illegally obtained evidence.

Week Week 3

Date @October 26, 2023

illegally obtained evidence.

improperly or unfairly

spy etc, violating certain law,

agent provocatuer,

blood sample without consent.

should it be admitted?

written law is silent about the

usa position:

mapp v ohio

◦ Illegally obtained evidence will not be admissible

arizona v evans

fourth amendment right

illegally obtained evidence = not admissible.

re leatham:

it matters not how you get it, if you steal it, it would be admissible in evidence.

as long as it is relevant.

jones v owen

fishing in a no fishing zone.

constable tgk ni salah ni.

supposedly ada warrant, sbb non seizable offence,

illegally obtained evidence. 1

 tapi dia tangkap.

it would be dangerous obstacle of administartion of justice if we were to hold

bcs evidence was obtained by illegal means, it could not be used, agaisnt a
party charged with an offence.

kuruma, son of kaniu v R

the test to be applied in considering whether evidence is admissible is

whether it is relevant to the matters in issue. it if is, it is admissible and
the court is not concerned with how the evidecne is obtained.

kalau relevant = admissible. court tak kisah pasal how the evidence was
obtained.

r v Sang

HOL: the court is not concerned with how it was obtained,

courts discretion to exclude such evidence if unfair to the accused. (dicta)

case pasal duit tiruan. pastu the police entrap the person to buy the said
money. (defence of entrapment is not a substantive defence)

fox v chief constable of gwent

driver left an accident.

entered home without warrant.

on his refusal to supply breath test,

held: any evidence that is relevant is admissible, duty of the court is to decide
whether the offender committed the offence. the court will not care about the
misconduct of the police.

S78 PACE 1984

court may refuse

unfair to the accused.

fairness of the proceeding.

illegally obtained evidence. 2

 nothing in this section shall prejudice any rule of law requiring

matto v wolverhampton crown court

simple breahc of relevant provision in not informing a suspect of a ground of

his arrest or the purpose of searching him gave sufficient justification for
exercising the discretion under s.78 of PACE 1984”

r v nathaniel

blood sample. was given 4 years earlier when being investigated for two
other rapes. The police had told him that the sample would be destroyed if he
was found not guilty of those crimes. When due to an administrative error it
was not, as was later used to convict him of a third unrelated crime, the Court
of Appeal excluded the evidence. (illegally obtained evidence is excluded)

wan mohd azman v pp

entrapment.

malaysian cases.
pp v Saminathan (1937)

governed by ordinance.

set up business of running illegally lottery buisness,

s2- ordinance: officer nak arrest mesti inspector and above,

also body assault - (punch) - on the accused.

the tangible avidence is the resit number, so masa kena tangkap, dia telan.
pastu polis tumbuk utk dptkan benda tu.

argument: should not admitted sbb the way the police acquire the evidence tu
salah.

held: judge: illegality of the person arrest does not concern the trial, the court
only concern the relevancy of evidence. the way? tak kisah la cemane pun.

illegally obtained evidence. 3

 asalkan dia relevant.

pp v gan ah bee (1975)

officer was not authorised.

this entry was illegal. -

judge: evidence the was acquired illegally does not affect the relevancy.

re kah wai video ipoh sdn bhd

J: seizure list. bila serbu, ada banyak barang yang pirate jugak. so dorang ambik
jugak.

kalau evidence tu relevant dgn fact in issue, then the evidence is admissible.
court does not concern with how the evidence was collected. tak kisah la mcm
mana dia nak ambik benda tu.

ramli bin kechik v PP 1986

entrapment

sama je principle.

tgk R v Sang

Cheng Swee tiang v PP - singapore 1964

the appellant was charged for carrying public lottery without license,

so police entrap him

polis pura2 nak beli, bila dia jual, kena tangkap.

Judge: judicial discreition to reject or allow the evidence if the evidence is

admitted, and causing unfair treatment against the accused. (major view)

law society of singapore v tan guat neo phyllis. (dr tan phyllis) (2007) - singapore

held: court has no discretion to disallow the illegally evidence even entrapment.
why?

illegally obtained evidence. 4

 s2(2) of singapore EA- all relevant is admissibble, unles clear provision express
to reject it.

hanafi mat hassan v PP (2006) - dah masuk discretion.

blood sample without consent. - so argue that the way the blood sample was
illegal.

refer to kuruma and R v sang.

held: admissible, as long as relevant.

- fc- relevant and admissible.

obiter: court has inherent power to exclude the evidence if it is unfair to the
accused.

dlm kes ni takde issue unfairness.

this case was referred by the DSAI (2015). (FC affirmed Hanafi)

masa dlm cell, the police bagi dia morning towel, mineral water and
toothbrush.

the court has used the discretion to allow to admit the DNA.

wan mohd azman v PP (2010) (FC)

refer to r v loosely

entrapment.

