I.

INTRODUCTION

Section 27 of Evidence Act 1950 provides that, “when any fact is deposed to as
discovered in consequences of information received from a person accused of any
offence in the custody of police officer, so much of that information, whether the
information amounts to a confession or not, as relates distinctly to the fact thereby
discovered may be proved”. This provision basically allows any confession that made
under circumstances as per Section 24, 25 and 26 of the Act to be used in court
provided that it is leads to the discovery of the relevant fact. The prosecution often rely
on this section in order to object on the admissibility of the confessional statement 1. The
main concern of this provision is to what extent the information obtained by the accused
might be proved.

This provision further highlighted that, a statement made by a person who is in

the custody of the police, whether it is amounted to confession or not is admissible in
condition that all of the requirements laid under the section are duly complied with. It
means that, there is no need to refer to Section 27 if the confession is admissible, but it
the confession is inadmissible, then this section might be relied upon by the prosecutor
in order to admit the accused’s statement either partly or wholly. Not only that, this
provision also applicable in the situation where there information given by the accused
not amounted to confession, however merely showed he had some knowledge pursuant
to his action. As instance, the accused had a knowledge of where the stolen items was
hidden.

As per case of Pulukuri Kottaya v King Emperor 2, the statement of “I will produce
a knife concealed in the roof of my house with which I stabbed A” regarded as
admissible on the ground that the statement led to the discovery of the fact. Thus, Sir
John Beaumont stated that, “Normally the section is brought into operation when a
person is in the police custody produces from some place of concealment some object
such as dead body, a weapon, or ornaments, said to be connected with the crime of
which the information is accused”. From this case, the court held that, if the fact is
1
https://www.slideshare.net/izzahzahin/evidenceadmission-confession
2
AIR [1947] PC 67
actually discovered as the result of the information obtained, some guarantee is
afforded thereby that the information is true and accordingly can be safely allowed in to
be given in evidence. Therefore, this lead to the discussion on what kind of conditions of
confession would be admissible under Section 27 of the Evidence Act 1950.

II. CONDITIONS FOR ADMISSIBILITY OF VOLUNTARINESS OF CONFESSION

UNDER SECTION 27

A. The information must been received directly from the accused.

Prior to this requirement, the information must been given by the accused
himself. Suffian LP in case of Chong Soon Koy v Public Prosecutor 3 highlighted
that, “the information supplied by the accused was no admissible, since he was
arrested under Section 73(1) of International Security Act and at the time he
gave the statement, he was not a person accused of any person within section
27. Thus, there is no merit in this argument, since these words mean a person
accused at the time or subsequently of any offence”.

On top of that, the prosecution must prove beyond the reasonable doubt
that the accused did give the information. For information given by the accused
to be admissible under Section 27, first, the discovery of the fact must be
subsequent to the giving of the information; secondly, the fact discovered need to
not necessarily relate to the discovery of the object used in the commission of the
offence4. According to the case of Wai Chan Leong v Public Prosecutor 5, the
court held that, it was fine even if the accused was forced into making such
statements, as long as they lead to the discovery of a fact. This case stated that,
Section 27 should be strictly construed and applied. The information must be
such as has caused discovery of a fact. The fact must be the consequence and
the information the cause of its discovery. The information must relate distinctly
3
[1977] 2 MLJ 78
4
[1994] 2 MLJ 476
5
[1989] 3 MLJ 356
 to the fact discovered. Thus, the police officer who the information was supplied
ought to give evidence of the discovery of the fact before giving evidence of the
information6.

