• Section 8 of Evidence Act 1950 provide for Motive, preparation and previous or subsequent conduct. (Motif, persediaan dan kelakuan yang dahulu atau yang kemudian). It states: (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. (Sesuatu fakta adalah relevan jika ia menunjukkan atau menjadi motif atau persediaan bagi sesuatu fakta isu atau fakta relevan) (2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (Kelakuan sesuatu pihak atau kelakuan seseorang ejen kepada sesuatu pihak dalam sesuatu guaman atau prosiding berkenaan dengan guaman atau prosiding itu, atau berkenaan dengan sesuatu fakta isu dalamnya atau yang relevan dengannya, dan kelakuan seseorang yang kesalahan terhadapnya menjadi perkara sesuatu prosiding, adalah relevan jika kelakuan itu mempengaruhi atau dipengaruhi oleh sesuatu fakta isu atau fakta relevan, dan sama ada kelakuan itu berlaku dahulu atau kemudian daripadanya).

SECTION 8 OF EA 1950

• Principle and scope of section 8• The facts admissible under this section can be classified under three headings namely

motive, preparation, and conduct.• Motive• Motive is the reason why a person does a particular act. It is not the same thing as

intention. Per Lord Goddard CJ in R v Steane [1947] KB 997 states “The motive of man’s act and his intention in doing the act are, in law, different things”. Per Edgar Joseph Jr SCJ in Lower Perak Co-operative Housing Society Bhd v Ketua pengarah Hasil dalam Negeri [1994] 2 MLJ 73 states “We need hardly add that there is a fundamental difference between intention and motive; intention means seeking to do something and is connected to purpose or object whereas motive is concerned with the reason for doing something”. Motive is a relevant fact and evidence of it, is admissible. The absence of any motive however does not weaken the guilt of the accused. Per Das Gupta J in Rajinder Kumar v State of Punjab AIR 1966 SC 1322 states “The motive behind a crime is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence. The circumstances which have been mentioned above as proving the guilt of the accused Rajinder are however not weakened at all by the fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action”.

SECTION 8 OF EA 1950

Intention & Motive• The word “intention” was discussed in Tan Hoi Hung v. PP [1966] 1 MLJ 288 at p.

289 where Thomson LP said:• Here I would quote from the latest edition of Kenny’s Outlines of Criminal Law (18th

Edn., p. 31). The editor refers to Austin’s Jurisprudence and then says this:

• ‘Intention’ in this sense must be distinguished from ‘motive’. ‘Intention’ indicates that a man is consciously shaping his conduct so as to bring about a certain event;

• ‘motive’ indicates the reason why he desires that event and therefore why he pursues his selected course of conduct so as to achieve it.

• In other words, if a man knowingly does something then not only does he intend to do it but in the absence of anything to the contrary he must be taken to intend the natural and probable consequences.

• If he fires a pistol he must be taken to have intended to fire it and if the firing causes grievous hurt then he must be taken to have intended that consequence.

• Motive• The absence of any motive in doing an act does not mean that the

accused is innocent. However, in such cases the available evidence must be carefully scrutinized. Per Sinha J in Atley v State of UP AIR 1955 SC 807 states “Where there is clear proof of motive for the crime, that leads additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution has proved by clear evidence that the appellant had reasons of his own for getting his wife out of his way, that would have additional assurance to the circumstantial evidence pointing to his guilt. But the fact that the prosecution has failed to lead such evidence has this effect only that the other evidence bearing on the guilt of the accused has to be very closely examined”. (See also PP v Ku Hang Chua [1975] 2 MLJ 99). Mere motive however is not sufficient evidence of a crime. Per Agha Haidar J in Dila Ram v Emperor AIR 1932 Lah 195 states “In any case mere motive cannot be considered as sufficient evidence of commission of a crime by a particular person”.

