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WEEK 4 THE HEARSAY RULE AND ITS EXCEPTIONS

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Readings:

(1) Evidence and the Litigation Process, 3rd Edn, Pinsler, LexisNexis Butterworths, at pp 99-131.(2) Practitioners’ Library, Evidence in Criminal Trials, 2002, at pp 45-72. (3) Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447*(4) Chin Tet Yung, Confessional Statements by Accomplices and CPC Hearsay: An Unhealthy

Mix? [2009] 235-242

Contents:

A. Definition of Hearsay

Subramaniam v PP [1956] 1 MLJ 220Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234

B. Common Law Basis for excluding Hearsay Evidence

Lejzor Teper v R [1952] AC 48Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234

C. Hearsay Rule in the Evidence Act

Roy S Selvarajah v PP [1998] 3 SLR 517PP v Knight Glenn Jeyasingam [1999] 2 SLR 499

D. Cases illustrating the hearsay rule

1. Not admissible

(i) Statements of persons not called as witnesses

Ramli bin Daud v PP [1996] 3 SLR 225Tamilkodi s/o Pompayan v PP [1999] 1 SLR 702Ang Jwee Herng v PP [2001] 2 SLR 474Tom-Reck Security Services Pte Ltd v PP [2001] 2 SLR 70Surender Singh s/o Jagdish Singh and another (administrators of the estate of Narindar Kaur d/o Sarwan Singh, deceased) v Li Man Kay and others [2010] 1 SLR 428

(ii) Statements by a witness made in the course of investigations

PP v Tan Kim Seng Construction Pte Ltd & Anor [1997] 3 SLR 158

(iii) Evidence of informers not called to give evidence in court

PP v Wong Wai Hung & Anor [1993] 1 SLR 927Aw Kew Lim & Ors v PP [1987] SLR 410PP v Ang Soon Huat [1990] SLR 915Roy S Selvarajah v PP [1998] 3 SLR 517

(iv) Purchase Orders

PP v IC Automation (S) Pte Ltd [1996] 3 SLR 249

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(v) Minutes of meeting

Taw Cheng Kong v PP [1998] 1 SLR 943

(vi) Tape recordings

Teo Keng Pong v PP [1996] 3 SLR 329

(vii) Medical report

Juma’at bin Samad v PP [1993] 3 SLR 338Mohamed Bin Allapitchay & Ors v R [1958] 1 MLJ 197Aw Kew Lim & Ors v PP [1987] SLR 410Roy S Selvarajah v PP [1998] 3 SLR 517

2. Admissible

(i) Spontaenous statements of accused

Chi Tin Hui v PP [1994] 1 SLR 778PP v Neoh Bean Chye & Anor [1972-1974] SLR 213

(ii) Statements of accused made through an interpreter

Kong Weng Chong & Ors v PP [1994] 1 SLR 34Chong Teng v PP [1960] 1 MLJ 153

(iii) Statements of deceased persons

Boota Singh v PP [1933] 1 MLJ 195Mohamed Bin Allapitchay & Ors v R [1958] 1 MLJ 197Mary Shim v PP [1962] 1 MLJ 132Karam Singh v PP [1967] 2 MLJ 25Somwang Phattanasaeng v PP [1992] 1 SLR 850

E. The Court of Appeal revisiting the Hearsay Rule applicable in Singapore

Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447

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A. Definition of Hearsay

How to define hearsay? Given by someone who’s not the actual witness The person who witnessed the actual event is not the witness in court the witness in court

has not perceived directly Hearsay is when the statement is to prove the truth of the content and not the fact that it was

made (Subramaniam) The witness has no personal knowledge

In-class example: Statement A: Mark wasn’t in the court for the court to verify the statement. Hearsay. Statement B: If you read in the news that there was a jam at the PIE, is this statement

hearsay? It might be, because you did not have personal knowledge of the fact. Even if you tender the article into court, can you challenge that the article is hearsay? You can overcome the issue that it is hearsay by bringing in the journalist who wrote the article. There is another issue of hearsay if the journalist didn’t experience the hearsay personally. People won’t usually challenge newspaper reports on hearsay grounds though.

Statement C: When Mark specifically says that there was a jam, is it hearsay? He was personally stuck in the jam, and was giving direct evidence of it.

Essentially, to avoid hearsay, you need to get the person who actually experienced the event to come down to court. Anything else would be hearsay.

Why do we exclude hearsay? Issue of reliability the information has gone through a third party You cannot verify the truth with hearsay evidence Unfairness it’s unfair if one party is allowed to adduce evidence even though its 2nd hand

evidence. Both sides should have the burden of bringing in 1st hand direct evidence. You cannot cross-examine the witness in court since he did not experience the event

personally goes towards inability to verify the truth Look at Soon Peck Wah’s case for reasons why we should exclude hearsay

1. Evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. The fact that the statement was made may be relevant in considering the mental state and conduct of the witness or of some other person in whose presence the statement was made.

Subramaniam v PP [1956] 1 MLJ 220 – Facts: The accused was found to be in possession of three pouches containing 20 live rounds of ammunition. He was subsequently charged with unlawful possession of firearms. His defence was that he was captured by terrorists and was at all times acting under duress. The terrorists had threatened to kill him if he did not cooperate with them. Held: The Privy Council held that the trial judge had wrongly excluded his evidence of the threats as hearsay. The fact that the threats were made was relevant to establish his state of mind, which was relevant to his defence of duress.

Mr LMD De Silva: … In ruling out peremptorily the evidence between the terrorists and the appellant the trial judge was in error. Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the

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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. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes … Their Lordships feel unable to hold with any confidence that had the excluded evidence, which goes to the very root of the defence of duress, been admitted, the result of the trial would probably have been the same. For the reasons which have been given their Lordships have humbly advised her Majesty that the appeal be allowed.

2. It has been suggested that the definition formulated by the Privy Council in Subramaniam is ambiguous: 10 Halsbury’s Laws of Singapore (2000) para 120.085. Notwithstanding that, this appears to be the definition which has received popular judicial endorsement. The reasoning has been applied by the Singapore Court of Appeal in cases such as Ramachandran & Anor v PP [1993] 2 SLR 671 and Lim Kheng Boon & Ors v PP [1991] SLR 69, in rejecting evidence which was adduced to establish the truth of the contents of an out-of-court statement.

3. In Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234, the Singapore Court of Appeal referred to the following definition:

[T]he assertions of persons made out of court whether orally or in documentary form or in the form of conduct tendered to prove the facts which they refer to (ie facts in issue and relevant facts) are inadmissible unless they fall within the scope of the established exceptions.

B. Common Law Basis for excluding Hearsay Evidence

Common law position Common law approach to admissibility: 1) probative value, 2) contrary to public policy, 3)

whether there is an exception to the exclusions With regard to hearsay, there is probative value.

4. Hearsay evidence is excluded for various reasons, including unreliability as well as unfairness that may be occasioned from depriving the accused of his right to cross-examine a witness who is not present in court. In PP v Tan Joo Cheng & Ors [1990] SLR 743, the High Court declined to accept hearsay evidence, citing the fact that the person who made the out-of-court statement was not called as a witness and not cross-examined on the statement in question. Thus, at common law, an exclusionary rule applies to hearsay evidence, subject to exceptions for cases where the reasons justifying exclusion do not apply.

Lejzor Teper v R [1952] AC 480 - Lord Normand: … The rule against admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.

Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234 - Yong Pung How CJ: The rationale for the hearsay principle is that the witness cannot verify the truth of the facts of which he has no personal knowledge. As the person who does have personal knowledge of the facts is not in court, the accuracy of his perception and his veracity

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cannot be assessed and tested in cross- examination. Such evidence is unreliable and should hence be excluded from consideration.

5. At common law, the ‘hearsay rule’ operates to exclude out-of-court assertions where such evidence is used to establish the truth of facts contained in these assertions, and the maker is not present in court to give evidence. The rule is not infringed where the purpose of admitting the evidence is merely to establish the fact that such a statement was made. This is the oft-cited characterisation adopted by the Privy Council in Subramaniam v PP [1956] MLJ 220. Not all out-of-court statements are intended to be excluded in evidence. A question of hearsay only arises when the words spoken are intended to be relied on testimonially, ie as establishing some fact narrated by the words: see Leong Hong Khie v PP and Tan Gong Wai v PP [1986] 2 MLJ 206.

C. Hearsay Rule in the Evidence Act + CPC 2010

6. The Evidence Act adopts an inclusionary approach to determine what may be admitted in evidence. Section 62 is the provision,

Oral evidence must be direct62. —(1) Oral evidence must in all cases whatever be direct — (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact; (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact; (c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner; (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. (2) The opinions of experts expressed in any treatise commonly offered for sale and the grounds on which such opinions are held may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable. (3) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.

7. The word ‘hearsay’ is not found in the Evidence Act. In criminal proceedings, by virtue of ss 268, 274, 276 of the CPC 2010, hearsay evidence is admissible only in accordance with the CPC 2010 or any other written law, which includes the Evidence Act. Not all the common law exceptions to hearsay are reflected in the Evidence Act. The courts accept that the Evidence Act makes such common law exceptions which are not inconsistent with the Act part of the law of evidence: s 2(2) of the Evidence Act and Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234.

8. The Evidence Act does not formulate the rule against hearsay evidence. Rather it adopts an inclusionary rule, stating what may be admitted in evidence.

Roy S Selvarajah v PP [1998] 3 SLR 517 - Yong Pung How CJ at [40] It is trite law that the evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement: Subramaniam v PP [1956] 1 WLR 965. It is not hearsay if the statement is tendered to show the fact that it is made. The Evidence Act does not formulate the rule against hearsay evidence. Rather it adopts an inclusionary rule, stating what may be admitted in evidence. Under s 5 of the Evidence Act, evidence may be given in any proceeding of fact in issue or relevant fact. The common law definition of hearsay corresponds with the terminology of the Evidence Act. Statements of relevant facts are hearsay and inadmissible unless they fall within an exception to the hearsay rule since they are adduced to prove the facts to which they refer. However, where the statement itself is relevant, then it is the fact that the statement was made which is in issue.

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9. Common law hearsay rules and exceptions apply in so far as they are consistent with the Evidence Act.

PP v Knight Glenn Jeyasingam [1999] 2 SLR 499 - Yong Pung How CJ at [58] Recent decisions in Singapore have affirmed the role of the Evidence Act as a facilitative statute: see Lee Kwang Peng v PP [1997] 3 SLR 278 at p 292. This was the means through which the probative versus prejudicial balancing tests of DPP v Boardman [1975] AC 421 was introduced to test evidence in similar fact cases. I discussed this in Tan Meng Jee v PP [1996] 2 SLR 422 at p 434. A similar approach has been taken to introduce common law rules not expressly provided for under the Evidence Act in the categories of, for example, hearsay evidence and corroboration.

10. The Singapore courts have tended to consider the Evidence Act provisions embodying the direct evidence rule as corresponding to the common law hearsay rule. In Lim Ah Oh v R [1956] MLJ 269, Murray- Aynsley CJ said that hearsay, as contrasted with direct evidence, was excluded by s 60 of the Evidence Ordinance (now s 62 of the Evidence Act):

The rule against hearsay is found in s 60 of the Evidence Ordinance [now s 62 of the EA]. On this matter I think the rule is the same as in England and that under that section evidence of statements might be admitted provided always that the reason of admitting was borne in mind, and carefully explained to the jury, if there was one.

11. In Soon Peck Wah v Woon Che Chye, the Court of Appeal similarly stated that ‘the rule against hearsay is reflected in s 62 Evidence Act’. In Yeo Hock Cheng v Rex [1939] 1 MLJ 91, Sir George Rankin commented as follows:

As a matter of fact, the select committee which produced the Evidence Act pointed out that you will not find the word ‘hearsay’ in the whole of the Indian Evidence Act from beginning to end and the exceptions to the hearsay rule are dealt with in Indian evidence on other principles namely, by the introduction of the hearsay of things that are relevant to the issues as distinct from things in issue.

12. By the inclusionary approach, the law stipulates those circumstances where out-of-court statements may be admissible, by classifying them as ‘relevant facts’. The question is whether the statement of which evidence is to be given falls within these classifications of relevancy. For example, admissions, confessions and police statements are all potentially admissible as exceptions to the hearsay rule, provided they satisfy the requirements in the relevant sections of the Evidence Act and CPC 2010.

13. In Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447, the Court of Appeal said the following re Subramania,’s approach:

(A) REFERENCE TO THE HEARSAY RULE WITHOUT REGARD TO THE EA

71 However, one of the popular judicial views, contrary to the tone of the EA, adopts precisely the characterisation of the hearsay rule as one that makes no reference to the EA and instead utilises the common law definition. In a Privy Council case on appeal from Malaya, Subramaniam v PP [1956] MLJ 220, Mr L M D de Silva characterised the hearsay rule as such (at 222):

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It 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.

