Pendakwa Raya v ABDUL GHANI BIN MD KHAMIS @ MD ALI

Case Significance

Illustrates the operation of section 27 of the Evidence Act 1950, under which information from an accused that leads to the discovery of a fact is admissible even absent a caution, and the statutory exemption from whipping under section 289(c) of the Criminal Procedure Code for an offender over fifty at conviction.

This High Court decision at Alor Setar concerns a drug-trafficking prosecution and the admissibility of information leading to the discovery of drugs under section 27 of the Evidence Act 1950. The accused faced two charges tried together: trafficking 1,020.9 grams of cannabis under section 39B(1)(a) of the Dangerous Drugs Act 1952, and possession under section 6 of the same Act, the drugs having been found at and near a house. The principal issue was the admissibility of information the accused had given during questioning, which led the police to the drugs. Although no caution or warning had been administered before he gave that information, the court held that this did not render it inadmissible: section 27 of the Evidence Act 1950 makes admissible so much of the information received from an accused as distinctly relates to a fact thereby discovered, even where the accused was in custody and no caution was given, precisely because the subsequent discovery of the fact tends to guarantee the reliability of that portion of the information. Admitting the information on that basis and weighing the whole of the evidence, the court found the trafficking charge proved beyond reasonable doubt and convicted the accused. In sentencing, the court had regard to the discretion introduced by Act 846 and imposed life imprisonment of thirty years from the date of arrest; it ordered no whipping, because the accused was more than fifty years of age at the date of his conviction, which by virtue of section 289(c) of the Criminal Procedure Code exempts such an offender from whipping. The rationale for admitting discovery-linked information is that the reliability of what the accused said is corroborated by the very fact it leads to, which is why the ordinary bar on statements made without a caution does not extend to that limited part of the information. The judgment illustrates the operation of section 27 of the Evidence Act 1950 and the statutory exemption from whipping for offenders over fifty.