Home > Case Law Studies, Trial Within Trial > Confession Must Be Voluntarily (Inadmissable if Under Duress): Mohammad Tarmimi bin Tarmizi v Public Prosecutor (Malaysia)

Confession Must Be Voluntarily (Inadmissable if Under Duress): Mohammad Tarmimi bin Tarmizi v Public Prosecutor (Malaysia)

[2007] MLJU 0495

Malayan Unreported Judgments
Mohammad Tarmimi bin Tarmizi v Public Prosecutor
HIGH COURT (KUCHING)
CRIMINAL APPEAL NO 42-02-2007-11
DECIDED-DATE-1: 27 JULY 2007
Haji Hamid Sultan Bin Abu Backer, JC
CATCHWORDS:
CRIMINAL PROCEDURE – Appeal – Conviction and sentence, against – Evidence – Confession statement – Admissibility

JUDGMENT

1.    This is my judgment in respect of the appellant’s appeal against
conviction and sentence made by the learned sessions judge.

2.    The appellant was charged under section 436 of the Penal Code. The
charge reads as follows:

“ That you, on the 7th day of August, 1995 at about 4.00 a.m, at
Matsumura Gumi Sdn Bhd, Jalan Upland, Kuching in the State of
Sarawak, committed mischief by fire intending to cause the
destruction of a building to wit, an office building and that you
thereby committed an offence punishable under Section 436 of the
Penal Code.”

3.    At the end of the prosecution’s case, the learned sessions judge held
there was a prima facie case and amended the charge to read as follows:

“That you, on or about the 7th day of August, 1995 at about 4.00
a.m at the office of Matsumura Gumi Sdn Bhd, 3rd Floor, Lot 4914,
Jalan Upland Kuching, in the State of Sarawak, committed mischief
by fire knowing it to be likely that you would thereby cause the
destruction of a building ordinarily used for the custody of
property, to wit, the said office building of Matsumura Gumi Sdn
Bhd at 3rd Floor, Lot 4914, Jalan Upland, Kuching and you thereby
committed an offence punishable under Section 436 of the Penal
Code.”

4.    The complaint against the appellant was that he committed mischief by
burning down an office building. Evidence was given by 8 witnesses for
the prosecution. The prosecution case was based on circumstantial
evidence. There was no eye witness to the incident. None of the witness
was able to show any nexus with the crime and the appellant except for
the employer (PW1) of the accused who said that the accused was
employed by his company. PW1 ’s company was the tenant of the premise
which was the subject matter of the charge. The only incriminating
evidence which the learned sessions judge heavily relied on was the
confession statement. If not for the confession statement, the
prosecution will not have been able to establish a prima facie case.

5.    For the purpose of this appeal, it is necessary for me to consider
whether the confession statement ought to have been admitted taking
into consideration the facts that:

(i)   the appellant was only 18 years old when it was recorded.

(ii)  the appellant had informed the court that it was not voluntarily
made. The police officers had assaulted him.

(iii)  no evidence was adduced to show whether the appellant had the
benefit of legal advice at the time the confession was recorded.

(iv)  no evidence was adduced to show whether the parent and/or family
members of the appellant were informed of the arrest.

(v)   no evidence adduced to show why he was detained for a period of 4
days before confession was recorded.

(vi)  no reason was adduced why the confession was not recorded before
the magistrate when the police had came to court to seek remand.

(6)   On the facts of this case and taking into consideration the age of the
appellant at the time the confession statement was recorded, the
learned sessions judge ought to have considered the above before ruling
on the admissibility. Failing to consider the above before admitting
the confession may be fatal and warrants this court, on the facts of
this case, to rule that that the confession statement ought not to be
made admissible in the wider interest of justice. My reasons are as
follows:

(i)   A cardinal rule of the English law of criminal evidence is that a
confession is inadmissible against the accused unless it is
voluntary, in the sense that it has not been obtained from him by
inducement, threat or promise made by a person in authority or by
oppression (see Ibrahim v R (1914) AC 599 ). The rule has
been codified in Malaysia by section 24 of the Evidence Act 1950
(EA 1950). The rule is further protected by sections 25 and 26 of
the EA 1950, which provide that no confession made to a police
officer who is below the rank of an inspector by a person accused
of any offence shall be proved against that person; and that no
confession made by any person whilst he is in the custody of a
police officer shall be proved against that person unless it is
made in the immediate presence of a sessions court judge or
magistrate.