As will be appreciated, this definition is reminiscent of the common law definition and characterises

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the hearsay rule as an exclusionary one notwithstanding the scheme of the EA. By this approach, one does not even have to look to the sections in the EA defining legal relevancy; all that one needs to do is to ascertain whether the evidence falls within the hearsay rule as defined at common law.

14. The Court of Appeal in Lee Chez Kee further said the following re the approach to be taken under the EA:

67 It must be clarified that the EA does not contain an express definition of hearsay. Instead, the EA contains an implicit acknowledgement of the rule. As Prof Tan Yock Lin perceptively notes in his seminal work, Criminal Procedure (LexisNexis, 2007) vol 2 at ch XVI para [3], hearsay in the EA is perceived as being a statement of relevant facts and as such is an irrelevant fact as opposed to a statement which is itself declared by the EA to be a relevant fact. This is assured by the absence of any general provisions making statements of relevant facts themselves relevant facts. Where exceptions to the hearsay rule are intended to be relevant, they are rendered specifically as relevant facts. There are thus no real “exceptions” in the EA; more accurately, the EA gives effect to these common law exceptions to the hearsay rule.

68 Similarly, Assoc Prof Chin Tet Yung in his article, “Hearsay – A Doctrine in Retreat?” (1990) 32 Mal LR 239, incisively notes at 240 that the admissibility of hearsay evidence is achieved in a “circuitous way” in the EA: statements containing relevant facts or facts in issue also have to be legally relevant under the EA. The legal relevancy sections concerning statements are ss 17 to 40 and are similar to, but not identical with, the English common law exceptions at the time of about 1872. These sections made certain statements relevant which also means that they are admissible. Assoc Prof Chin further notes that the absence of the hearsay rule in its exclusionary form does not mean that hearsay statements may be admitted “willy-nilly” (at 240), presumably by virtue of the implicit acknowledgement of the hearsay rule in the EA itself.

69 In other words, as succinctly summarised by the High Court in Roy S Selvarajah v PP [1998] 3 SLR 517 at [40], the EA does not formulate the rule against hearsay evidence. Rather, it adopts an inclusionary approach, stating what may be admitted in evidence. The important question is thus whether the statement to be admitted satisfies any of the definitions of legal relevancy (which is a separate issue from whether the statement is logically relevant) in the EA. If so, it is relevant, and is made admissible by s 5 of the EA and that is the end of the enquiry. It does not matter whether evidence of the relevant fact thus established matches that which the common law denotes as being original evidence or as being hearsay evidence admissible under an exception to the hearsay rule.

15. The main statutory provisions to the hearsay rule are contained in ss 2(2), 17 to 40 and 160 of the Evidence Act, as well as ss 268-277 of CPC 2010 (formerly ss 377-385 of the old CPC).

Sections 32 to 40 of the Evidence Act

Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant

32. Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: when it relates to cause of death;

(a) when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question; such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question; or is made in course of business;

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(b) when the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; or against interest of maker;

(c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages; or gives opinion as to public right or custom or matters of general interest;

(d) when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; or relates to existence of relationship;

(e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; or is made in will or deed relating to family affairs;

(f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised; or in document relating to transaction mentioned in section 13 (a);

(g) when the statement is contained in any deed or other document which relates to any such transaction as is mentioned in section 13 (a); or is made by several persons and expresses feelings relevant to matter in question.

(h) when the statement was made by a number of persons and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is whether A was murdered by B. A dies of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or The question is whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A’s birth. An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that on a given day he attended A’s mother and delivered her of a son, is a relevant fact.

(c) The question is whether A was in Singapore on a given day. A statement in the diary of a deceased solicitor regularly kept in the course of business that on a given day the solicitor attended A at a place mentioned in Singapore for the purpose of conferring with him upon specified business is a relevant fact.

(d) The question is whether a ship sailed from Singapore harbour on a given day. A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Singapore harbour is a relevant fact.

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(e) The question is whether rent was paid to A for certain land. A letter from A’s deceased agent to B, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.

(f) The question is whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

(g) The question is whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.

(h) The question is, what was the cause of the wreck of a ship? A protest made by the captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, what was the price of shares on a certain day in a particular market? A statement of the price made by a deceased broker in the ordinary course of his business is a relevant fact.

(j) The question is whether A, who is dead, was the father of B. A statement by A that B was his son is a relevant fact.

(k) The question is, what was the date of the birth of A? A letter from A’s deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(l) The question is whether and when A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter’s marriage with A on a given date, is a relevant fact.

(m) A sues B for a libel expressed in a printed caricature exposed in a shop-window. The question is as to the similarity of the caricature and its libellous character.

The remarks of a crowd of spectators on these points may be proved.

Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated33. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case the court considers unreasonable subject to the following provisions: (a) the proceeding was between the same parties or their representatives in interest; (b) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) the questions in issue were substantially the same in the first as in the second proceeding. Explanation..—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Statements made under special circumstances

Entries in books of accounts when relevant34. Entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.

IllustrationA sues B for $1,000 and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.

Evidence of computer output35. —(1) Unless otherwise provided in any other written law, where computer output is tendered in evidence for any purpose whatsoever, such output shall be admissible if it is relevant or otherwise admissible according to the other provisions of this Act or any other written law, and it is — (a) expressly agreed between the parties to the proceedings at any time that neither its authenticity nor the accuracy of its contents are disputed;

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(b) produced in an approved process; or (c) shown by the party tendering such output that — (i) there is no reasonable ground for believing that the output is inaccurate because of improper use of the computer and that no reason exists to doubt or suspect the truth or reliability of the output; and (ii) there is reasonable ground to believe that at all material times the computer was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the accuracy of the output was not affected by such circumstances.

[8/96](2) Notwithstanding subsection (1) (a), an agreement expressly made between the parties referred to in that subsection shall not render the computer output admissible in evidence — (a) in criminal proceedings on behalf of the prosecution if at the time the agreement was made, the accused person or any of the accused persons was not represented by an advocate and solicitor; or (b) in any proceedings, if the agreement was obtained by means of fraud, duress, mistake or misrepresentation.

[8/96](3) A certificate signed by a person holding a responsible position in relation to the operation or management of a certifying authority appointed under subsection (5) and purporting to identify the approved process, including that part of the process that is relevant to the proceedings, shall be sufficient evidence that the process is an approved process for the purposes of this section.

[8/96](4) Where the computer output is obtained from an approved process and duly certified as such by a person holding a responsible position in relation to the operation or management of the approved process, it shall be presumed that it accurately reproduces the contents of the original document unless the contrary is proved.

[8/96](5) In this section, “approved process” means a process that has been approved in accordance with the provisions of any regulations made by the Minister, by a person or an organisation appointed by the Minister to be a certifying authority under such regulations.

[8/96](6) With respect to subsection (1) (c), a certificate signed by a person holding a responsible position in relation to the operation or management of the relevant computer system and — (a) purporting to identify such output and describing the manner in which it was produced; (b) giving particulars of any device involved in the processing and storage of such output; (c) dealing with the matters mentioned in subsection (1) (c), shall be sufficient evidence of the matters stated in the certificate.

[8/96](7) If the person referred to in subsection (6) who occupies a responsible position in relation to the operation or management of the computer did not have control or access over any relevant records and facts in relation to the production by the computer of the computer output, a supplementary certificate signed by another person who had such control or access and made in accordance with subsection (6) (a), (b) and (c) shall be sufficient evidence of the matters stated in the certificate.

[8/96](8) If any person referred to in subsection (6) or (7) refuses or is unable for any reason to certify any of the matters referred to in subsection (6) or (7), a certificate signed by another person who had obtained or been given control or access to the relevant records and facts in relation to the production by the computer of the computer output and made in accordance with subsection (6) (a), (b) and (c) shall be sufficient evidence of the matters stated in the certificate.

[8/96](9) For the purposes of subsections (3), (4), (6), (7) and (8), it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

[8/96](10) Any computer output tendered in evidence under this section and duly authenticated shall not be inadmissible as evidence of proof of the contents of the original document merely on the ground that — (a) certain parts or features of the original document, such as boxes, lines, shades, colours, patterns or graphics, do not appear in the output if such parts or features do not affect the accuracy of the relevant contents; or (b) it is secondary evidence.

[8/96](11) Any person who in a certificate tendered under subsection (3), (4), (6), (7) or (8) in a court makes a statement which he knows to be false or does not reasonably believe to be true shall be guilty of an offence and shall be liable on conviction to a fine or to imprisonment for a term not

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exceeding 2 years or to both. [8/96]

Supplementary provisions to section 3536. —(1) Where a court is not satisfied that the computer output sought to be admitted in evidence under section 35 accurately reproduces the relevant contents of the original document, the court may, in its discretion, call for further evidence.

[8/96](2) Where further evidence is called for under subsection (1), such evidence may be produced by an affidavit made — (a) by a person occupying a responsible position in relation to the operation or management of the certifying authority appointed under section 35 (5); (b) by any other person occupying a responsible position in relation to the operation of the computer at the relevant time; (c) by the person who had control or access over any relevant records and facts in relation to the production of the computer output; (d) by the person who had obtained or been given control or access over any relevant records and facts in relation to the production of the computer output; or (e) by an expert appointed or accepted by the court.

[8/96](3) Notwithstanding subsections (1) and (2), the court may, if it thinks fit, require that oral evidence be given of any matters concerning the accuracy of the computer output, and may call a deponent of an affidavit under subsection (2) or any person responsible for a certificate issued under section 35 (3), (4), (6), (7) or (8) for this purpose.

[8/96](4) In estimating the weight of any computer output admitted under section 35, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the output and, in particular — (a) whether or not the information which the output reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information, if such contemporaneity is relevant; (b) whether the supplier of the information or any person involved in the processing of such information had any incentive or motive to conceal or misrepresent the information so supplied.

[8/96](5) Without prejudice to subsections (1) to (4), whenever any computer output is proved under section 35, all matters may be proved in order — (a) to contradict or to corroborate it; or (b) to impeach or support the credibility of the person by whom it was made, or by whom the information was processed. (6) Evidence may not be given under subsection (5) of any matter of which, if the person had been called as a witness and had denied that matter upon cross-examination, evidence could not have been adduced by the cross-examining party.

[8/96]Rules for filing and receiving evidence and documents in court by using information technology36A. —(1) The Rules Committee constituted under the Supreme Court of Judicature Act (Cap. 322) may make rules to provide for the filing, receiving and recording of evidence and documents in court by the use of information technology in such form, manner or method as may be prescribed.

[8/96](2) Without prejudice to the generality of subsection (1), such rules may — (a) modify such provisions of this Act as may be necessary for the purpose of facilitating the use of electronic filing of documents in court; (b) provide for the burden of proof and rebuttable presumptions in relation to the identity and authority of the person sending or filing the evidence or documents by the use of information technology; and (c) provide for the authentication of evidence and documents filed or received by the use of information technology.

[8/96]Relevancy of entry in public record made in performance of duty37. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public officer in the discharge of his official duty or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.

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Relevancy of statements in maps, charts and plans38. Statements of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of Government as to matters usually represented or stated in such maps, charts or plans, are themselves relevant facts.

Relevancy of statement as to fact of public nature contained in certain Ordinances, Acts or notifications39. When the court has to form an opinion as to the existence of any fact of a public nature, any statement of it made in a recital contained in — (a) any Act or Ordinance; (b) any legislation enacted by the Parliament of Malaysia or by the legislature of any part of the Commonwealth; (c) any legislation enacted by the legislature of any State of Malaysia; or (d) any printed paper purporting to be — (i) the Government Gazette; (ii) the London Gazette; or (iii) the Gazette printed under the authority of the Government of Malaysia or of any State thereof or of the government of any other part of the Commonwealth including, where such part is under both a central government and a local government, any such local government, is a relevant fact.

Relevancy of statements as to any law contained in law books40. When the court has to form an opinion as to a law of any country, any statement of the law contained in a book purporting to be printed or published under the authority of the government of the country, and to contain any such law, and any report of a ruling of the courts of the country contained in a book purporting to be a report of the rulings, is relevant.

Sections 268 - 277 of the CPC 2010

Hearsay evidence admissible only under this Code or other law268. In any criminal proceedings, a statement other than one given orally in those proceedings is admissible as evidence of any fact stated therein to the extent that it is so admissible by this Code or any other written law.

