LAW578 – LAW OF EVIDENCE II

TUTORIAL QUESTIONS
FIRM 3- MESSRS KAMAR & CO

QUESTION 3
Critically explain the issue of
competency and compellability
of the following witnesses :
QUESTION 3 (a)
Jenny made a police report against John, the man that she was cohabiting with for the last 10 years for
physically abusing her. However, she refused to give evidence as a witness when John was charged.

The fact in issue is whether John is guilty of the offence of assault against Jenny?
The issue is whether Jenny may rely on the privilege of communication during
marriage under Section 122 and thus may refused to give evidence as a witness
when John was charged.
 COMPELLABILITY
● Generally, the law deemed that every person to be a competent witness and may be compelled to
give evidence in the court as per the case of Tajuddin Bin Salleh v PP [2008] 2 CLJ 745 and PP v
Abdul Majid [1994] 3 MLJ 457.
● Section 120(2) of EA 1950 states that husband or wife of the person respectively shall be a
competent witness in criminal proceedings and thus may be compelled to give evidence in court.
○ However, this is subjected to privileged communication during marriage between the husband
and wife under Section 122, as highlighted in the case of Ghouse bin Haji Kader Mustan v R
[1946].
● There is also a marital communication privilege in which a witness may raise a privilege from giving
evidence in court and among others, the privileges include that no person who is or has been
married shall be compelled to disclose any communication, in oral or writing that passed between
the spouses during or after the marriage has been dissolved under Section 122 of EA 1950.
○ Such privilege includes communication in any form but it must be noted that the conduct of
the spouse is not included.
 COMPETENCY/COMPELLABILITY

● It is worth to be noted that this privilege of communication shall only applies to the legally
marriage couple. According to Law Reform (Marriage & Divorce) Act 1976, couple will only
deemed as a legally marriage couple when had registered their marriage in accordance with
this statute.
● When these privileges do not apply, the witness will be compelled to testify, and failure to do
so would amount to contempt of court as illustrated in the case of Syed Abdul Aziz v PP
[1993] 3 SLR 534 , where a witness if he still refuse after being compelled, he will be dealt
under Section 114(h) and Section 148(2)(d) where the court will draw unfavourable inference
toward the witness.
 APPLICATION
● To apply, since Jenny was able to lodge a police report on the physical abuse that she suffered, it
can be inferred that she would be capable of understanding whatever question that would be
asked to her and she does not fall within any categories of incompetent witness under Sections
118 and 119.
● Hence, Jenny had fulfilled the requirements provided under Section 118 and thus she may be
compelled by the court to give evidence as a witness against John, subjected to if she could raise
any privilege under the Evidence Act that will later absolve her from being compelled to testify
in court.
● At first glance, Jenny may raise the privilege under Section 122 of EA1950 regarding the
communication in marriage between her and John. However, it is necessary to first determine
whether Jenny and John is a legally married couple before she could apply this privilege.
● Here, Jenny and John are technically not married to each other even though they lived together
for the last ten years as they had merely been cohabiting with each other. Thus, Jenny and John
here are not a legally marriage couple as per the Law and Reform Marriage Act because for them
to be a legally married couple, they must first get marriage and registered their marriage
according to LRA.
APPLICATION
● Since it has been proven Jenny and John do not have a legal marital status, the effect is that
Jenny will not be considered as a competent witness under Section 120(2), because this
provision only applies to a legally married couple and not accorded to couples cohabiting
together even for a long period of time.But since her competency had been successfully
determined under Section 118 earlier, Jenny here would still be regarded as a competent
witness as per Section 118, just that she could not rely on a competency as a wife under
Section 120(2) because she is not yet married to John.
● Subsequently, this means that the privilege provided under Section 122 of EA 1950 also
cannot be invoked as Jenny had only been cohabiting with John without being legally married
to him because the provision only covers communication during marriage between husband
and wife, as highlighted in the Ghouse bin Haji Kader case.
● Since there is no privileges that may be raised, Jenny is then compelled to give evidence
regarding the physical abuse she suffered because of John even though the answers might
criminate her by virtue of Syed Abdul Aziz v PP.
 CONCLUSION
In conclusion, Jenny will be compelled to give evidence as a witness
against John and such refusal would amount to contempt of court as she
had failed to invoke the privilege provided under Section 122 of EA 1950.
QUESTION 3 (b)
Ani, aged 8 years, is called as a witness in a trial of her abductor. She was 6 years old at the time of the
abduction.