SECTION 8 OF EA 1950

• Motive• Motive cannot be proved by hearsay evidence. Per Ong Hock Thye FJ in Karam Singh v PP

[1967] 2 MLJ 25 where in this case, the appellant appealed against his conviction for murder. There was no eyewitness of the attack on the deceased and the prosecution case was based entirely on the circumstantial evidence. At the trial, the deceased’s son Harban Singh gave evidence that his father had told him on the night before he was killed he had a quarrel between him and the appellant. Thus in fact Harbans Singh had not witnessed any quarrel between his father and the appellant. Instead, his father only told him. The Federal Court held that all evidence of the deceased’s son even if true, was inadmissible as hearsay evidence and should not have been allowed to influence the jury in arriving at their verdict. Turning next to the question of admissibility, Harbans Singh revealed, under cross-examination, that he had in fact not witnessed any quarrel between his father and the appellant; he was only told by his father. This, of course, was hearsay and inadmissible, whether relying on s. 8 or s. 32(1) of the Evidence Ordinance. The headnote to Re Eddula Venkata Subha Reddi [1931] ILR 54 Mad 931; AIR 1931 Mad 689 states the law so neatly that we shall not attempt to paraphrase it: Where a statement by a deceased person is said to constitute a motive for another to commit a crime, it cannot be proved by one who heard the deceased make the statement. Such a statement will be admissible under section 32(1) of the Indian Evidence Act (1 of 1872) if it be a statement as to the cause of death or as to any of the circumstances of the transaction which resulted in death or under explanation 1 to section 8 of the Act if it is shown to have accompanied or explained any act of the deceased.

SECTION 8 OF EA 1950

SECTION 8 OF EA 1950• Motive• Evidence of a custom is also admissible to show how a motive operates. Per

Terrell and Mills JJ in Manggal Singh v The King [1938] MLJ 198 states “It was proved in evidence, and not denied by the accused, that the woman had been his mistress for many years, and that she had brought shame on him by leaving him for some one else, and deserved punishment. The prosecution accordingly established a motive. The cross-examination was directed to establishing that, the motive having been proved, it might well find expression in the mutilation of the unfaithful mistress when the person upon whom the motive operated was a Sikh. In a South African case Rex v. Kumalo, and Nkosi, [1918] App D 500 referred to in 14 English and Empire Digest at p. 367, evidence was admitted to prove a custom among Zulu tribes and especially among witch doctors, to kill and mutilate young persons, and use portions of the body as a charm against ill-luck, and that the accused was a Bacera, an offshoot of the Zulu tribe. In that case evidence of the custom was admitted to prove a motive. Here the motive is already proved, and the custom is admissible merely to prove the manner in which the motive might be expected to operate. In the South African case evidence of custom was admitted to prove (a) a motive and (b) how the motive would operate. In the present case the evidence is only directed to (b), and the South African case accordingly goes much further. (In which a practice of mutilation to obtain human fat as a charm was held to be admissible in evidence. This evidence proved a motive for the murder - to obtain a charm).

SECTION 8 OF EA 1950• Motive• The relevancy of motive is made clear by illustrations (a)

and (b) of the section. Illustration (a) provides A. is tried for the murder of B. The facts that A. murdered C., that B. knew that A. had murdered C. and that B. had tried to extort money from A. by threatening to make his knowledge public are relevant. This provide evidence to show motive admissible to suggest that the accused is of bad character or that he has committed some crime other than the one with which he is charged. In Wong Foh Hin v PP [1964] MLJ 149 the appellant was convicted of the murder of his own daughter. On the day in question, 7 August 1963 according to appellant's wife, appellant had told his daughter she must leave the house permanently After evening meal, he repeated this. At a later stage he asked his daughter to massage him with eucalyptus oil. (The cineole based oils are used medicinally to relieve the symptoms of influenza and colds, in products like cough sweets, lozenges, and inhalants. They also have anti-inflammatory and analgesic qualities and are topically applied as an ingredient in liniments. Inhaled eucalyptus oil vapor is a decongestant). He sent two of his children to their mother and was on his own bed with the daughter under his mosquito net. There was only a small night light in the room. After some time, the wife heard the daughter call out, apparently in pain. She asked what had happened and, after some time, the daughter answered: "Tidak". The wife opened the mosquito net, found the bed moving about and saw appellant getting up and pulling on his trousers. Appellant said he was going outside to defecate and asked the daughter to go with him. The wife said she would go and, when she passed through the door, appellant stayed inside and shut the door and she could not return. She reported to the police who returned to the house. The daughter was not there and the police took appellant away. Two days later the daughter's body was found in a well near the house.

• Motive• Evidence was admitted of an incident in May, three months before the daughter's death.

