DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

WILAYAH PERSEKUTUAN
PERBICARAAN JENAYAH NO 45-22-2000
(DALAM MAHKAMAH MAJISTRET KUALA LUMPUR KES TANGKAP
NO: D81-40-99)

BETWEEN

PUBLIC PROSECUTOR

AND

KALAISELVAN

Coram
DATUK AUGUSTINE PAUL
Judge
High Court
Kuala Lumpur

CRIMINAL LAW: Dangerous Drugs - trafficking

GROUNDS OF JUDGMENT

The charge preferred against Kalaiselvan (“the accused”) is for

trafficking in 807.4 grammes of cannabis an offence under section 39B(1)
(a) of the Dangerous Drugs Act (“the Act”) and punishable under section
39B(2) of the Act.

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 On 2 September 1999 at 3.30 a.m. Chief Inspector Gunalan (PW5)
led a party of police officers to premises number 567, Kampong Loke
Yew, Jalan Semarak, Kuala Lumpur to arrest the accused upon
information received to the effect that he was involved in the theft of
motor vehicles. Upon arrival at the premises PW5 knocked at the door
which was opened by Ramaniam (PW7), the father of the accused. PW5
went into the house with two other police officers. He saw a lady
sleeping in the hall. She is Kalivani and is the mother of the accused.
PW5 asked PW7 whether a person named Selvan was staying in the
house. PW7 nodded his head and took PW5 to the room where the
accused was sleeping. It is room No B2 in Exhibit P3, a sketch plan of
the house, and had no door. The accused was then woken up. PW5
searched the room. From a cupboard in the room he recovered a black
lady’s hand bag (Exhibit P8). Exhibit P8 was hidden amongst the clothes
and was not noticeable when the unlocked sliding doors of the cupboard
were opened. PW5 opened Exhibit P8 and found that it had three packets
containing compressed dried leaves (Exhibits P12A1, P12B1 and P12C1)
suspected to be cannabis. The accused was then handcuffed and arrested
together with PW7 and Kalivani. Another male Indian named
Anabalangan (PW8), the brother of the accused, who was in the premises
was also arrested. PW5 then took the four persons to Sentul Police
Station together with the exhibits. He handed them to Chief Inspector
Wan Azlan bin Wan Mamat (PW4), the investigation officer. In his cross-
examination PW5 said:

“Saya tidak setuju bahawa saya memaksa OKT mengaku barang-barang

rampasan adalah haknya. Saya tidak setuju OKT dibawa ke pejabat saya dan
dibelasah oleh anggota saya. Saya tidak memaksa OKT untuk mengaku bahawa
barang kes adalah milik OKT. Saya tak setuju bahawa apabila OKT enggan
mengaku saya akan menangkap ibu dan bapanya. Saya tak setuju bahawa selepas

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 itu sahaja kita balik ke tempat kejadian untuk menangkap ibu dan bapa OKT
sementara OKT dan abangnya menunggu di kenderaan polis.”

He added that neither he nor his officers assaulted the accused.

PW7, in his evidence, identified the rooms occupied by the different
members of his family with the aid of Exhibit P9. His wife, Kalivani,
sleeps in the hall. He himself occupies room No B1 while the accused’s
room is No B4. Room No B2 was occupied by his daughter. After her
marriage both his sons used the room. He said that during weekends his
daughter’s three children stay in the room. They are a set of twins aged
nine and a son aged 11. In narrating the arrest of the accused he said that
when he woke up the accused had already been handcuffed. At that time
the accused was in room No B2. He then said:

“A policeman was holding a bag. I am not sure of the colour. I do not

know whose bag it was.

Q : Can you describe the bag further?

A : I only remember that the colour of the bag is black. That is all. It is
about one foot long. I did not have a good look at the bag.”

In his evidence PW8 said that his room is No B5. He added that he
sleeps in room No B2 whenever he drinks. He said that on the day in
question when the police came he got frightened and ran. He hid behind
the refrigerator. He was arrested. He then added:

“I did not see the police recovering anything from the house. I only saw a
policeman carrying a bag. I did not really notice the bag as I thought it
belonged to the police. The colour of the bag could be black or brown. I have
not seen the bag before the incident. During the times I used room B2 I have
not seen this bag there. On that night I was sleeping in room B5.”

PW4 sent Exhibits P12A1, P12B1 and P12C1 to the Chemistry

Department for analysis on 11 September 1999 and received them back

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on 17 December 1999 together with a chemist report (Exhibit P11). He
served a copy of Exhibit P11 on the accused. On 3 September 1999 PW4
asked Inspector Ho Chee Khun (PW6) to record a cautioned statement
from the accused which he did.

When the prosecution sought to tender in evidence the cautioned

statement the defence objected to its admissibility on the ground that it
was not voluntarily made. I promptly ordered that a trial within a trial be
held to determine this issue. The only witness called by the prosecution
to testify in the trial within a trial was PW6. He said that on 3 September
1999 PW4 asked him to record a cautioned statement from the accused.
The statement was recorded in his office. He said that he commenced
recording the statement at 11.00 a.m. and concluded his task at about
11.30 a.m. He conversed with the accused in Bahasa Malaysia who
understood the language. There was nobody else in the office at that time.
The accused was in good health. PW6 examined the body of the accused
and found no marks. The accused also did not make any complaints to
him. PW6 then read the statutory caution under section 37A(1) (b) of the
Act to the accused. Having read out the caution PW6 proceeded to
explain it to the accused. As he said in his evidence:

“Selepas itu saya ada jelaskan maksud amaran kepada OKT. Saya telah memberi
pilihan kepada OKT di mana OKT boleh memberi percakapan kepada saya
ataupun di Mahkamah. Ini adalah penjelasan yang saya beri kepada OKT. Saya
juga memberitahu OKT sekiranya OKT ingin memberi percakapan kepada saya
percakapan tersebut akan dijadikan sebagai keterangan di Mahkamah. Saya
bertanyakan OKT sama ada percakapan diberi sukarela atau tidak. (Saksi diminta
amaran yang dibacakan kepada saksi) ‘Ada menjadi kewajipan saya untuk
memberi amaran kepada kamu bahawa kamu tidaklah diwajibkan menyatakan
sesuatu atau menjawab apa-apa soalan. Tetapi apa-apa jua yang kamu nyatakan

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 sama ada sebagai jawapan kepada sesuatu soalan atau tidak bolehlah diberi
sebagai keterangan.’ Saya bacakan amaran sekali. Selepas itu OKT tidak tanya
saya apa-apa. Saya bacakan amaran dan kemudian memberi penjelasan iaitu
pilihan kepada OKT. Saya memberi penjelasan sekali. Saya juga memberitahu
OKT bahawa dia juga ada hak mendiamkan diri. Saya pasti OKT faham amaran
dan penjelasan. Selepas itu saya telah mengambil percakapan dari OKT.”

The accused then affixed his signature on the first page of the statement
containing the caution. After the statement was recorded PW6 read it back
to the accused who had no corrections or amendments to make. The
accused then affixed his signature at the foot of the statement followed by
PW6. PW6 also confirmed that he did not hold out any threat, inducement
or promise to the accused and that he had explained the meaning of these
elements to the accused. The prosecution then closed its case in the trial
within a trial. No witnesses were offered to the defence.

Learned counsel for the accused then applied to make a submission of no

case to answer with an option to call the accused as a witness should his
submission fail. Learned counsel’s anxiety to ensure that he has a right to
call evidence should his submission of no case fail is understandable in
view of the conflicting local authorities in this area of the law. In ruling that
the defence has no right to make a submission of no case at the end of the
case for the prosecution in a trial within a trial unless there is an election
of not calling any evidence Shankar J (as he then was) said in PP v.
Muniandy and Ors (Selangor Criminal Trial No 58-10-86, unreported):

“When the prosecution witnesses had concluded their evidence in the

trial within the trial defence counsel sought to make ‘submission of no
case to answer’. The objective of this exercise was to forestall the
problem of having to elect whether the accused should give evidence in

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 the trial within the trial until a ruling had first been obtained on admissibility
based purely on the prosecution evidence.

I am unable to accede to the defence submission that I had to put the matter
on par with a situation where having found there was a case to answer I
ordered the accused to enter into his defence. We were not concerned with
his guilt at this stage, only with admissibility. So I ruled the submission
premature and directed the accused to elect whether they wished to give
evidence.”

However, in PP v. Aidil bin Ma’rof [1992] 2 CLJ 1239; [1992] 3 CLJ

317 (Rep), Chong Siew Fai J (as he then was) allowed counsel for the defence
to submit at the conclusion of the prosecution case in a trial within a trial
without any election. Though his Lordship overruled the defence submission,
he said at p 1242:
“There is evidence upon which conclusions are capable of being drawn that
the statutory caution was duly and properly administered and that no threat,
inducement or promise was made to the accused. The ‘trial within the trial’
is to continue, at the end of which I shall further consider all the evidence
adduced including that of the defence, if any, in their context and decide on
the admissibility or otherwise of the contested statement.”

A consideration of the nature of a trial within a trial will help to resolve

the problem at hand. It is sometimes referred to as a voir dire and is a
descriptive phrase to describe a procedure adopted to determine the
admissibility of certain evidence. In a trial within a trial held to determine
the voluntariness of a confession the legal burden is on the prosecution to
prove voluntariness beyond reasonable doubt (see PP v. Chong Boo See [1988]
1 CLJ 679; [1988] 2 CLJ 206 (Rep)). Thus the prosecution must adduce
sufficient evidence of the facts in the course of its case to show that the
statement was obtained voluntarily. The accused is entitled to call evidence to
the contrary. The normal rules of examination of witnesses apply in a trial

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within a trial. As Syed Agil Barakbah J (as he then was) said in Abdul Mahmud
v. PP [1980] 1 LNS 1; [1980] 2 MLJ 50 at p 51,

“The accused is entitled to cross-examination and thereafter to give evidence

in support of his objection. Similarly the prosecution is also entitled to
cross-examine the accused and his witnesses, if any.”

It is settled law that evidence adduced in a trial within a trial cannot be

used against the accused in the main trial. Thus as Meares J said in Ex parte
Whitelock; Re Mackenzie [1971] 2 NSWLR 534 the voir dire is entirely
separate from the trial proper. Wells J in R v. Williams [1976] 14 SASR,
made the observation that the voir dire ‘ ... stands apart from the usual
and regular conduct of a criminal trial ... ‘ (at p 2). In R v. Bradshaw
[1978] 18 SASR 83 King J expressed the view that the voir dire hearing
is not part of the trial proper. In R v. Bannerman [1966] 48 CR 110 Miller
CJM accepted that the voir dire must be kept separate from the trial
itself. In Chua Poh Kiat Anthony v. PP [1998] 2 SLR 713 and Lim Seng
Chuan v. PP [1975] 1 LNS 88; [1977] 1 MLJ 171 it was held that the
fundamental principle of the administration of justice is that a voir dire
ought to be considered a separate or collateral proceeding. Be that as it
may, a trial within a trial cannot be equated with an ordinary criminal
trial for all purposes from a procedural point of view. There is at least
one vital difference between both the proceedings. It relates to the right
of an accused to make a submission of no case at the end of the case for
the prosecution. In an ordinary criminal trial the prosecution must make
out a prima facie case at the end of its case failing which the accused is
entitled to an acquittal. This gives him a right to make a submission of no
case to answer. In the light of the subjective consideration underlying the
test of voluntariness in a trial within a trial, the accused must discharge

