HEARSAY

A statement made out of court that

is offered in court as evidence to
prove the truth of the
matter
asserted.
See the trial of Sir Walter Raleigh;

Subramaniam v PP
-

In this case, the accused was

charged
with
unlawful
possession of ammunition. His
defence was that he had been
captured by terrorists and was
acting under duress.

The trial judge held that the

evidence of his conversation
with
the
terrorists
was
inadmissible
unless
the
terrorists testified. The Privy
Council allowed his appeal.

The hearsay rule was not

infringed because his evidence
about what the terrorists had
said to him was not adduced
in order to show that what the
terrorists had said was true
but in order to show that
threats had in fact been made.

What is hearsay evidence?

Ratten v R
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
PP v Datuk Seri Anwar bin Ibrahim

It follows that a party, who

wishes to have a statement
admitted, not in proof of its
truth but to show that it was
made, must also show its
relevancy.
In my opinion, the fact that a
statement was made does not
on its own make it admissible.
It must be shown to be
relevant to a fact in issue as
the fact that a statement has
been made may be admissible
for many purposes.
If the purpose is not shown,
the court would be in no
position to rule on the
relevancy of the statement
with regard to the facts in
issue, and, if it is not relevant
at all, the statement would
amount to hearsay and
thereby become inadmissible.

Hearsay evidence is evidence

that is not direct. Direct
evidence is the testimony of a
person who testifies directly to
the court in pursuance of his
own knowledge of a fact or
observation of a fact.
Evidence that is not direct is
what a witness testifies in
court about what he heard
from a third party who is not
himself called as a witness.
The evidence of such a
witness is inadmissible to
prove the truth of the fact
stated. Hearsay is therefore
properly speaking secondary
evidence
of
any
oral
statement.
E.g when witness A says that B
told him about the happening
of an event X (B is not call
before the court). As assertion

about event X being not based

on his own observation so he
is not qualified to speak about
it. BUT if the object is only to
prove Bs assertion of the
event and NOT TO PROVE THE
TRUTH OF THE EVENT, A then
is competent to speak about it
and such evidence tender may
be received if it has any
relevancy in the case.
4 elements must be present for the
statement to fall within the definition
of hearsay (if it does, as a GR = not
admissible)
i.
ii.
iii.

iv.

Out of ct assertion
Repeated in ct
The original maker of the
statement is not witness
(cannot be cross-examined)
The purpose of adducing
the assertion is to prove
the truth of content

Rule
Anything to be proved by oral
testimony may be proved only by
witnesses
through
personal
observation of their own senses and
not from what they have been told.
The evidence must therefore be
direct in this sense.
In Malaysia, section 60 of Evidence
Act 1950 lay down that oral evidence
must be direct. Oral evidence shall in
all cases whatever be direct, that is
to say:
(a) if it refers to a fact which could
be seen, it must be the evidence of a
witness who says he saw it;
(b) if it refers to a fact which could
be heard, it must be the evidence of
a witness who says he heard it;

(c) if it refers to a fact which could

be perceived by any other sense or
in any other manner, it must be the
evidence of a witness who says he
perceived it by that sense or in that
manner

Reasons
for
evidence:
-

excluding

hearsay

Not given under oath

Maker cannot be tested under
cross examination
To
avoid
fabrication
and
concoction
Unreliable
(misreporting
&
inaccuracy)

Distinction between original evidence

and hearsay
-

Not all the ct assertion will fall

within the def of hearsay
Its
only
hearsay
if
the
statement is being tendered to
prove the truth of contents
It the out of ct statement is
being tendered for some other
purpose

Original
evidence/direct evidence
Statements which are being
tendered for:
a) To show knowledge
b) That a statement was
made
c) State of emotion/mind
d) Duress
*accepted as OE and not
hearsay (matter of judicial
opinion as other man = other
view. Very subjective)

Express & implied assertions

i.

Express assertion:

Statement tendered to
prove the truth of its
direct meaning.

ii.