(ii)  These statutory provisions clearly go beyond the confession rule
in English law. But there is little doubt that, by enacting the
wider scope of the rule in Malaysian law, our legislature has
afforded greater protection to the accused. The confession rule
is not without reason. The world-famous philosopher Bertrand
Russel, in his book Power, observed (see Sarkar on Evidence (14th
Ed) at p 367):

“The gist of the matter is that a policeman is promoted for
action leading to the conviction of a criminal, that the
courts accept confession as evidence of guilt, and that, in
consequence, it is to the interest of individual officers
to torture arrested persons until they confess. This evil
exists in all countries in a greater or lesser degree. In
India, it is rampant … . For the taming of the power of
the police, one essential is that a confession shall never,
in any circumstances, be accepted as evidence.”

(iii)  In an ideal world, justice would be better served if the state
were to prove its case against the accused by relying on its
powers of independent detection instead of relying on the accused
condemning himself secretly under pressure in police custody, for
there is a risk of agitated and frightened men admitting guilt
even though innocent. Because confession evidence is so decisive
of guilt, the law has imposed stringent requirements for
admitting such evidence. The law’s stringency against the use of
involuntary confessions does not turn on their unreliability
alone. It also turns on the political ethic that the police must
obey the law while enforcing the law.

(iv)  There is no doubt that the exclusion of involuntary confessions
tends to discourage undesirable police excesses. The courts are
well aware of the existence of lawlessness in law enforcement.
For example, AN Mulla J of the High Court of Allahabad in India
observed (in State of UP v Mohamed Naim AIR 1964 SC 703 ):

“… there is not a single group in the whole of the
country whose record for crime comes anywhere near the
record of that organized unit which is known as the Indian
Police Force.”

(v)   Our courts have been less strident and more subtle in their
comments on the police. In PP v Law Say Seck & Ors
[1971] 1 MLJ 199 , Sharma J said (at p 201):

“The police no doubt are an aspect of the state’s ability
to maintain law and order and in that sense a symbol of
service. Yet the police also represent the force and the
might of the state.”

(vi)  Abdul Hamid Omar LP in Pang Chee Meng v PP [1992] 1 MLJ
137 observed (at p 141):

“We are not suggesting that the practice by the local
police is the same as in India; nevertheless, we are firmly
of the view that in invoking s 27 the courts should be very
vigilant to ensure the credibility of evidence by the
police personnel in respect of the section, which is so
vulnerable to abuse.”

(vi)  [See Article Md Desa bin Hashim v PP [1995] 3 MLJ 350 : A
Classic Display of Judicial Vigilance [1997] 1 MLJ cxxxiii].

(vii)  Quite recently the Attorney-General had issued a press statement
that the Chambers will not rely on confession statements unless
the Attorney-General consents to it or words to the effect.

(viii)  The new Section 113 has diluted the concept of cautioned
statement and the new amendment which has not come into force
reads as follows:

“113. (1)  “113. (1) Except as provided in this
section, no statement made by any person to a police
officer in the course of a police investigation made
under this Chapter shall be used in evidence.

(2)   When any witness is called for the prosecution or for
the defence, other than the accused the court shall,
on the request of the accused or the prosecutor,
refer to any statement made by that witness to a
police officer in the course of a police
investigation under this Chapter and may then, if the
court thinks fit in the interest of justice, direct
the accused to be furnished with a copy of it and the
statement may be used to impeach the credit of the
witness in the manner provided by the Evidence Act
1950 [Act 56].

