传闻证据在法庭的价值
What is Hearsay in Court?
在法庭了，什么是传闻证据
General Rule
通例
The cardinal rule in respect of oral evidence is that provided for in Section 60 Evidence Act 1950 (“EA 1950”). Under this section, oral evidence must be direct i.e. the testimony must be of the person who perceived the fact through medium of his own senses [1]. Direct evidence can be categorized into three categories: oral, written or conduct.
根据1950年证据法第60条(“EA 1950”)规定了口头证据的基本规则。根据该法条，口头证据必须简单直接，例如，证词必须通过证人自己的感官了解事实。直接证据可被归类为三个种类：口头，书面后举止
This section emphasizes that evidence should always be direct because direct evidence is the best evidence as it is delivered on oath, subject to cross examination, the court is able to see the demeanor of the witness, and it reduces the possibility of fabrication to suit the witness’s testimony.
该法条着重指出证据必须直接，因为直接证据是最好的证据，他是经过宣誓作证，经过盘问，法院也能观察证人的举止，并减少了捏造证词的可能性。
What is hearsay and what are its exceptions
什么是传闻证据和它有什么例外
Hearsay evidence refers to a statement made out of court that is offered in court as evidence to prove the truth of the matter asserted. According to Mr LMD De Silva (as he then was) in Subramaniam[2], an evidence “…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 evidence, not the truth of the statement, but the fact that it was made.”
传闻证据指的是在法庭外所作出的陈述，并有意在法庭上作为证明事项真实性的证据。根据LMD De Silva 先生（当时的他）在 Subramaniam判例中的说词， ‘当证据的目的是确定陈述中所含内容的真实性时，这证据就是传闻证据且讲不被接受。当该陈述不是用来证明证据的真实性，而是为了证明某方已给出该陈述的事实时，这就不是传闻证据且可以被法庭接受。’
Therefore, the mere fact that a statement was said out of court does not automatically render it as “hearsay evidence”. It is the purpose for which the statement is tendered that determines whether it is hearsay evidence. It is only when the out of court statement is tendered as evidence of the truth of its contents or as evidence of facts asserted that it is hearsay and thus, inadmissible.
因此，仅仅是庭外发表陈述并不能自动将其视为“传闻证据”。 提供陈述的目的决定了它是否是传闻证据。 只有当庭外陈述作为其内容真实性的证据或作为事实的证据提出时，它才是传闻，因此不可采信。
Hearsay evidence is inadmissible because it contravenes Section 60 EA 1950. However there exists exceptions that allows for the admission of hearsay evidence.
传闻证据不可接纳因为因为它违反了第 60 EA 1950 条。但是，它存在可以让传闻证据被接纳的例外。
Section 32 EA 1950- Statements of persons who cannot be called as witnesses
EA 1950第 32 条-不能被传唤为证人的人的陈述
Under this section, there are four categories of people whose out of court statement may be admitted as evidence even though they cannot be called as witness:
根据该法条，有四个类别的人在庭外做出的陈述可以作为证据被接纳，几时他们不能够被传唤为证人：
- The maker who has passed
1.过世的陈述者
By virtue of s32 (1)(a), statements by the deceased as to the cause of his death or circumstances of the transaction resulting to his death will be admissible. However, in order for this exception to apply, regardless of whether it is a civil or criminal matter, the case must be one in which the cause of the maker’s death comes into question.
根据第 32 条第 (1)(a) 款，死者陈述关于其死亡原因或导致其死亡的经过是可接受。但是,，无论是民事还是刑事案件，案件都必须是制造者死亡原因受到质疑的案件才能使这一例外适用。
In the case of Haji Salleh, Marjuki v Public Prosecutor[3], statement made by the deceased a month before his death to the effect that he was afraid that one of the accused might kill him was held inadmissible because it was too remote. In contrast, the Privy Council in Chandrasekara v The King[4] held that evidence as to signs made in answer to questions put to the deceased was admissible. In fact, the actual words of the deceased must be recorded[5].
