Discuss section 32(1)(b) and the case of Syarikat Jengka Sdn Bhd v Abdul Rashid
[1981] 1 MLJ 201
SLIDE 4
Hearsay rule: hearsay evidence cannot be admitted as evidence in court.
PP v Subramaniam [1956] MLJ 220 - Hearsay evidence means an out-of-court statement
made by someone who is not called as a witness and the purpose is to prove the truth of the
statement.
S.32(1)(b) acts as one of the exceptions to the hearsay rule. S.32(1)(b) provides that a
statement, either written or verbal, made by a person who is dead, incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or
expense which under the circumstances of the case appears to the court
unreasonable (has lost), can still be admitted as evidence if such statement was
1. made “in the ordinary course of business; and
2. particularly, when it consists of either one of the following conditions:
a. any entry or memorandum made by him in books kept in the ordinary course
of business or in the discharge of professional duty; or
b. an acknowledgment written or signed by him of the receipt of money, goods,
securities or property of any kind; or
c. a document used in commerce, written or signed by him, or
d. the date of a letter or other document usually dated, written or signed by him.
Rationale: Usually in business dealing or professional setting, people will keep proper record
and usually the record are true.
SLIDE 5
We may refer to some illustrations under S.32 of Evidence Act to have a better
understanding on this.
Illustration (b)
The question is as to the date of A's birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business,
stating that on a given day he attended A 's mother and delivered her of a son, is
relevant fact.
Illustration (c)
The question is whether A was in Kuala Lumpur on a given day.
A statement in the diary of a deceased advocate regularly kept in the course of
business that on a given day the advocate attended A at a place mentioned in Kuala
Lumpur for the purpose of conferring with him upon specified business is a relevant
fact.
Illustration (j)
The question is what was the price of shares on a certain day in a particular market.
A statement of the price made by a deceased broker in the ordinary course of his
business is a relevant fact.
SLIDE 6
Syarikat Jengka Sdn Bhd v Abdul Rashid [1981] 1 MLJ 201
Fact:
- Respondent is a timber logger and he has contracted with the appellant, a logging
company to cut down the trees in part of a forest.
- Later, the respondent claimed that the appellant had removed and converted to its
use 700 tons of timber belonging to the respondent.
- The respondent sued the appellant for compensation.
- The appellant denied the allegation and made a counterclaim against the respondent
for the amount of royalty and Forest Department closing fee.
- The trial court gave judgment in favour of the respondent and hence this appeal.
There are several questions being examined by the court in this appeal.
Relevant Question: Whether the respondent had logged 700 tons of timber and kept them at
the log yard prior to the stoppage work on January 15, 1974?
SLIDE 7
Obviously, the respondent alleged that he did log 700 tons of timber and kept them at
log yard.
To prove his statement, he has produced a document which purporting to be the
record of timber extracted from the scheme written by his son who had since dead.
This record has been heavily relied by the trial court to make a finding against the
appellant.
FC:
- Held that this record is inadmissible as there is no evidence to show that such
document is made in the ordinary course of business of the respondent or part of an
entry in a memorandum or book kept in the ordinary course of his business. It is not
proved that the requirement of S.32(b) is satisfied.
- Although it is true that the trial objection as the admissibility of such document was
raised on an erroneous ground, and it was not taken at an appropriate time, all these
factors do not affect the inadmissibility of this document.
Conclusion:
- The document is not admissible, unreliable and incomprehensible.
- Since no further evidence has been adduced, it was decided that the respondent did
not have 700 tons of timber logs kept at the log yards prior to the stoppage of work
as claimed by him.
[Sim Tiew Bee v PP] [1973] 2 MLJ 200
Facts: The accused was charged for importing uncustomed goods. At the trial, the PP relied
on inter alia the ship’s manifest (a document listing a ship's contents, cargo, passengers,
and crew, for the use of customs officers.) to prove that.
Held: As the ship manifest was a statement made by a person “in the course of the
business” of the shipping company it could be admitted under s32(1)(b) if it was proved that
the maker was already dead. However, in this case, since it was not proven that the maker
was dead, the manifest is considered hearsay and not admissible.
