The court upheld the principle that any person can serve as an agent provocateur, emphasizing the admissibility of evidence procured through such agents, irrespective of their official status.

Richard Malanjum CJ

(Sabah and Sarawak)

(delivering judgment of the court):

Briefly, the appellant and one Sajan Gurung (second accused) were charged together for trafficking dangerous drug, namely, 875.2g of heroin, an offence under s 39B Dangerous Drugs Act 1952 (‘DDA’)s 34Penal Code

They were both convicted and sentenced to death as mandated under s 39B(2)DDA

In his petition of appeal and in the written submission filed with this court several grounds of appeal were submitted and canvassed for consideration. However, during the hearing learned counsel for the appellant in his oral submission focused on one main point of law, that is, the interpretation of s 40ADDA (‘the section’)

The section reads:

Section 40A Evidence of agent provocateur admissible

(1)Notwithstanding any rule of law or the provisions of this Act or any other written law to the contrary, no agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to abet or abetted the commission of an offence by any person under this Act if the attempt to abet or abetment was for the sole purpose of securing evidence against such person.

(2)Notwithstanding any rule of law of the provisions of this Act or any written law to the contrary, and that the agent provocateur is a police officer whatever his rank or any officer of customs, any statement, whether oral or in writing made to an agent provocateur by any person who subsequently is charged with an offence under this Act shall be admissible as evidence at his trial.

In this case it is not in dispute that the agent provocateur Mr Mensah Marlon Carl (SP4) who was based in Bangkok and worked for DEA played a key role that led to the arrest of the appellant and the second accused by the Malaysian Police. SP4 went by the name of ‘James’ when dealing with the appellant and those connected in procuring and delivering the prohibited substance. Their several meetings and rendezvous had been well rehearsed by the Court of Appeal in its judgment. We need not repeat them.

Further, in view of the specific issue raised before us it is not essential for the purpose of this judgment to narrate in any detail the facts and circumstances leading to the prosecution of the appellant and the second accused.

The gist of the submission of learned counsel for the appellant raised for the first time in this appeal is that in view of the words of sub-s (2) of the section only a police officer or a customs officer can be an agent provocateur under the DDA.

Learned counsel submitted thus:

It is respectfully submitted that subsection (1) of the provision deals with the issue of credibility whilst subsection (2) deals with the issue of admissibility.

This ground of appeal relates to the construction of section 40A(2) of the Act. It appears and there is basis to suggest that only two categories of agent provocateurs are recognized under section 40A(2), and they are police officers and customs officers.

SP4 is neither a police or customs officer within the meaning of section 40A(2) and as such cannot claim benefit to section 40A(2). In fact, SP4’s identity is suspect for the following reasons:

(i)he had no identification papers with him (pg. 89 of the Appeal Record Vol. 1);

(ii)he is a marketing manager in Ghana with no proper address.

The identity issue was submitted by counsel at the end of the case for the prosecution (see pg 172 of the Appeal Record Vol. 2).

Because section 40A(2) cannot be called in aid by SP4 all alleged statements that were said to have been made by the Appellant are therefore inadmissible. Without these statements there is no credible evidence of direct evidence of trafficking.

In response, the learned deputy public prosecutor argued that the ‘scheme of the DDA itself will show that drug trafficking is a global issue originating from various international conventions. Equally, the definition of trafficking includes importing, exporting, transporting. Such being the case, the role of an agent provocateur