Beyond The Seas: A Short Note On How Technology May Affect Expectations Under Section 73A of the Evidence Act 1950

Section 73A of the Evidence Act 1950 (“EA”) is an often-cited section that operates as an exception to the hearsay rule. In short, it is relied upon to admit a document during trial where the maker cannot be called.

In this article, I consider two of the aspects of the section as found in the proviso of subsection (1)(b).

These two aspects are, as found in the said proviso, stipulate that the maker of the document need not be called as a witness if:

(1)   he is “beyond the seas and it is not reasonably practicable to secure his attendance” (“Consideration 1”); or

(2)   “if all reasonable efforts to find him have been made without success” (“Consideration 2”).

Clearly the proviso was drafted widely and intended to adapt to the times in which it operates. Even then, the Courts have been vigilant to prevent abuse of this provision by parties seeking to avoid calling a witness. For example, in reference to Consideration 1, in the case of Allied Bank (Malaysia) Bhd v. Yau Jiok Hua the Court clarified that simply being overseas would not automatically preclude a witness from being summoned. One would have to consider the value of their evidence while considering the difficulties in securing their attendance:

“The statement of a person who is outside the jurisdiction of the Court would fall under the classification of a person whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable (see Ng Yin Kwok and Ors v. PP [1989] 3 MLJ 166). However, it would be dangerous to subscribe to the doctrine that mere residence out of the jurisdiction is adequate to dispense with the personal attendance of a witness and to allow his statement to be tendered in evidence (see Mohamed Ghouse v. R [1910] 11 SSLR 31; Kadappa v. Thirupathi AIR [1925] M 444). Sufficient evidence must be adduced to show that it would involve such delay and expense as would seem unreasonable to produce the maker as a witness (see Sim Tiew Bee v. PP[1973] 1 LNS 138; [1973] 2 MLJ 200). The question of the reasonableness of the amount of delay or expense should be considered with reference to the circumstances of each case. It is essentially a matter for the Court to determine whether the attendance of a witness cannot be procured without any unnecessary amount of delay and expense (see Jati Mali v. Emperor [1929] 31 Cr LJ 857; Annavi Muthiriyan v. Emperor [1915] 16 Cr LJ 294). In R v. Case [1991] Crim LR 192 where on a trial for theft from a tourist, the judge admitted in evidence the out of Court statements made by the tourist and his companion, it was held that the judge had wrongly admitted the statements since there was no evidence to show that they were outside England or that it was not practicable to call them except at high expense and delay. In Borneo Co (M) Sdn Bhd v. Penang Port Commission[1975] 1 LNS 5; [1975] 2 MLJ 204 it was held that it would be unreasonable to expect a witness to be brought from England to give merely formal evidence when the expenses of bringing him down would exceed the subject matter of the claim.”

More recently, the Seremban Sessions Court in Shah Sikander & Yang Lain v. Osman Junaedi & Yang Lain [2023] 5 LNS 77 considered an application under section 73A and took into account the fact that online testimony had been given by other witnesses who resided overseas.

The question that arises from this is whether the availability of online hearings in Malaysia automatically presumes that a witness can be secured disregarding their geographic location and, by implication, rendering the element of them being “beyond the seas” irrelevant.

Of course, there are other factors to consider even in online hearings i.e. internet connectivity, the cost of a supervising solicitor etc. However, all of these could be captured under the second half of Consideration 1 - it is not reasonably practicable to secure his attendance.

Looking now at Consideration 2, reference is made to the High Court case of Pacific & Orient Insurance Co Bhd v. Mohammad Hafizi Bahari & Anor [2023] 6 CLJ 932. In that case, the party seeking to rely on section 73A failed to provide evidence of taking reasonable efforts to locate the maker of a document. In making such a finding, the learned Judge stated:

“Rahimy did not produce any evidence that he conducted NRIC, JPJ, EPF, SOCSO, or Telco searches. There is also no evidence of any search done with the Immigration Department as to whether Thanabalan is overseas, and with the National Registration Department as to whether Thanabalan is dead or alive; or in this modern age, with Facebook and other social platform searches.”

The Judge’s final line in the quoted paragraph seems to suggest that one of the anticipated and acceptable methods of locating an individual for the purposes of Consideration 2 would be through the use of social media platforms.

Accepting that position raises a host of questions, some of which may be:

(1)   Which online platforms are recognised as being acceptable to the Court for this purpose?;

(2)   Would a social media search which returns a result negate the need for formal searches in government records based departments or would it merely operate as an alternative?;

(3)   Could a third party post (such as a friend) referencing the individual

(4)   Could a social media post referencing an event substitute a need for production of a formal document e.g. Social media posts referencing condolences for the death of a person as opposed to a death certificate.

It should be noted that the above mentioned queries operate on the presumption that a positive finding of an individual’s whereabouts are made on a social media platform as it would be quite unacceptable to argue that the absence of information on a social media platform would be an indicator of any fact.   

In conclusion, balancing technological strides with legal fundamentals under section 73A, the judiciary must navigate social media's scope, credibility, and status as documentation substitute as well as the implication of online hearings. This interplay may define Section 73A's future applications in Malaysia's evolving legal sphere.