Implied assertions:

Statement is tendered
to prove the hidden
meaning/fact

*note that hearsay rule

will
only
apply
to
implied assertions.

a)
b)
c)
d)
e)
f)

a).

to

the

rule

against

s. 32
s. 33
s. 73A
s. 90
res gastae/s. 6
confession/admissions

s.32 of EA
-

it was X who attacked

me
it was a white boy
the get away car no
was PUxxx

hello X
Impliedly saying: X was
there
I saw Ms.X coming out
of Hotel Dunia

Exceptions
hearsay

o
o

are
relevant
under
the
following circumstances: Para
(a) to (j)
when will it apply:
Precondition + at least 1 para
(a-j) applies = s. 32 exception

These must be strictly proven

according to A. Paul.
Party wishing to rely on the
exception must explain &
provide evidence to support.
Precondition + para
Burden : s.104
Allied Bank Bhd v Yau Jiok Hua
6 years of claim (old claim
more than 1 million)
The witness is in Australia
The parties wanted to argue
the unreasonable delay &
expenses
Wanted to use s. 32
Held: the precondition (s.
104) is not satisfied. The
argument was rejected
therefore s. 32 is not applied.

Sim Tiew Bee v PP

-

preconditions:
under s. 32 a statement could
only be admitted as an
exception to hearsay provided
it was made by 4 categories of
person:

the maker is dead

the maker cant be
found
incapable
of
giving
evidence
unreasonable
delay/expenses

Tendering in the tally sheet,

manifest and gunny sack
And has Sim Tiew Bee, Sibu
written on it
The maker of the tally sheet
and manifest are not in ct
S. 32(b): gunny sack cant be
tendered and not fall within
the para (b) not made in
ordinary cause.
Held:
para (b), the tally
sheet and manifest satisfied
but the precondition is not
satisfied therefore, s. 32 not
applied and rejected.
But under the precondition,
the gunny sack is satisfied.

*to allow the evidence in

under s. 32 must prove and
satisfied the preconditions and
the s. 32 the paragraph.
-

Ng Yik Kwok v PP
Wanted to tender in the
receipt of the payment of the
hotel in Bangkok
The maker of the receipt =
cashier at the Bangkok Hotel
The maker refuse to come to
the ct
The precondition is satisfied as
the maker of the receipt made
it very clear that he will not
come to Malaysia to testify
Also, the receipt was produced
in an ordinary cause.

s. 32 (1) a
-

when the statement is made

by a person as to the cause of
his death, or as to any of the
circumstances
of
the
transaction which resulted in
his death, in cases in which
the cause of that persons
death comes into question.
Such as statement is relevant
whether the person who made
it was or was not at the time
when it was made under
expectation of death, and
whatever may be the nature of
the proceeding in which the
cause of his death comes into
question.
a.k.a dying declarations
conditions:
maker is dead
cause of death comes
into issue
statements relates to:
i)
cause of death (after
infliction
of
injury)
*more value

ii)

the transaction which

results in death (before
the infliction of injury)
no need for statement to be
made in expectation of death
can be verbal (exact words
based on recollection) or in
writing (actual words)

in Malaysia, we applies both before

and after the infliction of injury. While
CL only applies after injury = made
in expectation of death.
*for the dying declaration, not
necessarily for it to be in writing but
its the best (verbal is sufficient)

Chandrasekara v R
-

the precondition of the dying

declaration is satisfied
admissible even though it is
hearsay
very high value
Pakala Narayana Swami v
King Emperor

A was charged with murder

The V was found cut into 7
pieces and was put in a trunk
Prosecution has found the
evidence shows that A bought
the trunk and has brought it to
his house.
The evidence brought in is the
statement made by the V to
his wife stating that:
V went to As house to collect
his debt
The statement made before
the
injury
can
still
be
considered
as
dying
declaration