This was to the effect that the wife had previously complained to the Orang Tua that appellant had interfered with the daughter and that the matter had been disposed of by the Orang Tua stating that, if this occurred again, the matter would be reported to the police. Appellant, the wife and the Orang Tua signed a document which was produced in evidence, recording, inter alia, the allegation and the warning about reporting to the police if this occurred again. The grounds of appeal concern solely the question whether the evidence of the submitted that these pieces of evidence, suggesting, as they did, an incestuous relationship between the appellant and his daughter, amounted to evidence of bad character which, in the circumstances of this case, was inadmissible. It was submitted alternatively that, if it was admissible, the trial Judge should have exercised his discretion to exclude it on the ground that its prejudicial effect for outweighed its probative value. For the evidence concerning the interview with the Orang Tua on the first occasion shows how strong the motive must have been when the wife went off in the night time on the second occasion. It showed that applicant was likely to be very concerned that this time there would be a police investigation and the daughter would be the most important person the police would interview and the most dangerous from his point of view. “It should, however, be remembered that evidence which is otherwise relevant cannot become irrelevant merely because, besides being relevant on the point on which it is tendered, it incidentally shows the accused to be of a bad character. If the evidence of motive incidentally discloses the bad character of the accused, the evidence does not, for that reason, become irrelevant”. This evidence was therefore admissible.

SECTION 8 OF EA 1950

SECTION 8 OF EA 1950• Motive• Evidence of some crime other than the

one with which the accused is charged is admissible. Per Sir John Beaumont in Natha Singh v Emperor AIR 1946 PC 187 states “At trial of the appellants for the murder of Karnail Singh the approver gave evidence that he and the appellants had murdered Bhan Singh a few days before the murder of Karnail Singh, and that they proposed to conceal the murder of one Bhan Singh by causing injuries to Karnail Singh and getting themselves arrested for so doing. That is to say, the evidence of the approver was that the motive for the injuries caused to Karnail Singh was a desire to conceal the murder of Bhan Singh”.

SECTION 8 OF EA 1950• Motive• Illustration (b) provides A. sues B. upon a bond for the payment of

money. B. denies the making of the bond. The fact that at the time when the bond was alleged to be made B. required money for a particular purpose is relevant. Where the crime is financial, evidence that the accused required money for a particular purpose is admissible under this section. In Sunny Ang v PP [1966] 2 MLJ 195, the appellant was convicted on 18 May 1965 of the murder of one Jenny Cheok Cheng Kid (hereinafter referred to as Jenny) and was sentenced to death. He appeals against that conviction. According to the prosecution the offence was committed on 27 August 1963 at about 5 p.m. at sea near two islands called Pulau Dua which are also known as the Sisters Islands. The appellant had hired a sampan from a boatman called Yusof and on his directions Yusof had taken both the appellant and Jenny to a place between the two islands where he dropped anchor. The appellant stated in evidence that his object in going there was to collect corals and that Jenny was to assist him in doing so. According to the prosecution this was only the ostensible (alleged) reason for going there; the appellant's real intention was to murder Jenny and in pursuance of that intention he assisted Jenny to put on the diving equipment which had been brought in the sampan and allowed her, a novice (beginner) diver, to go down alone, wearing a flipper (a flat rubber shoe with the front expanded into a paddle used in skin diving) which had previously been cut, into waters which he knew were dangerous and hazardous with the result that she met her death. The evidence relied upon by the prosecution was wholly circumstantial. For that reason it is relevant to set out the more important facts and circumstances which the jury were in a position to find, if they decided to do so, from the evidence. These facts and circumstances were as follows:

SECTION 8 OF EA 1950• Motive• (1) The appellant had been made a bankrupt in October

1962 and was still a bankrupt on 27 August 1963, being the day on which the offence was alleged to have been committed. He was in need of money and that could be a motive for the crime. (2) On 27 August 1963 Jenny was insured against accidents with several insurance companies, the total sum being $450,000. (3) One of the insurance policies under which Jenny was insured for the sum of $150,000 had lapsed on 26 August 1963 but was renewed by the appellant on the morning of 27 August 1963 for another five days. The appellant, however, did not renew or extend his own insurance policy which had been taken out at the same time. (4) Another one of these insurance policies, which was for the sum of $100,000, was due to expire on 28 August 1963. Although Jenny's body has never been found, there is overwhelming evidence on the record that the appellant murdered her. In our judgment no miscarriage of justice has occurred in this case. The appealed was dismissed.

