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INTRODUCTION
LAW OF EVIDENCE
HEARSAY
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• The rationale for excluding hearsay assertions was
explained by Lord Normand in Teper v The Queen.
“The rule against the admission of hearsay evidence is
fundamental. It is not the best evidence and is not
delivered on oath. The truthfulness and accuracy of the
person whose words are spoken to another witness
cannot be tested in cross-examination and the light
which his demeanour would throw on his testimony is
lost.”
• An out-of-court assertion amounts to hearsay when
the purpose of adducing the assertion is to prove the
truth of the contents of its statement.
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“Evidence of statement made to a witness by a
person who is not himself called as a witness 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 evidence,
not the truth of the statement, but the fact that it
was made.The fact the statement was made, quite
apart from its truth, is frequently relevant in
considering the mental state and conduct
thereafter of the witness or some other person in
whose presence the statement was made.”
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• A witness is not allowed to testify to facts in issue or
any relevant facts based on the perception of another
person since such evidence is not direct as required by
Section 60 of the Evidence Act 1950.
• For example, A is charged with murder of B. C wishes
to testify that he was told by D that D saw A commit
the murder. In this situation, D should be called to
testify because he has personal knowledge based on
his perception. It is his perception that must be
attested and tested in cross-examination to determine
whether it was accurate.
• This was illustrated in the case of Subramaniam v PP
• In that case, the A was charged with possession of
ammunition. The defence that was put forward by the A
was that he had been captured by terrorists and that he
was acting under duress. The issue that arose was
whether the statement made by the terrorist to the A
amounted to hearsay.
• Based on the facts of the case, it was held that
statement could have been made to the A by the
terrorists which, whether true or not, if they had been
believed by the A, might reasonably have induced in
him an apprehension of instant death if he failed to
conform to their wishes. The statement therefore did
not amount to hearsay.
• In another case of PP v Robert Boon Teck
Chuah, it was held that the statement made
by a witness in that he received instructions
from ASP Harris Wong to arrest four male
Chinese was held to have been tendered not
to prove the truth of the contents of the
statement but to show that the statements
were made in order to establish that
instructions were in fact given

EXCEPTION TO THE RULE OF HEARSAY
SECTION 32
• Section 32 (1) of the Evidence Act 1950 consists of ten
paragraphs which apply separately and independently
as exceptions to the hearsay rule.
• There are however pre-conditions to fulfill before
reliance may be made on any of the paragraphs.
• The pre-condition stated in Section 32(1) refer to
proving the unavailability of the maker of the
statement or assertion.
• The importance of proving the unavailability of the
maker of the statement was highlighted in Federal
Court case of Sim Tiew Bee v PP which quoted Lord
Goddard words in Chainchal Singh v Emperor:
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Proving absence of witness under
Section 32(1)
• Where the maker is dead, the best method of proving
that the person who made the statement is dead is by
tendering evidence of death certificate of the person.
Alternatively, reliance may be made on the presumption
of death.
• Where the maker cannot be traced or found – it depends
on the evidence adduced to show that reasonable efforts
to find him have been made without success.
• Where the maker is incapable of giving evidence – this
may arise due to causes such as extreme old age or
mental incapacity or accident which resulted to
permanent disability. Sufficient evidence must be
adduced to establish the incapacity of the person whose
statement is sought to be admitted as evidence, though it
need not be that of medical person.
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• However, it must also be noted that mere
residence out of jurisdiction is not sufficient to
invoke the provision of the section. In fact, it
would be dangerous to subscribe to the doctrine
that mere residence out of jurisdiction is
adequate to dispense with the personal
attendance of a witness and to allow his
statement to be tendered in evidence.
• Refer to Alliedbank v Yau Jiok Hua; Sim Tiew Bee
v PP and PP v Chow Kam Meng.
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“Where it is desired to have recourse to this section on
the ground that a witness is incapable of giving
evidence, that fact must be proved, and proved
strictly. It is an elementary right of an accused person
or a litigant in a civil suit that a witness who is to testify
against him should give his evidence before the court
trying the case which then has the opportunity of
seeing the witness and observing his demeanour and
can thus form a far better opinion as to his reliability
than is possible from reading a statement or
deposition…In a civil case, a party can, if he chooses,
waive the proof, but in criminal case, strict proof ought
to be given that the witness is incapable of giving
evidence”
• Where procuring the attendance will result in
unreasonable delay or expense – for this requirement to
be satisfied, the court need to look at facts of the case
and different rules apply depending on circumstances of
each case. Thus, what is unreasonable or unnecessary is
not a matter in which absolute standards can be applied.
