Authored By: Ivry Choo Jing Ying
Multimedia University Melaka Campus
CASE TITLE & CITATION
Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134
COURT NAME & BENCH
COURT OF APPEAL (PUTRAJAYA)
RICHARD MALANJUM, AUGUSTINE PAUL AND HASHIMYUSOFF JJCA
DATE OF JUDGMENT
19 May 2006
PARTIES INVOLVED
Appellant : Hanafi bin Mat Hassan
Respondent : Public Prosecutor
FACTS OF THE CASE
In this case, the victim, Noor Suzaily Mukhtar boarded a bus in the morning to travel to her workplace. At first, several passengers were on board, including a Bangladeshi national. Once that passenger alighted, only Noor Suzaily and the bus driver remained. The driver then deviated from the usual route and drove towards Jalan Bukit Tinggi. Realising something was wrong, Noor Suzaily grew suspicious and attempted to seekhelp. He attacked her and forced her into silence, during which she was overpowered, raped, and sodomised.
At one point, four passers-by noticed a naked woman inside the bus calling for help. The driver threatened them to leave, but they gave chase. When he realised he was being followed, the driver reversed the bus and headed towards Taman Chi Liung, eventually reaching a secluded area in Taman Bukit Tinggi. There, he manhandledNoor Suzaily again and strangled her to death with her own hijab.
After committing the murder, the driver dumped Noor Suzaily’s naked body at anearby construction site. Later that afternoon, her body was discovered by a passer-by. A police report was lodged, and a post-mortem examination was conducted byDr.
Halim, a forensic pathologist, who confirmed that Noor Suzaily had died as a result of asphyxiation by ligature and blunt impact injury to the skull.
On 1 November 2000, about a month after the incident, 34-year-old Hanafi Mat Hassan was charged in court with the rape and murder of Noor Suzaily. In the trial, he was convicted of murder and received the mandatory death sentence, andfor rape, he was sentenced to 20 years in prison with 12 strokes of the cane. Hanafi subsequently filed an appeal against his conviction and sentence to the appellate court. One of the grounds of appeal concerned the bus ticket, which the defence arguedwas inadmissible persuant to s. 90A(2) of the Evidence Act 1950 1. The bus ticket had been used by the prosecution to prove Noor Suzaily’s movement. Another groundof appeal related to items recovered under s.27 of the Evidence Act 1950 2, which were discovered following Hanafi’s cautioned statement. The defence argued that theseitems should not have been admitted as evidence.
ISSUES RAISED
- Whether bus ticket is admissible.
- Whether items recovered under s.27 Evidence Act (through cautioned statement) were admissible.
ARGUMENTS BY THE PARTIES
DEFENSE :
(a) Bus ticket inadmissible under Section 90A(2) of the Evidence Act 1950. Defense counsel raised thatthe bus ticket used by prosecution as evidence was inadmissible. This resulted from the absence of a certificate issued by the personmanaging the computer’s functions. This is required under Section 90A(2) of theEvidence Act 1950. Without the certificate, the ticket (being a computer-generateddocument) could not be admitted to prove the victim’s movements.
(b) Recovered items inadmissible (obtained via involuntary cautioned statement).
The defence argued that the recovered items should be excluded because they werediscovered through a cautioned statement made by the accused. Since the statement was not voluntary, it is inadmissible under s.24 Evidence Act 1950 3, which
invalidates any confession made as a result of enticement, intimidation, or assurancein criminal trials. Therefore, the defence contended that the exhibits derived fromtheinadmissible statement must also be inadmissible.
PROSECUTION :
(a) Bus ticket admissible under Section 90A of the Evidence Act 1950, machinewas a “computer,” produced in ordinary course of business.
Section 90A(1) of the Evidence Act 1950 renders computer-produced documents admissible, provided they are generated in the ordinary course of use and remainunaltered; hence, the bus ticket was accepted. The prosecution provides that theticketing machine used to issue the bus ticket was a “computer” within the meaningof the section. Thus, the bus ticket was created in the ordinary transaction of business, and therefore did not require the certificate under certain circumstances.
(b) Items discovered through s.27 were admissible regardless of voluntariness of confession.
The court held that items discovered pursuant to the accused’s cautioned statement were admissible notwithstanding the involuntariness of the statement itself. Under s.27 of the Evidence Act 1950, the law admits solely that part of the informationwhich distinctly links to the discovered fact, regardless of whether the underlyingconfession is voluntary. This principle was first recognised in R v Warickshall4, where facts discovered in consequence of an inadmissible confession werenonetheless admissible. The Malaysian courts have reaffirmed this principle, including in Wai Chan Leong v PP 5, which clarified that admissibility under s.27 turns on whether the information imparted knowledge that contributed tothe discovery of relevant evidence. Accordingly, the voluntariness requirement under s.24does not affect admissibility under s.27.
