CORROBORATION

Corroboration: The general principle

 The meaning of corroboration: It is questionable
whether a strict definition of corroboration is either
necessary or desirable. It has been said by Lord
Reid (In DPP v. Hester [1973] AC 296) and Lord
Hailsham (In PP v. Kilbourne [1973] AC 729) that
there is nothing “technical” in the idea of
corroboration.
 Justice Sharma in the case of Attan Bin Abdul
Ghani v. PP [1970] 2 MLJ 143 stated that there is
no “magic” in the use of the word
corroboration.
 Corroboration: The general principle
 The term has been variously (differently) defined.
Lord Hailsham in the Kilbourne’s case said that the
word “corroboration” by itself means no more
than evidence tending to “confirm” other
evidence. Lord Morris of Borth-y-Gest in Hester’s
case seems to suggest the corroboration is
evidence tending to “confirm” and “support”
other evidence. It is evidence which renders other
evidence more probable. (DPP v. Kilbourne, per
Lord Simon at 758, citing from Lord Morris of
Borth Gest, Lord Pearson and Lord Diplock in DPP
v. Hester).
 TESTES
PONDERANTUR
NON
NUMERANTUR

EXCEPTIONS

MATTER
MATTER
OF OTHER
OF
PRACTICE/ EXCEPTION
LAW
PRUDENT

UNSWORN ENTRIES IN SWORN

EVIDENCE
EVIDENCE SEDITIOUS BOOKS SEXUAL EVIDENCE IDENTITY PREVIOUS
OF AN
OF A ACT OF OFFENCES OF A EVIDENCE STATEMENT
ACCOMPLICE
CHILD ACCOUNT CHILD
 Corroboration: The general principle
 Section 134 of the Evidence
Act 1950 provides for the
“Number of witness”
(Bilangan saksi)
 “No particular number of
witnesses shall in any case be
required for the proof of any
fact” (Tiada apa – apa
bilangan tertentu mengenai
saksi dikehendaki dalam
sesuatu kes untuk
membuktikan sesuatu fakta)
 This particular section
provides that no particular
number of witnesses shall be
required for the proof of any
fact.
 Corroboration: The general principle
 This means that the testimony of a single
witness, if believed, is sufficient to establish
any fact. The result of this section is that in
any case, the testimony of a single witness, if
believed, is sufficient to establish any fact.
The Courts may act on the testimony of a
single witness, even though uncorroborated;
or upon duly proved documentary evidence
without such testimony at all.

 See Wright v. Tatham, 5 C & F 670 & Khaw

Cheng Bok v Khaw Cheng Poon [1998] 3
MLJ 457.
 Corroboration: The general principle

 Section 134 follows the

maxim

 “Testes ponderantur,
non numerantur”
*Please remember: Its “Testes” NOT “Testis”
Corroboration: The general principle

 “Evidence is to
be weighed and
not to be counted
(Numbered)”
 Corroboration: The general principle

 “Perlu diingatkan bahawa

saksi-saksi adalah dinilai
dan ditimbangkan dari
keterangan yang
dikemukakannya
bukannya dinilai mengikut
bilangan saksi yang
dikemukakan”
 Corroboration: The general principle
 The Court is concerned with the
“quality” and not “quantity” of the
evidence.
 The basis of the section is that if a
particular number of witness should
be required to prove a particular
offence it would hamper the
administration of justice because in
many cases it is not possible to get
more than one witness.
 Corroboration: The general principle
 In Vadivelu Thevar v. State of
Madras AIR 1957 SC 614, Sinha J.,
states:
 “The section enshrines the well
recognized maxim that ‘Evidence
has to be weighed and not counted’
Our legislature has given statutory
recognition to the fact that
administration of justice may be
hampered if a particular number of
witnesses were to be insisted upon”.
 Corroboration: The general principle
 Per Gopal Sri Ram JCA in MGG Pillai v
Tan Sri Dato Vincent Tan Chee Yioun
[1995] 2 MLJ 493 states “As I earlier
said, the respondent was the only
witness called to prove his case. The
learned Judge appears to have accepted
that evidence. In my judgment, based
on the authorities referred to, there was
no necessity for the respondent to call
other witnesses to prove his general
damages…”
 Corroboration: The general principle
 Again in Ram August Tewari & Ors v.
Bindeshwari Tewari & Ors AIR 1972 Pat.
142, at page 144, the Court made this
important observation: page 144, the Court
made this important observation:
 “The evidence of every witness is to be
judged on its own merits and if there is
nothing in his evidence or in the evidence of
other witnesses examined in the case to
discredit him, it cannot be disbelieved on
the ground that there is only one witness on
the point and no other witness has been
examined to support him”.
 Corroboration: The general principle
In the case of Long Bin Samat v PP [1974] 2 MLJ
152, on the night in question the said Che Mat bin
Mat Hj Awang (PW2) was on his way to a fishing
ground in the padi fields. When he switched on his
torch soon after he left his house he saw the three
appellants whom he had known before about 30
depas away. It was then raining with occasional
flashes of lightning. All the three appellants were
armed, the first with a parang, the second with a
pedang and the third with a kapak. On being
flashed at the three appellants charged at him in the
course of which the first appellant threw a piece of
wood at him. He took to his heels but he fell down
at a spot and was slashed several times by the first
appellant. He subsequently lost consciousness. All
three appellants were convicted by the learned
Magistrate under section 324 of the Penal Code
(Voluntarily causing hurt by dangerous weapons or
means). On appeal, it was contended that there was
no corroboration of PW2’s evidence. In reply to
these, Ibrahim J states “Under section 134 of the
Evidence Act, 1950 no particular number of
witnesses shall in any case be required for the
proof of any fact and as there was no eye-
witness present when the attack on PW2 took
place only evidence of PW2 was available and
since the learned Magistrate has accepted his
evidence that would be sufficient”
 Corroboration: The general principle
 But: Don’t confuse yourselves: This
section should not be interpreted as a
direction to convict on the testimony
of a single witness.