Apart from that, even if the information was given involuntarily by the
accused, it is still admissible under Section 27. Raja Azlan Shah J in the case of
Chandrasekaran v Public Prosecutor7 stated that “Section 27 is a concession to
the prosecution. It is the express intention of the legislature that, even though
such statement is otherwise hit by the three preceding section 24,25 and 26 of
the Evidence Ordinance, any portion thereof is nevertheless admissible in
evidence if it leads to the discovery of a relevant fact. The reason is that, since
the discovery itself provided the acid test, the truth of the statement that led to
the discovery is thereby guaranteed. Admissibility of evidence under Section 27
is in no way related to the making of the confession; rather, such evidence is
admitted on the clear ground of relevancy as directly connecting the accused
with the object recovered”.

In the case of Md Desa bin Hashim v Public Prosecutor 8 otherwise

provided that, Section 27 is governed by the Section 24 wherein Gopal Sri Ram
CJ stated that, “in order to qualify for admission under Section 27, it must be
made voluntarily and the discovery made pursuant to the consequence of a
confession extracted by illegitimate means in the sense described under Section
24 is inadmissible”. Differ in Goi Ching Ang v Public Prosecutor 9, the court held
that Section 27 stands independently and is not subject to Section 24. Further,
Section 27 is not subject to the voluntariness rule or any other prescribed mode
of recording statements. However, court still retains discretion to exclude
information that has been involuntarily obtained, the exercise of which depends
on the facts of each case10.
6
https://www.slideshare.net/izzahzahin/evidenceadmission-confession
7
[1971] 1 MLJ 153
8
[1995] 3 MLJ 350
9
[1999] 1 MLJ 507
10
Francis Antonysamy v Public Prosecutor [2005] 3 MLJ 389
 B. The said person, at the time of giving such information must be in the
custody of the police.

The wording “custody” not necessarily refer to the custody of a person

after a formal arrest. When a person at the first place was not in a custody, but
later approach a police investigating the offence and offered to give an
information leading to the discovery of the fact may appropriately deemed to
have surrendered himself to the police. In Soh Ten Seng v Public Prosecutor 11,
Federal Court took an approach and decided that, “where information received
from the accused through the telephone when he was not in the actual custody
of the police was held to be the information for the purpose of Section 27”.

C. A fact must be deposed to as having been discovered in consequences of

such information.

Fact as being defined under Section 3 of Evidence Act 1950 means, any
thing, state of things, or relation of things capable of being perceived by the
senses; or any mental condition of which any person is conscious. The fact
thereby discovered was referring to the place where the object was found and
the accused’s knowledge as to this. As being observed by Lordship of the Privy
Couci in Pulukuri Kotayya v King Emperor12, “it is fallacious to treat ‘fact
discovered’ within s 7 as equivalent to the object produced; the fact discovered
embraces the place from which the object is produced and the knowledge of the
accused as to this and the information given must relate distinctly to this fact”. In
Chong Soon Koy v Public Prosecutor13, it was held that, inter alia, that a
statement relating to the discovery of firearm and ammunition was rightly
admitted in evidence14. In this case, Suffian LP stated that, “What was the fact

11
[1964] MLJ 380
12
(1974) 74 IA 65
13
[1977] 2 MLJ 78
14
Buku evidence
 discovered? The fact discovered embraces the place from which the pistol and
ammunition was produces and the knowledge of the accused as to this”.
Therefore, it means that, the fact discovered is not based on the item like a
murder weapon, but more on the fact whether the accused had the knowledge on
the particular of the place where the object was found.

This lead to the question, firstly on whether there must be a proof of some
fact discovered before section 27 could be invoked. In the case of Hamiron bin
Mat Udin v Public Prosecutor15, section 27 has no application. In this case,
Murray-Aynsley CJ stated that, “it was claimed by the prosecution that it was as
a result of the statements made by the accused that the body was found; and
also that it was because of the accused’s statement that the Police Inspector
was able to identify the body by the rope round the neck. It is to be observed,
however there is no evidence on the record to suggest that the body was found
at the place which was pointed by the 2 nd accused. Indeed there was no
evidence at all as to where the body was found or by whom. Moreover, the body
was identified by both 2 nd and 4th prosecution witness witnesses without
reference to the rope around the neck….So section 27 has no application”.

