Is the case of Kuruma

v R outdated in light of
recent developments
of the law on illegally
obtained evidence?
Done by: Muhannad Munir (1728911)
 TABLE OF CONTENTS
01. Case of Kuruma Son of Kaniu v Reginam

02. Malaysian cases following Kuruma v R including Hanafi

Mat Hassan and Anwar Ibrahim

03. Case of Aizuddin Syah bin Ahmad v PP

04. Malaysian cases after Aizuddin (2019-2020 cases)

05. Analysis and commentary of Aizuddin

06. Islamic perspective on illegally obtained evidence

 Kuruma Son of Kaniu v Reginam [1955] 1 All ER 236

Facts: the accused was convicted for unlawful possession of two rounds of
ammunition in Kenya however the search for the ammunition was made
unlawfully since there was no warrant. Therefore, an appeal was made where it
was contended that the evidence was illegally obtained.

Decision: The court dismissed the appeal and held that the evidence was
admissible in court even though the search was illegal. This is because as long as
the evidence is relevant, it is immaterial how and in what manner the
evidence was obtained. Furthermore the court said that the there is discretion
to disallow the evidence. The test would be whether the probative value of the
evidence outweighed the prejudicial effect it had against the accused.
Section 5 of the Evidence Act 1950
 Hanafi Mat Hassan v PP [2006] 4 MLJ 134
Facts: The accused was charge in the HC for the rape and murder of the deceased
while she was travelling in the bus driven by the accused. However the appellant
appealed and argued that the use of the blood sample taken from the accused
was not made voluntarily and therefore it was inadmissible since it was illegally
obtained.

Decision; The court dismissed the appeal and stated in paragraph 68 that it is
clear that the illegally obtained evidence is admissible and this applies to cases
involving illegal searches, evidence obtained by secret listening devices, or by
undercover police operations or even evidence obtained by unfair procedure. The
court then concluded by saying that the evidence from the blood sample taken
from the accused is admissible as it is relevant even if taken without his
consent.
Dato’ Seri Anwar bin Ibrahim v Pendakwa Raya [2015] 2 MLJ 293

Facts: Anwar Ibrahim was charged under section 377A of the Penal Code with
committing carnal intercourse against the order of nature against his then
personal assistant, Mohd Saiful. The defence argued that exhibits for Anwar
Ibrahim’s DNA profiling were illegally obtained from his lock up.
Dato’ Seri Anwar bin Ibrahim v Pendakwa Raya [2015] 2 MLJ 293
Dato’ Seri Anwar bin Ibrahim v Pendakwa Raya [2015] 2 MLJ 293

Decision; The Federal Court stated in paragraph 98 of the judgment:

“Now, even if those exhibits recovered from the lock-up were indeed illegally
obtained, which we say were not, in law they remain admissible if found to be
relevant to the case (Section 5 of Evidence Act)”

The Federal Court referred to the case of Hanafi Mat Hassan and Kuruma v R. The
court then concluded that such evidence is admissible.
 Aizuddin Syah bin Ahmad v PP [2018] 5 MLJ 220

Facts: appellant was found guilty under Section 15 of the Dangerous Drugs Act
1952 and had to pay a fine of RM2,500 in default of six months imprisonment as
well as to undergo police supervision for two years. The appellant appealed and
the High Court affirmed the conviction and sentence. However, when the case
was appealed to the Court of Appeal, the appellant argued that his urine sample
was taken by a corporal and pursuant to section 31A(1A) of the DDA, it should
have been done by a police officer not below the rank of Sergeant and
therefore, the urine sample is not admissible as it is illegally obtained.
 Aizuddin Syah bin Ahmad v PP [2018] 5 MLJ 220
Decision:: The Court of Appeal allowed the appeal and there were a few key
points stated:
- Firstly, the case of Kuruma v R is only relevant if there is no governing statute
to say how evidence must be procured. The court elaborated that an English rule
should not be followed if it changes the meaning of the statute.
- Secondly, the court further said that in Malaysia, the Federal Constitution is
supreme and that when the Act sets out a particular procedure, it must be
strictly followed and the common law cases cannot override the provisions of the
Act.
- Thirdly, the court said since there was a breach of the DDA, it cannot be
overcome by the principles in Kuruma v R. Based on this, the court did not
allow the urine sample to be admissible.
Muhammad Nazrin bin Ayan v Public Prosecutor [2020] MLJU 1571
Facts: the appellant was convicted of self-administration of drugs under the DDA.
The appellant argued that the urine sample was collected by a Corporal and
not by a police officer not below the rank of a Sergeant in accordance with
section 31A(1A) of the DDA. The Appellant relied on the case of Aizuddin.

Decision; the High Court distinguished the case of Aizuddin with the present
case. This is because in the case of Aizuddin, the collection of urine was done by a
Corporal which is not in line with section 31A(1A) however in the present case, the
collection was done by an Inspector, who is well above the rank of Sergeant. On
this basis, the case of Aizuddin was not followed. Furthermore, it must be noted
that the court in fact referred to the case of Kuruma v R when stating the rule
of illegally obtained evidence. Thus, the court dismissed the appeal and held the
urine sample was admissible.
 Pendakwa Raya v Javier Edgardo Silva [2019] MLJU 1937
Facts: accused was charged with drug trafficking under the DDA. In order to
prove the substance were dangerous drugs, a chemist was called. A DNA analysis
then showed that the items in the accused suitcase had traces of the accused
DNA. However there was the failure to obtain consent for the accused DNA.

