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WITNESSCompetency & Compellability Section 118 of Evidence Act deals with competency of witnesses. It explains persons who are competent to testify as witnesses in courts.  The general rule which is provided by S of EA is that all persons are competent to become witnesses except those: (1) who...

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WITNESS Competency & Compellability 

Section 118 of Evidence Act deals with competency of witnesses. It explains persons who are competent to testify as witnesses in courts.

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The general rule which is provided by S.118 of EA is that all persons are competent to become witnesses except those: (1) who are unable of understanding questions put to them; (2) who are unable giving rational answers to those questions due to: 1. Tender age (Please refer S.133A of EA) 2. Extreme old age 3. Disease, whether of body or mind 4. Any other cause of the same kind

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However, please note that Explanation to S.118 which states that: Explanation – A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them

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In deciding whether or not a person is a competent to testify as a witness, a court should conduct an assessment on the witness guided by the person’s intellectual capacity as the sole test of competence.

Sidek bin Ludan v Public Prosecutor [1995] 3 MLJ 178 

In determining the question of competency, the court acting under S.118 of the Act, is entitled to test the capacity of a witness by putting proper questions. The court has to ascertain the intellectual capacity and understanding of the witness (child witness included) to give a rational account of what he has seen or heard or done on a particular occasion. o If a court believes that the witness is competent to testify, the court then needs to determine whether the witness can give testimony under oath or be affirmed or just warned to speak the truth

Kee Lik Tian v PP [1984] 1 MLJ 306 

To determine this, question the learned President would have had to be satisfied that the witness had a sufficient appreciation of the seriousness of the occasion and a

realization that taking the oath involves something more than the duty to tell the truth in ordinary day to day life: R v Hayes [1977] 1 WLR 234; R v Campbell [1983] Crim LR 174 – if not satisfied, then, the learned President should not have allowed the witness to give evidence on oath or affirmation but should, in the words of Section 8 of the Oaths and Affirmations Act, 1949, have cautioned her to speak the truth, the whole truth and nothing but the truth. o If a court found that a person is not competent to be a witness, the person should be rejected as a witness (Kee Lik Tian v PP [1984] 1 MLJ 306 & Chai Kor Pee v PP [1965] 2 MLJ 208) Duty of Competent Witnesses Ghouse bin Haji Kader Mustan v Rex [1946] 1 MLJ 36 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 a “compellable witness.” The words “compellable” when used in Evidence Ordinance relate not so much to a witness as to a type of evidence; and in my opinion a witness may be compelled to give any relevant evidence unless a section enacts that he shall not be compelled to give it. Such sections are 122-127 and 130 Syed Abdul Aziz & Anor v Public Prosecutor [1993] 3 SLR 534 Jumaat gave evidence for the prosecution in the trial against Aziz and Juffri. It was evident from the opening address of the prosecuting DPP that the prosecution was relying heavily on Jumaat’s testimony to prove their case against Aziz and Juffri. In the event, when Jumaat was in the witness box, after confirming that he knew Aziz and Juffri, Jumaat told the court that he did not want to testify. It was only after the learned trial judges had warned him that he would be punished for being in contempt of court if he did not testify that Jumaat agreed to do so. ***See also ss. 114(h) & 148(2) of EA which provide an inference can be made from a competent witness who refused to answer questions. In addition, S.132 of EA indicates that the obligation of a witness to answer questions even though it will incriminate him or her. Certain Categories of Witnesses

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The fact that a witness is a close relative to a party in a proceeding does not mean that the evidence is tainted so long that it is reliable and does not show biasness.

Liow Siow Long v Public Prosecutor [1970] 1 MLJ 40 Testimony of close relations is not tainted if it is otherwise reliable in the sense that the witnesses are competent witnesses who were at the scene of the occurrence and could have seen what had happened. But if it proved that they are not entirely disinterested witnesses, e.g., they are either partisans of the complainant or are in any way inimical to the accused, then their testimony is tainted and requires corroboration if to be acted upon. 

It is important to note that testimony of an interested witness can also be accepted unless it is proven that it cannot be believed.

Balasingham v Public Prosecutor [1959] 1 MLJ 193 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. 

In the case of Mohamed Nor v PP [1939] 1 MLJ 305, the Magistrate in the case has refused to accept the evidence by a witness because the witness had remained in court despite the fact he was told to leave. However, the High Court during appeal held that this circumstance is not a ground to refuse the testimony given by the witness although it may reduce the weight to be attached to the given testimony.

Section 119: 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.

