The accused was originally charged with trafficking in dangerous drugs, namely, 3,932g of cannabis under s 39B(1)(a) of the Dangerous Drugs Act 1952. At the commencement of the trial the learned deputy public prosecutor tendered an amended charge, which reads as follows:

That you on 24 September 1980, did cultivate, on behalf of

another person still at large, cannabis, at Kampung Parit Satu,

Sanglang, Ayer Baloi, in the district of Pontian, in the state of

Johor, and thereby you have committed an offence under s 6B(1)(a)

and punishable under s 6B(3) of the Dangerous Drugs Act 1952.

The prosecution called 13 witnesses to prove their case. Briefly, the case for the prosecution is that on 24 September 1980, a police party led by Inspector Buang bin Mol (PW1) went to a place at Kampung Parit Satu, Sanglang, Ayer Baloi, and there laid an ambush. After waiting there for some time, the police party saw a male person, who was identified in court as Sumari bin Saribu (PW11) entering a belukar where dried leaves were kept. When PW1 entered the belukar he was opening a gunny sack. The police party arrested him and took the dried leaves, which they believed to be ganja. PW11 then led the police party through the belukar to an open area about 100 feet from where he was arrested. The police found that the open area was grown with ganja plants. The police pulled out all the ganja plants and brought them together with the dried ganja leaves and PW11 to the Pontian police station. PW11 was then interrogated by the police. In his evidence in court, PW11 alleged that he was assaulted by the police and asked to press the accused as the person responsible for the cultivation of the ganja plants. The other witnesses for the prosecution were formal witnesses to corroborate the evidence of the prosecution on the seizure of the dried ganja leaves and the ganja plants as well as the evidence on the arrest of PW11.

In the course of the prosecution case, the prosecution sought to tender two cautioned statements, purportedly made by the accused, as exhibits in support of the prosecution case. Mr Menon, counsel for the accused, objected to the statements being used as evidence at the trial. In view of the objection, the court ordered that a trial within a trial be held to determine whether the two statements were admissible as evidence.

For the statements to be admissible, the prosecution must prove beyond reasonable doubt that the statements were made voluntarily without any inducement, threat or promise (see Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 at pp 274 and 275). It is the duty of the prosecution to prove affirmatively to the satisfaction of the court that the statements were made voluntarily and not obtained by any improper means: Public Prosecutor v Singaran Kedah Criminal Trial No 11 of 1974 (unreported).

The prosecution called Inspector Chan Yoke Meng, the officer who recorded the two cautioned statements of the accused; Inspector Abdul Mutalib, the officer who acted as interpreter when the statements were recorded; Inspector Kamaruddin, the investigation officer; and the magistrate who made the remand orders under s 117 of the Criminal Procedure Code. For the defence, the accused himself testified on oath. The other witnesses for the defence were Sumari bin Saribu, who gave evidence for the prosecution before the trial within a trial; and Mohd Noor bin Jadi, a relative of the accused. The defence made a serious allegation that the accused was assaulted by the police and was forced to make the statements. The prosecution recalled Inspector Chan, Inspector Kamaruddin as well as two other witnesses to rebut the defence allegation.

Before going into the question of whether the statements were voluntary or not, it is relevant to consider whether a proper caution had been given to the accused and whether the recording of the statements was done in a