1

Malayan Law Journal Articles/2003/Volume 3/Section 27 Discovery Information: to have or not to have a voir
dire

[2003] 3 MLJ cxxi

Malayan Law Journal Articles

2003

Section 27 Discovery Information: to have or not to have a voir dire

Mohd Akram Shair Mohamad

LLB, PhD, Barrister, Advocate & Solicitor, Professor of Law, Ahmad Ibrahim Kulliyyah of Laws, International
Islamic University Malaysia

SUMMARY

1. The gist of s 24 of the Evidence Act is that an accused person's confession is only admissible
in evidence against him if it is voluntarily. That is, it is not as a result of inducement, threat,
promise, or oppressive conduct, held out by a person in authority that if the accused makes a
confession he will gain and advantage or suffer a prejudice of a temporal nature: Dato Mokhtar
Hashim; DPP v Ping Lin; Hasibullah v PP.
2. Section 25 of the Evidence Act makes a confession of an accused to the police ipso facto in-
admissible in evidence against the accused.
3. Even if a confession made by an accused while he is in police custody is inadmissible against
him, s 26.
4. The legend has been that s 27 provides an exception to the above three sections. Under this
section, if an accused whilst in police custody gives information, whether or not it is confession-
al, so much of the information that leads to the discovery of the relevant fact is admissible. This
section is a sort of a concession given to the prosecution Chandresekaran v PP.
5. This legend was exploded by the Federal Court in 1995 in Mohd Desa b Hashim v PP where it
was held that a s 27 discovery information, is subject to the voluntariness test embodied in s 24.
If there is a challenge to the voluntariness of the information then a voir dire must be held to
determine its voluntariness. Only if voluntary it will be admissible.
6. Four years later in 1999, the Federal Court in Goi Ching Ang v PP held that s 27 is not subject
to s 24, but nevertheless said that a trial court has discretion to exclusion such a discovery in-
formation if its prejudicial effect outweighs its probative value.
7. Post Goi Ching Ang, two high court judges have interpreted the Goi ratio to mean that s 27
discovery information is not subject to the voluntariness test, while another high court judge this
year has interpreted Goi, that the voluntariness test in Mohd Desa is intact.
8. It is diffidently submitted that Desa's judgment is a result of the winnowed legal wisdom of a
very experienced Federal Court and its
3 MLJ cxxi at cxxii
merits must be revisited or the controversy now settled by the Federal Court once and for all, in
the interest of criminal justice.
Section 27 of the Evidence Act states:

When any fact is deposed to as discovered in consequence of information received from a person accused of any of-
fence in the custody of a police officer, so much of such information, whether such information amounts to a confession
or not, as relates distinctly to the fact thereby discovered may be proved.
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The law behind s 27 of the Evidence Act has been sufficiently worked out by leading cases by the Privy
Council, the Indian Supreme Court and the Sri Lankan courts as well as its Malaysian and Singapore coun-
terparts.
In the locus classicus on the exegesis of s 27, Pulukuri Kottaya v King Emperor,1 Sir John Beaumont ob-
served:

Section 27 which is not artistically worded provides an exception to the prohibition imposed by the preceding section
and enables certain statements made by a person in police custody to be proved.

This was a Privy Council decision on appeal from India. In another Privy Council decision on appeal from Sri
Lanka, R v Ramasamy,2 the Privy Council observed that:

Their Lordship think that they must accept the conclusion that evidence falling within section 27 (of the Sri Lankan Evi-
dence Ordinance, which is in pari materia with section 27 of the Indian Evidence Act 1872, s 27 of the Singapore Evi-
dence Act (Cap 97 1990 Ed) s 27 of the Malaysian Evidence Act 1950 and similar provision of the Brunei Evidence
Act)3 can lawfully be given at a trial, even though it would otherwise be excluded as a statement made in the course of
an investigation under s 122 (of the Sri Lankan Criminal Procedure Code).

In Chandrasekeran & Ors v PP,4 Raja Azlan Shah J (as his Majesty then was) observed that:

Section 27 is a concession to the prosecution. It is the express intention of the legislature that, even though such a
statement is otherwise hit by the three preceding sections viz, sections 24-26 of the Evidence Ordinance, any portion
thereof is nevertheless admissible in evidence if it leads to the discovery of a relevant fact. The reason is that, since the
discovery itself provides the acid test, the truth of the statement that led to the discovery is thereby guaranteed. Admis-
sibility of evidence under s 27 is in no way related to the making of the confession; rather, such evidence is admitted on
clear grounds of relevancy as directly connecting the accused with the object recovered. A similar view was rehearsed
in the former Supreme Court case of Wai Chan Leong v PP 5 through
3 MLJ cxxi at cxxiii
Gun Chit Tuan SCJ that 'Firstly, as section 27 is an exception to the prohibition imposed by the preceding ss 24, 25
and 26 of the Evidence Act, it must be borne in mind that for s 27 of the Evidence Act to apply, the information must be
such as has caused the discovery of the fact'.

In PP v Basri bin Salihin,6 Visu Sinnadurai J noted that:

Basically, the scope of s 27, which is an exception to the general rule provided in ss 25 and 26 of the Act, is that any
information given by an accused, even though amounting to a confession, is admissible if any fact is deposed to be
discovered as a consequence of the information given. In other words, s 27 of the Act is in the nature of an exception to
the general rule governing the admissibility of confessions made by accused person.7

In the Singapore case of PP v Chin Moi Moi,8 Yong Pung How CJ said:

Section 27 of the Evidence Act is of course derived from the Indian Evidence Act and is similarly worded, save for the
words 'Provided that', found at the commencement of the Indian s 27. In India the preceding words gave rise to some
difficulty on the construction of the section. It was at one time uncertain whether s 27 was merely an exception to s 26
alone or to s 25 and s 26 (since ss 25 to 27 was apparently taken out almost word for word from the Indian Code of
Criminal Procedure (Act XXV of 1861) into the Indian Evidence Act) or ss 24 to 27. However, it now seems to have
been settled that s 27 qualifies ss 24 to 26. The learned CJ then approved the proposition enunciated in Pulukuri
Kottaya v Emperor, Chandrasekaran v PP and Wai Chan Leong v PP ante. The proposition that s 27 constitutes an
exception to the prohibition imposed by preceding ss 24 to 26 was again accepted recently in PP v Krishna Rao Guru-
murthi & Ors9 by Justice Kang Hwee Gee.
In PP v Basri bin Salihan,10 Justice Visu Sinnadurai took pains to point out that 'the exception embodied in s 27 of the
Act is peculiar to countries like Malaysia, Singapore, India and Sri Lanka (one might add Brunei now) where the law of
evidence is incorporated in the Evidence Act.

Historical conspectus of s 27 and its rationale

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The genesis of s 27 of our Evidence Act can be traced back to s 150 of the Indian Criminal Procedure Code
(Act XXV) of 1861, subsequently amended by Act VIII of 1869. The amended s 150 of the Indian Code was
transferred to the Indian Evidence Act 1872 as s 27. Except for the words 'provided that' appearing at the
commencement of the Indian s 27, our s 27 is substantially the same as the Indian provision.
Section 27 of the Indian Evidence Act 1872 was believed to have been taken from that part of the develop-
ment of the English common law to the effect that those parts of the confession made by a accused leading
to the
3 MLJ cxxi at cxxiv
discovery of the facts could be admitted in evidence even though the confession was not voluntarily made,
the rationale being that the reliability of the information, backed by subsequent discovery justified such ad-
mission. As Viscount Radcliffe in the Privy Council case of R v Ramasamy11 said at pp 14-15:

The principle embodied in s 27 has always been explained as one derived from the English common law and imported
into the criminal law of British India by legislators of the mid-nineteenth century.

