Muhammad Wabil Haiqal Bin Mohd Zainal (MA-83-582-03/2024)

In this case, the Accused was tried on two charges of housebreaking in order to commit theft under section 457 of the Penal Code (“PC”). The first charge was filed under case number MA-83- 581-03/2024 (“the 1st Charge Case 581”), whereas the second charge was filed under case number MA-83-582-03/2024 (“the 2nd Charge Case 582”). Both charges were tried together pursuant to section 165 of the Criminal Procedure Code (“CPC”). 2 [2] After the prosecution had closed its case, I amended the 1st Charge Case 581. This was done upon my finding that the prosecution had made out a prima facie case against the Accused not on the offence charged, but on a different offence i.e the offence of dishonestly receiving stolen property under section 411 of the PC. I amended the 1st Charge Case 581 accordingly. The Accused then pleaded guilty to the said amended charge. He was then sentenced to a fine of RM6,000 in default of which, seven months’ imprisonment.

With respect to the 2nd Charge Case 582, I found that the prosecution had failed to establish a prima facie case against the Accused. Accordingly, I ordered that the Accused be acquitted and discharged of the 2nd Charge Case 582.

An appeal from the prosecution now lies at the High Court of Malaya in Malacca in respect of the order of discharge and acquittal on the 2nd Charge Case 582 only. There is no appeal in respect of the 1st Charge Case 581.

As such, this judgment will only set out the reasons for the order in respect of the 2nd Charge Case 582 only. The 2nd Charge Case 582 will be referred hereinafter simply as the charge.

The charge reads as follows: 3 “Bahawa kamu pada 13/03/2024 jam lebih kurang 3.00 pagi, bertempat di Bayou Lagoon Park Resort, Bukit Katil 74450 Melaka di dalam daerah Melaka Tengah, dalam negeri Melaka, telah didapati melakukan pecah pejabat dan telah mencuri wang tunai RM250 dan sebuah telefon bimbit jenama VIVO, milik Lee Keong Wee, KPT:xxx. Oleh yang demikian kamu telah melakukan satu kesalahan di bawah seksyen 457 Kanun Keseksaan. Hukuman: Hendaklah dihukum penjara selama tempoh boleh sampai lima tahun dan hendaklah juga dikenakan denda dan jika kesalahan yang dimaksudkan itu adalah kesalahan mencuri maka tempoh penjara boleh dilanjutkan sampai empat belas tahun dan bagi mana-mana satu kesalahan itu dilakukan kali yang kedua atau yang kemudian bolehlah dikenakan denda atau sebat.”

The facts of this case are as follows. On 13.3.2024 at around 8.30 am, the complainant (PW1) arrived at her workplace in Bayou Lagoon Park Resort and was informed by her staff that their corporate office had been broken into. Upon inspection of the office by all employees, it was discovered that one employee (PW4) had lost cash in the sum of RM250 from a container kept inside his desk drawer. Another employee (PW3) was also found to have lost a Vivo handphone from his desk drawer. Investigations were subsequently conducted by the Investigating Officer (PW7) and it was found that the Accused had broken into the office and stolen the cash and the 4 handphone. The Accused was then arraigned before this court to answer for the charge.

As provided under section 173(f) of the CPC, after prosecution concluded its case, the Court shall consider whether the prosecution has made out a prima facie case against the accused. Section 173(h)(iii) of the CPC defined a prima facie case as a case where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction.

It is trite that at the close of the prosecution’s case, the court must subject the totality of evidence led by the prosecution to a maximum evaluation including scrutinizing credibility of each of the prosecution’s witnesses and taking into consideration all reasonable inferences, drawing the ones favorable to the accused if the evidence admits multiple inferences. At the end of the evaluation, the Court must ask itself this question: “If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me?”. If the answer is in the affirmative, then the prosecution has made out a prima facie case. The converse follows accordingly. (See: PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 at para [15]).

The first step of this evaluation is for the court to determine whether there is credible evidence on each and every ingredient of 5 the offence alleged against the accused (see: PP v. Ong Cheng Heong [1998] 4 CLJ 209 at page 225).