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the evidential burden of establishing the allegations raised by him. He
must show that the inducement, threat or promise complained of affected
his mind in causing him to make the statement (see PP v. Teh Lye Tong
[1958] 3 MC 208; PP v. Law Say Seck & Ors [1970] 1 LNS 114; [1971] 1
MLJ 199; Aziz bin Muhamad Din v. PP [1997] 1 CLJ SUPP 523; [1996] 5
MLJ 473). Thus, as stated by the Privy Council in Wong Kam-ming v. The
Queen [1979] 1 All ER 705 the accused can almost never make an
effective challenge to the admissibility of the statement without giving
evidence himself. He is therefore virtually compelled to give evidence
(see R v. Brophy [1981] 2 All ER 705). It is only when he has discharged
his evidential burden that it becomes the function of the Court to
determine the issue of voluntariness (see Aziz bin Muhamad Din v. PP
[1997] 1 CLJ SUPP 523; [1996] 5 MLJ 473). The Court must therefore
hear the accused before making a ruling on voluntariness. This means
that the question of the prosecution making out a prima facie case in a
trial within a trial does not arise before the accused is called upon to
testify. This will preclude the making of a submission of no case to
answer at the end of the prosecution case as in an ordinary trial. As an
illustration I refer to a trial within a trial where the evidence adduced by
the prosecution shows that some threat was used on the accused. No
ruling can be made on the effect of this evidence at the end of the case
for the prosecution. Its real value will only emerge when the accused
testifies to explain that the threat “caused” him to make the cautioned
statement. As I explained earlier it is only then that the Court can make a
ruling. However, a submission of no case to answer can be made if it is
based on grounds which do not require the testimony of the accused. It
can be made on a point of law, as for example, when the required caution
has not been administered in accordance with law or when the evidence

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adduced is insufficient in law. Evidence would be insufficient in law
when the prosecution has failed to call some material witnesses. In these
instances a ruling can be made based merely on the evidence adduced by
the prosecution and it would be an exercise in futility to carry on with the
trial within a trial to its conclusion as the result would be the same even
if the accused were to testify. If, however, a point of law raised is not
successful there ought to be no prohibition on the accused giving
evidence on the facts as the facts would not and could not have been the
basis of the submission. Any curtailment of the right of the accused to
call evidence if the submission fails will amount to a denial of justice as
the accused will be prevented from discharging the evidential burden on
him. This is particularly significant in view of the subjective
consideration involved in making a ruling which requires the evidence of
the accused to be taken into account. I am therefore of the view that the
accused has the right to make a submission of no case to answer on points
of law at the close of the case for the prosecution, and, if the submission
fails he has the right to give evidence and call witnesses.

Learned counsel’s submission of no case was anchored on two

issues. Firstly, he contended that the explanation to the accused of the
caution and the elements that constitute involuntariness are not reflected
in the cautioned statement. The short answer to this objection is that there
is no requirement in section 37A of the Act for these matters to form part
of the record. This of course does not mean that the objection raised is
without merit. What really the Court has to concern itself with is whether
a scrutiny of the evidence and the surrounding circumstances show that
the cautioned statement appears to have been caused by any inducement,
threat or promise. If the accused felt that he had to make a statement

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whether he likes it or not then the caution that is administered loses its
efficacy and the whole purpose and intention of section 37A of the Act is
defeated (see Mohamed Yusof v. PP [1983] 2 MLJ 167). Such a finding
can be made by the Court only after the accused has given evidence. The
objection raised at this stage is therefore premature. Secondly, learned
counsel contended that the failure of PW6 to ascertain the state of mind
of the accused from the time he was arrested till he gave the cautioned
statement is fatal. An inquiry of this nature conducted by PW6, if any,
only serves the purpose of satisfying himself that the accused was giving
the statement voluntarily. Any conclusion that he arrives at will be his
own assessment of the state of mind of the accused. This overlooks the
requirement of section 37A (1) of the Act which provides that it is the
function of the Court to ascertain whether the statement was given
voluntarily and not that of the recording officer. Reliance on such
evidence from the recording officer would amount to the Court abdicating
its duty. In the Canadian Supreme Court case of Sankey v. The King
[1927] 48 CCC 97 it was held that rarely, if ever, can the burden of proof
that rests on the prosecution be discharged merely by proof that the
giving of the statement was preceded by the customary warning and an
expression of opinion by the police officer who obtained it, that it was
made freely and voluntarily. As Anglin CJC said at p 101:

“With all the facts before him, the judge should form his own opinion
that the tendered statement was indeed free and voluntary as the basis
for its admission rather than accept the mere opinion of the police
officer, who had obtained it, that it was made ‘voluntarily and freely’.”

In fact, as stated in R v. Wilson [1970] 1 CCC (2d) 14 (BCCA), the

police officer should not even be asked that question. Such questioning
will infringe the ultimate issue rule whereby witnesses may not be asked

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the question which the Court itself has to decide. The state of mind of the
accused from the time he was arrested till he gave the cautioned
statement can therefore only be determined by the Court upon a
consideration of the relevant evidence and not on any inquiry conducted
by the recording officer. I was therefore of the view that this objection
too was without any merit.
Before the learned Deputy Public Prosecutor could commence his reply I
invited both parties to submit on two matters which were quite apparent
on the evidence adduced. They are:

(a) whether the explanation of the caution to the accused was regular,
and
(b) whether the prosecution ought to have called PW4 and PW5 as
witnesses.