In short, s 27 of the Evidence Act loosely represents what is known as the doctrine of confirmation by sub-
sequent facts. This doctrine holds that where in consequence of a confession, otherwise inadmissible, a
search is made and facts are discovered which confirm the confession in material points, the possible influ-
ence of which is attributed to improper inducement is seen to have been nil and the confession may be ac-
cepted without hesitation.12 The rationale for the admissibility of that part of the statement which is subse-
quently confirmed by the discovery of a material fact is that it must be reliable.
However, this generally held view that s 27 of the Evidence Act was grounded on a similar exception under
the common law has been found to be flawed by the Privy Council in the recent case of Lam Chi Ming & Ors
v R.13 Lord Griffith opined that:

Their Lordships are unable to accept that the exception which appears to have existed for a short time in the early part
of the nineteenth century, under which evidence of part of the confession was admitted, ever became part of the com-
mon law. Such a development was repudiated by Lord Scarman in R v Sang.14

In the same case, the Privy Council further clarified the historical reason as to how s 27 first came to be en-
acted in India. The early English cases, like R v Warickshall,15 had stated unreliability of the evidence as the
ground for rejecting the admissibility of confessions which were not voluntary. It was held that a confession
obtained by the police through improper use of threat or torture or fear could not be relied upon as the truth.
However, in a few cases like R v Gould16 and Thurtell and Hunt's Trial,17 the courts held that the discovery of
a fact though an improperly obtained confession was admissible, as it could not be said to be unreliable as
the finding of the fact by the police added credibility to the confession.
3 MLJ cxxi at cxxv
It was this development of the common law by these few English cases that subsequently became reflected
in s 27 of the Indian Evidence Act, the Indian legislators taking the view that this was part of the common law.
But the English law, as developed in Thurtell and Hunt's Trial was short-lived.18 It never gained the subse-
quent acceptance of the English courts. The English courts no longer accepted the justification for the exclu-
sion of an improperly obtained confession on the ground of unreliability but on the principle that no man is to
be compelled to incriminate himself. In R v Sang,19 Lord Scarman opined at p 1245 that:

In English law the confession is inadmissible, not because it is unreliable (its reliability is established by what has been
found) but because to admit it would be unfair'.

In a similar vein, Lord Griffiths in Lam Chi-Ming20 said:

Their Lordships are of the view that the more recent English cases established that the rejection of an improperly ob-
tained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be
 4

compelled to incriminate himself and upon the importance that attaches in a civilized society to proper behaviour by the
police towards those in their custody.

However, even though the English courts rejected the admissibility of an improperly obtained confession
even if it led to the discovery of certain facts, and thereby this rule never became part of the common law,
the rule however became embedded in India, Sri Lanka, Singapore, Malaysia and Brunei through s 27 of the
Evidence Act. The courts in so construing this section have accepted the original principle that the basis for
this exception was the reliability of the confession. This is graphically reflected in Pulukuri Kottaya v King
Emperor,21 where Sir John Beaumont said at p 76:

This section seems to be based on the view that if a fact is actually discovered in consequence of information given,
some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in
evidence.

Likewise Lord Radcliffe in R v Ramasamy22 said at pp 14-15 that:

Section 27, on the contrary, envisages a situation in which circumstances themselves vouch for the truth of certain
statements made by an accused person, even though they were made in conditions that would otherwise justify suspi-
cion. It (s 27) qualifies for admission any such statement or information that might otherwise be suspect on the ground
of a general objection to the reliability of evidence of that type.

3 MLJ cxxi at cxxvi

Clearly s 27 makes serious inroads into certain fundamental principles of the criminal law applicable in the
country. That is why the courts, in jurisdictions where an exception against the admissibility of confessions is
provided for, in provisions similar to s 27 of the Act, have been wary in admitting such confessions made by
accused persons. In all these jurisdictions s 27 has been strictly construed.23

Section 27 strictly construed

The Supreme Court in Pang Chee Meng v PP,24 through Abdul Hamid LP said at p 140:

Section 27 has frequently been misused by the police and the courts should be vigilant about the circumvention of its
provisions ... the courts should be very vigilant to ensure the credibility of evidence by the police personnel in respect of
this section, which is so vulnerable to abuse.

This chary attitude of the courts towards the admissibility of information under s 27 was further strengthened
by judgements in cases like PP v Muhammad Nasir bin Shaharuddin & Ors,25 and PP v Basri b Salihin.26

Meaning of fact discovered

In the leading local case Chong Soon Koy v PP,27 Suffian LP said that their Lordship of the Privy Council in
Pulukuri Kottaya v King Emperor had observed that:

It is fallacious to treat fact discovered in s 27 as equivalent to the object produced; the fact discovered embraces the
place from which the object is produced and the knowledge of the accused as to this and the information given must
relate distinctly to this fact.

This point that 'fact' includes both a physical as well as a psychological fact has been endorsed by a plethora
of local cases, the latest being PP v Krishna Rao Gurumurthi & Ors,28 where Kang Hwee Gee J, agreeing
with the dictum, also referred to the definition of 'fact' in s 3 of the Evidence Act 1950, which definition en-
compasses both physical and psychological facts.
3 MLJ cxxi at cxxvii

Meaning of 'information' distinct from 'statement'

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In a useful Indian case of Karam Din v Emperor,29 Dalip Singh J said at p 340 that:

In connection with this (s 27), it is necessary to bear in mind that the word 'information' cannot be used as synonymous
with the word 'statement'. There is no reason why the word 'information' should have been used instead of the word
'statement' in the section if, by 'information' statement alone was intended. The word 'information' as distinct from the
word 'statement' connotes two things, namely a statement or other means employed for imparting knowledge pos-
sessed by one person to another, and the knowledge so derived by the other person.

In Chong Soon Koy v PP,30 Suffian LP again noted that:

It must also be observed that the legislature has used the expression 'information' in s 27 of the Evidence Act and
therefore did not intend it to have the same meaning as a statement. Although the expression is not defined in the Evi-
dence Act, unlike a statement, it includes knowledge derived by the person informed by the accused as well as the
means to impart that knowledge.

This statement of the law was approvingly quoted by Kang J in PP v Krishna Rao Gurumurthi.31 In PP v Chin
Moi Moi,32 Yong Pung How CJ reminded that:

It is material to note that information under s 27 does not apply to statements. The words "whether such information
amounts to a confession or not" clearly indicate that "information" is not only limited to a statement by the accused but
also encompasses acts or conduct of the accused which relate distinctly to the fact discovered. This would consist of
acts like pointing out the place where an article is hidden or where the accused leads the police to the article.

In PP v Kanapathy Kuppusamy & Anor,33 Nik Hashim J again said at p 69,

To constitute "information" under the section, the information under the section must come from the accused and no-
body else. The information must be the accused's own statement in his own language.

Meaning of discovery
Way back in 1948 in Hamiron bin Mat Udin & Ors v PP,34 Murray Aynsley CJ at p 51 emphasized that the first
step that must be taken before s 27 can be invoked at all must be proof of some fact discovered as a result
of the
3 MLJ cxxi at cxxviii
information given by the accused. The learned CJ approved the proposition stated in the Indian case of Su-
khan v The Crown,35 that

When the prosecution has, after satisfying the court about its relevancy, deposed to the fact discovered by him, he has
laid the foundation for proving the information received by him from the accused.

Discovery connotes some element of concealment

A few good Indian cases have stated this salutary view. In Sandhu Singh v State,36 Falshaw CJ said at p 15
that:

What is more serious in the present case is that in my opinion the use of s 27 of the Evidence Act for the purpose of in-
troducing a so-called disclosure statement becomes meaningless and almost farcical, since it is quite obvious that the
opium was not in a place of concealment at all and could have been found by the most perfunctory search by a police
officer. A disclosure statement in my opinion only has any meaning at all if the place where the incriminating article was
recovered is really a place of concealment which it would be difficult or impossible for the police to discover without
some assistance from the accused.