Definitions, etc., for sections 270 to 277269. —(1) In this section and in sections 270 to 277 — "document" includes, in addition to a document in writing — (a) any map, plan, graph or drawing; (b) any photograph; (c) any disc, tape, sound-track, or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and (d) any film, negative, tape or other device in which one or more visual images are embodied so that they can be likewise reproduced from it; "film" includes a microfilm. (2) In this section and in sections 270 to 277, a reference to a copy of a document includes — (a) in the case of a document falling within paragraph (c) but not paragraph (d) of the definition of “document”, a transcript of the sounds or other data embodied in it; (b) in the case of a document falling within paragraph (d) but not paragraph (c) of that definition, a reproduction or still reproduction of the image or images embodied in it, whether enlarged or not; (c) in the case of a document falling within paragraphs (c) and (d) of that definition, such a transcript together with such a still reproduction; and (d) in the case of a document not falling within paragraph (d) of that definition of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document must be construed accordingly. (3) For the purposes of this section and of sections 270 to 277, a protest, greeting or other verbal utterance may be treated as stating any fact that the utterance implies.

Admissibility of out-of-court statements as evidence of facts stated270. —(1) Subject to this section and section 271 and to the rules of law governing the admissibility of accused’s statements, any statement made, whether orally or in a document or

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otherwise, by a person is admissible as evidence in any criminal proceedings of any fact given in that statement of which direct oral evidence by him would be admissible if — (a) being compellable to give evidence on behalf of the party desiring to give the statement in evidence, he attends or is brought before the court, but refuses to be sworn or affirmed, or is sworn or affirmed but refuses to give any evidence; or (b) it is shown with respect to him — (i) that he is dead or is unfit because of his bodily or mental condition to attend as a witness; (ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore; (iii) that he is outside Singapore and it is not practicable to secure his attendance; or (iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to do so. (2) Where a person makes an oral statement to or in the hearing of another person who, at the request of the maker of the statement, puts it (or the substance of it) into writing at the time or reasonably soon afterwards, thereby producing a corresponding statement in a document, the statement in the document shall be treated for the purposes of this section (and sections 271 and 273 so far as they have effect for the purposes of this section) as the statement of the maker of the oral statement.

Restrictions on admissibility of statements under section 270271. —(1) A statement shall not be admissible in evidence in any criminal proceedings by virtue of section 270(1)(a) or (b)(ii), (iii) or (iv), if it was made after the commencement of investigations into the offence which is the subject-matter of the proceedings. (2) Subject to subsection (1), evidence under section 270(1)(b) may not be given on behalf of a party to the proceedings, unless — (a) that party has previously served a notice in writing on each of the other parties of his intention to introduce the evidence; (b) the notice complies with the requirements of subsection (3); and (c) the leave of the court is obtained. (3) The requirements referred to in subsection (2)(b) are as follows: (a) the notice must state on which of the grounds in section 270(1)(b) it is claimed that the statement is admissible; (b) in the case of a statement not made in a document, the notice must state the manner in which it was made (whether orally or otherwise), and must also state — (i) the time and place at which the statement was made; (ii) the name of the maker of the statement and (unless he is dead) his address, if known; (iii) the name and address of the person who heard or otherwise perceived the statement being made; and (iv) the substance of the statement or, if it was made orally and the actual words used in making it are material, the words used; and (c) in the case of a statement made in a document, the notice must contain or have attached to it a copy of that document, or of the relevant part of it, and must also state — (i) the matters mentioned in paragraph (b)(i) and (ii); and (ii) if the maker of the document is different from the maker of the statement, the name of the maker of the document and (unless he is dead) his address, if known, if the information is not readily apparent from the document or the relevant part of the document.

Admissibility of certain records as evidence of facts stated272. —(1) Without prejudice to section 35 of the Evidence Act (Cap. 97), in any criminal proceedings a statement in a document is, subject to this section, admissible as evidence of any fact stated in it of which direct oral evidence would be admissible if — (a) the document is, or forms part of, a record compiled by a person acting under a duty from information which — (i) was supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and (ii) if not supplied by that person to the compiler of the record directly, was supplied by him to the compiler of the record indirectly through one or more intermediaries each acting under a duty; and (b) the person who originally supplied the information from which the record containing the statement was compiled satisfies the condition specified in subsection (2)(a) or (b) or any of the conditions specified in subsection (2)(c). (2) The conditions referred to in subsection (1)(b) are — (a) that the person in question has been or is to be called as a witness in the proceedings; (b) that the person in question, being compellable to give evidence on behalf of the party wishing to give the statement in evidence, attends or is brought before the court — (i) but refuses to be sworn or affirmed; or

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(ii) is sworn or affirmed but refuses to give any evidence; or (c) that it is shown with respect to the person in question — (i) that he is dead or is unfit by reason of his bodily or mental condition to attend as a witness; (ii) that despite reasonable efforts to locate him, he cannot be found whether within or outside Singapore; (iii) that he is outside Singapore and that it is not practicable to secure his attendance; (iv) that, being competent but not compellable to give evidence on behalf of the party desiring to give the statement in evidence, he refuses to do so; or (v) that, because of the time that has elapsed since he supplied the information and considering all the circumstances, he cannot reasonably be expected to remember the matters dealt with in the statement. (3) A statement shall not be admissible in evidence in any criminal proceedings by virtue of subsection (2)(b) or (c)(ii), (iii) or (iv) if the person who originally supplied the information from which the record containing the statement was compiled did so after the commencement of investigations into the offence which is the subject-matter of the proceedings. (4) Where a document setting out the evidence which a person could be expected to give as a witness has been prepared for the purpose of any pending or contemplated proceedings, whether civil or criminal, and that document falls within subsection (1)(a), then in any criminal proceedings in which that person has been or is to be called as a witness, a statement contained in that document shall not be given in evidence by virtue of subsection (2)(a) or (c)(v) without the leave of the court; and the court shall not give leave under this subsection in respect of any such statement unless it is of the opinion that, in the particular circumstances in which that leave is sought, it is in the interests of justice for the witness’s oral evidence to be supplemented by the reception of that statement or for the statement to be received as evidence of any matter about which he is unable or unwilling to give oral evidence. (5) A reference in this section to a person acting under a duty includes a reference to a person acting in the course of any trade, business, profession or other occupation in which he is engaged or employed for the purposes of any paid or unpaid office he holds.

Provisions supplementary to section 270 or 272273. —(1) Where in criminal proceedings a statement in a document is admissible in evidence under section 270 or 272, it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it, authenticated in a manner approved by the court. (2) The court may, in deciding whether a statement is admissible in evidence under section 270 or 272, draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances, including, in the case of a statement in a document, the form and contents of that document. (3) In estimating any weight to be attached to a statement admissible in evidence under section 270 or 272, the court must consider all the circumstances from which it might reasonably infer the accuracy of the statement, and in particular — (a) in the case of a statement falling within section 270(1), whether the statement was made at the same time as the stated facts occurred or existed, and whether the maker of the statement had any incentive to conceal or misrepresent the facts; and (b) in the case of a statement falling within section 272, whether the person who originally supplied the information from which the record containing the statement was compiled did so at the same time as the facts dealt with in that information occurred or existed, and whether that person, or any person concerned with compiling or keeping the record containing the statement, had any incentive to conceal or misrepresent the facts. (4) For the purpose of any rule of law or practice that requires evidence to be corroborated or that regulates the manner in which uncorroborated evidence is to be treated — (a) a statement that is admissible in evidence under section 270 is not capable of corroborating evidence given by the maker of the statement; and (b) a statement that is admissible in evidence under section 272 is not capable of corroborating evidence given by the person who originally supplied the information for the record containing the statement.

Admissibility of hearsay evidence by agreement of parties274. —(1) As regards a statement in a document or made by a person in any other form than a document, if the parties to any criminal proceedings agree at a hearing that for the purpose of those proceedings the statement may be given in evidence, then, unless the court otherwise directs, the statement is admissible in those proceedings and in any proceedings arising out of them (including any appeal or retrial) as evidence of any fact stated therein. (2) An agreement under subsection (1) does not enable a statement to be given in evidence under this section on the prosecution’s behalf unless at the time the agreement is made the

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accused or any of the co-accused is represented by an advocate. (3) An agreement under subsection (1) shall be of no effect for the purpose of any proceedings before the High Court or any proceedings arising out of proceedings before the High Court if made during proceedings before an examining Magistrate conducting a committal hearing under Division 2 of Part X. (4) Where in any criminal proceedings a statement in a document is admissible under this section, it may be proved by the production of that document or (whether or not that document is still in existence) by the production of a copy of that document, or of the material part of it, authenticated in a manner approved by the court. (5) Where a statement is given in evidence under this section but might have become admissible in evidence under section 270 or 272, section 273(4) applies to it as if it were admissible under section 270 or 272, as the case may be.

Admissibility of evidence as to credibility of maker, etc., of statement admitted under certain provisions of this Part275. —(1) Where in criminal proceedings a statement made by a person who is not called as a witness in those proceedings is given in evidence under section 270 — (a) any evidence which, if that person had been so called, would be admissible for the purpose of undermining or supporting that person’s credibility as a witness, is admissible for that purpose in those proceedings; and (b) as regards any matter which, if that person had been so called, could have been put to him in cross-examination for the purpose of undermining his credibility as a witness, being a matter of which, if he had denied it, evidence could not have been adduced by the cross-examining party, evidence of that matter may with the leave of the court be given for that purpose. (2) Where in criminal proceedings a statement made by a person who is not called as a witness in those proceedings is given in evidence under section 270, evidence tending to prove that, whether before or after he made that statement, he made another statement (orally, written or otherwise) inconsistent with the first-mentioned statement is admissible for the purpose of showing that he has contradicted himself. (3) Subsections (1) and (2) apply in relation to a statement given in evidence under section 272 as they apply to a statement given under section 270, except that references to the person who made the statement and to his making the statement must be read respectively as references to the person who originally supplied the information from which the record containing the statement was compiled and to his supplying that information. (4) Section 270(2) applies for the purposes of this section as it applies for the purposes of section 270.

Saving for exceptions to the rule against hearsay in Evidence Act276. This Part does not prejudice the admissibility in criminal proceedings of a statement that would, under the Evidence Act (Cap. 97) or any other law, be admissible as evidence of a fact stated therein.

Application of sections 270 to 275 to statements of opinion277. —(1) Subject to this section, sections 270 to 275 apply to statements of opinion as they apply to statements of fact, subject to the necessary modifications and in particular the modification that a reference in those sections to a fact stated in a statement must be read as a reference to a matter dealt with in the statement. (2) Section 272, as applied by subsection (1), does not make admissible in criminal proceedings a statement of opinion in a record unless that statement would be admissible in those proceedings if made while giving oral evidence by the person who originally supplied the information from which the record was compiled; but where a statement of opinion in a record deals with a matter on which the person who originally supplied that information is (or if living would be) qualified to give oral expert evidence, section 272, as applied by subsection (1), has effect in relation to that statement as if so much of section 272(1) as requires personal knowledge on the part of that person were omitted. (3) Where a person is called as a witness in criminal proceedings, a statement of opinion by him on a relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him, is admissible as evidence of what he perceived.

D. Cases illustrating the hearsay rule (i) Statements of persons not called as witnesses

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14. Adopting the Subramaniam definition, the general rule is that out-of-court statements made by persons who are not present to testify in court will be hearsay and inadmissible, where the evidence was adduced to establish the truth of those statements. In Ramli bin Daud v PP [1996] 3 SLR 225, a prosecution witness (‘PW4’) had claimed that the appellant, who was charged with employing and harbouring immigration offenders, had given him permission to sleep at certain premises. However, PW4 later explained: ‘the [appellant] gave us permission by telling the agent [ie Richard Yap]. The agent told me the boss said I can stay there’. The High Court noted that the district judge had made erroneous observations based on PW4’s hearsay evidence. However, there are exceptions. In Surender Singh s/o Jagdish Singh and another (administrators of the estate of Narindar Kaur d/o Sarwan Singh, deceased) v Li Man Kay and others [2010] 1 SLR 428, the court held that the, the nursing and medical records should not be rejected outright as inadmissible evidence even though Nurse Lourdes would not be called as a witness:

137 The parties' dispute on this issue essentially originated from the closing submissions of NUH, wherein it was contended that statements contained in the medical and nursing records compiled by Nurse Lourdes were admissible pursuant to s 32(b) of the Evidence Act (Cap 97, 1997 Rev Ed) ("Evidence Act") ….

138 I should add that the disputed documents included many referred to by Prof Nicholson himself in preparing his opinion.

