{"id":8150,"date":"2021-01-08T22:37:54","date_gmt":"2021-01-08T14:37:54","guid":{"rendered":"http:\/\/alexchanglaw.com\/?p=8150"},"modified":"2024-11-29T14:46:46","modified_gmt":"2024-11-29T06:46:46","slug":"statutory-declaration-substitute-witness-giving-oral-evidence","status":"publish","type":"post","link":"https:\/\/alexchanglaw.com\/index.php\/statutory-declaration-substitute-witness-giving-oral-evidence\/","title":{"rendered":"Statutory Declaration substitute witness giving oral evidence"},"content":{"rendered":"\n

Versi Bahasa<\/a><\/p>\n\n\n\n

\u4e2d\u6587\u7248<\/a><\/p>\n\n\n\n

What is the position of using Statutory Declaration to substitute witness giving oral evidence in Court<\/strong><\/p>\n\n\n\n

What is a Statutory Declaration (SD)<\/p>\n\n\n\n

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 \u201cI make this solemn declaration conscientiously believing the same to be true.\u201d[1]<\/a><\/p>\n\n\n\n

The\nPurpose and Effect of a SD <\/p>\n\n\n\n

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]<\/a>.

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. <\/p>\n\n\n\n

During\nTrial<\/p>\n\n\n\n

With\nsuch significance being given to SD, how does it measure up to oral testimony\nin court? Can SD then be used as a substitution for witnesses giving oral\nevidence in court? How much weight will the court accord to a SD?<\/p>\n\n\n\n

It\nis trite law that oral evidence must be direct[3]<\/a>. As\nstated in Order 38 rule 1 Rules of Court 2012 as well, facts that are required\nto be proved in trial must be done so by the examination of witnesses in open\nCourt. Even for documentary evidence, the maker of the document must be called\nas a witness to prove it before the document can be admissible[4]<\/a>. The\nnature of a SD is clearly in direct contradiction with these fundamental\nprinciples, thus the courts practice a cautious, or even restrictive approach,\nin allowing the substitution of oral evidence with a SD, especially when the\nmaker of the SD is not called as a witness.<\/p>\n\n\n\n

What\nis the position of a SD of a witness that was not called?<\/p>\n\n\n\n

The\nCourts would not allow an attempt to circumvent the general principles laid\ndown in the Rules of Court or Evidence Act. Hence, a SD cannot therefore be\nused to bypass the requirement under Order 38 rule 1[5]<\/a>. <\/p>\n\n\n\n

It\nis important to note that the admission of an SD as an exhibit in Court for the\npurpose of validity does not mean that its contents are also automatically\nadmitted. If the contents of the SD are disputed and\/or challenged, the maker\nmust thus be called and to be cross-examined by the other party to determine\nits veracity[6]<\/a>.\nFailing so is likely to result in the SD being an inadmissible piece of\ndocumentary evidence. This is because to admit such evidence would likely\nresult in unfairness and prejudice to the other party. It is a well-established\nprinciple that the court may disregard evidence, which although technically\nadmissible, has a prejudicial value that outweighed its probative value[7]<\/a>.<\/p>\n\n\n\n

In\nthe case of Itramas Technology Sdn Bhd v Infologic Pte Ltd[8]<\/strong><\/a><\/em>,\nthe Plaintiff relied on a SD, which contents are seriously contested by the\nDefendants. During the trial, the Defendants called a witness whom vehemently\ndenied the contents of the SD while the maker of the SD was not nor was any\nexplanation given for such absence. The judge held that the evidence of the\nDefendant\u2019s witness was preferred over the contents of the SD. <\/p>\n\n\n\n

Therefore,\nit can be submitted that a SD of a witness who is not called to give oral\nevidence during trial is unlikely to be admitted as evidence, especially if its\ncontents are contested.<\/p>\n\n\n\n

The\nweight of the SD, if admitted<\/p>\n\n\n\n

An\nout of court statement that is admitted will not be tested in cross\nexamination, and the Court will not have the opportunity to observe the\ndemeanour of the person making the statement. It is therefore only natural that\nthe court will give minimal weight to statements which are not tested in cross\nexamination[9]<\/a>.<\/p>\n\n\n\n