The fact in issue is whether the abductor is guilty for the offence of kidnapping
Ani?
The issue is whether Ani, despite her being a child can be presumed as a
competent witness and later compelled to testify in the court as pursuant to
Section 118 of EA 1950?
COMPETENCY
● The general rule for a witness testifying in court is, he must be a competent witness. This test of
competency is laid down in Section 118 of the EA whereby;
○ Firstly, a person is deemed to be a competent witness when he is able to understand the
nature of questions put to him
○ Secondly, he is able to give rational answers to such questions.
● These two tests are important to know whether the witness has sufficient intellectual capacity to
enable him to understand and answer the questions in court. If these two tests are not satisfied,
the witnesses are deemed incompetent to testify before the court.
● As such, it is mandatory to establish that a witness is competent before he is allowed to testify in
the court. Nevertheless, the Evidence Act 1950 did not prescribed a specific procedure to
determine the level of competency of a person, but instead, it was being discussed in Mohd Zuki
bin Ali @ Mohammad v PP [2010] MLJU 1320 , where the court held that :
○ Non-compliance of the requirement to determine competency under Section 118 before
that person testifies cannot be disregarded and is not curable under Section 422 of the
Criminal Procedure Code.
COMPELLABILITY

● Generally, the law deemed that every person to be a competent witness and may be
compelled to give evidence in the court as per the case of Tajuddin Bin Salleh v PP [2008] 2
CLJ 745.
● In PP v Abdul Majid [1994] 3 MLJ 457, the court mentioned that a competent witness is also
a compellable witness and thus, a person who has been deemed competent to be a witness,
is compelled to testify and give evidence in the court.
● Nevertheless, Section 118 of the Evidence Act had provide several classes of witness which
the law deemed that their competency might be affected by reason of tender years, too old,
disease, whether the body or mind, which then prevented them from understanding the
questions put to them, or from giving rational answers to those questions.
● Thus, the group of witness may includes the child witness, a person of extreme old age and a
person of disease of mind/body.
● And for the purpose of answering this question, the group of witness involved is a child
witness and thus, it is important to established the competency and compellability for child
witness.
CHILD WITNESS
● Section 2 of Evidence of Child Witness Act 2007 provides child witness is a witness below
16 years of age. The Act illustrates the manner in which a child could give evidence in court
such as by using partition, video conferencing, video or audio recording.
● There is no definite age is fixed by law within which the child witness is absolutely excluded
from giving evidence on the presumption that are incompetent. Therefore the court has a
wide discretion to critically examine the competency of the child witness.
● The case of Chao Chong & Ors v PP [1960] MLJ 238 states that:
○ After a lapse of time, it is hard for children to distinguish between the result of reality
and and fantasy and due to this, Sarkar on Evidence provides that the testimony of
child witness should only be accepted after the greatest caution and circumspection by
the court.
CHILD WITNESS
● Before the child witness can be considered as a competent witness, the court must determine the
competency of a child witness (which this test has again been illustrated in Section 118 of EA1950).
● In doing so, the are two applicable circumstances that the court may look through, which the court
may either determine the child witness competency during preliminary examination or during the
trial.