 It does not mean that the court must

act upon the evidence of one witness
even if it is unshaken in cross-
examination and no way discredited
by the witness’s demeanour.
 Corroboration: The general principle
 As explained by Kingsmill Moore J. in the case of
The People (Attorney General) v. Casey (No. 2)
[1963] Ir. R. 33 at 38 (Irish Supreme Court) 249 “It
is the function of a Judge in his charge to give to the
jury such direction and warnings as may in his
opinion be necessary to avoid the danger of an
innocent man being convicted”.
 This justification of the corroboration was
reinforced by Lord Morris in DPP v. Hester [1973]
AC 296 at p. 315 when he said that “any risk of the
conviction of an innocent person is lessened if
conviction is based upon the testimony of more than
one acceptable witness”.
 Corroboration: The general principle
 In the present state of affairs thus there is yet to be a specific
definition of the term, and whether there is a need for such a
definite, comprehensive and technical definition remains
unclear. What is clear from the authorities is that evidence will
not in law amount to corroboration unless it meets certain
requirements as stated below: See PP v Rosman Abdul Wahab
[2006] 4 CLJ 615.
Guarding
principles
for
corroboration

The evidence The

The
must be The evidence corroboration
corroboration
relevant in question evidence
evidence must be
& must be credible. must implicate the
independent.
admissible. accused
 FIRST PRINCIPLE :
EVIDENCE MUST BE
RELEVANT & ADMISSIBLE
 Corroboration: The general principle
 Firstly, the evidence must be relevant and admissible. This can
be explained by the judgment of Lord Scarman in the case of R v.
Scarrott [1978] QB 1016 at 1021. He said: “The admissibility of
similar fact evidence, even when it is adduced as it is in this case
as corroboration of direct evidence, does not depend upon
whether it is capable of corroborating the evidence of the victim
or accomplice, it depends upon its positive value and not vice-
verse; for if the evidence be admissible, it follows that it is
capable of corroborating”. The most important feature of the law
of evidence is that evidence which is sufficiently relevant to prove
or disprove a fact in issue and which is not excluded by any rule of
the law of evidence is admissible. Therefore it will be conveniently
said that to be admissible, evidence must be relevant.
 The judgment of Lord Hailsham in Kilbourne’s case at page 741
make it much clearer that evidence must be admissible and relevant
before amounting to corroboration. The learned Judge said: In my
opinion, evidence which is (a) admissible and (b) relevant to the
evidence requiring corroboration, and, if believed, confirming it
in the required particulars, is capable of being corroboration of
that evidence and, when believed, is in fact such corroboration.
 SECOND PRINCIPLE :
EVIDENCE IN QUESTION
MUST BE CREDIBLE
 Corroboration: The general principle
 Secondly, the evidence in question must be
credible.
 As stated by Lord Morris in Hester’s case:
“Corroboration is only required or afforded
(give) if the witness requiring corroboration
or giving it is otherwise credible ...
corroboration can only be afforded (give) to
or by a witness who is otherwise to be
believed”.
 A similar observation was made by Lord
Hailsham in Kilbourne’s case. He emphasised
that if a witness’s testimony falls of its own
inanition (no quality), the question of his being
capable of giving corroboration does not arise.
 THIRD PRINCIPLE :
THE CORROBORATING
EVIDENCE
MUST BE
INDEPENDENCE
 Corroboration: The general principle
 Thirdly, the corroborating evidence must be
independent, that it should be emanated from a source
other than the witness requiring to be corroborated. In
Kilbourne’s case Lord Reid said: “We must astute
(wise) to see that the apparently corroborative
statement is truly independent of the doubted
statement. If there is any real chance that there has
been collusion (involvement) between the makers of
the two statements, we should not accept them as
corroborative.
 Similar observations were made by Lord Wilberforce
and Lord Cross in R v. Boardman [1975] AC 421 at
444 and 459 respectively. Keterangan sokongan
mestilah keterangan yang bebas dan boleh dipercayai
 FOURTH PRINCIPLE :
THE CORROBORATING
EVIDENCE
MUST IMPLICATE THE
ACCUSED
 Corroboration: The general principle
 Fourthly, the corroborating evidence must implicate the
accused in a material particular. In R v. Baskerville
[1916] 2 KB 658, Lord Reading CJ said: “Evidence in
corroboration must be independent testimony which
affects the accused by connecting or tending to connect
him with the crime. In other words, it must be evidence
which implicates him, that is, which confirms in some
material particular not only the evidence that the crime
has been committed but also that the prisoner committed
it”.
 The Privy Council in the case of Dowse v. A. G. Federation
of Malaya [1961] 27 MLJ 249 held that: “For evidence to
be corroborative, it must be truly probative of the
relevant issues, that is, it must positively implicate the
accused person and positively show or tend to show the
truth of the accomplice’s story that the accused
committed the offence”.
TYPES OF CORROBORATING
EVIDENCE
 Corroboration: The general principle

 It is worth noting that corroboration

was not limited to direct evidence of
independent witnesses.
 It was frequently provided by a
combination of pieces of circumstantial
evidence which together tended to show
that the defendant committed the
crime. See section 156 of EA 1950 & the
case of Shanmugam a/l Munusamy v
PP [1999] 1 MLJ 288 & R v. Hills
[1988] 86 Cr. App. R. 26).
 Corroboration
TESTES
PONDERANTUR
NON
NUMERANTUR

