LAW578

LAW OF EVIDENCE 2

WITNESSES: COMPETENCY, COMPELLABILITY & PRIVILEGE

HABIBAH OMAR
habibomar597@gmail.com; habib597@uitm.edu.my
(UPDNov2022)
©HabibahOmar@UiTMLaw
 CONTENT

v What is competency, compellability and privilege

v Different kind of witnesses:
Ø Spouse as a witness
Ø Accused as a Witness in his own behalf (Self-incriminating
evidence)
Ø Documents relating to Affairs of State
Ø Witnesses relating to Official Communication
Ø Witnesses in Professional Communications

©HabibahOmar@UiTMLaw
 WITNESSES
PRIVILEGE
COMPETENCY COMPELLABILITY S. 121 - 132
S. 120 (read together with S. Is the W protected by law from
S.118-120 giving evidence/ producing
122)
Can the Witness testify in documents in the Court?
Court? Can I ‘force’ you to testify?
(A Person may be competent and
(a person may be a competent but not compellable to testify in the Court, but
(ability of a W to testify)
compellable Witness) he is legally excused (privileged) from
giving evidence in court or produce
documents in Court_
 COMPETENCY

S. 118
All persons are competent to testify UNLESS : (the court considers)
1. the person DOES NOT UNDERSTAND the questions put to them; OR
2. CANNOT GIVE RATIONAL ANSWERS to the question
DUE TO : tender years; Extreme old age OR defective intellectual (Disease of body and mind)

Tajuddin B Salleh [2008]; Sidek B Ludan [1995]

The test to determine competency :

Q1 - DOES THE W ABLE TO UNDERSTAND THE Qs PUT TO HIM?
Q2 - WHETHER THE W ABLE TO GIVE RATIONAL ANSWERS TO THOSE Qs.

- Competency is determined bases on the capacity of the W to answer the Q

 ACCUSED EVIDENCE
IN HIS OWN BEHALF
S. 120(3)
DUMB WITNESS (S. 119)
** refer to a person who is unable to
speak due to ILLNESS/PHYSICAL
INCAPACITY SPOUSE EVIDENCE
** Possess Intellectual Capacity – S.120(1);(2)
Chai Kor v PP [1965]
** Evidence of dumb W is deemed to
be an Oral Evidence

S. 118
Tajuddin B Salleh [2008];
Sidek B Ludan [1995])
All persons are competent to testify UNLESS :
1. the person DOES NOT UNDERSTAND the
questions put to them; OR
2. CANNOT GIVE RATIONAL ANSWERS to the
question
DUE TO : tender years; Extreme old age OR
defective intellectual (Disease of body and
mind)
 DO YOU NEED TO • An Adult W are deemed to be competent
• NO NEED to do PRELIMINARY
DETERMINE EXAMINATION (PE) to determine
COMPETENCY OF A competency if exist no reason to doubt his
competency
WITNESS? • Mohd Faris Afiq b Mohd Rohizi v PP [2021]

HOW TO DETERMINE • If competency is an issue (child witness; extreme old age;

disease of the mind) – need to do PRELIMINARY

THE WITNESS’ EXAMINATION (PE) to gauge the maturity and capacity of a

W to testify

COMPETENCY?
• The Process - an informal procedure to interview in the
magistrate’s or judges’ chamber

• Mohd Zuki b Ali @ Mohamad v PP [2010] ; Yusaini Bin

Mat Adam v PP [1999] – PE is a MANDATORY process
when it involves a chile/ child of intellectual disability

IS PE MANDATORY? • Failure to conduct PE - regarded as procedural irregularity

that is NOT CURABLE under s. 422, CPC
• HOWEVER; in PP v Chan Wai Heng [2008] - no need of a
formal form of PE as long as the court directed his mind to the
competency issue. See also Hanafi B Ramly v PP [2015].
 COMPETENCY, COMPELLABILIT Y & PRIVILEGE
(SPOUSE EVIDENCE)

