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Context

Mohd Azwan Ting Abdullah Vs Public Prosecutor [2011] MYSSHC 398 (31 October 2011)

70 were credible (See Pang Chee Meng v PP (1992) 1 CLJ 39) as PW1

II. The Issues

(A) Grounds 1,3 and 4: Exclusivity & Possession

The Appellant is charged for possession of cannabis amounting to 199 gram
under Section 6 of the DDA which states:

The Appellant contended that the Appellant‟s bedroom was not locked and accessible to PW2 his step brother, PW2‟s 3 children, the Appellant‟s mother and sister who stayed there and the Appellant‟s friends who would come at night or day time. For possession to be established, the prosecution must prove whether the room belongs to the Appellant and that the Appellant had exclusive possession over the room in which the drug was found placed inside the wardrobe in the room (see photos, Exhibit P3 (10 -12) page 171 to 172 ROA).

PW1 testified that when they entered the house through the kitchen, the Appellant guided them to the upper stair of the house and entered a room whereby the Appellant himself admitted that it was his bedroom. (Refer to page

13 of ROA).
Learned DPP submitted that it is matter of fact whether the Appellant had control over the drug in order to prove possession beyond reasonable doubt by citing the case of Fun Seong Cheng v Public Prosecutor (1997) 3 SLR 523 where it was
held that:-

"The essential question in this appeal is whether or not the prosecution has proved beyond reasonable doubt that the appellant was in possession of the drugs in question. Clearly in order to prove that the appellant was in possession, he must have physical control over the drugs. It is a matter of fact whether someone has physical control over an item. Here the storeroom was meant for the appellant and Sgt Soh. Only the appellant and the Sgt Soh were given the keys to the storeroom and the access to the storeroom was through the office shared by the appellant and Sgt Soh. The fact that Sgt Soh can gain access to the storeroom does not mean that the

appellant did not have physical control over the drugs."

The learned Sessions Judge noted that there are two other occupants of the house and two occupants and a child were at the house at the time of the raid (at lines 5 to 14 page 132 ROA) and also the possibility of access and presence of friends in the Appellant‟s room (at lines 9-14 pages 134 ROA) and yet decided that this did not affect the Appellant‟s exclusive control of his bedroom (from lines
18 - 9 pages 135 -136 ROA).

The Court notes that PW2 had testified that (PW2: at last paragraph page 32 of
ROA):-

“The accused room is at the 1st floor left side of the staircase. There are 3
rooms at the upper floor. My mother and sister room also at the upper floor”.

DW1 had testified as follows:-
(DW1: at lines 2 - 4 page 99 of ROA):-
“I disagree that my mother has no access to my bedroom because my
mother has the spare key and further more the door never locked.”
(DW1: at last paragraph page 92 of ROA):-
“I also have other friend who come to visit me………………..Sometimes they go to my room. Sometime they visit me at night playing video game and sleep in my room.”
(DW1: lines 2-3 page 96 of ROA):
“QP: Your friends sleep in your room, but they only use it to sleep.
A: Yes, to sleep and rest.”

However the law states that when drugs are found in a place that is accessible to a number of people, it may not be inferred that any single person has possession of the drugs. The drugs could belong to anybody who had access to the room. If no one makes a statement to the police that the drugs are theirs, it is likely that
no-one will be convicted.

In the case of Filippetti v R (1984) 13 A Crim R 335, the case involving household drugs, a man lived with his girlfriend, his mother, his brother and another couple in a three bedroom house. The police found marijuana inside the lounge in the living area, a room to which all the occupants had regular access. The man's conviction was overturned on appeal. The Court of Criminal Appeal said that it was necessary to prove that he had the drugs in his exclusive physical

control, and that this was difficult because of the large number of people having equally free access to the room in which they were found.

In our present case, the Appellant room was accessible to his mother, sister, PW2, PW2‟s children and even sometimes the Appellant‟s friends would come at night or day time even to stay (refer pages 35 and 134 ROA). Since there is uncontradicted evidence of several people having access to the Appellant‟s unlocked room who could put the said drug there, the defence has created a reasonable doubt on whether the Appellant has exclusivity to his own bedroom and to the custody and control for the purposes of possession of the said drug. The said drug could have been possessed by someone else who had placed it in the Appellant‟s room for safekeeping. The possibility of such an inference which is favourable to the Appellant was never considered by the learned Sessions Judge. This inference has the effect of casting reasonable doubt on the element of custody and control (see Ibrahim Mohamad & Anor V. PP (2011) 4 CLJ 113 at paragraph 9) on the prosecution‟s case.
It is possible that all people living in a shared house could be charged and convicted of possession if the police can prove that they all had knowledge and control over (or access to) the drugs. But that would require evidence that all people had access - for example, statements from all the residents admitting they had knowledge and access. There is no such evidence from the rest of the household here pointing the finger at the Appellant as being the person in exclusive possession and with knowledge of the drug.
In the case of Pang Chee Meng v PP (1992) CLJ 39; (1992) 1 CLJ Rep 265
Abdul Hamid Omar LP quashed the conviction of the accused person as the prosecution had failed to prove that the accused had exclusive custody and control of the drugs found in the room where there were at least three others with access to the room.