The charge against the Accused is for an offence of housebreaking in order to commit theft under section 457 of the PC. For ease of reference, the section is reproduced below: “Lurking house-trespass or housebreaking in order to commit an offence punishable with imprisonment

Whoever commits lurking house-trespass or housebreaking, in order to commit any offence punishable with imprisonment, shall be punished with imprisonment for a term which may extend to five years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years; and for every second or subsequent offence shall in either case be liable to fine or whipping.” [12] Based on the above provision read together with the charge, the elements of the offence are as follows:

the Accused committed housebreaking; and

(ii) the housebreaking was committed in order to commit theft. ANALYSIS AND FINDINGS – MAXIMUM EVALUATION The first element – the Accused committed the housebreaking [13] In respect of the first element, the prosecution must lead credible evidence not only to show that there was a housebreaking, but also that it was the Accused who committed the housebreaking. The legal definition of housebreaking may be understood by cross-referencing the definitions of “criminal trespass”, “house-trespass” and “house-breaking” under sections 441, 442 and 445 of the PC respectively. It is noteworthy from the reading of those provisions that the term “housebreaking” does not only cover the act of breaking into a “house” in a traditional sense per se but also includes the act of breaking into any building used for the custody of property. Therefore, the act of breaking into an office which houses company’s properties used for its daily operation or the running of its business, such as in this case, clearly falls under the definition of “housebreaking” under the PC. [14] As the fact regarding the occurrence of housebreaking in this case is rather straightforward and not disputed by the defence, I found it suffices to refer to the evidence of PW1 that when she arrived at the office around 8.30 am, the office was found in a state of disarray with broken glasses and pried-open doors. This is clear evidence that the office had been broken into. [15] With respect to the allegation that the Accused had committed the housebreaking, the prosecution relied on two types of evidence. The first one is the CCTV recording and identification/recognition by PW4 of the Accused in the said CCTV recording. The second one is the evidence of the arresting officer PW2 who testified that the Accused led him to the discovery of the stolen handphone. I now turn to evaluate these pieces of evidence. CCTV recording and identification [16] It was found that the CCTV on site recorded the incident of housebreaking. PW1 testified that she had watched the recording and that she did not know the person in the recording who committed the housebreaking. PW4, a former employee who had lost the cash money, in turn testified that he had also watched the recording and he could identify the person in the recording as the Accused. [17] To digress, the CCTV recording itself was not tendered by the prosecution and no explanation was given for such omission. Only the screenshots of the recording were tendered as P4(a-h). PW7, the Investigating Officer also testified that when he sent the recording to the PDRM Forensic Laboratory in order to extract an enhanced image of the suspect, no clear image could be produced due to the darkness and the low-quality of the recording. Further, the Investigating Officer also did not conduct any identification parade. As such, the only positive evidence relied by the prosecution to link the Accused’s presence in the premise during the said incident is the identification evidence by PW4. These circumstances, at the very least, warrant a thorough evaluation of PW4’s evidence. [18] In evaluating the evidence of PW4, I have to bear in mind that the quality of the identification evidence must be critically examined. It was categorically stated by the former Supreme Court in Yau Heng Fang v. Public Prosecutor [1985] CLJ (Rep) 350 that the evidence of poor-quality identity witnesses must be regarded as inherently incredible and where there is no other evidence to link the accused to the crime, the accused should not be called to enter defence. The following was held: “These are the qualities of the material witnesses for the prosecution which the Court was persuaded to rely on the issue of identification and recognition. If the prosecution depends solely, as in the present case, upon visual identification by