Thus, two things are of importance – the seriousness of
the charge and the character of the evidence proposed
to be tendered.
• In Borneo Co (M) Sdn Bhd v Penang Port Commission,
where the witness was to be brought from England
merely to give formal evidence, it was held that it was
unreasonable as the expense of brinnging him down
would exceeded the subject matter of the claim.
Paragraph (a) – Statements as to cause
of death
• Refer to Section 32(1)(a) and illustration (a)
• Although statements held to be admissible by virtue of
this paragraph are commonly referred to as ‘dying
declarations’, it must be noted that paragraph (a) of
Section 32(1) is wider and not synonymous with the
common law concept of dying declaration.
• In England, dying declarations are admissible only in
cases of homicide, where the death of the deceased is
the subject of the charge and the circumstances of the
death are the subject of the dying declarations. It is
also important that the deceased should be under
expectation of death.
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• In contrast, statements admissible by virtue of
paragraphs(a) of Section 32 are not confined to dying
declarations. The section refers also to statements
made as to the circumstances of the transaction which
resulted in his death. This means that the maker may
or may not be under an expectation of death.
• Furthermore, statements made under Section 32(1)(a)
may be made in any proceeding whatever its nature,
and this includes civil cases as well.
• For example, refer to Narayana Swami v King Emperor
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• The court held that the first statement is not admissible as
being too remote to form part of the transaction that
resulted in her death. The second statement was held to
amount to circumstances of the transaction which resulted
in her dearth.
• Further examples of cases in which it was held that
statements made by the deceased prior to death were too
remote to amount to part of the transaction resulting in
death include Boota Singh v PP and Haji Salleh & Anor v PP
• Another issue that is to be discussed in considering
statements made under Section 32(1)(a) is the weight
attached to the statements itself.
• The facts and circumstances of each case must be
considered.
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Paragraph (b) – Statements in the
course of business
• Refer to Section 32(1)(b) and illustrations (b)(c) and (d).
• The party claiming that the document is within the
scope of the section must prove that it was made in
the ordinary course of business – Syarikat Jengka Sdn
Bhd v Abdul Rashid Harun ; Wan Salimah Wan Jaffar v
Mahmood Bin Omar.
• In Vaynar Suppiah v KMA Abdul Rahim, the court
imposed a further requirement that the statement
made must be based on the maker’s personal
knowledge. Thus, the court held that a report that was
prepared and signed by the person who was not
involved in the actual survey of the goods had no
personal knowledge of their condition and was thus
inadmissible.
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• The importance of proximity of the statement to the
cause of death has been highlighted in Yeoh Hock
Cheng v R.
• In this case, the deceased was alleged to have been
murdered on 14 March 1937. She had made two
statements where the prosecution intended to put in
evidence. The first statement was made to her father
on 5th March that she had denied sleeping at the
accused’s house because the accused had threatened
to kill her if she did so. And the second statement was
made to her sister (on the evening of her death) that
she was going out with the accused and that the
accused had told her to put on man’s clothing.
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• For example in Toh Lai Heng v R, the court held that
although a dying declaration need not be proved by
writing, the exact words spoken by the deceased must
be given. If the dying declaration is reduced into
writing (in the event of the witness in question being
an investigating officer, magistrate or someone of that
kind), then the actual words of the deceased must be
recorded.
• The court must also assess the credibility of the
deceased before relying on the statement made by him
– see for example Chan Phuat Khoon v PP, where
reference to section 158 could also be made.
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• Augustine Paul J in Alliedbank (Malaysia) v Yau Jiok
Hua agreed with the decision in Vaynar Suppiah
explaining that Section 32(1)(b) renders admissible
only first hand hearsay, in that the maker of the
statement must have had personal knowledge of its
contents while Section 73A(1)(a)(ii) renders admissible
second hand hearsay.
• On this note, Jeffrey Pinsler commented that Section
32 does not specifically impose a prohibition on
multiple hearsay. It should be worth to admit such
evidence and to give it whatever weight it deserves
rather than exclude it altogether.
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Paragraph (c) – Statements against
interest of maker
• Refer to Section 32(1)(c) and illustration (f).
• The principle upon which such statements are regarded
as admissible in evidence is that in the ordinary course
of affairs, a person is not likely to make statement to
his own detriment unless it is true.
