-

1. UUUK 4083 – EVIDENCE LAW II
TUTORIAL QUESTION 2, WEEK 12
Tutorial Slot :
Monday, 2.00 – 3.00 p.m
Prepared By :
Nur Amira Binti Mohd Saferi (A166230)
Prepared For :
Prof. Madya Dr. Mohamad Rizal Bin Abd Rahman

2. Question –
Seorang saksi yang tidak konsisten dalammemberikan keterangan dikira sebagai saksi yangtidak boleh
dipercayai, apatah lagi jika beliaukerap memohon untuk merujuk kepada nota.Adakah anda setuju
dengan kenyataan ini?Bincangkan.
1.0 PERSON WHO MAY TESTIFY
According to Section 118 of the Evidence Act 1950, all persons are competent to testify, unless the
court considers that by reason of tender years, extreme old age, disease, or infirmity, they are incapable
of understanding the questions put to them and of giving rational answers.
2.0 CREDIBLE WITNESS
However, it is pertinent to note that, not all person that are competent to testify can be regarded as
credible witnesses. The real test for either accepting or rejecting the evidence of a witness is how
consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with
the rest of the evidence and the circumstances of the case as laid down in the case of Bhojraj v
Sitaram AIR 1936 PC 60.
3.0 IMPEACHMENT OF WITNESS’S CREDIT
One of the methods to impeach the credit of a witness is by proof of his former
statement inconsistent with the evidence which is liable to be contradicted. This is enacted by section
155(c) of the Evidence Act, according to which impeachment can be done by proof of former statements
inconsistent with any part of his evidence which is liable to be contradicted. Section 155(c) must be
read together with Section 145 of the Evidence Act which in regards to cross-examination as to previous
statements in writing. The purpose of impeachment process is to undermine the credibility of the witness
by showing that his testimony in court should not be believed as he is incapable of speaking the truth
under oath and should not be relied on.
The procedure of impeachment that involved former inconsistent statement of a witness was laid down
in the case of Muthusamy v PP [1948] 1 MLJ 57, which can be summarised as follows:
1. There must be a request by either side of the party to impeach the credit of a witness.
2. The court must read the former statement of the witness to see if there is any discrepancies
between the two witness’s statements.
3. If there are no discrepancies, the court must rule so.
4. If there exists differences in the statement, the court must analyse each discrepancies and if the
differences are :
a) Minor differences : Differences can happen in the interpretation, recollection and the way
statement was taken where a honest witness may make a mistake, and this differences will
not amount to discrepancies. The court should rule that the difference does not affects the
credit of the witness.
b) Material contradictions : However, if the differences between the two statements is so
material it may amount to discrepancies affecting the credit of the witness. The witness will
be asked if he made the alleged statement.
If the witness admitted to making the former statement, or is proved to have made it, the witness must
have a fair and full opportunity to explain the difference as been held in the case of Krishnan & Anor
v PP [1981] 2 MLJ 121. If the witness failed to provide an acceptable explanation, his credit is thus
impeached, and his statement will be rejected by the court.

3. 2.1 WHETHER A WITNESS WHO IS INCONSISTENT IN GIVING EVIDENCE
CAN BE REGARDED AS A CREDIBLE WITNESS?
When a witness shown to have made a previous statement inconsistent with the evidence by
the witness at the trial, the evidence given at the trial shall be disregarded as unreliable as stated in
Dato’ Mokhtar Hashim v Public Prosecutor [1983] 2 MLJ 232. However, it is pertinent to note that
not all contradictions or inconsistencies in the evidence of a witness would render the witness
untrustworthy, only material contradictions matter as has been held in Public Prosecutor v Nordin Bin
Murhaban & Ors [2005] 7 MLJ 412
Matthew Lim v Games Warden, Pahang [1960] 1 MLJ 89, the court held that where a witness’s credit
has been impeached, his evidence becomes worthless. A similar approach is adopted in the case of
Khairi Bin Yusop v PP [2016] MLJU 921 where the witness was found to be wholly unreliable, and
his evidence was rejected.
Thus, a witness who is inconsistent in giving evidence in which material contradictions exists, cannot
be regarded as a credible witness.
3.0 REFRESHING MEMORY
A witness testifying in court should speak from their own memory, unaided and if the witness finds that
it cannot be done, recourse is sought to the writing. Therefore, when a witness frequently requested to
refer to notes, it is likely because of the need to refresh their memory.
The statutory provisions for refreshing memory are provided under Section 159 of the Evidence Act
1950, conditioned. The first condition is that the writing by which the memory of a witness is to
be refreshed must have been made by the witness himself. If by any other person, then the writing must
have been read by the witness and the witness knew it to be correct at the time of such reading.
The second condition is that the writing when made, had to be done at the time of the transaction
concerning which the witness is questioned, or so soon afterwards that the court considers that the
transaction was still fresh in his memory. The words any writing in s 159 is a reference to every kind
of writing including book of account, letter, notes made by the witness or any document which is
effectual to assist the memory of the witness (Sarkar on Evidence (15th Edn) Vol 2).
3.1 CONDITION TO BE SATISFIED FOR REFRESHING OF MEMORY.
There are 3 condition to be satisfied for refreshing of memory as laid down in the case of Chuah Aik
King (sole proprietor of Syarikat B Three Technology) v Keydonesoft Sdn Bhd [2018] MLJU 530
and Moomin Bin Seman v Public Prosecutor [1993] 3 MLJ 282.
a) First, there must be a need for a witness to refresh his or her memory based on a document.
b) Witness cannot refresh memory by right as it is within the discretion of the court whether or not
to allow it upon consideration of all facts and circumstances as stated in Moomin bin Seman v
Public Prosecutor [1993] 3 MLJ 282.
In the case of Chau Kam Hoon v Public Prosecutor [2003] 4 MLJ 686, it was stated that the court
must consider the circumstances in which a witness may refresh his memory by referring to a
document. The witness must have a need to refer to a document and it would be improper for a court to
grant leave to refer such document simply because a request was made by a party as has been held in
the case of Yuen Chun Yii v PP [1997] 3 SLR 57. A witness is entitled to refresh his memory in which
he had no clear independent recollection but wanted to refresh his memory by seeing the writing as
stated in the case of Sabitri Thakurain v FA Svi AIR 1933 306.