139 NUH argued that the requirements of s 32 of the Evidence Act were "clearly satisfied" on the facts of the case. Counsel for NUH Ms Chew contended that Nurse Lourdes' attendance could not be procured without an amount of delay or expense because Nurse Lourdes could not be compelled to attend at the trial as she was in the Philippines and hence out of the Court's jurisdiction. Ms Chew had informed the court during the trial that numerous attempts had been made to contact Nurse Lourdes via telephone and e-mail but to no avail. Indeed, she took the unorthodox step of attaching an affidavit of her colleague ("the solicitor's affidavit"), in her client's closing submissions, as she put it "for good order", exhibiting the correspondence showing her firm's (unsuccessful) efforts to contact Nurse Lourdes.

140 However, no prior application was made by NUH before or during the course of the trial to file the solicitor's affidavit. The court was informed in the morning of 23 February 2009 that NUH would not be calling Nurse Lourdes. As trial only concluded on 25 February 2009, it was incumbent on NUH to apply to this court to file the solicitor's affidavit during those two days. The solicitor's affidavit exhibited correspondence from NUH to Nurse Lourdes dated 19 January 2009-22 January 2009, 29 January 2009, 3 February 2009 and 9 February 2009. These could and should have been made available to the court before trial concluded, particularly after Ms Chew confirmed that NUH would not be calling Nurse Lourdes on 23 February 2009. The solicitor's affidavit had exhibited an e-mail from Nurse Lourdes (which was her only response) dated 24 February 2009 which said:

Dear [Ms Chew],

I am very sorry for not replying and for the troubles that this caused you. Due to personal reasons and unfavourable circumstances cause me not to confirm in the soonest possible my absence on the ongoing case trial.

I really hope and pray that my sworn affidavit will be acknowledged in the court of Singapore ...

Copies of the correspondence between NUH and Nurse Lourdes should/could have been extended to Mr Palaniappan. As counsel for the plaintiffs did not have an opportunity to cross-examine the deponent of the solicitor's affidavit or Nurse Lourdes if her AEIC was admitted, I rejected the solicitor's affidavit.

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141 My decision to reject the solicitor's affidavit does not in itself rule out the applicability of s 32 of the Evidence Act. It bears noting that the burden of establishing the circumstances that would bring a statement within any of the exceptions in s 32 of the Evidence Act (which provides for the admissibility of hearsay evidence) lies on the party wishing to avail itself of the provision (see Sarkar's Law of Evidence vol 1 (Wadhwa & Company, 16th Ed, 2007) at p 713) and Sir John Woodroffe & Syed Amir Ali's Law of Evidence vol 2 (LexisNexis Butterworths, 17th Ed, 2002) at p 1733)).

142 In my view s 32 of the Evidence Act should be construed strictly. I needed to be convinced that Nurse Lourdes "could not be found" or "her attendance could not be procured without an amount of delay or expense which under the circumstances of the case appeared to the court unreasonable" (see also Mohamed Ghouse v The King [1909] SSLR 2). The court was told by Ms Chew that:

(a) as of 13 February 2009 she was still trying to locate Nurse Lourdes in the Philippines;

(b) as of 16 February 2009 attempts to contact Nurse Lourdes via calls and e-mails were unsuccessful; and

(c) finally on 23 February 2009 that NUH would not be calling Nurse Lourdes.

There was no evidence (apart from the solicitor's affidavit which I rejected) to satisfy the conditions in s 32 of the Evidence Act and to warrant the court's admission of Nurse Lourdes' AEIC (see Sim & Associates v Tan Alfred [1994] 1 SLR(R) 146 and Central Bank of India v Bansal Hemant Govindprasad [2002] 1 SLR(R) 22 ).

143 I should point out however that not all the documents the plaintiffs sought to impugn were prepared exclusively by Nurse Lourdes. For example, the treatment and progress notes were also prepared by a Nurse "Grace Kutty" and Nurse "Jennifer" both of whom NUH never intended to call as witnesses. Neither did the plaintiffs call for their attendance. Secondly, the plaintiffs' own expert Prof Nicholson had referred to and relied on the statements contained in the medical and nursing records in giving his opinion. Rejecting these documents would remove the facts underpinning Prof Nicholson's own expert opinion.

144 The plaintiffs' case before me focussed on the allegations of negligence propounded by Prof Nicholson. Excluding the documents would undermine the plaintiffs' case. Further, when cross-examining the defendants' witnesses, Mr Palaniappan consistently referred to the statements in those medical and nursing records. During Prof Nicholson's cross-examination on 24 February 2009, after Mr Palaniappan was made aware that Nurse Lourdes would not be called as a witness by NUH, he did not object when Mr Tong and Ms Chew both referred to Prof Nicholson's AEIC and to those documents. Neither did Mr Palaniappan object on 25 February 2009, during Dr Howard's re-examination by Mr Tong, when Mr Tong referred to some of those medical and nursing records.

145 It would appear therefore that Mr Palaniappan was accepting the truth of some of the statements contained in those records. Finally, Mr Palaniappan did not object or raise any issue when Ms Chew informed the court that Nurse Lourdes would not be called as a witness. For the above reasons, the nursing and medical records should not be rejected outright as inadmissible evidence.

15. In Tamilkodi s/o Pompayan v PP [1999] 1 SLR 702, the accused was charged with employing four Nepalese immigration offenders. At the material time, he was the sole proprietor of a company providing cleaning services. The company had contracted with Suzue-PSA Cold Storage Pte Ltd (‘Suzue’) to provide cleaning services at Suzue’s premises at Keppel Road. The accused denied that he knew or had employed the four Nepalese. During the trial, the general manager of Suzue testified that he had heard from his staff that some of the tenants at the premises at Keppel Road had employed their own cleaners. This raised the possibility that the four Nepalese were in fact employed

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by the tenants at the premises. On appeal, the High Court held that the evidence was hearsay and inadmissible.

16. Ang Jwee Herng v PP [2001] 2 SLR 474 (at ¶57 to 59, and ¶59 in particular) illustrates some of the practical difficulties in the classification of hearsay in terms of whether statements were adduced to prove the truth of what was said, adopting the Subramaniam definition. However, it was held in Tom-Reck Security Services Pte Ltd’s case that out-of-court statements made to the appellant company’s managing director by a key prosecution witness were admissible since they went directly to the question of the witness’ credibility. [Query: Is this under s 33 EA?]

Tom-Reck Security Services Pte Ltd v PP [2001] 2 SLR 70 – Facts: The appellant company (‘Tom-Reck’) was convicted in a magistrate’s court on a charge of employing an illegal immigrant. In a criminal motion filed prior to the hearing of the appeal, Tom-Reck sought to adduce evidence of an attempt by a key prosecution witness (‘Kennedy’) to solicit gratification from Tom-Reck’s managing director (‘Chua’). Kennedy had offered to ‘disappear’ from Singapore and thus not assist the prosecution in any further proceedings against Tom-Reck in exchange for $30,000. Kennedy was subsequently arrested and charged with an offence of corruption.

Yong Pung How CJ at para 26:Tom-Reck sought to adduce evidence of these events to undermine Kennedy’s credibility as the prosecution’s key witness. I allowed the criminal motion, applying the principles set out in the English Court of Appeal’s decision in Ladd v Marshall [1954] 3 All ER 745 and adopted by the Singapore High Court in Juma’at bin Samad v PP [1993] 3 SLR 338. See also Tan Sai Siang v PP [2000] 2 SLR 399. It was submitted on behalf of the prosecution that, even if the evidence satisfied these requirements, it was inadmissible hearsay. I did not agree with that contention: the statements made by Kennedy to Chua were not adduced to prove the truth of what Kennedy had said, but as statements of Kennedy’s intention, and went directly to the question of his credibility as a witness.

(ii) Statements by a witness made in the course of investigations

17. The general rule is that statements made by a witness in the course of investigations are hearsay and inadmissible for the truth of the facts stated.

PP v Tan Kim Seng Construction Pte Ltd & Anor [1997] 3 SLR 158 – Facts: The first respondents were charged with employing foreign workers without a valid permit. The second respondent was the managing director of the first respondents. He was charged with neglect in permitting the employment of those workers by the first respondents. The prosecution’s case was that the second respondent had, through one Ang Lye Thiam (‘Ang’), employed two foreign workers without having obtained a valid work permit. The prosecution sought to rely on the evidence of Jason Ang, the employment inspector, to show that the two foreign workers were employed by Ang on behalf of the second respondent. Jason Ang testified during cross-examination that Ang told him that he had recruited the foreign workers on behalf of the second respondent.

Yong Pung How CJ at para 39 onwards:

“The prosecution relied on the evidence of Jason Ang … That witness had testified in cross-examination as follows:

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‘Q: How did you find out who’s the employer?

A: In the statement of the two workers, they claimed to be recruited by Ang Lye Thiam. Ang claimed that he had done so on behalf of the defendant [the second respondent]. He said that whenever he recruit Malaysian worker he needs to consult his boss Mr Tan Kim Seng and he said that he told Tan Kim Seng about the recruitment of the two workers. Mr Tan admits employing the two workers in his statement.

…’ Anything said by Ang to Jason Ang was hearsay, and inadmissible for the truth of the facts stated.

18. The decision above appears to be a straightforward application of s 268 of the CPC 2010, which provides for hearsay evidence in criminal proceedings to be admissible only ‘by virtue of any provision of this Code or any other written law, but not otherwise’. A similar approach was adopted by the court in Tang Kin Seng v PP [1997] 1 SLR 46, in dealing with the evidence of an arresting officer (‘PW1’). The complainant (‘PW5’) had alleged that the appellant had molested her. PW1 gave evidence that upon arriving at the scene, a prosecution witness (‘PW4’) had told him about what she (ie PW4) had been told by PW5. The court held that what PW4 told PW1 about what she had been told by PW5 was ‘strictly speaking, hearsay and was not useful’.

(iii) Evidence of informers not called to give evidence in court

19. Out-of-court evidence of informers was inadmissible as res gestae:

PP v Wong Wai Hung & Anor [1993] 1 SLR 927 – Facts: The accused were charged with having a common intention to attempt to export from Singapore a block of drugs containing not less than 4,594.65g of diamorphine without authorisation under the Misuse of Drugs Act (Cap 185, 1985 Ed). The prosecution contended that the first and second accused persons were involved in a joint operation to attempt to export drugs from Singapore to Zurich. The prosecution sought to rely on the evidence of a senior CNB officer (Lee Tai Huat) who said that he received intelligence that the two accused were suspected of carrying drugs.

Rubin JC: The prosecution submitted that Lee Tai Huat received information that Wong and Ho would be attempting to export drugs from Singapore. Such evidence is strictly not admissible except to show that the whole operation by the law enforcement agency commenced as a result of the information received. To give it more weight than that would offend the basic rule of evidence that hearsay evidence is not acceptable as proof of a fact which has been seen by a third person: see Subramaniam v PP. No doubt s 32 of the Evidence Act provides certain exceptions to hearsay evidence but those exceptions were not relied on by the prosecution. As Lee Tai Huat’s intelligence was hearsay this evidence could not be acted upon and if the court were to act on such evidence, it would have in my view resulted in a mistrial: see Leong Hong Khie v PP and Tan Gong Wai v PP, where it was held that evidence of informers not called to give evidence in court is not admissible as res gestae evidence.

(iv) Computer output

20. Computer printout (Instant Information Service) from Registry of Companies and Businesses inadmissible as evidence to prove identities of business partners.

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Aw Kew Lim & Ors v PP [1987] SLR 410 – Facts: The six accused were jointly charged for 19 offences under s 3(1) of the Copyright (Gramophone Records and Government Broadcasting) Act (repealed) for having in their possession for sale a number of pirated cassette tapes which were seized from the shop premises of a firm known as Supreme Record Centre. The prosecution adduced in evidence a computer printout from the Registry of Companies and Businesses with the title ‘INSTANT INFORMATION SERVICE’ to prove the identities of the partners of Supreme Record Centre. Defence counsel did not object to the admission of the document. After the defence was called, the accused elected not to give evidence and were accordingly convicted. On appeal, the High Court held that the computer printout was hearsay and inadmissible. As there was no admissible evidence which proved that the accused were the partners of the firm, the conviction was quashed.

Chan Sek Keong J:

On appeal, counsel for the appellants submitted that the conviction was wrong as there was insufficient evidence to support an essential ingredient of the offence, namely ‘possession’ by the appellants … counsel submitted that the computer printout from the Registry of Companies & Businesses was hearsay evidence and that evidence from such Registry, to be admissible, must comply with s 16 of the Business Registration Act (Cap 32) which reads as follows:

‘(1) Any person may, upon payment of such fees as may be prescribed, require a copy of the a certificate of registration issued to any person, or a copy of an extract from any document filed with the Registrar, to be certified by the Registrar.

