[1996]2 CLJ ci
WHITHER SECTION 27 EVIDENCE ACT? A SHORT COMMENT ON MD. DESA BIN HASHIM v. PP
by
Assoc. Prof. Abu Bakar Munir
Malaysia
Abd. Shukor Ahmad
Introduction:
The Federal Court's recent decision in Md Desa bin Hashim v. PP1 invites critical scrutiny. There, the Court, in attempting to lay down exhaustively the scope
of ss. 24, 25, 26 and 27 of the Evidence Act, 2 held that:
... [T]he principle is that ss. 25 and 26 are subject to s. 27 but all these three sections are governed by and subject to s. 24 ... . In order for a
confession or other statement or information to qualify for admission under s. 27 [of the Evidence Act] it must have been made voluantarily. A
discovery made in consequence of a confession extracted by illegitimate means in the sense described in s. 24 is inadmissable. When a
challenge is taken as to the voluantariness of the information, it is imperative for a trial Judge to determine that issue upon a voir dire .3
This means that "the rule permitting admissibility contained in s. 27 is an exception to the prohibition appearing in the two sections that immediately precede it
but does not qualify all the pervading qualifications enacted in s. 24."4
Thus the question that lingers in the mind of the prosecution and accused alike is that, does the above quoted statements truly reflect the scope of the said
sections. More importantly the question is, can s. 24 cut down the operation of s. 27? Is s. 27 intended by the legislature to provide exception to s. 26 only or
to ss. 25 and 26 or is it all the preceding sections, namely ss. 24 to 26? We proposed to discuss these questions. In this article we will endeavour to examine
the history behind s. 27 which we believe provides the rationale for the existence of the section. Then we will trace historically the attitude of the Malyasian
Courts towards s. 27. We will argue that despite the forceful pronouncement by the Court, the decision in Md Desa is seriously flawed and should be laid to
rest if an when opportunity arisess in the near future.5
The History Illustrated
The origin of s. 27 could be found in the Indian Code of Criminal Procedure, Act XXV of 1861.5 It was transplanted into the Evidence Act by its draftsman, Sir
James Fitzjames Stephen. In effect it embodies the common law doctrine of 'confirmation by subsequent facts' or the 'doctrine of confirmation by
subsequently discovered facts'.7 The doctrine means that "in consequence of a confession otherwise inadmissible, a search is made and facts discovered
which confirm (the confession) in material points, and the confession should be accepted (without hesitation)."8
The foundation for the doctrine of confirmation by subsequent facts have been laid down in the case ofR v. Warickshall.9 In that case the accused was
charged as an accomplice to theft and as a receiver of stolen goods. As a result of an improper inducement she admitted where the stolen property could be
found. The police found the property and naturally sought to adduce it as evidence. The Court first noted that the rationale for excluding confession was
doubtfulness as to its reliablity. It further observed that:
Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not
dependent only upon possible unreliability but also upon [the principle] that a man cannot be compelled to incriminate himself and upon the
importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.19
At this juncture it is pertinent to note that the above observation by Lord Griffith is not part of the Malysian law. A perusal of case law would reveal that Courts
in Malaysia have consistently adopted the reliability principle.20 As early as 1908 the Court in R v. Mong Phan21 has shown acceptance ofthe reliability
principle. The facts of the case were that a prisoner, in the custody of the Siamese police, who was charged with murder, confessed his guilt, under
compulsion of threat and violence, and consequently pointed out where the deceased's property was hidden and made certain statements regarding it.
The prisoner had, by certain Siamese officials, been induced to make a confession that he had murdered the deceased. After obtaining the confession, the
Siamese officials took the prisoner to the neighbourhood of the spot where the deceased's body had been previously found. By means of threat and violence
the Siamese officials forced the prisoner to point out the different places where the money and property of the deceased had been secreted and the spot
where the deceased's gun had been thrown into the river. In the course of this search one of the officials cut the prisoner on the head with a knife. The
prisoner having forced to do so pointed out the places. Upon search, the money, gun and other property of the deceased were found. It was contended on the
deceased's behalf that the confession, theact of pointing to various places and his accompanying statements were all part and parcel of the confession. And
the confession not being voluntary, evidence to such act and statement should be excluded.