In ANY Proceedings, H/W can

be a competent W for and
against each other
S. 120(1)
CIVIL
SPOUSE EVIDENCE

PROCEEDINGS In CIVIL PROCEEDINGS

HOWEVER,
the evidence of H/W
AGAINST EACH OTHER, H / against his/her
W can be a witness against
each other SPOUSE is subject
WHAT IS PRIVILEGE UNDER
S. 120

to PRIVILEGE
S. 122 S. 122?
(refers to
In Criminal Proceedings by communication
ANY PERSON ((3P) against DURING marriage
H/W – H/W can be competent
between SPOUSES)
W for and against that
person(3P)
S. 120(2)
CRIMINAL SUIT
In criminal proceedings RATIONALE OF S. 122
against each other, H/W can
To promote peace in the family,
give evidence against each
other feeling of mutual confidence & to
keep intact the marriage
relationship
 COMPETENCY, COMPELLABILIT Y & PRIVILEGE
( SPOUSE EVIDENCE)

COMMUNICATION MUST What is ‘communication’?

BE MADE DURING Palldas a/l Arumugam v PP
MARRIAGE [1988]

HOWEVER – S. 122 PRIVILEGE ONLY TO

ELEMENTS OF S. 122
S. 120(2) COMMUNICATION MADE TO
Refer to what the Accused
THE SPOUSE Spouse said to the Witness
SPOUSE CAN THE SPOUSE AND NOT BY THE
CANNOT BE SPOUSE (WITNESS)
Spouse
GIVE EVIDENCE
COMPELLED TO
AGAINST H/W IN
TESTIFY IF SHE
CRIMINAL
CLAIMS PRIVILEGE
PROCEEDINGS When will the privilege begins?
UNDER s. 122
(COMPETENT TO Ghouse B Kader Mastan v R
(which affects [1946];
TESTIFY)
compellability ) Verghese v Ponnen [1970]AIR

PRIVILEGE REMAINS When will the privilege last

Ibrahim Awang Mat v Ibrahim
EVEN AFTER THE Dollah [1988]
DEATH/DIVORCE Nawab Howladar v E [1914]

When can the privilege be

WAIVED?
 COMPETENCY, COMPELLABILIT Y &
PRIVILEGE
(ACCUSED EVIDENCE AGAINST HIMSELF)

S. 120(3)
In CRIMINAL PROCEEDINGS, Accused is a competent Witness and can give evidence in his own behalf –

HOWEVER,
Court can limit cross-examination which relates to the credit of the Accused person (See SECTION 146)

The Accused is a competent

Witness, but not compellable
to give evidence for himself
S. 132
HOWEVER, if he gives (EVIDENCE AGAINST SELF INCRIMINATION
evidence, he will be subject APPLIES TO THE ACCUSED OR OTHER WITNESSES)
to s.132

COMMON LAW : A s. 132(1) – removes CL privilege

witness is excused from against self incrimination – S.132(2) – a W may be compelled
W may answer questions by the Court to answer a question
S. 132(3) – refer to the
answering any Questions
or produce any
eventhough it may incriminate him - posed and the answer by the W duty of the Court to
Jagathesan a/l Muthoosamy cannot be used against him in a explain the effect of
documents that might [2012]; Television Broadcast Ltd v criminal proceeding except if the S. 132(2)
incriminate him - Blunt v Mandrin Videos [1983]; Zauyah W is giving false evidence (perjury)
Dark Lane Hotel [1942] Wan Chik [1995]
 COMPELLABILIT Y & PRIVILEGE
(AFFAIRS OF STATE)

IF THE COURT DECIDED IT IS NOT

RATIONALE :
COMMON LAW – Duncan v AOS (Not privileged) – the
2. The records/documents relates to AFFAIRS OF STATE