(2) Any copy or extract given under sub-s (1), if duly certified to be a true copy or extract under the hand of the Registrar, shall be received as prima facie evidence in any proceedings without proof being given that the certificate was signed by the Registrar.’

It was submitted that the computer printout did not satisfy the requirement of s 16 of Cap 32 on three grounds (a) it was not duly certified to be a true copy; (b) although initiated by someone for the Registrar, it was not [certified] under the hand of the Registrar: see Waterson’s Trustees v St Giles Boys Club [1943] SC 369; (c) the computer printout was not a document contemplated by s 16 of Cap 32. I agreed with this submission on the said grounds. What s 16 contemplates is a ‘copy or an extract from any document filed with the Registrar’. The Instant Information Sheet contained information retrieved from a data base. The data base itself holds and is a record of all the relevant information abstracted from documents filed with the Registry. The computer printout was not a copy of an extract from any document filed in the Registry. It was, as conceded by the deputy public prosecutor, an original document. It contained information retrieved from some kind of data base or a memory bank of a computer. But it was an original document containing evidence which was hearsay. Therefore, even if the Registrar had, in this case, purported to certify under his hand the Instant Information Sheet as a true copy of the documents filed in the Registry, it would not have complied with s 16. Had he purported to certify the Instant Information Sheet to have been an extract, it would have been arguable whether the certification would be correct in point of fact as a document containing abstracted information might not be an extract for the purpose of the Act.

The deputy public prosecutor, in reply, submitted that exh P20 was tendered under s 35 of the Evidence Act (Cap 97). This section provides for the admissibility in any

20

proceedings of computer printouts as evidence of the facts stated therein of which direct oral evidence would be admissible if four conditions relating to the statement and the computer in question are satisfied. This submission had no merit as the prosecution had not adduced any evidence to satisfy any of the four conditions …

21. Chan Sek Keong J’s decision in Aw Kew Lim and in the subsequent case of Ang Soon Huat both dealt with the pre-existing s 35 of the Evidence Act, which permitted a statement contained in a document produced by a computer to be admitted as evidence of any fact stated therein. The former provisions met with the potential objection that such statements may have been nothing more than the hearsay of the person responsible for entering the data presented in the statement, or even the hearsay of a software designer where the relevant software contains features which process or interpret data entered.

22. ‘Computer output’ is now defined in s 2 of the Evidence Act to mean ‘a statement or representation produced by a computer or accurately translated from a statement or representation so produced’. In its present form, s 35 admits ‘computer output’ where it is ‘tendered in evidence for any purpose whatsoever’, subject to the basic requirement that it is ‘relevant or otherwise admissible according to the other provisions of this Act or any other written law’. Thus, for example, if computer output containing a hearsay statement is made relevant by s 32(b) of the Evidence Act, being a statement made in the ordinary course of business, it will also have to satisfy s 35 before it is admissible.

Evidence of computer output

35. —(1) Unless otherwise provided in any other written law, where computer output is tendered in evidence for any purpose whatsoever, such output shall be admissible if it is relevant or otherwise admissible according to the other provisions of this Act or any other written law, and it is —

(a) expressly agreed between the parties to the proceedings at any time that neither its authenticity nor the accuracy of its contents are disputed;

(b) produced in an approved process; or

(c) shown by the party tendering such output that —

(i) there is no reasonable ground for believing that the output is inaccurate because of improper use of the computer and that no reason exists to doubt or suspect the truth or reliability of the output; and

(ii) there is reasonable ground to believe that at all material times the computer was operating properly, or if not, that in any respect in which it was not operating properly or out of operation, the accuracy of the output was not affected by such circumstances. [8/96]

(2) Notwithstanding subsection (1) (a), an agreement expressly made between the parties referred to in that subsection shall not render the computer output admissible in evidence —

(a) in criminal proceedings on behalf of the prosecution if at the time the agreement was made, the accused person or any of the accused persons was not represented by an advocate and solicitor; or

(b) in any proceedings, if the agreement was obtained by means of fraud, duress, mistake or misrepresentation. [8/96]

(3) A certificate signed by a person holding a responsible position in relation to the operation or management of a certifying authority appointed under subsection (5) and purporting to identify the approved process, including that part of the process that is relevant to the proceedings, shall be sufficient evidence that the process is an approved process for the purposes of this section.

21

[8/96]

(4) Where the computer output is obtained from an approved process and duly certified as such by a person holding a responsible position in relation to the operation or management of the approved process, it shall be presumed that it accurately reproduces the contents of the original document unless the contrary is proved.

[8/96]

(5) In this section, “approved process” means a process that has been approved in accordance with the provisions of any regulations made by the Minister, by a person or an organisation appointed by the Minister to be a certifying authority under such regulations. [8/96]

(6) With respect to subsection (1) (c), a certificate signed by a person holding a responsible position in relation to the operation or management of the relevant computer system and —

(a) purporting to identify such output and describing the manner in which it was produced;

(b) giving particulars of any device involved in the processing and storage of such output;

(c) dealing with the matters mentioned in subsection (1) (c),

shall be sufficient evidence of the matters stated in the certificate. [8/96]

(7) If the person referred to in subsection (6) who occupies a responsible position in relation to the operation or management of the computer did not have control or access over any relevant records and facts in relation to the production by the computer of the computer output, a supplementary certificate signed by another person who had such control or access and made in accordance with subsection (6) (a), (b) and (c) shall be sufficient evidence of the matters stated in the certificate.

[8/96]

(8) If any person referred to in subsection (6) or (7) refuses or is unable for any reason to certify any of the matters referred to in subsection (6) or (7), a certificate signed by another person who had obtained or been given control or access to the relevant records and facts in relation to the production by the computer of the computer output and made in accordance with subsection (6) (a), (b) and (c) shall be sufficient evidence of the matters stated in the certificate.

[8/96]

(9) For the purposes of subsections (3), (4), (6), (7) and (8), it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

[8/96]

(10) Any computer output tendered in evidence under this section and duly authenticated shall not be inadmissible as evidence of proof of the contents of the original document merely on the ground that —

(a) certain parts or features of the original document, such as boxes, lines, shades, colours, patterns or graphics, do not appear in the output if such parts or features do not affect the accuracy of the relevant contents; or

(b) it is secondary evidence. [8/96]

(11) Any person who in a certificate tendered under subsection (3), (4), (6), (7) or (8) in a court makes a statement which he knows to be false or does not reasonably believe to be true shall be guilty of an offence and shall be liable on conviction to a fine or to imprisonment for a term not exceeding 2 years or to both.

Supplementary provisions to section 35

36. —(1) Where a court is not satisfied that the computer output sought to be admitted in evidence under section 35 accurately reproduces the relevant contents of the original document, the court may, in its discretion, call for further evidence.

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[8/96]

(2) Where further evidence is called for under subsection (1), such evidence may be produced by an affidavit made —

(a) by a person occupying a responsible position in relation to the operation or management of the certifying authority appointed under section 35 (5);

(b) by any other person occupying a responsible position in relation to the operation of the computer at the relevant time;

(c) by the person who had control or access over any relevant records and facts in relation to the production of the computer output;

(d) by the person who had obtained or been given control or access over any relevant records and facts in relation to the production of the computer output; or

(e) by an expert appointed or accepted by the court. [8/96]

(3) Notwithstanding subsections (1) and (2), the court may, if it thinks fit, require that oral evidence be given of any matters concerning the accuracy of the computer output, and may call a deponent of an affidavit under subsection (2) or any person responsible for a certificate issued under section 35 (3), (4), (6), (7) or (8) for this purpose.

[8/96]

(4) In estimating the weight of any computer output admitted under section 35, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the output and, in particular —

(a) whether or not the information which the output reproduces or is derived from was supplied to the relevant computer, or recorded for the purpose of being supplied to it, contemporaneously with the occurrence or existence of the facts dealt with in that information, if such contemporaneity is relevant;

(b) whether the supplier of the information or any person involved in the processing of such information had any incentive or motive to conceal or misrepresent the information so supplied.

[8/96]

(5) Without prejudice to subsections (1) to (4), whenever any computer output is proved under section 35, all matters may be proved in order —

(a) to contradict or to corroborate it; or

(b) to impeach or support the credibility of the person by whom it was made, or by whom the information was processed.

(6) Evidence may not be given under subsection (5) of any matter of which, if the person had been called as a witness and had denied that matter upon cross-examination, evidence could not have been adduced by the cross-examining party.

23. Section 35 further lays down three modes of admission for computer output. These are by way of (a) express agreement between the parties; (b) production of the computer output by an approved process; and (c) proof that there is no reasonable ground for believing that the computer output is inaccurate, and proof that there is reasonable ground for believing that the computer was operating properly at all material times. Sections 35 and 36 contain supplementary rules of evidence governing proof, weight and effect of other evidence on computer output. See Seng D ‘Computer Output as Evidence’ [1997] SJLS 130.

24. Computer printouts of the results of chromatograms and spectograms which were confirmed by oral evidence of witnesses were admissible as real evidence.

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PP v Ang Soon Huat [1990] SLR 915 – Facts: The accused was charged with trafficking in a controlled drug. Defence counsel objected to the admission of the computer printouts of the results of the chromatograms and spectograms in exhibits P14 to 22, on the basis that s 35 of the Evidence Act had not been complied with.

Chan Sek Keong J:

Section 35(2) stipulates four conditions. Counsel contended that the four conditions had not been complied with. He referred to the decision of Aw Kew Lim v PP [1987] 2 MLJ 601. The DPP did not contend that s 35 had been complied with but contended that it had no application as it was intended to apply to evidence which was hearsay and not real evidence. His contention was that the computer evidence as recorded in P14 to P22 was real evidence and not hearsay evidence. We accepted this submission as the computers in the HPLC and the GCMS instruments not only recorded but also processed and calculated the information fed into them and Loh, Tan and Dr Chow had given oral evidence in regard to these matters and also on the data that was thereby processed. The evidence contained in P14 to P22 was confirmed by the oral evidence of these witnesses, unlike in the case of Aw Kew Lim where only the computer printout was tendered in evidence and the printout was nothing more than a regurgitation of the information fed in by the Companies’ Registry officers. It was truly hearsay evidence in that case. Section 35 applies only if the computer printouts are put in as evidence of the facts stated therein without more. In R v Wood (1972) 76 Cr App R 23, a question arose as to the admissibility of computer printouts in s 1(1) of the Criminal Evidence Act 1965 which provided:

‘In any criminal proceedings where oral evidence of a fact would be admissible, any statement contained in a document and tending to establish that fact shall, on the production of the document, be admissible in evidence of that fact if (a) the document is … a record relating to any trade or business and compiled … from information …’

The computer printouts contained the results of the chemical composition of various metals which had been subject to laboratory tests and the figures produced were then fed into a computer which did all the requisite calculations. At the trial the printouts were admitted in evidence to prove that certain metals stolen by the accused came from the said metals as their chemical composition was the same. On appeal, the Court of Appeal held the printouts were inadmissible under s 1(1) of the said Act because they were prepared for the purpose of the prosecution of the appellant and not in the course of trade or business, but that nevertheless being the product of the computer which had been used as a calculator, the programming and use of which was covered by oral evidence, the printout was real evidence under the common law.

R v Wood was followed in Castle v Cross [1985] 1 All ER 87 (in relation to the admissibility of the test record printout of an automatic breath-testing device) which latter decision was again applied in Garner v DPP (1990) 90 Cr App R 178. In our view, the principle established in these decisions that the product of mechanical devices, such as computers and calculators, is real evidence applies to the data contained in P14 to P22. Such evidence is not subject to s 35 of the Evidence Act.

25. The court’s holding in Ang Soon Huat was based on the pre-existing s 35. Computer output tendered as real evidence did not fall within the scope of s 35 as it then stood. With the present s 35, all forms of computer output will have to satisfy s 35 in order to be admissible. For instance, oral evidence of computer records of Immigration Department were admissible where the evidence was tendered to

24

show the occurrence of such records and the records themselves were admissible by virtue of s 272 of the CPC 2010 (formerly s 380 of the CPC).

Roy S Selvarajah v PP [1998] 3 SLR 517 – Facts: The accused was charged with abetting by intentionally aiding one Meyyanathan Nagammal (‘Meyya’) in the commission of an offence of remaining in Singapore unlawfully after the expiry of her visit pass. The investigating officer testified that she had checked the computer records with the Data Processing Centre in the Immigration Department which showed that Meyya entered Singapore on a social visit pass which had expired on 7 January 1995 and was not extended. The investigating officer was also informed by the Work Permit Department that no work permit was ever issued to Meyya. The defence contended that the investigating officer’s evidence was hearsay. Held: On appeal, the High Court held that the computer records of the Immigration Department came within the statutory exception to the hearsay rule and were admissible under s 380 of the CPC. The investigating officer could give oral evidence of what she noted from perusing the records, since this evidence was intended to show the occurrence of the facts on the record and not to establish the truth of the contents of the record. As regards her evidence that she was informed by the Work Permit Department that no work permit was ever issued to Meyya, it was held that this was hearsay and inadmissible.

