Competency of a witness means a
person who is legally capable of being a witness to testify in court. According
to Section
118 of Evidence Act 1950, all person shall be competent to testify if
he or she can understand the question put to him and give rational answer to
the question. Unless he or she could not understand the question put forward to
him or her due to the tender years, extreme old age, disease or any sickness. Nevertheless,
under the explanation of Section 118, it provided that a mentally disordered
person or lunatic person can testify in court if he understand the question put
to him and can give a rational answer to the question. The sole test of
competence under this section is the intellectual capacity in other words, intellectual
capacity test1.

            There are no precise law to the
court that on how to measure the competency or the level of intelligence of a
child witness so that he can testify in court. The law only described “tender
age”. There are no specific minimum or maximum age limit set neither for tender
age nor extreme old age. It depends solely on the facts of the case. Competency
under Section 118 is not tested on the basis of age of a person but only on the
basis of his capacity to understand2. For example, even a
person reached the age of majority doesn’t means that he reached the tender age
which legally capable to testify in court. Whether a child witness reached the
tender age to understand the question put forward to the child is to be
determined by the court. The court will look into the background of the child
and determine whether the child understands the nature or consequences of the answer
given by him. Whether a child can be qualified to testify in court can be
determined by the judge on whether he can communicate in daily life, whether he
can distinguish true from falsify or understand his obligation to tell the
court the truth.

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            In the case of Chao Chong & Ors v Public Prosecutor3, the court ruled that the
judge will put less weight on the evidence taken on affirmation as the child
witness has a danger that he or she cannot differentiate between reality and
fantasy. Therefore, the court required corroborated evidence from the child
witness.  

            Similarly, under Section
133A of EA, this section talks about the evidence of child of tender
years. This section should be read together with section 118 as section 118
talks about the person who may testify included a child at the tender years. Under
Section 133A, a child of tender years nay called as a witness to give sworn or
unsworn evidence. Unsworn evidence may be admissible by court if the court in
the opinion that such child possessed sufficient intelligence and understand
the duty to speak the truth but it subject to such unsworn evidence must be
corroborated by material evidence, then the accused can only be convicted.

            Generally speaking, after the court
determined that a child witness is a competent witness, the court will proceed
to determine whether the child witness is in a position to give sworn or
unsworn evidence4.

            A sworn evidence means that oral
evidence given by a witness with oaths or affirmation on the other hands,
unsworn evidence means that statement made by the witness after a caution given
by the court to tell nothing but only the truth. Whether to give sworn or
unsworn evidence, it is solely based on the opinion of the court that’s varied based
on different cases. Sworn evidence will only be given by the child who
understand the nature of oath. Conversely, if the court satisfied that such
child witness have sufficient intelligence but doesn’t understand the nature
and consequences of taking oath, the court may order to give unsworn statement
in court but given less consideration compared to sworn statement. In addition,
according to proviso of Section 133A, the unsworn statement must be supported
by corroborated evidence in order to convict the accused.

            In the case of Sidek bin Ludan v PP5, the trial court ruled
that a preliminary examination must be held in order for the court to determine
whether the child witness to give sworn or unsworn statement by analysing whether
they understood the nature of oaths administered by them. Such preliminary examination
of a child witness is required under s 133A of EA. The child can give sworn
statement if the court satisfied that the child understand the nature and moral
obligation of an oath and the responsibility to tell the truth. In the case of Yusaini Mat Adam v PP6, it was held that since
the court doesn’t follow the requirement to undergo the preliminary examination
as required under s 133A, the conviction of the accused was be set aside.

            In the case of Mohammad bin Abdul Kadir v Public Prosecutor7, the judge in the opinion
that while conducting the preliminary inquiry on the competency of a witness to
give sworn or unsworn statement, the child should be firstly be asked on few
simple questions then gradually increase the difficulties of the question to be
asked to the child. Then if the court satisfied that the child had the sufficient
intelligence to give evidence, then the court should showed him the prescribed form
of oath and asked the child to read and asked whether the child witness understand
the nature and consequences of the oath. If the answer is positive, then the
court should record the evidence given by him was of the nature of sworn
evidence.

            Therefore, in short, to admit a
child witness evidence, the court must be ascertain whether the child is
competent to give evidence in court by applying intellectual capacity test. Then,
the court will by way of preliminary inquiry to determine whether the child
witness should give sworn or unsworn evidence. Even though unsworn evidence
carry less weight, it still be admissible by the court if it corroborated with
other material evidence.

            Next, under Section 17 of Sexual Offences Against
Children Act 2017(SOACA), it talks about the presumption as to the
capacity of a child witness. This section presumed that a child witness is
competent to give evidence unless the court thinks otherwise. This was applied in
any proceedings against any person relating to any offence under the act or any
offences specified in the Schedule. Unlike with Section 118 of EA, a
child witness to be testified in court must fulfilled to the court on the competency
by applying intellectual capacity test and then undergo a preliminary inquiry
by the court. Section 17 of SOACA are more lenient as it presumed a child
witness to be competent depending on the opinion of court but not by way of
test. Such section under SOACA can be considered to protect the child witness
so that they can give evidence in the court as long as it doesn’t prejudicial
to the accused.

1 Sidek
bin Luban v PP 1995 3 MLJ 178

2 Tajudin
bin Salleh v Public Prosecutor 2008 1 MLJ 397

3 1960
26 MLJ 23

4 Kee
Lik Tian v Public Prosecutor 1984 1 MLJ 306

5 1995
3 MLJ 178

6 1999
3 MLJ 582

7 2013
7 MLJ 684

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