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This section indicates that a witness who is unable to speak is also regarded as a competent witness under the law. The witness can give testimony through other means such as using writing or signs made in open court

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The use of interpreter may be needed for the purpose of giving the testimony under this section (Yomeishu Seizo Co Ltd & Ors v Sinma Medical Products (M) Sdn Bhd [1996] 3 AMR 3058)

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However, what would be the effect if there is still difficulty to understand the testimony given by the witness despite the fact an interpreter has been used in that process?

Chai Kor v Public Prosecutor [1965] 2 MLJ 208 Now that witness’ evidence is for very different reasons, even more extraordinary that that of Krishnasamy. For he was a deaf-mute. It is clear from the record that the person who was ultimately engaged as an interpreter had difficulty in communicating with him and possibly, the record indicates, incorrectly interpreted his answers. For, at one stage he was interpreting the witness’ evidence as saying that he (the witness) had been stabbed by the appellant, and later it was necessary for the witness to correct that. More important still, when it came to cross-examining this witness, the interpreter had to say that some of the questions which it was desired to put, just could not be put on to him. … The circumstances concerning the deaf-mute demanded, as strongly as could be demanded, that the judge should warn the jury in the strongest terms to consider whether they should, or should not, accept his evidence. Strictly speaking, the question had to be left to the jury. It was a question of fact for them. But, speaking for myself, I feel that this is a case where the judge would be justified in putting to the jury that they could not safely accept his evidence. Section 120: Parties to civil suits and wives and husbands 

Subsection 120(1) EA provides that parties and their spouses are competent witnesses in civil proceedings

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Subsection 120(2) EA provides that the spouse of an accused person in a criminal proceeding shall be a competent witness. Therefore, a husband and or wife is competent to testify as a witness against his or her spouse but subject to exceptions mentioned in ss 122 to 127 and 130 of EA.

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In the case of Ghouse bin Haji Kader Mustan v Rex [1946] 1 MLJ 36, the wife of the appellant is the only material witness in the case. The appellant’s counsel argued

that the wife could not be compelled to give evidence against him, but the trial judge did compel her. It was held: The District Judge was fully within his rights in compelling the wife to give evidence, as her evidence did not fall under any section which enacts that she shall not be compelled to give such evidence.

Public Prosecutor v Abdul Majid [1994] 3 MLJ 457 I find that the said magistrate has erred in adopting the ruling in Hoskyn’s case as law for this country. I therefore order the learned magistrate to proceed with the enquiry and to record the evidence of Syarifah, and if she is unwilling to testify, to compel her to do so. However, in the course of her testimony, if there had been any communication by the accused to her, such communication cannot be compelled to be disclosed by her unless the consent of the accused is obtained as provided for under S.122 of the EA. 

Subsection 120(3) EA provides that an accused is a competent witness to give evidence in his or her behalf. However, the accused is not compellable to do so. In other words, nobody can compel the accused to testify as a witness during a trial. This is in pursuant to the “Right to Remain Silent” which is guaranteed to the accused in a criminal proceeding. This right is based on the common law and also recognized in Malaysia via S.173(ha)(iii) of the Criminal Procedure Code

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However, if an accused is acquitted, for example, at the end of prosecution case, he or she is no longer an accused and therefore is a competent witness and can be compelled to give evidence (e.g., witness for prosecution). A similar rule applies when the person is convicted. The convicted person is competent to give evidence for the prosecution (e.g., co-accused who pleaded guilty. He is competent to give evidence for the prosecution against the other accused who did not plead guilty) (See Ahmad Din & Ors v PP [1962] 1 MLJ 94 & Sebastian v Public Prosecutor [1970] 2 MLJ 76)

Privilege 

Sections 121 to 132 of EA deal with privilege of certain categories of witness. The effect if evidence falls under one of these sections is that such persons cannot be

compelled to testify as witness or produce any evidence in courts which are protected under the rule of privilege. Section 121: Judges, Sessions Court Judges and Magistrates 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 

This section indicates that a High Court Judge and subordinate court judges cannot be compelled to ask questions with regard to his or her own conduct when presiding a case unless there is a special order made by a High Court.

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However, they can be examined on matters which occurred in his or her presence when presiding as a trial judge. The illustrations further help to understand the scope and application of S.121 of EA.

ILLUSTRATIONS a. 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. b. 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. c. 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.

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This protection is given based on the principle of convenience and public policy

Pavone v Public Prosecutor [1986] 1 MLJ 72 …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 Magistrates or Presidents are withdrawn from their own Courts to answer questions as to their own conduct at trials at which they have presided. It follows that it is only in altogether exceptional

circumstances 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. Section 122: Communications during marriage 

This section deals with marital privilege. If we read the section, it can be seen that it contains two parts: 1) The first part explains about the general rule where 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 2) The second part of this section provides exceptions to the general rule in above: i.