The Court will find that based on the evidence adduced by the prosecution that it has not shown that the Appellant had exclusivity to his own room; in particular it was not locked when the police entered it with the Appellant. This finding of the Appellant having exclusivity to his bedroom by the learned Sessions Judge is in the Court‟s view an error in law and fact.
2) Ground 4: Failure to call Mother
Learned counsel for the Appellant had submitted that the bedroom where the alleged drugs were found was not locked and that the Appellant‟s mother was also present in the house at the material time. Even though the Appellant‟s mother was holding another key to the Appellant‟s bedroom and had access to the unlocked room she was not called to give evidence by the prosecution and the learned Sessions Judge had failed to draw an adverse inference under Section 114(g) of Evidence Act 1950 (EA).
The Court notes that there was another possible witness not called, the Appellant‟s sister who stayed in the house who could have access to the Appellant‟s bedroom (at last paragraph page 32 ROA). Both potential witnesses were not offered to the Appellant.
The learned DPP submitted that there is no ground to invoke presumption under Section 114(g) of EA as since it is the Appellant‟s mother and the Appellant, surely he had access to his own mother for her evidence. Learned DPP cited the case of Yeo Choon Huat v Public Prosecutor (1998) 1 SLR 217 where it was held that:-
“The prosecution's failure to call a witness did not give rise to a presumption under s 116 illustration (g) of the Evidence Act unless it constituted a withholding of evidence from the accused or the court. In the

instant case, the prosecution had not offered Koh to the defence. However, the existence of Koh was clearly known to the Appellant. The prosecution had identified Koh and the part that he had played in the case against the Appellant. The Appellant would have had no difficulty in tracing Koh as he was in remand, pending trial. It was clearly open to the Appellant to call Koh as a defence witness after the prosecution had closed its case without calling upon Koh to testify. The prosecution had not in any way withheld evidence from the Appellant or from the court, and the trial judge was right in refusing to draw an adverse inference under s 116 illustration (g) of the Evidence Act”
Section 114(g) of EA stated that:-
“The court may presume - that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it”
The exclusivity to go into the Appellant‟s bedroom is a critical link in the chain of the prosecution‟s case. Exclusivity has been put in issue by the defence and it is incumbent upon the prosecution in order to prove their case beyond reasonable doubt for possession that the Appellant has to be shown to be in custody or control of the drug through having the exclusive custody and control of his bedroom. In this respect learned counsel for the Appellant cited the case of PP v. Mazlan Mustaffa (2011) 1 CLJ 964, the Court of Appeal held that:-
“[4] … Evidence clearly showed that the drugs in question were not found in the custody or control of the respondent. It was found in the kitchen and on the ceiling of the family area of the said house. The house or the place where the drugs were discovered was not under the exclusive possession of the respondent as it was occupied by his wife and another sub-tenant. Even though the wife had denied that the bag containing the drugs belonged to her, the evidence of the prosecution witnesses clearly

showed that at the material time the house was occupied by another man who had his own set of keys. There was no evidence adduced by the prosecution to dismiss the probability that the said drugs belonged to the other occupants. Therefore, there was no reason to disturb the findings of the trial judge regarding the issue of possession of the drugs in question”.

(Emphasis added)

In the Supreme Court case of Abdullah Zawawi Yusof v. PP (1993) 4 CLJ 1,

Edgar Joseph SCJ said:

“... The onus was not on the defence to possibility of access by others but on the prosecution to exclude such possibility. Of course, the defence could besides taking advantage of infirmities in the prosecution case in this regard, have gone further, and shown the possibility of access by others,
but this they were not, in law, obliged to do.”

See also Saludin Surif v. PP (1997) 3 CLJ 529.

The Court has earlier found from the evidence that the Appellant may not have exclusivity to his bedroom. The onus is therefore on the prosecution to exclude such possibility by calling the Appellant‟s mother who becomes an essential
witness to prove exclusivity and which is not for the defence to disprove.

