120312093410PP v Ismail bin Atan [1992] 2 CLJ 1253 (PDF).pdf

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  Current Law Journal Reprint  a b c d e f  g hi 228[1992] 3 CLJ (Rep) PENDAKWA RAYAv.ISMAIL ATAN HIGH COURT MALAYA, JOHOR BAHRUJAMES FOONG JC[CIVIL APPEAL NO. 58-5-88]22 SEPTEMBER 1991 CRIMINAL PROCEDURE:  Admissibility of - First information report - Meaning of first informative report - Report recorded after investigation - Whether constitutes a first information report and admissible - Criminal Procedure Code (F.M.S. Cap. 6) s. 108A. CRIMINAL PROCEDURE: Cautioned statement - Admissibility - Statement recorded byan officer of Cawangan Anti Dadah - At the time of giving evidence officer held the rank of ASP - Whether officer held rank of Inspector and about at the time of recording statement - Section 37A(10) Dangerous Drugs Act 1952. CRIMINAL PROCEDURE:  Dangerous drugs - Statutory presumptions to prove possession- Exclusivity of possession not proved - Presumptions cannot be invoked - Dangerous Drugs Act 1952, s. 37(b), d(a).  EVIDENCE:  Corroboration - Former statements of a witness - Admissibility of - Whether can corroborate a later testimony of the same witness to the same facts - Evidence Act 1950 s. 157.  EVIDENCE:  Discovery - Statements made in reply to interrogations - Whether lead todiscovery - Admissibility of - Evidence Act 1950 s. 27. The accused was charged with trafficking in a dangerous drug, that is, cannabis unders. 39B(1)(a) of the Dangerous Drugs Act 1952.The prosecution sought to tender the following evidence, inter alia: (a)statements by the accused made in reply to interrogations conducted by one ASP MichaelChin (PW3) which were written down on his notebook and produced in Court as P3:the learned DPP contended that they are admissible under s. 27 of the Evidence Act1950.(b)a cautioned statement recorded from the accused by one ASP Ahmad Jais (PW9) whois attached to the Cawangan Anti Dadah (CAD).(c)the police report made by PW3 which the learned DPP contended as the first informationreport. Alternatively it was argued that the report can be admitted under s. 157 of theEvidence Act 1950, that is, where former statement of a witness is admissible tocorroborate later testimony of the same witness as to the same facts.At the end of the prosecution case, the learned DPP submitted that the accused hadpossession of the said house where the cannabis was kept, that is, in the ice box. Thus, thepresumptions under s. 37(b) and (da) of the Dangerous Drugs Act 1952 should be invoked. Held:[1]  Statements from the accused made in reply to the interrogations must lead to discoveryin order to be admissible under s. 27 of the Evidence Act 1950. Based on the facts, the  Pendakwa Raya v. Ismail Atan229[1992] 3 CLJ (Rep)  a b c d e f  g hi statements by the accused did not lead to discovery and, they are inadmissible. [2]  Cautioned statement must be recorded by an officer of or above the rank of Inspector inorder to be admissible under s. 37A(1) of the Dangerous Drugs Act 1952. Although PW9was an Asst. Superintendent of Police when giving evidence at this trial, there was noevidence that he held the rank of an Inspector and above when the cautioned statementwas recorded by him. The cautioned statement was inadmissible. [3]  Statements made and recorded after investigation be it in the form of police report orotherwise is not a first information report but more of an investigation statement. [4]  The prosecution have failed to prove a  prima facie  case against the accused and theaccused is not called to make his defence. [Accused acquitted and discharged.] Cases referred to: PP v. Liew Sam Seong [1982] 1 MLJ 223 (cit)  Das v. Weston 16 CWN (cit) PP v. Foong Chee Cheong [1970] 1 MLJ 97  (cit) Legislation referred to: Criminal Procedure Code, s. 108ADangerous Drugs Act 1952 ss. 37A(1), 37(b), (da), (g), 39B(1)(a), (2)Evidence Act 1950 ss. 27, 157 Other source referred to: Criminal Procedure Code, Mallal, 4th Edn., p. 138 For the accused - Karpal SinghFor the prosecution - Hadhariah bte Syed Ismail JUDGMENTJames Foong JC: The accused is charged as follows: Bahawa kamu pada 7 Januari 1987 jam lebih kurang 4.15 petang di sebuah rumah tidak bernombor di Kg. Kempas Baru, Off Jalan Permatang Satu, Tampoi, Johor Bahru, di dalamdaerah Johor Bahru, di dalam Negeri Johor telah mengedar dadah berbahaya, iaitu kanabis dengan jumlah berat 4210.47 grams bagi pihak diri kamu sendiri,dan dengan tu kamu telah melakukansuatu kesalahan di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum dibawah s. 39B(2) akta yang sama. The prosecution case was that on 7 January 1987 at about 4.15 p.m., ASP Micheal Chin(PW3) attached to the Cawangan Anti Dadah Johor, led a raiding party consisting of 7 otherpolice personnel to a squatter area at Kampung Kempas Baru, Tampoi, Johor Bahru. Thisraid was conducted in pursuant to information which PW3 personally received earlier.In the said area, there were two squatter houses. Before approaching the said houses PW3directed his men to split into two groups. One group following him approached a housebelonging to a person called Affandi. Another group went to guard a nearby house.At Affandi’s house, PW3 found several persons therein but no sign of a person describedas a midget. In consequence to a search the accused which is of midget size was foundhiding in the toilet.The accused was then brought out of Affandi’s house where he was interrogated by PW3.The following questions were asked by PW3 and answered by the accused, which were there  Current Law Journal Reprint  a b c d e f  g hi 230[1992] 3 CLJ (Rep) and then, immediately written down by PW3 on his notebook produced in Court as P3.“Siapa punyai rumah itu?” PW3 asked the accused pointing to a house.“Mak angkat saya punya.” The accused replied.“Dimana you simpan ganja itu?” PW3 asked the accused.