Earlier in MP State v Dhannalal Moruji,37 Krishnan J had opined at p 242, that

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The discovery should be the finding of something which had been partly or wholly concealed and which might not have
been found out, at least at that time, at least as a consequence of the statement. When there is no concealment obvi-
ously there is no discovery.

Again in Abdul Sattar v Union Territory,38 the Indian Supreme Court had held that nothing is discovered un-
less the place from where the incriminating article is recovered is really a place of concealment which the
police could not have discovered without some assistance from the accused. In the local case of Basri b Sa-
lihin v PP,39 Visu Sinnadurai J agreed with the Indian case of Sandu Singh v the State.40

Mere recovery is not discovery within the meaning of s 27

As Visu Sinnadurai J aptly pointed out -- that the correct principle of law appears to be that where the police
had the means of discovering a fact, or had already discovered a fact, the subsequent finding of the object or
item with the assistance of the accused through the information, cannot make the
3 MLJ cxxi at cxxix
information admissible under s 27.41 As Mohamed Azmi J (as he then was) observed in PP v Liew Sam
Seong,42

Section 27 has frequently been misused by the police and courts should be vigilant about the circumvention of its pro-
visions ... 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 ... It has been observed that it has be-
come a normal device of the investigating agency to turn an ordinary recovery into a discovery in order to utilize the
provisions of section 27.

'To do otherwise', warned KC Vohrah in PP v Norzilan b Yaacob & Anor,43

Would be to misuse the provisions of s 27 of the Evidence Act 1950 so as to allow any police officer to put his question
to a person in custody in such way as and to juxtapose the words therein to give the impression that the person in cus-
tody gave information which not only led to the discovery of a fact but also contained an admission in relation to an al-
ready discovered fact negating the provisions of ss 24 to 26 of the Evidence Act and circumventing the provisions of s
113 of the Criminal Procedure Code (FMS Cap 6) and provisions of the written law relating to cautioned statements.
Only so much of the information as relates distinctly to the fact discovered is admissible.

Information must relate distinctly to the fact discovered. Information must be the cause, discovery of
the relevant fact the consequence of the information
In Pulukuri Kottaya v King Emperor,44 the Privy Council noted that:

On a plain reading of the terms of the section (s 27), it appears that what is allowed to be proved is the information or
such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement
made by the accused to the police officer, and the police officer is obviously precluded from proving the information or
part thereof unless it comes within the four corners of the section. If the police officer wants to prove the information ...
the court would have to consider whether it relates distinctly to the fact thereby discovered and allow proof thereof only
if that condition was satisfied. If however the police officer does not want to prove the information, s 27 does not come
into operation at all.

Bhagwati J in the Indian case of Ramkishen Mithanlal & Others v State of Bombay,45 while accepting this
proposition said:

Where, however any fact is discovered in consequence of information received from a person accused of any offence,
in the custody of a police officer, that
3 MLJ cxxi at cxxx
part of the information as relates distinctly to the fact thereby discovered can be proved whether it amounts to a con-
fession or not.
 7

Sharma J in Yee Ya Mang v PP,46 after having referred to these two cases, said:

The word 'distinctly' in s 27 of the Evidence Ordinance is important. It means only that part of the statement which leads
directly to the recovery is admissible.

Again in Birch v PP,47 Syed Agil Barakbah J, observed that:

Information leading to the discovery must relate distinctly to the object so recovered and nothing more.

In at least two cases, one from Singapore, that is; PP v Chin Moi Moi,48 per Yong Pung How CJ, and the re-
cent Malaysian case of PP v Krishna Rao Gurumurthi & Ors,49 per Kang J, the milestone decision of the Ma-
laysian Supreme Court in Wai Chan Leong v PP 50 was followed. Gunn Chit Tuan SCJ reminded us, in that
decision, to bear in mind that:

For s 27 of the Evidence Act to apply, the information must be such as has caused discovery of a fact. In other words,
the fact must be the consequence and the information the cause of the discovery.

It is worth noting that s 27 of the Evidence Act allows the evidence leading to the discovery of the offending
exhibits, if the accused himself had led to the discovery not someone else. This was pointed out by Mus-
tapha Hussain J in Palldas a/l Arumugam v PP.51
Certainly s 27 is not a backdoor avenue for the admission of statements made by an accused person to the
police, bypassing s 24 of the Evidence Act and s 113 of the Malaysian Criminal Procedure Code or s 37A of
the Dangerous Drugs Act 1952, and similar provisions in other laws, including s 122(5) of the Singapore
Criminal Procedure Code. In Tan Hung Song v R,52 Brown Ag CJ had cautioned that the section was not to
let in confessions generally and no more than that which showed how the fact which was discovered con-
nected with the accused was admissible.
3 MLJ cxxi at cxxxi

Record of the actual questions put to the accused

In PP v Khoo Boo Hock & Anor,53 Edgar Joseph Jr J (as he then was) held:

1. That the prosecution must prove beyond reasonable doubt the actual questions put to the ac-
cused in order to find out precisely what information was intended to be conveyed by the ac-
cused which led to the discovery of the drugs.
2. A contemporary record of what really passed between the police and the accused was of par-
ticular importance.
In PP v Tai Mei Yuen,54 the same learned judge again emphasized that:

It is trite law that although there is no legal requirement that a statement under s 27 of the Evidence Act must be taken
down in writing, prudence demands that it is highly desirable.55

The learned judge in both these cases adopted the view expressed by the Federal Court in Sum Kum Seng v
PP.56 In PP v Mohd Salleh,57 KC Vohrah J also stressed the importance of maintaining a proper record by the
police of the information supplied by the accused. These two cases were cited with approval by Nik Hashim J
in PP v Kanapathy Kuppusamy & Anor.
As Visu Sinnadurai J aptly observed in PP v Basri b Salihin;58

There is no doubt that such strict proof places a more onerous responsibility on the police to record the statement
made by the accused person in such a manner that the proof of it may be readily established. It is best that the infor-
mation is recorded in a manner such that no doubt may subsequently be cast as to whether the accused in fact gave
 8

such information or what exactly he had said. To overcome such problems, the police in several jurisdictions now either
tape the recording of the statements made by the accused, or even videotape the entire process.

The learned judge noted that though

Such a procedure may appear cumbersome, but in the interest of justice, especially in cases where the information
given by the accused leads to the discovery of a fact which forms the gist of the offence charged, like in cases of pos-
session of prohibited items, such a procedure is desirable. Further justice equally demands such strict proof especially
in cases involving the death penalty, where the life of an accused depends very much on the admission of a statement
made by him.

3 MLJ cxxi at cxxxii

Recently in Hasamuddin Talena v PP,59 Gopal Sri Ram JCA lucidly observed;

It is settled beyond argument that where the prosecution seeks to rely on information under the exclusionary provisions
of s 27 of the Evidence Act 1950 approximations are not permitted. In other words the exact words spoken by the ac-
cused have to be proved.60
Since nothing more than the information given by an accused is admissible, it follows that the information must be ex-
act and recorded in the language or words used by the accused.
The strictness of the rule in the application appears sufficiently from the following passage in Sarkar on Evidence, 14th
edn. At p 492:
'Statements made by accused to police officers which are or may be provable under s 27 should be clearly and care-
fully recorded. They should be recorded in the first person, that is to say, as far as possible in the actual words of the
accused. They should not be paraphrased (In re Athappa Goundan;61 In re Ramamurthy;62 Naresh v R;63 Public Pros-
ecutor v Pasala;64 Public Prosecutor v Venkoba;65 Chenna v King Emperor;66 Gaya v State;67 Nathu v State68). 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.
We have addressed our minds to the question whether the strict test has been met by the facts of the present appeal.
After anxious consideration we hold that it has not. The danger of abuse to which the Lord President referred in Pang
Chee Meng (supra) appears to apply plumb to the present facts. These observations then lead us to the logical conclu-
sion that the conviction in the present case is entirely unsafe. The learned deputy who argued this appeal has with
customary frankness conceded that the entire prosecution's case rests on these two supposed pieces of information
leading to discovery. Once they fall, so must the prosecution's case.