On this aspect of who would be an essential witness, Augustine Paul J. (as he then was) in Public Prosecutor v. Dato Seri Anwar bin Ibrahim (No. 3) (1999) 2

CLJ 215; (1999) 2 MLJ 1 (HC) had stated:

“It is settled law that in a criminal trial the prosecution has a discretion, provided that there is no wrong motive, as to whether or not to call any particular witness and in particular has a discretion not to call in support of its case a witness whom it does not believe to be a witness of truth (see Khoon Chye Hin v. Public Prosecutor (1961) 1 LNS 41; (1961) MLJ 105,

Adel Muhammed el Dabbah v. Attorney General for Palestine (1944) AC

156). There is no obligation compelling the prosecution to call all witnesses who speak to facts which it desires to prove (see Malak Khan v. Emperor 72

IA 305; AIR (1946) PC 16).……………What is significant is that the prosecution must call the necessary witnesses to unfold the narrative upon which its case is based. In this regard, reference may be made to the advice delivered by the Privy Council in the celebrated case of Seneviratne v. R (1936) 3 All ER 36 ………On the type of witnesses who must be called by the prosecution, Lord Roche said in the same case at
page 49:

“... Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is

for or against the case for the prosecution.”

Thus, an adverse inference for not calling a witness cannot be drawn if there is sufficient other evidence to support the prosecution case (see Namasiyiam & Ors v. Public Prosecutor (1987) CLJ 241 (Rep); (1987) 1

CLJ 540; (1987) 2 MLJ 336).”

(Emphasis added)

On the failure to call an essential witness, Edgar Joseph Jr. FCJ in Alcontara a/l

Ambross Anthony v. Public Prosecutor (1996) 1 CLJ 705; (1996) 1 MLJ 209 (FC)

at page 220 had also stated this:

“We must add that, in a situation such as this, where there was an acute conflict of evidence on a material point, namely, the result of the search of the person of the accused, and a search list contemporaneously prepared by the police was presumably in existence, a copy thereof, ought, in all fairness, to be tendered in evidence or its non-production accounted for, the sanction for not doing so being the presumption,

that if produced, it would have been unfavourable to the prosecution. (See section 114(g) Evidence Act 1950) Instead, the judge did the opposite

- he wrongly assumed that a copy of the search list was in evidence, and went on to presume that its contents supported the version of ASP Abdul

Wahab.”

(Emphasis added)

The Court considers the Appellant‟s mother is an essential witness in the present case that would be able to prove the issue for the prosecution as to whether the Appellant had exclusivity to his room (see PW5 (investigating Officer): 1st line page 58). The onus is not on the defence to prove exclusivity by calling her.
The failure of the prosecution to call such an essential witness like the Appellant‟s mother calls for the Court to exercise its discretion under Section 114 (g) EA to invoke the presumption that the failure to call the Appellant‟s mother implies that she would give evidence unfavorable to the prosecution on the issue of the Appellant having exclusivity to his bedroom. This is fatal to the prosecution‟s case that the Appellant had custody or control of his bedroom and with it possession of the drug found in it.

3) Grounds 1 and 3: Exclusive possession, control or custody of the drugs

Possession of the dangerous drug is the main ingredient of the offence with which the Appellant is charged i.e. having 119 grams of cannabis as the dangerous drug.

The learned Sessions Judge had found (from lines 18 page 32 to line 6 page133 of the Notes of Proceedings (NOP)), that by showing the police where the drug

was kept in a wardrobe in his room upstairs, the Appellant not only had control or custody of the drug but had knowledge that the substance was drug and because of this had concluded that the Appellant had possession of the drug.

The learned counsel for the Appellant contends that, the Appellant was not found to be in physical possession of the alleged offending exhibits or that the alleged drugs were not in physical proximity to the Appellant at the time when the Appellant was arrested by the police party a hotel in Bintulu. It was only after the arrest that the Appellant was brought to the house at Jalan Hussien Onn, Bintulu where his family was staying was the alleged drug (“exhibit P4 (e)”) discovered in the wardrobe in a bedroom upstairs.
Learned counsel for the Appellant submitted that Thompson J. in the case of

Chan Pean Leon v. PP (1956) MLJ 237 had on possession held as follows:

“to establish “possession” for the purposes of criminal law two separate questions are involved. The first is whether the accused was in possession of the article in question and the second, by reason of the application of the maxim actus non facit reum nisi mens sit rea, is whether he had knowledge of the nature of the thing possessed.”;
That means that that there must be a physical element and mental element which must both be present before possession is made which are absent here. The learned Sessions Judge had failed to direct himself on the elements of “possession” and “custody and control”.
In rebuttal, the learned DPP submitted that the Appellant was in possession of the cannabis found in the wardrobe of his bedroom as the Appellant had control and knowledge of the drug by referring to the case of PP v Mohd Alfizi B. Ithnin

@ Abd Jabar (2009) 7 MLJ 289 which held:-

"There is no statutory definition of possession, the word is said to be enigmatic and vague. However judicial pronouncement on its meaning include invariably some degree of custody or control, and knowledge of the

custody or control.”

