TABLE OF CONTENTS

1.0 Definition ....................................................................................................................................... 1

1.1 Requirement of Corroboration in Malaysia ........................................................................... 2
1.2 The Position of a Former Statement by a Witness ................................................................. 2
1.3 Corroboration in Other Jurisdictions...................................................................................... 4
2.0 TYPES OF SUSPECT WITNESSES .......................................................................................... 5
2.1 Accomplice ................................................................................................................................. 5
2.1.1 Malaysia’s Position ............................................................................................................... 5
2.1.2 Position of Other Jurisdictions .............................................................................................. 7
2.2 Child Witness ............................................................................................................................. 9
2.2.1 Malaysia’s Position ............................................................................................................... 9
2.2.2 Sexual Offences Against Children Act 2017 ...................................................................... 11
2.2.3 Position of Other Jurisdictions ............................................................................................ 11
2.2.4 Scientific Research on Accuracy of Child Evidence .......................................................... 13
2.3 Sexual Offences ........................................................................................................................ 13
2.3.1 Malaysia’s Position ............................................................................................................. 13
2.3.2 Position of Other Jurisdictions ............................................................................................ 14
3.0 THE ABOLISHMENT OF CORROBORATION WITHOUT REPLACEMENT.............. 17
3.1 Comparison of the laws in Malaysia and of Other Jurisdictions ........................................ 17
3.1.1 Accomplice.......................................................................................................................... 17
3.1.2 Child Witness ...................................................................................................................... 17
3.1.3 Sexual Offences................................................................................................................... 18
3.2 The Lord Carloway Report .................................................................................................... 19
4.0 CONCLUSION ........................................................................................................................... 21
5.0 BIBLIOGRAPHY ....................................................................................................................... 23
5.1 Statutes ..................................................................................................................................... 23
5.2 Cases ......................................................................................................................................... 23
5.3 Reports ...................................................................................................................................... 25
5.4 Journals .................................................................................................................................... 25
5.5 Books ......................................................................................................................................... 25
5.6 Website ..................................................................................................................................... 25
5.7 Others ....................................................................................................................................... 26
6.0 APPENDIX .................................................................................................................................. 27

0
1.0 Definition
The act of corroborating in its original definition is ‘to support with evidence or authority’ 1. In
the legal field, “corroboration” has a significant part in the law of evidence. It is a rule of law or
practice which demands for certain evidences to be supported or confirmed by another
independent evidence to bolster a particular conviction.2

The case of R v Baskerville3 is usually referred to in order to understand the concept and it was
stated that:-

“… [corroboration is an] independent testimony which affects the accused by

connecting or tending to connect him with the crime. In other words, it must be
evidence which implicates him, that is, which confirms in some material
particular not only the evidence that a crime has been committed, but also that the
prisoner committed it.”

Upon further inspection of the Evidence Act 19504 (“EA”), one will come to the realization that
the term “corroboration” is not defined. However, the definition set in Baskerville5 has been
accepted in many local cases. Among them is the case of Aziz bin Muhamad Din v PP6 where
Augustine Paul JC expounded on the word ‘implicate’ and suggested that it does not necessarily
mean ‘incriminate’, but it may only mean to involve. He also cited Ong CJ’s dicta in
Brakabaran v PP7 that corroborative evidence is not restricted to oral evidence of a witness but
it may also be circumstantial or direct.

1
https://www.merriam-webster.com/dictionary/corroborate. Retrieved 8 November 2017.
2
Shair Mohamed, M.A. (2013) The corroboration controversy created by Section 157 of the Evidence Act 1950.
Malayan Law Journal, 6, cxx.
3
[1916] 2 K.B. 658.
4
Act 56.
5
Supra, n.3.
6
[1996] 5 MLJ 473.
7
[1973] AC 296.

1
1.1 Requirement of Corroboration in Malaysia
In Malaysia, s.134 of the EA does not specifically require for a certain number of witnesses to
prove a fact. Instead, the Malaysian courts place sufficiency of evidence as the paramount
consideration by taking into account the credibility of witnesses in proving facts.8 This can be
seen again in the case of Dato’ Mokhtar bin Hashim v PP9, whereby the Federal Court held that
s.134 reflected that in case of a conflict of evidence, the truth is to be sought by weighing the
credibility of the witnesses, and not by the number of witnesses.

Hence, s.134 seems to suggest that corroboration of witnesses is not required in Malaysia since
there is no limit as to the number of witnesses required to prove a case. However, it is settled law
in Malaysia that corroboration is either required as a matter of law or a matter of practice and
prudence.

It is also pertinent to note that our EA is in pari materia to the Indian Evidence Act 1872
(“IEA”). Thus, our laws would naturally follow the case laws laid down in the Indian
jurisdiction. However there is a problem in this and that is the fact that the IEA was passed in the
year 1872 which was before the case of Baskerville10. This could only mean that the legislature
in drafting the IEA had yet to consider the rationale behind Baskerville11.

1.2 The Position of a Former Statement by a Witness

There has been confusion on whether a witness’ former statement may constitute corroboration
of his evidence in court. This is due to the fact that former statements could instead be nothing
more than self-corroboration which is inconsistent with the principle laid down in Baskerville.
The case of R v Whitehead12 expounded on the rationale for disallowing the use of former
statements of witnesses as corroboration. Lord Hewart CJ opined that for an evidence to amount
to corroboration, it must be extraneous to the witness who is to be corroborated.

8
Jamaludin bin Md Kassim v PP [2010] 3 MLJ 221, CA.
9
[1983] 2 MLJ 232.
10
Supra, n.3.
11
Supra, n.3.
12
[1929] 1 KB 99

2
S.157 of the EA states that former statements of a witness may be proved to corroborate later
testimonies as to same fact. Again, this is contrary to the concept of corroboration founded in
Baskerville13. Furthermore, this seems to be a contradiction with s.73A(7) which provides that an
evidence admissible under the EA shall not be treated as corroboration of evidence given by the
maker of the statement.

