HEARSAY

Common Law definition:

‘Hearsay is, a statement, whether oral

or writing or otherwise, made by a
person who has not been called as a
witness in the instant proceeding; or
who has been called as witness but
made a statement not in the process of
giving evidence in that court.’
Cross:

‘Hearsay evidence is a
statement, other than one made
by a person while giving oral
evidence in the proceeding.’
The term hearsay is rather
ambiguous and misleading and
perhaps it has therefore been
purposely excluded from the
Evidence Act.
Cross:

‘One of the most oldest, most

complex and most confusing of
the exclusion rules of evidence.’
Lord Reid in Myers v DPP
[1964] 2 All ER 881 p.884:

‘It is difficult to make any

general statement about the law
relating to Hearsay Rule which
is entirely accurate.’
However, inference can be drawn
from s. 59 which states that al facts
may be proved by Oral evidence,
and s. 60 states that oral evidence
shall in all cases be admitted
whenever direct. Thus, any indirect
evidence may amount to hearsay
and therefore inadmissible.
 TYPES

A - EXPRESS ASSERTIONS

i. Oral hearsay
ii. Written hearsay
i. Oral Hearsay

Karam Singh v PP [1967] 2 MLJ 25

the son’s evidence as to the father
telling him of quarrel on night before
the murder was a clear oral hearsay
ii. Written Hearsay

V. Suppiah v KMA Abdul Rahim

[1974] 2 MLJ 183 : the report made by
clerk of a firm of professional
surveyors who was not called or
justified under s. 32 was held as written
hearsay.
B. IMPLIED ASSERTIONS
Statements or conducts not intended to be assertive but which rest
on some assumption of fact believed by the maker of the
statement or the doer of the act which can be inferred by the court

E.g. A telephone call placing a bet was intercepted by the police

and such evidence was tendered to prove that the premises from
where the phone is operated was used for illegal gambling (Kok
Ho Leng V PP)
 REQUIREMENT

The locus classicus on the judicial definition is found in

the speech of Mr. L.M. de Silva who spoke for the Privy
Council in Subramaniam v PP [1956] 22 MLJ 220:

‘Evidence of a 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
witness, not the truth of the statement, but the fact that it
was made.’
Rationally, not all out of court
assertions are hearsay, the
deciding factor of admissibility
is the purpose.
 RATTEN V REGINA
[1972] AC 378
“The mere fact that evidence of a witness includes evidence as to words spoken
by another person who is not called is no objection to its admissibility. Words
spoken are facts just as much as any other action by a human being. If the
speaking of the words is a relevant fact, a witness may give evidence that
they were spoken. A question of hearsay only arises when the words spoken
are relied on 'testimonially', i e as establishing some fact narrated by the
words.”
 R V ANDREWS
[1987] AC 281
“Hearsay evidence of a statement made to a witness by the victim of an attack
describing how he had received his injuries was admissible in evidence, as part of the
res gestae, at the trial of the attacker if the statement was made in conditions which were
sufficiently spontaneous and sufficiently contemporaneous with the event to
preclude the possibility of concoction or distortion. In order for the victim's
statement to be sufficiently spontaneous to be admissible it had to be so closely
associated with the event which excited the statement that the victim's mind was still
dominated by the event. If there was a special feature, e g malice, giving rise to the
possibility of concoction or distortion the trial judge had to be satisfied that the
circumstances were such that there was no possibility of concoction or
distortion. However, the possibility of error in the facts narrated by the victim went to
the weight to be attached to the statement by the jury and not to admissibility. Since the
victim's statement to the police was made by a seriously injured man in circumstances
which were spontaneous and contemporaneous with the attack and there was thus no
possibility of any concoction or fabrication of identification, the statement had been
rightly admitted in evidence.”
Seah FJ decided in Leong Hong Khie &
Tan Gong Wai v PP [1986] 2 MLJ 206
that the court, in making the inference, is
not relying on the truth as to what said but
rather the fact of the belief of the maker in
making such a statement. In the present
case, state of mind is not directly in issue
and therefore irrelevant.
 RATIONALE

Lord Normand said in TEPER V R [1952] AC 480:

“The rule against the admission of hearsay evidence is

fundamental. It is not the best evidence and it is not
delivered on oath. The truthfulness and accuracy of the
person whose words are spoken to by another witness
cannot be tested by cross examination, and the light
which his demeanor would throw on his testimony is
lost.”
Seah FJ stated in Leong Hong Khie &
Tan Gong Wai v PP [1986] 2 MLJ
206:

“In our opinion, another reason is the

danger that hearsay evidence may be
concocted, fabricated and tailored to
suit the witness's testimony.”
In truth, it has a very slightest probative
value so as to allow the possibility of
weaker evidence to replace stronger
evidence, in furtherance of infringement,
exaggeration, misrepresentation and
suppression of truth. Therefore it is
desirable in the interest of justice and
principle of fair trial to get the relevant
person as witness before the court.
 EXCEPTIONS

S. 32 specifies practically very strict

conditions to be proved before hearsay
evidence can be admitted.
 EXCEPTIONS

FIRST REQUIREMENT:

Why the maker cannot be called as a witness?

sec. 32 (1)
i. maker of the statement is dead, or
ii. lost, or
iii. subsequently incapable of testifying, or
iv. whose attendance cannot be procured without
inordinate delay or expense.
 EXCEPTIONS

SECOND REQUIREMENT:

What is the nature of the statement of the maker?

sec. 32 (1)
paragraph a - j

note: paragraph i & j are only applicable in criminal

cases.
s- 32 (1) (a) Dying Declaration

Covers both civil and criminal cases as long as it

is made as to the cause of his death or the
circumstances of the transaction which resulted
in his death, if relevant.

Unlike Common law, it is not limited to cases of

murder, nor required to be made under
expectation of death. Provided that it is made
ipsissima verba and treated with the utmost
caution.
ipsissima verba (actual word by word, not summary)

TOH LAI HENG V R

[1961] 1 MLJ 53
“It is no doubt true that a dying declaration need not be proved by writing at all;
and there are many cases where eye-witnesses at the scene of an attack, or
persons arriving shortly thereafter, may hear the last words spoken by a dying
man and their recollection of those words will properly be received in evidence.
In practice, of course, such a witness would be required to give the exact words
spoken by the deceased and, in so far as they are relevant, any words spoken to
the deceased by the witness himself.

If, however, the dying declaration is reduced to writing -- and this would
invariably be the case in the event of the witness in question being an
investigating Police Officer, Magistrate or someone of that kind -- the actual
words of the deceased must be recorded.”
utmost caution

MOHAMED BIN ALLAPITCHAY

& ORS
V
R
[1958] 1 MLJ 197
utmost caution

CHAN PHUAT KHOON V PP

[1962] 1 MLJ 127
“We have examined the judgment of the trial Judge with very great care. He
discusses at very great length and with considerable perspicuity a number of
issues in the case. He discusses the medical evidence at length and comes to
certain conclusions regarding it. He discusses the credibility of the woman's
husband and comes to a certain conclusion regarding it. He discusses the
credibility of the appellant and comes to certain conclusions regarding it. But
nowhere does he discuss the credibility of the dead woman. In the
circumstances and having regard to the care and detail with which he clearly
applied his mind to the other issues in the case, we are forced to the conclusion
that he did not apply his mind to the vital issue in the case, which was: did that
voice from beyond the grave speak the truth? was it to be relied upon?”
s. 32 (1) (b) Statement made by person in
course of business

SIM TIEW BEE V PUBLIC

PROSECUTOR

[1973] 2 MLJ 200

S. 32 (1) (h) Feelings or impressions

TEPER V REGINAM
[1952] AC 480
“The special danger of allowing hearsay evidence for the purpose of
identification requires that it shall only be allowed if it satisfies the strictest test
of close association with the event in time, place and circumstances.”
S. 33 relevancy of certain evidence
for proving in subsequent proceeding
the truth of facts therein stated

MOHAMED KUNJU v PUBLIC PROSECUTOR

[1966] 1 MLJ 271
“A report was lodged by the mother at the police station on the following day. That report was
based on hearsay and therefore not admissible. PW1 was examined by Dr Subodh Kumar, and so
was the accused who had since been arrested. Dr Subodh Kumar, who gave evidence at the
preliminary enquiry, was cross-- examined at great length by defence counsel. He was not available
at the present trial and the prosecution applied to tender his deposition under the provisions of s 33
of the Evidence Ordinance. The principle under which those provisions can be applied has been
stated by various authorities. Suffice it if I reproduce a passage in the judgment of the Court of
Appeal in Kee Siak Kooi v Regina
(1955) MLJ 57, CA: "It is established law that before any evidence can be admitted under s 33 of
the Evidence Ordinance, 1950, proof of the circumstance contemplated in that section must be
strictly given". “