Facts

Large quantities of ganja were found in a house raided by the police. The police arrested the husband, the wife and a third person who were all in the house at the time of the raid. The third person, a relative, was subsequently released on bail, and only the husband and wife were charged for trafficking in dangerous drugs. The third person became a prosecution witness and gave evidence in court.

Both the accused, husband and wife, were charged as follows:

Bahawa kamu bersama-sama pada 6 Januari 1991 jam lebih kurang 6.30 pagi

di rumah No 612, Batu 5 Jalan Gombak dalam Bandaraya Kuala Lumpur, di

dalam Wilayah Persekutuan telah mengedar dadah berbahaya iaitu ganja

yang beratnya berjumlah 3,455.51gm, oleh itu kamu telah melakukan

kesalahan di bawah s 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh

dihukum di bawah s 39B Akta yang sama.

The facts of the case as adduced by the prosecution are as follows: Insp Zulkifli Hassan, Insp Giam Kar Hoon and Insp Mohd Tahir together with about ten other police personnel were involved in a police operation at 6.30 in the morning of 6 January 1991. They raided a house, Lot 612, Batu 5, Jalan Gombak, Kuala Lumpur. The police were stationed all around the house. Insp Giam was on the roof, whilst Insp Zulkifli was at the front of the house.

Insp Zulkifli knocked on the front door of the house and having identified himself as a police officer, asked that the door be opened. The first accused opened the door and the rest of the police party entered the house.

In the kitchen/dining area of the house, the police found several brown paper rolls suspected to contain ganja (cannabis). The first accused was then handcuffed. Insp Giam then cautioned the first accused and he then questioned the first accused. The first accused, according to Insp Giam, made certain statements to him in response to his questions. When the police went to the second room of the house, another person, Ismail bin Katan, was found sleeping. He too was arrested and questioned. The wife of the first accused, the second accused, who was found sleeping in the first room, was also arrested.

The statements made by the first accused was challenged in court by the defence on the ground that there was no due compliance with s 37A of the Dangerous Drugs Act 1952 (the DDA). A trial-within-a-trial was conducted and this court then held the cautioned statement to be inadmissible (see below).

B Trial-within-a-trial

Whether the safeguards embodied in s 37A of the DDA had been complied with cannot be determined by a mere analysis of each facet of the process of recording the statement. Section 37A, like s 113 of the Criminal Procedure Code (FMS Cap 6) (the CPC) serves two purposes: (i) to assist the prosecution in establishing its case against the accused; and (ii) to protect the accused against the admission of incriminating statements made by him, falsely induced by hope or fear. The whole process has to be considered by the court in its totality, bearing in mind that so long as the arrested person was aware and fully understood the implications and the consequences of making the statement, it should be admissible.

Whether the arrested person did or did not understand the implications and consequences of making the statements, depends on the facts of each case. It is therefore a question of fact which each court has to decide. In this regard, precedents whilst being useful in providing guidance, cannot be strictly adhered to. The ultimate test is whether the statement sought to be admitted appears to the court to be voluntarily made. Generally, voluntariness is an accepted term used to indicate that the statement made by the accused was at the free will of the arrested person.

Let us consider the facts of the present case: the police conducted an early morning raid. The first accused was handcuffed almost immediately and he was questioned soon after that. At