This issue was deliberated in Aziz bin Muhamad Din v PP14 where it was held that the usage of
former statements to self-corroborate would go against the concept of corroboration in
Baskerville. Augustine Paul FC (as he then was) took the notion that s.73A(7) overrides s.157
due to the fact that the former is a later provision incorporated into the EA in 1971 via the
Evidence Ordinance (Extension Order 1971)15. The judge also referred to the marginal note16to
s.73A(7) and the words ‘by this Act’ and founded that the particular section is related to the
‘Admissibility of documentary evidence in civil cases, etc.’ and the abbreviation ‘etc.’ makes it
clear that the section covers more than just admissibility of documentary evidence in civil cases.

However, this view was then overruled by virtue of the case of Lim Guan Eng v PP17 where it
was made clear that s.73A read as a whole refers to the admissibility of a statement made by a
person in civil proceedings. On the other hand, a witness’ former statement was found admissible
under s.157 to corroborate his testimony and this was true as it was backed by a lot of previous
cases.

Thus, it is established that a witness’ former statements may be used as corroborative evidence of
such witness. This was supported by the case of Chung Tain Kong @ Chung Fook Chung v
PP18 where the Court of Appeal accepted the cautioned statements of the accused as a former
statement in corroborating his defence of self-defence.

13
Supra n. 3.
14
[1996] 5 MLJ 473
15
(PU (A) 261/1971)
16
A marginal note serves as a guide to the interpretation of a section.
17
[1998] 3 MLJ 14.
18
[2009] 5 MLJ 1.

3
1.3 Corroboration in Other Jurisdictions
Previously, corroboration only became a requirement if the witness requiring such corroboration
is credible. This was laid down by Lord Hailsham in DPP v Kilbourne19. Further, he stated if the
witness’ evidence is not credible, his witness statement should be rejected and the accused to be
acquitted even if there is evidence found capable of being corroborated in other testimonies.
Dissatisfaction with corroboration also arose in the same case. Lord Reid declared that the rules
on corroboration were unnecessarily complex and that common sense sufficed to resolve the
fundamental issues that confronted evidence.

In the said case, the accused was charged for buggery, attempted buggery and multiple accounts
of indecent assault on two groups of boys aged between 9 and 12. These boys were then called
by the prosecution to give sworn evidence. Although the judge told the jury that they could take
the uncorroborated evidence of the second group of boys once they were satisfied that the boys
were speaking the truth, the Court of Appeal had quashed the conviction on the ground that the
trial judge had misdirected the jury on what could amount to corroboration. Afterwards, on a
subsequent appeal, the Court of Appeal decision was reversed.

Eventually, many jurisdictions had forgone the rule of corroboration such as the United Kingdom
in 199420. Meanwhile, Scotland has come up with a proposal to abolish the rule of corroboration
through the Carloway Review21 which has been accepted by the Scottish Government.22

While one could argue for the need of corroboration, it is largely believed that the rule is not
needed anymore due to the advancements of modern technology.23

19
[1973] 1 All ER 440.
20
Section 32 of Criminal Justoce and Public Order Act 1994.
21
Carloway. (2011, November 17). Lord Carloway Review: Report and Recommendations(Rep.). Retrieved
November 19, 2017, from Scottish Government website: http://www.gov.scot/resource/Doc/925/0122808.pdf
22
Mennie, S. (2013). Rights around corroboration- Survey of the human rights issues raised by the proposed
abolition of the corroboration rule. The Journal of The Law Society of Scotland. Retrieved November 11, 2017, from
http://www.journalonline.co.uk/Magazine/58-2/1012196.aspx
23
(2011) Plans for change in law. The Herald. Retrieved November 8, 2017, from
https://www.pressreader.com/uk/the-herald/20111118/282316791839915 . Retrieved on 8 November 2017.

4
2.0 TYPES OF SUSPECT WITNESSES
2.1 Accomplice
In the case of Davies v DPP24, the House of Lords had defined and categorized three types of
accomplices. First, accomplice is defined as parties who are participles criminals in respect of the
actual crime charged whether as principles or accessories before or after the fact. Second, a
person is also considered an accomplice if he receives stolen goods. Third, a person who has
been involved in a series of crimes in respect of which evidence is admitted under the similar
evidence rule.

In the local case of PP v Nomezam Apandy bin Abu Hassan (No. 2)25, a person is an accomplice
if he has participated in the commission of an offence. The Court further stated that if the person
has played an active role based on the facts of the case, his evidence must be corroborated.
However, a person who has been forced to commit a crime is not an accomplice, as decided in
the case of Chao Chong v PP.26 The latter case had further stated that the ultimate purpose of
defining an accomplice is to determine whether his evidence was to be regarded with suspicion
and should it be corroborated before it was accepted.

2.1.1 Malaysia’s Position

In Malaysia, the principle of corroboration can be found in s.13327 read along with illustration
(b) of s.11428. While s.133 makes it legal to convict a person on uncorroborated testimony of the
accomplice, illustration (b) of s.114 provides that a judge must caution himself on the dangers of
convicting uncorroborated evidence of an accomplice.

In essence, the need for corroboration has been justified because an accomplice, in giving
evidence might have a personal motive of minimizing his own role and maximizing someone
else’s role in a crime29. Thus, the judge, even though allowed to convict on the evidence of an
accomplice, must warn himself of the dangers to do so without the said testimony being

24
[1954] 1 All ER 507
25
[2008] 1 MLJ 68.
26
[1960] 1 MLJ 238.
27
Section 133 Evidence Act 1950.
28
Section 114 Evidence Act 1950.
29
Supra n. 2.

5
corroborated. This was so in the case of Tay Choon Nam & Ors v R30 which reiterated the words
of Woodward Ag. CJ in Rex v Lim Yam Hong31 that a judge ‘must clearly present in his mind
the danger or convicting on unconfirmed evidence of an accomplice’ and if he disregards this,
the conviction could be quashed upon appeal.