EXCEPTIONS

MATTER
MATTER
OF OTHER
OF
PRACTICE/ EXCEPTION
LAW
PRUDENT

UNSWORN ENTRIES IN SWORN

EVIDENCE
EVIDENCE SEDITIOUS BOOKS SEXUAL EVIDENCE IDENTITY PREVIOUS
OF AN
OF A ACT OF OFFENCES OF A EVIDENCE STATEMENT
ACCOMPLICE
CHILD ACCOUNT CHILD

1 2 3 4 5 6 7 8
Jennico Associates Sdn Bhd v. Lilian Therera
De Costa & Anor
[1998] 3 CLJ 583.

Allegation of sexual harassment

by boss…

Victim resign and

claim for constructive dismissal…

Award was given by the Industrial

Court to the victim…

Application made in the High Court

for an order of certiorari to quash
the award of the Industrial Court…

Certiorari granted;
decision of Industrial Court
quashed…

Reason: NO CORROBORATION…
NE G

NGO’s proposed:
It is not necessary for evidence of
sexual harassment be corroborated
 EXCEPTIONS TO THE GENERAL
RULE: CORROBORATION
REQUIRED AS MATTER OF LAW
OR
PRACTICE/PRUDENCE

(Prinsip keterangan yang memerlukan

sokongan, sama ada berkaitan dengan
perkara undang – undang bertulis
atau amalan)
 Corroboration
TESTES
PONDERANTUR
NON
NUMERANTUR

EXCEPTIONS

MATTER
MATTER
OF OTHER
OF
PRACTICE/ EXCEPTION
LAW
PRUDENT

UNSWORN ENTRIES IN SWORN

EVIDENCE
EVIDENCE SEDITIOUS BOOKS SEXUAL EVIDENCE IDENTITY PREVIOUS
OF AN
OF A ACT OF OFFENCES OF A EVIDENCE STATEMENT
ACCOMPLICE
CHILD ACCOUNT CHILD

1 2 3 4 5 6 7 8
 Corroboration: The exceptions
 Per Augustine Paul JC in Aziz Bin Muhamad Din v
PP [1996] 5 MLJ 473 states “As a general rule, a
Court can and may act on the testimony of a single
witness though uncorroborated. One credible
witness outweighs the testimony of a number of
other witnesses of indifferent character”. Unless
corroboration is insisted upon by statute, Courts
should not insist on corroboration except in
cases where the nature of the testimony of the
single witness itself requires as a rule of
prudence, that corroboration should be insisted
upon, for example in the case of a child witness,
or of a witness whose evidence is that of an
accomplice or of an analogous character.
 Exceptions to section 134
which follows
the maxim
“Testes ponderantur,
non numerantur”

Corroboration required Corroboration required

as as
matter of law matter of practice.
 Matter of law Matter of practice
 If the need for  If the need of
corroboration is corroboration is required
as a matter of practice or
required by law, it is prudence. All the judge
mandatory. need to do is to
warn/caution himself the
dangers of convicting the
 If convict without accused without
corroboration, it is corroboration and he need
to wrote this warn/caution
consider erred in law in his notes of proceeding.
thus give ground for  If the accused is convicted
an appeal. without the judge giving
himself the warn/caution,
this also can be a ground
of appeal.
CORROBORATION REQUIRED
AS MATTER OF LAW
Corroboration

MATTER
OF
LAW

UNSWORN ENTRIES IN
EVIDENCE SEDITIOUS BOOKS
OF A CASES OF
CHILD ACCOUNT
 Unsworn
evidence of a
child
(Keterangan
seorang kanak
– kanak yang
tidak
bersumpah)
 Matter of law: Unsworn evidence of a child
 Section 118 of the Malaysian
Evidence Act 1950 provides that all
persons shall be competent to
testify unless the court considers
that they are prevented from
understanding the questions put to
them or from giving rational
answers to those questions by
tender years, extreme old age,
disease, whether of body or mind,
or any other cause of the same
kind.
 Under this section the sole test in
determining the competency of a
witness is whether the witness has
sufficient intellectual capacity to
understand and give rational answers
to the question. Therefore a child is
competent to testify, if he or she can
understand the question put to him,
and give rational answers thereto. No
precise age limit is given.
 Matter of law: Unsworn evidence of a child
 Section 133A of the Evidence Act 1950
provides for Evidence of child of
tender years (Keterangan seseorang
kanak – kanak yang masih muda) which
states “Where, in any proceedings
against any person for any offence,
any child of tender years called as a
witness does not in the opinion of the
court understand the nature of an
oath, his evidence may be received,
though not given upon oath, if, in the
opinion of the court, he is possessed of
sufficient intelligence to justify the
reception of the evidence, and
understands the duty of speaking the
truth…”
 Provided that, where evidence
admitted by virtue of this section is
given on behalf of the prosecution, the
accused shall not be liable to be
convicted of the offence unless that
evidence is corroborated by some
other material evidence in support
thereof implicating him.
 Matter of law: Unsworn evidence of a child
 The unsworn evidence of a child witness must be
corroborated:

 In Sidek Bin Ludan v PP [1995] 3 MLJ 178 Abdul Malik Ishak

J states “The effect of this amendment is far reaching. The
proviso to section 133A of the Act in simple terms means
this: A conviction cannot stand on the uncorroborated
evidence of an unsworn child witness. It is insufficient for
the trial court to merely administer a warning on the
dangers of so convicting as the amendment now makes it a
rule of law, more explicitly, that the evidence of an unsworn
child witness shall be corroborated. This amendment
distinguishes between the testimony of a sworn and an
unsworn child witness. In the case of a sworn child witness
the old rule of prudence applies, viz, the need to give an
exhaustive warning on the dangers of convicting on such
uncorroborated evidence. Whereas in the case of an
unsworn child witness, section 133A of the Act applies”. See
also PP v Mohd Noor bin Abdullah [1992] 1 CLJ 702.
 Matter of law: Unsworn evidence of a child
 Manner of ascertaining the capacity of a
child witness:

 Section 133A makes it obligatory for a trial

court, by way of a preliminary inquiry,
(mengadakan suatu penyiasatan untuk
membentuk satu pendapat) to ascertain the
capacity of the child to understand the
questions and give rational answers. The
object is to determine whether the child is in
position to be sworn.
 See Muharam Bin Anson v PP [1981] 1 MLJ
222.
 Matter of law: Unsworn evidence of a child
 In Yusaini Bin Mat Adam v PP [2000] 1 CLJ 206, the sessions
court convicted the appellant for the offence of rape committed on
a girl aged 10 years 8 months. The girl was of the age of 11 when
she gave evidence in court during the trial. Despite the fact the girl
was a child of tender years, the court did not hold an inquiry to
form an opinion whether the child was in the position to be sworn
in accordance with the requirements under section 133A of the
Evidence Act 1950 ('the Act'). The girl gave contradictory
evidence and the observations noted by the sessions judge showed
that the she behaved strangely through the trial. The appellant
appealed.
 Held, allowing the appeal: The court when accepting the
evidence of a child of tender years ought to have examined
whether the child had sufficient appreciation of the
responsibility of telling the truth over the ordinary duty to tell
the truth upon pain of punishment for perjury. On the failure
of the session court judge to follow the procedure in s 133A of
the Act, the conviction should be set aside.
 Matter of law: Unsworn evidence of a child
 In R v Hayes (1977) 64 Cr App R 194, where Hayes was charged
with inciting three boys to commit acts of gross indecency with him,
and also with committing an act of gross indecency with one of
them. The boys were called as witnesses and the two older boys,
aged 11 and 12, were sworn after being examined by the judge. The
judge’s questions during his examination were to a large extent
concerned with the boys’ religious understanding, but it was clear
that the oldest boy, in particular, had little if any religious belief.
The appellant claimed that the boy should not have been sworn in
those circumstances, but the Court of Appeal upheld the trial judge’s
decision.
 Bride LJ said at 196: It is unrealistic not to recognise that, in the
present state of society, amongst the adult population the divine
sanction of an oath is probably not generally recognised. The
important consideration we think, when a judge has to decide
whether a child should properly be sworn, is whether the child
has a sufficient appreciation of the solemnity of the occasion and
the added responsibility to tell the truth, which is involved in
taking an oath, over and above the duty to tell the truth which is
an ordinary duty of normal, social conduct. (Emphasis added.)
 Matter of law: Unsworn evidence of a child
 As was observed by Andrews & Hirst in Criminal
Evidence (3rd Ed, 1997):
 The competence of a child could never be presumed.
Even for the purpose of giving unsworn testimony, it was
still necessary to establish by positive means that the
child understood the ordinary duty of telling the truth. It
was the duty of a court or judge to determine
competence and the proper level of competence before
proceeding to admit evidence from a child. This could
involve the child being asked questions by the trial
judge, and it could also involve the calling of expert
opinion evidence from child psychologists. If a child
was allowed to testify without such prior examination,
any conviction based on that child’s evidence was
liable to be quashed on the ground of material
irregularity (R v Khan (1981) 73 Cr App R 190).
 Matter of law: Unsworn evidence of a child
 In Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ
397 where the 58-year-old accused was charged under s
354 of the Penal Code in the magistrates’ court with
using criminal force with intent to outrage the modesty
of a 10-year-old girl. He was convicted on the charge
and sentenced to 20 months’ imprisonment. The accused
appealed against conviction and sentence and the DPP
cross-appealed against inadequacy of sentence.
On appeal, counsel for the accused contended inter
alia that the magistrate had failed to examine
whether the child victim PW2 and a child witness
PW3 had sufficient appreciation of the solemnity of
the occasion as required by law and practice. The
evidence of PW 2 was also not corroborated.
There was no evidence to show that the magistrate
had established the competency of the child witnesses
to give evidence. The High Court had therefore to
determine whether such omission was fatal.
 Matter of law: Unsworn evidence of a child
 Held, allowing the appeal and dismissing the cross-
appeal: Section 133A must be read together with s 118
which makes all witnesses competent witnesses and
makes reference to a person of tender years. Under s
133A, when a child of tender years is called to give
evidence, there is a duty upon the court to ensure
that the child understands the nature of an oath.
The evidence can be received without an oath if the
court is of the opinion that the child possesses
sufficient intelligence to justify the reception of the
evidence, and understands the duty of speaking the
truth.
 However, under s 133A, the child’s evidence must be
corroborated or there must be some other evidence
implicating the accused before he can be convicted.
See also the case of Public Prosecutor v Chan Wai
Heng [2008] 5 MLJ 798
 Matter of law: Unsworn evidence of a child
 The basis of the rule on the need
of corroborative evidence for
children is because the
widespread belief among lawyers
that children testimony are
unreliable or less reliable.
 They tend to think that children’s
memory is inferior, so their
evidence should be regarded as
inaccurate.
 Children, as commonly quoted,
are unable to differentiate
between “fantasy” and “reality”.
 See Chao Chong & Ors v PP
[1960] MLJ 238; Loo Chuan Huat
v PP [1971] 2 MLJ 167; Tham Kai
Yau & Ors v PP [1977] 1 MLJ 174
& Shanmugam a/l Munusamy v PP
[1999] 1 MLJ 288.
 Matter of law: Unsworn evidence of a child
 The evidence of one unsworn witness cannot
corroborate the evidence of another unsworn
witness:

 Per Muhammad Kamil J in PP v Mohammad Terang

Bin Amit [1999] 1 MLJ 154 states “An accused
person is not to be convicted on unsworn evidence
unless it is corroborated by some other material
evidence in support thereof implicating the
accused. The disqualification applies to all the
unsworn evidence given in a particular case; if
there are two or more children giving unsworn
evidence to the same effect, still there can be no
conviction unless there is some other evidence
corroborating their evidence”
 Sedition
cases
(Kes – kes
hasutan)
 Matter of law: Sedition cases
 Section 4 (1) of the Sedition Act 1948 (Act 15) provides that: Any person who
-
 (a) does or attempts to do, or makes any preparation to do, or conspires with
any person to do, any act which has or which would, if done, have a
seditious tendency;
 (b) utters any seditious words;
 (c) prints, publishes, sells, offers for sale, distributes or reproduces any
seditious publication; or
 (d) imports any seditious publication,
 shall be guilty of an offence and shall, on conviction, be liable for a first
offence to a fine not exceeding five thousand ringgit or to imprisonment for a
term not exceeding three years or to both, and, for a subsequent offence, to
imprisonment for a term not exceeding five years; and any seditious
publication found in the possession of the person or used in evidence at his
trial shall be forfeited and may be destroyed or otherwise disposed of as the
court directs.
 Matter of law: Sedition cases

 Section 6 (1) of the Sedition Act

1948 (Act 15) provides that:

 “Notwithstanding anything to
the contrary contained in the
Evidence Act no person shall be
convicted of an offence under
section 4 on the uncorroborated
testimony of one witness”.
 Matter of law: Sedition cases
 In Lim Guan Eng v PP [1998] 3 CLJ 769 where the appellant also was
alleged to have made a speech in which he said that he was dissatisfied
with the laws of Malaysia because of the double standard which resulted
in the rape case involving Rahim not being brought to court and with the
fact that the court had ordered the minor to be detained for three years
whereas Rahim, who should have been imprisoned for violating the law,
was instead set free. These two comments resulted in the second charge
against the appellant, that he had committed sedition contrary to s 4(1)
(b) of the Sedition Act 1948 ('the second charge'). The trial judge found
the appellant guilty on the first charge and sentenced him to a fine of
RM10,000, in default six months’ imprisonment. The judge also
convicted the appellant on the second charge and imposed a fine of
RM5,000, in default three months' imprisonment. The appellant
appealed against both convictions and sentences passed upon him. At the
same time, there were two cross-appeals by the Public Prosecutor who
complained that the sentence passed upon the appellant in respect of
each proved offence was inadequate. Held, after considering all the
witness evidence which is fully corroborated, dismissing the appellant’s
appeals but allowing the respondent's cross-appeals. The appellant was
sentenced to 18 months imprisonment on each charge. (Evidence of
corroboration by witnesses in this case is regarded as sufficient).
 See also Lim Guan Eng v PP [2000] 2 CLJ 541 where the Federal Court
uphold his conviction.
 Entries of
book
account
(Catatan
dalam buku
akaun)
 Matter of law: Entries of book account
 Section 34 of EA 1950
states “Entries in books of
accounts regularly kept in
the course of business are
relevant whenever they
refer to a matter into
which the court has to
inquire, but the entries
shall not alone be
sufficient evidence to
charge any person with
liability”. Illustration: A.
sues B. for $1,000 and
shows entries in his account
books showing B. to be
indebted to him to this
amount. The entries are
relevant, but are not
sufficient without other
evidence to prove the debt.
 Matter of law: Entries of book account
 In Sim Siok Eng & Anor v Poh Hua Transport
& Contractor Sdn Bhd [1980] 2 MLJ 72, 73,
where in this case the respondent claimed the
sum of $ 5,283.25 for goods sold and
delivered to the appellants. To support its case
the respondent produced its books of accounts
kept by it to record its transactions with
several customers including the appellants.
Evidence was given that the goods were
ordered and delivered to the appellant’s
premises and that the entries in the account
books were entered from the invoices. The
learned trial judge gave judgment for the
respondents and the appellants appealed.
Held, dismissing the appeal: (1) the books
of account were regularly kept in the cause
of business and referred to a matter into
which the court had to inquire and were
therefore admissible under section 34 of the
Evidence Act; (2) corroboration of the
entries in the book of account were to be
found in the book of account itself, in the
admission by the appellants which tallied
with the first four entries relating to them
and in the oral evidence relating to the
order and the supply of the goods.
 CORROBORATION
REQUIRED AS MATTER OF
PRACTICE
Corroboration