Both parties submitted on the two matters raised. I shall now

consider them.

(a) Whether the explanation of the caution to the accused was regular

The caution, as prescribed in section 37A(1) (b) of the Act, is in the

following words:

“it is my duty to warn you that you are not obliged to say anything or to
answer any question, but anything you say, whether in answer to a
question or not, may be given in evidence.”

After having read out the caution to the accused in its proper form
PW6 proceeded to explain it. Before considering the regularity of the
explanation of the caution offered to the accused and its effect, if
irregular, I shall first consider the need for such an explanation. In PP v.
Chan Choon Keong & Ors [1989] 2 CLJ 300 (Rep); [1989] 2 MLJ 427 it

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was held that a proper caution had not been administered as it had not
been properly and fully explained so that the accused could understand it.
In PP v. Lee Chee Meng [1990] 2 CLJ 728 (Rep); [1991] 1 MLJ 226 it
was held that the statement recorded was inadmissible as it did not
contain any statement to the effect that the accused understood it. In PP
v. Kang Choo Heng and Anor [1991] 3 CLJ 2574; [1991] 3 CLJ 545
(Rep) Richard Tallala J in commenting on the need to explain the caution
said at p 2579:
“In this regard it is significant that in answer to the alleged caution Inspector
Guan said that the accused merely nodded. Inspector Guan admitted to not
being a qualified interpreter. In this regard I respectfully agree with the
dictum of Shaik Daud J in PP v. Mohd Fuzi bin Wan Teh and Anor [1989] 2
CLJ 652; [1989] 2 CLJ 341 (Rep) at p 654 that a caution should not merely
be read but also explained to the accused along with its consequences. There
is no evidence that that was done in this case.”

In PP v. Muniandy & Ors (Selangor Criminal Trial No 58-10-86,

unreported) it was contended on the authority of PP v. Mohd Fuzi bin
Wan Teh and Anor [1989] 2 CLJ 652; [1989] 2 CLJ 341 (Rep) that the
caution should have been explained to the accused and that he should
have been asked why he wanted to confess. In answer to this Shankar J
(as he then was) said:

“Whether a caution has to be explained, and if so how it should be

explained, to a person depends upon the circumstances of the case. The
first accused spoke fluent English. No explanation was necessary.”

In PP v. Aidil bin Ma’rof [1992] 2 CLJ 1239; [1992] 3 CLJ 317 (Rep),
Chong Siew Fai J (as he then was) said at p 1241 that explaining the
caution to an accused is good and recommendable practice but added that
“... mere failure to do so does not, in itself, necessarily render a cautioned
statement inadmissible, in evidence. Much depends on the facts and

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 circumstances of each case. The important consideration is that it must be
ensured that the giver of the statement fully understands the caution. So far
as the present proceedings go, there is evidence from the inspector and in
ID21 that the accused understood the caution administered.”

In Tan Too Kia v. PP [1980] 1 LNS 77; [1980] 2 MLJ 187 it was
held that what is important is that the person interrogated should
understand the language used by the interrogator. In Mohamed Yusof v.
PP [1983] 2 MLJ 167 Syed Agil Barakbah J (as he then was) said, in line
with the latter line of authorities that I have referred to, that there is no
requirement for the accused to be asked whether he understood the
caution. His Lordship added that nevertheless it is vital for the Court to
determine by scrutiny of the evidence and the surrounding circumstances
whether the statement given appears to have been caused by any
inducement, threat or promise from a person in authority. If the accused
felt that he had to make a statement whether he likes it or not, then, as his
Lordship added at p 169:

“ ... the caution that is administered loses its efficacy and the whole
purpose and intention of the provision is thereby defeated.”

I agree that there is no requirement in section 37A of the Act for the
caution to be explained to the person giving a statement. What is significant is
that the statement must have been given voluntarily without any feeling of
compulsion by the accused that he had to make a statement. A statement given
with such a state of mind deprives the caution of its effect. A determination of
this issue will, of course, depend on the circumstances of each case. Where,
however, the caution has been explained it is my view that the explanation
offered must not deviate from the language and spirit of the caution as
prescribed by law. It follows that a caution read out in its regular form but

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subsequently explained in an irregular manner will lose its value as a properly
administered caution.

PW6 first read the caution to the accused and then explained it. PW6
told the accused that he has the option of giving a statement either to him or
in Court. The accused was told that if he gave a statement to PW6 it would
be used as evidence in Court. Upon further questioning PW6 said that he
also informed the accused of his right to remain silent. He said that the
accused understood the caution and the explanation. In my opinion the
explanation of the caution by PW6 deviates from the requirements of the
statutory caution in two respects. Firstly, the explanation conveyed to the
accused means that if he chose not to make a statement to PW6 then he
must make one in Court. This makes it obligatory to make a statement and
thus dilutes the right of the accused to remain silent which was
subsequently communicated to him. The right of silence is defined
objectively rather than subjectively and any police conduct which
effectively and unfairly deprives a suspect of the right to choose whether to
speak to the authorities or not affects the right (see R v. Hebert [1990] 57
CCC (3d) 1 (SCC)). Thus the accused’s right of silence, inherent in the
caution (see Teng Boon How v. Pendakwa Raya [1993] 3 MLJ 553;
Alcontara a/l Ambross Anthony v. PP [1996] 1 CLJ 705), has been
infringed. Secondly, the explanation of the caution by PW6 to the accused
did not refer to the part of the caution which states that there is no
obligation “... to answer any question ...”. It is true that PW6 told the
accused that he has the option of giving a statement to him. But he did not
tell the accused that he is also not obliged to answer any questions.
There is, however, a difference between the right of not giving a statement
and the right of not answering any question. In commenting on the failure to