It was further held (ibid) there that:-

"…a finding of custody or control raises presumption of possession and
knowledge of the drug”

The Court will first examine the definitions of possession, custody or control before dealing with whether the learned Sessions Judge had applied these definitions correctly to the facts for the offence charged.
In Chan Pean Leon’s case (supra) Thompson J. held that “possession” for the purposes of criminal law involves two characteristic propositions, one of physically having it and the other being mentally aware of having it and accepted the definition of Stephen‟s Digest (9th Edition) as giving a person in relation to where the thing is situated “the power to deal with it to the exclusion of all other persons and when circumstances are such that he may be presumed to intend to do so in case of need.”
“Custody” means immediate physical possession, such as a person having
something in their pockets.

“Control” refers to the right to do something with the drug - for example, to keep,
consume or share it.

Taylor J, succinctly explained the characteristics of all three in Leow Nghee Lim v

Reg (1956) 22 MLJ 28 in the following manner at page 29:

“Custody means having care or guardianship; goods in custody are in the
care of custodian and, by necessary implication, he is taking care of them

on behalf of someone else. You cannot take care of goods unless you know where they are and have the means of exercising control over them. Custody therefore implies knowledge of the existence and whereabouts of the goods and power of control over them, not amounting to possession. Control must be proved as a fact and it must arise from the relation of the person to the goods, irrespective of whether they are contraband. An example may make this clearer. Suppose that one of the assistants in this case smoked a particular brand of tobacco, not sold in the shop and, to the knowledge of the accused, kept it in that drawer. No doubt the accused could, at any time, tell the assistant to keep his tobacco somewhere else. He could resume possession of the drawer. But so long as he allowed the assistant to keep their small personal things in the drawer, the things were in their control, not his. He could not reasonably order them to throw away harmless tobacco, consistently with the existing arrangement. The argument for control is based on the contraband nature of the thing not on
the circumstances in which it was kept”.

(Emphasis added)

Coming to the facts of this case, the Appellant has been charged for possession of the dangerous drug under Section 6 of DDA, the prosecution must prove that the Appellant is in possession of the drug, i.e. applying Chan Pean Leon’s case (supra) the Appellant must be shown to be in physical control of the drug and with knowledge (or intention) of having the drug. The Appellant can be said to have physical control over the said drugs if he has custody, control or the ability
to exercise over the goods at will, including control over their disposition.

This means usually a person will have possession of a drug if it is found in that person's pocket or hand or bedroom, where the person alone has access to it. However, as control also includes disposition this can include anything from throwing the substance away, to never actually having had physical possession of it but possessing the ability to say where the substance is placed.

Learned DPP had submitted that the Appellant was in possession of the cannabis found in the wardrobe of his bedroom because the Appellant had
shown the search party where it was implying control and knowledge of the drug.

The Court is unable to agree with this contention of the learned DPP which was accepted by the learned Sessions Judge. It is undeniable that it was the Appellant himself who showed the whereabouts of the drug, however having knowledge of the whereabouts of the drug cannot be equated per se as being evidence that the Appellant is having possession over the drugs. In Gooi Loo Seng v PP (1933) 2 MLJ 137 it was held that mere knowledge is not sufficient to
establish possession.(See also PP v. Basri bin Salihin (1993) 1 CLJ 420; PP v.
Muhamad Nasir bin Shaharuddin & Anor (1992) 3 CLJ 408 (Rep); (1992) 4 CLJ
2028; (1994) 2 MLJ 576; Choo Yoke Choy v. PP (1992) 4 CLJ 1791; (1992) 1
CLJ (Rep) 43; PP v. Lai Ah Bee (1974) 1 LNS 119; Yee Ya Mang v. PP (1971) 1
LNS 156; PP v. Khoo Boo Hock & Anor (1990) 1 CLJ 971; (1990) 2 CLJ (Rep)
716; PP v. Kau Joo Huat (1988) 1 CLJ 477; and PP v. Mohd Fairus bin Omar

(1997) 3 CLJ SUPP 260; (1998) 5 MLJ 729.)

