Criminal Procedure II- Impeachment proceedings

- Impeachment generally means to call into question the veracity of a witness by means of
evidence adduced for such purpose or the adducing of proof that a witness is unworthy
of belief.
- It is to discredit the testimony of a witness by proving that he or she has not told the truth
or has been inconsistent.
- The relevant provisions of law relating to an impeachment proceeding is contained in ss.
155, 145 Evidence Act 1950 and s. 113(2) CPC.

Hostile witness

- In certain situations credibility of a hostile witness may also be impeached.

- An impeachment proceeding is usually instituted by the party who faced with a hostile
witness.
- This would be a situation where the evidence given by the witness is hostile to the party
who has called him to testify on their behalf.
- S.137(2) EA 1950 provides that the party who calls a witness is generally not allowed to
cross-examine its own witness. (general rule)
- S. 154 EA 1950 provides that when a witness turns hostile, the court may at its
discretion allows the person who calls the witness to put any questions to him which
might be put in cross examination by the opponent party.
- The purpose of purpose of such cross examination is only to test the truthfulness of the
witness.
- The effect of impeachment herein is that the evidence remains admissible and a
conviction can be based upon it. The court will be left with discretion whether or not to
wholly reject the evidence or to accept the evidence or part of it but treat it with caution.
- In Pathmanabhan a/l Nalliannen v PP & other appeals [2017] 3 MLJ 141, in this case
the prosecution sought to impeach the credibility of two prosecution witnesses PW29
and PW59 where two separate voire dire were conducted by the trial judge. At the end of
it, the learned trial judge ruled that PW29’s credibility was impeached and PW59 was
declared a hostile witness, rendering the evidence of both SP29 and SP59 worthless.
- In PP v Rosnan bin Ismail [2020] MLJU 1616, court emphasized that a party that calls
his own witness must have the confidence that such witness called is able to give
 evidence in support of his case. However, there are exceptions, such as hostile witness or
impeached witness.

The principle in impeachment

- S. 155 EA 1950 provides that the credit of a witness may be impeached in the following
ways by the opponent party or with the consent of the court by the party who calls him:
(a) By the evidence of persons who testify that they from their knowledge of the
witness believe him to be unworthy of credit;
(b) By proof that such witness has been bribed or has accepted an offer of a bribe, or
has received any other corrupt inducement to give his evidence;
(c) By proof of former statements inconsistent with any part of his evidence which is
liable to be contradicted (s. 112 CPC statement) *
- An application to impeach the credit of a witness is only made as a last resort after all
attempts to examine a witness have failed.
- There may be instances when a witness gives evidence contrary to his previous
deposition or his previous statement to the police.
- In such a case, the prosecution has to decide whether any part of the witness’s testimony
could be saved so that it be used further in his case.
- If the answer is ‘yes’ then it is not necessary to impeach the credit of that witness
because part of his evidence is still needed.
- But if the witness’s testimony does not in any way help the prosecution’s case and such
evidence contradicts in material particulars of his previous statement, then the
prosecution should apply to impeach the credit of that witness under ss.145 (1), 155(c)
Evidence Act 1950.
- S. 145(1) EA 1950 provides that a witness may be cross-examine as to his previous oral
or written statements. (read with s. 155(c))
- S. 113(2) CPC provides for admission of statement in evidence where any statement
made under s.112 may be used in cross examination to impeach the credit of the witness
other than the accused person.
- In Krishnan Marimuthu & Anor v PP [1982] CLJ (Rep) 152 *, court emphasized that
to impeach based on former statement is not replacing the evidence which has been
contradicted but only render the witness’s evidence completely untrustworthy.
Modes of impeaching the credit of witness