MATTER
OF
PRACTICE

SWORN
EVIDENCE VISUAL SEXUAL
EVIDENCE
OF AN IDENTITY OFFENCE
OF A
ACCOMPLICE EVIDENCE CASES
CHILD
Sworn evidence
of a child
(Keterangan
seorang kanak –
kanak yang
bersumpah)
 Matter of practice: Sworn evidence of a child
 The requirement of corroboration even in the case of
the sworn evidence of a child:
 Per Azmi LP in Loo Chuan Huat v PP [1971] 2 MLJ 167
states “One point, perhaps, requires observation: though
the evidence of P.W. 4 was sworn evidence, he was
nevertheless a young person and in our opinion the jury
should have been warned of the risk of accepting his
evidence”.
 As Lord Goddard C.J. in Reg v Campbell [1956] 2 QB
432, 438 said: “... The sworn evidence of a child need not
as a matter of law be corroborated, but a jury should be
warned not that they must find corroboration, but that there
is a risk in acting on the uncorroborated evidence of young
boys or girls, though they may do so if convinced that the
witness is telling the truth, and this warning should also be
given where a young boy or girl is called to corroborate
the evidence either of another child, sworn or unsworn, or
of an adult”.
Evidence of an
accomplice
(Keterangan
rakan
sejenayah)
 Matter of practice: Evidence of an accomplice

 Per Woodward Ag CJ in R v Lim Yam Hong

[1919] 14 SLR 152 states “The statute law
regarding accomplices is to be found in
sections 114, illustration (b) and 133 of the
Evidence Ordinance”.
 Section 133 provides “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”.
 Section 114 Illustration (b): “An accomplice is
unworthy of credit unless he is corroborated in
material particulars”.
 Matter of practice: Evidence of an accomplice

 The corroborative effect of

these 2 sections is that while
section 133 make it not illegal to
convict a person on
uncorroborated testimony of
the accomplice
 section 114 illustration (b)
provides that a judge must
caution himself of the dangers
of convicting uncorroborated
evidence of an accomplice.
 Matter of practice: Evidence of an accomplice

 In R v Baskerville [1916] 2 K.B. 658, where at

page 663 it is said that : “There is no doubt that
the uncorroborated evidence of an accomplice is
admissible in law. But it has long been a rule of
practice in common law for the judge to warn
the jury of the danger of convicting a prisoner
on the uncorroborated testimony of an
accomplice or accomplices, and, in the
discretion of the judge, to advise them not to
convict upon such evidence, but the judge
should point out to the jury that it is within
their legal province to convict upon such
unconfirmed evidence”. See R.v. Atwood [1787]
1 Leach 464.
 Matter of practice: Evidence of an accomplice
 The rules laid down by the judgment in R v Baskerville [1916]
2 K.B. 658 may be briefly stated thus:-
1. The uncorroborated evidence of an accomplice is
admissible, and a conviction founded on such evidence is not
illegal.
2. But it is a rule of practice virtually equivalent to a rule of
law that the presiding judge must warn the jury of the
danger of convicting on such evidence.
3. It is also his duty to tell them that nevertheless they can
legally convict on such evidence.
4. When it appears that the judge has not given the required
warning, the Court of Appeal will quash the conviction.
5. The corroboration must be evidence which implicates the
accused. Evidence tending merely to show that a crime has
been committed is insufficient.
 Matter of practice: Evidence of an accomplice
 In Daud Bin Awang Ngah & Ors v PP
[1958] MLJ 168 it was stated that “There
is no rule of law which demands that in
every case where an accused person
gives evidence which tends to
incriminate a co-accused, the jury
should be warned that it is dangerous to
convict upon such evidence unless it is
corroborated. Whether or not such a
warning should be given to the jury is
not a matter of law. It is a matter to be
decided in the light of the circumstances
of each individual case”.
 Matter of practice: Evidence of an accomplice

 This accomplice rule only applies

to cases where the accomplice is a
prosecution witness. It does not
apply to defence witness. (See
Daud Bin Awang Ngah & Ors v PP
[1958] MLJ 168, 169-170 & Davies
v DPP [1954] AC 378).
 Matter of practice: Evidence of an accomplice
 In the case of Davies v DPP [1954] 1 All ER 507 which
was received locally in the case of Re Soot Leot [1956]
MLJ 54, 55-56, where it has classify 3 types of
accomplices:
a) Participes Criminis. Participants in a crime. They commit
the crime together.
b) Receiver of stolen goods from the thief.
c) When A has been charged with a specific offence on a
particular occasion. And evidence is admissible, and has
been admitted, of his having committed crimes of this
identical type on other occasions, as proving system and
intent and negativing accident; in such case the court has
held that in relation to such other similar offences, if
evidence of them were given by parties to them, the
evidence of such other parties should not be left to the
jury without a warning that it dangerous to accept it
without corroboration.
 Matter of practice: Evidence of an accomplice