The Court is of the view that possession should be distinguished from control and custody. As explained in the case of Chan Pean Leon’s case (supra), the law is well settled that having only custody or control over the drug is insufficient to
establish "possession".

The Court agrees with Counsel for the Appellant when he referred the case of PP

v. Sim Ah Ba & Anor (1997) 4 MLJ 47 at page 49, Jeffrey Tan JC (as he then was) held that:

“[7] Custody means having care or guardianship and the knowledge of the existence and whereabouts of the goods and power of control over them,

not amounting to possession.

(Emphasis added)

However a clear cut case where control and custody can become possession, is if the Appellant‟s bedroom was locked and the wardrobe where the drug was found was also locked there is no question that custody and control can merge in such an instance to become possession, knowledge would be implied by his showing where the drug was kept by the unlocking of the locked wardrobe. This is not the case here from the facts adduced; the Appellant‟s bedroom and the
wardrobe were not locked.

The physical act of custody or control must be accompanied with evidence that the Appellant had knowledge of the drug. In the absence of any statutory presumption, knowledge has to be proved either by direct evidence or circumstantial evidence. Mere knowledge alone without exclusivity of either
physical custody or control or both is insufficient in law to constitute possession.

In this respect, coupled with the Court‟s earlier finding that the prosecution had failed to establish beyond reasonable doubt that the Appellant had exclusivity over the Appellant‟s own bedroom in the house means that the element of custody and control over the bedroom and with it the drug found in its wardrobe becomes tenuous and this weakens considerably the prosecution‟s case for custody and control to equate possession and the requisite knowledge against
the Appellant.

In PP v. Muhamad Nasir bin Shaharuddin & Anor (1994) 2 MLJ 576, Visu
Sinnathurai J. held that (page 578):
“(8) Generally, if exclusive occupation of premises cannot be established, especially where other persons also had access to the premises, it cannot be said that the occupier had custody and control over everything found in the premises. Furthermore, where two or more persons were found in a place where an offence had been committed, and if the evidence did not clearly point to one or the other, the guilt of neither had been established”.

(Emphasis added)

It is clear from the above cited authorities that possession or custody and control carries its own meaning and the prosecution has failed to discharge the burden of proving beyond reasonable doubt that the Appellant by showing where the drug can be found in the bedroom where he does not appear to have exclusivity is evidence of possession of it within Section 6 of the DDA. The learned Sessions Judge had erred in law by not distinguishing the different characteristics of control and custody with possession and knowledge.
4) Conclusion on Grounds 1, 3 and 4
The Appellant succeeds in his appeal on Grounds 1,3 and 4 in that the learned Sessions Judge had misdirected himself in failing to consider that the prosecution had not proven the Appellant to have exclusive and/or physical possession and knowledge of the nature of the drug given the circumstances of the case and by reason that there is evidence of the Appellant not having exclusivity to his own bedroom where it was found which is enhanced by the adverse inference drawn under Section 114 (g) of the EA in the prosecution‟s failure to call the Appellant‟s mother as a witness.
The learned Sessions Judge had also failed to direct his mind sufficiently or at all to differentiate between possession and control or custody for the purposes of the Charge of possession and misdirected himself in law because the Appellant did not have exclusive possession of the bedroom as to constitute him being in custody and control of the dangerous drug as to be in possession of it.

(B) Grounds 2 (a), (b), (c), (d) and (e): Caution, Recording and Admissibility

In the evidence given before the Sessions Court, the Appellant was first arrested for possession of alleged offensive item to wit dangerous drug at a hotel in

Bintulu. (PW3 (Arresting Constable): 1st paragraph page 37 ROA and DW2 (Arresting Officer): page100 ROA.)

According to PW1, the head of Narcotic Bintulu, whilst in his office at IPD Bintulu and under interrogation the Appellant was alleged to have made a statement to the effect that there were some more drugs at the house in question. PW1 confirmed that he did not give caution before the Appellant answered him. (PW1: See pages 12 and 23 ROA).
DW2 the Arresting Officer's version was that the disclosure to PW1 took place at the hotel (DW2: pages 100-101 and 104 -105 and 107 ROA).
The Appellant was then brought to his house. Whilst in a bedroom upstairs and under interrogation by PW1 the Appellant was alleged to have made a second statement that the drug was inside the wardrobe. (PW1: page 13 and 23 ROA PW3: 1st and 2nd paragraphs page 37 ROA and DW2: pages 102 and 105 ROA.). PW1 confirmed that he did not caution the Appellant before questioning the Appellant as to the whereabouts of the drug (PW1: 2nd paragraph at page 15). PW3 discovered exhibit P4 (e) alleged to be cannabis based on the directions of the Appellant in the wardrobe.
(1) Ground 2 (c): Failure to caution: Section 37A (1) (b) DDA
The Appellant contends that the uncontroverted evidence of PW1 on his total failure to administer the caution to the Appellant was fatal to the admissibility of the statements leading to the discovery of the drug under Section 37A (1) (b) DDA.
The issue here is that no caution has been administered to the Appellant which makes the Appellant‟s information inadmissible according to Section 37A (1) (b) of the DDA which in material provided that in the case of a statement made by a