在Haji Salleh, Marjuki v Public Prosecutor一案中，死者在去世前一个月陈述自己有可能被其中一名被告杀手是不能被接纳的，因为太遥远了。相反地，枢密院在 Chandrasekara v The King一案中认为回答死者提出的问题而作出的回应的证据是可以接受的。事实上，死者的真实话语必须被纪录下来。
- Maker cannot be found after diligent search
2.在认真寻找后，无法找到陈述者
Evidence must be adduced to show that reasonable efforts to find the maker have been made, despite it being a failed effort. The court tends to expect greater efforts in locating the maker especially where the proceedings related to death penalty. Low Hop Bing J (as he then was) in PP v. Norfaizal Mat (No 2) [6]at para 13 held that “it is necessary for the prosecution and the police to make diligent search and reasonable exertion in order to procure Azril, otherwise his statement is inadmissible under s.32(1)(i). Mere ignorance of the whereabouts of Azril is not sufficient to invoke the section.”
必须提供足以表明已经做出了充分的努力来寻找陈述者的证据，尽管这这次的努力失败了。法院往往期望在寻找陈述者方面付出更大的努力，尤其是在与死刑相关的诉讼中。 Low Hop Bing J（当时的他）在 PP v. Norfaizal Mat (No 2)在段落13认为‘检察方和警方必须做出充分的搜查工作以找到Azril，否则该陈述将在第32（1）（i）条无法被接纳。 仅对Azril的下落不知所踪是不足以引援该法条。
- The person is incapable of giving evidence
3.证人无法出庭供证
This incapability may arise due to physical, mental or extreme old age. As such, sufficient evidence must be shown to establish the incapacity of the person whose statement is sought to be admitted as evidence.
证人的不便出庭的原因可以来自身体，精神或者年迈。正因如此，充分的证据必须足以证明证人的不便能让他的陈述被接纳为证据。
- The person is out of jurisdiction and to call him would result in undue delay and expense
4.证人在管辖范围外，传唤它将导致不必要的延误和费用。
It was held by the Federal Court in Sim Tiew Bee v Public Prosecutor[7] that in order for this exception to apply, the condition precedent to the reception of the evidence should be independent evidence that it would involve such delay and expense as would seem unreasonable.
联邦法院在 Sim Tiew Bee v Public Prosecutor 一案中认为，为了使用这一例外，接收证据的先决条件应该是独立的证据，表明它会涉及看起来的不合理的延迟和费用。
Business documents
商业文件
Pursuant to s32 (1)(b), relevant facts made in the ordinary course of business where the maker is unavailable may be admissible provided certain conditions are satisfied. The conditions are that it must be an out of court statement of relevant fact made in the ‘ordinary course of business’, one of the four preconditions of unavailability is satisfied and that the maker must have personal knowledge of the matters stated.
根据32(1)(b)条文，在满足某些条件的情况下，在正常业务过程中陈述者可用的相关事实可以被采纳。 条件是它必须是在“正常业务过程”中做出相关事实的庭外陈述，满足以上例外的四个先决条件之一，并且陈述者个人必须了解所述事项。
However, it should be noted that s32 (1)(b) is only applicable to first hand hearsay[8].
但是，第32(1)(b)条文只能应用在第一手传闻证据。
Section 6 EA 1950-Relevance of Facts forming part of same transaction
1950年EA第6条-构成事件的相关事实
This section is similar to that of the Res Gestae common law exception which provides for the admissibility of spontaneous exclamations where the possibility of concoction or distortion can be disregarded. The main distinction from its common law counterpart is that under common law it is stricter and narrower as the incident must occur at the same time and same place as it crucial that both conditions are satisfied: spontaneity and possibility if concoction can be disregarded[9].
该法条类似于 普通法的特例Res Gestae，该例外规定允许自发的感叹被接纳，其中可以忽略捏造或扭曲事实的可能性。 与其普通法对应的主要区别在于，普通法更严格，因为事件必须在同一时间和同一地点发生，因为满足两个条件至关重要：自发性和如果，捏造的可能性可以被忽略.
In contrast, section 6 is flexible, liberal and wider as it includes the incidents which happened at different times and places. In Tan Geok Kwang v Public Prosecutor[10], the evidence is admissible as part of the res gestae because the group of facts forming the transaction was so connected that the exclusion of the evidence would render evidence as to other facts unintelligible.