• In PP v Forster Frank Edald Heinrich, the accused was
charged with trafficking dangerous drugs. The defence
counsel sought to use two affidavits affirmed by two of
the accused’s companions where it was affirmed that
they alone had bought the drugs, smoked it and carried
it. The affidavit was made at West Germany where
there was no extradition treaty between Malaysia and
Germany. Thus, the prosecution argued that the
condition in paragraph (c) has not been fulfilled.
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• In Ward v Pitt, a claim was made by an illegitimate child
against the employer of the deceased workman alleged
to have been his father. The applicant relied on
statements made by his father admitting to the
paternity and that he intended to maintain the child and
marry the applicant’s mother. The court held that
although the statements were in fact against his
interest, there was no guarantee that the deceased had
personal knowledge of those facts.
• Another condition imposed by the court is that the
maker of the statements must be aware at the time of
making it that such statement would be against his
interest – Refer to Tucker v Oldbury UDC
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Paragraph (e) – Statements relating to
existence of relationship
• Refer to Section 32(1)(e) and illustrations (k) and (l)
• In Shanmugam v Pappah, the court held that there are
four conditions to be satisfied before the paragraph
can be invoked namely:
a) The pre-condition that the maker is not available to
testify must be proved;
b) The statement must relate to the existence of
relationship by blood, marriage or adoption;
c) The person making the statement must have personal
means of knowledge of the relationship in question;
d) The statements must have been made before the
dispute arose.
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• The court held that the phrase ‘would expose him or
would have exposed him to a criminal prosecution’
should have been interpreted as the exposure of the
risk of prosecution, though not conviction, at any time
while the maker is living would be sufficient. Thus the
court admitted the affidavit and reasoned that the risk
of prosecution would be probable if the deponent
return to this country or go to a country with which
this country has an extradition treaty.
• Another condition that had been imposed by the court
to the application of paragraph (c) is that the maker
must have personal knowledge of the statement at the
time when he made it.
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Paragraph (d) – Statements giving opinion as to public
right or custom or matters of public or general interest
• Refer to Section 32(1)(d) and illustration (i)
• The requirement in this paragraph is that the
maker of the statements must likely be aware
of the existence of such public right or custom
or matter of public or general interest. Thus,
personal knowledge is an ingredient of this
exception.
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Paragraph (f) – Statements in will, deed, family
pedigree, tombstone or family potrait
• Refer to Section 32(1)(f).
• In Lee Kim Luang v Lee Shiah Yee, it was held that an
inscription on a tombstone relating to an alias is a statement
of a relevant fact which indicates the existence of any
relationship by blood, marriage or adoption between the
deceased persons.
• The differences between paragraph (e) and (f) are as
follows:
a) Paragraph (e) relates to the existence of any relationship
between any persons, dead or alive, whereas paragraph (f)
relates to any relationship between dead persons only;
b) Paragraph (e) requires ‘special means of knowledge’
whereas there is no such requirement in paragraph (f); and
c) Paragraph (e) refers to statements; written or verbal;
whereas paragraph (f) applies to written statement only.
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Paragraph (g) – Statements in documents
relating to certain transaction
• Refer to Section 32(1)(g) where the statement
is contained in any document which relates to
any transaction as is mentioned in Section
13(a).
• It must be noted that this paragraphs applies
to written statements only and its value must
be considered in light of facts and
circumstances.
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Paragraph (i) – Statements made in the course
of investigation of an offence
• Refer to Section 32(1)(i)
• In PP v Mohd Jamil Bin Yahya & Anor, the admissibility
of a statement made by the deceased under Section
112 of the CPC was considered and the court held that
although Section 32(1)(i) was applicable, the weight
attached to the statement was too minimal resulting in
the statement having been excluded altogether. In this
case, the statement was made by a self-confessed drug
trafficker and taking into account that the accused
faces with a charge carrying mandatory death sentence
on conviction.
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Paragraph (h) – Statements made by
several persons as to feelings
• Refer to Section 32(1)(h) and illustration (n).
• The purpose of the rule is to allow the
admission of evidence of persons who are not
called as witnesses as to what they said in
reaction to an event or thing as it is presented
to them in circumstances which exclude
opportunity of reasoned reflection and
possibility of concoction and distortion.
• Refer to Du Bost v Beresford
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Paragraph (j) – Statement made by public officer
in the discharge of his duties
• Refer to Section 32(1)(j)
• On the issue of whether paragraph (i) and (j)
should be read conjunctively or disjunctively,
refer to PP v Michael Anayo Akabogu; PP v
Lam Peng Hoa and PP v Mohammad Fairus
Bin Omar
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