In regards to the court’s duty in determining whether or not to dispense with the corroboration of
an accomplice, Augustine Paul J in PP v Dato’ Seri Anwar Ibrahim (No. 3)32 had stated that one
of the factors to be considered in dispensing corroboration is the accomplice’s degree of
complicity. In some cases, an accomplice may not be willing in the participation of an offence
but instead is a victim of it. Such accomplice may have been driven under pressure which would
require some firmness to resist. In these circumstances, it could be said that the use of
corroboration would amount to an injustice.

The necessity for corroboration arises from the nature of the witness and whether it is somebody
who may have an interest in detecting the guilt of others as opposed to their own. This view was
laid down in PP v Mohd Azam bin Basiron33 where the Court held that accomplice evidence
should be received with the utmost caution as it is to be expected for someone in the position to
give unfaithful evidence. However, it is pertinent to know that the application of the accomplice
rule is only true to witnesses called for the prosecution as laid down in Awang Ngah v PP34.

In corruption cases, it is a bit different. There is no automatic finding that a person is an

accomplice due to mere participation35. Salleh Abas LP in Ng Kok Lian v PP36 explained that
the evidence of a particular someone has to be first examined to determine whether the said
person is an accomplice or not. There is no automatic presumption just by virtue of an
accomplice’s actus reus.

30
[1949] MLJ 157.
31
14 SSLR 152.
32
[1999] 2 MLJ 1.
33
[2004] 2 MLJ 556.
34
[1958] MLJ 168.
35
Section 52 of Malaysian Anti-Corruption Commission Act 2009 (Act 694).
36
[1983] 2 ML 379.

6
On the other hand, corroboration is not required when it is the evidence of an agent provocateur.
The case of Teja Singh37 had already clearly stated that an agent provocateur is a police spy, and
not an accomplice. Hari Bahadur Ghale v PP38 laid down two significant principles in relation
to agent provocateurs, namely, that an agent provocateur’s evidence does not need any
corroboration and that an accused person can be accused simply on the uncorroborated evidence
provided.

2.1.2 Position of Other Jurisdictions

In the United Kingdom (“UK”), the requirement of corroboration is only a matter of practice and
prudence. Lord Simonds in Davies v PP39 had stated that a judge has the discretion to dispense
with the requirement of corroboration and in the event that he exercises that discretion,
corroborative warning must be administered before the conviction of the accused. If the judge
fails to warn the jury in accordance with this rule, the conviction will be quashed even though
there was sufficient corroboration of the evidence by the accomplice.

However, the position of requiring corroboration of evidence given by an accomplice has been
abrogated by S.32 of the Criminal Justice and Public Order Act40. The effect of this provision
was considered by the Court of Appeal in the case of R v Easton41 where it was concluded that it
is a matter of the judge’s discretion to decide if a warning is appropriate in respect of the witness
and the type of case. Where a warning is needed, the judge has the discretion to decide the
strength and terms of the warning.

In India, an accomplice was defined in the case of Jagannath v R42 where it means “a guilty
associate or partner in crime who is connected with the offence or who makes admission of facts
showing that he had a conscious hand in the offence”. Identical to the Malaysian EA, S.114,
illustration (b) when read with S.133 of the IEA carries the same effect. According to s.114,
illustration (b), the court may presume that an accomplice is unworthy of credit unless he is

37
Teja Singh & Mohamed Nasir v PP [1950] 1 MLJ 71.
38
[2011] 5 MLJ 785.
39
[1954] 1 All ER 507.
40
Criminal Justice and Public Order Act 1994
41
[1995] 1 WLR 1348.
42
[1942] AIR 221 Oudh.

7
corroborated in material particulars whereas s.133 provides that an accomplice shall be a
competent witness against an accused person and a conviction will not be deemed illegal because
it proceeds upon the uncorroborated testimony of an accomplice.

From these two provisions, it can be seen that the general rule of corroboration is not a rule of
law but a rule of practice or prudence which has acquired the force of rule of law in India. The
rule is that, a conviction based on uncorroborated testimony of an accomplice is not unlawful.
However, it is not safe to rely upon the accomplice’s evidence unless it is corroborated.
Therefore, judges have to guard their minds when making decisions based on uncorroborated
evidences. Therefore, it can be summed up that there is no absolute rule of law in the Indian
legislature that evidence by the accomplice must be corroborated.

In Hong Kong, the corroboration rule in respect of alleged accomplices has been abolished by
the Criminal Procedure Ordinance43. S.60 of the said Act provides that any requirement that
obliges the judge to give the jury a warning about convicting the accused on any uncorroborated
evidence by an alleged accomplice is abrogated. The view that a judge ought to direct the jury to
access the credibility of uncorroborated evidence was rejected in the case of AG of Hong Kong v
Wong Muk Ping44. Instead, the Court decided that the correct approach to take when
determining the credibility of the evidence is that the jury should consider the presence or
absence to corroborative evidence.

In Australia, the requirement of warning has been abolished as it has become arbitrary due to the
highly technical answer provided by Davies v DPP45, when being asked who is an accomplice.
This position was taken by J Nevile J in the case of Kahn v R46 where the judge pointed out that
it is the duty of the judge to warn the jury of the danger of convicting an accused unless the
evidence of the accomplice was corroborated. The Court of Criminal Appeal broadened the
definition of an accomplice and decided that only a person who could be convicted as a principal
offender can be said to fall under the category of an accomplice.

43
Hong Kong Criminal Procedure Ordinance 1994 (Cap. 221)
44
[1987] AC 501.
45
[1954] 1 All ER 507.
46
[1971] W. A. R. 44.

