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Soalan: How do you differentiate between (interested witnesses) and (trap witness)? Discuss.

What is witness?
-A witness is a person who gives testimony or evidence before an adjudicating body like court
or tribunal.

Who is a competent witness?


-Section 118 of the Evidence Act 1950 sets out the principal rule regarding the competency of
witness. Under this provision, all persons are competent, provided he satisfies the test of being
able to understand the questions which are put to him, and he is in a position to give rational
answers to those questions. Those who will not be competent are such persons whom the court
considers incapable of understanding questions or giving rationale answers to them on account
of tender years, extreme old age, disease of mind or body or for any other cause of the same
kind. Even a lunatic is not declared to be incompetent unless his lunacy prevents him from
understanding or answering questions.

-Even a child is competent to testify if he can understand the questions put to him and give
rationale answers thereto. Competency is not tested on the basis of age of a person but only on
the basis of capacity to understand. In practice, it is not unusual to receive the testimony of
children of eight or nine years old when they appear to possess sufficient understanding. In R
v Hayes, a child is considered competent to take the oath if she has sufficient appreciation of
the solemnity of the occasion and the added responsibility to tell the truth which involved in
taking the oath over and above the duty to tell the truth which is an ordinary duty of normal
social conduct.

A witness may be competent to give evidence but he may not be compelled to give evidence,
on the grounds of privilege.

Compellability of witness
-Ghouse bin Haji Kader Mustan v R
If a witness is competent and has been summoned, he is bound to give evidence and to answer
all relevant questions.

-ECM Libra Investment Bank Berhad v Foo Ai Meng & Ors


The test to compel a witness is a strict test. The witnesses who can be compelled are those who
have seen the facts or who know the facts and this will usually relate to reliability and rarely to
quantum. Such strictures may not be applicable if the witness voluntarily gives evidence on the
issue of liability or quantum. A lawyer has a right to issue a subpoena and sustain the same
provided it is not oppressive or an abuse of process of court and is relevant and material to the
case and is not frivolous or scandalous.
Who is interested witness?
-Any witness who had an interest in the matter. The Law of Crimes by Ratanlal and Dhirajlal
defined the meaning of interested witness that the person concerned has some direct interest in
the result of the litigation such as interest in decree in a civil case or in seeing that the accused
is punished.

- Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1


The appellant was charged under s 302 of the Penal Code for the murder of Sujitha on 13
August 2000. In this case, the deceased and the appellant were lovers staying together in a
rented room in Petaling Jaya. A day before the incident, deceased visited her family in Ipoh
with appellant. According to PW5 (deceased sister), a fight occurred between deceased and
appellant at night because appellant complained about deceased behaviour to her mother.
Appellant allegedly said saya akan ajar awak di sana. Under cross-examination PW5
admitted that she hated the appellant. The Court stated that she was an interested witness with
a grudge against the appellant and had a purpose of her own to serve. Therefore her evidence
must be treated with caution and requires corroboration.

-Rozmi bin Yusof v Public Prosecutor [2013] 5 MLJ 66


The appellant ('accused') was convicted and sentenced to death by the High Court for
murdering a person ('the deceased') during a fight. In his instant appeal against conviction and
sentence, the accused said his conviction was largely based on the evidence of the
deceased's brother, SP8, who not only was an interested witness but had himself
participated in the fight between the accused and the deceased. The Court stated that SP8s
evidence ought to be treated with caution. The failure by the trial judge to follow the directions
set out in Magendran's case in respect of caution and corroboration attracts art 5(1) of the
Federal Constitution to order an acquittal as the evidence to convict was based solely on PW8's
evidence which is not safe and according to law. The court has no jurisdiction to deprive the
life and liberty of the subject unless the decision is made according to law.
Article 5(1): No person shall be deprived of his life or personal liberty save in accordance with
law.

