v United Continential

Insurance Sdn Bhd57, an adjuster’s report obtained by the defendant was held not to be within

53 [1972] 1 MLJ 10254 The learned Judge in this case made reference to the principle of English cases55 (1881) 17 Ch D 67556 Mariette Peters, (2002), MLJ CLP Series EVIDENCE, Malayan Law Journal, Kuala Lumpur; pg 21657 [1997] 5 MLJ 121

Page | 30

EVIDENCE II

WITNESS


the scope of the legal professional privilege as it was prepared even before litigation was

contemplated. The case of Government of the State of Selangor v Central Lorry Services

& Constructions Ltd was referred to by Nik Hashim JC:

“..I come to the conclusion that the adjuster’s report is outside the scope of the

privilege of solicitor and client relationship. It is not a secret document either. There

is no evidence of confidential relationship established between the adjuster and the

defendant in this case…. The report was prepared and undertaken by a recognized

professional adjuster licensed under the Insurance Act 1963 well before litigation was

even contemplated. It was drawn up on the clear instruction of the defendant, which

was an insurance company, to ascertain the flood loss. The fact that the report, if

produced and tendered as an exhibit, would prejudice the defence, in my view, is

irrelevant and speculative for the purpose of discovery and production. The weight of

the evidence of the report if any is a matter for the court to decide at the trial. The

question of prejudice therefore does not arise. The documents to be produced are not

confined to those which would be evidence whether to prove or to disprove any matter

in question in the action….Indeed the defendant, being the insurance company, is

bound by the settled principe of uberimae fidei. It is the duty of the insurance company

to exercise utmost good faith and fair dealing in the transaction with the insured

plaintiff. Objection to the production of the adjuster’s report containing valuable

independent records regarding the flood loss to the stock-in-trade which happened 16

years ago surely is not, to my mind, a right reflection of the principle being practiced

by the defendant. The objection destroys the principle of uberimae fidei. That being so,

I hold that the adjuster’s report is not privileged under section 12691) of the EA and I

overrule the objection. I also find that the report is relevant and vital for disposing

fairly of the plaintiff’s claim.”58

58 Mariette Peters, (2002), MLJ CLP Series EVIDENCE, Malayan Law Journal, Kuala Lumpur; pg 217

Page | 31

EVIDENCE II

WITNESS


7) The interpreter also have the privilege as Section 126 Of the Act (Section 127 of the Act)

“Section 126 shall apply to interpreters and the clerks or servants of advocates.”

There are 2 limb under this section:

(a) Position of a solicitor consulted by another solicitor on behalf of his client.

This limb is well discussed in the case of PP v Dato’ Seri Anwar bin Ibrahim (No 3)59

which the issue is regarding the lawyers for Azizan had invited another lawyers who is Mohd

Faiz in assisting him under the basis of mutual offers of further assistance in the affairs of

their respective clients. It is eventually made Mohd Faiz as the servant of another advocates as

mentioned in section 127 of Evidence Act. Under Sarkar on Evidence (15TH Ed) Vol II says at

page 2046 said that it is totally impossible that a lawyer can fully in charge everthing that in

his hands, thus employment if clerk and agents is vital. Thus the privilege of no disclosure of

information also attachs towards them and it extends to all the necessary organs by which

such communications are effected.

(b) Communications with third parties by solicitor.

59 [1999]2 MLJ 1

Page | 32

EVIDENCE II

WITNESS


This limb can be illustrated in the case of Cheong Heng Loong Goldsmiths Sdn Bhd60

which the plaintiff in order to prove its claim relied on a report prepared by an adjuster on the

instructions of the solicitors for the defendant. The defendant objected it because they claimed

it under the privilege under section 127 of Evidence Act. But the judge in this case opinioned

differently that it is not an instruction from the defendants to their solicitors. It is merely a

report contains of evidence which are necessary to prove robbery. This report was ordered by

defendant and it contains details of investigation of alleged offence. Due to the reason that the

information from investigation report was necessary in determine the commission of the

robbery and the duty of defendant to determine on whether they need to pay the insurance

compensation to the plaintiff.

8) Confidential communications with legal advisors (Section 29 of the Act)

“No one shall be compelled to disclose to the court any confidential communication

which has taken place between him and his legal professional adviser unless he offers

himself as a witness, in which case he may be compelled to disclose any such

communications as may appear to the court necessary to be known in order to explain

any evidence which he has given, but no others.”

Under this section, it provides that no one shall compelled to disclose any communication

between the client and his solicitor to the court. But however the privilege will be waived if

the client himself offer as a witness then he has the obligation any such communication in

support of evidence which he has given. This exception is clearly stated in the section 129 of

Evidence Act

60 [1997] 5 MLJ 191

Page | 33

EVIDENCE II

WITNESS


No one shall be compelled to disclose to the court any confidential communication which has

taken place between him and his legal professional adviser unless he offers himself as a

witness, in which case he may be compelled to disclose any such communications as may

appear to the court necessary to be known in order to explain any evidence which he has

given, but no others.

Under this section, it provides that no one shall compelled to disclose any communication

between the client and his solicitor to the court. But however the privilege will be waived if

the client himself offer as a witness then he has the obligation any such communication in

support of evidence which he has given.