相对的，第6条文更灵活，自由和更宽广因为它包括在不同时间地点发生的事。在Tan Geok Kwang v Public Prosecutor一案中，Res Gestae能作为证据被接纳因为这一系列的事实息息相关，驳回该证据将使其事实的无法被理解
Conclusion
结语
In short, it can be seen that most exceptions require that the preconditions for unavailability to be satisfied before an out of court statement can be admitted as evidence of the truth of the matter stated. Though exceptions do exist to allow for such admission, the courts nonetheless take a cautious approach in order to ensure the general rule laid down in s60 is not easily circumvented.
总而言之，可以看出，多数的例外下需要满足不可用的先决条件的前提下才能让使庭外陈述被法院接纳，尽管如此法院还是采取了谨慎的对策来确保第60条的通例不容易被规避。
What is a Statutory Declaration (SD)?
什么是法定声明（SD）
A SD is a statement made with the purpose to provide written proof to confirm something that either cannot be proven or involves too much work to actually prove, and that such statements are backed by penal sanctions[11]. In Malaysia, the Statutory Declarations Act 1960 governs the subject.
法定声明是一份受到刑事制裁所支持的声明，目的为提供书面证明来确认一些不可证明或难以证明的声明。在马来西亚，1960年法定声明法管辖该议题。
It is 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. If such a statement was made as an ordinary statement or declaration in an application, then if it turned out to be untrue it would merely amount to a misrepresentation that would constitute a breach of contract. If the statement is made by way of a statutory declaration, then apart from being a misrepresentation, it would be a breach of contract and the person could be charged for perjury.
在很多情况下，为了确认书面文书或指控，或债务证明，或契约的执行或其它目的都需要一份声明。如果陈述作为普通陈述或声明被发现是不真实的，该陈述将只会构成违约的一种失实陈述。 若陈述作为法定声明，他将不会是失实陈述，二回构成违约而陈述者将因为做伪证被起诉。
SD and letters from non-witness
法定声明和非证人的信件
Therefore, it can easily be explained why SD and letters from non-witness would have no value during trial. Since a statutory declaration is a written statement that allows a person to declare something to be true, the purpose of admitting it as evidence during trial would be to prove the truth of the matters stated. To admit SD and letters from non-witness could thus be said to be similar to hearsay evidence, which has always been treated with vigilance.
因此，法定声明和非证人的信件在审讯是没有任何价值就可以被轻易的解释。既然法定声明是一份允许一个人宣布事实为真实的书面声明，因此在审讯期间将其作为证据的目的是证明所陈述事项的真实性。 因此，法定声明和非证人的信件可以说类似于传闻证据，在是否被接纳的议题里一直保持警惕。
To admit SD and letters from non-witnesses would effectively amount to getting around the restrictions that were laid down in the first place to regulate the admission of hearsay evidence. As such, it is unlikely that the courts will welcome such attempts, nor confer on such evidence any significant value.
接纳法定声明和非证人信件会有效的绕过一开始为了所立下接纳证据的限制。因此，法院不欢迎这样的尝试，此类证据也不会被赋予任何重要价值。
What is documentary hearsay?
什么是文书传闻证据
Hearsay evidence also comprises documentary evidence. This is where the party intends to admit a document where its maker will not be testifying in court.
传闻证据也包含文书传闻证据。这将发生在当有关当事人有意将一份文书提交给法院接纳，但作者将不会出庭作证。
The High Court in Allied Bank (Malaysia) Bhd v Yau Jiok Hua[12] held that “It is settled law that where a document is sought to be proved in order to establish the truth of the facts contained in it the maker has to be called”. Non-compliance with this rule will result in the contents of the document being hearsay, and is thus inadmissible unless the absence of the maker could be explained, which then exceptions to the rule against hearsay provided under s32 would be applicable.
高等法庭在 Allied Bank (Malaysia) Bhd v Yau Jiok Hua一案中认为，“根据现有的既定的法律，在寻求证明文件以证明其中所述事实的真实性时，作者必须被传唤出庭作证”。 不遵守这项法律将导致文件的内容做为传闻，因此不可受理，除非可以作者的缺席能够被解释，并引援第 32 条规定的对传闻规则的例外情况。
In essence, for the document to be admitted as hearsay evidence, the conditions under s32 must first be satisfied.
总之，第32条的先决条件必须符合才能让文件作为传闻证据被法庭接纳。
Caroline Gan Yi Xin
University of London
Bar Professional Training Course
University of West England