The Court however held that "the confession itself is excluded but the subsequent acts and statements were no part ofthe confession. Those acts and
statements though obtained by threats or even violence, cannot be treated as confession and evidence of such acts and statements (sic) were properly
admitted."22
Subsequent cases have also adopted similar reasoning. In the case ofPP v. Er Ah Kiat 23 Raja Azlan Shah (as he then was) quoted with approval the
observation by Park J in Thurtell and Hunt where the latter held that:
... [A] confession obtained by saying to the party 'You have better confess, or it will be the worse for you ... ' is not legal evidence, it is every day
practice that if in the course of such confession the party states where stolen goods or a body may be found, and they are found accordingly, this
is evidence, because the fact finding proves the truth of the allegation, and his evidence in this respect is not vitiated by the hopes of threat which
may have been held out to him.24
Again in the case ofPP v. Toh Ah Keat,25 Hashim Yeop Sani J whilst expressing disagreement with the decision in PP v. John Alias Arupallan 26 ( in the latter
case Cussen J held that the reason for admission under s. 27 is that the discovery of fact is sufficient guarantee or assurance of the voluntary character of the
statement) held that:
If we look at the logic of the limitation prescribed under s. 27 of the Evidence Act it can be seen that the statement is admissible because the fact
of discovery rebuts the presumption of falsity arising from the probablity of it being made as a result of inducement or pressure. The discovery
proves that not the whole but some portion of the statement given is true, namely so much of the information as led directly or immediately to or
proximate cause of discovery. Only such portion of the information is guaranteed by discovery and hence only such portion is admissible.27
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The Courts have found no difficulty in holding that s. 27 is an exception to all the preceding sections, namely ss. 24 to 26. The Supreme Court recently held so
in the case ofWai Chan Leong v. PP 28 where Gun Chit Tuan SCJ observed that s. 27 is an exception to the prohibition imposed by the preceding ss. 24, 25
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and 26.
It is submitted that this is the correct view. By requiring the statement to be voluntary it restricts the usefulness of s. 27 in the sense that s. 27 can be
considered superfluous. If the statement is voluntary thus the act of pointing to places and the accompanying statements will be admissible not under s. 27
but as part of the confession. After all the object of s. 27 is a saving provision of sort, that is to say if the confession is not admissible, because it was not
voluntarily given, s. 27 would come in aid, in that, certain portion of the statement that leads to the discovery of fact can be admitted. In such a case there is
no harm in receiving that particular portion.
If there is suspicion that they are tainted, is not that taint washed off by the discovery of fact?
The Reference to Indian Authorities
For holding that s. 27 is not an exception to s. 24, the learned Judge Gopal Sri Ram JCA, with whom justices Anuar CJ (Malaya) and Wan Adnan FCJ
concurred, relied on the Indian cases ofRamakrishnan Mithanlal Sharma v. The State of Bombay;29and Vijay Kumar v. State of Himachal Pradesh. 30 The
reference to the Indian authorities with all due respect, we find baffling. It is because of the fact that the Indian cases on this matter are of little help.
In India, the question whether s. 27 provides an exception to s. 26 only or ss. 25 and 26 or whether it provides an exception to all the sections (24, 25 and 26)
has been debated in many cases. It has given rise to not less than three different views. The first view being that s. 27 is an exception to s. 26 alone.31
Another view is that s. 27 is an exception to both ss. 25 and 26.32 Yet another view is that s. 27 is an exception to all the preceding sections namely ss. 24, 25
and 26.33
The Law Commission in India in its report on the Indian Evidence Act 34 however has taken the view that s. 27 cannot override the operation of s. 24. No
reasons were given by the Law Commission for having taken such stand other than for policy reason.
However the more recent Indian cases apparently have disagreed with the Law Commission's recommendation. One need only to refer to a recent Indian
Supreme Court's decision on the matter to bring home the point. In Kartar Singh v. State of Punjab 35 the Supreme Court consisting of five Judges held that s.
27 makes an exception to ss. 24, 25 and 26. In addition to that the Court observed that:
When the Indian Evidence Act was enacted, the British Parliment has with them the Law Commission's Report that the police resorted to extort
confession by force, threat or inducement and therefore had taken care of elaborate safeguard engrafted in ss. 24 to 30 to exclude evidence
obtained in the stated circumstances with an exception of s. 27 that fact discovered in consequence of the statement made by the accused was
made admissible.
At this juncture it is also appropriate to note the observation in Sarkar Law of Evidence, where it is stated that:
the question [whether s. 27 is an exception to s. 26 only or to ss. 25 and 26 or to all the three sections] was debated in several [sic] cases and it
now appears to be well settled that s. 27 qualifies not only s. 26 but cuts down the operation of ss. 24 and 25 as well.
Is s. 27 Intended to Admit Confession?
