FIRM 4 FAIZURA & CO

Issue: whether Hasnah, a Session Court Judge is entitled to be a witness in the trial and whether she is compel to answer any question in the trial. General Rule laid down under S. 121 of EA This section provides that no judge, session court judge/ magistrate shall be compelled to answer any questions except upon the special order of the High Court. However the illustration under this section further clarify the scope of the section. Illustration (c) - A is accused of attempting to murder a police officer whislt on his trial before B, a judge of the High Court . - B may be examined as to what occurred.

 Pavone v PP The acc was charge for trafficking dangerous drugs. The dfs counsel applied to the HC to call President who presided at the original trial for the purpose of impeaching the credit of the witness. Court disallowed such application because it would cause great inconvenience and perhaps, embarrassment if President or Magistrate are withdrawn from their own courts to answer questions as their own conduct of trial. The exception to this section is where the judge is compelled to give evidence upon the special order from the High Court. Special order will be made in the exceptional circumstances when it is appear essential to the just decision in the case.

By applying illustration c under section 121 of Evidence Act, Hasnah a Session Court judge is compel to answer and to be examine as to what had occurred.

English Law : A witness in court is not bound to answer questions which may tend to criminate him. Malaysian Law : In Malaysia, the privilege is enforced in various way where witness is bound to answer all questions even though the answer may tend to criminate him. If he is forced to answer such question, then no criminal proceedings can be taken against him based on his answer except proceedings against per jury.

S. 132(1) S.132 (2)

Chye Ah San v R- Distintion between Sect 132(1) EA and common law privilege

In England, a witness in a court of law is not bound to answer questions that may tend to criminate him. In malaysia, the maxim is enforced in a different way because under Sect 132 of Evidence Ordinance, a witness is bound to answer all question even though they may tend to criminate him, but if he is forced to answer such questions then no proceedings can be taken agst him based on his answer except proceedings for perjury.

AG of Hong Kong v Zauyah Wan Chik & Ors and anor Protection is only given in relation to criminal proceedings which leaves the witness vulnerable to civil suits The court held that although a witness can be compelled by the court to answer to the questions put to him even though the answers will establish or tend to establish that he owes a debt or is otherwise subject to a civil suit at the instance of the Govt of Msia or of any state or of any other person. He will only be protected under sub sect(2) of 132EA from arrest or prosecution or his answer being used in criminal proceedings brought against him.
R v GA Phillips Protection only given when a witness is compelled by the court to answer.

witness must refer to a witness giving oral testimony in judicial proceeding. PMK RAJAH v WORLDWIDE COMMODITIES SDN BHD & ORS [1985] 1 MLJ 86 -A witness is a person who testifies on oath or affirmation in a court of law or in a judicial tribunal. He is subject to examination in chief, cross-examination and re-examination. The examination of the witness must be done orally and in open court A person who merely produces a document in court is not a witness and he may not be cross-examined unless he is called as a witness The witness is compelled by the court to answer the questions which may incriminate him. REX v GA PHILLIPS [1936] 1 MLJ 106 -by looking at the word compelled the protection does not apply to a witness who voluntarily answers such question.

public examination of a debtor REX v GA PHILLIPS [1936] 1 MLJ 106 -Section 17 of Ordinance No44 (Bankruptcy specifically cover answer by a bankrupt in the course of public examination. Subsection 8 stated that the answer may be use as evidence against him. Discovery in respect to an Anton Piller order PMK RAJAH v WORLDWIDE COMMODITIES SDN BHD & ORS [1985] 1 MLJ 86 -When a person is served with an Anton Piller order, he is only required to give discovery of the relevant documents to the plaintiffs solicitor. He is not required to take an oath or affirmation before the plaintiff proceed with the discovery of the documents. He is not subject to cross examination or re examination. Therefore a person giving discovery of documents pursuant to an Anton Piller order does not fall within the meaning of the word witness in section 132.