Court of Appeal (Putrajaya)

Role of Agent Provocateur

Facts 1.     The Appellant, Lee Gee Yoong was charged, tried, convicted and sentenced pursuant to Section 39B(1)(a) of the Dangerous Drugs Act 1952 (“Act 234”) for trafficking of 4.35 nimatazepam.

2.     The commission of the crime took place on 20 February 2009 between the Appellant and an agent provocateur (“SP3”) in which the Appellant claimed that he had the supply of 1,000 pills for RM5,000.00.

3.     The Appellant was ambushed by SP4 when he was seated inside the car of SP3 to deliver a white plastic bag.

4.     During the trial in the High Court, it was found that the prosecution had made out a prima facie case against the Appellant.

5.     The role of the agent provocateur was contested by the Appellant during the appeal.

Issue Whether the evidence made out by an agent provocateur may be accepted by the Court.
Ratios 1.     It is evident that the prosecution case of trafficking is founded upon the sale of the exhibit drugs by the Appellant to the agent provocateur.

2.     The Court held that the transaction of business was already completed between the Appellant and SP3 as the price, quantity, time and place for delivery and payment was already arranged.

3.     The Court also highlighted that the evidence of an agent provocateur is made admissible by Section 40A of Act 234 which provides –

“(1) Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.

(2) Notwithstanding any rule of law of the provisions of this Act or any other written law to the contrary, and that the agent provocateur is a police officer whatever his rank or any officer of customs, any statement, whether oral or in writing made to an agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.”

[Emphasis is added]

4.     The Court affirmed the decision of the Federal Court in Wan Mohd Azman bin Hassan @ Wan Ali v Public Prosecutor [2010] 4 MLJ 141 as follows:

“that Parliament has deemed it fit that evidence of an agent provocateur be admissible without any restrictions and the trial judge is no longer vested with a discretion to exclude such evidence.”

5.     The Court is satisfied that the learned trial judge had taken into consideration all the evidence before him especially on the admissibility of evidence by the agent provocateur.

Decision The Court of Appeal dismissed the appeal against his conviction and sentenced under Section 39B(1)(a) of Act 234.
Key Take Away 1.     Agent provocateur is defined as an individual that actively associated with suspected persons with the aims to incite some incriminating action.

2.     The Federal Court in Wan Yurillhami bin Wan Yaacob & Anor v PP [2010] 1 MLJ 749 held that an agent provocateur is required to be called as a prosecution witness to give evidence in court.  Failure to comply with the requirement may attract the application of adverse inference under Section 114(g) of the Evidence Act.


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