Secondly, the section 27 has no application when the discovery is without

any of evidence of information within the ambit of the provision. Evidence of
discovery of the stolen property was admissible without having to invoke section
27, the only purpose of which is to render self-incriminatory statements
admissible if such statement can properly be regarded as information relating
distinctly to the fact thereby discovered16. In Gurusamy v Public Prosecutor case,
section 27 clearly had no application in this case. The appellant was never
alleged to have made any statement. Thus, negative evidence on this point must
necessarily be held in his favour, because had he given any information, such
information should have been given in evidence by the police officer who heard
it.
15
[1948] MLJ 50
16
Per Ong J in Gurusamy v Public Prosecutor [1965] 1 MLJ 245
 Lastly, whether the thing recovered must have been hidden. Section 27
would not be invoked if the police had a prior knowledge on the existence of the
thing discovered. Section 27 cannot be used to turn an ordinary recovery of
incriminating exhibits into a discovery of fact 17. Visu Sinnadurai J in Public
Prosecutor v Basri bin Salihin18 whereby considered the question of what
constitutes prior knowledge of the fact by the police and said that, “it would
appear that in the most cases, any prior knowledge by the police that the
accused had in his possession or had hidden drugs in a particular place, though
the exact and specific location had not been identified, would make the
subsequent confession of the accused inadmissible under Section 27 in so far as
to the fact relates to the accused’s knowledge of the drugs or the police where
the drugs were found”.

D. Admissibility of the information upon proof of requirements of Section 27.

As provided under Section 27, only the information which relates distinctly
to the discovery of the fact is admissible. According to Public Prosecutor v Toh
Ah Keat19, Hashim Yeop A Sani J stated that “Section 27 of the Evidence Act
however deals with a very special type of statement which even if self-
incriminatory is nonetheless admissible under that section provided that the
conditions prescribed are strictly complied with”. The provision dealt with the
case of Pulukuri Kotayya’s case where the Privy Council held that the whole of
the statement was admissible except on the 1 st part of the statement, “I stabbed
with a knife”. The word distinctly as per under provision has been laid in Yee Ya
Mang v Public Prosecutor20 where Sharma J provided that, “the word distinctly in
section 27 of the Evidence Ordinance is important. It means that only that part of
the statement which leads directly to the recovery is admissible”.

17
Public Prosecutor v Liew Sam Seong [1982] 1 MLJ 223
18
[1994] 2 MLJ 476
19
[1977] 2 MLJ 87
20
[1972] 1 MLJ 120
 III. VOLUNTARINESS RULE AND INDEPENDENCY OF SECTION 27

In the case of Goi Ching Ang v Public Prosecutor 21 it was propounded that
Section 27 stands independently and it is not subject to Section 24 of Evidence
Act 1950. It means once an information is proved to be within province of Section
27, the trial court would admit it in evidence notwithstanding the said information
might not have been given voluntarily.
22
In addition, in Francis Antonysamy v Public Prosecutor it was held that
Section 27 is independent and not subject to the voluntariness rule or any other
prescribed mode of recording statements. However, a court still retains discretion
to exclude information that that has been involuntarily obtained, the exercise of
which depends on the fact of each case. Augustine Paul JCA stated that “the
object of the voluntariness rule in Section 24 is therefore to preserve the
privilege. The resultant critical issue for determination is whether this privilege is
also extends to Section 27. If this privilege is to be read as part Of Section 27 the
information supplied under the section, must in the fisrt place, be also subject to
the voluntariness rule in Section 24. If it is not so subjected Section 27 will not be
governed by the privilege. It has been long established by a long line of
authorities that Section 27 is independent and is not subject to the voluntariness
rule in Section 24 for example in the case Lee Kok Eng v Public Prosecutor
[1976] 1MLJ 125”

Even though in Md Desa bin Hashim v Public Prosecutor [1995] 3 MLJ

350 it was ruled that in order for information supplied under Section 27 to be
admissible it must be voluntary, the law was re-instated to its rightful position in
Goi Ching Ang v Public Prosecutor [1999] 1 MLJ 507.

