Tutorial Exercise W11

Boon was charged for the murder of Madam Gan, an offence under Section 302 of the Penal
Code. The case of the prosecution was that, Boon went into Madam Gan’s house and ran
amok. When Madam Gan, who was in the kitchen, realised that someone had broken into
her living room through the front door, she pushed her daughters into the storeroom and told
them to stay quiet. Boon went into the kitchen, pulled a knife out from the knife holder and
stabbed Madam Gan from the back as she was trying to exit the house. The following
evidence was tendered by the prosecution and the defence. Consider the following
situations. Support your answer with reference to the statutory provisions and decided
cases.

a. Gigi, aged 9, the second daughter of Madam Gan gave unsworn evidence that
she saw Boon and another man, whom she could not identify, carried her
mother’s body and threw it into dumpster at the back of the house. She could see
it through a peek hole on the door of the storeroom. The defence objected to this
evidence as the court had erred in law in allowing Gigi to give unsworn evidence
without conducting a preliminary examination.

b. The prosecution also called Jenny, aged 10, Madam Gan’s first daughter to
corroborate Gigi’s evidence. She gave sworn evidence. During cross-
examination, she said, “I did not see Boon stabbed my mother but my sister and I
heard my mother’s scream from the kitchen. My sister told me she could see
through a peek hole on the door of the store room that someone had dumped a
body at the dumpster at the back of the house.” The defence submitted that
Jenny’s statement could not be used to corroborate Gigi’s evidence.

c. Samo, Boon’s friend was also called for the prosecution. He said, “Boon and I
carried the woman’s body from the kitchen through the back door to the dumpster
at the backyard of the house and dumped her body there.” The defence counsel
argued that Samo was not competent to testify as he was accomplice. The
defence also argued that, if he is competent, his evidence need to be
corroborated.

What is material facts ?

- if criminal cases, look at the offence that was charged.

- If civil cases, look at the cause of action brought by the plaintiffs.
- Look how the incident happened.

What is material principles?

- Look at the decision of the judge. (Not judgement)

- Look at the judgement given by the judge towards his decision.

Sir’s teaching.

1. Identify the material facts.

a. Identify the mens and actus rea for the offence. In this case, murder, mens rea: has
intention to kill. Actus reus= killing.
 b. How did the murder happen,
c. What section has been charged against the accused.
d. What is the evidence that tendered in this case.

2. For question (a),

a. She gave unsworn evidence (explain)
b. Competency
i. s.118 (who may testify)
ii. she must understand the question must be capable of giving rationale
answers.
iii. Sidek bin Ludan: the case of child witness, the competency is decided by the
judge on a preliminary examination of the child. Not tested based on age of
a person but on the basis of capacity to understand.

3. For question (b),

a. Jenny
i. 10 years old = tender years
ii. She is the first daughter of madam
iii. She gave sworn evidence (explain) – which she is able to understand the
oath.
b. Principles of Corroboration.
i. Explain on the principle that is related on the corroboration of the child. –
Section 133A of the EA 1950 (only applicable to unsworn evidence) – the
judge has to corroborate the evidence given by the child. (conviction will be
illegal if there is no corroboration) – this is on GIGI!!!
ii. For Jenny, Sworn Evidence is a matter of practice and prudence, but the
judge has to give warning.

4. For question (c),

a. Samo
i. Boon’s friend and he is a prosecution witness.
ii. Principles: corroboration relating to accomplice – basic rules in Section 133
of EA
1. Accomplice is a competent witness
2. Conviction is not illegal due to uncorroborated testimony.
3. However, since it is uncorroborated testimony, then court still have
to give warning (applicable to any situation that concerns matter of
practice and prudence, not law)
iii. Sec 114 illus (b)

5. Burden and standard of proof – s.101 and s.102