Hearsay in Malaysia:

The Case for Reform by Fine-Tuning

The Existing Law

(LXEA 4112: Evidence Law)

Name : LIM WEI JIET

Matric No. : LEB 100045
Lecturer : Professor Abu Bakar Munir
s 60 of the Evidence Act 1950 has codified the rule against hearsay1, whereby indirect oral evidence
is inadmissible.
There are 5 incremental reforms proposed in this paper on the rule on hearsay in criminal
proceedings. Each starts with a brief discussion on that respective sub-topic of hearsay in
Malaysia, together with its strengths and weaknesses. This will be followed by realistic
suggestions for reform in Malaysia.
1.0 The Hearsay Exceptions – Maintaining Our Comprehensive Guidelines
s 32(1) of the Evidence Act allows ten separate exceptions to the rule against hearsay. Nonetheless,
the prerequisite is that the original witness is either dead, cannot be found, incapable of giving oral
evidence or whose attendance cannot be procured without unreasonable delay or expense. Point 1.1
to 1.3 below describes the advantages of Malaysia’s hearsay rule, whereas Point 1.4 to 1.6 addresses
the perceived disadvantages.

1.1 Wider Than the Common Law

Following our Indian ancestors, the statutory exceptions in the Evidence Act were drafted to be wider
than common law exceptions.2 For example:

i) s 32(a) is wider than the common law concept of a “dying declaration”. Even statements made
under no expectation of death can be admitted under this limb.3 Thus, the decision in Walton v
R would have been straightforward in Malaysia and would not have necessitated the
manipulation of the hearsay rule by the High Court of Australia.4
ii) s 32(b) will admit a business statement, avoiding the unsatisfactory decision in Myers v DPP,5
whereby microfilm records taken during manufacturing did not fall under any exceptions.

Malaysia’s codified exceptions are able to encompass a bigger spectrum of evidence, thus admitting
cogent evidence which would not fall into the common law’s slow pace in developing exceptions.

1.2 Certainty and Predictability Wins The Day

Uncertainty as to the admissibility of evidence means that the Prosecution cannot confidently assess
the prospects of a conviction. On the other hand, the Defence cannot confidently advise on the plea or
on the conduct of the Defence.6

The hallmark of a good law is that of predictability – one that doesn’t change from day to day or
dependent on what the judge ate for breakfast. The statutory exceptions in s 32 are sufficiently clear
and provide predictable certainty to the litigation process, and thus should be maintained.

1
Lim Ah Oh & Anor v R [1950] 1 MLJ 269
2
See generally (2000) Halsbury’s Laws of Singapore: Evidence. Vol.10. Singapore: Butterworths Asia, ch 5, which
is in pari materia with Malaysia’s Evidence Act 1950.
3
Peters, M. (2013) Law of Evidence in Malaysia. Kuala Lumpur: Lexis Nexis. 160. See also Pakala Narayana Swami
v King Emperor [1939] 1 MLJ 59, PC.
4
Singapore Academy of Law (2007). Report of the Law Reform Committee on Reform of Admissability of Hearsay
Evidence in Civil Proceedings. 5.
5
Ibid
6
English Law Commission. (1999). Evidence in Criminal Proceedings: Hearsay and Related Topics, para 1.29
1.3 Satisfying The Call for Stringency in Criminal Trials
In criminal trials, there are a number of important considerations in relation to hearsay evidence:
i) The prosecution’s standard of beyond reasonable doubt demands that convictions should be
sustained only on the basis of evidence of undoubted reliability.7
ii) A criminal suspect needs protection from illegal, unfair or improper treatment in the manner in
which evidence was obtained.8
iii) The potential deprivation of life and liberty of an individual desires a stringent atmosphere of
evidence admissibility. 9

Since the stakes are high, the Defense must also be able to predict with clarity the admissibility of
any evidence.10 Further, the Defense cannot inundate the court with fabricated or irrelevant hearsay.
Malaysia’s clear and stringent hearsay rule must be jealously guarded in the context of criminal trials.
1.4 The Confusing & Complex Conundrum?
The hearsay rule today is described as “absurdly technical” 11 and “excessively complex, causing
confusion, anomalies and wasted time”.12

While this may be an attractive proposition, considering the 10 exceptions available in Malaysian
hearsay rule, one must remember several things:

i) The clarion call of confusion originates from England, where judge-made common law governs
the hearsay exceptions in nebulous fashion, unlike the strict black-and-white exceptions
available in Malaysia, Singapore and India.
ii) The huge issue of confusion mainly stems from jury trials in England, Canada and Australia,
where there is the painful necessity of explaining complex hearsay exceptions to laypersons.