Yeoh Hock Cheng

-

She was killed on the 14th

March

She has made 2 statements

before her death
i)
5th March to her dad
saying that A threaten
to kill her if she tells
anyone that she was
sleeping with him
ii)
On the day she died,
14th March to her sister
saying that shes going
to meet A but was
asked by A to disguise
as a guy
Held: the 1st statement was
too remote and the 2nd
statement can be admitted as
the dying declaration
*the mere proximity, the
higher it is likely that the ct
will
accept
it
as
dying
declaration

Chan Phuat Khoon v PP

Ct has to evaluate the deceased is
he a person worthy of credit
s. 32 (1) b
-

Boota Singh v PP
The statement made 9 months
before the actual death was too
remote
Haji Salleh v PP
-

1 month before the death was

threaten by A
The ct held that it is too
remote therefore cannot be
accepted
Nembhard v R
Admissible but lower in

value

was interpreted and translated

to the PO
Need to call the nurse to
testify in ct

Statement was made in the

ordinary course of business
Eg: the receipt can fall under
this section
Professional duty (write letter
every day) = ordinary course
of business
Conditions:
o Statement made in the
ordinary
course
of
business
o By a maker who has
personal knowledge of
matter stated
o Only allows 1st hand
hearsay
Difference between s. 32(1)b
& s. 73A
s. 32 (1) b
Both criminal
and civil
Oral
and
documentary
Only when has
personal
knowledge

Toh Lai Heng v R/Ong Her Hock v PP

Can either be in verbal or in
1st
hand
hearsay ony

writing

Naranjan Singh v PP
-

Dying declaration to the nurse

was in Mandarin and later it

s.32
precondition

s. 73A
Civil only
Only
documentary
Only when has
personal
knowledge or
not (record it
from someone
else)
1st & 2nd hand
hearsay , OE
and
also
hearsay
(wider)
Hearsay
can
be
admitted

must
satisfied

be

even
witness
available

if
is

Examples:
Sim Tiew Bee v PP
(1)

A marked papers and signed it (has

the personal knowledge)

1st hand
Hearsay
A tell B who didnt have the personal
knowledge

Syarikat Jengka Sdn Bhd v

Abdul Rashid
-

2nd hand
Hearsay

B told the students

(2) Dr. X examines Mr. Y and Dr. X

prepares the report. Dr. X has died
and now the report is being tendered
by another witness, Dr. Z.

Dr X

Dr. Z

(Has personal Knowledge)

(3) J takes the measurements of the

shipment and reads it to K while K
records the details and signs the
document. Both J & K cannot be
found. Document is tendered through
L.
J

K
1st hand

L
2nd hand

Dispute on how much timber

has been extracted
Document prepared by Ps son
was tendered
Ps son dead (precondition
satisfied)
Document on the record of
how
much
timber
was
extracted
The paragraph is not satisfied
as it is not in ordinary course
of business

Wan Salimah v Mahmood Omar

-

- 1st hand hearsay

The tally sheet, manifest and

gunny sack
Precondition for the gunny
sack is satisfied but not the
tally sheet and manifest
Not in ordinary course of
business

When it is necessary for the

records to be made (before or
after the dispute arose)
Ct said doesnt matter
Before dispute is much in
weight
Abdul Khoder v Low Yam Chai

Medical report made by doctor

(professional duty) can be admitted
Ng Yiu Kwok v PP
Receipt fall under para (b) of s. 32
Vaynar Suppiah v KMA Abdul Rahim

Ct held s. 32 (1) b will only admit 1st

hand hearsay and no other
Allied Bank Bhd v You Jiok Hua

Ward v Pitt
-

S. 32 (1) b : only admit 1st hand

hearsay
S. 73A : allow both 1st & 2nd hand
hearsay

s.32 (1) c
-

when the statement is against

the pecuniary or proprietary
interest of the person making
it, or when, if true, it would
expose him or would have
exposed him to a criminal
prosecution or to a suit for
damages.
Statement against your own
interest (damaging to yourself)
is likely to be true.
Sussex Peerage Case