8
In Singapore, the earlier position was that corroboration was required for evidence given by
accomplices. The case of Tan Yook Suan v R47 shows that the conviction of the appellant was
quashed by the Court due to the absence of corroboration warning. However, the amendment in
1976 on s.135 of the Evidence Act48 had abolished the practice of corroboration warning which
was previously required for uncorroborated evidence of the accomplice. Therefore, the Court is
only bound to treat the accomplice evidence with caution. The case of Kwang Boon Keong Peter
v PP49 illustrates this principle where the Court stated that it is not mandatory to provide a
corroboration warning on evidences that are not corroborated.

2.2 Child Witness

2.2.1 Malaysia’s Position
The requirement for corroboration for child witnesses was not required as a matter of law until
s.133A was inserted into the EA. Previously, s.118 of the EA and Oaths and Affirmation Act
194950 were relied upon to deal with evidence from child witnesses. The former provides that all
persons shall be competent to testify while the latter under s.6 states that witnesses must give
51
evidence on oath. When dealing with child witnesses, this provision must be read with s.8
which provides that a child who is incapable of taking an oath, can still give evidence after a
caution by the court to speak the truth.52

By virtue of all these provisions, a child is deemed competent to give evidence so long as he has
the intellectual capacity to understand and give rational answers to the question. Nevertheless, it
is judges’ responsibility to ascertain whether the child is competent to give testimony. 53

However, with the introduction of s.133A in 1971, unsworn child evidence is required as a
matter of law.54 This indicates that to effect a conviction, it is mandatory to corroborate unsworn

47
[1954] MLJ 116.
48
Singapore Evidence (Amendment) Act 1976.
49
[1998] 2 SLR 392.
50
Act 194.
51
Section 6 Oaths and Affirmation Act 1949.
52
Section 8 Oaths and Affirmation Act 1949.
53
Bakar, A. (1992). Child Abuse and The Law of Evidence. Malayan Law Journal, 1, lxv.
54
PU (A) 261/71.

9
evidence made by child witnesses.55 This simply means that unsworn evidence adduced by a
child must fulfil the three requirements established in Baskerville.

In the case of Tajuddin bin Sallah v PP56, the court held that according to s.133A, the unsworn
evidence of a child of tender years must be corroborated before the accused can be convicted.
Likewise, in the case of Sidek bin Ludan v PP57, the court held that the proviso to s,133A
expressly provides that a conviction cannot stand on the uncorroborated evidence of an unsworn
child witness.

The main reasons why corroboration is needed for child evidence can be seen in Chao Chong v
PP58 where CJ Thompson ruled that that children evidence must be regarded with suspicion.
This is because children may not fully understand the effect of taking an oath and at times find it
difficult to distinguish between reality and fantasy especially after a lapse of time. This
proposition is also upheld in a few cases.59

Due to the distrust of unsworn evidence, necessary corroboration cannot be supported by other
unsworn evidence as only a sworn evidence can corroborate an unsworn evidence. The
consequences of this is that even in a case where there are only child witnesses, no conviction
will follow unless there is other independent sworn evidence implicating the accused. In situation
of sexual abuse not involving penetration, there will rarely be physical evidence to corroborate a
child’s complaint.60 61Besides, an independent source of evidence might be absent since the child
victim is the only witness for his or her own case.

55
Arumugan a/l Mothiyah v PP[1995] 1 CLJ 58.
56
[2008] 1 MLJ 397.
57
[1995] 3 MLJ 178.
58
Supra, n.26.
59
Loo Chuan Huat v PP [1971] 2 MLJ 167; Tham Kai Yau v PP [1977] 1 MLJ 174.
60
Police officer rarely prosecute such cases due to certainty of an acquittal.
61
The Evidence of Children and Other Vulnerable Witnesses. (1990). The Law Reform Commission of Western
Australia, 6-72. Retrieved November 5, 2017, from http://www.lrc.justice.wa.gov.au/_files/P87-DP.pdf

10
2.2.2 Sexual Offences Against Children Act 2017
According to s.17 of Sexual Offences Against Children Act 201762 (“SOACA”), where the
victim is a child for the offences under the SOACA, a child is presumed to be competent to give
evidence. However, the scope under this section seems to be very limited. This is because the
presumption on the credibility of a child witness only applies for the offence under the SOACA
and the child witness must be a victim. This indicates that in a situation where a child is the only
eye witness for any sexual offence or in case of domestic violence, his evidence still needs to be
corroborated.

Besides, s.18 of the SOACA provides that the court may convict on the basis of the
uncorroborated evidence of a child, given upon oath or otherwise. This provision seems to be
departed from the rule of corroboration for child witnesses by virtue of s.133A of the EA as it
gives the court power to corroborate the unsworn testimony of a child victim for the offences
commit under the SOACA.

As such, it is clear that the passing the SOACA protects child victims from being sexually
exploited as the rule of corroboration is not required. Nonetheless, the scope SOACA should be
broadened to benefit the victim in a situation where a child is the only eye-witness of the tragedy.

2.2.3 Position of Other Jurisdictions

The UK has adopted a remarkable approach by abolishing the rule of corroboration of child
evidence in 1988. This was done via the repeal of s.38(1) of the UK Children and Young Persons
Act 199363 which is in pari materia with s.133A of the EA. Besides, it is no longer needed to
resurrect formal corroboration warnings particularly with reference to child evidence. Lord Lane
CJ in the case of Zavekas64 ruled that there is no need to treat the evidence of children with
undue suspicion, when all precautions have been taken, testimony of young children may be just

62
Act 792.
63
See the old Section 38(1) of the United Kingdom Children and Young Persons Act 1933 and the case of R v Cleal
[1942] 1 All ER 203.
64
[1990] 2 QB 355.

