There are fourth categories of people are under governed of S32 of Evidence Act 1950. They are (a) who is dead (b) who cannot be found (c) who become incapable of giving evidence (d) whose attendance cannot be procured without an amount of delay or expense under the circumstances of the case appears to the court unreasonable. This must be fulfilled before can invoke the section 32 of the Evidence Act 1950.
In the case of ALLIEDBANK (MALAYSIA) BHD v YAU JIOK HUA, Augustine Paul JC held that ‘Section 32 which creates a considerable alteration to the law of evidence should, so far at least as its opening portion is concerned, be construed strictly which means that there must be strict proof to explain the non-availability of the maker as a witness (see Mohamed Ghouse v R (1910) 11 SSLR 31). Then the circumstances that would bring a statement within any of the provisions enumerated in the section must be established (see PP v Leong Heo Cheong [1990] 2 CLJ 818; DA Duncan v PP [1980] 2 MLJ 195; Sim Tiew Bee v PP [1973] 2 MLJ 200). The burden of proving such circumstances is on the party desiring to lead the evidence (see The Queen v Oorloff (1900) 1 Browne R 328; Emperor v A Bandulchi (1944) 45 Cr LJ 71; Abdul Ghani v R AIR 1943 Cal 465; ILR 29 Cal 412).
In the case of PP V LAM PENG HOE, Kang Hwee Gee J held that ‘The learned authors of Sarkar's Law of Evidence(14th Ed) at p 649 state (relying on Indian authorities) that where no diligent search and reasonable exertion were made to procure the witness, the court could not come to a finding that the witness could not be found and therefore his statement could not be admitted under the section. Mere ignorance of the whereabouts of the witness is not sufficient to invoke the section’
(a) Statement of a person who is dead
The best is have a dead certificate but oral evidence regarding the death is admissible. In the case of PUBLIC PROSECUTOR v. LEONG HEO CHEONG, Edgar Joseph J held that ‘I am satisfied that the prosecution had established the fact of Sidek’s death even without the aid of any death certificate, having regard to the testimony of DPC Mathuveran (PW1), Sgt. Major Majid (PW2), and Woman Constable Aini (PW3), all of whom were colleagues of the accused, and who testified, without challenge, that Sidek had died before the trial commenced. Indeed, Sgt. Major Majid, who was the immediate superior of Sidek, had testified that the latter had died on 14 June 1989. The pre-requisite requirement of proof of death under s. 32 was therefore satisfied by the prosecution’
(b) Statement of a person who cannot be found.
A proper search must be made to find the person. In the case of PUBLIC PROSECUTOR v. LIM BONG KAT & ANOR,person could not be found include person could not be know. A sufficient effort must be given to search the person. In the case of DA DUNCAN v PUBLIC PROSECUTOR, ‘part of the evidence consisted of a deposition at the Preliminary Enquiry of a witness who could now not be traced. The deposition was admitted over the protest of counsel for the appellant. We are however fully satisfied that sufficient evidence was adduced to justify the court's admission of the deposition under section 32 of the Evidence Act.’
In the case of Public Prosecutor v Lee Jun Ho & Ors, Apandi Ali J held that ‘Section 32 of the Evidence Act 1950 is an exception to the general rule that hearsay evidence is inadmissible. Under s 32(1) of the Act, one of the circumstances under which such a statement becomes admissible is where the person who made the statement 'cannot be found'. This was the basis upon which the prosecution tried to invoke when they attempted to produce and tender ID66 and ID67. For a witness to be clothed as 'who cannot be found' within the meaning of s 32(1) of the Evidence Act 1950, such determination is a finding of fact, of which the onus is upon the prosecution to prove.
From facts adduced, I find that the police has failed to take all reasonably practicable steps to trace the witnesses. In fact there was not a single proactive effort by the police to procure the attendance of such material, relevant and important eye-witnesses.