Ps father was Lord Sussex got

married to Ps mother without
the Kings permission
Both the parent is dead and
theres only 1 child
The child wants to claim the
fathers title therefore he has
to prove that he is the
legitimate child to the couple
PP v Foster

A facing the charge of drug

trafficking (a german citizen)
Affidavit of the persons who
travelled with him stating that
the drugs are not belonging to
him but the other colleagues.
Statement that will be against
the interest of the maker and
open themselves to criminal
proceeding
Admissible

The maker has the personal

knowledge of the document/
statement made
The illegitimate child who
wants to claim for the fathers
pension after his death must
prove that the father has the
personal knowledge of his
existence
Ct held that only the mother
who actually knows and the
father didnt have the personal
knowledge
Tucker v Old Bury UDC

The person making the statement

must be aware that it is against his
interest.

s. 32 (1) h
-

When the statement was

made by a number of persons
and expressed feelings or
impressions on their part
relevant to the matter in
question
Spontaneous reaction by a
group of people

Du Bost v Beresford
-

beauty & the beast

D is being sued by the painter
as D has destroyed the
painting named above.
Of his sister and the husband
Everyone reacted in the same
manner (utter horror)
No need to bring all the people
who saw the painting and only
one person is enough

s. 32 (1) i & j

(i) when the statement was

made in the course of, or for
the
purpose
of,
an
investigation or inquiry into an
offence under or by virtue of
any written law
(j) where the statement was
made by a public officer in the
discharge of his duties
(2) the provision of para (i) &
(j) of subsection (1) shall
apply only in relation to a
criminal proceeding
Only applies to criminal cases
More recent addition to EA
Issue: conjunctive/disjunctive
reading

Page 177
HC decision: the J reads the
para conjunctively

Disjunctive
-

Use by the prosecution

Precondition
Read it separately
Wider
PP v Mohd Jamil b Yahya

The word and is to put an

end and not to read jointly
Diff approach: evidence admit
on weight
PP v Lam Peng Hoa

The para needs to be disjunctively

PP v Mohd Fairuz
The J in Michael Anoyo is isolated
therefore it is agreed that the judges
has made up their mind that the para
(i) & (j) disjunctive

Conjunctive
disjunctive
I & j should
marks the

be

(i)
read

together

end of the
section
Impact:
Conjunctive
-

Use by the defense

Precondition
When the statement is made
in
the
course
of
an
investigation
Where it was made by public
officer
(both I & j must be satisfied ie
only statements made by a
public officer in the course of
any investigation will be
admissible) narrow
Michael Anoyo v PP

(j)

S. 107, 112, 113

s. 119, 112

Ayoromi Helen v PP
-

Was caught with drugs and

made 112 statement
Green was dead and can the
statement be admissible
Ct use the disjunctive rule
Kobra Taba Seidali v PP

It is essential to note that (i)

must be read conjunctively
with (j) and is only related to
public
officers
and
not
witnesses
S. 32(1)(i) & (j) was dealt by
Hamid Sultan JC
The J in COA read the para
conjunctive
Bandhala Undik v PP

b)

The doctor who confirmed that

the deceased was dead did
not give evidence as he had
left the country and his report
was admitted under s. 32(1)
(j) of EA

s. 33
-

allow for evidence by a

witness in case to be admitted
in a subsequent proceeding or
at a later stage in the same
proceeding as an exception to
hearsay
element:
o precondition (witness is
not available)
idead
iicant be found
iiiincapable
ivkept away
vunreasonable
delay
o the evidence was given
in a judicial proceeding
or
before
anyone
authorised to by law to
take it
o same parties
o opportunity & right to
cross-examine
(in
earlier proceeding)
o same issue

under this sec a statement

would be admissible in 3
circumstances:
a) where the maker is called
as a witness ( document
will be admitted to show
consistency) OE in s.
73A(1)b
b) where the maker of the
statement is not available
c) where
the
maker
is
available but not called as
a witness (s. 73A(2)a)
statement is admitted as
an exception to hearsay
this sec will allow both primary
& secondary copies (s. 73A
(1) + (2)b)
statement must be made
before the dispute (s. 73A(3))
Allied Bank Bhd v Yau Jiok Hua

allow
2nd
hand
hearsay
provided
it
was
in
the
performance of a duty to
record information supplied to
him by a person who had, or
might reasonably be supposed
to
have
had,
personal
knowledge of those matter
s. 73A(1)a(ii)