4. There are also number of reasons why there is a need for a witness to refresh his memory as stated in
the case of Moomin Bin Seman v Public Prosecutor [1993] 3 MLJ 282, memory tends to fade with
lapse of time, the old and infirm, injury and disease and memories when reduced to writing, acts as an
aid to the witness. It can be seen in the case of PP v Tan Mei Yuen [2004] 4 MLJ 541, where in this
case, the court was satisfied that there was a need for the witness to refresh his memory before the
prosecution could proceed to apply to impeach the witness because the incident had occurred six years
ago. In the case of Adiswaran a/l Tharumaputrintar v Public Prosecutor and other appeals [2014] 3
MLJ 228, the court held that the witnesses in this case were allowed to refresh their memory as both of
the witness only gave their evidence five years after the incident. Because of the lapse of five years,
both witnesses could not be expected to remember in detail what had taken place.
c) If there is a need for a witness to refer to a document (made by the witness) to refresh his or
her memory, the condition under Section 159 must be fulfilled. If a document used
to refresh the memory of a witness does not comply with the requirements of s. 159, the
evidence will be vitiated.
In Chau Kam Hoon v Public Prosecutor [2003] 4 MLJ 686, the court has laid down further principles
concerning refreshing of memory which is, the opposing party is entitles to a right of inspection and
cross-examination on the document used by the witness to refresh his memory as provided under
Section 161 of the Evidence Act. In this case, the High Court held the evidence of a prosecution witness
who had refreshed his memory based on a record as inadmissible because the defence counsel was not
given a right under s. 161 EA to cross-examine the prosecution witness. In the case of Yuen Chun Yii
v PP [1997] 3 SLR 57, the grounds for permitting the adverse party the right to be shown the document
are (i) to secure the full benefit of the witness’s recollection as to the facts; (ii) to check the use of
improper documents; and (iii) to compare his oral testimony with his written statement. The right of the
adverse party to be shown the statement and to cross-examine the witness as it will ensure that the
statutory safeguards are met as stated in the case of Moomin Bin Seman.
3.2 WHETHER WITNESS THAT REFERS TO DOCUMENT IS CREDIBLE?
Firstly, the witness must have a need to refer to a document in order to refresh his or her memory. In
the case of Yuen Chun Yii v PP [1997] 3 SLR 57, the court held that it would be improper for a court
to grant leave to refer such document simply because a request was made by a party as has been held.
The opposing party is entitled to a right of inspection and cross-examination on the document used by
the witness to refresh his memory as provided under Section 161 of the Evidence Act where one of its
purpose is to compare the witness’s oral testimony with his written statement. Applying the procedure
of impeachment laid down in the case of Muthusamy v PP [1948] 1 MLJ 57, if the court found that
there is only minor difference in the statement of the witness, the court should rule that the difference
does not affects the credit of the witness. However, if the court found that, during cross-examination,
there is material contradictions in the evidence of the witness, the court must render the witness
untrustworthy as been held in the case of Public Prosecutor v Nordin Bin Murhaban & Ors.
4.0 CONCLUSION
To conclude, a witness who is inconsistent in giving evidence cannot be considered as a credible witness
if material contradictions exist. However, a witness who frequently refers to notes or documents in order
to refresh his or her memory cannot be regarded as incompetent witness if the witness can provide a
valid need to refer to a document. Next, if the statement given by the witness is unshaken during cross-
examination under Section 161 and there is no existence of material contradictions in his evidence
despite having to refer to notes, the witness can be regarded as a credible witness.