one or more witnesses, the Judge must withdraw the case from the jury if the evidence is of poor quality (see R v. Turnbull [1976] 3 All ER 549 @ 553). In our opinion, both from the poor opportunity for the eye-witnesses to recognize the appellant and their poor quality as identity witnesses, their testimony on the issue of identity must be held to be inherently incredible. In the absence of evidence to connect the appellant with the crime, which is an essential element in any criminal prosecution, no prima facie case could have been established by the prosecution and the appellant should therefore have been acquitted without his defence being called.” [19] Coming back to the evidence of PW4, he initially testified during the examination-in-chief that he could readily identify the person in the recording as the Accused after he watched the recording. He knew the Accused as a former staff in housekeeping department and that he had on several occasion bumped into the Accused when he escorted his clients for viewing around the resort rooms. PW4 did a dock identification of the Accused as the former staff that he knew and mentioned about. Particularly, when shown the photograph marked as P4(c), PW4 said that from the facial feature and height of the suspect, it more or less resembled the Accused. S. Tahu CCTV berfungsi pada malam kejadian? J. Ya. Sebab lepas kejadian HR dan management semak CCTV. S. Encik ada lihat rakaman CCTV itu? J. Ada. Nampak ada orang pecah masuk pejabat office. S. Tahu siapa orang itu? J. Lepas tengok rakaman tahu dan cam orang itu. S. Siapa orang itu? J. Salah seorang pekerja Bayu Lagoon. Masa itu dia dah tak kerja. S. Dia kerja sebagai apa? J. Housekeeping. S. Berapa kali pernah Nampak dia? J. Beberapa kali. S. Encik nampak dia dalam tempoh berapa lama? J. Maksudnya setiap kali hadir ke tempat kerja, saya bawa client check akan terserempak dengan beliau di bahagian bilik resort selalunya. S. Encik ingat tahun bila dia bekerja di bayu lagoon? J. Tak ingat. S. Tadi encik kata bawa client, ingat terserempak tahun bila 2023 atau 2024? J. Tahun tak ingat. Saya banyak client. Boleh dikatakan hari-hari ada client datang. S. Boleh cam orang itu? J. Boleh. S. Tengok sekeliling ada nampak? J. Boleh. Ada di bahagian belakang cik. Baju hitam seluar jeans. Cam melalui rakaman cctv dan paras rupa. S. Tahu nama dia? J. Nama saya tak ingat. SP4 camkan OKT … S. Boleh cam rakaman CCTV? - boleh Saksi dirujuk ID4 S. Boleh cam? J. Boleh. Pada gambar no 3 daripada gambar apa yang saya cam lepas kami tengok paras rupa dan ketinggian lebih kurang macam bekas pekerja bayu tu. S. Cam juga gambar lain CCTV? J. Tak cam sangat sebab kurang jelas. [20] During cross-examination, PW4 further testified that he seldom saw the Accused as they were stationed at different departments. In fact, he did not know the Accused’s name, and they had never talk to each other. He also agreed that he could not remember precisely the physical features of the Accused from those short encounters. In respect of identifying the suspect in the recording, he testified that he had relied on confirmation of other colleagues including the housekeeping manager. While he did not agree that he had misidentified the Accused as the suspect in the recording, he agreed that this identification or recognition may be filled with elements of uncertainty. S. Encik kerja di Bayou Lagoon berapa tahun? J. 3 tahun. S. Bila OKT masuk kerja di sana? J. Tak ingat. S. Dia kerja department lain? J. Betul S. Peluang untuk jumpa dia nipis bukan? J. Betul. S. Kamu tak boleh dapat pastikan ciri-ciri fizikal beliau? J. Setuju. S. Pengecaman OKT yang dikandang pelaku ini di tempat kejadian tersebut adalah mengandungi elemen-elemen ketidakpastian setuju? J. Lepas tengok rakaman bukan saya sahaja banyak juga orang lain tengok. Kami panggil housekeeping manager juga buat pengesahan. … S. Kamu telah salah cam orang sebenar yang melakukan pecah masuk hari itu setuju? J. Tidak. S. Setuju pengecaman tertuduh sebagai pelaku mengandungi unsur-unsur ketidakpastian? J. Setuju. [21] During re-examination, PW4 finally clarified that he and other colleagues initially could not recognize the suspect in the recording due to the low-quality of the recording. Eventually, after rewatching and calling the housekeeping manager to verify, he and other colleagues could see the resemblance that it was the Accused in the recording. S. Tadi peguam tanya peluang berjumpa pelaku adalah nipis dan tanya kamu tak dapat camkan ciri fizikal OKT, boleh jelaskan kenapa kamu setuju? J. CCTV memang kurang jelas, kami tak tahu siapa. Tapi