Lakshamana v Vardhanamma
-

c)

s. 73A
-

Arab Malaysian Merchant Bank

v Chong On Foh

apply to both civil & criminal

apply to evidence given by a
witness
in
a
judicial
proceedings
apply to evidence given by a
witness before any authorised
person

only civil cases

only statement in a document

d).

page 190
the maker not available as he
is busy
still can be admissible

s. 90A
-

use this when dealing with

computer generated evidence
can be admissible as the truth
of content
allowed hearsay evidence

document was produced by a

computer in the course of its
ordinary use
s. 90A (1) & (2):
tendering the doc + signed by
the person (the certificate)
even if the cert is not
tendered, its not fatal as long
as the maker is there to give
the oral evidence

evidence of SP61 that

he was the person
responsible
for
the
management
and
operation
of
that
computer. What he said
was:
pada
masa
saya
mencetak document ini
daripada comp saya,
comp
saya
tersebut
adalah
di
dalam
berkeadaan baik dan di
dalam
perjalanan
fungsinya yang biasa
begitu
juga
printer
untunya

Ganasegaran v PP
Oral evidence by person in charge of
operations was sufficient to satisfy
the requirement of s. 90A(2)

s. 3 : def of document and

comp
smartphone would fall within
this def
s. 62
in
Malaysia,
a
wide
interpretation
has
been
adopted and has been held to
include
the
following
documents:
bank
statement
(Ganasegaran v PP)
computerised
bus
tickets
(Hanafi
Mat
Hassan v PP)
DNA results (Ahmad
Najib Aris v PP)
CCTV
recordings
(Ahmad Najib Aris v PP)
E-mail
print
out
(PETRONAS v Khoo Nee
Kiong)
H/p logs data (Azilah
Hadri v PP) COA
Witness: Celcom officer
who
prepared
the
scripted logs data from
raw
data
(computer
print out)
CA: s. 90A(2) not
satisfied as we noted
that it was not the

FC: in this case, the call

logs were produced by
computers in the course
of their ordinary use by
very makers, namely
PW61, 62 & 63 hence
dispensing
with
the
requirements
of
tendering to the ct
signed cert that they
were responsible for the
management
of
the
operation of the comp,
or for the conduct of the
activities
for
which
those comp were used
for. The need to adduce
the cert as required by
s. 90A(2) of EA had
thus
becomes
redundant.
*s. 90A should only be applied to
things that doesnt involve human
intervention.

e)

res gastae
-

Statement which are part of

the same transaction as the
fact in issue
Spontaneous statements

Exited utterance rule

Instinctive reaction to the
drama unfolding
Exception to hearsay
Example:
stop thief!!!
get me the police!!!
your
house
is
on
fire!!!
Logic: no threat of fabrication
or concoction as its a
spontaneous and instinctive
reaction to an event.

CL

contemporaneous with the

action or event, at least so
clearly associated with it in
time, place and circumstance
that they are part of the thing
being done and not merely a
reported statement.
Thus, the requirement of
contemporaneity, that is the
statement must be made at
the moment of the act,
explaining the act itself,
accompanying it as applied in
Bedingfield was thought to
be too strict.
One element which attracts
attention is that while a gap of
about
26
minutes
was
considered as having broken
the causal link between one
fact and the other.

s.6
Ratten v R

Common Law:
Bedingfield
-

Facts: murder charge. Defence

claims it was a suicide
Vs throat had been cut, she
rushed out of the room and
said to her aunt:
see what harry has done to
me
Cockburn CJ: its RG only if the
statement
is
made
contemporaneously with the
fact in issue
On facts: not RG as not part of
same transaction. Statement
was made after it was all over.