SECTION 8 OF EA 1950• Motive

• Per Adams J in Lim Kong v PP [1962] MLJ 195 states ‘It was not disputed and in fact is shown on the record that this evidence and cross-examination were introduced to show that the accused was in a state of financial embarrassment and the learned Deputy pointed out in his reply to Mr. Marshall that this evidence was admissible under s. 8 of the Evidence Ordinance, 1950 to prove motive”.

SECTION 8 OF EA 1950• Preparation• Illustrations (c) and (d) of the section are

the examples of preparation made for the commission of a wrongful act. Illustration (c ) provides A. is tried for the murder of B. by poison. The fact that before the death of B., A. procured poison similar to that which was administered to B. is relevant. Illustration (d) provides the question is whether a certain document is the will of A. The facts that not long before the date of the alleged will A. made inquiry into matters to which the provisions of the alleged will relate, that he consulted lawyers in reference to making the will and that he caused drafts of other wills to be prepared of which he did not approve are relevant.

• Conduct• Section 8 (2) of the Act makes conduct relevant (2) The conduct of

any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (Kelakuan sesuatu pihak atau kelakuan seseorang ejen kepada sesuatu pihak dalam sesuatu guaman atau prosiding berkenaan dengan guaman atau prosiding itu, atau berkenaan dengan sesuatu fakta isu dalamnya atau yang relevan dengannya, dan kelakuan seseorang yang kesalahan terhadapnya menjadi perkara sesuatu prosiding, adalah relevan jika kelakuan itu mempengaruhi atau dipengaruhi oleh sesuatu fakta isu atau fakta relevan, dan sama ada kelakuan itu berlaku dahulu atau kemudian daripadanya).

SECTION 8 OF EA 1950

SECTION 8 OF EA 1950• Conduct• In Boota Singh v PP [1933] MLJ 195, where a report to the

police made by the deceased against the accused several months before the murder of the deceased is not admissible under Section 32 of the Evidence Ordinance. However, it is admissible under Section 8, not as evidence of the truth of the allegations of the deceased against the prisoner, but as showing the relations between the parties and in support of the motive alleged by the prosecution. (In this case a report made by the deceased against the prisoner nine months before the murder was admitted in evidence by the trial Judge, as showing a motive for the crime). The report was, however, put forward by the prosecution as showing or constituting motive under Section 8. It indicated that the deceased was on bad terms with the accused, and supported the oral evidence to the same effect. The conduct of the deceased in making a report against the accused is made relevant by the express terms of Section 8. It should be added that the report is not evidence of the truth of the deceased's allegation against the prisoner…The fact, however, that the report was made still remains and is admissible as showing the relations between the parties and in support of the motive alleged by the prosecution.

Complaint v Statement• In Aziz Mohd Din v PP [1996] 5 MLJ 473, the accused was charged and convicted under s

376 of the Penal Code (FMS Cap 45) for rape of an underaged girl on 31 January 1995 at a flat in Melaka. The prosecution's case rested primarily on the medical evidence and testimony of the complainant ('SP2'), father of the complainant ('SP1') and the owner of the flat ('SP6'). SP6 had stated in evidence that both SP2 and the accused had spent the night at his house on the date the alleged rape took place. There was also reliance on the cautioned statement made by the accused after being advised by his father in the presence of the arresting officers to admit to the charge. The medical evidence tendered by the two medical doctors (SP5 and SP9) had been at variance as to the age of the tear to the hymen. However, the learned sessions court judge had concluded with reference to the testimony of SP2, that there had been penetration. The learned sessions court judge had also admitted the police report ('exh P1') made by SP1 which was based on what SP2 had told him and the cautioned statement by the accused.

• The accused appealed. Court held that “A complaint made by a rape victim and the circumstances under which it was made are relevant under s 8 illustration (j) of the Act. Illustration (j) provides the question is whether A. was ravished. The facts that shortly after the alleged rape she made a complaint relating to the crime, the circumstances under which and the terms in which the complaint was made are relevant. The fact that without making a complaint she said that she had been ravished is not relevant as conduct under this section, though it may be relevant -(i) as a dying declaration under section 32 (a); or (ii) as corroborative evidence under section 157.