Yong Pung How CJ: …

[42] I think it is of fundamental importance to distinguish between the admissibility of the computer records and the oral evidence of the investigating officer of what the records contain. Only the latter was adduced in this case. In this context, R v Patel [1981] 3 All ER 94 is instructive. In R v Patel, an immigration officer testified that he examined the Home Office records which showed that the accused’s name was not in the records as being entitled to a certificate of registration in UK and that therefore he was an illegal entrant. It was held that the immigration officer’s testimony was hearsay. It would have made no difference if the records themselves had been produced. The Home Office records were hearsay evidence as they were adduced to prove the truth of the statements in the records made by the compiler. An officer responsible for their compilation and custody should have been called by the prosecution to give evidence that the method of compilation was such that, if the accused’s name was not in the records, he must be an illegal entrant. Applying the reasoning in Patel, the computer records in the Data Processing Centre were hearsay and inadmissible unless it fell within one of the exceptions.

[43] The position in Singapore differs from the common law in Patel in that we have statutory exceptions to the hearsay rule for criminal proceedings in ss 378 to 383 CPC. These provisions were modelled after the UK Civil Evidence Act 1968, which ironically only applied to civil proceedings. Section 380 provides for the admissibility of certain records as evidence of facts stated where the conditions are satisfied.

[44] There is no doubt that the records are admissible as evidence of the facts stated in them by virtue of s 380 …

[45] However, in this case, the information from the database records is not actually abstracted in, say, the form of a computer print-out and tendered in court. For some reason, the prosecution only led evidence of the investigation officer’s account of what she saw when she inspected the database. Defence counsel objected to the admissibility of her evidence as to what she saw in the records as hearsay. This requires very careful consideration. Again referring to the definition of hearsay, the evidence of a statement to a witness by a person who is not called as a witness is not

25

hearsay and is admissible when it is proposed to establish by evidence not the truth of the statement, but the fact that it was made: Subramaniam v PP. Whilst it is desirable to prove the statement in the document by the production of the document or a copy of the document within s 380 CPC, there is no reason why the document could not be proved by direct oral evidence of what the document contains. Section 381 says that the document may be proved by the production of the original or a copy that is duly authenticated, and does not go as far as saying that these are the only two modes of proof. In such a situation, the investigating officer is stating facts concerning the occurrence of the record itself, not about the truth of anything contained in the record. This principle applies because the record is directly relevant and can be introduced under s 380 CPC. Section 380 makes the record relevant and admissible as an exception to the hearsay rule.

[46] Hence the evidence of PW1 that she checked the records at the Immigration Department which showed that PW10 entered Singapore on a 14-day social visit pass which expired on 7 January 1995 and was not granted an extension was relevant and admissible to show that PW10 was an overstayer.

[47] In respect of PW1’s evidence that she was informed by the Work Permit Department that no work permit was ever issued to PW10, this was clearly hearsay and inadmissible. PW1’s evidence in this regard had relied entirely on exh P4, a document issued by the Comptroller of Work Permits, stating that no work permit was ever issued. The DPP rightly conceded that P4 was hearsay since it was made out of court and was relied on to prove the truth of the contents of the document. P4 could not be admitted under s 380 CPC since it was prepared in contemplation of criminal proceedings and could not be admitted except with the leave of the court. Of course leave was never granted since the point was not even raised until the submissions stage. For some unknown reason, the prosecution did not call upon the maker of P4 to testify and adopt the contents of P4. PW1’s evidence adopting P4 was clearly hearsay as she was giving evidence as to what another person had said were her findings on her inspection of the records at the Immigration Department.

26. See also ss 63, 65 and 67 of the Evidence Act for the circumstances in which secondary evidence relating to documents may be given. It should be noted that s 272 of the CPC 2010 (formerly s 380 of the CPC) operates without prejudice to s 35 of the Evidence Act. If the database records had been extracted, they would presumably have taken the form of a computer printout, and the conditions in s 35 would still have to be satisfed before such computer output is admissible.

Proof of contents of documents63. The contents of documents may be proved by primary or by secondary evidence.

Primary evidence64. Primary evidence means the document itself produced for the inspection of the court.

Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original.

Illustration

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A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

Secondary evidence65. Secondary evidence means and includes —

(a) certified copies given under the provisions hereinafter contained;

(b) copies made from the original by electronic, electrochemical, chemical, magnetic, mechanical, optical, telematic or other technical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies;

(c) copies made from or compared with the original;

(d) counterparts of documents as against the parties who did not execute them;

(e) oral accounts of the contents of a document given by some person who has himself seen it. [8/96]

Illustrations(a) A photograph of an original is secondary evidence of its contents, though the 2 have not been compared, if it is proved that the thing photographed was the original.

(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter if it is shown that the copy made by the copying machine was made from the original.

(c) A copy of a document in the form of a print-out, or image on a monitor screen, retrieved from a magnetic or optical storage device, such as a tape, hard disk, laser disc or CD-ROM, is secondary evidence of the contents of the document if it is shown that the copy retrieved from the storage device satisfies the conditions providing for the admissibility of such output.

(d) A copy transcribed from a copy but afterwards compared with the original is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.

(e) Neither an oral account of a copy compared with the original nor an oral account of a photograph or machine-copy of the original is secondary evidence of the original. [8/96]

Proof of documents by primary evidence66. Documents must be proved by primary evidence except in the cases mentioned in section 67.

Cases in which secondary evidence relating to documents may be given67. —(1) Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

(a) when the original is shown or appears to be in the possession or power of —

(i) the person against whom the document is sought to be proved;

(ii) any person out of reach of or not subject to the process of the court; or

(iii) any person legally bound to produce it,

and when, after the notice mentioned in section 68, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

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(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 76;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Singapore to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

(2) In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.

(3) In case (b), the written admission is admissible.

(4) In case (e) or (f), a certified copy of the document but no other kind of secondary evidence is admissible.

(5) In case (g), evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.

(v) Purchase Orders

27. Sections 63 and 65 of the Evidence Act, which provide for the adduction of secondary evidence for e.g. purchase orders, do not render such hearsay evidence admissible.

PP v IC Automation (S) Pte Ltd [1996] 3 SLR 249 – Facts: The complainant (PW2) commenced private summonses for a total of 12 charges against the respondent for various offences under the Copyright Act. The respondent was a company in Singapore that built mechanical handlers. Its managing director was one Kerwin Ang. The complainant alleged that the respondent had sold copyrighted software without authority to Haltech (a Malaysian company) which in turn sold it to Harris (another Malaysian company). The complainant testified that when he and his counsel were at Harris’ premises, they had seen purchase orders between Harris and Haltech. He also found software they were using suspiciously similar to his copyrighted software. Further, he was told by one Mr KH Tan of Harris that the software was purchased from Haltech. PW5, an ex-employee of the respondent, also testified that Kerwin Ang had informed him that Haltech was dealing with the respondent’s products in Malaysia.

Yong Pung How CJ: …

PW2 and his counsel, Gilbert Leong (PW1), both claimed that when they were at Harris’ premises, they had seen purchase orders between Harris and Haltech; the trial judge found that the contents of these documents were hearsay and inadmissible. Further, PW2 said that one Mr KH Tan of Harris had informed him that Haltech was dealing with the respondent’s products in Malaysia.

Both these alleged statements of KH Tan and Kerwin Ang were also held by the trial judge to be hearsay …

Touching on the oral statements allegedly made by KH Tan and Kerwin Ang, both of whom were not called upon to testify, I agreed with the trial judge that they were

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tendered for the truth of its content. Consequently, they were clearly inadmissible hearsay statements.

As regards the alleged purchase orders that were seen at Harris’ premises, it was not open to the appellant to rely on s 63 read together with s 65(e) of the Evidence Act (Cap 97) so as to render admissible the truth of the contents of such orders. The operation of ss 63 and 65, which provide for the adduction of secondary evidence, allows evidence to be tendered as to the content of a document that was seen, but not for the purpose of showing the content contained therein was true.

However, even if the contents of the purchase orders were tendered merely to show that Haltech had dealings with Harris, which would have been admissible, I did not see how this had any probative value to the charges at hand. There was still no evidence to link the respondent to the sale of such infringing works to Haltech.

(vi) Minutes of meeting

28. Minutes of meeting are hearsay and inadmissible.

Taw Cheng Kong v PP [1998] 1 SLR 943 – Facts: The accused was charged with eight counts under section 6 read with section 37 of the Prevention of Corruption Act (Cap 241, 1993 Ed). The accused was then employed by the Government of Singapore Investment Corp (‘GIC’) as its Regional Manager (Asia Pacific) based in Hong Kong. The prosecution’s case was that the accused had, at the instigation of one Kevin Lee, orchestrated the purchase of GIC of certain counters in Hong Kong and Australia. Kevin Lee was the managing director of Rockefeller’s Far East branch based in Hong Kong. The accused was alleged to have received a large sum of money from Kevin Lee for each transaction. The main evidence against the accused comprised of statements he had made to the CPIB and typewritten transcripts of two interviews held between him and officers of the GIC. The prosecution also tendered the minutes of a meeting held between GIC officers and representatives from Rockefeller New York at which it was first suggested to the GIC that the accused had collaborated with Kevin Lee in corrupt practices. On appeal, the High Court held that the minutes were documentary hearsay and inadmissible.

Karthigesu JA: Firstly, as I have said, the minutes of the meeting with the Rockefeller New York officers are hearsay, being a mere report by the GIC of information provided by those officers. Secondly, that information is in itself hearsay information derived from interviews of Kevin Lee conducted by unknown persons, and premised on documents allegedly belonging to Kevin Lee which were neither shown to the court or proved in court to have existed. Thirdly, Kevin Lee was not called as a witness to prove the documents allegedly belonging to him. Nor was he available for cross-examination on the allegations purportedly made by him and repeated by the Rockefeller officers to the GIC officers and repeated again by the GIC officers to the CPIB officers and then repeated by the CPIB officer to the appellant and finally accepted by him in his ‘confessions’.

(vii) Tape recordings

29. A tape recorded conversation is prima facie hearsay where it is used to prove the truth of the contents in the conversation.

Teo Keng Pong v PP [1996] 3 SLR 329 – Facts: The accused was charged with seven counts of using criminal force with intent to outrage PW1’s modesty. At the

29

material time in question, the accused was PW1’s tuition teacher. With the consent of the defence, the prosecution admitted a tape recording of a telephone conversation between PW1’s father and the accused’s sister (Madam Teo) in which the latter said that the accused had sometimes admitted and sometimes denied that he touched PW1’s breasts.

Yong Pung How CJ: As for the taped teleconversation between PW3 and Madam Teo, the magistrate held that it was unsafe to convict solely on the basis on this evidence. It would have been more accurate to say that this evidence cannot be relied on at all. It was an out of court statement by Madam Teo in which she said that the appellant ‘sometimes’ admitted to her that he did the alleged acts and sometimes did not. It is hearsay.

30. The parties may in any event agree to admit hearsay evidence, which could encompass such evidence contained in tape recordings: see s 60 of the Evidence Act. As the defence had consented to the admission of the evidence of the tape recording. By way of contrast with the approach adopted in Teo Keng Pong, see Siew Yit Beng v PP [2000] 3 SLR 773 where a tape-recorded telephone conversation and the corresponding transcripts were admitted in evidence.

31. Modern English authorities regard documents such as contemporaneous tape or video recordings as real evidence of the events they capture, provided there is no reason to doubt the accuracy and fidelity of the recording, and the intention in making the recording was not to use it as a document in place of writing: see also Tan YL ‘Making Sense of Documentary Evidence (II)’ [1994] SJLS 111.

(viii) Medical report

32. Hearsay assertions contained in a medical report must be excluded

Juma’at bin Samad v PP [1993] 3 SLR 338 – Facts: The accused pleaded guilty to a charge of housebreaking in order to commit theft and was sentenced to 18 months’ imprisonment. He subsequently filed a criminal motion asking the High Court to exercise its revisionary powers to inquire into the conviction and also applied for leave to introduce additional evidence to show that he was in fact entitled to the defence of intoxication. In support of his application, he filed four affidavits to show that he was addicted to alcohol and that he was heavily intoxicated at the time he committed the offence. In the third affidavit, the accused adduced a medical report which stated that he was receiving treatment for his addiction to alcohol. The medical report, however, contained a host of hearsay assertions.