Documents are privileged

unpublished State paper – disclosure/publication only if

document must be made available to

Refer to disclosure of secret information contained in

due to national interest Cammel Laird Ltd [1942] – the

Court could not go behind the the other party
IN MALAYSIA – BA Rao v
Minister’s certificate (the disclosure
Sapuran Kaur [1978] –
Q: WHO WOULD of doc would be injurious to public
though the inspection of
1. Unpublished official records

interest) – Min. Certificate is IF THE COURT DECIDES THAT THE DOC

DECIDE THAT THE DOC
the Authority ALLOWED it

the documents are not

conclusive proof of AOS IS AOS (privileged) – It is for the Minister to
CONTAINED ‘AFFAIRS permitted, the court may
HOWEVER the law changed in decide whether to allow disclosure or NOT
OF STATE’? look at other related
CONDITIONS:

Conway v Rimmer [1968] – the on the grounds of National Interest

evidence to decide
S.123

Court could go behind the Minister’s

whether it is AOS
cert claiming privilege and examine PP v Datuk Sahar Arpan [1999]
the documents and decide whether Court scrutinised the State EXCO meetings
the Minister’s decisions was justified and found it to be AOS but privilege waived –
hence doc can be produced as an evidence
in Court
IF AOS- doc is PRIVILEGED -
S. 162(2); Takong Tabari v Executive is to decide whether to
Govt of Sarawak [1994] disclose or not – s. 114(g)
* in determining the admissibility CANNOT be invoked
Q: HOW WILL THE of a document claimed to be
COURT DECIDE THAT IT AOS, Court may inspect:
* Court to examine related
IS “AFFAIRS OF 1. the document itself ; OR documents and ultimately decide
STATE’? 2. Other relevant documents. * Failure of the Exec to produce any
* Court will decide whether the evidence of related documents, the
Min’s claim of privilege is Court may draw adverse inference
justified under s. 123 from non-production of related
evidence – s. 114(g) invoked
 COMPELLABILITY & PRIVILEGE
(OFFICIAL COMMUNICATIONS)
S. 124
No PUBLIC OFFICER SHALL BE COMPELLED to disclose
communications made to him in OFFICIAL CONFIDENCE when he
considers that the PUBLIC INTEREST would suffer by the disclosure

* Public Policy / public interest (eg: against tampering of witnesses)

* It is FOR THE COURT TO DECIDE whether the communication was made in

OFFICIAL CONFIDENCE
S. 162(2)
Re Loh Kah Kheng [1990]
Judge is the sole authority to determine whether it was made in ‘official
confidence’ by inspecting the document itself OR look at ‘other relevant
evidence’. Mgts here was directed to look at the doc or further evidence in order
to comply with s. 124

WHETHER THE COMMUNICATION WAS MADE IN ‘OFFICIAL

PROVISO to S. 124
PUBLIC OFFICERS CONFIDENCE’
Court may require the Officer’s
Suruhanjaya Sekuriti v Datuk Ishak Ismail [2016]
Head of Dept to certify in
DS Najib Razak v PP [2020]
writing whether disclosure is
(Statements made by witnesses to the MACC officers are made in
official confidence (police statement recorded from the W in course of
detrimental to public interest
investigation)) (exclusively in the Exec)
 COMPELLABILITY & PRIVILEGE
(PROFESSIONAL COMMUNICATIONS)
S. 126(1)
Advocates are NOT ALLOWED to :
1. Disclose any communication made to him by his client;
2. State the content or condition of any document; OR
3. To disclose any advice given by him to his client

IN THE COURSE AND FOR THE PURPOSE OF HIS EMPLOYMENT AS AN ADVOCATE

RATIONALE :
* To enable full disclosure for the purpose of obtaining professional advice
PP v Dato Seri Anwar Ibrahim (No 3),
- legal professional privilege is established for the protection of the client, not of the
advocate.
- For legal assistance to be effective, full and unreserved communications between
the solicitors and clients are essential.

