Case Analysis : Position of Illegally Obtained Evidence in Malaysia
Posted on Sunday, November 25, 2012 by Fairul Izwan @ iwan
Illegally Obtained Evidence: An Analysis of Case of Position in Malaysia
Admissibility of illegally obtained evidence in Malaysia
In Malaysia, locally decided cases seem to hear out that evidence is not inadmissible merely because it has been obtained unfairly or illegally. The test whether is relevant and admissible under Evidence Act. The rule even applies to evidence obtained by means of entrapment or through the agency of an agent provocateur on the manner in which they were obtained. They are dealt with section 24 to 330 of Evidence Act 1950 and section 113 of Criminal Procedure Code and other related laws. To this extend, evidence obtained on breach of the provision relating to confessions and related laws may be regarded as an exception to the general rule that evidence is not rendered inadmissible.
In 1987, in the case of Re Kah Wah Video (Ipoh) Sdn Bhd, Edgar Joseph Jr. J. said that :
“More that 30 years ago, Lord Goddard in delivering the advise of the Judicial Committee of the Privy Council, in the celebrated case of Kuruma v R said, inter alia: ‘the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with hoe the evidence was obtained”.
His Lordship was, of course not making new law when he penned those-off quote words for the principle he referred to was well-settled, in this country, long before for example in the case of Saminathan v Public Prosecutor. Saminanthan was followed in Lee Sang Cheah v R, where the evidence against the accused on a charged of assisting in the carrying out of a public lottery contrary to section 4(c) of the Common Gaming Houses Ordinance (Cap 30) comprised documents which were procured by police officers as a result of an illegal arrest of the accused.
Mc Elwaine CJ after quoting Aitkin J. in Saminathan that, “the manner in which police obtained possession of these documents does not concern the Magistrate who is trying the accused. He is only concerned with their relevancy,’ said,
“I agree with this conclusion. The admissibility is rarely dependant on the matter in which the exhibits are discovered”.
In Wong Liang Nguk v PP, the appellant was convicted of assisting in carrying on a public lottery contrary to section 4(i)(c) of the Common Gaming Houses Ordinance. The charge was that, she was knowingly carrying in a motor car, of which she was the sole occupant, a number of books containing the records of stakes relating to 1000 character lottery. The evidence against the appellant consisted of three books which the police had seized from her possessions when he stopped and searched her car such a search was clearly unlawful because the police officer was not authorised to do so under the Common Gaming Houses Ordinance. Thomson J. overruling the trial court which held such evidence to be inadmissible said :
“Generally speaking that the facts that evidence is unlawfully obtained does not affect its admissibility. If the police officer in this case had no authority to search then no doubt he would have been open to some sort of civil action, but the question of his authority to search is completely irrelevant to the admissibility of the evidence of his statement of what he found in the course of that search, that is abundantly clearly as a matter of general principle and in particular relation to this type of case it was accepted as long ago as 1936 by Aitkin J. in the case of Saminathan v PP.”
In PP v Tan Keng Siew, on a charge under the Merchandise Marks Ordinance 1950, certain exhibits seized by a police officer from the accused, were proffered in evidence against him. It was argued on behalf of the accused that the search carried out by the Inspector under the search warrant was not in compliance with the provisions of Section 28(i) of the Ordinance. Under provision of this Ordinance information that there is reasonable cause to suspect that any goods or things in relation to which an offence had been committed are within the house or premises of the defendant or otherwise in his possession or under his control in any place must be on oath. It was argued that because the information was not given by an oath, the search was therefore carried out illegally and thus evidence obtained in the course of and by means of such an illegal search was inadmissible.
Rejecting this argument Buhagiar J. said :
“There is authority for the preposition that evidence unlawfully obtained is admissible : Wong Liang Nguk v PP. there is also recent authority for this proposition in the recent case of Kuruma v R”.