1. Preliminary examination

● The case of Yusaini Bin Mat Adam v Public Prosecutor [1999] 3 MLJ 582 stated that:
○ It is mandatory for the court to determine the level of competence at the preliminary stage
before proceeding to admit evidence from a child, whereby during this stage, the judge has to
first ascertain the basic competency, which concerns the child’s ability to perceive, remember,
and communicate. The judge should then proceed to determine his or her truth-lie
competency, which is purposed to ascertain the child’s ability to tell the truth.
CHILD WITNESS
2. During trial

● In contrast, the case of Steven Pangiraja V PP [2014] 4 CLJ 418 provides that :
○ The preliminary examination in relation to the child competency is not mandatory, but
instead such competency should be determine during the trial.
○ In this case, the court held that there is no requirement under the Act to conduct a
preliminary inquiry. Even though case laws requires the competency to be tested for
child of tender years and not child per se, S.118 of EA only comes into issue if the
court considers that a child of ‘tender years’ gives evidence. Thus, court in the view
that the evidence of SP3 and SP10 will not fall within the definition of ‘Child of tender
years’ on the factual matrix of the instant case.
APPLICATION
● In applying, since Ani is a 8 years old girl, thus, she is considered as a child witness by virtue of
Section 2 of Evidence of Child Witness Act 2007 and due to that, Ani here falls under category of
person where the court is of the opinion that Ani is incompetence by reason of tender years as
per the exceptions in Section 118.
● Therefore, by virtue of Sarkar of Evidence, the court must be cautious in assessing the testimony
of Ani and shall only accept it after a proper circumspection because it is not easy for Ani, a child
of such a young age to differentiate between fantasy and reality as explained in Chao Chong &
Ors v PP [1960] MLJ 238 .
● In determining the first test regarding the competency of Ani, it is mandatory for the judge to
conduct a preliminary examination towards Ani as per the case of Yusaini Bin Mat Adam v Public
Prosecutor, by giving her simple questions and examine whether she understands question put to
her and observed on whether can give rationale answers to the question because it will
determine the level of her competency before proceeding to admit evidence from Ani.
Preliminary examination is mandatory because Ani’s competency should be assessed depends on
her understanding and not her age as per Sidek bin Ludan v PP [1995] 3 MLJ.
APPLICATION

● Here, Ani, who is now 8 years old is able to understand the question put forward to her and she is
able to give rational answers with regard to the questions of what had happened to her when she
was abducted 2 years ago. This is because she was abducted when she was 6 years old in which at
such age a child is already concerned with her surroundings and they can remember what happened
to her and her surroundings. Therefore, Ani is deemed to be a competent witness under section 118
Evidence Act 1950 and thus she may be compelled to give evidence to the court.
 CONCLUSION
In conclusion, despite her being a child witness is indeed a competent
witness under section 118 Evidence Act 1950 and thus she may be
compelled to give evidence to the court.
QUESTION 3 (c)
Lulu and Dodi was charged for the offence of theft. Lulu pleads guilty
and was subpoena to be the prosecution witness. She refused to give
evidence against Dodi.

The facts in issue is whether Lulu and Dodi had committed the offence of theft.

The issue is whether Lulu is competent and compelled to give evidence against
Dodi under Section 118 of EA 1950?

Section 118 of EA 1950 states that all people are competent to be a witness
provided that the person must understand the question put forth to them and
secondly, they must be able to give out rational answers to the questions given.

​
 QUESTION 3 (c)
Section 120(3) of EA 1950 states that in criminal proceedings, the accused shall be a competent witness in
his own behalf, and may give evidence in the same manner and with like effect and consequences as any
other witness provided that, so far as the cross-examination relates to the credit of the accused, the court
may limit the cross-examination to such extent as it thinks proper, although the proposed cross-examination
might be permissible in the case of any other witness. Unlike other witnesses where competency determines
compellability, an accused has a right to remain silent when called to enter a defence pursuant to the case of ​
Lim Lye Hock v PP [1995]​.

Moreover, where there is a co-accused and if the accused chooses to testify, his evidence may be used
against his co-accused as according to the case of ​Kong Weng Chong v PP [1994] 1 SLR 34. The accused may
still be cross-examined by the prosecution to establish his guilt even though his evidence was relating to the
co-accused following the case of ​Lee Yuan Kwang v PP [1995] 2 SLR 349.
QUESTION 3 (c)
​ owever, if the accused is acquitted or convicted, he ceased to be an accused and can be compelled to
H
give evidence for the prosecution or defence just like any other witness as per Ahmad Din & Ors v PP
[1962] MLJ 92.

