Undang-undang Keterangan I

1. EVIDENCE I 2020-2021
Tutorial Answer Presentation
Prepared for ​Assoc. Prof. Dr. Mohamad Rizal Abd Rahman
Name :​ Nur Aliah bt Amran
No. Matric :​ A166840
Firm :​ 12
Subject :​ UK 4073 Undang-undang Keterangan I 2020-2021
Tutorial :​ Monday, 10.00 - 11.00 a.m.
Question :​ 12
Date :​ 12 November 2020
QUESTION 12
Safee dan Wong didakwa di bawah seksyen 39B Akta Dadah Berbahaya yang membawa
hukuman mati jika sabit kesalahan. Selepas ditahan dan disoal siasat secara berasingan
selama tujuh jam tanpa makan dan minum, Safee berkata:-
“Wong paksa saya lakukannya. Wong acukan pistol kepada saya dan dia kata dia akan tembak
saya kalau saya tak edarkan bungkusan dadah tersebut kepada penerima-penerima dalam
senarai Wong.”
Semasa persidangan praperbicaraan dan pengurusan kes, peguam Safee memaklumkan
bahawa Safee telah membuat kenyataan di atas secara sukarela. Akan tetapi, apabila
pertuduhan dibacakan semasa perbicaraan bermula, berlaku kejutan apabila Safee dengan
tidak semena-mena menjerit sambil menyatakan yang dia sebenarnya tidak terlibat langsung
dengan pengedaran dadah itu. Dia cuma membuat pengakuan itu untuk menamatkan soal
siasat yang menyeksakan itu. Oleh itu, pengakuan salahnya itu tidak sukarela.
Bincangkan perkara-perkara berikut:
i. Bolehkah pihak pendakwa menggunakan pengakuan salah Safee terhadap Wong?
ii. Benarkah pengakuan salah itu telah dibuat secara tidak sukarela?

2. ANSWER
The facts of current case are summarized as follows:
1. Safee and Wong are alleged to commit crime under ​Section 39B of Dangerous Drugs
Act​ that brings upon capital punishment if convicted.
2. Safee was detained for 7 hours without food or drinks. Safee made a statement that he
was coerced by Wong that he would be shot if he did not distribute the drugs to the
people in Wong’s list.
3. During case management, Safee’s solicitor informed that the statement made by Safee
is a voluntary one.
4. However, when the trial began, Safee denied his own statement and said he was not
involved in the distribution of drugs and that he did it because he wanted to end the
interrogation. Therefore, his confession was involuntory.
The issues that will be discussed are:
1. Whether the prosecution can use Safee’s confession against Wong?
2. Whether the confession made by Safee is involuntary?
The first issue will be discussed.
Whether the prosecution can use Safee’s confession against Wong?
Confession made by the defendant can affect co-defendant if proved, as in accordance
Section 30 EA 1950​. However, it can only be treated as an element of consideration of other
evidence to support a conviction. This is affirmed in the case of ​PP v Nordin Johan [1983] 2
MLJ 221​, where the accused cannot be convicted merely by confession of a co-accused. There
must be some other evidence against him. It is also affirmed in ​Bhuboni Sahu v The King
[1949], ​where ​the confession of a co-accused can be used only in support of other evidence
and cannot be made the foundation of the conviction.
However, for Safee’s confession to fall within the ambit of ​Section 30 EA 1950​, the following
conditions must be fulfilled:
a) There must be a joint trial for the same offence;
b) The statement must be a confession;
c) The confession of guilt must affect the maker to substantially the same extent as his
co-accused; and
d) The confession must be duly proved.

