Chapter 6.1 - Information Leading to Discovery

Question 1

INFORMATION LEADING TO DISCOVERY

Overview

Answer 1

1) General principles
2) Elements of S.27
3) Other issues on S.27

Question 2

GENERAL PRINCIPLES

Overview

Answer 2

1) Rationale for S.27
2) Requirements of S.27
3) Relationship with confession

Question 3

GENERAL PRINCIPLES

Scope & rationale for S.27

Answer 3

1) Scope for S.27 - Pulukuri Kottaya v Emperor:
- This section provides as an exception to S.24-26 & enables certain statements made by a person in police custody to be proved.
2) Rationale for S.27 - Phrabagaran Kegobalu:
- If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and it can be safely allowed to be given in evidence.

Question 4

GENERAL PRINCIPLES

Requirements for S.27

Answer 4

1) PP v Phrabagaran Kegobalu (HC, 2020):

• CONSEQUENT: That consequent to the information given by the accused, it led to the discovery of some fact stated by him.
• KNOWLEDGE: The fact discovered must be one which was not within the knowledge of the police and the knowledge of the fact was for the first time derived from the information given by the accused.
• DIRECT: Information given by the accused must lead to the discovery of a fact which is the direct outcome of such information.
• MATERIAL & MENTAL: The discovery of the fact must be in relation to a material object and of course would then embrace within its fold the mental condition i.e., the knowledge of the accused of the place where the object was produced and the knowledge that it was there.
• PORTION: only portion of the information that is distinctly connected with the said discovery is admissible.
• OFFENCE: The discovery of the fact must relate to the commission of some offence.

2) Pulukuri Kottaya v Emperor:

• discovery of a fact in consequence of information received from an accused in the custody of police officer must be deposed to;
• the information must relates distinctly to the fact discovered;
• the extent of the information admissible must depend on the exact nature of the fact to which such information is required to relate.

Question 5

GENERAL PRINCIPLES

Relationship with confession

Answer 5

PP v Prabhagaran:

• Ref. PP v Hashim bin Hanafi:
• S.27 is an exception to the law of confession under S.24-26.
• It should be applied strictly & favourably to the accused as possible.
• Court should be very vigilant to ensure the credibility of the evidence as it is so vulnerable to abuse.

Question 6

ELEMENTS OF S.27

Overview

Answer 6

1) Meaning of information
2) Whether conduct amounts to information
3) Relates distinctly to the facts
4) Examples of related distinctly to the facts
5) Whether needs to establish actual words
6) There must be no prior knowledge

Question 7

ELEMENTS OF S.27

Meaning of information

Answer 7

1) Siew Yoke Keong v PP:

• A statement or other means employed for imparting knowledge possessed by one person to another; and
• The knowledge so derived by the other person.
• It is immaterial whether the words spoken or written or the signs or the visible representations constituted the whole or only part of the speech, writing, picture etc.

2) Wai Chan Leong v PP:

• “information” included knowledge derived by the person informed by the accused;
• includes the means used to impart that knowledge.

Question 8

ELEMENTS OF S.27

Whether conduct amounts to information

Answer 8

1) Siew Yoke Keong v PP:
- includes accused’s statement, or his act or conduct such as pointing out which leads distinctly to the discovery of a fact.
2) PP v Chin Moi Moi:

• ‘information’ is not limited to a statement by the accused but also encompasses acts or conduct of the accused which relate distinctly to the fact discovered.
• e.g. acts like pointing out the place where an article is hidden or where the accused leads the police to the article.

3) PP v Prabhagaran Kegobalu (HC, 2017):
- gesturing or pointing out places as a result of which an object is found, is admissible under S.27.
4) Amathevelli a/p P Ramasamy v. Public Prosecutor (FC, 2009):
- the act of pointing the object although unaccompanied by words are admissible under S.27.
5) cf. Bala Anak Matik v PP:
- The act of pointing is not an information within S.27 but admissible as evidence of conduct under S.8.