Decision; The court in deciding this case referred to the 2015 Federal Court case
of Anwar Ibrahim where the principle of the case is that illegally obtained
evidence is admissible as long as it is relevant. Furthermore, the judge referred to
the the cases of Hanafi and R v Kuruma. The court then held that even if there
was no consent given the evidence is still admissible. The court clarified that the
principles provided in the Anwar Ibrahim case is `the true position of the
law.’’ The accused was then convicted.
 Why I disagree with Aizuddins case
1) First and foremost, the Court of Appeal failed to refer to the Federal Court
case of Anwar Ibrahim in 2015. The case of Anwar Ibrahim has crystalized the
principle in Malaysia, that evidence is admissible even if illegally obtained as long
as it is relevant. This crystallization is the consistency of judgments from 1955 (in
the case of Koroma) up till Anwar’s Ibrahim case, in the 21st century. Furthermore,
in Aizuddin, the court stated we should not follow English law if we changes the
meaning of the local statute. However this is not English law that is being
followed since the principles are clearly spelt out in the case of Anwar Ibrahim is
already part and parcel of the Malaysian law as seen from the 2019 case of Javier.

In addition, it must be emphasized that by the doctrine of stare decisis and

vertical operation of the doctrine, the Court of Appeal in the case of Aizuddin
was bound by the case of Anwar Ibrahim yet it failed to even mention that case
once.
 Why I disagree with Aizuddins case

2) The second reason why we must not follow Aizuddin’s case is because it will
open a Pandoras box where there will be many complexities and uncertainties in
the law. For example, the Court of Appeal in Aizuddin stated that the FC is
supreme and that it must be strictly followed. That would mean that if a person
was arrested and evidence was obtained without due regard for his rights such as
not informing grounds of arrest, then evidence would easily be inadmissible. It
would also be difficult to reconcile this view with the case of Hanafi where it was
stated that even if unfair procedures were used when obtaining evidence or illegal
searches, such evidence is still admissible. This would cause a lot of inconsistency
from one judgment to another judgment.
 Why I disagree with Aizuddins case

3) To completely consider that the evidence obtained in contravention of section

31A(1A) of the DDA as inadmissible would defeat the purpose of justice as the
accused is prevented from being punished for his crimes due to a procedural
irregularity. This procedural irregularity is just that another person instead
collected the urine sample. Furthermore, the person who collected the urine
sample did not follow the wrong procedure in collecting the urine sample nor he
did violate the rights of the accused while doing so. Lastly, the appellant even
never complained that a Corporal took his urine sample when it has happened.
 Why I disagree with Aizuddins case

4) It must be noted that even cases decided after Aizuddin did not follow the
approach taken by Aizuddin. For example, the 2019 case of Pendakwa Raya v
Javier Edgardo Silva which I highlighted earlier. In this case, the High Court
referred to the Federal Court 2015 case of Anwar Ibrahim instead of the 2018
Aizuddin case. This shows that the position today has remained unchanged. Even
in the 2020 case of Muhammad Nazrin, the court firstly referred to Kuruma v R
and then distinguished the case of Aizuddin.
 Why I disagree with Aizuddins case

5) The DPP only cited High Court cases in support of his arguments before a
Court of Appeal. If perhaps, the DPP relied on Federal Court cases or even Court of
Appeal cases, we would have seen a different decision.
 Why I disagree with Aizuddins case

6) It must be emphasized that even if the case of Aizuddin is not followed, there
are still safeguards available for evidence that is illegally obtained. One of them
is that such evidence may still be inadmissible if the probative value does not
outweigh the prejudicial effect it has on the accused. Therefore, if the accused
rights were violated significant with regards to the obtainment of evidence
illegally, the court can still choose not to admit it. This position is consistent with
the views taken by R v Sang as well. Another safeguard is that, the accused can
always sue the officer in charge in a separate proceeding for the breach of the
accused rights.
 Why I disagree with Aizuddins case

Based on the reasons, above, I would not follow the case of Aizuddin when it
comes to illegally obtained evidence. Instead the principle that must apply is that
illegally obtained evidence can be admissible as long as it is relevant and that
the court has discretion to exclude such evidences if the prejudicial effect it
has on the accused outweighs the probative value of the evidence. Therefore,
the case of Kuruma v R is still highly relevant and not outdated in light of the
developments of the law we have today.
 Islamic Perpective of Illegally Obtained Evidence
In Islam, we apply the Maqasid Shariah where we try to balance the right of the
State to enforce its laws and also the rights of the individual. Generally, IOE would
be inadmissible.

Surah Nur, verses 27 and 28 which provides:``O you who believe! Do not enter
houses on your own without first announcing your presence and invoking peace
upon the people in the house. that is better for you… and if you find no one there,
do not enter until permission has been given…’’

Furthermore, in a hadith of the Prophet, it is stated, ``….A man should not look
inside a house unless he receives permission.’’ Prophet said, ``He who reads a
letter of his brother without his permission, will read it in Hell.’’
 Islamic Perpective of Illegally Obtained Evidence

However in practice, this right is not absolute as maqasid shariah aims to balance
both rights. Therefore there are mechanism in place to make the searches
lawful such as arrest warrants, search warrants.

The reason why from an islamic perspective there must be balance is due to
several legal maxims such as 1) the public interest is given priority over the
specific interest of the individual 2) between two evils choose the lesser one.
 Islamic Perpective of Illegally Obtained Evidence

As for the Malaysian position, in the Shariah courts, this relates to the concept of
bayinnah. In Malaysia, Ibn Qayyims view is adopted where bayinnah is a general
term that applies to anything which enlightens, explains or clarifies a right or
interest which arguably includes illegally obtained evidence. But it must be noted
that such evidences can be excluded by the court still if the prejudicial effect to
the accused outweighs the probative value of the evidence. But even if bayinnah
is accepted, we have to remember that it must be corroborated with other
evidences as well.
THANK YOU FOR LISTENING!