11
as reliable as that of an adult. In fact, this view on the reliability of a child witness is supported
by scientific journals as well.65

On the other hand, even though the IEA is in pari materia our EA, s.133A is not present in the
former. It is suggested that the IEA does not has any express rule pertaining corroboration of
evidence from child witnesses. As such, case law is relied upon for the corroboration of child
witnesses. It was held by the Supreme Court in the landmark case of Nivrutti Pandrurang
Kokate & ors v The State of Maharashtra66 that corroboration is required to make sure that
testimony of a child was not given under any situation of coercion and undue influence. Yet in a
more recent case, the Court held that corroboration for child evidence is not needed if the child
can explain the relevant events of crime without being tutored.67

In Australia, the amendment of Australian Evidence Act68 in 1985 had abolished the mandatory
warnings in respect of uncorroborated evidence. Today, by virtue of the new s.50 of the
Australian Evidence Act, there is no longer any legal requirement that the judge must issue a
warning in respect of the evidence of a child witness. The previous s.36BE of AU Evidence Act
which provides that “a warning might be given only where the judge was satisfied that the
particular circumstances justified it” was repealed.

Likewise, in 1995, Hong Kong had abrogated the requirement of corroboration for child
witnesses by making amendments to s.4A of the Evidence Ordinance69.

In Singapore, if the court can satisfy that a child’s evidence is so reliable or unusually
compelling, then the requirement of corroboration is not required.70 Hence, whether
corroboration is required for evidence given by a child witness is a matter for the judge to weigh
by taking into consideration the maturity and conduct of a child witness.71

65
Devies, G., Tarrant, A., & Flin, R. (1989). Close encounters of the witness kind. British Journal of Psychology,
80-415.
66
[2008] AIR 1460, SC.
67
In State of U.P. v. Krishna Master & Ors [2010] AIR 3071, SC.
68
AU Evidence Act 1906.
69
HK Evidence Ordinance (Cap 8).
70
Lee Kwang Peng v PP [1997] 3 SLR 278; B v PP [2002] SGHC 290.
71
Chen Jian Wei v PP [2002] SGHC 66.

12
2.2.4 Scientific Research on Accuracy of Child Evidence
According to a study conducted, the results revealed that children can provide valuable
information if they are carefully interviewed with proper techniques. 72 This is an interesting find
as unlike adults who are more probable to be subjected to false memory, it would seem that
children are deemed to be the more reliable eye-witness as compared to adults.

Accordingly, there is no correlation between age and honesty and children are not more likely to
lie than adults in court.73 Besides, a child’s power of observation and recollection in the short
term are not inferior to those of adults, though they may recall different things and their memory
may perhaps fade faster.74 Moreover, it was also proven that the immature tendency to mix fact
and fantasy does not apply to children after about the age of six. 75

All these scientific researchers have only solidified the position taken in the case of Chao Chong
v PP76 which had stated that the perception of children often confusing ‘reality’ with ‘fantasy’ is
in fact untrue.

2.3 Sexual Offences

2.3.1 Malaysia’s Position
Under Malaysia’s law of evidence, the desirability of corroboration for sexual offences is not
required by law but as a matter of practice and prudence. This was clearly illustrated in the case
of Aziz bin Muhamad Din v PP77. Hence it would seem that it is almost impossible to convict an
accused person based on mere allegations of sexual intercourse without consent by a victim.

72
Spencer, J.R. & Flin, R.H. (1993). The Evidence of Children: The Law and the Psychology, 2nd ed. Blackstone
Press Limited.
73
Rozell. S. (1985). Are Children Competent Witnesses?: A Psychological Perspective. Wash ULQ, 63, 815-829;
Melton. G. B. (1981). Children's Competency to Testify. Law and Human Behaviour, 5, 73-82; Marin. B. (1979).
The Potential of Children as Eyewitness. Law and Human Behaviour, 3, 295-304.
74
Supra, n.72.
75
Rozell. S. (1985). Are Children Competent Witnesses?: A Psychological Perspective. Wash ULQ, 63, 815-829;
Melton. G. B. (1981).
76
Supra, n.24.
77
Supra, n.6.

13
In Chiu Nang Hong v PP78, the Court held that in a mandatory warning is required although
corroboration is not explicitly required as a matter of law in sexual cases. A judge ought to make
it clear that he has in his mind the risk of convicting on the uncorroborated evidence of the
prosecutrix.79 This stance was reaffirmed in the Federal Court case of Ah Mee v PP80. Similarly,
in the case of Dato’ Seri Anwar bin Ibrahim v PP81, the Court held that it would be unsafe to
convict on uncorroborated testimony unless for special reasons the testimony is of special
weight.

In Ng Kwee Piow v PP82, the Court decided that corroboration is also required as there can be no
cases where fabrication on behalf of a complainant is so easy and the refutation on the part of the
accused so difficult as an allegation of rape. Therefore, the complainant can change a consensual
sexual intercourse into an act of rape after she regrets her consent to the sexual act. Due to this
possibility, the Court decided that corroboration is crucial.

As such, corroboration for evidence by a sexual victim is essentially required as there may be a
possibility for the complainant to fabricate the alleged offence due to her emotions or remorseful
mind after intervals of reflections.

2.3.2 Position of Other Jurisdictions

In the UK, the corroboration for evidence from sexual complainants was initially required.
Nevertheless, this requirement was later repealed when s.33 of the Criminal Justice and Public
Order Act83 was introduced. One of the first few cases to use the amended provision was the case
of R v Easton84. This change was believed to be caused by the change of public perception
towards women involving in extra-marital sexual intercourse. Thus, courts do not necessarily
require corroboration in every evidence given by a sexual complainant.85 This is clearly different
to the position in Malaysia where corroboration for evidence by a sexual victim is required.

78
[1965] 1 MLJ 40.
79
Ibid.
80
[1967] 1 MLJ 220.
81
[2004] 3 MLJ 405.
82
[1960] MLJ 278.
83
Section 33 Criminal Justice and Public Order Act 1994.
84
[1995] 3 All ER 730.
85
Supra, n.72.