JUDGEMENT
The court affirmed the learned trial judge’s decision that the certificate was not necessary in this case. To prove the movement of the accused, the bus ticket was critical evidence. The court found that the ticket fulfilled the requirements under s.90A(1) of the Evidence Act 1950, as it was produced by the ticket machine, whichwas considered a computer, in the normal conduct of its business. However, thedefence argued against admitting the ticket, claiming that no certificate had beensigned by the person responsible for managing or operating the computer systemtoensure that the document was created as part of its routine function. Fortunately, s.90A(6) of the Evidence Act 1950 provides a presumption that once a document is shown to have been generated by a computer, the court presumes it was producedinthe ordinary course of business. Accordingly, the court held that even without thecertificate, s.90A(6) allows such a presumption, making the bus ticket admissibleunless the defence successfully rebuts it.
With regard to the condition of the ticket machine, the learned trial judge held that it could be established through oral testimony. Evidence showed that the ticket machinewas operating correctly and that the ticket was printed on the bus. This confirmedthat the machine operated properly without errors throughout the material time. Withproof of these two elements, the presumption under s.90A(4) of the Evidence Act 1950 was satisfied through oral evidence. Consequently, the bus ticket was admissible. The court also held that the voluntariness rule is irrelevant to the application of s.27of the Evidence Act 1950. Under s.27, even if a confession by the accusedis inadmissible due to involuntariness, any fact discovered as a consequence of that statement remains admissible. This is because the law places greater value onthediscovery of real, physical evidence than on the manner in which the informationwas obtained. In this case, the accused gave a cautioned statement which led tothediscovery of certain items based on the information he provided. The defence arguedthat the statement was involuntary and that the evidence should therefore be excluded. However, the court decided that section 27 operates independently of thevoluntariness rule, and the exhibits were rightly admitted as evidence.
The court referred to the Federal Court’s landmark reasoning in Francis Antonysamyv PP 6, which resolved the voluntariness issue under s.27 once and for all. If s.27 weresubject to voluntariness under s.24, then s.27 would be redundant, since any voluntaryconfession could already be admitted under s.24. The very existence of s.27 indicates that it is a separate and independent provision, with a limited function: to admit onlythe discovered fact or object, regardless of whether the statement itself was voluntary. Historical authorities, such as R v Warickshall and R v Lockhart (1785) 7, also affirm that evidence discovered as a result of an involuntary confession remains admissible. Accordingly, the court concluded that the voluntariness rule does not apply to s.27, and the exhibits were properly admitted.
CONCLUSION
The court ultimately upheld the admissibility of both the bus ticket and the items recovered. The bus ticket was admissible under s.90A Evidence Act 1950, as it was produced by a computer (the ticketing machine) in the ordinary course of business, with oral evidence proving the machine’s proper functioning. The absence of acertificate did not render the ticket inadmissible due to the presumptionunder s.90A(6).
As for the recovered items, the court held that the voluntariness requirement unders.24 is irrelevant to s.27 Evidence Act 1950. Facts or objects discovered throughanaccused’s statement remain admissible, regardless of whether the statement itself is voluntary. This principle, supported by authorities like R v Warickshall andreaffirmed in Francis Antonysamy v PP, ensured that the exhibits were rightlyadmitted.
Thus, the prosecution successfully established the admissibility of both categories of evidence, and the defence’s objections were rejected.
REFERENCE(S):
CASES
Francis Antonysamy v PP [2005] 3 MLJ 389
R v Lockhart (1785)1 Leach 386
R v Warickshall (1783) 168 ER 234 Wai Chan Leong v PP [1989] 3 MLJ 356 STATUTES AND STATUTORY INSTRUMENTS Evidence Act 1950, s 24
Evidence Act 1950, s 27
Evidence Act 1950, s 90A(1)
Evidence Act 1950, s 90A(2)
Evidence Act 1950, s 90A(4)
Evidence Act 1950, s 90A(6)
1 Evidence Act 1950, s 90A(2)
2 Evidence Act 1950, s 27
3 Evidence Act 1950, s 24
4 [1783] 168 ER 234
5 [1989] 3 MLJ 356
6 [2005] 3 MLJ 389
7 [1785] 1 Leach 386