1. S. 155(a) - Impeachment by using the testimony of an independent witness

- In Annamalay a/l Narayanan v PP (Seremban Criminal Appeal No 41-109 of 1989),
in this case, when the defence case was called, the appellant gave evidence on oath. The
prosecution impeach the credit of the appellant under s.155(a) EA 1950 on the ground
that he had in his evidence stated that he was no longer active in a company when the
evidence had shown otherwise. The prosecution then called witnesses to show that the
appellant was in fact active in the company at the material time. Court held that the
prosecution has properly impeached the appellant’s testimony.
2. S. 155(b) - Impeachment by the evidence of the witness misconduct connected with the
proceeding
- Example here will be evidence that witness has been bribe or has accepted an offer if the
bribe or has received any other corrupt inducement to give his evidence
3. S. 155(c) (read together with s. 145(1)) - Impeachment by using a witness previous
inconsistent statement
- In Muthusamy v PP [1948] 14 MLJ 57, court explained that a witness in giving
testimony before court may indeed give evidence inconsistent with his previous
statement. If there are huge material discrepancy, the it may be used as a tool in
affecting his credibility.
- In Husdi v PP [1980] 2 MLJ 80 **, in this case, the defence sought a copy of the
witness statements in order to impeach the credit of prosecution witnesses. Federal Court
decided that an accused is not entitled to request copies of witness statements directly
from the prosecution. Instead, the defence counsel wishing to impeach the credibility of
a prosecution witness by relying on prior inconsistent written statement must wait until
the witness has given his or her evidence orally. Only by then the defence counsel
may apply to the trial judge for a copy of such statement and the trial judge should only
grant the application after comparing the witness’s statement with their oral evidence.
The defence will only be entitled to the written statement for the purpose of cross-
examining on impeaching credibility if the two versions of statements has serious
discrepancy.
- In Dato Mokhtar Hashim v PP [1983] 2 MLJ 232, court explained that there has to be
some material contradiction or circumstances unexplained by the witness in the first
 instance before one can seek to impeach his credit upon comparison between his
testimony before court and his previous statement.
- In Yusof bin Omar v PP (2001) 2 MLJ 209 **, court of appeal explained that if one is
to rely on the previous statement for the purpose of impeaching the witness’s credibility,
it must first be ensure that such statement was made voluntarily.
- In Muhammad Zakwan bin Zainuddin v PP & other appeals [2020] 8 MLJ 420 *, it
was held that proper procedure if credibility of witness will be impeach on the grounds
that there are discrepancies in their s. 112 statement and their testimony before court is
that the witness must be given the right to be heard first , where they shall be given
opportunity to explain the discrepancies before being judge on their credibility.
- In PP v Dato’ Sri Mohd Najib bin Hj Abd Razak [2020] 11 MLJ 808, court explained
that impeachment is only be resorted to if there is unexplained contradiction.

Who may impeach

1. Impeachment by Defence Counsel - against prosecution witness

- If a defence counsel has a ‘hunch’ that the prosecution witness under cross examination
has departed from the statement which he has given to the police, he is entitle to a copy
of the said statement after the court has seen it and thinks it in the interest of justice to
order a copy to be supplied.
- Hunch means ‘a feeling or guess based on intuition rather than fact’.
- In Husdi v PP [1980] 2 MLJ 80 **, in this case, the defence sought a copy of the
witness statements in order to impeach the credit of prosecution witnesses. Federal Court
decided that an accused is not entitled to request copies of witness statements directly
from the prosecution. Instead, the defence counsel wishing to impeach the credibility of
a prosecution witness by relying on prior inconsistent written statement must wait until
the witness has given his or her evidence orally. Only by then the defence counsel may
apply to the trial judge for a copy of the such statement and the trial judge should only
grant the application after comparing the witness’s statement with their oral evidence.
The defence will only be entitled to the written statement for the purpose of cross-
examining on impeaching credibility if the two versions of statements has serious
discrepancy.
- In Dato Mokhtar Hashim v PP [1983] 2 MLJ 232, Federal Court held that it is
insufficient for a defence counsel to make the application to impeach the prosecution
witness on the basis of a ‘hunch’.
- In Dato' Seri Anwar bin Ibrahim v PP & another criminal appeal [2015] MLJU 34, in
this case the appellant counsel during trial apply to impeach the credit of prosecution
witness on the grounds that there was a ‘hunch’. Being asked repeatedly by the trial
judge to specify the ‘hunch’ raised the counsel failed to give a proper justification but
only to say that there is a ‘hunch’. Federal Court affirmed trial court’s dismissal of
application for impeachment. (just like himself keep telling he has the number but he
didn’t show HAHAHAH)
- S.113(2) CPC now statutorily provides that the court may direct the accused to be
furnished with a copy of it and the statement may be used to impeach the credit of the
witness.
2. Impeachment by Prosecution – against accused person
- In Krishnan v PP [1981] 2 MLJ 121, here one of the grounds of appeal is on the
allegation that the statement of the second appellant (accused) was wrongly admitted to
impeach his credit. The prosecution impeached the credit of the accused by relying on
his cautioned statement. It was held that although the learned judge did not make a
specific finding that the cautioned statement of the second appellant relied on by the
prosecution to impeach his credit was voluntarily made, the prosecution had adduced
sufficient evidence in the inquiry held for the purpose to enable the learned trial judge to
make such finding and such evidence was in no way contradicted. Such omission in the
circumstances of the case did not constitute a miscarriage of justice.
- In PP v Shamsul Kamar Bin Mohd Zain [1988] 2 MLJ 252, court reminded that the
accused will not be cross-examined on the truth of the statement during a voir dire. In
this case it seems clear that the additional aspect of s. 37A DDA 1952 relating to the use
of the statement for cross-examination of the accused and for the impeachment of his
credit, once the statement is ruled by the court to have been voluntarily made, it would
only arise when the accused gives evidence in his defence after the prosecution has
closed its case.
- In PP v Wong Yee Sen [1990] 1 MLJ 187 **, here at the end of the prosecution's case,
the court ruled that a prime facie case had been made out and the accused were called to
enter upon their defence. The first accused opted to give evidence on oath and during the
cross-examination of the accused, the prosecution sought to rely on the cautioned
statement of the accused to impeach his credit. Counsel for the first accused objected on
the ground that cautioned statement had not been admitted in evidence at the prosecution
stage. Court held that a cautioned statement of an accused person (save that it was made
 voluntarily), not being introduced during the prosecution's case, is allowed to be
used by the prosecution to impeach the credit of the accused person during the case
for the defence.
- Accused who chooses to give statement from dock cannot be cross examined
- In Ip Ying Wah v PP [1958] MLJ 34 *, court explained that an accused who gave dock
statement cannot be cross-examined. This is because when the accused elects to make a
statement from the dock, he is not on oath and not subject to cross-examination,
therefore his credit cannot be impeached.
- In impeachment proceedings, the parties have a right to cross examine a witness
(including an accused) whose credit is sought to be impeached.
- In Dato Mokhtar Hashim v PP [1983] 2 MLJ 232, Federal Court explained that that
rights are conferred on parties to cross examine a witness, including the accused person
whose credibility is in issue.