lepas semua tengok balik dan panggil housekeeping manager dan buat pengecaman memang agak sama. S. Tadi peguam tanya setuju atau tidak pengecaman encik pada pelaku ada unsur-unsur ketidakpastian, jelaskan kenapa encik setuju? J. Sebab pada rakaman CCTV kurang jelas. Saya bukan pakar. Apa yang buat saya cam beliau ialah lepas kami pekerja-pekerja tengok gambar dalam CCTV tersebut. [22] From the above testimonies, it is my finding that PW4’s identification of the Accused as the person committing the housebreaking in the recording and in screenshot P4(c) was not borne out of certainty. Rather, it was filled with uncertainties, hesitations and suggestions. PW4 admitted that he could not identify the suspect in the first place. The eventual identification of the person in the recording as the Accused came only after discussion and confirmation with his colleagues. As the prosecution did not call any other witness to corroborate this alleged so-called collective identification of the Accused, it can only stand as hearsay evidence. The wording used and the demeanor of PW4 when giving evidence throughout the trial also show that such identification was not a strong, confident one. Cumulatively, PW4 merely recognized that the person in the recording may bear some resemblance to the Accused. [23] In Pendakwa Raya lwn Lim Kang Wee [2014] 1 LNS 1757, the High Court rejected identification evidence based on CCTV recordings due to the poor quality of the footage, uncertainties on the part of the prosecution witnesses in identifying the suspect and the absence of any other supporting evidence such as an identification parade. All these factors are also present in our instant case. The relevant paragraphs of the judgment are reproduced below: “[34] Sekiranya Mahkamah ini khilaf dalam menolak keterangan rakaman CCTV, adakah keterangan melalui rakaman CCTV itu dapat dengan pastinya mengecamkan tertuduh sebagai pelaku jenayah pembunuhan ini. Persoalan ini bergantung kepada kualiti rakaman CCTV itu sendiri. Mahkamah ini telah berpeluang melihat tayangan rakaman CCTV tersebut dan mendapati bahawa rakaman dan imej yang terdapat dalam rakaman tersebut tidak berkualiti, tidak memuaskan serta agak kabur. Muka penyerang tersebut langsung tidak kelihatan dengan jelas. Tambahan lagi orang yang menikam Simati memakai helmet full face, berjeket, bersarung tangan serta kelihatan berbadan lebih besar daripada sais badan tertuduh. Saksi-saksi SP1, SP2 dan lain-lain saksi pendakwaan yang dipanggil tidak dapat dengan pastinya mengecamkan tertuduh sebagai orang yang kelihatan dalam rakaman CCTV tersebut. Apa yang saksi-saksi mengatakan adalah “orang itu seakan-akan sama seperti tertuduh” dari beberapa segi terutama cara berjalan. Tidak ada keterangan yang konklusif mengatakan bahawa orang dalam rakaman CCTV itu adalah sebenarnya tertuduh didalam Mahkamah ini. [35] Seperti dinyatakan diawal penghakiman ini, tidak ada kawad cam telah dijalankan oleh pihak polis untuk mengecam tertuduh. Saksi-saksi pendakwaan telah membuat pengecaman terhadap tertuduh melalui pengenalan (recognition) iaitu bahawa mereka telah mengenali tertuduh sebelum kejadian. Saksi-saksi utama pihak pendakwaan memberikan asas pengecaman mereka berdasarkan kepada bentuk badan, pergerakan, tingkahlaku anjing, pakaian dan potongan rambut. Semua asas-asas yang dinyatakan ini tidak kelihatan sebenarnya dengan jelas dalam rakaman CCTV tersebut. Anjing dikatakan tidak akan menyalak tertuduh juga tidak benar kerana anjing kelihatan menyalak terhadap tertuduh. Dari segi bentuk badan, kelihatan berlainan benar dengan susuk badan tertuduh yang berada dalam kandang tertuduh. Dari segi pakaian dan potongan rambut, apa ciri yang diberikan oleh saksi-saksi tidak dapat dilihat dan dipastikan dengan jelas dalam imej rakaman CCTV tersebut. Apa yang dapat diungkapkan oleh saksi-saksi adalah bahawa mereka menyatakan selepas melihat tayangan CCTV mereka terus membuat kesimpulan orang yang menyerang Simati adalah ‘Kenny’ oleh kerana dia pernah bertengkar dengan Simati walaupun saksi-saksi bersetuju hal biskut yang menjadi pokok pertengkaran tidak mungkin seseorang sanggup membunuh.” [24] Further, the nonproduction of the CCTV recording by the prosecution had impeded this court from verifying PW4’s identification evidence. In PP v. Jasnih Ot Ali [2022] 2 CLJ 611, the High Court placed little value on the identification evidence when the prosecution failed to produce the CCTV footage. The following was held: “[38] In the instant case, the prosecution did not produce the CCTV footages recorded on 4 February 2017 and 18 January

