(oral)

Gopal Sri Ram JCA (delivering the judgment of the court):

On 13 January 1996 at about 3.45 in the morning, a police party raided premises No. 121, Jalan Rumbia 39, Taman Daya, Johor Bahru. It was a semi-detached house. They were led into the house by one Lee Poh Soon who was in the hall when the police party arrived. The police, having entered the house, proceeded to the room occupied by the appellant. The door was locked. They forced entry into the room. There is some dispute about what the appellant was doing when the police entered. But nothing turns on it. There was a table in the room. A search on one of the drawers, which was locked, revealed 4 large plastic packets, 4 medium sized and 9 small plastic packets containing a yellowish substance which was suspected to contain drugs. A search of the second drawer led to the recovery of 50 large plastic packets and 20 small plastic packets, all of which were empty. There is some dispute whether the appellant assisted in the opening of these drawers. Again, nothing turns on this.

The packets containing the yellowish substance were sent for chemical analysis which revealed that they contained 154.3 grams of heroin.

At the material time, that is to say when the police raided the room, there were three other persons in occupation of the house in question. One was Lee Poh Soon whom we mentioned a moment ago. The other two were PW9 and PW10, who were the appellant's workers at his stall. All the four persons were taken into police custody. Later they were released on 26 January 1996, except the appellant.

On 18 January 1996 at about 10am a cautioned statement was recorded from the appellant in which he admitted ownership of the drugs recovered from his room. The appellant was later charged for trafficking and convicted of that offence under s. 39B(1)(a) of the Dangerous Drugs Act 1952. ("the Act").

At the trial, the prosecution sought to tender the appellant's cautioned statement. Objection was taken. A trial within a trial then took place at which the recording officer, PW1, the interpreter of the statement, PW2 and the arresting officer, PW3 gave evidence. They denied any impropriety in the recording of the statement. PW1 and PW2 maintained that the statement was voluntarily given. It was put to each of them under cross-examination that the appellant had been induced to make the statement. It was put that the inducement was to the effect that if the appellant confessed to having possession of the drugs, PW9, PW10 and Lee Poh Soon would be released from custody. If he did not so confess then they would be all tried together for trafficking. The appellant also alleged on oath that he was given an assurance that in return for his confession he would not be charged in court but would merely be detained without trial.

The learned judge, after hearing the evidence in the trial within the trial, admitted the statement. When he came to give his reasons for that decision he said that the appellant had failed to raise a reasonable doubt as to the voluntariness of the cautioned statement.

Before us a number of points were taken for the appellant, including the argument that there had been a breach of the rule in Muhammed bin Hassan v. PP[1998] 2 CLJ 170, what has come to be known as the rule against double presumption. But it was readily conceded by Encik Hisyam Teh Poh Teik of counsel for the appellant that the validity of those arguments turned upon the admissibility of the cautioned statement. This concession was properly made by counsel. While an accused may not be convicted on the confession of a co-accused (see Herchun Singh & Ors v. PP[1969] 2 MLJ 209; Yap Chai Chai & Anor v. PP[1973] MLJ 219), an accused may be convicted on his own confession.

That brings us to the question whether the cautioned statement was rightfully admitted. Now this cautioned statement was recorded under s. 37A of the Act. That section contains a proviso which is a common feature of all such pro