That relevancy and not how the evidence was obtained is the criterion which decides admissibility was again in PP v Foong Kow & Ors, where the accused was charged for being in possion of obscene films and abetment thereof. The police had procured the incriminating evidence by illegal entry, in non-compliance with the requirement of Section 24(2) of the Cinematograph Film Ordinance 1952.
The trial judge had rejected the evidence because it was unlawfully procured. On appeal Mc Intyre J.follwing cases upra the appeal, saying that :
“Illegal entry and search by the police may give rise to a cause of action for damages.. but the illegality cannot vitiate the trial of any person found committing an offence in the premises when it was raided or render inadmissibile in evidence any incriminating implements or documents found therein”.
In PP v Gan An Bee, an Enforcement Inspector had entered and seized some goods from the respondent’s premises. But he was not the authorised person under section 14 of the Price Control Act. At the conclusion of the prosecuton case, the learned Magistrate had acquitted the respondent becauses there was no prima facie case against the respondent except for the illegally obtained evidence, which was rejected as it was illegally procured. Ajaib J. however, follwing local authorities, including Kuruma, allowed the appeal. He held that the evidence relating to the seizure and subsequesnent production of the goods at the trial was relevant evidence to the matters in issue and was therefore admissible, notwithstanding that it was obtained illgally and in non-compliance with the provisions of the Price Control Act.
In the leading case of Re Kah Wah Video (Ipoh) Sdn Bhd, the principles enunciated in Saminanthan and Kuruma was again reasserted. The facts relevant to our discussion were that police has seized certain infringing videotapes under a search warrant. It appeared that while the “scheduled” videotapes were lawfully seized, there were the “unscheduled” taped which were unlawfully seized. The contention before Edgar Joseph JR. J. was that these “unscheduled” videotapes because they were unlawfully seized, proceedings under section 15(1) Copyright Act 1960 could not be commenced against the offenders. Giving short shrift to this argument, the learned judged said :
“More that 30 years ago, Lord Goddard… in the celebrated case of Kuruma v R said, inter alia: ‘the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. His Lordship was of course not making new law… for the principles he referred to was well-settled, in this country, long before that (see for example Saminantan v Public Prosecutor per Aitkin J.) ”.
The effect of holding that proceedings under section 15(I) can only commence if the infringing copies are lawfully seized must be to drain the principle enunciated in Kuruma’s case of all its vitality. The only bar against a prosecution under section 15(I) is where a period of 6 months has elapsed since the seizure of the infringing copies or contrivance concerned without the institution of such proceedings.
Clearly, if the prosecution are at liberty to adduce evidence of the recovery of the articles seized as a result of an illegal search, this must imply the right to prosecute and for this purpose, to retain exhibits seized which are capable being used in evidence at the trial.
Referred Article / Recommended Reading
Syed Nadzari Bin Syed Wazir. (1994). The Law on Illegally Obtained Evidence: A Comparative Study. International Islamic University Malaysia.
C. L. Peiris. (1981). The Admissibility of Evidence Obtained Illegally: A Comparative Analysis. Ottawa Law Review. Vol. 13:2. pp.309-344
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2 Response to "Case Analysis : Position of Illegally Obtained Evidence in Malaysia"
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Nada Says....Basically, conviction or acquittal of an accused person always depends upon the credibility of witnesses as assessed by the court and it's not on the question whether a particular legal procedure has been followed which means how the evidence was obtained. The illegally obtained evidence can only cast doubt upon the bona fides of the parties and accordingly afford ground for scrutiny. It also must understood that there is nothing in the law which makes such illegally obtained evidence as inadmissible.
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Anonymous Says....The mechanism of execution of the principle of illegally obtained evidence is based on the mean to justify and ease the administration of the case. It being a common sense that if the illegally obtained evidence is inadmissible in Malaysia court, therefore many evidence that being so significant to prove the case under the burden of proving i.e. prima case will fail. At a first sight, it is not proper way to do it (illegal obtained evidence) but it is the only way for the enforcement body to gain the evidence of the case. (killing a bird by two stones).
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