person after his arrest, unless the Court is satisfied that a caution was administered to him, no such statement shall be admissible or used at his trial in evidence.

This is PW1‟s evidence on his failure to caution and remember the exact words
used:

Before going to house (PW1: page 12 ROA)

PW1: While in the office, I did ask the accused about the drugs. I could not remember the question that I asked to the accused but it was about drug. The accused said that there is some more drugs at the house. I did not give him caution before he answered me. There was no other thing he
told me apart from that.

In the bedroom (PW1: last paragraph page14 & 2nd paragraph page 15 ROA)

PW1: I am not sure of the question that I asked to accused while in the room but it some sort like „where is the drug‟. The accused answered „inside the wardrobe‟, but the accused did not tell me which part of the
wardrobe.

Const. Sharul found the drug at the bottom part of the wardrobe. I did not
caution him before he told me where he put the drug.

(PW1: last paragraph page 21)

PW1: I can‟t remember the exact question to him but it was about drug and he answered me about drug. I can‟t remember the exact words that the
accused used in saying it.

In PP v. Mohd Fahmi bin Hamzah (2002) 6 MLJ 340 which concerns the admissibility of a cautioned statement allegedly made by the accused and where the police officer merely said that he had administered the Section 37A DDA

statutory caution but did not go on to spell out the caution proper. Augustine Paul
J (as he then was) held that at pages 349 to 351:-

“In his examination-in-chief, PW5 said that he administered a caution to the accused. But he did not go on to give any evidence of any statement that was made consequently by the accused … The admissibility of the statement requires a consideration of the law relating to a statement made to a police officer by an accused person pursuant to section 37A of the Act which is similar to section 113 of the Criminal Procedure Code (“the CPC”). In his submission, learned counsel for the accused contended that PW5 merely said that he administered the caution. There is no evidence of the exact caution that was administered. In the absence of such evidence learned counsel, in referring to PP v. Kalaiselvan (2001) 2 MLJ 157 said
that the statement is not admissible …”

“Evidence of the words of the caution that was administered is a pre- condition to the admissibility of a caution statement. Section 37A of the Act and section 113(1) (a) (ii) of the CPC explicitly provide that a cautioned statement made by a person after his arrest shall not be admissible in evidence unless the court is satisfied that a caution was administered to him
in the following words or words to the like effect:

„It is my duty to warn you that you are not obliged to say anything or to answer any question, but anything you say, whether in answer to a
question or not, may be given in evidence‟ ”

“The requirement that the court must be satisfied that a caution was administered „…in the following words or words to the like effect …‟ is a statutory direction to the court to ensure that the prescribed caution has been administered. This is significant as this means that there must be evidence of the caution that was administered. In the absence of such

evidence, the court will not able to rule whether the prescribed caution or
words to the like effect were administered.”

“This is pure question of law. In the circumstances, it is not necessary to hold
a trial within a trial to determine the admissibility of the statement that was

made by the accused. It is simply not admissible.”

The fatality of the absence of caution being administered is well illustrated by the case of Pang Chee Meng v PP (1992) 1 CLJ 265 Rep; (1992) 1 CLJ 39 where Tun Hamid Omar LP decided that the statement made by the Appellant admitting: “Saya simpan di bilik atas room saya” was not admissible on the ground that the Appellant was under arrest and no caution had been administered before the statement was made.

The Court agrees with submission of learned counsel for the Appellant that based on the decision in Mohd Fahmi bin Hamzah (supra), the alleged information and/or confession leading to the discovery of facts in the instant case is simply not admissible as there is a clear admission by PW1 that he has not administered the statutory caution to the Appellant either before the admission of drugs in the house or at the bedroom before discovery of the alleged drug. Ground 2 (c) of the Grounds of Appeal is made out.