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administer the latter part of the caution Willan CJ said in Poon Heong v. PP
[1949] 1 LNS 59; [1949] MLJ 114 at p 115:

“We agree with that part of the judgment of Spenser-Wilkinson J in PP

v. Lee Weng (supra) which reads:-

‘The amendment of Regulation 33 followed a decision of the

Court of Appeal to the effect that under that Regulation as it then
stood questions should not be asked in eliciting a statement
thereunder. It has been thought right by amending the law to
allow questions to be put in taking such statements, but in making
the change the legislature has been careful to lay down certain
pre-requisites before the statement may be taken. I think the
emphatic repetition of the reference to questions in the amended
Regulation is deliberate and that the words have been inserted in
both parts of the caution for two reasons; the first is that
suggested by Mr Chia, namely, that the first part of the caution up
to the comma is the actual warning part, whereas the latter part
merely indicates the use to which the statement may be put; and
the other is that, if questions are to be allowed, the provisions of
paragraph (2) of the Regulation have to be emphasised because
otherwise an accused person familiar with the normal law under
section 112 of Criminal Procedure Code, but unfamiliar with the
Regulations might think that he was legally bound to answer the
questions and to answer them truly. Section 112 has existed for so
long that such a state of mind could not, I think, be considered
unreasonable.’

As to (3) a police officer cannot be allowed to change a statutory form of

caution merely because he does not propose to ask an accused person any
questions.

For these reasons we decided that the statement should not have been
admitted in evidence at the trial of the appellant.”

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 Thus the omission of the right of a person not to answer any
questions in the administration of a caution will render the statement
made inadmissible. A statement with a similar defect was held
inadmissible in PP v. Badrulsham bin Baharom [1987] 1 LNS 72; [1988]
2 MLJ 585. This is sufficient to render the cautioned statement in this
case inadmissible.

(b) Whether the prosecution ought to have called PW4 and PW5 as witnesses

The evidence adduced reveals that the accused was arrested by PW5
on 2 September 1999 at about 3.30 a.m. He was then taken to Sentul
Police Station and handed over to PW4. On 3 September 1999 PW4
handed over the accused to PW6 at about 11.00 a.m. for the purpose of
recording the cautioned statement. The only witness whom the
prosecution called in the trial within a trial to show that the cautioned
statement was given voluntarily was PW6. Learned counsel for the
accused contended that the burden is on the prosecution to establish that
nothing transpired from the time the accused was arrested till he was
handed to PW6 to render the cautioned statement involuntary. In the
circumstances, he said, the prosecution ought to have called PW4 and
PW5 as witnesses in the trial within a trial. In his reply the learned
Deputy Public Prosecutor said that the evidence of PW6 that the accused
gave the cautioned statement voluntarily remains uncontradicted. This
means, he said, the prosecution has discharged its evidential burden and
that there is only a need for the prosecution to adduce evidence in
rebuttal if, in fact, the accused had made allegations in his evidence. He
concluded by saying that there is no obligation on the prosecution to call
any further evidence as the accused, by not having given any evidence,

16
has not made any allegations warranting rebuttal. The first part of the
submission has only to be stated to be rejected as the evidence of PW6 on
the voluntariness of the statement, being his opinion, is insufficient to
discharge the legal burden on the prosecution as I said in an earlier part
of the judgment. Before dealing with the second part of the submission it
is pertinent to consider the type of evidence that the prosecution must
adduce in a trial within a trial.

The general rule is that the prosecution must adduce sufficient

evidence of the facts to show that a cautioned statement was obtained
voluntarily in order to discharge the legal burden that it bears. In
Boudreau v. The King [1949] 94 CCC1 it was held that all the
surrounding circumstances must be investigated and, if upon their review
the Court is not satisfied of the voluntary nature of the admission, the
statement will be rejected. Thus all persons who had anything to do with
the accused during the period before the statement was made must be
called as witnesses. Accordingly, as Dickson J said in Erven v. The
Queen [1979] 92 DLR (3d) 507 at p 519 the witnesses who should
normally be called would be:

“... the police officer to whom the statement was made or given, and any
other police officers who might have been in a position to threaten or to
offer hope of advantage to the accused. These witnesses testify
affirmatively to statements made and to the absence of threat or promise.”

Thus the Singapore High Court in PP v. Tan Boon Tat [1990] 1

LNS 43; [1990] 2 MLJ 466 examined at p 471
“... the evidence of the events that occurred between the time of the arrest of
the accused and the time when the statement was recorded to see whether any
inducement, threat or promise was made to the accused which caused him to
make the statement which was made.”

17
 Similarly in Lim Sing Hiaw v. PP [1964] 1 LNS 92; [1965] 1 MLJ
85 the Federal Court took exception to the fact that (at p 89)

“... no attempt was made to call any police or army officer who could
say what happened to the appellant during the three days he was in
custody prior to making his statement to Inspector Lingam.”

Where a witness is considered material in order to establish the

voluntariness of the statement the failure to call him is fatal. In this regard
Duff CJC in speaking for the Supreme Court of Canada in Thiffault v. The
King [1933] 60 CCC 97 said at p 103:

“Where such a statement is elicited in the presence of several officers the

statement ought, as a rule, not to be admitted unless (in the absence of
some adequate explanation of their absence) those who were present are
produced by the Crown as witnesses ... and, where the statement professes
to give the substance of a report of oral answers (given to questions) ...
ought not to be admitted ... unless the person who is responsible for its
compilation is (here again in the absence of some adequate explanation of
his absence) called as a witness.”