The legend has been that s 27 of the Evidence Act represents loosely what is known as the doctrine of con-
firmation by subsequent facts. This doctrine espouses that where in consequence of a confession, otherwise
inadmissible, a search is made and facts are discovered which confirm the confession in material points, the
possible influence which through caution had been attributed to the improper inducement is seen to have
been nil and the confession may be accepted without hesitation. As aptly
3 MLJ cxxi at cxxxiii
enunciated by Raja Azlan Shah J (as His Majesty then was) in Chandrasekeran & Ors v PP;69

Section 27 is a concession to the prosecution. It is the express intention of the legislature that, even though such a
statement is otherwise hit by the three preceding sections viz, sections 24-26 of the Evidence Ordinance, any portion
thereof is admissible in evidence if it leads to the discovery of a relevant fact. The reason is that, since the discovery
itself provides the acid test, the truth of the statement that led to the discovery is thereby guaranteed. Admissibility of
evidence under s 27 is in no way related to the making of the confession; rather, such evidence is admitted on clear
grounds of relevancy as directly connecting the accused with the object recovered.

Departure from the legend

In 1995, the Federal Court in Md Desa b Hashim v PP70 departed from this traditional mindset by taking a
bold step and holding that in order for a confession or other statement or information71 to qualify for admis-
sion under s 27, it must have been made voluntarily. A discovery made in consequence of a confession ex-
tracted by illegitimate means in the sense described in s 24 of the Evidence Act is inadmissible. When a
 9

challenge is taken as to the voluntariness of the information, it is imperative for a trial judge to determine that
issue upon the voir dire.
The essential facts in Md Desa b Hashim v PP was that the appellant was convicted for having in his control
a revolver and seven bullets under s 51(a) and (b) of the Internal Security Act 1950.
The appellant, whilst in police custody, was interrogated by one Inspector Zamri at about 2pm. The appellant
allegedly made an uncautioned statement to the Inspector concerning the whereabouts of the weapon and
the bullets in question. The statement was later recorded by the Inspector in his unofficial diary.
Subsequently at about 3.30pm the same afternoon, the appellant led the Inspector and his police team to an
area covered with bushes between a stream and a dirt track, and while pointing to the place allegedly told
the Inspector 'Di situ saya simpan beg yang mengandungi pistol' (that is where I kept the bag containing the
pistol). The appellant then allegedly parted some of these bushes and among them the Inspector saw a
black bag from which was recovered a plastic bag containing the offending exhibits.
The trial judge had admitted the two incriminating statements under s 27 of the Evidence Act 1950 as being
information leading to the discovery of the facts.
3 MLJ cxxi at cxxxiv
The appellant appealed to the Federal Court before which the two incriminating statements, namely, the first
made by the appellant during the interrogation to the Inspector who recorded the uncautioned statement in a
non-official diary, the second made shortly after the first statement during the recovery of the revolver and
the bullets at the place mentioned by the appellant, formed the fulcrum on which the whole case turned.
Gopal Sri Ram JCA for the Federal Court after going through ss 24 to 27 of the Evidence Act 1950, articu-
lated as follows:

In a number of Indian cases it has been held 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 the all pervading qualifica-
tion enacted in s 2472 see Ramkishan Mithanlal Sharma v State of Bombay;73 Vijay Kumar v State of Himathal Pra-
desh.74 The former decision was applied in Yee Ya Meng v PP.75

The decision of the Privy Council in R v Ramasamy76 and Chang Min Tat J in Packiam v PP77 appear to sup-
port the proposition. Put in another fashion, the principle is that ss 25 and 26 are subject to s 27, but all these
three sections are subject to s 24 (Emphasis added).

Having regard to the language of each of these sections and the sequence in which they have been legislatively
framed, it is abundantly clear, in our judgment, that in order for a confession or other statement or information to qualify
for admission under s 27, it must have been made voluntarily (Emphasis added). A discovery made in consequence of
a confession extracted by illegitimate means in the sense described in s 24 is inadmissible.

The learned JCA emphasized that:

When a challenge is taken as to the voluntariness of the information, it is imperative for the trial judge to determine that
issue on the voir dire.

Gopal Sri Ram JCA at p 360 found

Good reasons of policy for the existence of the rule. An accused may know nothing more than that the subject matter of
the charge, eg drugs or a firearm has been concealed in a particular place. But that fact alone may be insufficient to
found a conviction. See, for example, Tai Chai Keh v PP;78 PP v Kasmin bin Soeb.79 Now, if such an accused person,
in consequence of some threat, promise, inducement, pressure or oppression brought to bear on him, admits that he
was the author of the concealment, then, what possible value could the statement have? No doubt he is capable of
leading the police to the scene of the concealment resulting in a recovery of the offending article. But
3 MLJ cxxi at cxxxv
 10

that is not because he concealed it there. It is based upon his knowledge acquired earlier, of the whereabouts of the
particular exhibit. When viewed in this way, it is not difficult to see that interpretation we place upon these sections, and
in particular upon s 27, truly represents legislative intent.

The Federal Court found that both the first statement made by the appellant during interrogation and the
second discovery statement were not given voluntarily. The appeal was accordingly allowed.

The ambit of the ban

In Md Desa, the Federal Court said that in order for a confession or other statement or information (emphasis
added) to qualify for admission under s 27, it must have been made voluntarily -- in the s 24 sense.80 This
implies
3 MLJ cxxi at cxxxvi
that the ban applies to a s 27 confession as well as a non-confessional statement or other information (em-
phasis added).
In Juraimi Husin v PP,81 the accused together with two others were jointly charged with the murder of Dato'
Mazlan, whose body, decapitated and cut into 18 pieces was found buried in the premises occupied by the
accused persons. During the interrogation, the appellant had given information to the police which had led to
the discovery of the various severed parts of the deceased's body, an axe which was said to be the murder
weapon, other weapons and the deceased's pistol. The 'discovery' statements were admitted under s 27.
On appeal in the Court of Appeal, the appellant's counsel argued, relying on Md Desa, that these discovery
statements should not have been admitted because they were produced by a mind that had been sub-
jected to improper and illegitimate pressure and therefore were entirely involuntary. A trial within a trial
should have been held to determine their voluntariness.
3 MLJ cxxi at cxxxvii
Gopal Sri Ram JCA rejected the argument saying that (at p 418):

It must be borne in mind that unlike Md Desa's case, the information given by the first accused (Juraimi) did not amount
to a confession.82 Furthermore in the present case, unlike Md Desa's case, there was no challenge taken when the im-
pugned pieces of information were adduced in evidence.
If it was the first accused's (Juraimi) case that the information he gave had been extorted from him under threat or du-
ress, it was the duty of his counsel to have objected to their admission. It was too late in the day to now argue that the
information was given in consequence of any threat, promise or inducement.

The same JCA who gave the judgment in the Federal Court in Md Desa, now suggested that the voluntari-
ness test is confined only if the s 27 discovery statement was confessional. Implicitly if not explicitly the test
does not apply to s 27 statements that are not confessional in nature.