In Wang Bakri bin Wan Ahmad v Public Prosecutor [2013] 2 MLJ 241
(Court of Apppeal) a principle is put forwarded that Goi Ching Ang v Public
Prosecotor cannot be understood to mean that a Section 27 statement must be

21
[1999] 1 MLJ 507 (Federal Court)
22
[2005] 3 MLJ 389 (Federal Court)
 excluded in all instances where it was supplied involuntarily; a court must take
into accounts the facts of the case and the degree of the force used. In this
case Low Hop Bing JCA had summarized the principles on the scope of
Section 27 delivered by the Federal Court through Augustine Paul FCJ (as he
was then) in Francis Antonysamy v Public Prosecutor [2005] 3 MLJ 389 as
follows :

a) Goi Ching Ang v Public Prosecutor cannot be understood to mean that

a Section 27 statement must be excluded in all instances where it was
supplied involuntarily. The facts of each case are important. The ratio
that can be gleaned from Goi Ching Ang, is that a court, in considering
the exclusion of a Section 27 statement on the ground of
involuntariness, must take into account the facts of the case and the
egree of the force used;
b) the degree of voluntariness that can be said to be sufficient to exclude
a Section 27 statement on the ground of involuntariness is not a
condition of admissibility of such a statement; and
c) the circumstances of voluntariness must indeed be extraordinary in
order to exclude a statement on a ground which, in the first place, does
not affect its admissibility in law

This case is also with the view that statements leading to facts of the case
need not to be voluntarily made however, court may exclude the evidence due to
23
involuntarily obtained by ascertaining the facts of the case.

Next, Section 27 also silent as to or bears no ligature to the voluntary

nature or otherwise of the information. The words ‘whether the information
amounts to confession or not’ in Section 27 relates merely to the character of the
information as to whether it is a confession or statement falling short of the
confession. In other words, unlike Section 27 when compared to Section 25 026
of Evidence Act 1950, a comparison of Section 27 and Section 24 does not show
that they contain any words or phrases bearing or capable of bearing any

23
Fong, C. M., & R. S. (n.d.). Evidence in Malaysia And Singapore (3rd ed.). Lexis Nexis Malaysia Sdn. Bhd.
 reference to one another. Therefore, it can be inferred that from the wordings in
24
the two sections, they stand independently of each other.

Thus, even though there is no a firm conclusion has been made to the
requirement of voluntariness under Section 27 and independency of Section 27 ,
it can be identified from the case laws that it highly leaning towards to be stand
independently without the application of voluntariness rule.

IV. CONCLUSION

It is undeniable that there are two differing views in the application of

Section 27 which are the statement leading to fact of case must be made
voluntarily made and on the other had it must not has to be voluntarily made.
However, it can be inferred that majority of the case laws are of the view that rule
of voluntariness does not applicable under Section 27 and it is independent
provision which is unaffected by Section 24 and stands by its own nevertheless it
is still the court’s discretion to exclude information that has been involuntarily
obtained. Therefore, as it the discretion of court to exclude the evidence
obtained involuntarily under Section 27, then, there must be no hard and fast
rules can be laid down otherwise, it ceases to be a discretion and becomes a rule
of law. 25

24
Fong, C. M., & R. S. (n.d.). Evidence in Malaysia And Singapore (3rd ed.). Lexis Nexis Malaysia Sdn. Bhd.
25
IBID
V. BIBLIOGRAPHY
https://www.slideshare.net/izzahzahin/evidenceadmission-confession
BUKU EVIDENCE
Fong, C. M., & R. S. (n.d.). Evidence in Malaysia And Singapore (3rd ed.). Lexis Nexis Malaysia
Sdn. Bhd