Where an important witness is not available to give evidence his

absence must be adequately explained. In commenting on what is an
adequate explanation P K McWilliams in his book Canadian Criminal
Evidence (1988) 3rd edn says at para 15 - 80:

“If it means that the witness was only incidentally involved with the
accused that may be reasonable, but if it is simply that the witness is, for
example, away moose hunting, then it is not. In R v. Botfield [1973] 28
CCC (2d) 472 (BCCA) the fact that a store detective was ill in hospital
was rejected as being an inadequate explanation.”

I must add that even though the absence of a material witness has
been adequately explained thereby precluding an adverse inference from

18
being drawn against the prosecution yet the failure to produce the witness
to testify may result in the prosecution not being able to discharge its
burden if the testimony of that witness is essential for the unfolding of its
case. A case cannot be said to have been proved simply by explaining
away the absence of a witness whose evidence is crucial. Be that as it
may, there is no burden upon the prosecution to call everyone who had
contact with the accused however peripheral or insignificant his role (see
R v. Haughton (No 2) [1982] 38 OR (2d) 496). Thus in R v. Settee [1974]
22 CCC (2d) 193 (Sask CA) it was held that it was not necessary to call
witnesses who had escorted the prisoner and did not take part in the
interrogation.

It is now appropriate to consider the second part of the submission

made by the learned Deputy Public Prosecutor. Cases such as Lim Sing
Hiaw v. PP [1964] 1 LNS 92; [1965] 1 MLJ 85 and PP v. Tan Boon Tat
[1990] 1 LNS 43; [1990] 2 MLJ 466 do not support the proposition, as
contended by the learned Deputy Public Prosecutor, that there is an onus on
the prosecution to call witnesses only to rebut allegations raised by the
accused in his evidence. It is a fundamental principle of our criminal law
that in deciding on the issue of admissibility of a confession made by an
accused person, the onus is not on the accused to show involuntariness but
on the prosecution to prove beyond reasonable doubt that the confession
was voluntary (see Hasibullah bin Mohd Ghazali v. PP [1993] 4 CLJ 535;
[1993] 3 MLJ 321). Thus if the prosecution is only obliged to rebut
allegations raised it means that the accused must first make out a case of
involuntariness before the burden shifts. This will place an unwarranted
evidential burden on the accused. As Dickson J said in Erven v. The Queen
[1979] 92 DLR (3d) 507 at p 524:

19
 “The effect of limiting the voir dire to cases where there is evidence of
involuntariness is to obligate the accused to adduce such evidence,
thereby relieving the Crown of a burden which properly rests on the
Crown and placing an unwarranted evidential burden upon the accused.”

The prosecution must therefore call its material witnesses in the

course of its case as I explained earlier. The argument advanced by the
learned Deputy Public Prosecutor is also contrary to the principles
governing the calling of evidence in rebuttal which is allowed only in
very special or exceptional circumstances (see PP v. Chia Leong Foo
[2000] 4 CLJ 649; [2000] 6 MLJ 705). The duty of the prosecution is to
present completely the evidence upon which it relies to discharge its
burden in the course of its case and not split its case by reserving some
evidence to be called in rebuttal. As Dawson J said in The Queen v. Chin
[1984] 157 CLR 671 at pp 684 – 685:
“The prosecution may be permitted to adduce evidence after the close of
the defence case in the discretion of the trial judge. The discretion is,
however, to be exercised in favour of the prosecution only in exceptional
circumstances and the guiding principle is that the prosecution ought not
to be permitted to split its case. That is to say, the prosecution must call
all the evidence available to it in support of its case during the
presentation of that case. If it fails to do so, it ought not to be allowed to
remedy the situation by calling evidence in reply except in exceptional
circumstances. Beyond saying that exceptional circumstances do not
embrace a situation which ought reasonably to have been foreseen by the
prosecution or which would have been covered if the prosecution case
had been fully and strictly proved, this Court has declined, having regard
to the multifarious directions which a criminal trial may take, to lay
down any rigid formula ....

Where evidence which the prosecution seeks to call by way of rebuttal is

also confirmation of the case which it has sought to make, the trial judge

20
 must exercise his discretion to ensure the observance of the principle
which finds its expression in the rules which have been laid down: see
Killick’s Case. If the evidence was only of marginal, minimal or
doubtful relevance to the prosecution case, it may properly be admitted
to rebut the defence case. There is also authority for the proposition that
the prosecution may be permitted to reopen its case to repair omissions
of a formal, technical or non-contentious nature: see Archbold’s
Criminal Pleading, Evidence and Practice, 41st ed (1982) par 4 - 414,
and the cases there cited.”
As Gibbs CJ and Wilson J said in the same case as p 676:
“The general principle is that the prosecution must present its case
completely before the accused is called upon for his defence. Although the
trial judge has a discretion to allow the prosecution to call further evidence
after evidence has been given for the defence, he should permit the
prosecution to call evidence at that stage only if the circumstances are very
special or exceptional and, generally speaking, not if the occasion for
calling the further evidence ought reasonably to have been foreseen. The
principle applies where the prosecution seeks to call evidence to rebut
matters raised for the first time by the defence; if the rebutting evidence
was itself relevant to prove the prosecution case (unless, perhaps, it was no
more than marginally, minimally or doubtfully relevant: Reg v. Levy and
Tait [1966] 50 Cr App R 198) and the need to give it could have been
foreseen it will, generally speaking, be rejected.”

