Topic/Subtopic Case Facts of the case

Hearsay

Definition- Common Law Hearsay is a statement

whether oral or written made
by a person who has not been
called as witness in a
proceedings ; or who has been
called as witness but made a
statement not in the process
of giving evidence in Court.

*kalau oral atau written

statement ni, si pembuat tuu
kena datang ke mahkamah
untuk bagi evidence sebagai
saksi kalau tak ia akan jadi
hearsay, tak boleh
disampaikan oleh orang lain

*beza dengan kalau you nak

buktikan fakta perkara itu
memang berlaku; you nampak
perkara tu berlaku (direct
evidence) so not hearsay and
admissible

Myers v DPP [1964]

It is difficult to make any

Hearsay in Evidence Act 1950
(indirectly)
general statement in regards
to the law relating to Hearsay
Rule which is entirely accurate.
Section 59- All facts except
content in documents may be
proved by oral evidence.

Section 60- all oral evidence

Express Assertions:
Oral Hearsay
Express Assertions:
Written Hearsay
given must be direct
Karam Singh v PP [1967] 2 MLJ
25
V. Suppiah v KMA Abdul
Rahim [1974] 2 MLJ 183
the son’s evidence as to the
father telling him of quarrel on
night before the murder was a
clear oral hearsay
the report made by clerk of a
firm of professional surveyors
who was not called as witness
in Court or justified under s. 32
was held as written hearsay.

Implied Assertions: Kok Ho Leng V PP A telephone call placing a bet

was intercepted by the police
Statements or conducts not
intended to be assertive but
which rest on some
assumption of fact believed by
the maker of the statement or
the doer of the act which can
be inferred by the court
Requirement to be hearsay
Relevant of not accepting
hearsay evidence
Subramaniam v PP [1956] 22
MLJ 220
Konteks mudah dia:
Bila witness sendiri ada
conversation dengan orang
yang buat statement tadi, it is
not hearsay
=sebabnya dia memang
nampak kejadian tersebut
Tapi kalau witness bgtau apa
yang diperkatakan oleh orang
tuu tadi (person making that
statement), tuu akan jatuh
hearsay
=sebab orang yang buat
statement tuu tak hadir ke
mahkamah sebagai saksi
untuk proof kenyataan yang
dibuat tuu benar seperti yang
diperkatakan.
*untuk keadaan terakhir ini
perlu corroborative evidence
TEPER V R [1952]
and such evidence was
tendered to prove that the
premises from where the
phone is operated was used
for illegal gambling.
In this case the Appellant
found wounded by securities
forces with belt of ammunition
around him.
The appellant explained that
captured by terrorist and
forced to do so and he then
described to the Court on the
conversation that he had with
the terrorist.
The Ct held that the Evidence
of a statement made to a
witness (diberikan terhadap
saksi)
by a person who is not himself
called as a witness (oleh
seseorang yang tdiak
dipanggil sebagai saksi di
mahkamah)
may or may not be hearsay. It
is hearsay and inadmissible
when the object of the
evidence is to establish the
truth of what is contained in
the statement. It is not
hearsay and is admissible
when it is proposed to
establish by the witness, not
the truth of the statement, but
the fact that it was made.’
The rule against the admission
of hearsay evidence is
fundamental. It is not the best
evidence and it is not
delivered on oath. The
truthfulness and accuracy of
the person whose words are
spoken to by another witness
cannot be tested by cross
examination, and the light
which his demeanor would
 throw on his testimony is
lost.”
Leong Hong Khie & Tan Gong another reason is the danger
Wai v PP [1986] that hearsay evidence may be
concocted, fabricated and
tailored to suit the witness's
testimony.

it is desirable in the interest of

Exceptions to hearsay
Section 32
justice and principle of fair trial
to get the relevant person as
witness before the court.
a) Dying declaration

2 syarat kena penuhi:

→must given actual word by A dying declaration need not
1. Kenapa dia tak boleh word to be proved by writing but
datang? Toh Lai Heng v R [1961] such a witness would be
required to give the exact
• Tak dapat datang spoken words by the
sebab mati deceased and so far they are
• Tak dapat datang relevant, any words spoken to
sebab tak dapat the deceased by the witness in
ditemui the event the witness in
• Wujud orang tuu tapi question investigating is police
dah tak berupaya dah officer, magistrate or other
nak bagi keterangan officers of such category.
(nyanyuk, gila, etc.)
• Orang tuu wujud, tapi →taken with utmost caution The court in this case held that
kehadiran dia akan Mohamed bin Allipitchay & if the statement by the
menyebabkan Ors v R [1958] deceased was admitted as a
kelengahan atau dying declaration the jury
perbelanjaan yang should have been warned that
tidak munasabah the statement was not made
on oath and subjected to
cross-examination and as this
was not done in this case it
amounted to a serious
misdirection.