Md Desa revisited by Federal Court

The Federal Court in Goi Ching Ang v PP83 took the opportunity to review the ambit of the ban of discovery
statements under s 27. The facts of the case were as follows:
The appellant was charged with two offences under s 57 of the ISA 1960, following the discovery of three
pistols and 51 live bullets in his rented house. The discovery was made as a result of information, allegedly
given by the appellant, the pistol was kept in the speaker box of the Mini Compo ('Pistol disimpan dalam
speaker box Mini Compo itu'). In the trial court, the appellant denied ever telling the police in whose custody
he was, about the whereabouts of the offending articles. He further gave evidence which was uncontroverled,
that the said house was also occupied by his girlfriend.
Further, following Md Desa, the appellant had also challenged the voluntariness and therefore the admissibil-
ity of the s 27 information. It was not in dispute that the Federal Court in Md Desa had ruled that s 27 of the
Evidence Act 1950 was subject to s 24, and therefore, an information under s 27, to be admissible must be
voluntary. The trial judge while entertaining gave doubts as to the voluntariness of the s 27 information, nev-
 11

ertheless ruled that the information, irrespective of its involuntary character, was admissible in evidence un-
der s 27 of the 1950 Evidence Act 1950. Accordingly he convicted the appellant.
3 MLJ cxxi at cxxxviii
The appellants appeal to the Federal Court revolved around three essential issues:

1. Whether s 27 was governed by or subject to s 24;

2. Whether ss 24 and 27 of the Evidence Act 1950 were interrelated or independent of each; and
3. Whether, assuming that s 27 information was not voluntarily made, the court had a discretion to
exclude it, in the interests of justice and fairness.
The Federal Court, after conducting a thorough survey and study of the cases cited by Gopal Sri Ram JCA in
Md Desa said at pp 13-14:

Ramkishan Mithanlal Sharma v State of Bombay decided that s 27 was a proviso or an exception to ss 25 to 26 [of the
Indian Evidence Act 1872] without adverting to s 24; Vijay Kumar v State of Himachal Pradesh, held that s 27 had no
connection (para s 48) and did not control s 24 (para 74). Ye Ya Mang v PP, did not deal with the inter-relation between
s 27 and s 24. Ramkishan ... was cited only in relation to ss 25, 26 and 27.
The ratio in Ramasamy is on the effect of s 122(3) of the Code of Criminal Procedure 1938 Ceylon on s 27 of their Ev-
idence Ordinance 1938. The Privy Council did not rule that s 27 was subject to the Ceylonese provisions equivalent to
our s 24, nor for that matter, to our ss 25 and 26, though the provisions were discussed.
As for Packiam & Anor, it likewise, did not deal with the interrelation between ss 24-26 and 27 .... In short, it is a matter
of construction of ss 24 and 27 as to whether the latter is subject to the former. Apart from Vijay Kumar we feel con-
strained to hold that all the other cases cited in the above quoted passages in Md Desa do not support the proposition
(Emphasis added).

It also appears that the decision of Md Desa, subjecting s 27 to s 24 cannot have application to a s 27
statement if that statement does not amount to a confession since s 24 relates to confessions (Emphasis
added).

Whether s 27 is subject to s 24
This issue, the Federal Court emphasized was purely a matter of construction of the two sections. The Fed-
eral Court observed that:

Prior to Md Desa, supra, the Malaysian courts had persistently held to the effect that s 27 was not subject to s 24 of the
Evidence Act. In other words, once an information is proved to be within the province of s 27, the trial court would admit
it in evidence (See eg, Lee Kok Eng v PP;84 PP v Sandra Margaret Birch;85 PP v Toh Ah Keat86 (caution not adminis-
tered under
3 MLJ cxxi at cxxxix
s 113 of the Criminal Procedure Code); Sum Kum Seng v PP;87 Wai Chan Leong v PP;88 (drug trafficking case -- no
caution administered under s 37A(b) of Dangerous Drugs Act 1952); Choo Yoke Choy v PP)89 notwithstanding that the
said information might not have been given voluntarily. (See eg, PP v Er Ah Kiat;90 Chandrasekaran & Ors v PP;91
Chong Soon Koy v PP).92

The Federal Court then referred to some leading cases all of which admitted in evidence information under s
27, without being subject to the voluntariness rule.
It then said:

Chandrasekaran & Ors v PP93 is a corruption case. The cautioned statement of the appellant was ruled inadmissible in
evidence on the ground that it had been obtained by compulsion. However, a portion of the statement was admitted by
invoking s 27 of the Evidence Ordinance 1950. On appeal, its admissibility was in issue. Raja Azlan Shah J (as he then
was) said: (at p 158).
'Section 27 is a concession to the prosecution. It is the express intention of the legislature that, even though such a
statement is otherwise hit by the three preceding sections viz sections 24-26 of the Evidence Ordinance, any portion
thereof is nevertheless admissible in evidence if it leads to the discovery of a relevant fact. The reason is that, since the
discovery itself provides the acid test, the truth of the statement that led to the discovery is thereby guaranteed. Admis-
sibility of evidence under section 27 is in no way related to the making of the confession; rather, such evidence is ad-
 12

mitted on clear grounds of relevancy as directly connecting the accused with the object recovered. (See Public Prose-
cutor v Er Ah Kiat).94 If a statement which would otherwise be hit by section 24 of the Evidence Ordinance is not ex-
cluded under section 27, a fortiori a statement which would otherwise be hit by section 15 of the Corruption Act cannot
be excluded under section 27 of the Evidence Ordinance, because a statement made under section 15 of the Corrup-
tion Act is in the nature of one made under section 24 of the Evidence Ordinance'.

It will thus be seen from the judicial pronouncements that the independence and distinctiveness of s 27 of the
Evidence Act 1950 and its being regarded as an exception to s 24 thereof are deeply rooted in our case law
and so far as we are aware, has stood unchallenged for decades.
Next, having regard to the wording of ss 24 and 27, there is, purely by reason of the language of the two sec-
tions alone, no nexus necessitating a determination as to whether one section is subject to or exception to
the
3 MLJ cxxi at cxl
other. Section 27 is silent as to or bears no ligature to the voluntary nature or otherwise of the information.
The words 'whether the information amounts to a confession or not in s 27 relates merely to the character of
the information ie, whether it is a confession, or a statement falling short of a confession. In other words, un-
like s 27 when compared with ss 25 or 26 of the Evidence Act 1950, a comparison of s 27 and s 24 does not
show that they contain any words or phrases bearing or capable of bearing any reference to one another.
From the wordings in the two sections, they stand independently of each other.'
The Federal Court further observed that:

If s 27 were held subject to s 24, then, logically, it would also be held to be subject to other provisions to the like effect
or of similar nature as the said s 24 contained in other enactments eg, s 113 of the Criminal Procedure Code, s 37A of
the Dangerous Drugs Act 1952, s 75 of the Internal Security Act 1960, s 15 of the Prevention of Corruption Act 1961
(repealed with effect from 8 January 1998), s 45 of the Anti-Corruption Act 1991. In that case, quite apart from running
counter to cases like PP v Sandra Margaret Birch, supra, and PP v Toh Ah Keat, supra, one section in an Act (ie, s 27
of the Evidence Act 1950) would be held subject to another section in a different Act (eg, s 113 of the Criminal Proce-
dure Code, and provisions to the like effect in other Acts). Having regard to the wordings of those provisions in other
enactments, which provisions bear no reference to s 27 of the Evidence Act 1950, it would be beyond the function and
outside the province of the court so to interpret. Moreover, in Chandrasekaran & Ors v PP,95 Raja Azlan Shah J (as he
then was) has attributed the admissibility of section 27 information in evidence to 'the express intention of the legisla-
ture', despite its apparent incompatibility with s 24 of the Evidence Act 1950. If it were indeed the intention of the legis-
lature that s 27 is an independent section, -- ie, that so long as the evidence constitutes 'information' under s 27 relating
to facts thereby discovered, it is admissible without the necessity of making reference to s 24 of the same Act, or s 113
of the Criminal Procedure Code (PP v Sandra Margaret Birch, supra, and PP v Toh Ah Keat, supra), or sections with
similar effect in other enactments -- then all the more reason that any change to clarify the grey area in the law must be
left to the legislature'.

Despite this, the corum of the Federal Court were 'not unaware of the desirability of protecting accused per-
sons against any possible misuse of power by overzealous police personnel whilst under police custody; re-
minding itself of the observations of Abdul Hamid Omar LP in Pang Chee Meng v PP:96

In invoking s 27, the courts should be very vigilant to ensure the credibility of evidence by the police ... in respect of this
section, which is so vulnerable to abuse.