Accomplice is not defined in our Evidence Act. Generally, means is a guilty associate of the accused
person or a partner in the crime. Accomplice as mentioned in R v Mullins, is a person who has
concurred in the commission of the crime.

Section 133 of EA1950 provides that an accomplice shall be a competent witness against an accused
person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of
an accomplice. This provision needs to be read together with illustration (b) of Section 114 EA1950
states that an accomplice is unworthy of credit unless corroborated in material particulars. Based on
these both provisions, the conviction can be set aside if there is no warning.
APPLICATION
Applying this to the question, Lulu as the accused in this case is competent to give evidence to court provided
that she understands the question put forth to her and be able to give out rational answers to the questions
given as stated under Section 118 of EA.

It is to be noted that, Section 120(3) shall not be applicable for Lulu as she is giving evidence against Dodi and
not for her behalf. By virtue of ​Kong Weng Chong v PP [1994] 1 SLR 34, Lulu as a co-accused, if she chooses to
testify, her evidence may be used against Dodi and she may still be cross-examined by the prosecution to
establish her guilt even though her evidence was relating to Dodi as per ​Lee Yuan Kwang v PP [1995] 2 SLR 349. ​

However here, since now Lulu has pleaded guilty and she has been convicted, the case of Ahmad Din v PP
[1962] MLJ 92 provides that Lulu now is ceased to be an accused and can be compelled by the prosecution to
give evidence as a prosecution witness just like any other witness.

Hence, when Lulu firstly commit the offence of theft together Dodi and later ceased to be an accused person
and become prosecution witness, she is regarded as an accompalies. By virtue of Section 133, Lulu, as an
accompalies is a competent witness against Dodi thus she can be compelled to give evidence in court.
 CONCLUSION
In conclusion, Lulu as an accomplice is competent and compelled to give evidence
against Dodi.
QUESTION 3 (d)
In a garnishee proceeding, Ahmad was asked by the judgment creditor whether he owed money to the
judgment debtor. Ahmad refused to answer the question.

The fact in issue is whether Ahmad would be required to pay off the debt owed
by the judgment debtor to the judgment creditor.
The issue is whether Ahmad may be compelled to answer the question put
forward by the judgment creditor, and Ahmad upon being compelled may rely on
the privilege of self-incrimination under Section 132 of EA1950.
COMPELLABILITY
● Generally, the law deemed that every person to be a competent witness and may be
compelled to give evidence in the court as per the case of Tajuddin Bin Salleh v PP
[2008] 2 CLJ 745 and PP v Abdul Majid [1994] 3 MLJ 457.
● Once a witness is competent to testify, they can be compelled to give evidence in
court, subject to any privileges under Section 121 to Section 132 of the Evidence
Act 1950 that can be raised by them.
● When these privileges do not apply, the witness will be compelled to testify, and
failure to do so would amount to contempt of court as illustrated in the case of Syed
Abdul Aziz v PP [1993] 3 SLR 534 , where a witness if he still refuse after being
compelled, he will be dealt under Section 114(h) and Section 148(2)(d) where the
court will draw unfavourable inference toward the witness.
PRIVILEGE

● The one related to the current issue is Section 132, regarding the privilege of self-incrimination.
● Generally, Section 132(1) of the Evidence Act 1950 provides that a witness is compelled to give
evidence in court be it in a civil or criminal proceeding even though the answer will incriminate him
or that tend to expose him to any civil liability.
● The case Chye Ah San v R [1954] MLJ 211 had provide a distinction between the common law
position and Malaysia position whereby under the common law position, anyone has a privilege to
refuse to answer any questions that tend to criminate them, while for Malaysia in contrast, a
witness is bound to answer all questions posed to him although they may tend to incriminate him.
● Nevertheless of that, Section 132(2) of the Evidence Act 1950 had provide some kind of protection
where if a witness is forced to answer to such questions that tends to criminate him, he shall not
be subjected to any criminal proceedings based upon his answers except proceedings for perjury.
However in AG of Hong Kong v Zauyah Wan Chik & Ors and Another Action , the protection
afforded by Section 132(2) of the EA 1950 did not protect the witness in civil proceedings,
however, the witness could rely on the defence of just cause or excuse.
PRIVILEGE