To appreciate the scope of s. 27, one must bear in mind the context in which it appears. The section dealing with relevancy of confession in a legal proceeding
are ss. 24 to 30. Section 24 lays down the rule that confession by an accused person obtained by means of threats, inducement or promise are irrelevant.
Section 25 deals with confession by accused person to the police officer and imposes absolute ban on its reception as evidence. Sections 26 and 27 deal with
confession and statements made while a person is in police custody.
Section 27 contemplates evidence being given of 'so much information whether it amounts to confession or not'. That is to say the section contemplates the
admissiblity of statement such as 'I have concealed the weapon', 'I have hidden', 'I have kept' and etc.
It must be borne in mind that section 27 is not for the purpose of admitting evidence of confession. In PP v. Toh Ah Kiatthe Court held that:
The Policy Consideration
There is also a sound policy reason of saying that s. 27 should be an exception to s. 24. It can be explained in this way. The whole trust of criminal
jurisprudence is a matter of balancing of right between an accused person as one party and State as the other party. And it is common knowledge that the
State bears the burden of proving the case beyond reasonable doubt the offence complained of. 41 As a necessary corollary the law gives concessions to the
accused person such as the benefit of doubt, the right to remain silent etc. At the same time the law also caters for the needs of the State. In this respect the
observation by Raja Azlan Shah J in Chandrasekaran v. PP 42 is relevant. The learned Judge said that:
Section 27 is a concession to the prosecution. It is an express intention of the legislature that, even though the statement is otherwise hit by the three
preceding sections, viz, ss. 2426 of the Evidence Ordinance, any portion thereof is nevertheless admissible if it leads to the discovery of relevant fact. 43
Based on the above arguments, it is respectfully submitted that the proposition in Md. Desa cannot be the correct law. First the proposition cannot stand if
tested against historical underpinnings of s. 27. Secondly, the overwhelming local authorities seem to have held to the contrary. Reading the judgment in Md.
Desathe one thing that kept reverberating in mind is the novel observation in one case where the learned Judge said "it is better to accept the fate of being
consigned to the category of timorous soul rather than to be ranked amongst those who rushed in where angels fear to tread.44 Has the Court in this case
treaded in areas where angels fear to tread?
Endnotes:
1. [1995] 4 CLJ 677; [1995] 3 MLJ 350.
2. Laws of Malaysia, Evidence Act 1950. Act 56. Unless otherwise indicated the reference in this note would be to the Evidence Act.
3. Supra n. 1 at pp. 687 CLJ; 359360 MLJ.
4. Ibid.
5. In this article we are concerned with the sixth proposition in Md. Desa b. Hashim. The correctness of the other propositions is outside the
purview of this article.
6. Namely s. 150 of Criminal Procedure Code 1861. See also the observation by Hashim Yeop Sani J in Toh Ah Keat v. PP [1977] 2 MLJ 87 at p.
88 Para I.
7. See Winslow, "Confession, Confirmation and Resurrection" [1982] 24 Mal. LR 88; Gottlied, "Confirmation By Subsequent Facts," 71 LQR 209
277; JA Andrews, "Involuntary Confession and Illegally Obtained Evidence in Criminal Trials," [1963] Crim. LR 15 (Part I), 77 (Part II).
8. Wigmore, Evidence in Trial at Common Law, Vol. III s. 856.
9. 168 ER 234; [1783] 1 Leach 263.
10. Ibid. At p. 235.
11. 168 ER 295; [1785] 1 Leach 386. See also the case of S v. Deoman Upadhayaya AIR 1960 All 1; 1959 ALJ 651 where Hidayatullah J held
that s. 27 is taken bodily from Lockhart case. The correctness of this observation is doubtful; see Winslow, supra, p. 115, fn 58.
12. Ibid at p. 295.
13. 173 ER 87.
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14. [1824] Notable British Trials 144 and 145. The cases were referred to in the case of Basri b. Salihin v. Public Prosecutor [1994] 2 MLJ 476 at
p. 487 per visu Sinnadurai J. See also the English cases of R v. Mosely 168 ER 235; R v. Hodge 2 East PC 658; R v. Jenkins 168 ER 914; cf. R v.
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Baker [1941] 28 Cr. App R 52.
15. Ibid fn 14.
16. See the cases of Lam ChiMing & Ors. v. R [1991] 3 All ER 172; [1991] 2 AC 212; R v. Sang [1979] 2 All ER 122; [1980] AC 402; [1979] 3
WLR 263. In England the rule in Warickshall is preserved by s. 76(4) of the Police and Criminal Evidence Act 1984 which provides that the facts
that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissiblity of evidence:
(a) of any facts discovered as a result of the confession ...