Whether evidence of close relatives/ parents can be accepted/ tainted due to


classification as interested witness?
-Liow Siow Long v Public Prosecutor [1970] 1 MLJ 40
This was an appeal against the conviction of the appellant on a charge of causing death by
reckless driving under section 34A of the Road Traffic Ordinance, 1958. The appellant was
sentenced to 6 months imprisonment and also disqualified from holding or obtaining a driving
licence for 5 years. It was submitted on appeal that there was no evidence of reckless driving
by the appellant. In this case, PWIs evidence had been attacked on the sole ground that he is
an interested witness as he was a brother of the two deceased persons. The Court stated that it
is difficult to accept that suggestion that if a witness is shown to be a relation of the deceased
his evidence is tainted. Testimony of close relations is not tainted if it is otherwise reliable
in the sense that the witnesses are competent witnesses who were at the scene of the
occurrence and could have seen what had happened. But if it is proved that they are not
entirely disinterested witnesses, e.g. they are either partisans of the complainant or are in any
way inimical to the accused, then their testimony is tainted and requires corroboration if to be
acted upon. In this case, the Court relied on PW1 evidence as he is not harmful to the appellant.

-State Of Rajasthan v Smt. Kalki & Anr 1981 SCR (3) 504
Respondent Kalki and her husband Amara (along with four other co-accused) were charged,
convicted under section 302 I.P.C. and sentenced to life imprisonment. In appeal, the High
Court of Rajasthan acquitted all of them on the grounds that PW1, the widow of the deceased
is a highly interested witness, as she is the wife of the deceased and there was an enmity
between the deceased and the accused on account of the dispute about the agricultural land"
and there are material discrepancies in her statement. Badarul Islam J stated that it is true that
she is the wife of the deceased, but she cannot be called an 'interested' witness. She is related
to the deceased. 'Related' is not equivalent to 'interested'. Witness who is a natural one and
is the only possible eye witness in the circumstances of a case cannot be said to be "interested".
In the instant case, PW1 had no interest in protecting the real culprit, and falsely implicating
the respondents.

-Section 120 of Evidence Act mentions that in all civil or criminal proceedings, the husband
or wife of the parties shall be a competent witness. Even though they are a competent witness,
they may not be compelled to give evidence in certain circumstances.

-This is due to Section 122 of the Evidence Act which mentions that the communication
between married persons to a certain extent are protected from disclosure. This is based on
public policy as the admission of such testimony may disturb the peace of families and destroy
the feeling of mutual confidence, among married couples.

-The communication as mentioned in the provision should have been made during the
continuance of the marriage, not before or after the termination of the marriage. But in the case
of communication made during marriage, privilege will continue even after the termination of
the marriage.

-A third person is not prevented from proving the communication between married persons
(producing the letter written by the husband to his wife), but there is no compulsion on, or
permission to, the wife or husband to disclose any communication.

-In the case of Lim Lye Hock v PP, it was said that if the wife has seen the husband committing
the offence or returning home with blood stains on his clothes, in a proceeding against her
husband she is both competent and compellable. However, if the husband has confessed to the
wife that he has committed a crime she is not compellable.
What is trap witness?
-In criminal proceeding, trap witness can be viewed in two context:
a) Where the authority laid a trap to the accused through a potential witness or
b) When the witness is one that is in doubt whether to cooperate with the prosecution or
the accused

-The first type is the most common type of trap witness. The trap is usually planned by the
police or enforcement officers where a witness who might be known to the accused was
arranged to meet the accused and trap him to commit the offence. In the case of Attan bin
Abdul Gani v PP, Sharma J held that a trap witness is:

..certainly an interested witness in the sense that he is interested to see that the trap
laid by him succeeded. He could at least be equated with a partisan witness and it
would not be admissible to rely upon his evidence without corroboration. His
evidence is not a tainted one, it would only make a difference in the degree of
corroboration required rather than the necessity for it.