● Moreover, Under Section 132(3) of the EA 1950 , it is the duty of the court to explain to the
witness of the protection granted under Section 132(2) of EA 1950 before compelling a
witness to answer the questions to which will incriminate him.
● Notably, as stated in Prabah a/l Sinnathamby v PP [2010] 5 MLJ 252 , the approach that a
trial judge ought to take when faced with a situation where a witness hesitates to answer a
question which may incriminate him is to determine firstly whether such question relates to
the matter in issue. If the witness then refuses to answer, he must be compelled, and a duty
is clearly imposed on the judge to explain to him on Section 132(2) of the EA 1950 before
compelling him to do so.
● The word ‘compelled’ as referred to in the case of R v GA Phillips, this section does not
provide immunity if the witness himself voluntarily answers the questions that he is
compelled to answer.
APPLICATION
● In applying, Ahmad here indeed had been called as a witness when he was asked by the
judgement debtor regarding the on whether he owned money to the judgement debtor, thus, it
can be inferred that Ahmad would be capable of understanding whatever question that would
be asked to him and supported by the fact that he she does not fall within any categories of
incompetent witness under Sections 118 and 119.
● Therefore, he will deemed to be a competent witness and may be compelled to give evidence in
the court as per the case of Tajuddin Bin Salleh v PP [2008] 2 CLJ 745 and PP v Abdul Majid.
● Nevertheless it is important to establish whether Ahmad’s situation may falls under the
circumstances of Section 132 of EA1950 so that he can be granted with the protection
provided under this provision when he is compelled to answer such question.
● Based on the facts, Ahmad’s s now facing a civil trial, considering it is a garnishee proceeding
and was asked with the questions that he believe would incriminate him and might exposed him
to civil liability, therefore, Ahmad’s situation may falls under the privilege of self-incrimination
under Section 132(1). Despite that, Ahmad is still compelled to answer even if it incriminates
him based on Section 132(1) of the Evidence Act 1950 and by virtue of the case of Chye Ah San
v R.
APPLICATION
● By virtue of Prabah a/l Sinnathamby v PP [2010] 5 MLJ 252, Ahmad after being compelled, must
then answer the question despite it will incriminates him because the question asked by the
judgment creditor is actually relates to the matter in issue, considering the case at hand is a garnishee
proceeding which would have anyone owing debt to the judgment debtor to pay off the whole or a
part of the debt owed by the judgment debtor towards the judgment creditor.
● Regardless of that, the judge before compelling Ahmad, have a duty under Section 132(3) to explain
the protection that will be granted to Ahmad under Section 132(2) of EA1950, that is Ahmad will not
be subjected to arrest or prosecution based on, except for perjury if he answered the questions that
tend to incriminates him.
● However, since the situation involves a civil proceedings, Ahmad, if any, give answers that that will
tends to expose him to a civil liability, will not get a protection under Section 132(2), but instead
Ahmad may only rely on the defence of just cause or excuse by virtue of AG v Hong Kong.
● Therefore the privilege under Section 132 is not applicable to Ahmad, and thus he is compelled to
answer the question, and if he still refuse to answer the question, he can be subjected to the
contempt of court and he shall be dealt with according to Section 114(h) and Section 148(2)(d) as per
the case of Syed Abdul Aziz v PP where the court may draw an unfavourable inference against him.
 CONCLUSION
In conclusion, Ahmad may be compelled to answer the question asked to
him by the judgment creditor and Ahmad, if he answers the question that
will expose him to civil liability, will not be protected with the privilege
granted under Section 132 of EA1950.