What is a hostile witness in a Malaysian court?

In films, a "hostile witness" is a dramatic moment. In a Malaysian court it is a legal procedure with a specific purpose. Whether you are a party worried that your witness may change their story, or a witness worried about being labelled hostile, it helps to understand what it really means.

What does "hostile witness" mean?

Normally, the party who calls a witness asks non-leading questions in examination-in-chief, and the other side cross-examines. A problem arises when a witness called by one side gives evidence that is different from what they said earlier, or appears unwilling to tell the truth for the party that called them.

The Evidence Act 1950, section 154, allows the court, in its discretion, to permit the person who calls a witness to put any questions to the witness which might be put in cross-examination by the other side. In everyday language, the witness is then treated as "hostile" or "adverse".

Who decides that a witness is hostile?

The court. A party cannot simply declare its own witness hostile. The party's lawyer applies, usually pointing to a material difference between the witness's evidence in court and an earlier statement, and the judge decides whether to grant permission.

The judge looks at the witness's evidence and demeanour, and whether the difference is significant. Minor differences in detail are a normal feature of honest memory and often do not justify the step.

What happens after permission is given?

The party who called the witness may then:

• ask leading questions;
• put the witness's earlier statement to them and ask them to explain differences (the Evidence Act sets out how previous written statements are put to a witness, s.145);
• seek to impeach the witness's credit (s.155), for example by proving a former inconsistent statement.

The other side can still cross-examine as usual.

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Is the hostile witness's evidence thrown out?

Not automatically. The court weighs the evidence as a whole. It may reject some or all of the witness's evidence, or accept parts that are supported by other evidence. How much weight to give is a matter for the court in each case.

In criminal cases, the use of a witness's earlier police statement is subject to specific rules in the Criminal Procedure Code. See our article on police statements under section 112.

I am a witness. What if my evidence differs from my earlier statement?

Your duty is to tell the truth as you remember it now, in your own words.

• If your earlier statement was wrong, say so and explain why, for example you were confused, rushed or misunderstood.
• If you cannot remember, say so honestly.
• Do not change your evidence because someone has pressured or rewarded you. Tell the lawyer or prosecutor if that has happened.
• Do not stick to an earlier statement you now know is wrong.

Changing your account is not wrong in itself if it is the truth. Changing it to help or hurt someone is. Deliberate false evidence is an offence; see our article on perjury.

What should a party prepare?

1. Keep copies of every earlier statement the witness gave.
2. Tell your lawyer early if you think a witness has been approached or pressured.
3. Never contact the witness to "remind" them what to say. That risks witness interference; see our article on contempt of court.
4. Consider with your lawyer whether other evidence can prove the same facts.

Common mistakes

• Assuming any difference makes a witness hostile. It is the court's decision.
• Pressuring a witness before trial to keep to a statement.
• Relying on one witness for a key fact without supporting evidence.
• A witness defending an earlier statement they now know is wrong.
• Treating "hostile" as an insult. It is a procedural term.

When to speak to a lawyer

Speak to a lawyer if a key witness in your case seems to be changing their account, if you are a witness being pressured about your evidence, or if you are worried about an earlier statement you gave. Chris & Partners, led by Dr Chee Hui Bing, handles civil and criminal litigation. Contact us; every case depends on its facts.

Frequently asked questions

Is a hostile witness the same as a witness who lies?

No. A witness may differ from an earlier statement honestly. The label concerns procedure, not a finding of lying.

Can the prosecution treat its own witness as hostile?

Yes, the same section applies in criminal trials, subject to the court's permission.

Will I be punished if I am declared hostile?

Being treated as hostile is not a punishment. Deliberate false evidence is a separate matter.

Can the other side's witness be declared hostile?

The concept concerns the party who called the witness. The other side cross-examines in the ordinary way.

Can I refuse to give evidence to avoid this?

If you are properly summoned, you must attend and give evidence, subject to any lawful objection.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Evidence Act 1950 (Act 56), including section 114A, AGC Laws of Malaysia
2. Criminal Procedure Code (Act 593), Attorney General's Chambers Laws of Malaysia

Fact-checked on 17 Oct 2026