Communication during marriage may be disclosed if the person who made it or his representative in interest consents

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Communication during marriage can be disclosed in civil suits between married persons (e.g., during divorce petition)

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Communication during marriage can be disclosed if one married person is prosecuted for any crime committed against the other (e.g., if a husband is charged for causing hurt to his wife)

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It is important to note that the protected communication refers to “communication made during marriage”. This protection remains even after a husband and a wife are no longer in a marriage relationship.

Ibrahim bin Awang Mat v Ibrahim bin Dollah [1987] 2 MLJ 471 The next witness (PW3) was the ex-wife of the defendant who stated that the defendant had told her that the land was mortgaged by the deceased to the defendant for $200/-. In view of the defense counsel’s objections as regards its admissibility and after hearing arguments from both sides, I ruled that she was not permitted to disclose the communication made by the defendant in view of the second limb (the emphasis is mine) of Section 122 of the EA 

It is also important to note S.122 of EA only applies to communications but not to acts or facts perceived or have been observed by the spouse (e.g., a wife saw her husband kill someone)

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However, if circumstances happen where the evidence testified consists of a mixture between acts and communications which are interwoven and cannot be easily

separated or distinguish, such testimony cannot be admissible and must be regarded as privilege. Palldas Arumugam v Public Prosecutor [1988] 1 CLJ 661 From the record of appeal, the appellant’s wife Gudi Kaur (PW3) had, in examination-inchief, given quite lengthy evidence of all communications between herself and her husband. Though some of the evidence relates purely to acts, as distinct from words spoken, i.e., what she saw appellant was doing, it is so inextricably interwoven with what appellant had said to her, that to separate each act from words spoken by the appellant to her would be extremely difficult, if not impossible. Even if extricable and rejecting the words spoken, one would have their prejudicial effect still lingering. Even though objection was not taken by the defense, this silence cannot convert what the law says is admissible evidence to be admissible. One would expect the wife’s evidence to be led in such a way as to confine such evidence to what she saw the appellant doing. The wife should have been stopped from the moment she started uttering what her husband said to her. From the record it would seem that nobody ever bothered about this S.122. 

Nevertheless, the High Court in the case of Re Loh Kah Kheng (Deceased) (No.2) [1990] 2 MLJ 237 held that S.122 of EA would not prevent a Magistrate who conducting an inquest proceeding from admitting evidence given by the widow of the deceased. This is because it is the duty of the Magistrate to determine the cause of death of Loh Kah Kheng:

It must, however, be emphasized that the rules of evidence under the Evidence Act 1950 still apply in a magistrate’s inquiry under Chapter XXXII of the Criminal Procedure Code but the magistrate is not bound to follow it strictly (R v Divine [1930] All ER 302 at p 307) …In this respect, in my opinion, greater latitude ought to be given to the magistrate concerned to hear any evidence in order to arrive at her verdict. She would therefore admit any evidence which she through fit in the circumstances. Section 123: Evidence as to affairs of State 

This section deals with executive privilege. It provides that no one shall be permitted to produce any unpublished official records relating to affair of state or to give evidence derived there from.

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Examples of documents that would fall within the ambit of affairs of state are cabinet papers, papers regarding security of the state, minutes of meeting/memo of high-level departmental officials, foreign offices dispatches etc.

***The issue: What if the official records are published? 

The purpose of this section is to protect the interest of the state and the public interest. (e.g., national security etc)

State of Uttar Pradesh v Raj Narain Air AIR 1975 SC 865 Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts would have the fullest possible access to all relevant materials. When public interest outweighs the letter, the evidence cannot be admitted. 

However, this section also provides the exception to the general rule. A person may produce unpublished official records relating to affairs of state or to give evidence derived there from if obtained permission from the officer at the head of the department concerned. Nevertheless, the head of the department is subject 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.

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It is important to note that S.123 of EA must be read together with S.162(2) of EA which states that:

(3) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility. What are Affairs of State? 

The Act does not provide the definition. Therefore, what would amount as affairs of state must be based on circumstances of each case.

Ba Rao & Ors v Sapuran Kaur & Anor [1978] 2 MLJ 146 (FC) It is for the court, not the executive, ultimately to determine that there is a real basis for the claim that “affairs of State are involved” before it permits non-disclosure. While it is clear that the final decision in all circumstances rests with the court, and that the court is entitled to look at the evidence before reaching a concluded view, it can be expected that categories of information will develop from time to time. It is for that reason that the legislature has

refrained from defining “affairs of State”. In my opinion, “affairs of State”, like an elephant, is perhaps easier to recognize than to define, and their existence must depend on the particular facts of each case. A mere assertion of confidentiality and those affairs of State are involved without evidence in support cannot, in my view, shut out the evidence sought by the respondents. 

It is duty of...