Statutory Declaration substitute witness giving oral evidence

What is the position of using Statutory Declaration to substitute witness giving oral evidence in Court

What is a Statutory Declaration (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.

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]

The Purpose and Effect of a SD

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].

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.

During Trial

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?

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.

What is the position of a SD of a witness that was not called?

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].

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.

The weight of the SD, if admitted

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].

Situations where SD is admitted

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.

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.

[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