Examination of witnesses
137. The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law by the discretion of the court.
—(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 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.
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.
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.
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.
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.
—(1) The examination of a witness by the party who calls him shall be called his examination-in-chief.
(2) The examination of a witness by the adverse party shall be called his cross-examination.
(3) Where a witness has been cross-examined and is then examined by the party who called him, such examination shall be called his re-examination.
—(1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.
141. A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless he is called as a witness.
143. Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question.
—(1) Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court.
(2) The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.
—(1) Leading questions may be asked in cross-examination, subject to the following qualifications:
the question must not put into the mouth of the witness the very words which he is to echo back again; and
the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.
(2) The court, in its discretion, may prohibit leading questions from being put to a witness who shows a strong interest or bias in favour of the cross-examining party.
146. Any witness may be asked whilst under examination whether any contract, grant or other disposition of property as to which he is giving evidence was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document which in the opinion of the court ought to be produced, the adverse party may object to such evidence being given until such document is produced or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation .—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
The question is whether A assaulted B.
C deposes that he heard A say to D: “ B wrote a letter accusing me of theft and I will be revenged on him”. The statement is relevant as showing A’s motive for the assault and evidence may be given of it though no other evidence is given about the letter.
—(1) A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
(2) If a witness, upon cross-examination as to a previous oral statement made by him relevant to matters in question in the suit or proceeding in which he is cross-examined and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he made such statement.
(3) Where in any proceedings a previous inconsistent or contradictory statement made by a person called as a witness in those proceedings is proved by virtue of this section, that statement shall by virtue of this subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.
(4) Where a person called as a witness in any proceedings is cross-examined on a document used by him to refresh his memory, that document may be made evidence in those proceedings.
(5) Where a document or any part of a document is received in evidence by virtue of subsection (4), any statement made in that document or part by the person using the document to refresh his memory shall by virtue of that subsection be admissible as evidence of any fact stated therein of which direct oral evidence by him would be admissible.
(6) In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.
(7) Notwithstanding any other written law or rule of practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement which is admissible in evidence by virtue of this section shall not be capable of corroborating evidence given by the maker of the statement.
148. When a witness may be cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend —
to test his accuracy, veracity or credibility;
to discover who he is and what is his position in life; or
to shake his credit by injuring his character, although the answer to such questions might tend, directly or indirectly, to criminate him, or might expose or tend, directly or indirectly, to expose him to a penalty or forfeiture.
149. If any such question relates to a matter relevant to the suit or proceeding, section 134 shall apply thereto.
—(1) If any question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it, and may, if it does not think fit to compel him to answer the question, warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the court shall have regard to the following considerations:
such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the court as to the credibility of the witness on the matter to which he testifies;
such questions are improper if the imputation which they convey relates to matters so remote in time or of such character that the truth of the imputation would not affect or would affect in a slight degree the opinion of the court as to the credibility of the witness on the matter to which he testifies;
such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
the court may, if it sees fit, draw from the witness’s refusal to answer, the inference that the answer, if given, would be unfavourable.
151. No such question as is referred to in section 150 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well founded.
An advocate is instructed by a solicitor that an important witness is a professional gambler. This is a reasonable ground for asking the witness whether he is a professional gambler.
An advocate is informed by a person in court that an important witness is a professional gambler. The informant, on being questioned by the advocate, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a professional gambler.
A witness of whom nothing whatever is known, is asked at random whether he is a professional gambler. There are here no reasonable grounds for the question.
A witness of whom nothing whatever is known being questioned as to his mode of life and means of living gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a professional gambler.
152. If the court is of the opinion that any such question was asked without reasonable grounds, the court may, if it was asked by any advocate or solicitor, report the circumstances of the case to the Supreme Court in order that the Judges may, if they think fit, exercise the power to suspend or strike off the roll of advocates and solicitors given to them under the Legal Profession Act (Cap. 161).
153. The court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
154. The court shall forbid any question which appears to it to be intended to insult or annoy, or which though proper in itself, appears to the court needlessly offensive in form.
155. When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but if he answers falsely he may afterwards be charged with giving false evidence.
Exception 1.—If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2.—If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted.
A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether in a former transaction he had not made a fraudulent claim. He denies it.
Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
A affirms that on a certain day he saw B at Malacca.
A is asked whether he himself was not on that day at Penang. He denies it.
Evidence is offered to show that A was on that day at Penang.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Malacca.
A is tried for a rape on B. B is asked in cross-examination whether she has not had illicit intercourse with C and D. She denies it.
Evidence is offered to show that she has had such intercourse with C and D. The evidence is not admissible.
In each of the cases in illustrations (c) and (d), the witness might, if the denial was false, be charged with giving false evidence.
A is asked whether he has not said that he would be revenged on B, against whom he gives evidence. He denies it.
He may be contradicted on the ground that the question tends to impeach his impartiality.
156. The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
157. The credit of a witness may be impeached in the following ways by the adverse party or, with the consent of the court, by the party who calls him:
by the evidence of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit;
by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.
Explanation .—A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
A sues B for the price of goods sold and delivered to B.
C says that he delivered the goods to B.
Evidence is offered to show that on a previous occasion he said that he had not delivered the goods to B.
The evidence is admissible.
A is indicted for the murder of B.
C says that B, when dying, declared that A had given B the wound of which he died.
Evidence is offered to show that on a previous occasion C said that the wound was not given by A or in his presence.
The evidence is admissible.
—(1) When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact to which he testifies.
(2) Any rule of law or practice whereby in criminal proceedings the evidence of one witness is incapable of corroborating the evidence of another witness is hereby abrogated.
159. In order to corroborate the testimony of a witness, any former statement made by such witness, whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
160. Whenever any statement relevant under section 32 or 33 is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.
—(1) A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at that time fresh in his memory.
(2) The witness may also refer to any such writing made by any other person and read by the witness within the time mentioned in subsection (1), if, when he read it, he knew it to be correct.
(3) Whenever the witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document if the court is satisfied that there is sufficient reason for the non-production of the original.
(4) An expert may refresh his memory by reference to professional treatises.
162. A witness may also testify to facts mentioned in any such document as is mentioned in section 161 although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
—(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility.
(2) The validity of any such objection shall be decided on by the court.
(3) The court, if it sees fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility.
(4) If for such a purpose it is necessary to cause any document to be translated, the court may, if it thinks fit, direct the translator to keep the contents secret unless the document is to be given in evidence; and if the translator disobeys such direction, he shall be held to have committed an offence under section 166 of the Penal Code (Cap. 224).
165. When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so and if it is relevant.
166. When a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the court.
A sues B on an agreement, and gives B notice to produce it. At the trial A calls for the document, and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.
—(1) The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question.
(2) The judgment must be based upon facts declared by this Act to be relevant and duly proved.
(3) This section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 123 to 133 if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 150 or 151; nor shall he dispense with the primary evidence of any document, except in the cases excepted in this Act.