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• Hearsay is facts in issue/relevant facts based on perception of another person.
• This evidence is not direct, thus, generally inadmissible.
o This is found in s 60(1) EA 1950 where in brief, it explains that oral
evidence shall be direct in which through the person’s own
senses/perception.
o Lim Ah Oh & Anor v R [1950] 1 MLJ 269: S 60 EA 1950 codified the rule
against hearsay evidence.
• Out-of-court assertion to prove the truth of contents of its statement = Hearsay
[Phipson on Evidence (10th Edn)].
o Rationale (Teper v The Queen [1952] AC 480):
▪ Hearsay is not the best evidence and is not delivered on oath.
▪ The truthfulness and accuracy of words spoken to another
witness cannot be tested in cross-examination.
o Thus, whether an out-of-court assertion amounts to hearsay depends on
purpose of tendering the statement.
▪ Subramaniam v PP [1956] 1 MLJ 220:
1. The appellant was charged with possession of
ammunition.
2. The appellant’s defence was that he had been captured by
terrorists and was acting under duress.
3. Issue: Whether statement made by terrorist to appellant
whereby the terrorist had threatened to kill amounted to
hearsay?
4. LMD De Silva addressed the issued:
It is hearsay when It is not hearsay when

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▪ Object of evidence
is to establish truth
of what is contained
in statement.
▪ It proposed to
establish by
evidence, not the
truth of statement,
but the fact it was
made.
Application: The fact that the statement was
made is relevant to consider mental state and
conduct. It was held that the statement could
have been made to appellant by terrorists, which
whether true or otherwise, if they had been
believed by appellant might reasonably induced
in him apprehension of instant death if he failed
to conform to their wishes.
The statements therefore did not amount to
hearsay.
▪ Ratten v R [1972] 1 AC 378
1. Accused was charged with murder by shooting his wife.
2. Telephone operator testified that she had received
telephone call, three minutes before shooting that a female
voice answered, exclaiming, ‘Get me the police please.’
3. Issue: Whether the statement amounted to hearsay?
4. The circumstances in which statement was made shows
the wife was in state of fear, and it was not tendered to
prove truth of contents of statement. Moreover, the fact of
telephone call rebutted accused’s contention that no call
had been made from premises.
5. Lord Wilberforce:
o If the speaking of words is a relevant fact, witness
may give evidence that they were spoken.

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o A question of hearsay arises when words spoken
are relied on testimonially, as establishing some
fact narrated by the words.
o Therefore, the statement is relevant and necessary
evidence.
▪ Irving Younger in his book, Hearsay: A Practical gave an example
to differentiate what amounts to hearsay and what does not.
1. Fact: My brother called me and told me it was raining in
London.
2. If the call is used to prove the brother is alive = Not
hearsay.
3. If the call is used to prove it was raining in London =
Hearsay.
Forms Elaboration
1. Conduct or a document Chanderasekara v R [1937] 1 AC 220: Gestures
of a woman whose throat had just been cut,
identifying her assailant, were held to be hearsay.
2. Documentary hearsay ▪ A form of hearsay and is generally
inadmissible.
▪ Myers v DPP [1964] 2 A11 ER 881:
o The cards were admitted as proof of truth
of statements made.
o This amounts to hearsay and is
inadmissible.
▪ Nahar Singh v Pang Hon Chin [1986] 2 MLJ
141:
o Documents such as flight schedule,
plane ticket butts and correspondence
from immigration authorities were
hearsay evidence and therefore
inadmissible.

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▪ R v Rice [1963] 1 A11 ER 832:
o Plane ticket containing assertion that
Rice had flown from London to
Manchester was not hearsay because it
was submitted not to prove the truth of
its contents but as circumstantial
evidence – for jury to infer that two
people had flown on that flight.
3. Implied assertion of hearsay
The Evidence Act does not
distinguish between express
and implied assertions of
hearsay. Therefore, all hearsay
assertions should be excluded
unless they fall within any
exceptions in Evidence Act.
▪ Jeffrey Pinsler in
Evidence and the
Litigation Process (3rd
Edn):
S 17 to 40 EA which set
out exceptions to
hearsay rule make no
reference to implied
assertions. They only
declare series of
express statements of
fact as being provable.
Therefore, implied
assertions in statements
are not intended to be
caught by hearsay rule.
Express assertion:
▪ Direct and purposive.
▪ Tendered for its express purpose.
Implied assertion:
▪ Assertion that is not concerned with
express purpose of the statement but with
underlying assumption on part of maker of
statement.
Wright v Doe d’Tatham (1837) 112 ER 488:
▪ Issue: Whether testator was mentally
competent to make a will?
▪ Held: Letters sought to be adduced that
they were written to testator for purpose of
showing writers must have assumed his
sanity, were excluded on basis that they
were implied assertions of testator’s sanity.
Teper v The Queen [1952] AC 480:
▪ Accused was charged for setting fire to a
shop for purpose of fraud.
▪ Prosecution witness gave evidence he
heard a woman shout, ‘Your place burning
and you are going away from the fire.’
▪ It was held that the statement was an
implied assertion of accused’s presence at
the scene.