Yong Pung How CJ: The medical report contains a host of hearsay assertions which must be excluded, for example, the statements that the appellant had been drinking since he was 13 years old, that he had got into fights without reason and that he could not give any reasons for breaking into the school except that he was under the influence of alcohol. The only significant evidence contained in the report is that the appellant was admitted to Tan Tock Seng Hospital for treatment for his addiction to alcohol … Taking all the above considerations into account, I have come to the conclusion that the additional evidence is not apparently credible and does not establish on a balance of probabilities that the appellant was entitled to the defence of intoxication.

33. Compare Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234 at ¶36 where the Court of Appeal held that hearsay evidence contained in a social welfare report in child custody proceedings was admissible.

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(ix) Spontaenous Statements of Accused

34. Spontaneous statements made by the accused which demonstrate knowledge are relevant and admissible.

Chi Tin Hui v PP [1994] 1 SLR 778 – Facts: The accused was tried for drug trafficking by transporting a parcel of 59 plastic packets, containing not less than 60.13g of diamorphine. The accused was observed by CNB officers to be carrying a plastic bag. Immediately after his arrest, he was asked by a CNB officer as to what was contained in the bag he was carrying. The accused replied at first that it was a ‘gift’. When pressed, the accused said that it was ‘heroin’ and that it was ‘59 sachets’. Defence counsel objected to the admission of the oral statements of the accused on the ground of hearsay. The trial judge admitted the oral statements in evidence as being part of res gestae. His decision to admit the oral statements was affirmed by the Court of Criminal Appeal.

Karthigesu JA: In our judgment, the learned judicial commissioner rightly admitted the oral statements made by the accused immediately following his arrest … We agree with the learned judicial commissioner, from a review of the whole of the evidence, that these oral statements were clearly made by the appellant in circumstances of spontaneity … Further, these oral statements went to the appellant’s knowledge of what he was carrying when he was arrested and formed part of the transaction of ‘transporting’ the drugs and, in our judgment, were relevant under s 6 of the Evidence Act (Cap 97, 1990 Ed), and, being relevant, were admissible under s 5 of the Evidence Act.

PP v Neoh Bean Chye & Anor [1972-1974] SLR 213 – Facts: The first accused (Neoh) and second accused (Lim) were charged with murder in furtherance of their common intention. The accused had entered a wine shop to rob the victim. When the victim resisted, Lim, who was carrying a loaded revolver, shot him. At the trial, a prosecution witness, one Lee Mong Qoi testified that he had gone to a coffee stall with the accused where he heard Neoh say to Lim: ‘You spoke to the proprietor in Penang Hokkien which the proprietor did not quite understand. You said to him, Don’t come near me or I will splash you!’ After this conversation, Neoh warned him not to let anybody know about the conversation and they dispersed. The defence contended that the shooting was accidental.

Choor Singh J: We rejected the submission that the deceased was shot accidentally … Lee Mong Qoi overheard the first accused scolding the second accused on the very day of the incident for having said to the deceased in Penang Hokkien, ‘Don’t come near me or I will splash you’. This was not hearsay evidence. The second accused was present and the words were directed to him and he made no reply. If Lee Mong Qoi was speaking the truth, the second accused’s silence meant that he admitted that he had in fact told the deceased in Penang Hokkien what amounted to ‘Don’t come near me or I will shoot you’. It follows that if the accused had in fact uttered words to this effect to the deceased when he was approaching him, the gun was discharged deliberately and not accidentally. The court did not explain why Lee Mong Qoi’s evidence of what he had heard Neoh say to Lim was not hearsay evidence. Conceivably, the evidence could have been admissible under s 6 illustration (a), s 8(1) or s 14 of the Evidence Act as being relevant to show the state of mind of the second accused.

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35. In Chi Tin Hui’s case, the statements themselves were relevant and admissible, but it may have been more accurate to admit them under s 14 of the Evidence Act as evidence of the appellant’s knowledge of the contents of the bag or even under s 17 as an admission. In so far as the court relied on s 6 of the Evidence Act, the section provides:

s 6 of the Evidence Act

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.

36. Section 6 is commonly associated with the common law doctrine of res gestae. Res gestae literally means “things done”. For example, in Kok Ho Leng v PP [1941] MLJ 143, Murray- Aynsley J referred to s 6 as the provision dealing with ‘what are known as “res gestae” in England’. In another Malaysian case of Leong Hong Khie & Tan Gong Wai v PP [1986] 2 MLJ 206, the trial judge was prepared to admit hearsay statements by two informers who were not called as witnesses under s 6 as part of res gestae.

37. The common law doctrine of res gestae is relied upon, among other things, as an exception to the hearsay rule. The doctrine allows hearsay statements to be admitted if they are made in circumstances which are so closely connected to the facts in issue as to form a transaction. The rationale for allowing the exception is that the circumstances of spontaneity under which the statements are made would effectively rule out the possibility of concoction or fabrication: see Ratten v R [1972] AC 378.

38. By the operation of s 268 of the CPC 2010, hearsay evidence is admissible only by virtue of the CPC 2010 and other written law. Section 6 of the Evidence Act is probably not the equivalent of the doctrine of res gestae for the purpose of admitting hearsay evidence. As Stephen has indicated in An Introduction to the Evidence Act at pp 122 to 123, since the common law hearsay rule is an exclusionary rule, hearsay would not be relevant within the definitions of relevancy given in ss 6 to 11 of the Evidence Act.

39. The common law doctrine of res gestae was applied locally in Mohamed bin Allapitchay & Ors v R [1958] 1 MLJ 197 and was implicitly recognised by Rubin JC (as he then was) in PP v Wong Wai Hung & Anor [1993] 1 SLR 927. A better rationalisation is perhaps to regard res gestae as a common law exception as such, rather than to attempt to rationalise it under s 6 of the Evidence Act. As noted earlier, by virtue of s 2(2) of the Evidence Act, common law exceptions to hearsay which are not inconsistent with the Act are part of the law of evidence: see Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234.

40. A confession should be admitted in the normal way and evidence of such a confession would otherwise be inadmissible

PP v Tan Kim Seng Construction Pte Ltd & Anor [1997] 3 SLR 158 – Facts: The second respondent was the managing director of the first respondent. He was charged with neglect in permitting the first respondent to employ foreign workers without valid permits. The prosecution sought to rely on the evidence of Jason Ang, the employment inspector, to show that the two foreign workers were employed by one Ang on behalf of the second respondent. Jason Ang testified that Ang had told him so. In cross-examination, Jason Ang testified that the second respondent admitted to employing the two workers in his statement. The statement itself was not tendered and did not form part of the prosecution’s case.

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Yong Pung How CJ: Anything said by Ang to Jason Ang was hearsay, and inadmissible for the truth of the facts stated. Similarly as regards anything said by the second respondent to Jason Ang. If there was a confession by the second respondent, that should have been sought to be admitted in the normal way. As noted by the magistrate, there was no attempt to admit it and the prosecution could not rely on Jason Ang’s testimony in order to do so by the back door.

(x) Statements of accused made through an interpreter

41. When an accused’s statement is recorded through interpretation, there is no hearsay objection when the interpreter who assisted in the recording of the statement is present in court to testify as to what he had interpreted.

Kong Weng Chong & Ors v PP [1994] 1 SLR 34 – Facts: The first accused (‘Kong’) was charged with abetting two other accused persons in the commission of an offence of drug trafficking. Kong sought to challenge the admissibility of his first oral statement to SNO Peter Lim (‘SNO Lim’) on the ground of hearsay. SNO Lim had questioned Kong in English with NO Ng Beng Chin (‘NO Ng’) acting as the Mandarin interpreter. Defence counsel argued that since SNO Lim put the questions to Kong through NO Ng in Mandarin, what Kong said and in turn NO Ng interpreted to Lim was hearsay and inadmissible in evidence. The submission was rejected by the Court of Criminal Appeal.

LP Thean JA: This argument is untenable. R v Attard was entirely different. In that case, the interview was conducted by the police officer through an interpreter and it was held that only the interpreter could give evidence of the questions put to the prisoner and the answers given and he was not called to give evidence. In this case, NO Ng was called and he testified that he acted as the interpreter and gave his version of the statement made by Kong.

The same reasoning was applied in Chong Teng v PP [1960] 1 MLJ 153. In Chong Teng, the Court of Appeal went on to observe:

“What is more in point is the judgment of this Court in the case of Cheong See Leong v PP [1948–49] MLJ Supp 56. That was a case where the Court was concerned with a statement made through an interpreter to a Police Officer under the Emergency Regulations. In the course of the judgment it was said by Spenser Wilkinson J:

‘The only practicable way in which one person can make a statement to another in a language that the latter does not understand is either by signs or through interpretation. In the ordinary way an interpreter … may be taken as being a mere “conduit-pipe” incapable of invention to the detriment of the accused. A statement thus made through a mere “conduit-pipe” by an accused to a Police Inspector is, in our view, a statement properly made by him to the Inspector.’

(xi) Statements of deceased persons

42. A police report made by the deceased nine months before his murder is not admissible as a dying declaration under s 32 but admissible to show motive under s 8.

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Boota Singh v PP [1933] 1 MLJ 195 – Facts: The accused was tried and convicted of the murder of a woman. Nine months before the murder, the deceased made a report to the police that the accused had tried to misbehave with her and had threatened to stab her. The report was admitted in evidence at the trial. On appeal, defence counsel contended that the report was wrongly admitted in evidence as it was inadmissible under any section of the Evidence Ordinance. The appellate court held that the report was not admissible under s 32 but under s 8 of the Evidence Ordinance.

Terrell Ag CJ:

I think counsel was correct in saying that the report was not admissible under s 32(i), which is limited to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. The report made nine months previously cannot strictly be regarded as a report about any circumstances which resulted in the murder.

The report was, however, put forward by the prosecution as showing or constituting motive under s 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 s 8 …

It should be added that the report is not evidence of the truth of the deceased’s allegation against the prisoner. It was admitted by prisoner’s counsel at the trial, and although this is by no means conclusive that the report should be admitted, it is I think clear that the reason why counsel admitted the report was because it was brought out in evidence that after the subject matter of the report had been investigated, no action was taken by the police, and this was pro tanto favourable to the prisoner; and it can be presumed in the prisoner’s favour that the deceased’s allegations were not true. 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.

43. Section 32(a) of the Evidence Act provides a hearsay exception when a statement is ‘made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question’. The exception is wider than the common law ‘dying declaration’ exception to hearsay in that it is not necessary to prove that the deceased had a ‘settled hopeless expectation of death’, or that the statement must be limited to cases of murder or culpable homicide. In order for a statement from a deceased person to be admissible under s 32(a), the fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement: s 138(2) illustration (a) of the Evidence Act.

Court to decide as to admissibility of evidence

138. —(1) When either party proposes to give evidence of any fact, the court may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the court shall admit the evidence if it thinks that the fact, if proved, would be relevant, and not otherwise.

(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact and the court is satisfied with such undertaking.

(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the

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court may, in its discretion, either permit evidence of the first fact to be given before the second fact is proved, or required evidence to be given of the second fact before evidence is given of the first fact.

Illustrations(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.

(b) It is proposed to prove by a copy the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced.

(c) A is accused of receiving stolen property, knowing it to have been stolen.

It is proposed to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The court may, in its discretion, either require the property to be identified before the denial of the possession is proved or permit the denial of the possession to be proved before the property is identified.

(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The court may either permit A to be proved before B, C or D is proved or may require proof of B, C and D before permitting proof of A.

44. A statement which is made a considerable time before the cause of death has arisen may be too remote to qualify for admissibility: Yeo Hock Cheng v R [1938] 1 MLJ 104. General expressions of fear or suspicion which are not directly related to the cause of death are not admissible : Pakala Narayana Swami v King-Emperor [1939] 1 MLJ 59.