US accept entrapment as defence.

malaysia?

unwary criminal v unwary innocence. (introduced by R v Loosely)

unwary criminal: regardless of anyone, agent provocateur or not, he would

still supply the drug.

unwary innocence: he would not supply the drug but for the agent
provocateur.

tapi dalam kes ni, dia mmg dah bawak 2 kali dadah tu. so mmg tak innocent
la cite dia. tgk date dia.

It was thus the appellant's contention that evidence of entrapment was highly
prejudicial and that it was incumbent upon the trial court to do a balancing

illegally obtained evidence. 5

 exercise before acting on such prejudicial evidence.

1st layer: asalnya prejudicial v probative value.

contention of S78 of PACE- use discretion.

R v Loosely - unwary criminal and unwary innocence.

kalau boleh prove yang criminal tu unwary innocence- boleh je guna

discretion. (court ckp)

Held: Admissibility of the evidence of an agent provocateur is not in issue.

Neither is his credibility as a witness. Statute has provided for this in the form of
s 40A of the Act. (DDA)

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 or the provisions of this Act or any
other 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.

evidence by agent provocateur most likely to be admitted.

in Loosely’s case – The court may grant a stay of proceeding (which has the
same beneficial effect to acquittal)

EA does not provide similar.

Under the Malaysian law there was no defence of entrapment. In any event, it
was for the appellant to prove that he committed this offence as a result of
entrapment, which was a finding of fact, but as there was no such finding by the
trial court the defence of entrapment as a defence did not arise. For the defence
to operate at all the appellant had to show that he was actually an 'unwary
innocent' who would not, but for the entrapment, have committed the offence.

illegally obtained evidence. 6

 However, the facts showed that the appellant was an 'unwary criminal' who
readily participated in the offence and thus there was no entrapment in the
instant case – Wan Azman

hari bahadur v PP

sama wan mohd azman.

◦ the court has no longer any discretion to refuse admitting such statement in
evidence

lim chooi huat v pp

every court has inherent power to prevent abuse of its process.

entrapment which this case are concern, abuse may occur. it is simply not
acceptable that the state through his agent to lure the citizen to commit an illegal
act, and later tangkap.

dlm DDA (s40A(2)) - agent provocateur is allowed. so clearly entrapment is allowed

by the express provision in DDA.

Held:

It is common for the police to employ the use of agent provocateurs due to
difficulty faced in detecting the crime.

S. 40A (2) of the DDA 1952

Zawawi Salleh JJCA: if the circumstances showed that the police had
overstepped the boundary by holding out excessive or unfair
inducement, the court may stay the proceedings to prevent abuse of
process.

aizuddin syah bin ahmad v PP

COA. appellant was convicted under S18 DDA. admisnitering drugs.

urine sample was collected by corporal.

corporal yang amek urine specimen. patutnya sergeant.

ground of appeal: non compliance of S31A.

3 points of law

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 supremacy of FC - art 8

section 31A

admissibility of obtained evidence

appellant: should not be collected by the corporal.

kat bintulu. maybe seargent tu dah jadi ketua balai dah sbb kat pedalaman.

respondent:

procedural matter, not evidential

the purpose of the section is to merely to take the sample

keyword: to preserve the evidence. to show that how important the

evidence to be collected.

sbb urine tu penting utk convict for this crime.

yang penting relevant, should be admitted.

only direction not mandatory.

directory is more flexible.

any breach would not affect the admissibility.

HC: riduan bin masmud v pp- illegal evidence - blood sample- sergeant
instead of DSP. held: the section in the DNA act was procedural, not
evidential. does not affect the admissibility.

Safuan: no provision mentione that non compliance of any section would

render the evidecne as inadmissible.

COA: rasid: admissible

not prejudice to the accused:

kat mana prejudice dia?

decision: allowed the appeal. the breach of the provision cannot be overcomed
by principles in common law - kuruma v r, r v sang.

provision must be strictly followed.

court reject the urine sample.

courrt departed from the common view yang kata admit evidence to be
admitted walaupun illegally obtained.

illegally obtained evidence. 8

 why?

common law cannot override FC.

tapi kat mana prejudicial nya kalau sample tu amek by corporal?

kuruma dgn sang apply kalau takde statute yang govern.

conclusion: court departed. from kuruma and sang.

FC is cupreme, thus the common law

when procedure is provided should be strictly followed.

conviction and sentenced was quashed.

compare-

mahmod yary mohammad v PP (2019)

past year quetsion.

illegally obtained evidence. 9