In Malaysia, where the hearsay rule is codified in the Evidence Act 1950 and a learned judge decides
the facts of the case, the Malaysian legal fraternity is not plagued by any “confusion” pandemic.

1.5 A Law With So Many Exceptions, Ought Not To be A Law At All?

Professor Abu Bakar Munir argued that the overwhelming exceptions would mean that, in the future,
the hearsay rule would “lose its character” and “mean nothing more than a worthless piece of
paper”.13 Irving Younger went further to suggest that we might have no rule of hearsay after all.14

Nonetheless, a great deal of evidence still falls outside the exceptions of hearsay. It would be
disastrous to admit all these evidence into court. One need only remind ourselves on the importance
of the hearsay rule: i) the need for cross-examination to identify inaccuracies and untrustworthiness,
ii) low probative value of hearsay and iii) admission may open to door to fraud and concoction.15

7
Irish Law Commission. (2010). Consultation Paper: Hearsay in Civil and Criminal Cases, 155.
8
Zuckerman, A. (1989) The Principles of Criminal Evidence. Oxford: Clarendon Press. 216.
9
Hamid Sultan Abu Backer, Is Section 32(1)(i) and (j) of the Evidence Act 1950 abhorrent to notions of justice and fair
play? [2000] 4 MLJ lxv.
10
Irish Law Commission. op. cit. 160
11
Myers v Directors of Public Prosecution [1965] AC 1001, 1019; per Lord Reid
12
English Law Commission, op. cit. para 4.60
13
Abu Bakar Munir (1998). Hearsay at the Crossroads. Current Legal Problems in Malaysia (ed. Mimi Kamariah
Majid) Kuala Lumpur: University of Malaya Press.
14
Younger, I. (1988) Hearsay: A Practical Guide Through The Thicket. Clifton, New Jersey: Prentice Hall.
15
Hamid Sultan Abu Backer, op. cit. lxviii
The hearsay rule would not be a worthless paper, but a house with broken windows and unpainted
walls – unsightly, but having adequate basic foundations to weather the storms of injustice.
1.6 Abolishing the Hearsay Rule?

Let us address the elephant in the room. There is a popular trend to completely abolish the hearsay
rule. Countries which have done it include New Zealand16 and Scotland17. In Canada, the principle-
based necessity and reliability approach is undertaken.18

The advantage is that fact-finders can rely on the maximum amount of information before them on
which to base their decision.

However, there are 3 main reasons why Malaysia should not adopt this trend:

i) Quantity wise, a vast amount of evidence, much of which could be superfluous, would flood
the courts. A Defendant would bear every conceivable evidence in hoping to exonerate himself.

The counter-argument is that no party would willingly present evidence of low probative value
because non-hearsay evidence is preferable whenever available.19 Moreover, failure to do so
could attract adverse inferences.20

ii) Nonetheless, the counter-argument does not address concerns of the quality of the evidence.
When there is a multitude of second, third or fourth hand evidence, how would a party know it
is of low probative value? Sir James Stephen abhorred the incalculable amount of time wasted
in tracing unauthorized gossip, and to discover the grains of truth which may lurk in it is “like
trying to trace a fish in the water”21

iii) Realistically, the law is and will be administered by lawyers and judges who have long been
accustomed to reject or scorn hearsay. Within a short time, a body of cases would have
developed on the question of what was or was not sufficiently relevant. Judicial suspicion of
hearsay evidence might cause the hearsay rule to resurface in the exercise of this discretion. 22

As Professor Jackson points out “The truth is not out there waiting to be picked up; it has to be
constructed by a procedure”.23 The value of a familiar system should not be underestimated.24

Recommendation 1  Therefore, it is suggested that the codified exceptions to the hearsay rule
be retained, with the Legislature inserting new exceptions whenever new legal trends develop.

2.0 A Safety Valve to Allow Admissibility of Cogent Evidence

At times, Malaysia’s rigid statutory exceptions excludes cogent evidence that don’t fall within the
exceptions. In Sparks v R, hearsay prevented a white man accused of assaulting a three-year-old girl
from leading evidence that she had initially described her attacker as “a coloured boy”.25 There may
be unjustified acquittals where a key witness, such as the victim, is not in a position to appear in court.