45. There is a need for caution when dealing with a dying declaration as it is not made on oath and subjected to cross-examination:

Mohamed Bin Allapitchay & Ors v R [1958] 1 MLJ 197 – Facts: The appellants Mohamed s/o Allapitchay, Hassan bin Mohamed and Haja Mohideen s/o Shaik Dawood appealed against their conviction for the murder of a man named Abdul Rahim (‘Rahim’). Two prosecution witnesses, Yusoff and Krishnan, testified that they were woken up by the noise of Rahim shouting, ‘Matamata (police), Mohamed has stabbed me’. They saw Rahim pursuing three men, whom Krishnan recognised as the three appellants. Rahim collapsed after running 100 yards. When they asked who had stabbed him, Rahim replied, ‘Mohamed stabbed me and Hassan and Haja Mohideen were with him’. A few minutes later, a Radio Police Van arrived and a Sergeant took down a statement from Rahim. In the statement, Rahim said that he had been woken up by four Indians, whom he named as Mohamed, Hassan, Haja Mohideen and Kaka, and that Mohamed had stabbed him in the stomach with a knife. Shortly afterwards, the ambulance arrived and took him to the hospital where he fixed his thumb impression to his statement and died shortly thereafter. On appeal, defence counsel argued that the statements of the deceased were wrongly admitted by the trial judge. The Court of Appeal ordered a re-trial on the premise that the jury had not been properly directed on the weight to be given to the statements admitted under s 32 of the Evidence Ordinance.

Whyatt CJ:

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The appellants further contended that the oral statement made to Yusoff and Krishnan before the arrival of the police sergeant was not properly left to the jury. It was argued that if this statement was admitted under s 32 of the Evidence Ordinance as a statement made as to the cause of his death by a person who has since died, it was incumbent on the trial Judge, when directing the jury, to point out to them it was a statement not made on oath and which had not been submitted to the test of cross-examination. It is undoubtedly necessary when dying declarations are admitted under the common law, that the Judge should so direct the jury. As Lord Oaksy said in R v Waugh [1950] AC 203 ‘it was a further and even more serious error not to point out that (the dying declaration) had not been subject to cross- examination’. The question arises whether the position is any different when a statement as to the cause of his death by a person who has since died is admitted in evidence pursuant to the statutory provisions of s 32 of the Evidence Ordinance. The learned editors of Ratanlal and Thakore’s Law of Evidence, commenting on this point at p 297, state that:

‘An information lodged by a person who died subsequently, relating to the cause of his death, is admissible as a substantive piece of evidence under the provisions of s 32. At the same time the jury should be reminded that the statement in question had not been made on oath, nor had it been tested by cross-examination but that after bearing these points in mind it would be for the jury to give it such weight as they considered necessary.’

Apart, however, from this authority, the Court reaches the same conclusion on principle since it seems clear that unless the jury are so directed they may fall into the error of assuming that a statement admitted under s 32 is of the same quality as evidence which has been given on oath and subjected to cross- examination. In the present case the oral statement made by Rahim to Yusoff and Krishnan about the stabbing was left to the jury without any reference to the fact that it was not made on oath and not tested by cross-examination, and in the circumstances the jury might well have attached the same weight to it as if it had been sworn testimony which had been the subject of cross- examination. The Court is of the opinion that this omission amounted to a serious misdirection in this case.

Likewise Rahim’s statement to the Radio Police Sergeant, if it be regarded as a dying declaration, and his shout ‘Mohamed has stabbed me’ which woke up Yusoff and Krishnan, are open to the same criticism since it was not pointed out to the jury that they were unsworn and not tested by cross-examination.

46. The statements were properly admitted in this case under the equivalent of s 32(a) of the Evidence Act. In the modern context, with the abolition of jury trials in Singapore, the question of weight would be a matter for the evaluation of the trial judge. Although the courts acknowledge the need for caution when dealing with such statements, formal corroboration is not required. See also Chan Phuat Khoon v PP [1962] MLJ 127.

47. A statement may be taken at the scene of crime from the deceased by a police officer just prior to his demise. His dying deposition will be admissible under s 32(a) and will not be excluded as a statement made in the course of a police investigation. Statements of deceased made before death were admissible under s 32 of the Evidence Act.

Mary Shim v PP [1962] 1 MLJ 132 – Facts: The accused was charged with doing an act with the intent to cause miscarriage, namely, by inserting a stick into the womb of the deceased, which act caused her death. The deceased was admitted to Muar hospital. She was treated by a lady Medical Officer Dr Lily Tan, but her condition worsened and she subsequently died. At the trial, Dr Lily Tan testified that the

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deceased told her that she had gone to a private midwife to procure an abortion and this was performed upon her. The deceased subsequently developed fever and jaundice and went to the hospital to seek treatment. Apart from giving the history of her illness to Dr Lily Tan, the deceased also gave a statement to a Magistrate before she died. The deceased had also told her husband that she had gone to the accused’s house for an abortion and that the accused had introduced a piece of stick into her womb.Hill JA:

Mr Marshall objected to evidence of the wife’s statements being admitted, but Adams J admitted them on the ground that they showed a general consistency of statement as to the cause of her death made by the deceased. We consider that this evidence was properly admitted especially in view of s 32 of the Evidence Ordinance, No 11 of 1950; the relevant portion of which reads as follows:

‘Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:

(a) where the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons’ death comes into question.

Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question;’

In addition to the statements made to her husband the deceased had given the history of her illness to Dr Tan and before she died made a statement to a Magistrate in the hospital. This statement was strongly criticised by Mr Marshall and chiefly on the ground that it did not contain the ipsissima verba of the deceased. The Magistrate gave evidence a year or so after recording the statement and his recollection with regard to questions he may have put was impaired, but there seems no reason for thinking that he did not record correctly the actual words of the deceased. In any event the statements by the deceased to Dr Tan and the Magistrate were clearly admissible in our opinion in accordance with s 32 of the Evidence Ordinance.

48. Generally, the courts will require proof of the exact words uttered by the deceased, especially if there is a written record of his statement: Toh Lai Heng v R [1961] MLJ 53. In Yong Kong Tai & Ors v Salim bin Jalal & Anor [1997] 2 MLJ 380, it was held that a summary of the deceased’s statement would not be admissible. Nevertheless, it has also been held that if the witness had no opportunity to record the statement in writing, and he is able to recall substantially what was said, he may be permitted to relate those words: Ong Her Hock v PP [1987] 2 MLJ 45. A better approach may be to admit such dying declarations. The fact that the exact statement uttered by the deceased is unavailable should only affect the question of weight. However, a court held that a statement made by the deceased to his son one night before his death about a quarrel he had had with the appellant, was regarded as hearsay and inadmissible

Karam Singh v PP [1967] 2 MLJ 25 – Facts: The accused was charged with the murder of one Mohan Singh. The prosecution’s case against the accused was based on circumstantial evidence. The key witness for the prosecution was the deceased’s son Harbans Singh. He testified that the deceased had told him of a quarrel between

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him and the accused on the night before he was killed. On appeal, the evidence was held to be hearsay and inadmissible.

Ong Hock Thye FJ: 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 …

49. The evidence of the quarrel between the deceased and the appellant in this case might arguably be admissible under s 32(a) of the Evidence Act as a relevant statement ‘as to any of the circumstances of the transaction which resulted in his death’. Alternatively, the statement could be admissible under s 270(1)(b)(i) of the CPC 2010, which does not require the statement to be linked to the cause of death or the circumstances resulting in death.

Admissible under motive, s 8?

50. The courts have led that an out-of-court statement made by a deceased person was inadmissible as it did not fall within any hearsay exceptions.

Somwang Phattanasaeng v PP [1992] 1 SLR 850 – Facts: The accused was charged with the murder of one Thongdam Sarathit on 24 March 1988. The accused and the deceased were both Thai workers. The accused’s defence was that the deceased owed him a sum of $800 and had refused to repay the debt. When the accused demanded the repayment of the debt, the deceased had struck him with a broom. This provoked the accused who then struck the deceased several times with an axe. The prosecution adduced evidence from one Somthai Phunngphan-van (‘Somthai’), who testified that the deceased had told him that the accused owed him a sum of $300, and on 23 March 1998 the deceased said that a sum of $100 was still owing from the accused. The prosecution also adduced evidence from the foreman of the company to show that the deceased had requested him to deduct $300 from the monthly wages payable to the accused on the ground that the accused owed him that amount of money. The trial judges relied on Somthai’s evidence and found that the deceased did not owe the accused $800 and that it was the accused who in fact owed $300 to the deceased. The defence of provocation was therefore not made out as there was no loan of $800 owing by the deceased. On appeal, the Court of Criminal Appeal held that the statements made by the deceased were hearsay.

LP Thean J: The trial judges came to the conclusion that not only did the deceased not owe the appellant $800, on the contrary it was the appellant who was the debtor, being unable to repay the long overdue debt of $300 owed to the deceased. We agree with counsel for the appellant that the evidence relating to the deceased’s requests to the company to deduct $300 from the wages of the appellant and that of Somthai as to what the deceased had told him were not admissible in evidence to prove that the appellant had owed the deceased any money. They were hearsay and did not come within any of the exceptions to the hearsay rule. Accordingly, we agree that the trial judges’ finding of fact that the appellant was indebted to the deceased cannot be supported.

(xii) Objections at Trial to Hearsay Evidence

51. Failure to object to hearsay evidence at trial does not preclude objection from being taken on appeal.

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Mohamed Bin Allapitchay & Ors v R [1958] 1 MLJ 197 – Whyatt CJ: … Counsel for the appellants admitted that no objection of any kind was taken to the admission of this statement in the Court below … The evidence was, therefore, admitted without any question being raised by either side and it is only now on appeal that this Court is asked to rule that it was inadmissible and that the verdict of the jury should be set aside. The Court considers it is most unfortunate that the trial in the Court took this unsatisfactory course and has anxiously considered whether it should allow objection to be taken at this stage. However, as Lord Normand pointed out in Teper v The Queen [1952] AC 480, failure to take objection to the admissibility of evidence at the trial does not necessarily preclude objection being taken on appeal, and in all the circumstances of this case, the Court is of the opinion that the appellants should be allowed to take objection in this Court …

52. Prosecution may not rely on defence’s submission to provide the requisite additional evidence to prove its case. Failure to object to inadmissible evidence at trial does not render the evidence admissible.

Aw Kew Lim & Ors v PP [1987] SLR 410 –

Chan Sek Keong J:

The deputy public prosecutor also contended that even if exh P20 (computer printout from the Registry of Companies and Businesses with the title ‘INSTANT INFORMATION SERVICE’) were wrongly admitted the prosecution had made out a case to answer on the grounds that the defence counsel (1) had not objected to the admission of exh P20 and had conducted his defence on the assumption that the accused persons were, at the material time, the partners of Supreme Record Centre … I did not accept this submission. On the first point, it is clear law that inadmissible evidence does not become admissible evidence because of failure of counsel to object to the admission.

… In any event, where the prosecution has failed to prove a case which, if unrebutted, would warrant a conviction, then, in my view, the prosecution may not rely on counsel’s submission (which strictly speaking, is merely his view on the evidence, and may be wrong, as in this case) to provide the requisite additional evidence to prove its case. As it turned out in this case, this piece of evidence ie the identities of the partners, was vital to the prosecution’s case. Without it, an essential ingredient of each of the charges was not proved.

53. In Aw Kew Lim’s case, Chan J opined that inadmissible evidence does not become admissible evidence because of failure of counsel to object to the admission. Aw Kew Lim’s case demonstrates that the prosecution must ensure that every essential ingredient of the offence is proved by admissible evidence. The improper admission of inadmissible evidence may be fatal to the prosecution’s case, notwithstanding that no objection was taken by defence counsel at the trial. This was again highlighted in Highway Video Pte Ltd v PP (Lim Tai Wah) and other appeals [2002] 1 SLR 129, where the High Court overturned the convictions of the lower court because of the improper admission of hearsay evidence. See also Winslow J’s comments in Harjit Singh v R [1963] 1 MLJ 287 as follows:

54. … it is clear that inadmissible evidence cannot be rendered admissible, contrary to the rules of evidence, merely because no objection is taken.

55. The rule above was affirmed in Roy S Selvarajah’s case when the court held that even if an objection to hearsay evidence is raised only at the defence’s closing submission, it is not a bar to admissibility.

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Roy S Selvarajah v PP [1998] 3 SLR 517

Yong Pung How CJ: …

31. In closing submissions, counsel for the appellant objected for the first time to the admissibility of the evidence of PW1 and PW2 relating to PW10’s alleged overstay in Singapore, on the ground that it was objectionable hearsay …

39. … The fact that an objection is raised at such a late stage is not a bar to admissibility: Aw Kew Lim & Ors v PP [1987] SLR 410.

56. It should be noted, however, that the parties may agree to admit hearsay evidence: see s 274(1) of the CPC 2010; s 60 of the Evidence Act.

E. The Court of Appeal revisiting the Hearsay Rule applicable in Singapore 57. Lee Chez Kee v Public Prosecutor [2008] 3 SLR 447 (see paragraphs 65 to 117). See also Tay Eu-Yen’s feature article in the Singap Law Gazette (October 2008), “Lee Chez Kee v PP: Murder Beyond Reasonable Doubt?” at pp 9-13.

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