法定声明替代证人出庭作证
What is the position of using Statutory Declaration to substitute witness giving oral evidence in Court
以法定声明替代证人出庭作证的法律立场是什么？
What is a Statutory Declaration (SD)
什么是法定声明 (SD)
SD in Malaysia is governed under the Statutory Declaration Act 1960. The laws were enacted because it was necessary in many cases to require declarations in confirmation of written instruments or allegations, or proof of debts, or of the execution of deeds or for other purposes. Under this Act, a Sessions Court judge, magistrate, commissioner for oaths or notary public can receive in Malay or English the declaration of any person voluntarily making the same.
在马来西亚，SD是受辖于1960法定声明法案。这法律的颁布是因为在许多案件中需要相关人士声明确认书面文书或指控，或债务证明，或契约的执行或其他目的。在此法案下，一名地方法庭法官，推事，宣誓官或公证人均可以接受任何人以马来文或英文的宣誓。
Nonetheless, for the document to come within the scope of the Act, the declaration has to be made in the prescribed form and must contain the words “I make this solemn declaration conscientiously believing the same to be true.”[1]
尽管如此，对于在此法案范围中的文件，声明可以以规定的形式呈现且必须包含“I make this solemn declaration conscientiously believing the same to be true” 的词语。（意即我谨此郑重声明且我深信不疑（这）是真相）
The Purpose and Effect of a SD
法定声明的目的于效果
The main purpose for a SD is to provide written proof to confirm something that either cannot be proven or involves too much work to actually prove. The principal feature of an SD is that such written statements are backed by penal sanctions[2].
法定声明的目的是提供书面证据以确定某项要么不能证明要么需要过多的耗费大量精力方能证明的事情。法定声明的主要特征是其具有刑事制裁的特征。
Therefore, if a statement made as a merely ordinary statement subsequently turned out to be false, it would only amount to a misrepresentation that would constitute a breach of contract. On the other hand, if the statement is made by SD, then aside from amounting to a breach of contract, it would also constitute an offence for which the person could be prosecuted.
因此，一份声明只是仅仅普通的声明而在后来发现证明是假的，这将构成误导且将导致违约。另一方面，如果一份声明是因法定声明所制定，那么这不仅将构成违约，也可能构成刑事罪，签订法定声明之人或将被刑事起诉。
During Trial
审讯过程中
With such significance being given to SD, how does it measure up to oral testimony in court? Can SD then be used as a substitution for witnesses giving oral evidence in court? How much weight will the court accord to a SD?
当法定声明被赋予如此显著的地位，它如何与口头证词相提并论？法定声明可否代替证人出庭作证？法庭将如何权衡法定声明？
It is trite law that oral evidence must be direct[3]. As stated in Order 38 rule 1 Rules of Court 2012 as well, facts that are required to be proved in trial must be done so by the examination of witnesses in open Court. Even for documentary evidence, the maker of the document must be called as a witness to prove it before the document can be admissible[4]. The nature of a SD is clearly in direct contradiction with these fundamental principles, thus the courts practice a cautious, or even restrictive approach, in allowing the substitution of oral evidence with a SD, especially when the maker of the SD is not called as a witness.
口头证据必须是直接的已经是毫无争议的法律了。正如《2012法庭规则》中的第38号命令第1规则所阐明的，所有事情都必须在公开法庭中通过审讯检验证人来证明。即便是文件形式的证据，在文件可作为呈堂证供以前文件的制作人也必须出庭作证。而法定声明的特性很明显不符合这基本原则，因此法庭抱着十分小心，甚至限制性的态度去对待替代口头证据的法定声明，即便声明人并没有被传召出庭。
What is the position of a SD of a witness that was not called?
一名没有被传召的证人的法定声明 (SD)的定位是什么？
The Courts would not allow an attempt to circumvent the general principles laid down in the Rules of Court or Evidence Act. Hence, a SD cannot therefore be used to bypass the requirement under Order 38 rule 1[5].
法庭并不允许任何尝试规避在《法庭规则》或《证据法案》下的一般法律规则。因此法定声明并不能用于绕开第38命令第1规则下的要求。
It is important to note that the admission of an SD as an exhibit in Court for the purpose of validity does not mean that its contents are also automatically admitted. If the contents of the SD are disputed and/or challenged, the maker must thus be called and to be cross-examined by the other party to determine its veracity[6]. Failing so is likely to result in the SD being an inadmissible piece of documentary evidence. This is because to admit such evidence would likely result in unfairness and prejudice to the other party. It is a well-established principle that the court may disregard evidence, which although technically admissible, has a prejudicial value that outweighed its probative value[7].
In the case of Itramas Technology Sdn Bhd v Infologic Pte Ltd[8], the Plaintiff relied on a SD, which contents are seriously contested by the Defendants. During the trial, the Defendants called a witness whom vehemently denied the contents of the SD while the maker of the SD was not nor was any explanation given for such absence. The judge held that the evidence of the Defendant’s witness was preferred over the contents of the SD.
Therefore, it can be submitted that a SD of a witness who is not called to give oral evidence during trial is unlikely to be admitted as evidence, especially if its contents are contested.