14
 86
Meanwhile the position in India is mentioned in s.114A of IEA. S.114A mentions on the
presumption as to the absence of consent in certain prosecutions for rape. It states that if an act of
sexual intercourse by the accused is proven and the issue is whether it was without the consent of
the woman alleged to have been raped and she states in her evidence before the Court that she
did not consent, the Court shall presume that she did not consent to it.87 However, the EA,
despite being in pari materia to the IEA, does not include such provision.

In Australia, there is no legal requirement for evidence for corroboration for evidence from
sexual complainants. In R v Longman88, the High Court of Australia held that sexual
complainants should not be regarded as a group of unreliable witnesses and therefore the
requirement for corroboration warnings in sexual offences is not required. However, the court
also decided that although the requirement for a corroboration warning is not compulsory, judges
retain discretion to give a corroboration warning where it is called for.

In Hong Kong, the jury must be warned about the danger of convicting on the uncorroborated
evidence of the complainant. This is because there may be a possibility for the witness to be
motivated by fantasy, neurosis, jealousy or spite. The witness might even have consented to the
sexual assault or intercourse but is also embarrassed to admit it.89 Another danger is said to be
derived from the fact that the complainant as the witness may cause a lot of sympathy that the
jury do not dispassionately analyze the accuracy of the evidence given by her. Thus, warning
should be given in all sexual cases.90 This is evident and held in several case laws such as R v
Henry & Manning.91

In Singapore, corroboration for evidence by sexual victims is no longer required. In Kwan Peng
Hong v PP92, the Court had made an observation that it is objectionable to argue that extreme
caution is required of a female sexual complainant merely because they are prone to fantasizing,
86
Section 114A, Indian Evidence Act 1872.
87
Section 114A, Indian Evidence Act 1872.
88
(1989) 168 CLR 79.
89
Andrew, B. & Mccoy, G. (1991). Criminal Evidence in Hong Kong. Butterworth.
90
Ibid.
91
[1968] 53 Cr App R 150.
92
[2000] 2 SLR(R) 824.

15
exaggeration and lies due to some sexual neurosis. Such a mentality is disingenuous, offensive,
and incongruous with the societal norm today which stresses on equality between man and
woman. Therefore, it is only when the defense is able to point out an evidential basis suggesting
that the evidence might be unreliable that corroboration is needed. Otherwise, mere suggestions
by counsel would not suffice.

16
3.0 THE ABOLISHMENT OF CORROBORATION WITHOUT REPLACEMENT
3.1 Comparison of the laws in Malaysia and of Other Jurisdictions
The question that we must ask ourselves is this, - “Is the law of corroboration still necessary?”.
Does the answer depend on the type of suspect witnesses that we have or should it be abolished
without concern of this matter?

3.1.1 Accomplice
In the first category of suspect witnesses, Malaysia has taken the position that an accomplice’s
evidence must be corroborated. The rationale behind this is to prevent any form of bias or
personal agenda. Yet the case of Anwar Ibrahim (No. 3) had also highlighted the injustice that
this burden would cause if the said accomplice was forced to participate in the offence and is
instead a victim. True enough, this would cause the use of corroboration to be a form of injustice
instead. This must be thoroughly considered as the law aims to uphold justice and not to impend
it.

As compared to the UK, the law on corroboration has already progressed – requiring only that
the corroborative warning be given when necessary and judges have the discretion to decide on
the strength and terms of it. India, though having an Act which is in pari materia with the
Malaysian EA, has a different approach whereby it is only a rule of practice to have
corroboration. Thus, evidence without corroboration is not unlawful and thus there is no absolute
rule for or against it. Meanwhile, Hong Kong, Australia and Singapore has abolished the need for
corroboration when it comes to accomplices.

3.1.2 Child Witness

Moving on, the second category of child witnesses has been treated as a more delicate category
in Malaysia. The law seems to suggest that children are unreliable witnesses and even when they
are competent, the value of it is deemed dubious and treated with caution. The SOACA which
was passed in 2017 is a partial progression for child witness evidence. Although it allows for
uncorroborated evidence from a child when it is an offence under the SOACA, the scope of it
and its applicability is limited.

17
The position of the UK has been to abolish its previous law on corroboration for child witnesses
alongside Hong Kong and Australia. Meanwhile India, though in pari materia, does not have
s.133A and thus refer to cases which have supported the stance that children need not have their
evidence corroborated if they can explain the events of the crime on their own. This position is
similarly taken by Singapore.

As such, it is time for the legislature to remove s.133A from our EA. Besides, it is suggested that
judges should take into consideration scientific studies rather than bound by precedents.

3.1.3 Sexual Offences

The law on corroboration for sexual offences in Malaysia by a victim is essentially required as
the belief is that that the complainant may fabricate the alleged offence as a result of her own
emotions or remorseful mind. In Muhamad Din v PP93, the Court had highlighted the risk of
evidences given by the victims of sexual offences. The learned judge opined that a sexual
complainant may be motivated to lie following a number of reasons. For example, the
complainant may be in denial to the fact that she had consented to the sexual intercourse.
Another example given in that case is that she may also regret her act and want to save her
honour or she may only want to punish an errant boyfriend. This train of thoughts are however,
biased and unfounded.

Thankfully, the position of the UK is more favourable to victims as they had abolished their
previous position of wanting corroboration for evidence by a sexual victim. This is also the case
in Australia where the requirement for corroboration warning in sexual offences is abolished.
India on the other hand has s.114A in their IEA which highlights the presumption of an absence
of consent. Hong Kong though not strictly following this mentality, has unfortunately the same
opinion as that of Malaysia – that the complainant may be personally motivated when giving
evidence on sexual offences. Lastly, Singapore has already abolished the need for corroboration
when dealing with sexual victims and thus, has moved a step ahead of us.

93
Supra, n.6.

18
It is clear that despite starting off on the same footing as a majority of these countries had
referred to the common law approach when dealing with corroboration, each country has made
their own progress and a vast majority of them have abolished the need for corroboration – if not
all three types of suspect witnesses then at least two.