Question 9

ELEMENTS OF S.27

Relates distinctly to the facts

Answer 9

PP v Hashim bin Hanafi:

• the information must be clearly connected with the fact, i.e. it must be such as to have caused the discovery of a fact;
• In other words, the fact must be the consequences & the information the cause of its discovery.

Question 10

ELEMENTS OF S.27

Examples of related distinctly to the facts

Answer 10

1) Pulukuri Kottaya v Emperor:

• “I will produce a knife concealed in the roof of my house with which I stabbed A”.
• the words “with which I stabbed A” were inadmissible.

2) Hashim & Anor v. PP:

• the accused told the police that he could lead them to the place “where the iron pipe used in the murder was thrown away”.
• the words “used in the murder” were inadmissible.

3) PP v Krishna Rao Gurumurthi:

• “Saya setuju tunjukkan barang kemas yang kami ambil dari kedai emas itu. - Saya ada sembunyikan dalam satu beg di tempat buang grenade di Ulu Kinta”;
• the words “yang kami ambil dari kedai emas itu” must be excluded.

4) Goi Ching Ang v PP;

• The accused’s statement was in relation to the discovery of pistols but ammunition instead was discovered;
• It was held that the fact discovered had no connection whatsoever to the statement concerned.
• Therefore, it cannot be said that it was the accused who placed the bullets inside the box.

Question 11

ELEMENTS OF S.27

Whether needs to establish actual words

Answer 11

1) General rule - Sarkar’s on Evidence:

• Statements made by accused to police officers which are or may be provable under s. 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 & should not be paraphrased.
• No judge should allow one word more to be deposed to by the police than it is absolutely necessary to show how the fact discovered is connected with the accused.

2) Application - Mustakim bin Chek Man v PP:

• it must be clearly established on what was actually said by the accused.
• Failure to establish what was actually said may lead to a finding that the alleged information did not relate distinctly to the fact discovered & S.27 could not consequently be invoked.

3) Application - Hasamuddin bin Talena v PP:

• approximations are not permitted.
• i.e. the exact words spoken by an accused have to be proved.

4) cf. PP v Hashim Hanafi:
- The information given by an accused under S.27 need not be in the actual words used though a written record is desirable.
5) cf. Sam Kun Seng v PP:

• There is no strict necessity to give the actual words;
• although it is desirable that the actual words be recorded somewhere.

6) cf. Bala Matik v PP:
- the absence of a written record cannot affect the admissibility of the oral evidence of the information.

Question 12

ELEMENTS OF S.27

There must be no prior knowledge - overview

Answer 12

1) Recovery vs discovery
2) Meaning of “having knowledge”
3) Application

Question 13

THERE MUST BE NO PRIOR KNOWLEDGE

Recovery vs discovery

Answer 13

Sarkar’s on Evidence:

• When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused.
• A device sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered laid buried or hidden and require him to make a search for them at the spot indicated to the accused.

Question 14

THERE MUST BE NO PRIOR KNOWLEDGE

Meaning of “having knowledge”

Answer 14

Pendakwa Raya v Lim Kee Chuan:

• Unless the police has verified the existence of the facts, they cannot be said to have the knowledge on the facts.
• they cannot be said to have the knowledge of the facts unless & until they have verified their belief on the knowledge of the facts by seeing the facts themselves.
• If the knowledge had not been verified, the discovery of fact pursuant to information obtained from the accused will not be considered a recovery;
• Therefore, the information may be admissible under S.27.

Question 15

THERE MUST BE NO PRIOR KNOWLEDGE

Application

Answer 15

PP v Liew Sam Seong:

• There must be no prior knowledge before the accused has given the information;
• If there is prior knowledge, it is a clear case where the police investigation is attempting to turn an ordinary ‘recovery’ of incriminating exhibits into a ‘discovery’ in order to utilise S.27; and the information is inadmissible under S.27.