Procedure of impeachment

1. Party applying for impeachment has to establish by oral evidence that the witness has
given evidence in court which is materially different from any other statement.
2. The groundwork for impeachment must be laid which means that the prosecution must
ensure that the police statement has been recorded in accordance with s. 112 CPC (for
witnesses) or s.37A DDA or equivalent for the accused person.
3. Party applying for impeachment has to inform the Court that he intends to impeach the
credit of the witness.
4. Highlight or underline on the police statement preferably in red the portion on which the
witness has materially contradicted himself.
- In Ong Joo Chin v R [1946] MLJ 1, court explained that as a matter of practice it is
advisable for the prosecuting officer to mark the passage or passages in the statement
which he considers inconsistent with the evidence before he hands the statement to the
Magistrate. This ensures that the attention of the court is drawn to the relevant passage
and only the portion allowed by the Magistrate need be put to the witnesses.
5. Hand over the police statement to the Court pointing out the material contradictions has
taken place.
o Must remember when talk about materiality it must relate to the fact in issue or a
relevant fact meaning guilt of accused or innocence of accused.
 o Suppose to submit the police statement to the court but not to the defence because
they have no access. They are all privileged statement to first hand over to the
court.
6. Wait for the Court’s ruling as to whether the contradiction is material.
7. If the Court rules it to be immaterial, the Court will hand back the police statement to the
party applying and no impeachment will be allowed and ask prosecution to continue with
the trial.
8. If the Court rules it to be material, the party applying will be allowed to proceed with the
impeachment of the witness.
- In Muthusamy v PP [1948] MLJ 57 *, court explained that discrepancy and/or
difference may be divided in to four categories:
o Minor differences not amounting to discrepancies;
o Apparent discrepancies;
o Serious discrepancies; and
o Material contradictions.
If there were only minor differences and of no serious discrepancies, then the will be no
impeachment in order not to waste the court’s time.