(3)   Where the accused had made a statement during the
course of a police investigating such statement may
be admitted in evidence in support of his defence
during the course of the trial.

(4)   Nothing in this section shall be deemed to apply to
any statement made in the course of an identification
parade or falling within section 27 or paragraph 32(1)
(a) of the Evidence Act 1950.

(5)   When any person is charged with any offence in
relation to –

(a)   the making; or

(b)   the contents,

(b)   of any statement made by him to a police officer in
the course of a police investigation made under this
Chapter, that statement may be used as evidence in
the prosecution’s case.”

(ix)  It will be clear by the reading of section 113 of the CPC as it
stands that there are many restrictions imposed before a
cautioned statement becomes admissible. Further, it must be
voluntarily given and must not be as a result of any inducement,
threat or promise from a person of authority similar to section
24 of the EA 1950. Unlike confession statement, the admissibility
of cautioned statement becomes more onerous for the prosecution.
The principles stated in respect of voluntariness to confession
will be applicable to cautioned statement. The burden of proof
lies with the prosecution to show beyond reasonable doubt that
the cautioned statement was voluntary without inducement, threat
or promise from a person in authority.

(7)   According to section 24 of EA 1950, a confession made by an accused
person is irrelevant if it appears to have been caused by: (i)
inducements; (ii) threat; or (iii) promise. The inducement, threat or
promise must: (a) relate to the charge against the accused; and (b)
proceed from a person in authority and (c) must be sufficient in the
opinion of the court to cause a reasonable belief in the mind of the
accused that by making it he would gain an advantage or avoid an evil
of temporal nature. It is asserted that the legislature has deemed it
fit to use the word ‘appears’, emphasising the need for voluntariness
and giving full authority to the court to decide in accordance with its
own perception, whether the confession statement was voluntary within
the spirit of section 24. It is sufficient that if a slight doubt is
created in the mind of the judge to rule, the confession is
inadmissible. The EA 1950 itself does not define ‘appears’ ‘inducement’,
‘threat’ or ‘promise.’ In Mohamed Yusof v PP [1983] 2 MLJ 167 ,
Syed Agil Barakbah J (as His Lordship then was) observed:

“The word “appears” indicates a lesser degree of probability than
“proved” as defined in section 3. A well-grounded suspicion based
on the facts and surrounding circumstances may exclude a
confession. Since proof of inducement or threat is difficult and
in many cases impossible of attainment at that stage, the
discretion of the court is unfettered by the concrete standard of
proof necessary in other cases. The court is therefore free to
scrutinize the evidence and surrounding circumstances to
determine the presence or absence of any threat or inducement,
its sufficiency and how it worked in the mind of the accused.”

(7)   What may amount to inducement, threat or promise was set out in PP v
Law Say Seck & Ors.
[1971] 1 MLJ 199 Sharma J observed:

“The wording of this section is almost the same as that of
section 24 of the Evidence Ordinance. Thus where a confession is
obtained from an accused person by the use of any inducement,
threat or promise, such confession becomes inadmissible in
evidence and any person causing hurt or wrongfully confining any
person for the purpose of extorting any confession or information
which may lead to the detection of an offence or misconduct may
become guilty of an offence under sections 330 or 331 of the
Penal Code. The inducement, threat or promise referred to in
section 125 is of the same nature and description as is referred
to in section 24 of the Evidence Ordinance. Whether any threat or
inducement was offered in any particular case is a question of
fact and has to be decided with reference to the circumstances of
each case. If it appears to the court that the statement was
caused by any inducement, threat or promise, it must be clear
that such a statement is relevant under section 24 of the
Evidence Ordinance. In order that an act or omission may amount
to an inducement, threat or promise three things must be
satisfied:

(1)   One should be able to say that without it the person would
not have made a statement. The inducement, threat or
promise need not be express but may be implied from the
circumstances of the case. If, for example, a person in
authority says that the truth has come out and that
everyone knows about it and tells the accused that he
better say what he knows, this itself may amount to a
veiled inducement and threat.