16
s 18 of the New Zealand Evidence Act 2006
17
Civil Evidence (Scotland) Act 1988 (c 32)
18
Abu Bakar Munir, op cit.
19
Hong Kong Law Reform Commission. (1996) Report on Hearsay Rule in Civil Proceedings, para 3.42
20
Ibid
21
Stephen, J. (1872). Introduction to the Indian Evidence Act. London: Macmillan & Co. 125.
22
New South Wales Law Reform Commission (1978). Report 29 Outline (1978) – The Rule Against Hearsay. 56.
23
Jackson, J. D., Review of Twining’s Theories of Evidence: Bentham and Wigmore (1985), (1987) 38 NILQ 98, 100.
24
Hong Kong Law Reform Commission, op. cit.
25
[1963] UKPC 16
Recommendation 2  This could be remedied by the addition of a “safety valve” provision, as
suggested by the UK Law Commission26, which borrows the necessity and reliability test of
Canada in admitting evidence which may be in the interests of justice.

There might be worries that the problem with uncertainty might arise. But the “safety valve”
provision strikes the right balance – combining rules of automatic admissibility (where discretion
does not play a part) with an inclusionary discretion (to ensure fairness in the individual case).

3.0 Justice for the Accused - Repealing s 32(1)(i) and s 32(1)(j)

s 32(1)(i) permits the admissibility of statements made in the course of investigation or inquiry into
an offence. s 32(1)(j) permits statements made by a public officer in discharge of his duties. These
are read together with s 112 of the Criminal Procedure Code (CPC) which empowers the police to
examine and record the statements of the accused. s 113 of the CPC are confession statements
recorded by the police incriminating the accused.

Under exceptions (i) and (j), the prosecution may introduce s 112 and s113 statements without the
necessity of the recorder being present at the trial. Moreover, no oath or affirmation is required
before such statement is recorded.

The accused has a monumental task to disprove such statements without cross-examination. In the
majority of the cases, the accused will not know the author’s identity. Even if he knows, it is unlikely
that he would have any material to contradict, impeach or discredit the author policeman.27

Article 6(3) of the European Convention on Human Rights provides that an accused has the right to
examine a witness against him. The case of Al-Khawaja and Tahery v United Kingdom28 has held
that a breach of the right to a fair trial occurs when hearsay evidence was the sole or decisive
evidence on which the conviction was based. In England, hearsay evidence submitted by the
Prosecution is disallowed under s 78(1) of the Police and Criminal Evidence Act 1984.

In PP v Mohd Jamil bin Yahya & Anor29, Justice KC Vohrah criticized and hence mitigated the
harshness of exception (i) and (j) by giving low probative value to the evidence.

Exceptions (i) and (j) do not consider the high stakes of criminal trials and “vulnerability of evidence
to be abused”30, as the accused is pitted against the “force and might of the State”.31

Recommendation 3  The least Malaysia could do is to abolish exceptions (i) and (j) in s32, so
that safeguards in Chapter xxxix of the CPC such as cross-examination can be retained.

5.0 The Notification Requirement – A Safeguard Against Hearsay Exceptions

s 158 of the Evidence Act provides that whenever any statement relevant under s 32 is proved, all
matters may be proved either in order to contradict or to corroborate it. Further, parties can also
impeach or confirm the credibility of the person who made the statement.

26
English Law Commission. op. cit. para 8.133
27
Hamid Sultan Abu Backer, op cit.
28
Application No. 26766/05 [2011] ECHR 2127 (15 December 2011)
29
[1993] 2 AMR 3258
30
Pang Chee Meng v PP [1992] 1 MLJ 141, per Abdul Hamid Omar LP.
31
PP v Law Say Seck & Ors [1971] 1 MLJ 201, per Sharma J.
Nonetheless, practical wise, the other party would sometimes be uninformed or unprepared to rebut
any ensuing hearsay evidence admitted against him.

Recommendation 5  Thus, following the UK Law Commission, 32 it is recommended that

whenever possible, the application to admit such a statement should be made before trial and,
where this is not possible, at the start of a trial; so as to notify the other party.

5.0 Computer Generated Documents

Section 90A to 90C of the Evidence Act33 generally governs another exception to the hearsay rule –
documents produced by a computer now need not be tendered by its maker.