Proceedings of impeachment

1. Ask the witness whether he made that particular police statement.

2. If witness admits making the statement, show him the statement for the purpose of
identification.
3. Once identified by the witness, have the document marked as an exhibit by the Court.
4. If witness denies making the statement, prosecution is to proceed to prove that the
statement was made by the witness.
Manner of proof:
a) By calling the recording officer and if an interpreter was used, call the interpreter.
b) Ask the recording officer who made the statement (answer to be by the witness).
c) Establish that the witness understood the questioning by the recording officer.
d) Establish that the witness understood the warnings as found in s.112 CPC / s. 37A
DDA or equivalent.
e) Establish that the statement was read back to the witness after the recording and the
witness confirmed it to be correct.
 f) If all the above is established, proceed to have the statement marked as an exhibit by
the court.
5. Questioning must only be done by the court. But if the court insists on the prosecution to
proceed with the questioning, the later can do so. Court to proceed to point out the
material contradictions to the witness, where Court is to ask the witness to explain the
contradictions. (witness then proceeds to explain)
6. Leave to Court consider explanation by the witness.
- It is to be noted that Court may wish to rule on credibility immediately if the witness
admits to the contradiction. However, court will not make any summary ruling as to the
witness’s credibility, but will rule at the conclusion of the appropriate stage, be it at the
close of the prosecution or defence case.
- In PP v Datuk Hj Sahar Arpan [1999] 3 CLJ 427 **, the Court referred to Dato
Mokhtar bin Hashim where the court refused an application to make an immediate
order impeaching the credit of a witness whose evidence contradicted his statement to
the police but went on to consider his evidence as a whole at the end of prosecution case
and then discounted it as discredited and later wholly disregarded it in the circumstances.
Court then further held that it must be stressed that the evidence of such a witness must
be taken into consideration as a whole with the rest of the evidence at the appropriate
stage. It has been trite that if the lower courts in making an immediate order of
impeachment once a material discrepancy is discovered where no explanation is either
offered or accepted, it is obviously wrong and should cease immediately.
7. Impeachment proceeding ends and proceed to continue with the main trial. (reminder:
impeachment is trial within trial a.k.a voire dire)

Effect of impeachment

- There are two views on the effect of impeaching the credit of a witness
1. The Principle View
- This view states that the credibility of a witness is destroyed. Testimony of witness is
totally erased from the record.
- In Matthew Lim v Game Warden, Pahang [1960] MLJ 89, it was held that once it is
proven that the previous statement when being compared with the evidence given in
Court contains material discrepancies with the witness’s credit is impeached, his
evidence then becomes worthless because the witness himself has been shown to be
unworthy of credit.
- In PP v Munusamy [1980] 2 MLJ 133, here the trial judge found that the witness
evidence is to be disregard totally. On appeal, the Federal Court ruled that after the trial
judge decided that the prosecution witness has been impeached, he is no longer a witness
for the prosecution.
- In Zaliman bin Zakaria v PP [2020] MLJU 1409 , here the High Court on appeal
affirmed that the learned trial judge was correct in deciding that the evidence of SD4 was
totally unreliable having impeached her credit on the basis of unexplained material
contradiction.

2. The Another View (a.k.a secondary view)

- Here, the fact that the credit of a witness has been impeached does not mean that all his
evidence must be disregarded. The Court is in position to scrutinize the whole of the
evidence of the witness in order to determine which aspect might be true and which shall
be disregarded.
- In Somwang Phattanasaeang v PP [1992] 1 SLR 850 *, it was held that nowhere that
the court is under an obligation, at the close of an impeachment exercise, to make an
immediate ruling on the matter. It must take into consideration of the evidence as whole
to determine which to consider and which to disregard.
- In PP v Mohd Ali bin Abang & Ors [1994] 2 MLJ 12, it was held that after the
impeachment of the credit of a witness, the trial judge must still proceed to evaluate the
whole evidence of the witness or accused in order to determine which of the evidence
could be accepted and which to be disregarded must be read with utmost caution.
- In PP v Rifkee bin Abu Bakar [2003] MLJU 36 *, it was held that despite that there
was a successful impeachment of a witness's credit, the court must still carefully
scrutinize the whole of the evidence to determine which aspect might be true and which
should be disregarded.

Issues on impeachment

- Issue 1: The judge had seen the contents of the accused statement during which was
ruled to be inadmissible and whether the impeachment proceeding which was done later
(at the defence stage) has prejudiced the judge’s mind at the same statement was sighted
by the judge.
- Answer: NO. Court of Appeal in Moh Chuan Pin v PP [2009] 3 MLJ 221 has ruled that
the argument has no merits.
- Issue 2: Whether the whole statement of a witness and not only the relevant
contradictory statement should be referred to the judge during the impeachment
proceeding.
- Answer: In Yusof Omar v PP [2001] 3 CLJ 122, the Court of Appeal agreed with the
procedure adopted by the trial judge where the relevant contradictory statement was
referred to the judge to avoid any prejudice to the accused.