 In Public Prosecutor v Nomezam Apandy

Bin Abu Hassan (No 2) [2008] 1 MLJ 68
where it states that: “In Malaysia, a person is
an accomplice if he is a participles criminis
— has participated in the commission of an
offence. Where he had played an active role,
his evidence must be corroborated. If his
role was passive, his evidence may be
accepted with the usual corroboration
warning…”
 Issue:
Can “agent
provocateur”
be regarded
as an
accomplice?
 Matter of practice: Evidence of an accomplice
 The issue of agent provocateur (Undercover agent/
Penyamar sulit): There is no requirement of
corroborative warning. However if the extent of
participation is major and active, the court may want to
scrutinise the evidence of an agent provocateur with care.
 In Teja Singh & Mohamed Nasir v PP [1950] MLJ 71, 74-76
where in this case the two appellants appealed against
their conviction and sentence for abetment of bribery and
bribery respectively. Held: Appeal dismissed: (1) stated
that the police officers were at most agents provocateurs
and not accomplices and that on the facts of this case the
evidence of the police officers was properly received in
evidence.
 See also the case of Public Prosecutor v Rames a/l
Subramaniam [2008] 5 MLJ 820.
 Visual
Identification
evidence
(Keterangan
identiti visual)
 Matter of practice: Identification evidence
 The Turnbull Guidelines (See Reg v. Turnbull [1977]
QB 224): The danger of miscarriage of justice
occurring could be reduced if the trial Judges summed
up to the juries the following rules. The guidelines are
as follows:
1. Whenever the case against an accused depends
wholly or substantially on the correctness of one or
more identifications of the accused which the
defence alleges to be mistaken, the Judge should
warn the jury of the special need for caution before
convicting the accused in reliance on the
correctness of the identification or identifications.
In addition he should instruct them as to the reason
for the need for such a warning and should make
some references to the possibility that a mistaken
witness can be a convincing one and that a number
of such witnesses can all be mistaken. Provided this
is done in clear terms the Judge need not use any
particular form of words.
 Matter of practice: Identification evidence
2. The Judge should direct the jury to examine closely the circumstances in
which the identification by each witness came to be made. How long did
the witness have the accused under observation? At what distance? In
what light? Was the observation impeded in anyway, as for example by
passing traffic or a press of people? Had the witness ever seen the accused
before? How often? If only occasionally, had he any special reason for
remembering the accused? How long elapsed between the original
observation and the subsequent identification to the police? Was there
any material discrepancy between the description of the accused given to
the police by the witness when first seen by them and his actual
appearance? If any case, whether it is being dealt with summarily or on
indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers
with particulars of the description the police were first given. In all cases
if the accused asked to be given particulars of such descriptions,
prosecution should supply them. Finally, he should remind the jury of
any specific weaknesses which had appeared in the identification
evidence….
 Matter of practice: Identification evidence
 In PP v Chan Choon Keon & Ors [1989] 2 MLJ 427,
Faiza Thamby Chik JC states “In dealing with the
evidence of visual identification, the court has to
remind itself of the special need for caution before
convicting the accused in reliance on the correctness
of the identification…”
 In Tan Kim Hoo v PP [2007] 6 CLJ 557 where it was
stated that “The issue of identity of each of the
accused in the instant case was a question of fact
and must be determined by a trial court like any
other fact sensitive issue in accordance with well-
established guidelines governing the judicial
appreciation of evidence”.
 Sexual
offences
cases
(Kes – kes
jenayah
seksual)
 “An easy allegation
to make but difficult
to established/
disproved/substantiate
/rebut”.
 Matter of practice: Sexual offences

 Roberts CJ’s in PP v Emran bin Nasir

[1987] 1 MLJ 166, he stated at p 171
that: “I warn myself that, on a
charge of rape, it is dangerous to
convict on the evidence of the
complainant alone, since experience
has shown that female complainants
have told false stories for various
reasons”.
 Matter of practice: Sexual offences
 In England, this view was also found in R v Henry, R v
Manning (1968) 53 Cr App R 160. There, Salmon LJ said
at p 153: “What the judge has to do is to use clear and
simple language that will without any doubt convey to
the jury that in cases of alleged sexual offences it is
really dangerous to convict on the evidence of the
woman or girl alone. This is dangerous because
human experience has shown that in these courts girls
and women do sometimes tell an entirely false story
which is very easy to fabricate, but extremely difficult
to refute. Such stories are fabricated for all sorts of
reasons, which I need not now enumerate, and
sometimes for no reason at all”.
 Matter of practice: Sexual offences

 Thomson LP in speaking for

the Federal Court in Din v PP
[1964] MLJ 300 said that
“The need for corroboration
in such cases springs not
from the nature of the
witness but from the nature
of the offence” and added at
page 301 “If however, she
complains of having been
raped, then both prudent and
practice demand that her
evidence should be
corroborated”.
 Matter of practice: Sexual offences
 Penser-Wilkinson J in PP v
Mardai [1950] MLJ 33 at p 33:
“Whilst there is no rule of law in
this country that in sexual
offences the evidence of the
complainant must be
corroborated, nevertheless it
appears to me, as a matter of
common sense, to be unsafe to
convict in cases of this kind
unless either the evidence of the
complainant is unusually
convincing or there is some
corroboration of the
complainant's story”.
 Matter of practice: Sexual offences

 It seems clear that the

requirement for
corroboration in cases of
sexual offences also
applies where the victim
is male.
 This can be seen from the
English case of R v
Burgess (1956) 40 Cr App
R 144.
 Previous statement
(Pernyataan terdahulu)
 Other exception: Previous statement