“Dalam ice box di rumah”. The accused answered.PW3 then brought the accused to the house which PW3 pointed earlier. The front door of this house was locked with a padlock. From a bunch of keys recovered from the accused,PW3 singled out one key and asked the accused to open the padlock with it. The padlock could not be opened. More questions were asked by PW3 relating to this padlock and itsanswers were also recorded by PW3 in P3.At this stage, the defence Counsel Mr. Karpal Singh objected to the admissibility of theseanswers and those purportedly to be given earlier by the accused since no caution wasadministered to the accused before the answers were given. The learned Deputy PublicProsecutor however argued that she is seeking admission of these answers of the accusedunder s. 27 of the Evidence Act.On this point this Court made the following rulings:Firstly, the answer by the accused to the first question posed by PW3 had no relevance tos. 27 of the Evidence Act. “Siapa punya rumah itu?” PW3 asked pointing to a house. Theaccused replied, “Mak angkat saya punya.” This statement by the accused led to nodiscovery since the police did not at that time proceed to make any discovery on this matter.The second question by PW3 was “Dimana you simpan ganja?”. Reply from the accusedwas, “Didalam rumah dalam ice box”. Question to be asked here is whether the ganja wasdiscovered as a result of this information given by the accused? The answer is no. Firstly,the police did not discover the house which contained the ice box. In fact, they alreadyknew of the particular house. This is from the evidence of PW3 himself when he stated that,“I brought the accused to the house which I pointed earlier”. So in this case there is nodiscovery because the fact i.e. the house had already been discovered. (See the case of PPv. Liew Sam Seong  [1982] 1 MLJ 223.)As regards to the ice box, it must be read with the particular house. Therefore if the particularhouse is already discovered one cannot use the ice box as a separate item of discoverybecause it cannot stand on its own. The statement must be read as a whole otherwise anyice box anywhere found to contain ganja would be attributed to the statement made by theaccused. Under such circumstances, this Court ruled that the second statement made by theaccused could not be admissible under s. 27 of the Evidence Act.As regards to the third statement “Ini dia.” made by the accused when he opened therefrigerator door, this Court found it inadmissible under s. 27 of the Evidence Act. Thisstatement caused no discovery by the police. The ganja was already found.Now, relating to the other answers purportedly given by the accused such as: To question:Cuba buka pintu rumah?Answer:Susah buka. Mangga itu selalu jam lama.To question:Kalau pecah pintu itu sahaja?To question:Mana you masuk?  Pendakwa Raya v. Ismail Atan231[1992] 3 CLJ (Rep)  a b c d e f  g hi Answer:Melalui tingkap. I found these to be inadmissible as such information led to no evidence of discovery.As the padlock could not be opened, a member of the police party obtained an axe. Withthis, the police prised open the padlock and entered the said house. In the said house, theaccused led PW3 to a refrigerator. The accused opened it and said “Inilah dia.” This againcannot be admissible as it does not fall within the confines of s. 27 of the Evidence Actsince nothing was discovered.In the refrigerator, PW3 found various stacks of ganja sticks which on analysis by the chemistwere found to be cannabis with a total nett weight of 4210.47 grams.The accused was then handcuffed and together with the drugs and the refrigerator werebrought to the police station.At the police station, a cautioned statement was recorded from the accused by one ASPAhmad Jais (PW. 9). Mr. Karpal Singh objected to the admissibility of this cautionedstatement. At the end of a trial within a trial, this Court held that the cautioned statementwas inadmissible. The following are the reasons:Firstly, there was no evidence extracted from PW9 that at the material time when the cautionedstatement was recorded PW9 held the rank of a police inspector. Section 37A(1) of theDangerous Drugs Act 1952 clearly states that such cautioned statement must be recorded“...by such person to or in the hearing of any officer of or above the rank of Inspector...”.Though PW9 is an Assistant Superintendent of Police when giving evidence at this trial,there was no evidence that he held the rank of an Inspector and above when the cautionedstatement was recorded by him. The learned Deputy argued that since PW9 was attached tothe intelligence section of the Cawangan Anti Dadah (CAD) at the material time, he musthave been of the rank of Inspector and above. This Court finds no merits at all in thisargument since, there are no evidence before this Court to say that all officers in the CADintelligence section hold the rank of Inspector and above and neither can the Court presumeit to be so.Another important point which arose during the case of the prosecution was when the learneddeputy attempted to tender in a police report made by PW3. PW3 as stated earlier was theraiding officer in this case. Mr. Karpal Singh objected to this report being admissible sinceit is not a first information report. The learned Deputy replied stating that this is the firstpolice report made in this case as such it shall be admitted. Further it is contended that thisreport can be admitted under s. 157 of the Evidence Act, where former statement of a witnessis admissible to corroborate later testimony of the same witness as to the same facts.After hearing arguments from the prosecution and the defence, this Court ruled that PW3’spolice report is not admissible.First information report is admissible as evidence under s. 108A of the Criminal ProcedureCode. However, one must first determine whether it is a first information report.As defined by Dr. Mallal in his 4th Edition of the Criminal Procedure Code at p. 138: ‘information’ in this section means something in the nature of a complaint or accusation orat least information of a crime, given with the object of putting the police in motion in orderto investigate as distinguished from information obtained by the police when actively
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