(2)   It should be such as would make the person suppose that the
advantage to be gained or evil to be avoided would be of a
temporal nature.

(3)   It should be sufficient in the opinion of the court to make
the accused suppose that he would get the advantage. It is
left to the court entirely to form its own opinion as to
whether an inducement, threat or promise held out in any
particular case was sufficient to lead the person to
suppose that he would gain an advantage of a temporal
nature. In doing so the mind of the person making the
statement has to be judged rather than that of the person
in authority. In scrutinising a case of this kind the court
has to perform a threefold function: It has to determine
the sufficiency of inducement, threat or promise; it has to
clothe itself with the mentality of the accused to see
whether the grounds would appear to the accused reasonable
for a supposition mentioned in section 24 of the Evidence
Ordinance; lastly it has to judge as a court if the
confession appears to have been caused in consequence of
any inducement, threat or promise.”

(3)   Even at common law, for a confession to be admissible, it must be
voluntary i.e., it must not have been obtained by threats, promises, or
oppression etc. In DPP v Ping Lin (1976) AC 674 the House of Lords
held that the test for admissibility of a confession was that laid down
in Ibrahim v R (1914) AC 599 . What may amount to ‘inducement’ was
deliberated by the House of Lords. Lord Morris of Borth-Y-Gest observed:

“Was it as a result of something said or done by a person in
authority that an accused was caused or led to make a statement:
did he make it because he was caused to fear that he would be
prejudiced if he did not or because he was caused to hope that he
would have advantage if he did. The prosecution must show that
the statement did not owe its origin to such a cause.”

(3)   In Abdullah bin Awang Bongkok v PP [1956] 22 MLJ 90 , it was
held that a confession is admissible if it is made after the inducement
is removed. In PP v Naikan [1961] 1 MLJ 147 it was stated the
influence of the manager in that case on the accused was not removed.
Ismail Khan J (as His Lordship then was) observed:

“There is evidence that the accused on his first arrest was
detained for a period of two weeks at the Mantin police station,
during which period he made no attempt to volunteer any
confession. It was only on 4th March, 1960, after he had seen P.W.
1 and had asked for help, and as a result of the promise given,
that he made a statement to P.W.1 and later to P.W.3. In my
opinion, the two hours interval between the two confessions is
too short to have removed the influence he was under at the time
he made his confession to P.W.1 and, in the words of Patteson J.,
in R v Sherrington (1838) 2 Lewin CC 123 , cited in Roscoe
‘s Criminal Evidence (16th Edn.) pp. 47, 48 “to allow
of the supposition that it was the result of reflection and
voluntary determination.”

(3)   In Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232 , the
Federal Court to a large extent adopted the common law position in
respect of admissions and confessions, and stated even oppression would
vitiate confession. Abdoolcader F J observed:

“No statement by an accused is admissible in evidence against him
unless it is shown by the prosecution to have been a voluntary
statement [Ibrahim v R [1914] AC 599, 609 per Lord Sumner
)] and this test was accepted by the House of Lords as the
correct approach in Director of Public Prosecutions v Ping
Ling
[1975] 3 All ER 175, [1976] AC 574 in which the House
said that is not necessary before a statement is held to be
inadmissible because it is not shown to have been voluntary, that
it should be thought or held that there was impropriety in the
conduct of the [ * 273] person to whom the statement was
made, and that what has to be considered is whether a statement
is shown to have been voluntary rather than one brought about in
one of the ways referred to. It appears from the decision in Ping
Lin (ante) that the classic test of the admissibility of an
accused’s confession that the prosecution must establish
beyond reasonable doubt that it was voluntary, in the sense that
it was not obtained from him either by fear or prejudice or hope
of advantage created by a person in authority, or by oppression,
should be applied in a manner which is part objective, part
subjective.”