Interestingly, the said countries do not have a replacement even after the abolishment for the
need of corroboration. It is thus possible to abolish the need for corroboration and it is about high
time Malaysia abolishes this need.

3.2 The Lord Carloway Report94

One of the recommendations by the Lord Carloway Report was to abolish the need for
corroboration. His words were that:

“The review is in no doubt that the requirement of corroboration should be

entirely abolished for all categories of crime. … It is an archaic rule that has no
place in a modern legal system where judges and juries should be free to consider
all relevant evidence and answer the single question of whether they are satisfied,
beyond reasonable doubt, the accused committed the offence libelled.”

This was deemed to be a highly controversial move as this ultimately provides for protection
upon the accused. Additionally, his views were not shared among the thirty-three judges present
with him.

The 400-page review was necessitated by the UK Supreme Court ruling in the case of Peter
Cadder and consequently, Lord Carloway took to reviewing the Scottish criminal justice system
with the brief of deciding whether its methods and purposes was still relevant in the 21st century.
The Cadder judgment was widely perceived as tilting the system in favour of the suspect and the
issue on the necessity of corroboration was raised.

94
Supra, n. 14.

19
One of the reasons behind the need to abolish corroboration stated in the Lord Carloway report
was the suitability in the 21st century. Unlike the olden days of capital punishment, a wrong
verdict was a matter of life and death and thus the need was to have a safeguard against
miscarriages of justice. However, with the existence of an appeal system as well as technological
advances such as close-circuit television evidence and DNA evidence, corroboration itself seems
to be a decorative if not, an unnecessary burden.

The opposition for the abolishment was based on the fact that it would undermine the confidence
in the legal system. One of the primary concerns was the impact it would have on sexual
offences. Yet, it has also been statistically proven that 67% of 141 sexual offences in 2010 would
have succeeded and qualified for a conviction had they first been able to be brought to court.95

In most cases of sexual nature – ranging from rape to domestic abuse, there are no witnesses and
it is usually an issue of ‘he says she says’. It is times like these that the need for corroboration
places an unnecessarily heavy burden upon the victim to prove. Consequently, this prevents
victims from being able to seek justice.

Then again, it is understood as well that there is also a miscarriage of justice should an innocent
person be convicted and the risk increases if the decision rests on a single piece of evidence or
the testimony of only one person.

95
Supra n. 6.

20
4.0 CONCLUSION
It is time for Malaysia to accept that there is no longer a strict necessity for corroboration. The
traditional and discriminatory belief that victims have a personal agenda which justifies the need
for corroboration is no longer supported. A belief as such only hinders the road to seek justice.

It is an unfounded bias that sexual offence victims will more often than not, fabricate a story to
prosecute the accused as a result of their incapability of controlling their own emotions or have a
personal agenda of their own. By removing the need for corroboration, this places sexual crimes
on par with other crimes which would make sexual offences of equal level. That is not to say that
the latter is any less grave, but the need is to remove the high threshold placed upon sexual
victims. There is a ring of truth as to false reports but that is no different from other crimes.
Research has actually shown that rape victims make false allegations in 2 to 8 percent of claims
– the same rate as false reports of other crimes.96 As such, is there really a need to place such a
high burden upon victims?

The same goes for a child witness as they share an equally unfavourable bias that sexual offence
victims face. In fact, the studies highlighted earlier have shown that children witnesses are more
reliable than not. Thus, there should no longer be a reason to doubt them and s.133A of the EA
should be removed.

Meanwhile, the position for corroboration when it comes to accomplices should be maintained.
However, this is subject to a warning that must be administered as there is always a danger of the
accomplice’s testimony to be influenced by other factors. The landmark case of Baskerville97 is
an ideal position.

Nevertheless, we must ask ourselves the question of whether corroboration is truly needed. One
of the main points that has been clearly highlighted by the Carloway report is this – is the quality
of the evidence more important, or the quantity of the evidence? Let us not forget to take into

96
(2015) ‘Corroboration rule must be abolished’. The Nation. Retrieved November 11, 2017, from
http://mwnation.com/corroboration-rule-must-be-abolished/.
97
Supra, n.3

21
consideration the advancement of technology which have made it possible for DNA evidence,
finger-prints and even close-circuit television evidence.

If the other countries can abolish the need for corroboration and yet make it a success, who is to
say that Malaysia cannot do the same? Granted, there must be some adjustments made in respect
to the other provisions and statutes already in existence yet a move as such, would be celebrated
though not without a certain amount of criticism.

Nevertheless, it is hoped upon that Malaysia will take a move forward and abolish the need for
corroboration without a replacement but with adjustments so as to ensure the maximum
possibility of carrying out justice.

22
5.0 BIBLIOGRAPHY
5.1 Statutes
Malaysian
Anti-Corruption Commission Act 2009 (Act 694)
Evidence Act 1950 (Act 56)
Oaths and Affirmation Act 1949 (Act 194)
Sexual Offences Against Children Act 2017 (Act 792)

Other Jurisdictions
Australian Evidence Act 1906
Hong Kong Criminal Procedure Ordinance 1994 (Cap. 221)
Hong Kong Evidence Ordinance (Cap. 8)
Indian Evidence Act 1872
Singapore Evidence (Amendment) Act 1976
United Kingdom Criminal Justice and Public Order Act 1994

5.2 Cases
Malaysian
Ah Mee v PP [1967] 1 MLJ 220.
Awang Ngah v PP [1958] MLJ 168.
Aziz bin Muhamad Din v PP [1996] 5 MLJ 473.
Brakabaran v PP [1973] AC 296.
Chao Chong v PP [1960] 1 MLJ 238.
Chiu Nang Hong v PP[1965] 1 MLJ 40.
Chung Tain Kong @ Chung Fook Chung v PP [2009] 5 MLJ 1
Dato’ Mokhtar bin Hashim v PP [1983] 2 MLJ 232.
Dato’ Seri Anwar bin Ibrahim v PP. [2004] 3 MLJ 405.
Hari Bahadur Ghale v PP [2011] 5 MLJ 785.
Jamaludin bin Md Kassim v PP [2010] 3 MLJ 221.
Lim Guan Eng v PP [1998] 3 MLJ 14.
Ng Kok Lian v PP[1983] 2 ML 379.