Get me the police few mins

bef attack

OE
attack W)

Teper v R
-

your place burning and you

are going away from the fire
26 mins after the fire started
Lord Norma said: It is
essential that the words
sought to be proved ... should
be, if not absolutely

Implied

Assertion(

A was convicted of the murder

of his W by shooting her with a
shotgun.
His defence was that the gun
had discharged accidentally
while he was cleaning it.
To rebut that defence, PP
called for the evidence of a
telephone operator, who
stated that shortly before the
time of the shooting, she had
received a call from the
address where the deceased
lived with her H.
The statement was sufficiently
contemporaneous to be RG

RG test: facts are such that

they exclude the possibility of
concoction/fabrication.

o
o

continuity of action,
community of purpose
or design.

Mohamed Allapitchay
R v Andrews
-

Bedingfield overruled
The court held that since the
Vs statement to the police
was made by the seriously
injured man in circumstances
that were spontaneous and
contemporaneous with the
attack,
there was thus no possibility of
any concoction or fabrication
of identification.
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.

CL RG apply in Malaysia:
-

In some cases, two facts

occurring at the same time
and place may have no
connection between them;
but in other cases, two facts
separated by a vast distance
and place may be parts of the
same transaction.
As stated earlier, it all
depends on the circumstances
of each case.
Where the transaction consists
of different acts, in order that
the chain of such acts may
constitute the same
transaction, they must be
connected by such factors as
o the proximity of time,
o proximity or unity of
place,

murder case where on the

night of the murder, the
deceased went to sleep at his
stall sometime before
midnight; several other stallholders, among them Yusoff
and Krishnan, did likewise. At
3.45 a.m.
Yusoff and Krishnan were
woken up by the noise of the
deceased shouting, "Matamata
(police), Mohamed has
stabbed me." They saw the
deceased a few yards away on
the road, pursuing 3 men who
were running away from the
scene.
When they asked him who had
stabbed him, the deceased
replied, "Mohamed stabbed
me and Hassan and Haja
Mohideen were with him."
A telephone message was sent
to the Radio Police Patrol and
in a few minutes a Radio Police
Van arrived and a Sergeant
began to take down a
statement from the deceased

s. 6 & RS as an exception to
hearsay:
o
o

s. 6 seems to reflect the CL

principle of RG
A. Paul suggests that s. 6 is
an exception to hearsay
and that it is the
codification of the CL RG
principle
End effect of this approach:
any evidence which falls
within s. 6 would fall within

RG amd can be admitted

as an exception to hearsay.

a telephone message
received on the premises
during a raid under the
Betting Enactment was
admitted as RG under s. 6
of the Act.
Murray-Aynsley J observed:
But there was one point
of some interest, whether a
telephone message to the
premises during the raid
was admissible in
evidence.
Hearsay but admissible
Implied assertion
Page 206

Cases suggesting that s. 6 is RG:

Chotka v State AIR
o

S. 6 of the EA and the

succeeding sections
embody the rule of
admission of evidence
relating to what is
commonly known as RG.
Acts or declarations
accompanying or
explaining the transaction
or the facts in issue are
treated as part of the RG
and admitted as evidence.
They are, roughly speaking,
exceptions to the hearsay
rule.

The obvious ground of

admission of such evidence
as is referred to in s. 6 is
the spontaneity and
immediacy of the act or
declaration in question.
The facts deposed to must
form part of the
transaction. The
requirement is that the
statement sought to be
admitted must have been
made contemporaneously
with the act or immediately
after it and not such an
interval of time from it as
to allow fabrication or to
reduce the statement to a
mere narrative of past
events.

o
o
o

Leong Hong Khie v PP

o

Applied the Ratten test in

the context of s. 6 and
rejected the statement.