Neither did the prosecution called Sgt Hisham and/or Corp. Nazri who were at all material times in charge of the CCTV recording of passengers passing through the Balai Berlepas Domestik A to produce the CCTV footage. Had the CCTV footage been produced, this court would be in a better position to verify the prosecution’s version that it was the accused who let Jamilah pass through the Domestic Departure Hall A on 4 February 2017 instead of Sgt PB Mastali or Constable PB Azlan. This court is of the view that the CCTV footage is an important piece of material evidence. The failure to call Sgt Hisham and/or Corp. Nazri to produce the CCTV footage or to explain the non-production of the same would amount to withholding or suppression of evidence. Thus, this court finds that this is a fit and proper situation to invoke an adverse inference under s. 114(g) of the Evidence Act 1950 on the nonproduction of the CCTV footage. In the circumstances, the inference favourable to the accused must be taken. [39] Further, without the CCTV footage being produced, the truth of the prosecution’s case and the veracity of the identification evidence could not be verified. Hence, this court finds that the identification evidence is of little value and it is unsafe to convict the accused by relying on the identification by Jamilah.” [25] In the circumstances, I found that no weightage should be placed to PW4’s evidence in identifying the Accused as the suspect in the CCTV recording and screenshot P4(c) due of its inherent weaknesses and uncertainties. Ultimately, being the only evidence to link the Accused’s presence in the crime scene, it must be regarded as insufficient evidence to prove that the Accused had committed the housebreaking. Leading to discovery evidence [26] The second evidence relied by the prosecution is the evidence of the arresting officer PW2. [27] PW2 testified that he had conducted an interrogation while the Accused was in custody and that the Accused told him that the handphone the Accused took during the incident was kept under a motorcycle seat at one apartment building area called Pangsapuri Padang Jambu. After PW2 brought the Accused there, the Accused showed him the motorcycle, opened the motorcycle seat and showed him the handphone. PW2 then seized the handphone and later delivered the same to PW7 as the investigation officer to be kept as evidence. The handphone was later marked in court as exhibit P10A. [28] PW7 subsequently showed P10A to PW3 for identification. PW3 testified that he identified P10A as the handphone which was given by the company to him and which was stolen after the office breaking in incident. [29] For ease of reference, the relevant portion of PW2’s testimony during examination-in-chief is produced below: S. Lepas selesai dokumentasi apa lagi peranan Inspektor? J. Lepas buat tangkapan saya buat rampasan barang kes. S. Apa barang kes yang telah dirampas? J. Barang kes yang telah saya rampas berdasarkan leading to discovery adalah sebuah telefon bimbit jenis vivo. S. Masih ingat phone warna apa? J. Saya rasa warna hijau. S. Tadi kata jumpa hasil leading to discovery. Boleh tak jelaskan? J. Ok. Pada hari pertama kita buat reman pada 20 haribulan itu jam lebih kurang tengah hari 12.30 kita buat soal tanya di pejabat D4. Tanpa paksaan dan sebagainya. OYDS beritahu telefon yang dia ambil ketika kejadian dia simpan di bawah seat motorsikal dekat satu rumah pangsapuri. So saya jadikan itu sebagai satu maklumat dibawah Akta Keterangan. S. Apa nama pangsapuri itu? J. Boleh saya refer report leading saya dengan izin? (saksi rujuk laporan polis) nama pangsapuri itu adalah Pangsapuri Padang Jambu. S. Lepas terima maklumat ini daripada OKT apa Inspektor buat? J. Saya dan team saya bawa OKT pergi ke Pangpaspuri Padang Jambu di Blok A. OKT telah tunjukkan motorsikal yang diletakkan di bawah blok. Lalu saya minta dia buka seat motorsikal dan telah tunjukkan kepada saya sebuah telefon bimbit di bawah seat motorsikal tersebut. S. Motorsikal jenama apa? J. Honda Beat no pendaftaran TCN1667. S. Siapa yang buka seat motorsikal itu? J. OKT. Kunci pun ada pada dia. S. Kunci mana OKT dapat? J. (saksi senyap) S. Maksud saya masa pergi tempat kejadian memang dah ada kunci dengan dia atau macam mana? J. Kunci ada pada OKT. S. Motor dipark di mana? J. Bawah Blok A. Luar sedikit kawasan berumput tepi longkang. S. Lepas OKT tunjuk phone apa yang Inspektor buat? J. Saya rampas handphone tersebut. [30] From the testimony reproduced above, reliance on PW2’s evidence certainly raises a lot of issues. The first issue is whether the evidence from PW2 regarding the information given by the Accused to him is admissible or not, taking into account that it could amounts to a confession. [31] Generally, confessions by an accused cannot be relied by the prosecution to establish its case [see: sections 24, 25 and 26 of the Evidence Act 1950 (“EA”)]. [32] However, there is an exception to this rule under section 27 of EA which reads as follows: “How much of information received from accused may be proved