-In the case of Ravindran a/l Kandasamy v PP, the prosecution's case was based on the
complaint of a convicted drug dependant (the complainant), who was released from a drug
rehabilitation centre and was required to report at a police station within 72 hours of his release.
The accused, a police lance corporal had asked the complainant a lot of questions and
proceeded to provide assistance to the complainant for cash or such items as a computer or a
hand phone with a camera. The complainant had made a report to ACA and pursuant to that
complaint, an ACA officer posing as the complainant's business partner was introduced to the
accused and trapped him with bribe money. In this case, there was insufficient corroborative
documentary evidence which corroborated the evidence of the complainant and the ACA
officer and thus, the accused's appeal was not allowed.

-The second type of trap witness is one where the witness is in doubt whether to cooperate with
the prosecution or the accused. For example, a child whose father was charged for an offence
committed against the mother may be invited to be the prosecution's witness. The child is
certainly in a trap position whether to give evidence in favour of his mother or his father. In an
Indian case of Subhash Chandran Panda v State of Orissa, the court held that an employee
of the accused who was present at the crime scene but did not participate in the commission of
the offence could not have the requisite mens rea and thus could not be termed as an accomplice
when he gave evidence on behalf of the prosecution. He may however be termed a trap witness
because he is clearly in a trap position when he gives evidence against his employer.

-Corroboration of the testimony of a trap witness is no doubt desirable and it is not safe to
convict an accused in the absence of that corroboration as was held in the case of Mohamed
Mokhtar V PP. The Court in Mohamed Taufik v PP held that where there is no corroboration,
the trial judge should warn himself of the danger of acting on the uncorroborated evidence of
such a witness.
-Public Prosecutor v Foong Chee Cheong
In this case, the accused was charged for extortion.
PW1 and PW2 arrived in his van at the canteen of the Methodist Girls' School in Kuala Lumpur
in order to deliver sweets and biscuits to the canteen keeper. After they had taken the sweets
into the canteen and while the goods were being checked, the accused and another male Chinese
arrived there. The Accused came up to the door of the canteen with a stone in his hand, while
the other remained outside and sat at a table. The accused then demanded protection money
from P.W.1.
P.W.1 said that he had no money, and pleaded with the accused to let him go. P.W.1 and his
son were allowed to go away, get money and return to the canteen by 1.30 p.m., leaving P.W.2
with the accused. The accused told P.W.1 that if he did not return by 1.30 p.m. with the money
all of them would be in trouble.
P.W.1 went with his son to the High Street Police Station where he reported the matter to Police
Inspector Johari bin Haji Abdul Rahman (P.W.4). P.W.4, took a $10 note from P.W.1, put his
signature on it and gave it back to P.W.1 with the instruction that he was to hand it over to the
accused who had demanded protection money. He also instructed detective police constable
Anthony Victor (P.W.3) and police constable Zakaria, both of whom were in civilian clothes,
to accompany P.W.1 in his van to the school canteen. On arrival at the school canteen, P.W.1
got down from his van with the two policemen watching him from inside the van. The accused
approached P.W.1 who handed the signed $10 note to him. Immediately after that, the two
policemen rushed out of the van and arrested the accused. They then took the accused and the
$10 note to the police station. P.W.1 also went to the police station and then lodged a formal
report which was recorded by P.W.4.
In this case, PW 1 was a trap witness.

Difference between interested witness and trap witness


1. Interested witness is witness who had an interest in the matter while trap witness is a
witness which is used to trap the accused in a police trap.

2. Background of the witness: Interested witness has relationship with the


accused/plaintiff while the trap witness is someone who is paid to trap the witness.

3. Function of the witness: Interested witnesses function is to take sides on the party that
called him in order to gain benefit, while trap witnesses function is to help the police
in catching the accused red-handed.

4. Probative value of witness: The probative value for trap witness is higher than that of
interested witness this is because the trap witness is a third party who is someone that
has no relationship with the accused, thus there is no personal interest in the matter