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Walton v The Queen [1989] 84 ALR 59:
▪ The greeting, ‘Hello, Daddy’ exclaimed by
child over telephone amounted to implied
assertion that the child was speaking to his
father’
R v Ratten [1972] 1 AC 378:
▪ ‘Get me the phone please’, a hysterical
request by deceased was held could
amount to implied assertion of hearsay.
R v Kearley [1992] 2 AC 228:
▪ Telephone calls made to accused’s
premises seeking supply of drugs, were
implied assertions of hearsay hence
inadmissible.
Statements of persons who cannot be called as witnesses
• S 32 EA: Relevancy of statements of persons who cannot be called as witnesses.
• S 32(1): Proving the unavailability of maker of statement/assertion.
▪ Must prove.
▪ Chainchal Singh v Emperor AIR 1946, Lord Goddard:
 It is an elementary right of accused person or litigant in civil suit that a
witness who is testify against him should give evidence before court which
court then can see the witness and observe his demeanour thus form better
opinion to his reliability than reading statement or deposition.
 In civil case, party can choose to waive the proof but in criminal case strict
proof is given that witness is incapable of giving evidence.
When maker is… Elaboration
Dead Oral evidence can be used (PP v Leong
Heo Cheong [1990] 2 CLJ 818).

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More effective method: Tender death
certificate.
Presumption of death may be invoked (s
108 EA 1950).
Cannot be found Evidence should be adduced to show
reasonable efforts to find him have been
made without success.
Incapable of giving evidence Situations:
▪ Extreme old age
▪ Mental/physical incapacity
o Sufficient evidence must
be adduced to establish
incapacity of person (does
not need a medical
person). – see s 395
Procedure of evidence
given by those who are
dangerously ill.
Procuring attendance will result in
unreasonable delay or expense
• Depends on facts/circumstances of
each case.
• It is a matter for court to determine.
• Seriousness of charge/claim and
nature of evidence will affect whether
expense is ‘unreasonable’. For
example, if the case involves a large
sum of money, the court will request
the witness who is overseas despite
the expenses or ‘delay’.
• Mere residence out of jurisdiction is
not sufficient to dispense attendance.
Borneo Co (M) Sdn Bhd v Penang Port
Commission [1975] 2 MLJ 204:

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Witness had to travel from England
merely to give formal evidence where
claim was RM5k (small amount). Since
the travelling expense would exceed
monetary claim, his attendance was
dispensed.
Tempil Perkakas Sdn Bhd v Foo Sex
Hong:
Claim was over RM20k. There was no
explanation for absence of makers of
documents, except they had left previous
employment. This is insufficient to
dispense their attendance.
Statements as to cause of death (dying declaration)
S 32(1) EA 1950: The statement is relevant whether it was or it was not made under
expectation of death and when his death comes into question.
• Statements made under paragraph (a)
o can be made in civil cases.
o extended to statements regarding circumstances of transaction which
resulted in death, regardless of the fact the deceased had no notion of
his death.
o Pakala Narayana Swami v King Emperor [1939] 1 MLJ 59: Deceased
said he’d die once he goes to accused house and he did. The assert is
held to be circumstances of the transaction and can be exculpatory to
accused.
o Proximity of statement to the cause of death - Yeo Hock Cheng v R
[1938] 1 MLJ 104:
▪ First statement: Deceased told father that she denied sleeping at
accused’s house because the accused threatened to kill her if she
did. The statement about the threat was too remote.

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▪ The second statement was made to her sister when she was
going out with accused and that accused told her to put on man’s
clothing. Court held this as regarding circumstances of
transaction with resulted to her death.
o Statements made prior death that were too remote – Boota Singh v PP
[1933] 2 MLJ 195: Report made by deceased against prisoner nine
months before murder is too remote and does no amount to ‘regarding
circumstances of transaction which resulted in death’.
o Statements made prior death that were too remote – Haji Salleh & Anor
v PP: Deceased made statement a month had made statement a month
before his death that one of accused persons might killed him. The
statement is inadmissible because it was too remote to ‘form part of
transaction which resulted in his death’.
o Not necessary that statements made pursuant to paragraph (a) should
be made ‘within settled expectation of death’. Lesser weight. – Yong
Kong Tai v Salim Jalal [1997] 2 MLJ 380 and Nembhard v R [1982] 1
A11 ER 183.
o Requirement: Cause of the person’s death come into question.
▪ Court is cautious when it is reduced to writing.
Rationale for admissibility
R v Woodock [1789] 1 Leach 500 – clarified by Court of Appeal in PP v Sinun Bakusoi
[2011] 1 LNS 505:
a) They are declarations made in extremity when party is at point of death when
every hope in the world is gone;
b) Every motive for falsehood is silenced, and the mind is induced by the most
powerful considerations to speak the truth;
c) A situation so solemn and so awful is considered by law as creating obligation
equal to that which is imposed by positive oath administered in a court of justice.