3 MLJ cxxi at cxli

The Federal Court also expressed its complete agreements as a matter of policy with the view expressed in
Md Desa of the desirability as to the voluntariness of s 27 information.
Further at pp 17-18 the Federal Court, noting the trial judge's misgivings concerning the voluntariness of the
s 27 information (which he had reluctantly permitted to be admitted in evidence) seemed to have impliedly
agreed with Mehta Actg CJ in Vijay Kumar when it said:

In this regard the following passages in the judgment in Vijay Kumar v State of Himachal Pradesh supra, are of great
assistance. There Mehta Actg CJ said: (pp 1629-1630 paras 75-76).
 13

'We are further of the opinion that even apart from s 24, s 27 of the Evidence Act contemplates only those statements
of the accused which are voluntary in character. It need not be emphasized that if the statement in question is not vol-
untary and is procured by inducement or threats or by the use of third degree methods, it ceases to be the statement of
the accused, and if it ceases to be the statement of the accused it is difficult to comprehend how s 27 would be of any
help, because that section makes reference only to the statements which are made by the accused and not by other
persons.
If it is held that the police can procure a disclosure statement from the accused under inducements and threats and
even by resorting to third degree methods, then it would be easy for an unscrupulous police officer, who has a prior
knowledge about the place of concealment of an article which is used during the commission of the offence, to obtain
the required statement from the accused who is in his custody and then to utilize it against him during the course of the
trial. Such a situation is obnoxious to judicial conscience. If resort can be had to compulsion or inducement in the mat-
ter of testimonial utterances, the truth runs the risk of being smothered and the judicial decision which are is based on
the discoveries which tainted by falsehoods would never be conducive to justice. Therefore, even on a bare reading of
the provisions of s 27 we have no doubt in our mind that the statement of the accused contemplated by that section
must be a voluntary statement, and not the one which is induced by threat, inducement or third degree methods.
... since the statement induced by the police officer is not voluntary, that statement cannot be considered to be the vol-
untary statement of the accused and therefore even if s 24 of the Evidence Act was not on the statute book this state-
ment being not of the accused should be taken out of consideration' (Emphasis added).

In addition to the above reason for holding that the s 27 information should not have been admitted, the Fed-
eral Court also held that it has the common law discretion to exclude such s 27 information, as vested to it by
s 3(1)(a) of the Civil Law Act 1956. It observed that:

The operative part at the commencement of s 3(1) ie, 'Save so far as other provision has been made or may hereafter
be made by any written law in force in Malaysia,' does not, in our opinion, take away the discretionary power to exclude
the confessions in appropriate cases since we, relying on the cases cited, have accepted that s 24 of the Evidence Act
1950 has no application to
3 MLJ cxxi at cxlii
section 27 information. That being so, the court is thrown back on its common law powers.
In Noor Mohamed v The King,97 Lord du Parcq said:
'... In all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently
substantial, having regard to the purpose to which it is professedly directed to make it desirable in the interest of justice
that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only tri-
fling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is
plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the ac-
cused even though there may be some tenuous ground for holding it technically admissible. The decision must then be
left to the discretion and the sense of fairness of the judge'.98
It is clear from his Lordship's judgment (as emphasized) that there is a vested discretion in a trial judge to exclude evi-
dence which is prejudicial to an accused even though the said evidence may be 'technically admissible'. The general
pronouncement made in Noor Mohamed v The King, supra, had been followed in numerous other cases in England
and is entrenched in the principle that the English courts uphold, which is, 'a judge's undoubted duty to ensure that the
accused has a fair trial ...' (per Lord Salmon in R v Sang)'.99

Another reason for holding that the s 27 information should not have been admitted was that is offended the
notions of natural justice that is, fairness, as enshrined in arts 5(1) and 8(1) of our Federal Constitution. The
Court then observed at pp 20-21:

'The essence of natural justice is fairness. The following observation of Lord Diplock in Haw Tua Tau v PP,100 though in
reference to arts 9(1) and 12(1) of the Constitution of Singapore (similar to art 5(1) and 8(1) of our Federal Constitution),
is of relevance. Lord Diplock said (p 50):
'So no amendment to the Constitution is needed to empower the legislature ... to enact whatever laws it thinks appro-
priate to regulate the procedure to be followed at the trial of criminal offences ...; subject only to the limitation that ...
such procedure does not offend against some fundamental rule of natural justice. It must not be obviously unfair.'
Fairness requires fair trial which, in turn, needs fair procedure. Fair process requires that the legitimate interests of both
the prosecution and the defence are adequately provided for. While the police ought to be given a reasonable oppor-
tunity to question suspects and accused persons, in is investigation, the accused must also be reasonably protected
from the danger of extraction of unreliable statements and of statements (even if reliable) by some improper means.
Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by con-
duct of which the police ought not to take advantage, would operate unfairly against the accused and
 14

3 MLJ cxxi at cxliii

should in the discretion of the court be rejected for admission. The court should ensure that the standards of propriety
in obtaining section 27 information are scrupulously followed in police station.
Moreover, admitting the appellant's section 27 information would infringe the principle of right against self-incrimination,
there being no evidence of s 112(ii), (iii) and (iv) of the Criminal Procedure Code having been complied with.

Accordingly, in allowing the appeal, the Federal Court held that for the above reasons the trial judge should
have exercised his discretion and excluded the s 27 information.
A year later, Goi Ching Ang v PP was cited by the defence counsel before Kang Hwee Gee J in PP v Krishna
Rao Gurumurthi101 to persuade the court that the discovery statement of the first accused which led to the
discovery of one of the murder victims, and a similar statement of the second accused which led to the dis-
covery of some jewelry (both the accused being charged with four counts of murder) should have been ex-
cluded under the principle enunciated in Goi Ching Ang (it is not stated under which principle perhaps, in the
exercise of the court's exclusionary discretion under the common law principle adumbrated by Lord du Parcq
in Noor Mohamed v R), on the ground that the information was extracted from both the accused persons
under oppressive conditions. Justice Kang Hwee Gee said at p 446:

The case of Goi Ching Ang has now settled the issue whether an information deposed to by an accused person under
s 27 of the Evidence Act 1950 is subjected to the test of voluntariness under section 24 of the Evidence Act 1950 as
decided in Md Desa.
... the Federal court said at p 521 'Prior to Md Desa's case, the Malaysian courts had persistently held to the effect, that
s 27 was not subject s 24 of the Act. Once the information was proved be within the province of s 27, the trial court
would admit it in evidence, notwithstanding that the information might not have been given voluntarily.
And at p 524, by the following words overruled Md Desa:
'Indeed, we are in complete agreement, as a matter of policy, with the view expressed in the judgment of this court in
Md Desa, of the desirability as to the voluntariness of s 27 information. However due to lack of language-nexus be-
tween s 27 on the one hand and s 24 and comparable provisions in other enactments on the other hand, the apparent
intention of the legislature, and the long line of past decisions of our courts not a few of which were from eminent
members of the appellate and the highest courts, any departure from the entrenched judicial interpretation laid down in
the above quoted and other numerous cases would be a policy decision and should, in our view, be left to the legisla-
ture.'
But whereas Md Desa had ruled that all such information must be subjected to the stringent test of voluntariness as
would be required for cautioned statements, Goi Ching Ang puts its admission in the discretion of the trial judge
3 MLJ cxxi at cxliv
exercisable in the manner as described in the following passage at pp 526 and 527:
The learned judge opined that the discretion vested in the trial judge should be on the principle adumbrated in Noor
Mohamed v R supra -- this despite the fact that the evidence is relevant and therefore technically admissible, if the
prejudicial effect of otherwise relevant evidence outweighs its prejudicial value, the trial judge has a discretion to ex-
clude it.
On the facts of the instant case, the discovery statements of the two accused were not procured by oppression. For
from being of trifling weight the two sets of information were of enormous value to the prosecution. Their probative val-
ue certainly outweighed their prejudicial effect. According there was no ground to reject them'.