The prosecution cannot therefore call evidence to rebut matters that

could have been foreseen or if such evidence was itself relevant to prove
its case. Where, however, the accused in his evidence makes allegations
against persons considered by the prosecution to be not material in
establishing the voluntariness of the statement by virtue of them being of
marginal, minimal or doubtful relevance they may be called to give
evidence in rebuttal. Tan Too Kia v. PP [1980] 1 LNS 77; [1980] 2 MLJ

21
187 where the Federal Court commented on the failure by the
prosecution to call evidence in rebuttal against whom the accused had
made allegations must therefore be understood in that light. The
prosecution cannot therefore withhold material evidence in its
possession for the purpose of rebutting allegations raised by the
accused. In view of the legal burden that has to be discharged by the
prosecution it is my view that PW4 and PW5, being material witnesses,
ought to have been called by the prosecution in the course of its case
and not merely being reserved for giving evidence in rebuttal if the
need arises. The remaining matter for consideration is whether PW5
must still have been called as a witness in the trial within a trial even
though he had been cross-examined on the issue of voluntariness in the
main trial. This raises the question of whether evidence adduced in the
substantive trial can be used as evidence in the trial within a trial. In
PP v. Kadir bin Awang [1989] 1 LNS 94; [1989] 2 MLJ 33 the medical
evidence of a doctor given in the substantive trial was considered in
the trial within a trial. It is, however, my view that the reception of
such evidence must be restricted to matters of a formal nature and not
to material evidence as the voluntariness of the statement would not
have been in issue at that stage of the trial with the result that the
examination conducted would not have been full and proper. It follows
that the cross-examination of PW5 would not have been conducted as
required at that stage as rightly contended by learned counsel for the
accused. Thus the obligation of the prosecution to call PW5 as a
witness in the trial within a trial remains. In the circumstances the
evidence led by the prosecution is insufficient in law to support a
finding that the cautioned statement was given voluntarily.

22
 In the light of the foregoing I ruled that the cautioned statement
was not admissible.

The case of the prosecution must therefore be judged without the aid of
the cautioned statement. There is no direct evidence to show that the accused
was in possession of the dangerous drugs at the material time. The
prosecution must therefore rely on presumptions to make out the charge with
which the accused has been charged. The learned Deputy Public Prosecutor
rightly conceded that the presumption contained in section 37(d) of the Act is
inapplicable as the room where the dangerous drugs was found was
accessible to others. However, he contended that the facts of the case warrant
the activation of section 37(g) of the Act which reads as follows:

“If any dangerous drug is found to be concealed in any premises, it shall

be presumed, until the contrary is proved, that the said drug is so
concealed with the knowledge of the occupier of the premises.”

Before this presumption can be invoked in favour of the prosecution

there must be evidence to show that the dangerous drugs were concealed
and that the accused was the occupier of the premises. With regard to proof
of concealment the evidence shows that the dangerous drugs were hidden
amongst the clothes. Thus it cannot be disputed that they were concealed in
the premises. In proving the fact that the accused was the occupier of the
premises the prosecution may rely on section 37(b) of the Act which reads
as follows:

“a person, until the contrary is proved, shall be deemed to be the

occupier of any premises, if he has, or appears to have, the care or
management of such premises.”

In order to rely on this presumption the prosecution must lead

evidence to show that the accused had or appears to have had care or

23
management of the premises. It must be observed that the premises where
the dangerous drugs were found was occupied by four persons at the
material time, two of whom being the parents of the accused. The room
from which the recovery of the dangerous drugs was made was not one
that was ordinarily occupied by the accused. PW8 used the room
occasionally. The accused’s sister’s children used the room during
weekends. The accused who had his own room was merely found sleeping
in the room at the time of the arrest. The mere presence of a person in a
room without more does not show that he had or appeared to have had
care or management of the room (see PP v. Lai Ah Bee [1974] 1 LNS
119; [1974] 2 MLJ 74). The accessibility of the room to others will lead
to a similar conclusion (see PP v. Md Alim bin Samad [1998] 5 CLJ 590;
[1998] 1 MLJ 260). It is settled law that for a person to be an “occupier”
of a room or premises within the meaning of section 37(b) of the Act he
must have had exclusive occupation or exclusive use and care or
management of the room or premises where the incriminating exhibits are
found (see PP v. Aris bin Yunus [1989] 1 CLJ 239; [1989] 2 CLJ 289
(Rep); Lee Chee Meng v. PP [1992] 1 CLJ 345; [1992] 1 CLJ 168 (Rep);
[1992] 1 MLJ 322; PP v. Yap Hai Ling [1990] 1 CLJ 983; [1990] 2 CLJ
909 (Rep); PP v. Ong Cheng Heong [1998] 4 CLJ 209). The presumption
contained in section 37(b) of the Act cannot therefore be invoked with
the result that there is no evidence to show that the accused was the
occupier of the premises. Section 37(g) of the Act is therefore of no avail
to the prosecution. I pause to add that even if the presumption applies it
only goes to show that the dangerous drugs were concealed with the
knowledge of the accused (see PP v. Sukumaran a/l Sudram [1999] 4 CLJ
242; [1999] 4 MLJ 462; PP v. Muhamad Nasir bin Shaharuddin & Anor

24
[1994] 2 MLJ 576). It is trite law that mere knowledge is not sufficient to
constitute possession of the dangerous drugs (see PP v. Khoo Boo Hock
& Anor [1990] 2 CLJ 971; [1990] 2 CLJ 716 (Rep); Choo Yoke Choy v.
PP [1992] 2 MLJ 632; Yee Ya Mang v. PP [1971] 1 LNS 156; [1972] 1
MLJ 120; PP v. Mohd Fairuz bin Omar [1998] 5 MLJ 729). The evidence
adduced by the prosecution is therefore insufficient to show that the
accused was in possession of the dangerous drugs.