The main problem is that the phrase “document produced by a computer” is often misleading. In
Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & 2 Ors 34 , Justice Richard Malanjum was
concerned that any document, including an invoice, would be admitted regardless of its authenticity
as long as it was printed by a computer. In the information technology age, especially when white
collar crimes are growing rampant and most evidence now come in the form of documents, the law
on hearsay must keep pace.

Recommendation 7  Thus, a distinction must be drawn between documents where its output
is a mere regurgitation of its input, and one which is a product of the computer’s processing
and calculation. The former is considered hearsay, while the latter falls within the hearsay
exceptions.

This is the proposition supported by Mariette Peters35 and the High Court of Singapore in PP v Ang
Soon Huat.36

32
English Law Commission. op. cit. para 2.21
33
Introduced by the Evidence (Amendment) Act 1993 (Act A851)
34
[2001] 1 LNS 3
35
Peters, M. op cit. 195
36
[1991] 1 MLJ 1
 Bibiliography

Statutes
Malaysian Criminal Procedure Code (Act 593) & Rules
Malaysian Evidence Act 1950
New Zealand Evidence Act 2006
Scotland Civil Evidence Act 1988

Law Reform Commission Reports

English Law Commission. (1999). Evidence in Criminal Proceedings: Hearsay and Related Topics
Hong Kong Law Reform Commission. (1996) Report on Hearsay Rule in Civil Proceedings
Irish Law Commission. (2010). Consultation Paper: Hearsay in Civil and Criminal Cases
New South Wales Law Reform Commission (1978). Report 29 Outline (1978) – The Rule Against
Hearsay
Singapore Academy of Law (2007). Report of the Law Reform Committee on Reform of
Admissability of Hearsay Evidence in Civil Proceedings

Books
Abu Bakar Munir (1998). Hearsay at the Crossroads. Current Legal Problems in Malaysia (ed.
Mimi Kamariah Majid) Kuala Lumpur: University of Malaya Press.

Halsbury’s Laws of Singapore: Evidence. Vol.10. (2000) Singapore: Butterworths Asia

Peters, M. (2013) Law of Evidence in Malaysia. Kuala Lumpur: Lexis Nexis
Stephen, J. (1872). Introduction to the Indian Evidence Act. London: Macmillan & Co.

Younger, I. (1988) Hearsay: A Practical Guide Through The Thicket. Clifton, New Jersey:
Prentice Hall.

Zuckerman, A. (1989) The Principles of Criminal Evidence. Oxford: Clarendon Press.

Journals
Abu Bakar Munir, Facing The Inadequacies of Protection Afforded By The Law, [1993] 1 MLJ xv

Birch, D. J., Children’s Evidence [1992] Crim LR 262

Brannon, L. C., The Trauma of Testifying in Court for Child Victims of Sexual Assault v. The
Accused's Right to Confrontation 18 Law & Psychol. Rev.
Hamid Sultan Abu Backer, Is Section 32(1)(i) and (j) of the Evidence Act 1950 abhorrent to notions
of justice and fair play? [2000] 4 MLJ lxv.

Jackson, J. D., Review of Twining’s Theories of Evidence: Bentham and Wigmore (1985), (1987) 38
NILQ 98,
Marsil, D, F., et al. (2002). Child Witness Policy: Law Interfacing With Social Science, 238 Law and
Contemporary Problems 2002 [Vol. 65: No. 1]
Nithiyanantham Murugesu, The Role of the Law and the Courts In Preventing The Abuse of Children
– Thee Malaysian Perspective [2010] 5 MLJ cxxv.

Conference Paper
Warner, K. (1988) Child Witnesses: Evidentiary Reform. Paper presented at the Conference on
Children As Witnesses, Australian Institute of Criminology, Canberra, 3-5 May.

Cases
Al-Khawaja and Tahery v United Kingdom Application No. 26766/05 [2011] ECHR 2127 (15
December 2011)

Approfit Sdn Bhd v Kent Sing Construction Sdn Bhd & 2 Ors [2001] 1 LNS 3

Lim Ah Oh & Anor v R [1950] 1 MLJ 269

Myers v Directors of Public Prosecution [1965] AC 1001

Pakala Narayana Swami v King Emperor [1939] 1 MLJ 59, PC.

Pang Chee Meng v PP [1992] 1 MLJ 141

PP v Ang Soon Huat [1991] 1 MLJ 1

PP v Law Say Seck & Ors [1971] 1 MLJ 201
PP v Mohd Jamil bin Yahya & Anor [1993] 2 AMR 3258

Sparks v R [1963] UKPC 16