There was no attempt to fully utilise the prevailing and available provisions of the Criminal Procedure Code, in order to secure the attendance of the witnesses. The police failed to invoke the provisions of Criminal Procedure Code; which empowers the court to issue a warrant in lieu of or in addition to summon a witness and to require that person to execute a bond for his appearance in court. The police also failed to invoke the provisions of s 118(1) of the Criminal Procedure Code whereby the police officer who desires any person, who is acquainted with the circumstances of a case, to be present in court, shall require that person to execute a bond to appear at the trial court. The prosecution also failed to utilise the provisions of s 396 of the Criminal Procedure Code whereby the public prosecutor may apply to court for any witness of any sizeable offence that intends to leave Malaysia and that witness's presence at the trial to give evidence is fatal for the trial, to be committed to the civil prison until trial or until he shall give satisfactory security that he will give evidence at the trial.
I recalled, as a deputy public prosecutor for the states of Kelantan/Trengganu in the late 1970s, at the height of the Vietnam War, when there was an influx of refugees from Vietnam into Malaysia, there were many serious sizeable offences committed by the refugees. Important witnesses for such offences also involved Vietnamese refugees. On my advise, the police then, did not hesitate to seek recourse to the provisions of s 396 of the Criminal Procedure Code, in order to ensure the attendance of such witnesses at the criminal trials. The law is the same today. These legal provisions are available, to be utilised in such circumstances as in this case.
[17] In view of the above circumstances especially of the omissions by the police to take all reasonably practicable steps in tracing the witnesses, and guided by the following cases (on s 32(1) of the Evidence Act):
(i) Public Prosecutor v Mohamed Said [1984] 1 MLJ 50;
(ii) Public Prosecutor v Mohd Jamil bin Yahya & Anor [1993] 3 MLJ 702; [1994] 1 CLJ 200;
(iii) Public Prosecutor v Gan Kwong [1997] MLJU 144; [1997] 2 CLJ Supp 433;
(iv) Public Prosecutor v Chow Kam Meng [2001] MLJU 386; [2001] 7 CLJ 387;
(v) Public Prosecutor v Mogan Ayavoo [2004] 3 CLJ 623; and
(vi) Public Prosecutor v Norfaizal bin Mat (No 2) [2008] 7 MLJ 792.
I hold that the prosecution has failed to meet the requirements and the prerequisites of s 32(1) of the Evidence Act 1950. I accordingly ruled that the’
(c) Statement of a person who has become incapable of giving evidence
This maybe due to old age or mental incapacity. This must be proved with sufficient evidence. It does not mean it must have a medical person in every case. In the case of Chainchal Singh v Emperor AIR 1946 PC 1 at p 2 evidence given by a witness in a judicial proceeding was to be used under section 33 of the Indian Evidence Act in a subsequent judicial proceeding on the ground that the witness was incapable of giving evidence. It was held by Lord Goddard that: "Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence."
(d) whose attendance cannot be procured without an amount of delay or expense under the circumstances of the case appears to the court unreasonable
(i) evidence of delay and expense is required
Sufficient evidence must be adduced. In the case SAW TIM BEE V PP ‘But the manifest is a statement made by a person in the course of the business of the shipping company. It is therefore admissible in evidence provided it is proved that the maker is dead, cannot be found, or has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. (Section 32(b) of the Evidence Act.)
The learned judge, however, held that it was admissible. He said:
"For myself I think it is unreasonable to ask either the master or the agent of the vessel to testify to Exhibit P14 when undue delay or expense would be incurred."
This finding is not supported by evidence. The condition precedent to the reception of the document should be independent evidence that it would involve such delay and expense as would seem unreasonable.
In the case of Chainchal Singh v Emperor AIR 1946 PC 1 at p 2 evidence given by a witness in a judicial proceeding was to be used under section 33 of the Indian Evidence Act in a subsequent judicial proceeding on the ground that the witness was incapable of giving evidence. It was held by Lord Goddard that:
"Where it is desired to have recourse to this section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness who is to testify against him should give his evidence before the court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence."
In the case of Bal Gangadhar Tilak and others v Shrinivas Pandit and others AIR 1915 PC 7 at p 11, Lord Shaw said:
"Under section 33 of the Indian Evidence Act, 1872, evidence given by a witness in a judicial proceeding in a criminal trial is relevant for the purpose of proving in a subsequent proceeding the truth of the fact which it states, but it is only, as the section proceeds:–
'when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way etc.'
Not one of these circumstances was proved in the present case, and the depositions could not have been used with propriety even to support the evidence of the plaintiffs…."