In the upshot I was satisfied that the prosecution had not made out a
prima facie case against the accused. Accordingly I acquitted and
discharged him without calling upon him to enter his defence.

28 FEBRUARY 2001

Sgd
(DATUK AUGUSTINE PAUL)
Judge
High Court
Kuala Lumpur
Counsel:
For the Prosecution:
Encik Azhar bin Abdul Hamid, Timbalan Pendakwa Raya,
Jabatan Peguam Negara

For the Accused:

Encik M Sathia, Tetuan M Sathia & Associates

25
Cases referred to:

Abdul Mahmud v. PP [1980] 1 LNS 1; [1980] 2 MLJ 50

Alcontara a/l Ambross Anthony v PP [1996] 1 CLJ 705

Aziz bin Muhamad Din v PP [1997] 1 CLJ SUPP 523; [1996] 5 MLJ 473

Boudreau v. The King [1949] 94 CCC1

Choo Yoke Choy v. PP [1992] 4 CLJ 1791; [1992] 1 CLJ 43 (Rep); [1992] 2 MLJ
632)

Chua Poh Kiat Anthony v PP [1998] 2 SLR 713

Erven v. The Queen [1979] 92 DLR (3d) 507

Ex parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534

Hasibullah bin Mohd Ghazali v PP [1993] 4 CLJ 535; [1993] 3 MLJ 321

Lee Chee Meng v PP [1992] 1 CLJ 345; [1992] 1 CLJ 168 (Rep); [1992] 1 MLJ
322

Lim Seng Chuan v PP [1975] 1 LNS 88; [1977] 1 MLJ 171

Lim Sing Hiaw v PP [1964] 1 LNS 92; [1965] 1 MLJ 85

Mohamed Yusof v PP [1983] 2 MLJ 167

PP v Aidil bin Ma’rof [1992] 2 CLJ 1239; [1992] 3 CLJ 317 (Rep)

PP v Aris bin Yunus [1989] 1 CLJ 239; [1989] 2 CLJ 289 (Rep)

PP v Badrulsham bin Baharom [1987] 1 LNS 72; [1988] 2 MLJ 585

PP v Chan Choon Keong & Ors [1989] 2 CLJ 300 (Rep); [1989] 2 MLJ 427

PP v Chia Leong Foo [2000] 4 CLJ 649; [2000] 6 MLJ 705

26
PP v Chong Boo See [1988] 1 CLJ 679; [1988] 2 CLJ 206 (Rep)

PP v Kadir bin Awang [1989] 1 LNS 94; [1989] 2 MLJ 33

PP v Kang Choo Heng and Anor [1991] 3 CLJ 2574; [1991] 3 CLJ 545 (Rep)

PP v Khoo Boo Hock & Anor [1990] 2 CLJ 971; [1990] 2 CLJ 716 (Rep)

PP v Lai Ah Bee [1974] 1 LNS 119; [1974] 2 MLJ 74

PP v Law Say Seck & Ors [1970] 1 LNS 114; [1971] 1 MLJ 199

PP v. Lee Chee Meng [1990] 2 CLJ 728 (Rep); [1991] 1 MLJ 226

PP v. Md Alim bin Samad [1998] 5 CLJ 590; [1998] 1 MLJ 260

PP v. Mohd Fairuz bin Omar [1998] 5 MLJ 729

PP v. Mohd Fuzi bin Wan Teh and Anor [1989] 2 CLJ 652; [1989] 2 CLJ 341 (Rep)

PP v Muhamad Nasir bin Shaharuddin & Anor [1994] 2 MLJ 576

PP v. Muniandy and Ors (Selangor Criminal Trial No 58-10-86, unreported)

PP v. Ong Cheng Heong [1998] 4 CLJ 209

PP v. Sukumaran a/l Sudram [1999] 4 CLJ 242; [1999] 4 MLJ 462

PP v. Tan Boon Tat [1990] 1 LNS 43; [1990] 2 MLJ 466

PP v. Teh Lye Tong [1958] 3 MC 208

PP v. Yap Hai Ling [1990] 1 CLJ 983; [1990] 2 CLJ 909 (Rep)

Poon Heong v. PP [1949] 1 LNS 59; [1949] MLJ 114

R v. Bannerman [1966] 48 CR 110

R v. Bradshaw [1978] 18 SASR 83

R v. Brophy [1981] 2 All ER 705

27
R v. Haughton (No 2) [1982] 38 OR (2d) 496

R v. Hebert [1990] 57 CCC (3d) 1 (SCC)

R v. Settee [1974] 22 CCC (2d) 193 (Sask CA)

R v. Williams [1976] 14 SASR

R v. Wilson [1970] 1 CCC (2d) 14 (BCCA)

Sankey v. The King [1927] 48 CCC 97

Tan Too Kia v. PP [1980] 1 LNS 77; [1980] 2 MLJ 187

Teng Boon How v. Pendakwa Raya [1993] 3 MLJ 553

The Queen v. Chin [1984] 157 CLR 671

Thiffault v The King [1933] 60 CCC 97

Wong Kam-ming v. The Queen [1979] 1 All ER 705

Yee Ya Mang v. PP [1971] 1 LNS 156; [1972] 1 MLJ 120

28