Question 16

THERE MUST BE NO PRIOR KNOWLEDGE

Accused made more than one statements

Answer 16

Md Desa bin Hashim v PP:

• The accused made two statements in connection with the fact discovered; the first at the Police Station and the second at the scene.
• where the accused makes more than one statement in relation to the whereabouts of a particular thing, it is only the first statement that is admissible & the second is not.

Question 17

OTHER ISSUES ON S.27

Overview

Answer 17

1) Whether oral evidence is required to tender via S.27
2) Whether evidence of question asked prior is necessary
3) Whether S.27 is subjected to voluntariness principle

Question 18

OTHER ISSUES ON S.27

Whether oral evidence is required to tender via S.27

Answer 18

1) Amathavelli P Ramasamy v PP (FC, 2009):

• There must be oral evidence of the information supplied by the accused, i.e. tendering recorded statement alone was not sufficient;
• Recorded statement alone cannot be a substituted for the information & the police officer to whom the information was given must depose in his evidence what that information was.
• Recorded statement only serves as corroboration of oral evidence of the information.
• Absence of oral evidence renders information supplied under S.27 by the accused is inadmissible.

2) PP v Hashim Hanafi:

• Information given under s. 27 is not required by law to be in writing under S.91 & 92;
• Therefore the information must be proved by oral evidence pursuant to s. 60(b) of the Act.
• A written record of the information given by the accused will not by itself be substantive evidence of its contents;
• It is what the witness deposes in court (i.e. oral evidence) as having been said by the accused (i.e. S.113(4) ) that will be evidence.

Question 19

OTHER ISSUES ON S.27

Whether evidence of question asked is necessary

Answer 19

1) Necessary - Tai Chai Keh v PP:
- The information leading to discovery is of no value unless & until it became known what had caused the accused to lead the police there.
2) Not necessary - cf. Wong Lam Noi v PP:

• Information given after questioning or interrogation are admissible even though what were the questions asked were not revealed.
• The fact that there was no evidence of the questions posed to the accused that led him to reveal such information does not render the information given inadmissible.

3) Recent - Amathavelli P Ramasamy v PP (FC, 2009):

• S.27 did not require the question to be recorded before the information might be admitted under the said section.
• The information by itself is admissible without reference to the exact question asked, provided that oral evidence of the information is tendered.

Question 20

OTHER ISSUES ON S.27

Whether S.27 is subjected to voluntariness principle - previous position

Answer 20

1) Position prior to 1995 - Wai Chan Leong v PP:

• there were no restrictions on the method of obtaining information under s. 27 EA 1950.;
• Hence, even if the accused was forced into making such statements, they were nevertheless admissible and there was no necessity to prove
  voluntariness via a trial-within-a-trial.

Post-1995:

2) Subjected to voluntariness principle & voir dire is necessary - Md Desa Bin Hashim v PP:
- information obtained under s. 27 EA is subject to the similar voluntariness principle as required of confession.
2) Discretion of the judge - Goi Ching Ang v PP:

• S.27 EA is independent from the preceding sections;
• there was a discretion vested in the court to exclude statements which are prejudicial to the accused even if the statements are “technically admissible”.
• The issue that needs to be considered by the court is whether the information ought to be excluded in the interest of justice and fairness.

Question 21

OTHER ISSUES ON S.27

Whether S.27 is subjected to voluntariness principle -current position

Answer 21

1) Principle - Francis Antonysamy v PP:

• The court must consider the facts and the degree of force used in each case.
• The degree of involuntariness must be balanced against the fact that involuntariness is not a condition of admissibility under s. 27.
• Although there is no requirement to prove voluntariness, the court retains discretion to exclude S.27 statements on the grounds of involuntariness that is extraordinary.
• The circumstances of involuntariness must be extraordinary in order to exclude the statement on a ground which does not affect its admissibility in the first place.

2) Onus - Khairuddin bin Hassan v PP:
- The onus is on the defence to prove on a balance of probabilities that the discretion should be exercised in its favour
3) Whether voir dire is necessary - Siew Yoke Keong v PP:
- Since there is no duty on the prosecution to prove voluntariness of the information, a trial-within-a-trial may not be necessary.