Md Desa and Goi Ching Ang again resurfaced last year in PP v Mohamed Musa Amarullah.102
The issue which Justice RK Nathan had to decide was whether a s 27 discovery statement was to be sub-
jected to a trial-within-a-trial to determine its voluntariness if there is challenge to its voluntary character, as
was submitted by the defence council relying on the law enunciated in Md Desa.
Justice RK Nathan at p 1 observed that:

In Md Desa, Gopal Sri Ram JCA sitting in the Federal Court held, following a line of Indian authorities that the rule per-
mitting admissibility contained in s 27 is a exception to the prohibition appearing in the two sections that immediately
precedes it but does not qualify the all pervading qualification enacted in s 24. Simply put, the decision meant that ss
25 and 26 are subject to s 27, but all these sections are governed by and are subject to section 24 ... Gopal Sri Ram
went on to hold at p 687 as follows:
 15

'Having regard to the language of each of the sections ... it is abundantly clear... that in order for a confession or other
statement or information to qualify for admission under s 27, it must have been made voluntarily. A discovery made in
consequence of a confession extracted by illegitimate means in the sense described in s 24 is inadmissible. When a
challenge is taken as to the voluntariness of the information, it is imperative for a trial judge to determine that issue up-
on the voir dire.'
However, Justice RK Nathan further observed,
'This same case was subjected to a review ... in Goi Ching Ang v PP. This court held that since prior to Md Desa's case
the Malaysian courts had persistently held that s 27 was not subject to s 24 of the Act, any departure from the en-
trenched judicial interpretation laid down in the long line of decisions should be left to the legislature to review. The
court went on to hold that once information was proved to be within the province of s 27, the trial court could admit it in
evidence, notwithstanding that it might not have been given voluntarily. Therefore is my judgment that in line with the
decision in Goi Ching Ang; the prosecution is at liberty to proceed to adduce evidence relating to such information re-
ceived from
3 MLJ cxxi at cxlv
the accused that led to the discovery ... there is no need to hold a special trial within a trial ... The voluntariness or oth-
erwise of such a statement as led to the discovery must be treated like any other piece of evidence of the prosecution,
to be tested in the normal course of cross-examination. A voir dire is not necessary. In fact ... Goi Ching Ang did not
categorically state that where the prosecution chooses to rely on section 27, a voir dire is necessary. The Federal Court
had clearly intended that s 27 ought not be subject to s 24 and to such similar section ...
It would seem therefore that s 27 is an independent section and that any reliance upon that section to introduce rele-
vant evidence must be treated without linkages to the preceding sections and in particular to s 24 of the Evidence Act
1950.'

Then, in the third of the troika of High Court cases decided post-Goi Ching Ang, PP v Gurdial Singh Pretam
Singh & Anor,103 Jeffrey Tan J did not agree with his brethren, RK Nathan J and Kang J, that a s 27 discovery
statement, the voluntariness of which if challenged is not subject to a voir dire to determine its voluntariness.
After quoting the judgment of Gopal Sri Ram in Md Desa to that effect, Jeffrey Tan J at p 47 said:

However, that proposition that s 27 is governed by s 24 was rejected by the Federal Court in Goi Ching Ang v PP ...
where a panel of five judges pronounced 'it also appears that the decision in Md Desa, subjecting s 27 to s 24 cannot
have application to a s 27 statement if that statement does not amount to a confession since s 24 relates to confession.

According to Goi Ching Ang (see p 850):

From the wordings of the two sections (ss 24 and 27) they stand independently of each other.

But other than on that limited but important point Goi Ching Ang agreed with Md Desa, 'of the desirability as
to the voluntariness of s 27 information'. And on the subject of voluntariness of s 27 information, Goi Ching
Ang thus articulated:

While the police ought to be given a reasonable opportunity to question suspects and accused persons, in its investiga-
tion, the accused must also be reasonably protected from the dangers of extraction of unreliable statements (even if re-
liable) by some improper means. Evidence obtained in an oppressive manner by force or against the wishes of an ac-
cused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against
the accused and should in the discretion of the court be rejected for admission. The courts should ensure that the
standards of propriety in obtaining s 27 information are scrupulously followed in the police station.

The learned judge concluded at p 48 that:

Quite evidently therefore, both Md Desa and Goi Ching Ang agreed that involuntary s 27 information is inadmissible.
But only Md Desa mandated that
3 MLJ cxxi at cxlvi
whenever a challenge is taken as to the voluntariness of the information, it is imperative for a trial judge to determine
that issue by a voir dire. Goi Ching Ang could have disagreed with Md Desa, but Goi Ching Ang left unsaid as to
whether voluntariness should be determined by a voir dire. Therefore Md Desa is binding authority that the voluntari-
ness of s 27 information in the instant case must be determined by a voir dire.
 16

The judge according ordered a voir dire of the impugned s 27 information to determine its voluntariness.

Conclusion
It is respectfully submitted that there is much merit in the Federal Court's judgment in Md Desa Hashim v PP
that the s 27 confessional information should be voluntary. Notwithstanding that the Federal Court in Goi
Ching Ang v PP opined that s 27 is not subject to s 24 because of the absence of nexus between the two
sections, the Federal Court did agree with Gopal Sri Ram JCA that as a matter of policy, s 27 information
should be voluntary. Further, the Federal Court in Goi Ching Ang v PP also appeared to have been in total
agreement with what was said in the Indian case of Vijay Kumar v The State to the effect that apart from s 24,
s 27 of the Evidence Act contemplates only those statements of the accused which are voluntary in charac-
ter.
Further, it is useful to remind ourselves of the important points highlighted in the Privy Council decision of
Lam Chi-ming104 by Lord Griffiths that in certain situations, the effect of an improperly obtained information
given by an accused leading to the discovery of a fact may have the same severe consequences as that
when a person has been forced to make a full confession involuntarily. In both these situations, based solely
on the improper confession or statement, a person may be convicted. Lord Griffiths pertinently pointed out at
p 179:

But it is surely just as reprehensible to use improper means to force a man to give information that will reveal he has
knowledge that will ensure his conviction as it is to force him to make a full confession. In either case a man is being
forced into a course of action that will result in his conviction: he is being forced to incriminate himself. The privilege
against self-incrimination is deep rooted in English law and it would make a grave inroad upon it if the police were to
believe that if they improperly extracted admissions from an accused which were subsequently shown to be true, they
could use those admissions against the accused for the purpose of obtaining a conviction. It is better by far to allow a
few guilty men to escape conviction than to compromise the standards of a free society.

The Federal Court's judgment in Md Desa through Gopal Sri Ram JCA is the fruit of the winnowed wisdom
weaned from many years at the Bar and Bench and combined with the dicta from the Federal Court in Goi
Ching
3 MLJ cxxi at cxlvii
Ang, the Indian Supreme Court in Vijay Kumar and the Privy Council in Lam Chi-ming merits much thought
and consideration. The judicial activism exercised in Md Desa should be reconsidered, and although there is
no express statutory provision that s 27 should be voluntary, if that is challenged, the courts should interpret
s 27 in such a way as to require that the information was not the result of unfair means.

1 AIR 1947 PC 67, 70.

2 [1965] AC 1 at p 27.

3 Emphasis added.

4 [1971] 1 MLJ 153.

5 [1989] 3 MLJ 356.

6 [1994] 2 MLJ 476 at p 485.

7 Emphasis added.

8 [1995] 1 SLR 297, at pp 303-304.

9 [2000] 1 CLJ 446 at p 469.

10 [1994] 2 MLJ 276 at p 286.

11 1965 AC 1, on appeal from Sri Lanka.

 17

12 See PP v Chin Moi Moi [1995] 1 SLR 297, at p 303, and Wigmore, Evidence in Trials at Common Law Vol 111, s 865, p 50.

13 [1991] 3 All ER 172 at pp 178-179.