Jayaraman a/l A. Adipan v In this case the Appellant

Pendakwa Raya [2009] contended that the dying
COA declaration evidence
introduced by the prosecution
is not admissible because the
deceased was not full
conscious as he was heavily
sedated by painkillers in the
hospital.
 The Court in this case rejected
the contention and held that
the dying declaration is
admissible as it fulfils the
condition under section
32(1)(a) as the statement
made by the deceased stating
that someone had poured
petrol on him and set him on
fire is related to the cause of
his death.

Balan Subramaniam a/l The Appellant contended that

Ponnudurai v Pendakwa Raya the dying declaration of the
and another appeal [2013] deceased was not admissible
as the statement was made
unconsciously.

However, the Court in this

dismissed the appeal and held
that the dying declaration
made by the victim to the
doctor stating that his husband
who burnt her and eventually
caused excessive injuries that
leads to her death was
admissible under section
32(1)(a).

2. Bentuk statement →Section 32(1)(i)

yang diberi oleh orang (criminal only)
yang tak boleh datang For the purpose of
tuu? investigation into an offence
Section 32(1) (a)-(j)
*But this list is not exhaustive Tee Hock Keong v Public The prosecution in this case
Prosecutor [2021] wished to tender a statement
under s.112 of CPC given by a
witness who cannot be called
as a witness in the Court as
she was deported back to
Indonesia before the trial.

The Court in this case held that

the evidence was inadmissible
under section 32(1)(i) as the
prosecution did not do
reasonable steps in ensuring
the attendance of the witness
in the court.
Vijian Krishnan and Xin Hua
Trading & Transport Sdn Bhd
[2022]
→Section 32(1)(j)
view (i) and (j) to be read
conjunctively.
Kobra Taba Seidali v Public
Prosecutor
statement made by a public
officer & also view (i) and (j)
to be read disjunctively.
Public Prosecutor v Kee Hang
Boon [2009]
Appellant argued that the
learned trial had erred in
excluding the sketch plan of
the accident happened
between appellant and
respondent from evidence.
The sketch plan should be
admitted by virtue of Section
32(1) of the Evidence Act
1950.
The court dismissed the appeal
as the Court held that there
was no proof that it will result
to an unreasonable delay to
procure the IO in court despite
him being in Indonesia as he
was never asked by appellant.
The court in this case was of
the view that s 32(1)(i) must
be read conjunctively with (j)
and is only related to public
officers and not witnesses.
Parliament will never intend to
give a wider interpretation
from the word being
construed in the provision
itself.
Therefore, the Court held that
the s.112 statement was not
admissible under this
provision.
In this case, the prosecution
intended to adduce s.112
statement given by the missing
witness.
The court held that reasonable
efforts had been done to

Section 33
Relevancy certain evidence
for proving in subsequent
proceeding he truth of facts
stated therein
procure the witness in the
court room and therefore the
witness statement is
admissible.
The court was also in the view
that subsection (i) and (j)
should be read disjunctively or
if it is to be read conjunctively
then it will only be limited to
the statement made by public
officers.
Each of the paragraph set out
different circumstances on
where the statement is
admissible. Each paragraph
can stand on its own.
Mohamed Kunju v Public PW1 was examined by Dr
Prosecutor [1966] Subodh Kumar, and so
was the accused who had
since been arrested.
Dr Subodh Kumar, who gave
evidence at the
preliminary enquiry, was cross-
- examined at great length by
defence counsel. He was not
available at the present trial
and the prosecution applied to
tender his deposition under
the provisions of s 33
of the Evidence Ordinance.
The Court in this case had
allowed the evidence to be
admitted by the prosecution.