(2) Grounds 2 (a) and (b): Failure to record: Section 27 EA
The learned DPP contends that even if there is no caution to the statements of the Appellant under Section 37A of DDA by PW1 before obtaining information from Appellant, the information is still admissible as it amounts to information leading to discovery under Section 27 of EA and that there is no legal requirement to administer caution to render evidence of information leading to discovery be admissible under Section 27 of EA.

The Appellant contends that the alleged information and/or confession leading to the discovery of facts made by the Appellant to PW1 was not reduced into writing nor could PW1 remember exactly the interchange between him and the Appellant hence making it inadmissible under Section 27 of EA.

There is no evidence adduced that the Appellant had made any written statement following on his disclosures to PW1. Further as elaborated before, PW1 himself could not remember during the trial the exact words said by him and the reply of the Appellant on both occasions where the Appellant was allegedly to have given the information leading to the recovery of the drug (PW1: 2nd paragraph
page 12, last paragraph pages 14 to 15 & 1st paragraph page 21 ROA).
Section 27 (1) of Evidence Act 1950 stated that:-
“When any fact is deposed to as discovered in consequence of, information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to confession or not, as relates distinctly to the fact thereby discovered may be proved”.
Under Section 27 EA, admissibility is subject to the following conditions:-
(a) Accused must have been in police custody at the time of the information;
(b) A fact must have been discovered in consequence of the information given by the accused;
(c) Information must distinctly relate to the fact discovered; and
(d) The fact must be a relevant fact which relates to the commission of the crime.
(See Janab‟s Key to Criminal Procedure and Evidence, 2nd Ed. by Dr Hj Hamid
Sultan bin Abu Backer at page 783)

In respect of the defect found in the evidence of the PW1, learned counsel for the Appellant had cited the case of HasamuddinTalena v. PP (2002) 2 CLJ 504 where the appellant appealed to the Court of Appeal and the only issue in the appeal was whether the prosecution had proved the „information leading to the fact discovered‟ which the appellant was alleged to have given to the police. It was held that:
“[1]The exact words of the two statements allegedly made by the appellant during his interrogation and at the place where the drugs were discovered respectively were not reduced into writing as soon as it was practicable to do so. In respect of the first statement, there was no excuse for the interrogator's failure to take down the questions put to and the responses received from the appellant either during the interrogation or immediately thereafter. In respect of the second statement, the interrogator should have put it down in writing in his diary as soon as he returned from the scene of the crime. The appellant's conviction, which
rested squarely on these two statements, was therefore wholly unsafe.

[2]Where the prosecution sought to rely on information under the inclusionary provisions of Section 27 of the Evidence Act 1950, approximations were not permitted. The words spoken by the accused have to be strictly proved. There should also be no paraphrasing. No judge should allow one word to be deposed to by the police than it is absolutely necessary to show how the fact discovered is connected with the accused.
(Emphasis added)

In our present case, the Appellant was in the police custody at the time of the information given to the police. During the interrogation, the Appellant said there are some more drugs at the house. (Refer page 12 of ROA). The police then went to the Appellant‟s house, entered the Appellant‟s room and disclosed that the drug was inside the wardrobe. (Refer to page 13 of ROA) PW3 upon searching the wardrobe found one yellow plastic bag which was suspected to

contain cannabis (Refer to pages 13 and 14 of ROA). All the above requirements for information under Section 27 of the EA have been fulfilled by the Respondent except that as required by Hasamuddin Talena’s case (supra) the exact words used by the Appellant must be given in evidence and PW1 had admitted his total failure to recollect exactly what he said and the answers given by the Appellant. Even when the Appellant gave information on the whereabouts of the drug, it was not properly recorded by PW1, PW3 or DW2 at all, for example in their police
notebook.

The strictness of the rule in Section 27 EA is apparent from the following passage
in Sarkar on Evidence (14th Ed) at p 492:

“Statements made by accused to police officers which are or may be provable under Section 27 should be clearly and carefully recorded. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused”.
Reference is now made to PP v Krishnan (1987) 1 MLJ 292, in this case the appellant had been charged on two charges, the first of trafficking in a dangerous drug, to wit cannabis, and the second of cultivating cannabis plants. After the evidence of the investing officer was given in relation to both charges, the prosecution applied to have the second charge stayed. The proceedings then continued on the first charge only in which the appellant was subsequently found guilty and convicted.
The appellant appealed and on appeal it was argued that the evidence of the cultivation of ganja was wrongly admitted in relation to the first charge. Such evidence was inadmissible, irrelevant and prejudicial and this occasioned a miscarriage of justice.
It also appeared that the statement of the appellant not under caution was wrongly admitted in evidence and that the statement contained evidence which