 Section 157 of EA 1950 provides “In order to

corroborate the testimony of a witness, any
former statement made by him whether written
or verbal, on oath, or in ordinary conversation,
relating to the same fact at or about the time
when the fact took place, or before any
authority legally competent to investigate the
fact, may be proved”.
 This section provides that the former statement
of a witness may be proved in order to
corroborate his present testimony relating to
the same fact.
 The important issue to be
considers:
Whether the previous statement
under section 157 can amount to
corroboration?
 Other exception: Previous statement
 R v Whitehead [1929] 1 KB 99, taken the
view that a statement admitted under the
section is not of any genuine corroborative
value as a witness cannot corroborate
himself. Corroborative evidence must be
external to the witness. It must be from
outside source and not from the witness
himself. Lord Heward held that
corroborative evidence must be external
or not if witness repeats 25 times there will
be 25 corroborations. It is thus necessary
to cite the matter under two schools of
thought:
 Guarding
 Section 157 of EA 1950
principles provides:
for
corroboration  “In order to corroborate
the testimony of a witness,
any former statement
made by him whether
written or verbal, on oath,
or in ordinary
conversation, relating to
the same fact at or about
the time when the fact
took place, or before any
authority legally
The evidence
must be
The evidence The evidence
The evidence
must
competent to investigate
relevant and
in question
must be credible.
must be
independent.
implicate the the fact, may be proved”.
admissible. accused
 First school of thought:
(Previous statement under
section 157 amount to
corroboration)
 Other exception: Previous statement
 Per Terrel J in R v Koh Soon Poh [1935] MLJ 120 states that “Any
former statements made by a witness and coming within section
157 of Ordinance No. 53 (Evidence), are admissible as
corroboration of the evidence given by such witness at the trial”.
 In PP v Samsul Kamar Bin Mohd Zain [1988] 2 MLJ 252, KC
Vohrah states “…That a former statement of a witness may be
proved in court to corroborate his testimony…”.
 In PP v Teo Eng Chan [1988] 1 MLJ 156 where it was states that
“Former statement by a witness, complying with the
requirements of section 159 of the Evidence Act, is corroborative
of the witness and goes beyond showing consistency as it does in
English law”.
 Liew Kim Yong v PP [1989] 3 MLJ 323 where it was states that ”A
plain reading of section 159 of the Evidence Act showed that the
complainant's complaint to her sister over the phone and to her
mother and sister were admissible as corroboration of the
complainants own evidence. This evidence not only confirmed in
material particulars that the complainant had been raped, but
also that the appellant had raped her”. (See also Lim Baba v PP
 Second school of thought:
(Previous statement under section
157 does not amount to
corroboration)
 Other exception: Previous statement
 Ong J said in Mohamed Ali v PP [1962] MLJ 230 that “It will not
be out of place here to say a few words about s. 157 of the
Evidence Ordinance. Admissibility of a previous statement under
that action must not be confused with the weight to be given to it.
Corroboration, strictly speaking, means independent
corroboration as explained in R v. Baskerville [1916] 2 KB
658. In my opinion true corroboration by independent
evidence from an extraneous source should be distinguished
from "corroboration" as it appears in s. 157, which rests on
the principle that consistency between a previous statement by
a witness and his present evidence may afford, some ground
for believing him. The value of such a statement as
corroboration may be infinitesimal (small), as in the majority
of cases it is. On the other hand, by reason of the abundance of
detail it may contain as to the facts and circumstances
surrounding any relevant transaction, it may be capable of
being cross-checked for truthfulness against other relevant
evidence, in which case, of course, it may be effective
corroboration, but only because it has been shown to be true”.
 Other exception: Previous statement
 In Chiu Nang Hong v PP [1965] 1 MLJ 40 the Privy
Council observed that corroboration must come from an
independent source.
 In Ah Mee v PP [1967] 1 MLJ 220, Ong FJ said “With
respect, corroboration in the legal sense connotes some
independent evidence of some material fact which
implicates the accused person and tends to confirm that he
is guilty of the offence: see Clynes [1960], 44 Cr App R
158, 161. Consistency is not such corroboration and s. 157
of the Evidence Ordinance should be read in the light of
my exegesis thereof in the case of Mohamed Ali v PP
[1962] MLJ 230”.
 Other exception: Previous statement
 In Karthiyayani v Lee Leong Sin [1975] 1 MLJ 119, Raja
Azlan Shah FJ said that “Although the previous statement
made under section 157 is admissible as corroboration, it
constitutes a very weak type of corroborative evidence as it
tends to defeat the object of the rule that a person cannot
corroborate himself”.
 Gopal Sri Ram in Lim Guan Eng v PP [1998] 3 MLJ 14
reviewed the law relating to corroboration. He came to the
view that corroboration must be external to the witness or not
if a witness repeats it 100 times, there will be 100
corroborations. It is a basic common law principle that
evidence requires corroboration. It does not remove its taint by
repetition, notwithstanding section 157.
 Other exception: Previous statement
 In Thavanathan a/l Balasubramaniam v PP [1997] 2 MLJ 401,
the Federal Court reiterated (repeat) the principle that evidence
in corroboration must be independent testimony which affects
the accused by connecting or tending to connect him with the
crime.
 In Aziz Mohd Din v PP [1996] 5 MLJ 473 Augustine Paul JC
said that a statement rendered admissible by section 157 of the
Act cannot be treated as corroboration of evidence.
 In PP v Paneerselvan [1991] 1 MLJ 106 Edgar Joseph Jr J in
ruling stated that a pervious statement was technically
admissible excluded it as corroboration under section 157. It can
therefore be taken to be settled law that a previous statement
rendered admissible by this section cannot constitute evidence
of corroboration as popularly understood.
 Evidentiary value of a
statement admitted under
section 157 of EA 1950
 Other exception: Previous statement
 In Morgan a/l Perumal v Ketua Inspektor Hussein Bin Abdul Majid
[1996] 3 MLJ 281 Abdul Malik Ishak J, after reviewing the cases
referred earlier, said that “a previous statement gives rise to a strong
assumption of consistency”.
 In YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 2
MLJ 621 Mahadev Shankar JCA said that “a pervious statement could
only be used to show consistency or to contradict testimony of a
witness”.
 In PP v Dato’ Seri Anwar Bin Ibrahim (No 3) [1999] 2 MLJ 1
Augustine Paul J said that “The corroboration set out in section 157
is only for the purpose of showing that the witness is consistent”.
 In Ariyadasa v The Queen [1966] 68 NLR 257 TS Fernando J said:
“The corroboration that s. 157 contemplates is not corroboration in
the conventional sense in which the term is used in courts of law,
but in the sense of consistency in the conduct of the witness tending
to render his testimony more acceptable”.