Recantation of Evidence: An Unpredictable Twist of Evidence

Imagine having a key witness who had testified in your client’s favour suddenly recant/retract his testimony, claiming it was false. For any counsel, this could be one of the most unsettling moments in a trial—a real-life legal “jump scare”.

This exact scenario played out in the recent Federal Court case of Teoh Kiang Hong v. Theow Say Kow @ Teoh Kiang Seng [2025] 2 MLRA 504.

In this case, the 1st Plaintiff (“Henry”) along with his mother, father, and some family companies, sued his brother (“Gary”) and other defendants for the fraudulent transfer of 4 pieces of land. Over 29 days of trial, Henry’s mother testified against Gary (“Pre-Recantation Evidence”).

But a surprising twist came subsequently. The mother lodged a police report stating that she had lied under oath and was coached by Henry or her former counsel in giving false testimony. This police report was later tendered in Court as evidence, and the mother was subsequently cross-examined by Gary’s counsel (“Post-Recantation Evidence”).

The High Court viewed the mother’s conduct to be recantation of her evidence and as a result, the High Court rejected her Pre-Recantation Evidence and accepted her Post-Recantation Evidence which was incidentally consistent with the undisputed documents.

The Court of Appeal however, found that the mother was not a credible witness and held that the High Court Judge ought to have rejected all her evidence in toto, both Pre and Post Recantation.

As a result, the Federal Court had to determine what is the correct approach in dealing with a recantation of evidence - i.e., what to admit and what to reject?

The Federal Court held that when a witness changes her stance (which may involve both lies and truths in her evidence), it does not lead to the total rejection of all her testimony. Instead, the Court is always duty-bound to assess and examine both the pre and post-recantation evidence, compare them with other undisputed evidence, and then decide which version is more believable.

In this case, since the mother’s Post-Recantation Evidence is consistent with the undisputed documents in Court, the Federal Court held that the High Court was right to accept the mother’s Post-Recantation evidence.

The key takeaway from the Federal Court decision above is that if the primary witness for your case suddenly recants/retracts his testimony to go against your case, fret not—it does not mean his original testimony will be automatically rejected. After all, the Court will evaluate both the pre and post-recantation evidence against undisputed contemporaneous documents to decide which version is more believable (provided the witness was not coached!)

See grounds of judgment here:

https://tinyurl.com/5yfd9say