(1) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of that information, whether the information amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.”. [33] From the reading above, the provision allows certain information given by an accused to a police officer while he is in custody to be admissible in court. However, the extent of the information admissible must depend on whether such information have directly caused the discovery of the fact. In PP v. Hashim Hanafi [2003] 8 CLJ 555, the High Court held as follows: “This section is an exception to the law of confession as contained in the preceding ss. 24, 25 and 26 (see Lim Ah Oh & Anor v. R [1950] MLJ 260). Accordingly, it should be construed and applied strictly (see Wai Chan Leong v. PP [1989] 3 MLJ 356). It should also be construed as favourably to the accused as possible (see Naresh Chandra v. Emperor AIR 1942 Cal 593). In invoking s. 27 the court should be very vigilant to ensure the credibility of the evidence tendered as it is so vulnerable to abuse (see Pang Chee Meng v. PP [1992] 1 MLJ 137). In its relationship to s. 113 of the Criminal Procedure Code which also deals with the admissibility of statements made to a police officer both sections stand independently of each other (see Wai Chan Leong v. PP [1989] 3 MLJ 356). The words “ … so much of such information … as relates distinctly to the fact thereby discovered … ” are significant and form the focus of the section. The word “relates” in the section means to “have reference to” or “to connect”; and the word “distinctly” means clearly, strictly, unmistakably, decidedly, indubitably or directly (see Sukhan v. Emperor AIR 1929 Lah 344; Yee Ya Mang v. PP [1972] 1 MLJ 120; Mohmed Inayatullah v. State of Maharashtra AIR 1976 SC 483). Thus the information must be clearly connected with the fact. It must be such as to have caused the discovery of a fact. In other words the fact must be the consequence and the information the cause of its discovery.”. [34] Therefore, the admissible information given by the Accused to PW2 must be limited to the information that distinctly relates to the discovery of the fact that the stolen item was found under the motorcycle seat at Pangsapuri Padang Jambu. According to PW2, the information given by the Accused was that “telefon yang dia ambil ketika kejadian dia simpan di bawah seat motorsikal dekat satu rumah pangsapuri (loosely translated into: the handphone that he took during the incident he kept under a motorcycle seat at one apartment area”. [35] The information that the Accused took the handphone during the incident does not relate to the discovery of the fact that the item was found later at Pangsapuri Padang Jambu. Thus, the first part of the information is not admissible. It is my finding that only the information in bold above is admissible as it distinctly relates to the discovery of the fact in question. In this regard, I am guided by the decision of the High Court in Public Prosecutor v Rosli Bin Kaya [2017] MLJU 96 which held as follows: “[41] For completeness, the prosecution is also relying on a disclosure information or a statement under section 27 of the Evidence Act (EA). The law on section 27 of EA was dealt with conclusively by a locus clasicus Privy Council case of Pulukuri Kottaya & Others v Emperor AIR 1947 PC 67. In that case the challenged statement was “I stabbed with a spear. I hid the spear in a yard in my village. I will show you the place.” The Privy Council held that the whole of the statement was admissible except the first part which is in bold above. … [44] In the instant case, the information which disclosed that the knife was used to stab the deceased was inadmissible as it did not relate distinctly to the discovery of the knife. It was rightly expunged by the trial judge as it was inadmissible and not within the purview of section 27 of EA. The remaining admissible information or statement does not link the respondent with the killing of the deceased. However, the respondent’s subsequent conduct which is admissible under section 8 of EA is not the basis of the prosecution’s case against the respondent. The evidence of the respondent’s subsequent conduct was not given due emphasis by the prosecution.” [36] Nevertheless, the evidence from PW2 still raises the next issue i.e. whether the absence of the exact words used or “contemporaneous document” of the information given by Accused to PW2 may affect its admissibility? It is observed that the prosecution and PW2 did not tendered any written record of the actual words used by the Accused either in the form of police report or as an entry in police diary. [37] In Hasamuddin Talena v. PP [2002] 2 CLJ 504, the Court of Appeal held that where the provision of section 27 EA is invoked, the exact words spoken by an accused have to be proved and no approximation is allowed. It is stated that the court must be strict and vigilance in applying such exception as it is vulnerable to abuse and prejudicial to the accused. The following was held: “There is, in our view, no dispute about the proposition of law that is applicable to the facts already narrated. It is settled beyond argument that where the prosecution seeks to rely on information under the inclusionary provisions of s. 27 of the Evidence Act 1950, approximations are not permitted. In other words, the exact words spoken by an accused have to be proved. An illustration of that proposition may be found in Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265, where Abdul Hamid Omar LP reminded us of the need for vigilance, “to ensure the credibility of evidence by the police personnel in respect of this section, (that is, s. 27) which is so vulnerable to abuse”. The rationale for the rule adverted to a moment ago appears in the judgment of Syed Agil Barakbah J (as he then was) in Birch v. PP [1978] 1 MLJ 72. This is what he said: Information leading to the discovery must relate distinctly to the object so recovered and nothing more. Only so much of such information is admissible. Where such information is held to be admissible, the action of the accused which directly leads to such discovery, in this case the act of the appellant in approaching the green bag and opening it, is of little value and ought to be treated with caution as it is prejudicial to the accused. Further, there was no indication one way or the other what had caused the appellant to lead the police there. Whether her intention was to confess her guilt or to indicate Mohd. Desa’s guilt still remain uncertain. To my mind, since more than one inference has arisen, the inference in favour of the defence ought to be accepted. Since nothing more than the information given by an accused is admissible, it follows that the information must be exact and recorded in the language or words used by the accused. The strictness of the rule in the application appears sufficiently from the following passage in Sarkar on Evidence, 14th edn. at p. 492: Statements made by accused to police officers which are or may be provable under s. 27 should be clearly and carefully recorded. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. They should not be paraphrased (In re Athappa Goundan AIR [1937] Mad. 618; In re Ramamurthy AIR [1941] M 290; Naresh v. R, 46 CWN 180; Public Prosecutor v. Pasala AIR [1945] Mad. 202; Public Prosecutor v. Venkoba [1937] MWN 73, Chenna v. King Emperor AIR [1940] Mad. 710, Gaya v. State AIR [1957] All. 459; Nathu v. State AIR [1958] All. 46.) No judge should allow one word more to be deposed to by the police than it is absolutely necessary to show how the fact discovered is connected with the accused. We have addressed our minds to the question whether the strict test has been met by the facts of the present appeal. After anxious consideration we hold that it has not. The danger of abuse to which the Lord President referred in Pang Chee Meng (supra) appears to apply plumb to the present facts. These observations then lead us to the logical conclusion that the conviction in the present case is entirely unsafe. The learned deputy who argued this appeal has with customary frankness conceded that the entire prosecution’s case rests on these two supposed pieces of information leading to discovery. Once they fall, so must the prosecution’s case.”