Ishtiaq Ahmad Khan v Public Prosecutor [2020] 5 CLJ 187

 

ISHTIAQ AHMAD KHAN V PUBLIC PROSECUTOR [2020] 5 CLJ 187

Court of Appeal (Putrajaya)

Admissibility of confession under section 27 of Evidence Act 1950

Facts

1.     The Appellant is a Pakistani National who was initially charged for cheating under Section 420 of the Penal Code at the High Court.

2.     During interrogations, the Appellant told the police officer that he could show a place where he detained a person before the person was murdered.  The particular wordings of his statement were as follows:

            “Lelaki cina tersebut telah mati dan mayatnya

             telah dibuang di sebuah kaw semak di kaw

             Damansara. Saya boleh tunjukkan tempat tersebut.”

 

3.     This piece of statement by the Appellant led to the discovery of a deceased body.  He was then charged for murder under Section 302 of the Penal Code.

4.      At the High Court, the learned trial judge held that the defence failed to raise a reasonable doubt on the Prosecution’s case and subsequently convicted and sentenced him to death.

5.     The High Court convicted the Appellant based on his statement admitted under Section 27 of the Evidence Act 1950 (Act 56).

6.     The trial judge found that the statement made by the Appellant during the interrogations which led to the discovery of the deceased’s body was admissible as evidence under Section 27 of Act 56.

Issue

1.     Whether the learned trial judge had erred in convicting the Appellant.

2.     Whether the learned trial judge had erred in admitting the statements made by the Appellant as confession which led to the discovery of the deceased body as admissible under Section 27.

Ratios

1.     Section 27 of Act 56 provides exception to the general rule of admission and confession.

2.     To invoke the exception under the Section, (5) requirements below are to be satisfied-

(a)   The information must be received from the Appellant

(b)   The Appellant must be in the custody of police officer at the time of giving the information;

(c)    The information given by the Appelant caused the discovery;

(d)    The fact discovered from the information must be concealed;

(e)    The police had no prior knowledge of the fact concealed.

3.     The rationale behind these requirements are to safeguard this provision from abuse of power.  Therefore, these requirements must be strictly adhered.

4.     The Court of Appeal disagreed with the learned trial judge’s findings that all the requirements under Section 27 have been satisfied.

5.     Based on the appeal, it was found that there was no evidence that the Appellant committed the act of murder.

6.     It was further held by the Court of Appeal that one of the requirements that must be strictly adhered is that the exact words used by the accused must be shown and adduced to the court before it can be admitted as evidence under Section 27 of Act 56.

7.     Here, there was no proof that the police officer had recorded the Appellant’s statement in verbatim.  The police also testified that the statements had been reworded.

8.     Therefore, the Court of Appeal held that it is in the interest of justice that the exact words used by the Appellant be adduced in court as evidence for the court to determine whether it falls as information that led to the discovery of the deceased body.

9.     In this case, considering the Appellant was a foreigner, the Court decided that there might be a possibility that he could not understand Bahasa Melayu proficiently and his statement supplied to the police during the interrogation might have different meaning.

10.  Hence, the strict requirement to record the exact words in verbatim is necessary.

11.   Since the requirement to invoke Section 27 of Act 56 was not satisfied, it was held that such statement made by the Appellant was inadmissible.

12.  In addition, the Court found that the conviction is not safe as there was no evidence that the Appellant committed the act of murder.

13.  Although the Appellant supplied information that he knew the location of the deceased, it does not indicate that it was the Appellant who had committed the act of murder.

Decision

1.    The appeal was allowed.  The conviction and sentence was set aside.

Key Take Away

1.      The rule on admissibility of a confession is provided under Section 24, Section 25 and Section 26 of the Act 56 which provides protection to the accused.  All three provisions provides strict requirements for confession.

2.      However, there are exception to the rule on admissibility of confession provided under Section 27.  Section 27 provides when an accused person is in custody, any information supplied which amounts to a confession or not, if provided by the accused lead to discovery of a fact, such information is admissible as evidence in court.

3.      However it is pertinent to note that Section 27 cannot be easily invoked as it has strict requirements which must be satisfied. This is according to Zabariah Mohd Yusof JCA which affirmed that such provision is “so vulnerable to abuse.”

4.      This is because the provision have risk and danger as it can be abused and misused by the police in order to gain confession from the accused.

5.      Therefore, the court are bound to strictly evaluate each requirements of Section 27 before admitting any statement.

6.      The four (4) main requirements of Section 27 of the Act 56 are as follows:

(a) The information must be received from the person accused of any offence;

(b)   At the time of giving the information, the accused must be in the custody of a police officer;

(c)  The information supplied by the accused must lead to a discovery of a fact;

(d)The fact must be discovered as a consequence of the accused’s statement.

7.     Based on this case, the exact words of the accused must be recorded in verbatim and the record must be produced in the court before the statement can be admissible as evidence under Section 27 of Act 56.

8.     In summary, although Section 27 is an exception to the general rule on admissibility of confession, there are requirements that must be strictly adhered to before any statement can be adduced as evidence under this provision.

 

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