(ii) The reasonableness of the amount of the delay or expense
This is mainly depend on the fact of the case. In the case of Allied Bank(M) Bhd v YAO JIOK HUA, Augustine Paul JC ruled that : ‘The question of the reasonableness of the amount of delay or expense should be considered with reference to the circumstances of each case. It is essentially a matter for the court to determine whether the attendance of a witness cannot be procured without any unnecessary amount of delay and expense (see Jati Mali v Emperor (1929) 31 Cr LJ 857; Annavi Muthiriyan v Emperor (1915) 16 Cr LJ 294). In R v Case (1991) Crim LR 192, where on a trial for theft from a tourist, the judge admitted in evidence the out of court statements made by the tourist and his companion. It was held that the judge had wrongly admitted the statements since there was no evidence to show that they were outside England or that it was not practicable to call them except at high expense and delay. In Borneo Co (M) Sdn Bhd v Penang Port Commission [1975] 2 MLJ 204, it was held that it would be unreasonable to expect a witness to be brought from England to give merely formal evidence when the expenses of bringing him down would exceed the subject matter of the claim. As ERSR Coomaraswamy said in his book entitled The Law of Evidence (Vol 1) p 462:
On the other hand, if the matter involves a very large sum of money, such as a few millions of rupees, the court may not consider it an unnecessary amount of delay and expense to procure the personal attendance of a material witness, who is absent beyond the seas. As Mr Thavarajah is outside the jurisdiction of this court, the plaintiffs may rely on s 32(1)(b) to tender in evidence the notices, if prepared by him, as they were made in the discharge of his professional duties subject to proof of the required conditions. As I said earlier, the onus is on them to establish that his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable. The first observation to be made is that Mr Thavarajah is a very material witness as the plaintiffs' claim depends on his evidence to prove service of the notices of demand allegedly issued by him, the receipt of which has been denied by the defendant in para 6 of the defence. The plaintiffs ought to have been aware of the importance of this witness way back in 1991 when the statement of claim and the defence were filed. It is illogical to come to court in 1997 and say that there would be delay in producing this witness in court when the plaintiffs had all the time from 1991 to secure his attendance. If the plaintiffs had made efforts to trace him earlier, then the question of delay would not arise. PW2's evidence that it would not be cost effective to bring the witness to court for the hearing is unacceptable, bearing in mind the size of the subject matter of the claim. In my opinion, the cost of bringing the witness from Australia bears no comparison to the amount involved in the claim. In any event, 2's evidence on the witness being beyond the seas is hearsay and is therefore inadmissible. His evidence is based on what others, including one Mr Kenneth Gomes, had told him. Those persons ought to have been called to testify on the whereabouts of Mr Thavarajah which the plaintiffs had failed to do. PW2 also said that the plaintiffs were satisfied that all reasonable steps had been taken to locate Mr Thavarajah without condescending to give any particulars. In being so satisfied, plaintiffs had taken over the role of the court which alone is empowered to decide on this issue upon cogent evidence being adduced. The plaintiffs had, therefore, failed to establish that Mr Thavarajah is beyond the seas and that his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable.’
In the determine the reasonableness of the expense no absolute standard this can be referring to the case of LIM PENG KOI v REX, In particular two things are of importance; the seriousness of the charge and the character of the evidence. On the first point, in particular, it should be regarded as a very serious matter to allow evidence given on another occasion to be read when a person is charged with an offence for which he is likely to be sentenced to imprisonment. On the second it may be that the evidence given is not challenged by the defence and it may be evidence of a purely formal character.
(iii) Person who are outside the jurisdiction
In the case of NG YIU KWOK AND ORS v PUBLIC PROSECUTOR, the court held that ‘In a situation like this where the documents were prepared in the course of business and the makers were outside the jurisdiction who refused or were unwilling to come to this country, all the court should need to satisfy the requirement of 32(b) of the Evidence Act was that there was some evidence to show that the makers' attendance could not be procured without delay or expense which the court considered unreasonable under the circumstances.’
However bear in mind that mere residence out of the jurisdiction could not be sufficient to invoke this section, For example, a trial in johore and the witness stayed in Selangor.
Conclusion
These are preliminary requirement which must be fulfilled in order to invoke S32 of the Evidence Act 1950.
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