(3)   The Privy Council in Wong Kam Ming v The Queen (1980) AC 247 , PC,
Lord Hailsham of St Marylebone observed:

“any civilised system of criminal jurisprudence must accord to
the judiciary some means of excluding confessions or admissions
obtained by improper methods. This is not only because of the
potential unreliability of such statements, but also, perhaps
mainly, because in a civilised society it is vital that persons
in custody or charged with offences should not be subjected to
ill treatment or improper pressure in order to extract
confessions. It is therefore of very great importance that the
courts should continue to insist that before extra ,judicial
statements can be admitted in evidence the prosecution must be
made to prove beyond reasonable doubt that the statement was not
obtained in a manner which should be reprobated and was therefore
in the truest sense voluntary.

In R v Wilson [1981] 1 NZLR 316 the New Zealand Court of
Appeal held that confessions obtained by overbearing the will of
a person in custody by tactics, amounting to compulsion should
not be received in evidence and that whether a case is of that
kind is a question of fact and degree. The defendant in that case
had been subjected to prolonged interrogation in the confinement
of a small room which was unfair and oppressive and it was held
that there was accordingly oppression and the means employed must
be regarded as themselves involving a miscarriage of justice.

It is open to an appellate Court to interfere with the finding on
a question of fact as to the voluntariness of a confession if the
impugned finding has been reached without applying the true and
relevant legal tests and consideration of relevant matters
(Sarwan Singh v State of Punjab (AIR, 1957 SC 637, 643 );
PP v Tham Soo Chve [1954] MIJ 96, 99 ).

As we have said the learned Judge wholly discounted the entries
in the station diaries on the basis of two wrong entries which
have however been explained by Mr Manjeet Singh as not in fact
being erroneous. The entries in station diaries which were in
fact confirmed by the evidence of Inspector Aziz show prolonged
periods of interrogation by Inspector Badaruddin and extremely
odd hours of interrogation ranging into the early hours of the
morning, in breach of r 20 of the Lockup Rules. Inspector
Badaruddin said in cross examination as to the later that he did
that because he felt like interviewing the 2nd appellant at that
time and that it was the right time to do so but that whenever
the 2nd appellant said he did not want to be questioned this
request was acceded to and the appellant would be allowed to
sleep if he so requested. We think this explanation must be
looked at askance and with considerable circumspection as there
would hardly be any point in taking a man out for questioning and
then abandoning the exercise by acceding to his request. If that
was indeed the case, it would perhaps have been more feasible and
just as plausible and would have saved a lot of time and trouble,
not to mention disappointment to Inspector Badaruddin and
obtrusion on the poor man’s slumber, to have sent him an
invitation to attend for interrogation with a ‘rsvp’
through bearer. We must stress that what is involved in all this
was the systematic interrogation of a detainee, not overtures for
friendly poker sessions. On Inspector Badaruddin’s evidence, it
would seem the 2nd appellant apparently spent tile better part of
his sojourn in the Gombak Police Station in its conference room
and all that he did almost all the time was to eat, sleep and
pray as and when he pleased and all this at government expense
too!

As to the long hours and odd hours of interrogation stated in the
station diaries this would appear to be suggestive of oppression
within the definition thereof by Sachs J. in R v Priestley (1965)
51 Cr App R I which was adopted in R v Prager [1972] 1 WLR
260 . We are told by the Public Prosecutor that this might be the
method adopted by the Special Branch, but if we are to approbate
and endorse the whims and fancies of interrogators in the systems
they choose to utilise. We might as well countenance an
interrogator’s preference to stand a man on his head or hang
him up by his toenails whilst questioning him so as the better to
enhance the flow of blood to his cerebral cavity and stimulate
his noetic faculties and recollection of past and recent events.
We need hardly remind those involved in the interrogation of
witnesses, and accused persons that any methods adopted in the
process outside accepted norms and standards scrutiny”