was not admissible under Section 27 of the Evidence Act. The Federal Court held that in this case not only was evidence of crucial admissions to the investigating officer by the appellant, pertinent to the second charge which was stayed introduced and admitted in evidence, but admissions relating to the offence therein alleged were allowed to remain in the cautioned statement made by the appellant which the Sessions Court had admitted in evidence. Further, the statement of the accused to the investigation officer was wrongly admitted in evidence as the accused had then been arrested and no caution had been administered to him. The statement contained evidence not admissible under Section 27 of the Evidence Act, as it included more than information which distinctly relates to the facts discovered. In the circumstances the conviction was quashed and the sentence set aside.
The Court notes here that the Appellant was first arrested and searched and evidence of the first discovery of drug made for which he was not charged was adduced in evidence before the Sessions Court (PW3 (Arresting Constable): 1st paragraph page 37 ROA and DW2 (Arresting Officer):page100 ROA). This evidence of the 1st discovery for which the Appellant is not charged but adduced before the Sessions Court is highly prejudicial to the Appellant.
Coming back to recording, in Sum Kum Seng v. PP (1981) 1 MLJ 244 at 245
Chang Min Tat FJ sitting in the then Federal Court stated that:

“…both the decisions referred to and common sense stress the desirability that the actual words be recorded somewhere. The record is also as much for the protection of the particular officer concerned, be he the investigating or the interrogation officer, as for the purpose of determining its admissibility. We believe all police officers carry note books with them and we see no practical difficulty of any kind hindering any officer interrogating an accused person from jotting in his note book such a vital piece of information, on which the whole case against the accused may depend. It

would not take him more than a minute or so. Ideally it should be done at the moment it was made. We appreciate that the immediate concern of the police is to recover the subject-matter of the information but we fail to see how a delay of a minute or so can make any material difference. Afterwards, the officer can refer to this note as the actual information given by the accused leading to the discovery of fact. The note may, of course, be made afterwards but as we have said, we can see no reason why it should not have been made at the time the information was given and why the police officer should forego the value of a contemporaneous record which goes so
far as to establish his credit as a truthful witness”.

The prosecution‟s attempt to adduce evidence relying on Section 27 EA is proscribed because of the fear that where there is real possibility of it being concocted. This can be seen from the discrepancy of the evidence of PW1 with DW2 on the venue of the 1st interrogation of the Appellant. On this in Pang Chee

Meng v PP (supra), Tun Hamid Omar LP observed:

“We are not suggesting that the practice by the local police is the same as in India, nevertheless we are firmly of the view that in invoking section 27 the court should ensure the credibility of evidence by police personnel in respect of the section, which is so vulnerable to abuse. In this case the police evidence was unsatisfactory and created a doubt on the
thoroughness of the police investigation”.

(Emphasis added)

The Court is of the view that in invoking Section 27 EA, the police must have credible evidence for the Court and be subject to compliance with the strict rules of evidence. This they had failed to comply in this case and Grounds 2 (a) and (b) are made out by the Appellant.

(3) Conclusion for Ground 2 (a) (b) and (c)

The Court will find that the failure to caution and the failure to record the actual interchange between PW1 and the Appellant about more drugs and where the drugs were eventually found is fatal to the prosecution‟s case and Grounds 2 (a) (b) and (c) are made out and the Court considers it unnecessary to deal with Grounds 2 (d) and (e).

(C) Other Grounds

In view of the Court‟s decisions on Grounds 1, 2, 3 and 4, it is not necessary for the Court to deal with the other 5 Grounds of Appeal of the Appellant. The Court observes that there is also merit in Ground 5 on the shortcomings of the evidence of PW5, the Chemist as to the nature of the drug analyzed by him.

III. Conclusion

The Court feels based on the conclusions on Grounds 1, 2(a), (b) and (c), 3 and
4 that the conviction of the Appellant is not safe and would allow the appeal. The decision of learned Sessions Judge is reversed and the conviction and sentence against the Appellant is set aside. The Appellant is discharged and acquitted of the Charge of possession of 199 grams of cannabis under Section 6 of the DDA.

Dated this 31 October, 2011

-SGD-

JOHN KO WAI SENG

Judicial Commissioner

High Court,

Bintulu

Counsel:

For Appellant: Mr. Hii Chee Wung

M/s Hii & Co. Advocate, Bintulu.

For Respondent: DPP, Mr. Hairun Najmi Bin Mashahadi

Timbalan Pendakwaraya,

Cawangan Bintulu Sarawak.

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