9) Doctrine of self incrimination (Section 132 of the Act)

(1) A witness shall not be excused from answering any question as to any matter

relevant to the matter in issue in any suit, or in any civil or criminal proceeding, upon

the ground that the answer to that question will criminate or may tend directly or

indirectly to criminate, him, or that it will expose, or tend directly or indirectly to

expose, the witness to a penalty or forfeiture of any kind, or that it will establish or

tend to establish that he owes a debt or is otherwise subject to a civil suit at the

instance of the Government of Malaysia or of any State or of any other person.

(2) No answer which a witness shall be compelled by the court to give shall subject

him to any arrest or prosecution, or be proved against him in any criminal

proceeding, except a prosecution for giving false evidence by that answer.

(3) Before compelling a witness to answer a question the answer to which will

criminate or may tend directly or indirectly to criminate him the court shall explain to

the witness the purport of subsection (2).

Page | 34

EVIDENCE II

WITNESS


Even though section 132 (1) of Evidence Act states that the witnesses is compelled to

answer any question even though directly or indirectly incriminate if falls within the

categories that spelled out in the subsection (1) of section 132. But due to the withdrawal

of common law right to refuse to answer self incriminating questions is qualified by

subsection(2) of the section. Under this subsection, it say that the witness not compel to

answer any question if it will made him to get arrested or in the criminal suit which made

him to convict him except the prosecution for giving false evidence by the answer given

by the witness. Under subsection (3) states very clearly that the judge is obliged to explain

the subsection (2) before compelling him to answer the incriminating question.

The distinction between section 132 and the privilege of criminal incrimination was

clearly discussed in the case of Chye Ah San v R61 which the court explained that section

132 of Evidence Ordinance in England is different from England which a witness in this

said land is bound to answer all questions even though it is directly or indirectly

incriminate him. But if he does answer all the question then no proceedings taken against

him based upon his answers except proceedings for perjury.

Before the coming of the Evidence Act, the position in Malaya is same like India or

Commonwealth countries. But after the existence of this act, the privilege is gone as what

explained in the case of Television Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd62

which Spenser Wilkinson J view the absence of privilege in this soil land is erroneous. He

further commented therea re no loner any question of enforcing or invoking the privilege.

The decision of this case was received in the case of AG of Hong Kong v Zauyah Wan

Chik which Gopal Sri Ram j (as he then was) that the section 132(1) had taken away the

privilege of common law for not answering the incriminating question.

61 [1954] MLJ 21762 [1983] 2 MLJ 346

Page | 35

EVIDENCE II

WITNESS


The judge further commented that if it appears to the learned judge that the answer to any

particular question may result in one or more consequence described in Section 132(1) of

the Act. Then the judge must exercise the duty stated in subsection 3 of the same section

which warning the witness regarding the condition of subsection (2). But it is important to

be noted that the protection given by subsection (2) only provided for criminal

proceedings, thus it is not applicable on civil proceedings at all. Basically it means that if

the defendant is sued under civil case, and incriminate question being asked, if he/she can

be arrested or sue for committing the offence.

Witness that mentioned under section 132 of the EA is included all types of witness, thus

it is advisable to refer the case of PMK Rajah v Worldwide Commodities Sdn Bhd &

Ors63 which witness is referring the person who testifies on oath or affirmation in a court

of law or a judicial tribunal. Due to the reason that he made an oath, thus he going to be

examine, cross examination and re-examination by the advocates of both parties. If the

person who merely produces a document in court is not a witness and he may not be cross

examined unless he is called as witness. Under the same case, the judges further explained

that the protection of immunity given under subsection (2) is not applicable towards

public examination of a debtor or towards anyone which is being served with Anton Piller

for the discovery of the document.

63 [1985] 1 MLJ 86

Page | 36

EVIDENCE II

WITNESS


Conclusion

A conclusion that we may derive from what the law had given and stated, a witness may be

compelled by the court as long as he or she is qualified to be a witness. However, that is the

general rule, and there were always exception to the general rule, and the exceptions are stated

and described above. Although the court may have the right to compelled a witness, but if he

or she is categorized under the exception, then the court have no right to compelled the

witness. Thus, my answer to the question is that, a witness is not necessary to answer all

question that have been put on them before the court.

It is kind weird that Malaysia has another draconian law which force the witness to answer all

the question even though the question is going to incriminate them. It is totally out from the

rule of the common law which no one compelled to answer incriminating question. Even

though that there are a lot exception which the privilege of withhold the evidence permitted

under the evidence act. Thus, it is kind of a helpline for dealing with the draconian law.

But from my observation, the evidence act was found to be providing more assistance to the

prosecution party compared to the defense counsel. The first example is the incriminating

question can be asked towards the witness. Another example is the decision is laid on the head

of the department of the officer on whether to approve the disclosure of the official

communications to the court. Even though the definition official confidence will being

decided by the court. Nevertheless, the final power still belongs to the head of the government

servant in giving permission or not.

Page | 37

EVIDENCE II

WITNESS


As conclusion, according to law, a witness was defined as one who is called on to testify

before a court. A witness was the one who is called on to be present at a transaction in order

to attest to what takes place. Witness also the one who signs one's name to a document for the

purpose of attesting to its authenticity, a witness also known as a person who comes to court

and swear under oath to give truthful evidence. They the ones who, being sworn or affirmed,

according to law, deposes as to his knowledge of facts in issue between the parties in a cause,

before a witness can testify in court, he or she must be competent to testify. A competent

witness is someone who can give evidence in court. Therefore when the witness is a

competent, he is also a compellable witness.

Page | 38

a witness who is competent is comp ell able

Documents