(3)   In R v Priestly (supra) oppression was defined to mean something, which
tends to sap and has sapped that free will which must exist before a
confession is voluntary. What may amount to oppressive circumstances
was set out in PP v Chan Choon Keong [1989] 2 MLJ 427 . Faiza
Thamby Cik JC (as he then was) observed:

“Now back to the cautioned statement. The other point is whether
the cautioned statement was obtained under oppressive
circumstances. The relevant facts to be looked at and considered
to show what are called ‘oppressive circumstances’ negativing
voluntariness are:

(1)   characteristics of the accused;

(2)   period of time during which he was questioned;

(3)   length of time during which he was in custody;

(4)   whether or not he was given opportunities of rest and
refreshment.”

(8)   For reasons stated above, I take the view that the confession statement
ought not to have been made admissible.

(9)   Even if I am wrong, I am inclined to agree with the submission of the
appellant that there was no independent evidence to corroborate the
offence. In such cases, the confession statement must be excluded as
its prejudicial effect outweighs its probative value. Support for the
proposition can be found in the Federal Court case of Goi Ching Ang v
PP
[1999] 1 MLJ 507 where it was stated:

“In West Malaysia, the English common law as administered in
England on 7 April 1956 applies except where other statutory
provision has been made. See s 3(1)(a) of the Civil Law Act 1956
which reads:

(1)   Save so far as other provision has been made or may
hereafter be made by any written law in force in Malaysia,
the Court shall —

(a)   in West Malaysia or any part thereof, apply the common law
of England and rules of equity as administered in England
on the 7th day of April 1956 …’

The operative part at the commencement of s 3(1), i.e.:
‘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 s 27 information. That being so, the court
is thrown back on its common law powers.

In Noor Mohamed v The King [1949] AC 182 , Lord du Parcq
said (at p 192):

‘ … 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 trifling 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 accused 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

It is clear from His Lordship’s judgment (as emphasized)
that there is a vested discretion in a trial judge to exclude
evidence 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 had been followed
in numerous other cases in England and is entrenched in the
principle that the English court upholds, which is, it is ‘a
judge’s undoubted duty to ensure that the accused has a fair
trial …’ (per Lord Salmon in R v Sang [1980] AC 402
at p 445.)

Noor Mohamed v The King was consistently adopted in Malaysia, see
e.g. Kan Sik Fong v PP [1961] MLJ 163 ; PP vs Haji
Kassim
[1971] 2 MLJ 115 (FC); Rauf bin Haji Ahmad v PP
[1950] MLJ 190 ; Tan Geok Kwang v PP [1949] MLJ 203 .

In Kurumason of Kaniu v R [1955] 1 All ER 236 (PC), Lord
Goddard CJ, relying on Noor Mohamed v R [1949] 1 All ER
365 at p 370 and Harris v Director of Public Prosecutions
[1952] 1 All ER 1044 at p 1048 said (at p 239):

‘No doubt in a criminal case, the judge always has a
discretion to disallow evidence if the strict rules of
admissibility would operate unfairly against an accused.’ ”

(a)   Further, the legal jurisprudence in respect of confession statement at
this period of time and age has advanced to say that confession
statement by itself cannot be made the foundation of a conviction nor
could it be used to fill in gaps in the prosecution evidence. It must
be asserted that confession statement can only be used to lend
assurance and to support other evidence when the accused objects to its
voluntariness but is made admissible according to law. For, in such
circumstance, the burden of proof to prove the case beyond reasonable
doubt in my view will not be satisfied. [See my judgment delivered on
18-06-2007 in CRA 41-20-2006-II PP v Mohd. Aszzid Abdullah].

(10)  For reasons stated above, I allow the appeal and set aside the
conviction and sentence of the learned sessions judge dated 23-05-1996.
I hereby order so.

Edward Usa (Idris & Co) for the Appellant
Mohd Mukhzany Fariz bin Mojhd Mokhtar (Timbalan Pendakwa Raya, Jabatan Peguam Negara Malaysia) for the Respondent

LOAD-DATE: 01/23/2008

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