Arguments that s. 6 is not RG as

an exception to hearsay:
Theres a misconception on whats
RG at CL
L. Wilberforce in Ratten:
RG can be used in 3 ways:
o

Assaults bef the killing which

are part of the continuous
orgy/act (OE: Hamsa Kunju)
Spoken words which are not
admitted to show truth of
contents (OE: PP v Sam Hong
Choy)/Ratten
Hearsay statement by
V/Accused/bystander (Teper)

Page 207
Which is wider:
Kok Ho Leng v PP
s.6

RG

Chin Choys test

Test

Andrews

Leong Hong Khie v PP

o

(can the possibility of

concoction&
distortion be
disregarded)
o
Hamsa Kunju v R
o

An event that occurred in

the morning was held to be
part of the same
transaction as another
event that occurred later in
the night.
The whole of this evidence
was admitted by Buttrose J
as part of res gestae.
ct was willing to accept the
earlier incident, which had
passed a whole day before,
as part of res gestae.
The same position may
very possibly be adopted
by Malaysian court as s. 6
is in pari materia with its
Singapore equivalent.

FC rejected: rejected the

res gestae argument on the
ground that the statements
were made over the course
of three days.
Seah FJ, delivering the
judgment of the court, said:
No binding authority has
been cited to prove that
hearsay evidence spanned
over a period of several
days had been admitted as
part of the res gestae.

*Though section 6 seems to be

broad enough to include the events
that do not occur
contemporaneously, the case of
Leong Hong Khie is proof of the
courts reluctance to extend the time
span of evidence forming res gestae.

Boota Singh v PP
The statement made 9 month bef the
death was too remote

PP v Sam Hong Choy

o

o
o

Where there involved

robbery when the accused
grabbed a bag belonging to
a lady. The lady shouted
Tolong saya, perompak
ambil duit saya.
A bystander heard the
called and gave a chase.
He managed to caught
him.
Evidence of the incident
was later given in
evidence. It was objected
for being hearsay.
Held: that the statement
made by a bystander was
relevant under s. 6.

Tan Geok Kwang v PP

o

a Chinese ran wounded

into a patch (area) of
blukar, and whilst the party
of police were surrounding
the blukar the handgrenade was thrown at
them.
The blukar was then
surrounded and searched,
and the appellant alone
was found, lying wounded
therein.
No other person was seen
to enter or leave the
blukar, and the appellant in
his own evidence admitted

he saw no one else in that

blukar at that time.
There is therefore a direct
connection between the
wounded Chinese who
entered the blukar, the
throwing of the handgrenade and the arrest of
the wounded appellant in
the blukar.
The evidence relating to
the throwing of the handgrenade is therefore
admissible under section 6
of the Evidence Enactment
as part of the res gestae,
because the group of
facts forming this
transaction was so
connected that the
exclusion of evidence
relating to the handgrenade would tend to
render evidence as to other
facts unintelligible
(meaningless/pointless).
Chin Choy v PP

Mathew CJ: The best test

which has been laid down
in considering this matter
is contained in Amrita Lal
Hazra v. Emperor where
it is not possible to frame a
comprehensive formula of
universal application to
determine whether two
or more acts constitute

o
o
o

the same transaction;

but circumstances which
must bear on the
determination of the
question in an individual
case may be easily
indicated:
they are proximity of time,
unity or proximity of place
continuity of action
Community of purpose or
design.

Mohd Khayry Ismail v PP

-

Tape recording evidence/CCTV

etc
At CL will be admissible based
on RG principle as truth of its
contents although they may
be hearsay or even selfserving statement.
S. 6 of EA and also other secs
give statutory recognition to
RG principle in the widest form
and is not restricted to the CL
parameters.
The new amendments such as
s. 90A do not displace CL
rules as to admissibility.
That is to say if the party
cannot admit a doc in
consequence of the CL
restriction then he may get
the doc admitted under any of
the new provisions such as s.
90A.