必须要注意的是，为了证明准确性而接纳法定声明作为呈堂证供不代表其内容就自动被接纳。假设法定声明的内容是具有争议或者被挑战的，那么声明人必须出庭作证并接受对方针对声明准确性的盘问。如果无法做到这点将导致法定声明无法成为呈堂证供。这是因为接纳此证据将对另一方不公平或伤害另一方的利益。作为一项既定的原则，法庭可以无视此证据，即便从技术上可呈堂，其带来的偏见成都将高于其作为证据的价值。
在Itramas Technology Sdn Bhd v Infologic Pte Ltd[8]的判例中，原告的案情仰赖着法定声明，但被告却对内容提出争议。在审讯中，被告传召了一名证人，该证人强烈反对法定声明的内容，而声明人却没有出席或给予任何解释为何缺席。法官判断被告证人的供词比起法定声明更加可信。因此，在法定声明的声明人没有给出席审讯给图口供时，该声明很难被接纳成证据，尤其是当内容出现争议之时。
The weight of the SD, if admitted
假设接纳，法庭如何权衡法定宣言(SD)
An out of court statement that is admitted will not be tested in cross examination, and the Court will not have the opportunity to observe the demeanour of the person making the statement. It is therefore only natural that the court will give minimal weight to statements which are not tested in cross examination[9].
一份庭外声明被接纳以后将不会接受盘问，且法庭将不会有机会观察到声明人的举止。因此，法庭对于没有接受盘问的证据很自然会给与最低的证据权重。
Situations where SD is admitted
法定声明(SD)会被接纳的情况
That being said, there are instances where SD is admitted as evidence. In Hassnar v. Sulaiman Pong[10], the Defendant did not lead evidence to rebut the Plaintiff’s SD which he was trying to impugn. As such it was held by the Court of Appeal that in the absence of any challenge to the SD, the truth of its contents must be accepted.
The Court of Appeal in Hafizah Hamzah v. Trans Resources Corporation Sdn Bhd[11] held that the proceedings do not involve a trial within the terms of Order 38 and it cannot be said that the SD was prepared in order to bypass the provisions of the Rules of Court. The garnishee was only adducing evidence in answer to the cause issued against her and the Court has to evaluate the contents of the SD against the affidavits filed by both parties.
即便如此，在某些情况下法定声明依然会被接纳成为证据。在Hassnar v. Sulaiman Pong的判例中，被告并没有驳斥他希望法院排除的原告的法定声明。因此，上诉庭认定在没有任何针对法定声明的挑战下，法院必须接受内容的准确性。
上诉庭在Hafizah Hamzah v. Trans Resources Corporation Sdn Bhd中认为该诉讼并没有涉及第38命令条款内的审讯，不能说SD是为了逃避法庭规则而准备的。第三方债务人只是为了回答针对他的诉讼理由进行举证，而法院必须根据双方所提交的宣誓书中评估法定声明的内容
Conclusion
In conclusion, a SD whose maker will not be call to testify during trial is unlikely to be admitted, nor can the SD be a substitution for witnesses giving oral evidence in court as it goes against the fundamental rule of evidence. In the unlikely event that the SD is ultimately admitted, the weight attached to it by the court is likely to be of minimal value.
It is undeniable that there have been situations where SD is admitted, however there are no statutory or judicial guidelines that states the conditions for doing so. As seen from case law, such situations include when the proceedings do not amount to trial or where other party does not challenge the content of the SD or does not provide evidence in doing so.
Although there is no express provision prohibiting the admission of SD of a witness who is not called, it can be said that there is great reluctance to do so. As such, it is the case that oral testimony is always the preferred evidence.
结语
综上，在法定声明的声明人没有被传召出庭时，法定声明一般不会被接纳成为证据，也不能提到出庭作证的供词，这是因为这将违反基本的证据法。因此，即便法庭接纳了法定声明，证据的权重也会十分地低。
不可否认的是，法定声明在一些情况的确是被接纳，但并没有法案或者司法指导阐明接纳法定声明的条件。因此，从判例可看到，这些情况包括一些不等同于审讯的司法程序，或者另一方没有挑战法定声明内容或没有给与证据挑战法定声明内容的情况。
虽然没有明文禁止接纳一名没有出庭作证的证人的法定声明，但可以说这样的状况是极不情愿的。因此，出庭证供依然是理想的证据。
[1] Schedule of the Statutory Declarations Act 1960
[2] s.3 Statutory Declarations Act 1960
[3] S.60 Evidence Act 1950
[4] UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd and 1 other [2010] 9 CLJ 785
[5] CITIBANK BERHAD v. PEMBANGUNAN CAHAYA TULIN SDN BHD & ORS [2012] 1 LNS 416
[6] TENGKU ROZIDAR TENGKU ZAINOL ABIDIN v. ENCORP BERHAD [2019] 2 LNS 3219
[7] LIM YEW SING v. HUMMEL INTERNATIONAL SPORTS & LEISURE A/S [1996] 4 CLJ 784
[8] [2019] 1 LNS 1860
[9] NG CHOOI KOR v. ISYODA (M) SDN BHD [2010] 3 CLJ 162
[10] [2017] 1 LNS 1167
[11] [2019] 2 CLJ 759
Caroline Gan Yi Xin
University of London
Bar Professional Training Course
University of West England
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