. [38] However, Augustine Paul J (as he then was) in PP v Hashim Hanafi held that the information given need not in the actual words used. Nevertheless, a written record is highly desirable and its absence may impose difficulties for the prosecution to establish certain elements of the offence. The following was held: “It is therefore clear beyond doubt that the information given by an accused under s. 27 need not be in the actual words used though a written record is desirable. This is justified on the ground that s. 27 uses the word “information” and not the word “statement” which is used in sections 17 to 31 of the Act (see Bhagirath v. State of MP AIR 1959 MP 17). In Yee Ya Mang v. PP [1972] 1 MLJ 120 reference was made to Karam Din v. Emperor AIR 1929 Lah 338 where Dalip Singh J in considering the scope of the word “information” in s. 27 said at p. 340: In connection with this it is necessary to bear in mind that the word ‘information’ cannot be used as synonymous with the word ‘statement’. There is no reason why the word ‘information’ should have been used instead of the word ‘statement’ in the section if by, ‘information’ statement was intended. The word ‘information’ as distinct from the word ‘statement’ connotes two things, namely a statement or other means employed for imparting knowledge possessed by one person to another, and the knowledge so derived by the other person. As “information” includes knowledge derived by a person it can be given in testimony in any form so long as it is within the ambit of the knowledge so derived. It can therefore be deposed in substance or in a paraphrased form. Such form of testimony, though admissible, may adversely affect its evidentiary value. In some cases the prosecution may rely entirely on the information supplied in proof of its case. If the paraphrased words are ambiguous the prosecution will be unable to prove matters allegedly contained in the statement. The prosecution may thus fail in its attempt to establish certain elements. The difficulties associated with evidence of an information in a paraphrased form and when it is in the actual words used by the accused was lucidly explained in Bhagirath v. State of MP AIR 1959 MP 17 where Chaturvedi J said at p 20: The difference between ‘I have kept the ornaments inside that bush’ and ‘the ornaments are kept or will be found inside that bush’ can well be realised. While the first sentence connotes that the accused had exclusive possession of the ornaments, at least for some time, after the theft, so that he was in a position to keep those ornaments inside ‘that bush’; the second sentence would only imply that the accused person somehow acquired the knowledge about their whereabouts and his case will then come within the dictum laid down in para 7 of Trimbak v. State of MP AIR 1954 SC 39 (E) and the discovery would not be regarded as conclusive proof that the accused was ever in possession of those ornaments.”. [39] It is now trite that the absence of a written record and that the actual words of the accused was not used in giving evidence would not make the information inadmissible. In this regard, the position of law in Hashim Hanafi (supra) prevails (see: Siew Yoke Keong v. PP [2013] 3 MLJ 630; Veera Pandian Bala & Anor v. PP [2017] CLJU 369). [40] However, it can be seen from both judgments above that the court should remain vigilant in applying section 27 of EA to ensure credibility of the evidence remains intact. In our present case, the absence of written record of the information given by the Accused poses difficulties for the Court to ascertain its truthfulness especially when considered together with the subsequent evidence regarding the Accused’s conduct. [41] PW2 testified that he brought the Accused to the location at Pangsapuri Padang Jambu where the Accused showed him the motorcycle, opened its seat and pointed out the handphone. [42] When questioned by the prosecution on how the Accused came into possession of the key to the motorcycle, PW2 initially remained silent. When the learned Deputy Public Prosecutor pressed him and refined the question, PW2 merely said that the key was already with the Accused. That part of testimony can be seen below: S. Siapa yang buka seat motorsikal itu? J. OKT. Kunci pun ada pada dia. S. Kunci mana OKT dapat? J. (saksi senyap) S. Maksud saya masa pergi tempat kejadian memang dah ada kunci dengan dia atau macam mana? J. Kunci ada pada OKT. [43] PW2 did not attempt to explain how the Accused, who was in police custody, had the key at the first place. Did PW2 bring the Accused to any other place first, such as the Accused’s house, to retrieve the key? If that was the case, then PW2’s omission in explaining that part of the narrative leaves a significant question mark. It may even give rise to the suggestion that PW2 already had access to the key and also had prior knowledge of the location of the handphone and the motorcycle. If so, the discovery process may have been merely staged rather than genuine. In that event, it would not be a case of evidence of information leading to discovery, but merely evidence of “recovery”. This is compounded by the absence of any explanation from the prosecution and its witnesses regarding the whereabouts of the motorcycle key, the motorcycle itself and the information relating to its ownership. [44] The danger of misuse of section 27 of EA was highlighted by the High Court in Public Prosecutor v. Liew Sam Seong [1981] CLJU 159 as follows: “Having considered the evidence of the accused and his witness, Sgt. Saaban bin Hassan (DW2), I find the defence has created considerable doubt in the prosecution case on the issue of information allegedly given by the accused to Inspector Wong. Sarkar on Evidence, 12th Edition, at page 287 has this to say on the subject of misuse of section 27 by the police: "Section 27 has frequently been misused by the police and courts should be vigilant about the circumvention of its provisions?. When a fact is once discovered from information received from another source, there can be no discovery again even if any information relating thereto is subsequently extracted from the accused. A device sometimes adopted by the police is to stage a scene and take the accused to the place where the things discovered laid buried or hidden and require him to make a search for them at the spot indicated to the accused?. It has been observed that it has become a normal device of the investigating agency to turn an ordinary recovery into a discovery in order to utilise the provisions of section 27. [Amin v SA 1958 A 293, 300]." … The only reasonable inference to be drawn is that, after the arrest of the accused on December 18, a police party must have gone to the premises by using the bunch of keys recovered from the accused, and they stayed there in ambush, but unfortunately for them, only Sgt. Saaban appeared on December 21. In view of the quantity of ammunition, handgrenades, bombs and other incriminating exhibits found on the premises, it is also reasonable to assume that the police must have known about their existence from December 19 or