• Fakta – fakta bahawa sejurus selepas rogol yang dikatakan itu dia membuat aduan berkenaan dengan jenayah itu, hal keadaan dalam mana aduan itu telah dibuat dan kandungan aduan itu adalah relevan. Fakta bahawa tanpa membuat aduan dia berkata yang dia telah diperkosa adalah tak relavan sebagai kelakuan di bawah seksyen ini, sesungguhpun fakta itu mungkin relevan sebagai akuan nazak di bawah seksyen 32 (a) atau keterangan menyokong di bawah seksyen 157.

SECTION 8 OF EA 1950

• The difference between a complaint and a statement

• The difference between a complaint and a mere statement in section 8 is that - - the former is expressive of feelings, the latter of knowledge,

- the former evidences conduct, but the latter has no such tendency

• A complaint, unlike a bare statement, is made with a view to redress or punish and is made to someone in authority, such as the police, but not necessarily to a public officer (see Woodroffe & Ameer Ali's Law of Evidence (12th Ed) pp 292-293).

• See also PP v Teo Eng Chan & Ors [1988] 1 MLJ 156 where the distinction between a complaint and a statement is made clear.

• On the manner in which a complaint should be made, I refer to the admirable book The Law of Evidence Vol 1 by ERSR Coomaraswamy where the learned author says at pp 240-241: The complaint must be voluntary and spontaneous, and not elicited by leading, inducing or intimidating questions.

SECTION 8 OF EA 1950

SECTION 8 OF EA 1950

Complaint (Section 8) Statement(Section 157 & 32 (a))

1. It is expression of feeling It is an expression of knowledge

2. It is made shortly after the incident It is the evidence for corroborative evidence or for dying declaration

3. It is made with view to redress or punishment

4. It is made to someone in authority, not necessarily the police

5. It is the evidence of conduct

6. The complaint gives information, expresses grief and the complainant hopes that action would be taken.

• The difference between a complaint and a statement

SECTION 8 OF EA 1950• Provided that the other requirements of the section have been

complied with evidence may be given of pervious or subsequent conduct. It must be noted that evidence of conduct is an equivocal (ambiguous/unclear) act and is capable of more than one interpretation.

• Previous conduct• Illustration (c), (d), and (e) of the section provide examples

of previous conduct. Previous conduct and preparation are closely connected with each other. Previous conduct, preparation and motive are admissible to establish guilt.

• Per Lord Atkinson in R v Ball [1911] AC 47 states: - “In an ordinary prosecution for murder you can prove

previous acts or words of the accused to show that he entertained feelings of enmity towards the deceased, and this evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him…”.

o In Lee Lee Chong v PP [1998] 4 CLJ 655, the fact that the accused absconding from scene of the crime is relevant.

SECTION 8 OF EA 1950• Subsequent conduct• Illustrations (e) to (k) of the section provide examples of subsequent

conduct.

• Per Raja Azlan Shah J in Chandrasekaran v PP [1971] 1 MLJ 153, where this was an appeal against the conviction of the appellants on charges under the Prevention of Corruption Act, 1961. The evidence showed that there was a conspiracy to defraud the Government by means of forged vouchers. The appellants were charged with and convicted of abetment of the offence of defrauding the Government. On appeal it was argued, inter alia: (5) evidence of the subsequent conduct of the second appellant was wrongly admitted;

• Held, (6)   evidence of the subsequent conduct of the second appellant was admissible under section 8 of the Evidence Ordinance. States “The evidence of subsequent conduct is relevant under section 8 of the Evidence Ordinance and may properly be taken into account, after the prosecution has established the guilt of the accused, to reinforce the satisfaction of the court as to the proof of guilt made out by the prosecution case.

• (See Chandika Prasad v Emperor 126 IC 684)”. In this case the prosecution led evidence that this appellant told his office colleagues of his purchase of a$ 1,000 diamond ring for his wife from alleged turf club winnings and evidence of payment of outstanding bills of about $ 1,500. (The action done by the accused clearly show the subsequent conduct after committing the alleged crime).