MUST THE PRINCIPLE OF LEGAL

There must be a professional relationship between
PROFESSIONAL PRIVILEGE MUST CO- Q : HOW LONG WILL THE PRIVILEGE LAST?
the advocate and his clients EXTENSIVE WITH CONFIDENTIALITY? * Protection is given to the client AT ALL TIMES
Dr Clearance Edwin & Anor v Harta Kumpulan * Communication, once privilege, is always privilege even after the
Chua Su Yin & Co v Ng Sung Yee & Anor [1991] the Sdn Bhd [2011]; Earnst Cheong YongYin [2010] death of the client -
court stated that before Section 126 communication For there to be privilege, the communication must Bullock v Corry & Co [1878]; Dato Anthony See Teow Guan [2009];
can apply, there must be a prerequisite of client and be with the element of confidentiality – there must Tan Thian Wah v Tan Tian Kok & Ors [1998]
solicitor (advisor) relationship and any disclosure, if it be confidential communication between the
is to take place, must be with the absolute consent of solicitors and clients
* Privilege continues even after employment ends
c/f
the client. Explanation to S. 126; Melvin v Law Society of Singapore [1995]
Dato’ Anthony See Teow Guan [2009]
 PROFESSIONAL COMMUNICATION

Dato’ Anthony See Teow Guan v See

When the clients EXPRESSLY Teow Chuan [2009]
- s. 126(1) uses strong language -
CONSENT to the hence waive of legal privilege must be
DISCLOSURE intentiona and by express and deliberate
act – no waiver by implication

SITUATIONS WHERE
DISCLOSURE IS ALLOWED
s. 126(a) - Communication is made
UNDER s. 126 IN FURTHERANCE OF ILLEGAL
PURPOSE

NO PROTECTION FROM
RE Detention of Leonard Teoh Hooi
THE DISCLOSURE IF : S. 126(b) - facts observed by the Leong[1998]
advocate that crime or fraud has Communication between the client
been committed since the (Aishah) and the solicitor (Leonard
commencement of his Teoh) were no longer privileged as
employment the matter involved criminal
investigation (kidnapping))
 PROFESSIONAL COMMUNICATION
(EXTENSION)

S. 127

PP v Dato’ Seri Anwar Ibrahim (No 3) [1999] - it

Professional privilege under S. 126 (1) is extended
was held that the privilege in Section 126 would
to interpreters; clerks and servants of the
also apply to situations when one solicitor was
advocates under s. 127
consulted by another on behalf of his client.
 PROFESSIONAL COMMUNIC ATION
(OTHER PROVISIONS)
S. 128
• If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure
as is mentioned in section 126; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have
consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.
Ø This provides for an implied waiver of professional communication privilege when the party calls the advocate and questions him on the matters
which is clearly a privilege – See Teow Chuan & Anor v Dato Anthony See Teow Guan [2006]

S. 129
•No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional
adviser unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the court
necessary to be known in order to explain any evidence which he has given, but no others.
•Communication between a party (or his solicitor) with a 3P (e.g. an expert) is privileged – h/e if the 3P is giving evidence as a W, he can be compelled
to disclose the communication – Faridah Ariffin v Dr Lee Hock Bee [2006]

S. 130
•(1) No witness who is not a party to the suit shall be compelled to produce his document of title to any property, or any other document in virtue of
which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in
writing to produce them with the person seeking the production of such documents or some person through whom he claims.
•(2) No witness who is a party to the suit shall be bound to produce any document in his possession or power which is not relevant or material to the
case of the party requiring its production.
•(3) No bank shall be compelled to produce its books in any legal proceeding to which it is not a party, except as provided by the law of evidence
relating to banker’s books.

S. 131
•No one shall be compelled to produce documents in his possession which any other person would be entitled to refuse to produce if they were in his
possession, except for the purpose of identification, unless the last mentioned person consents to their production, nor shall anyone who is entitled to
refuse to produce a document be compelled to give oral evidence of its contents.
•Example : if a Principal refused to produce a document, his agent shall not produce it without the Principal’s consent
THE END