It should be pointed out that the position in Malaysia is wider than that in English law. In Malaysia, 'fact discovered' includes the place from which
the object is produced and the knowledge of the accused to that information includes an expurgated statement, other statements not forming part
of inadmissible confession and acts or conducts of the accused: see Winslow, supra p. 107.
17. Pulukkori Kottaya & Ors. v. King Emperor [1947] 74 IA at p. 76.
18. Lam Chiming & Ors. v. R [1991] 3 All ER 172.
19. Ibid at p. 178
20. Similarly in Singapore the High Court in the most recent case of PP v. Chin Moi Moi [1995] 1 SLR 297 held that the rationale for admissiblity of
the statement which is subsequently confirmed by the discovery of a material fact is that it is reliable. The Court also noted that the law in England
on this point is different.
21. [1908] SSLR 96. It was rightly pointed out by Winslow [1982] 24 Mal. LR 88) that this case is a fairly weak authority for the fact that the
Singapore Court of Strait Settlements was hearing a question of law reserved by the Judge of H.B.M's Court for Siam and s. 27 was not referred
to. However it is submitted that the case is a relevant authority to show the tendency taken by the Court on question whether involuntary
statement which leads to the discovery of facts is admissible or otherwise.
22. [1908] SSLR 96 at p. 100.
23. [1966] 1 MLJ 9.
24. Reproduced at p. 10 of the judgment in PP v. Er Ah Kiat,supra, n 23.
25. [1977] 2 MLJ 87.
26. [1939] 8 MLJ 291.
27. [1977] 2 MLJ 87 at p. 89.
28. [1989] 3 MLJ 356. See also the cases of Lim Ah Oh & Anor. v. R [1950] 16 MLJ 269 at p. 270 ; Pang Chee Meng v. PP [1992] 1 MLJ 137, SC;
PP v. Muhammad Nasir b. Shaharudin & Anor. [1994] 2 MLJ 576 HC; PP v. Basri b. Salihin [1994] 2 MLJ 476 HC.
29. AIR 1955 SC 104. With regards to this case Batuk Lal argued that this case is not the authority for the preposition that s. 27 is not an
exception to s. 24 for the fact that the Court left open the question; see Batuk Lal, The Law of Evidence, [1986] p. 126.
30. [1978] Cri. LJ 1619. Divisional Bench of H.P. High Court.
31. Udai Bhan v. State of U.P. AIR 1962 SC 1116.
32. Mst. Jamuna Partap v. Emperor AIR 1936 Nag 200.
33. Q.E. v. Babulal ILR 6 ALL 609; State of U.P. v. Deoman Upadhayaya AIR 1960 SC 1125.
34. Law Commission of India: Report No. 69 (May 1977) on the Indian Evidence Act, 1872 para. 11.54.
35. [1994] 3 SCC at p. 723. See also the case of Meghaji Godaji Thakore & Anor. v. The State of Gujarat [1993] Cri. LJ 730. Divisional Bench of
Gujarat High Court.
36. Sarkar, Law of Evidence, Vol. 1 at p. 466. Other Indian writers have expressed similar view; see Woodroffe & Amir Ali, Law of Evidence, 15th
Edn. [1989] p. 942; C.D. Field's Law of Evidence, 11th Edn., p. 1963; Monir's Law of Evidence, 3rd Edn., [1986] p. 140 ; Batuk Lal, The Law of
Evidence, [1986] p. 126; S.P. Sen Gupta, Sen Gupta Law of Evidence, [1988] pp. 350 353.
37. [1977] 2 MLJ 87 at p. 89. See also Pulukkori Kottaya v. Emperor [1947] 74 IA 65.
38. [1965] 1 MLJ 245 at 247.
39. [1951] MLJ 181.
40. [1947] 74 IA 65.
41. See for example the cases of Mat v. PP [1963] MLJ 263; Mohamed Radhi v. PP [1991] 3 MLJ 169.
42. [1971] 1 MLJ 53.
43. See note 20; The learned Judge Yung Pow How CJ, in that case quoted and reproduced this passage and stated that the view taken by the
Malaysian Supreme Court in Wai Chan Leong, supra, would also represent the position in Singapore.
44. Inter Maritime v. Kai Tai Timber Hong Kong [1995] 4 CLJ 164; [1995] 1 MLJ 322 at p. 337.
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