As such, it is my finding that this is a clear case where the police investigation is attempting to turn an ordinary 'recovery' of incriminating exhibits into a 'discovery' in order to utilise the provisions of section 27 Evidence Act. In the circumstances, even if the accused had given the alleged information to Inspector Wong on December 28, 1977, the provision of section 27 cannot be invoked, and both the information given and the fact of discovery are accordingly inadmissible.” [45] It is trite law that where the evidence admits of multiple inferences, the inference favourable to the accused must be drawn. An inference that the process of leading to discovery was not genuine but merely staged with prior knowledge of the police is not only favourable to the Accused, but is also a reasonable one in the circumstances of this case. There is no evidence of the exact words used by the Accused in giving the information. No written record of the information was tendered in court. There is also a material and unexplained gap in the prosecution’s narrative as to how the Accused came into possession of the motorcycle key before being brought to the said location. [46] Therefore, this Court is left with no choice but to hold that PW2’s evidence regarding the information allegedly leading to the discovery is not credible and is insufficient to establish the prosecution’s case against the Accused. The second element – the housebreaking was committed in order to commit theft [47] As the prosecution has failed to prove the first element of the offence that the Accused committed the housebreaking, it must necessarily follow that there is no credible evidence to prove the second element against the Accused that the housebreaking was committed in order to commit theft. [48] I have found above that the evidence of PW2, regarding the alleged information of leading to discovery given by the Accused, is not credible. The conduct of the Accused in showing PW2 the location of the stolen handphone, thus, at best can only be used to infer that the Accused had knowledge that the item was hidden at the said location. Given the aforementioned circumstances in this case, such conduct alone is insufficient to amount to proof that the Accused had possession over the stolen item. [49] Therefore, this Court has no basis to invoke presumption that the Accused was the thief or the receiver of stolen property under section 114(a) of EA which reads as follows: “Court may presume existence of certain fact

The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume—

that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;” [50] In any event, the prosecution in its submission did not invite this Court to invoke such presumption in this case. CONCLUSION [51] In the circumstances, upon conducting a maximum evaluation of the totality of the prosecution’s case, I found that there is no credible evidence to prove the elements of the offence against the Accused. I was therefore of the considered view that the prosecution had failed to establish a prima facie case against the Accused. Accordingly, I ordered that the Accused be acquitted and discharged of the charge. Dated 19 February 2026 UTHMAN BIN ABD GHANI MAGISTRATE MAGISTRATE COURT (4) MELAKA For the prosecution : Puan Farah Nabihah Binti Sofian, Deputy Public Prosecutor For the accused : Mr. Peter Gan Choo Sweet, [Peter Gan & Co]