23
Ng Kwee Piow v PP[1960] MLJ 278.
PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1.
PP v Mohd Azam bin Basiron [2004] 2 MLJ 556.
PP v Nomezam Apandy bin Abu Hassan (No. 2) [2008] 1 MLJ 68.
Rex v Lim Yam Hong 14 SSLR 152.
Sidek bin Ludan v PP [1995] 3 MLJ 178.
Tajuddin bin Sallah v PP [2008] 1 MLJ 397.
Tay Choon Nam & Ors v R [1949] MLJ 157
Teja Singh & Mohamed Nasir v PP [1950] 1 MLJ 71.

Other Jurisdictions
AG of Hong Kong v Wong Muk Ping [1987] AC 501.
Chen Jian Wei v PP [2002] SGHC 66.
Davies v DPP [1954] 1 All ER 507.
DPP v Kilbourne [1973] 1 All ER 440.
In State of U.P. v. Krishna Master & Ors [2010] AIR 3071.
Jagannath v R[1942] AIR 221 Oudh.
Kahn v R [1971] W. A. R. 44.
Kwan Peng Hong v PP [2000] 2 SLR(R) 824.
Kwang Boon Keong Peter v PP [1998] 2 SLR 392.
Lee Kwang Peng v PP [1997] 3 SLR 278; B v PP [2002] SGHC 290.
Nivrutti Pandrurang Kokate & ors v The State of Maharashtra [2008] AIR 1460.
R v Baskerville [1916] 2 K.B. 658.
R v Easton [1995] 1 WLR 1348.
R v Henry & Manning. [1968] 53 Cr App R 150.
R v Longman [1989] 168 CLR 79.
R v Whitehead [1929] 1 KB 99
Tan Yook Suan v R [1954] MLJ 116.
Zavekas [1990] 2 QB 355.

24
5.3 Reports
Carloway. (2011, November 17). Lord Carloway Review: Report and Recommendations(Rep.).
Retrieved November 19, 2017, from Scottish Government website:
http://www.gov.scot/resource/Doc/925/0122808.pdf
5.4 Journals
Bakar, A. (1992). Child Abuse and The Law of Evidence. Malayan Law Journal, 1, lxv
Devies, G., Tarrant, A., & Flin, R. (1989). Close encounters of the witness kind. British Journal
of Psychology, 80-415.
Mennie, S. (2013). Rights around corroboration- Survey of the human rights issues raised by the
proposed abolition of the corroboration rule. The Journal of the Law Society of Scotland.
Retrieved November 11, 2017, from http://www.journalonline.co.uk/Magazine/58-
2/1012196.aspx
Rozell. S. (1985). Are Children Competent Witnesses?: A Psychological Perspective. Wash
ULQ, 63, 815-829
Shair Mohamed, M.A. (2013) The corroboration controversy created by Section 157 of the
Evidence Act 1950. Malayan Law Journal, 6, cxx.

5.5 Books
Spencer, J.R. & Flin, R.H. (1993). The Evidence of Children: The Law and the Psychology, 2nd
ed. Blackstone Press Limited.
Andrew, B. & Mccoy, G. (1991). Criminal Evidence in Hong Kong. Butterworth.

5.6 Website
(2011) Plans for change in law. The Herald. Retrieved November 8, 2017, from
https://www.pressreader.com/uk/the-herald/20111118/282316791839915 . Retrieved on 8
November 2017.
(2015) ‘Corroboration rule must be abolished’. The Nation. Retrieved November 11, 2017, from
http://mwnation.com/corroboration-rule-must-be-abolished/.
(1990) ‘The Evidence of Children and Other Vulnerable Witnesses’. The Law Reform
Commission of Western Australia, 6-72. Retrieved November 5, 2017, from
http://www.lrc.justice.wa.gov.au/_files/P87-DP.pdf.

25
(2017) The law and sexual offences against adults in Australia. Australian Government.
Retrieved November 19, 2017, https://aifs.gov.au/publications/law-and-sexual-offences-
against-adults-australia/corroboration#back12

5.7 Others
Marin. B. (1979). The Potential of Children as Eyewitness. Law and Human Behaviour, 3, 295-
304.
Melton. G. B. (1981). Children's Competency to Testify. Law and Human Behaviour, 5, 73-82.

26
6.0 APPENDIX
Comparison on The Rule of Corroboration in Malaysia with Other Jurisdictions and
Recommendation for Change in Malaysia
Accomplice Child Witness Sexual Complainant
Malaysia Corroboration required Corroboration required Corroboration required
United Corroboration abolished Corroboration abolished Corroboration abolished
Kingdom
India Corroboration required Corroboration required Corroboration required
Australia  Corroboration  Corroboration  Corroboration
abolished abolished abolished
 Judges do not  Judges do not  Judges do not
have to issue have to issue have to issue
warning warning warning, but
may do so where
it is called for
Hong Kong Corroboration abolished Corroboration abolished Must give warning to
the jury about the
danger of convicting on
the uncorroborated
evidence of the
complainant.
Singapore Corroboration abolished. Corroboration required Corroboration not
Court bound to treat the depends on the maturity required
accomplice evidence and conduct of a child
with caution. witness
Recommend Corroboration  S.133A EA Corroboration for sexual
-ation maintained, warning should be offences in Malaysia
must be administered. abolished should be abolished
 Judges should
take into
scientific studies
in deciding a
case, instead of
bound by
precedents

27