Situations\nwhere SD is admitted<\/p>\n\n\n\n

That\nbeing said, there are instances where SD is admitted as evidence. In Hassnar\nv. Sulaiman Pong[10]<\/strong><\/a>,\n<\/em>the Defendant did not lead evidence to rebut the Plaintiff\u2019s SD which he\nwas trying to impugn. As such it was held by the Court of Appeal that in the\nabsence of any challenge to the SD, the truth of its contents must be\naccepted.   <\/p>\n\n\n\n

The\nCourt of Appeal in Hafizah Hamzah v. Trans Resources Corporation Sdn Bhd<\/em>[11]<\/a>\nheld that the proceedings do not involve a trial within the terms of Order 38\nand it cannot be said that the SD was prepared in order to bypass the\nprovisions of the Rules of Court. The garnishee was only adducing evidence in\nanswer to the cause issued against her and the Court has to evaluate the\ncontents of the SD against the affidavits filed by both parties.<\/p>\n\n\n\n

Conclusion<\/p>\n\n\n\n

In\nconclusion, a SD whose maker will not be call to testify during trial is\nunlikely to be admitted, nor can the SD be a substitution for witnesses giving\noral evidence in court as it goes against the fundamental rule of evidence. In\nthe unlikely event that the SD is ultimately admitted, the weight attached to\nit by the court is likely to be of minimal value.<\/p>\n\n\n\n

It\nis undeniable that there have been situations where SD is admitted, however\nthere are no statutory or judicial guidelines that states the conditions for\ndoing so. As seen from case law, such situations include when the proceedings\ndo not amount to trial or where other party does not challenge the content of\nthe SD or does not provide evidence in doing so.<\/p>\n\n\n\n

Although\nthere is no express provision prohibiting the admission of SD of a witness who\nis not called, it can be said that there is great reluctance to do so. As such,\nit is the case that oral testimony is always the preferred evidence.
<\/p>\n\n\n\n

\n\n\n\n

[1]<\/a> Schedule of the Statutory Declarations Act 1960
[2]<\/a> s.3 Statutory Declarations Act 1960
[3]<\/a> S.60 Evidence Act 1950
[4]<\/a> UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd and 1 other [2010] 9 CLJ 785<\/em>
[5]<\/a> CITIBANK BERHAD v. PEMBANGUNAN CAHAYA TULIN SDN BHD & ORS [2012] 1 LNS 416<\/em>
[6]<\/a> TENGKU ROZIDAR TENGKU ZAINOL ABIDIN v. ENCORP BERHAD [2019] 2 LNS 3219<\/em>
[7]<\/a> LIM YEW SING v. HUMMEL INTERNATIONAL SPORTS & LEISURE A\/S [1996] 4 CLJ 784<\/em>
[8]<\/a> [2019] 1 LNS 1860
[9]<\/a> NG CHOOI KOR v. ISYODA (M) SDN BHD [2010] 3 CLJ 162<\/em>
[10]<\/a> [2017] 1 LNS 1167
[11]<\/a> [2019] 2 CLJ 759<\/p>\n\n\n\n

Caroline Gan Yi Xin
University of London
Bar Professional Training Course
University of West England  <\/p>\n\n\n\n

\"\"
Carol Gan<\/figcaption><\/figure>\n\n\n\n

Read also: The Value of Hearsay Evidence in Court <\/a> <\/p>\n","protected":false},"excerpt":{"rendered":"

Versi Bahasa \u4e2d\u6587\u7248 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 […]<\/p>\n","protected":false},"author":1805,"featured_media":11530,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[28,67],"tags":[87,84],"_links":{"self":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8150"}],"collection":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/users\/1805"}],"replies":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/comments?post=8150"}],"version-history":[{"count":7,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8150\/revisions"}],"predecessor-version":[{"id":11535,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/posts\/8150\/revisions\/11535"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media\/11530"}],"wp:attachment":[{"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/media?parent=8150"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/categories?post=8150"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alexchanglaw.com\/index.php\/wp-json\/wp\/v2\/tags?post=8150"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}