14 [1979] 2 All ER 1222 at p 1245.

15 (1873) 168 ER 234.

16 (1840) 173 ER 87.

17 (1824) Notable British Trials 55 at pp 144-145.

18 Emphasis added.

19 Footnote 14 supra.

20 [1991] 3 All ER 172 at p 178.

21 See footnote 1 supra.

22 See footnote 2 supra.

23 The country's are Sri Lanka, Malaysia, Singapore, Brunei whose evidence law is inspired by the Indian Evidence Act 1872.

24 [1992] 1 MLJ 137.

25 [1994] 2 MLJ 576.

26 See footnote 6 supra.

27 [1977] 2 MLJ 78.

28 [2000] 1 CLJ 447 at pp 469-470. See also Siah Ik Kow v PP [1969] 1 MLJ 121, 122 FC as to scope of 'fact'.

29 [1948] 14 MLJ 50.

30 [1977] 2 MLJ 78.

31 [2000] 1 CLJ 446 at p 471.

32 [1995] 1 SLR 297 at p 305.

33 [2001] 1 CLJ 61.

34 [1948] MLJ 50.

35 AIR 1929 Lah 44.

36 AIR 1967 Punj 14.

37 [1961] 2 Cr LJ 238.

38 AIR 1986 SC 1483.

39 [1994] 2 MLJ 476.

40 See footnote 37 supra.

41 In Basri b Salihin v PP -- footnote 40 supra.

 18

42 [1982] 1 MLJ 223, at p 287.

43 [1989] 1 MLJ 442 at p 445.

44 AIR 1947 PC 67.

45 1955 SCR 903.

46 [1972] 1 MLJ 120, at p 122.

47 [1978] 1 MLJ 72.

48 [1995] 1 SLR 297 at p 305.

49 [2000] 1 CLJ 446 at p 469.

50 1989] 3 MLJ 356.

51 [1988] 1 CLJ 661 at p 666.

52 [1951] MLJ 181.

53 [1990] 1 CLJ 971.

54 [1991] 1 CLJ 1208.

55 [2001] 1 CLJ 61, 69.

56 [1981] 1 MLJ 224.

57 f.

58 [1994] 2 MLJ at pp 498-9. The learned judge was referred to the law in England and Hong Kong.

59 [2002] 2 CLJ 504 at pp 507-508.

60 Emphasis added.

61 AIR [1937] Mad 618.

62 AIR [1941] M 290.

63 46 CWN 180.

64 AIR [1945] Mad 202.

65 [1937] MWN 73.

66 AIR [1940] Mad 710.

67 AIR [1957] All 459.

68 AIR [1958] All 46.

69 [1971] 1 MLJ 153 at p 158.

70 [1995] 351, 4 CLJ 677.

71 Emphasis added.

72 Emphasis added.
 19

73 AIR 1955 SC 104.

74 (1978) Cr LJ1 1619.

75 [1972] 1 MLJ 120.

76 [1965] AC 1 at p 13.

77 [1972] 1 MLJ 247.

78 [1948-49] MLJ Supp 105 at p 110.

79 [1974] 1 MLJ 230.

80 Confession caused by inducement, threat or promise when irrelevant in criminal proceeding.

24 A confession made by an accused person is irrelevant in a criminal proceeding if the making

of the confession appears to the court to have been caused by any inducement, threat or
promise having reference to the charge against the accused person, proceeding from a per-
son in authority and sufficient in the opinion of the court to give the accused person grounds
which would appear to him reasonable for supposing that by making it he would gain any ad-
vantage or avoid any evil of a temporal nature in reference to the proceeding against him.
Essentially section 24 requires a confession (nowadays in Malaysia and Singapore the confession that is ten-
dered by the prosecution is usually in the form of a cautioned statement -- under s 113 of the Malaysian Crim-
inal Procedure Code or its equivalent in other laws -- see Sandra Margaret Birch v PP [1978] 1 MLJ 72; Mo-
hamed Yusuf b Haji Ahmad v PP [1983] 2 MLJ 167, saying also that section 113 CPC and its equivalent also
houses the judges Rules of England. Also in Chan Ming Cheng v PP [2002] 4 CLJ 77 at p 82, CA -- Gopal Sri
Ram said s 37A of Dangerous Drugs Act 1952, (which is similar to section 113 CPC) is in terms of s 24 of the
Evidence Act 1950 and housed the judges rules). Before the question of the voluntariness of the cautioned
statement can be considered at must be determined that it is confessional in nature, ie it must fall within the
definition of a confession under section 17(2) of the Act. The statement must be a direct or an inferential ad-
mission of the charge. See Anandagoda v Queen [1962] MLJ 289. Once it is decided that statement is a con-
fession then it must be voluntary to be admissible as required under section 24. The leading cases on this are
Dato Mokhtar Hashim v PP [1983]; Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321; Md Desa b Hashim v
PP [1995] 3 MLJ 350 -- all of which received the English House of Lord's case of DPP v Ping Lim [1975] 3 All
ER 175. See also Singapore cases of Tan Boon Tat v PP [1992] 2 SLR 1; Kok Ai Siew v PP [1993] 3 SLR 599
and Panya Marmontree v PP [1995] 3 SLR 341. All these cases also received that oppression as defined by
Sach J in R v Priestly 51 Cr App R 1 as 'something which tends to sap and has

Cont'd next page

81

sapped the free will which must exist before a confession is voluntary', and adopted in R v Prager [1972] 1 All
ER 1114 see also R v Fulling [1987] 2 All ER 65. The law that can be distilled from the above cases is: Wheth-
er a statement is voluntary is a question of fact. It is also well established that the common law concept of in-
voluntariness by oppression has been subsumed under s 24 of the Evidence Act. The test for determining ad-
missibility under s 24 is first, whether the confession was made as a consequence of any inducement, threat or
promise, and second, whether in making that confession, the accused did so in circumstances which, in the
opinion of the court, would have led him reasonably to suppose that he would gain some advantage for himself
or would avoid some evil of a temporal nature to himself. Both are questions of fact and are matters of judicial
evaluation. The test of voluntariness is applied in a manner which is partly objective and partly subjective. The
objective limb is satisfied if there is a threat, inducement or promise, and the subjective limb when the threat,
inducement or promise operates on the mind of the particular accused through hope of escape or fear of pun-
ishment connected with the charge. Where voluntariness is challenged, the burden is on the prosecution to
prove beyond a reasonable doubt that the confession was made voluntarily and not on the defence to prove on
a balance of probabilities that the confession was not made voluntarily. However, the accused need only raise
a reasonable doubt or, in other words, it is only necessary for the prosecution to remove a reasonable doubt of
the existence of the threat, inducement or promise, and not every lurking shadow of influence or remnants of
fear.

81[1998] 2 CLJ 383.

 20

82 Emphasis added.

83 [1999] 1 CLJ 829.

84 [1976] 1 MLJ 125 FC.

85 [1977] 1 MLJ 129.

86 [1977] 2 MLJ 87.

87 [1981] 1 MLJ 244 FC.

88 [1989] 2 CLJ 1168, [1989] 3 MLJ 356 SC.

89 [1992] 2 MLJ 632 SC.

90 [1966] 1 MLJ 9.

91 [1971] 1 MLJ 153.

92 [1977] 2 MLJ 78 FC.

93 [1971] 1 MLJ 153.

94 [1966] 1 MLJ 9.

95 [1971] 1 MLJ 153 at 158.

96 [1992] 1 MLJ 137 at 141.

97 [1949] AC 182, at p 192.

98 Emphasis added.

99 [1980] AC 402 at p 445.

100 [1981] 2 MLJ 49PC.

101 [2000] 1 CLJ 446.

102 [2002] 1 CLJ 366.

103 [2003] 1 CLJ 37.

104 [1991] 3 All ER 172 at 179 cited approvingly by Justice Visu Sinnadurai in PP v Basri b Salihin [1994] 2 MLJ 477 at 488.