3. Applying the rules to our current case, in order for Safee’s confession to be used against Wong,
his confession must fall within the ambit of ​Section 30 EA 1950​. For that to happen, the
elements must be fulfilled. The first element, whether there is a joint trial for the same offence is
affirmed, as the two are alleged to commit crime under ​Section 39B Dangerous Drugs Act
1952​. The second element is also fulfilled because Safee’s statement is treated as confession.
In addition, the third element is also fulfilled as the confession will substantially affect both
parties. The confession would be a defense under coercion for Safee. The fourth element
however, is yet to be determined, as the confession must be duly proved. The question is silent
whether his confession was proved. For the fulfillment of this element, the interpretation of ​Bose
J in Kashmira Singh regarding Section 30 EA 1950​, must be followed. Evidence must be
gathered against Wong excluding the confession altogether. Secondly, ‘if it is believed’ a
conviction could safely be based on it independently of the confession, then it is not necessary
to call the confession. In this case, the conviction could possibly be heavier due to coercion by
Wong to Safee. Thirdly, the judge may call in aid the confession and use it to lend assurance to
other evidence. Last but not least, Safee’s confession must be in support of evidence of Wong’s
coercion and not be made the foundation of conviction.
In light of the cases and rules applied above, Safee’s confession that Wong coerced him into
distributing the drugs can be used against Wong if the elements are fulfilled and that it is a
support of evidence of Wong’s coercion. It is also a court’s discretion and wisdom to decide the
evidentiary value of confession.
Whether the confession made by Safee is involuntary?
A confession made by an accused person is irrelevant if the making of confession has been
caused by inducement threat or promise, where by making it he gains advantage or avoids evil
of temporal nature in reference to proceeding against him (​Section 24 EA 1950​). The
inducement, threat or promise need not be expressed but may be implied from the
circumstances of the case. It is not material that the person in authority never intended to
induce, threaten or promise.
In our current case, Safee was detained for 7 hours without food or drinks. Therefore, Safee
confessed that he was coerced by Wong that he would be shot if he did not distribute the drugs
to the people in Wong’s list, showing his involvement with the drugs.
The issue here is whether the act of detaining Safee for 7 hours without food or drinks amounts
to inducement?

4. According to ​PP v Law Say Seck & Ors [1971] 1 MLJ 199​, in order for that act or omission
may amount to an inducement, threat or promise, three things must be satisfied:
1. Without it, the person would not have made the statement;
2. The advantage to be gained or evil be avoided would be of temporal nature;
3. It is sufficient in the opinion of the court to make the accused suppose that he would get
the advantage. In doing so the mind of the person making the statement has to be
judged rather than that of the person in authority.
In addition, ​Section 24 EA 1950 despite not making a specific reference to this act by person in
authority has been held that a confession induced in such circumstances must be ruled
involuntary​. In the case of ​Dato’ Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232​, the Federal
Court concluded that deprivation of food, drink and sleep made his confession unsafe. The
prosecution had failed to discharge its obligation of proving beyond reasonable doubt that the
confession was voluntary.
Applying the rules to the case, the first element is fulfilled. In our current case, unless Safee
confesses, he will be worse off because the detainment without food or drinks would have
persisted. It affects Safee’s willingness to make the statement. This is because investigators
would not accept statements like non-involvement with the crime. The second element is also
fulfilled, as the evil avoided was the detainment in hunger and thirst. The third element however,
is up to the court to decide that Safee would get the advantage. The court will judge Safee’s
mind rather than the investigator. In light of the case ​Dato’ Mokhtar Hashim & Anor v PP
[1983] 2 MLJ 232, ​deprivation of food, drinks and sleep made his confession unsafe. Therefore,
Safee’s confession of his involvement with drugs is involuntary.

5. LAW OF EVIDENCE I 2020/2021
FACTS
A166840 (23 NOVEMBER 2020)
Prepared for Prof. Dr. Mohamad Rizal
Safee and Wong alleged to commit
crime under Section 39B
Dangerous Drugs Act. Safee was
detained for 7 hours without food
or drinks and confessed he was
coerced to distribute drugs by
Wong. When trial began, Safee said
he was not involved and said he
did because he wanted to end the
interrogation.
ISSUES
Whether the prosecution can use
Safee’s confession against Wong
Whether the confession made by
Safee is involuntary?
ANSWERING ISSUE (1)
ANSWERING ISSUE (2)
There must be a joint trial for the
same offence;
The statement must be a confession;
The confession of guilt must affect
the maker to substantially the same
extent as his co-accused; and
The confession must be duly proved.
Section 30 EA 1950 - Confession made by
defendant can affect co-defendant if
proved.
Conditions:
Safee’s confession that Wong coerced
him into distributing the drugs can be
used against Wong if the elements are
fulfilled and that it is a support of
evidence of Wong’s coercion. It is also a
court’s discretion and wisdom to decide
the evidentiary value of confession.
Without it, the person would not have
made the statement;
The advantage to be gained or evil
be avoided would be of temporal
nature;
It is sufficient in the opinion of the
court to make the accused suppose
that he would get the advantage. In
doing so the mind of the person
making the statement has to be
judged rather than that of the person
in authority.
A confession made by an accused person
is irrelevant if the making of confession
has been caused by inducement threat or
promise, where by making it he gains
advantage or avoids evil of temporal
nature in reference to proceeding against
him (Section 24 EA 1950).
PP v Law Say Seck & Ors - conditions that
must be satisfied in order for act to
amount to inducement:
Detainment for 7 hours without food or
drinks amounts to inducement.
Therefore, Safee's confession is
involuntary.