SECTION 26 of the Evidence Act 1950 (Act 56) gained national attention recently when the police invoked it   in the case of Zayn Rayyan Abdul Matiin. 

Zayn’s mother, Ismanira Abdul Manaf, was brought to the Petaling Jaya Magistrate’s Court to ensure that all evidence and disclosures obtained during the investigation could be used in court. This was done in accordance with Section 26(1) of the Act 56.

What is Section 26 about?

Section 26 provides for the confession by an accused while in police custody not to be proved against him. It states: Subject to any express provision contained in any written law, no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a sessions court judge or magistrate, shall be proved as against that person.

This section is concerned with a confession made by anyone to a third person while in the custody of a police officer. For it to be admissible, it must be made in the immediate presence of a sessions court judge or magistrate. This section also applies to all categories of police officers.

In Lee Yew Seng v PP (1967)1 MLJ 215, the appellants were charged with robbing a goldsmith’s shop. Although there was ample evidence at the trial showing that the appellants took an active part in the robbery, a confession made by the first appellant while in police custody was admitted in evidence. The appellants were convicted. When they appealed, it was held that the confession was inadmissible. 

Ong Hock Thye FJ stated: “Such a confession was manifestly inadmissible and ought to have been excluded. If the maker was in the custody of a police officer and Section 26 of the Evidence Ordinance clearly provides that while in such custody, no confession made by any person, unless made in the immediate presence of a president of the sessions court or magistrate, shall be proved against such person. Here, the evidence clearly showed that the first appellant was in the company and custody of the officer commanding the police district when he made his confession”.

Meaning of ‘custody’

In Sambu v R (1947) MLJ 16, the accused was convicted of being in possession of cloth that was reasonably suspected of being stolen or fraudulently obtained. The prosecution’s case was that two police officers on patrol saw a man walking with a bundle gripped under his armpit. They flashed their torches on him, and the man ran, throwing the bundle over a fence into Keppel Road. The officers caught the man and recovered the bundle, which contained cloth. The accused admitted taking the cloth from Godown 14. However, the accused denied knowledge of the cloth in his defence. He was convicted. When he appealed, it was held that the accused’s statement to the police officer that he had taken the cloth from Godown 14 was a confession made in police custody. 

Brown J stated: There is nothing technical about being in custody. A person is in custody when he is in a state of being guarded and watched to prevent his escape. To determine if the appellant was in custody at the time of the statement, consider what would have happened if he had tried to run away.” (See also PP v Salamah Bte Abdullah [1947] MLJ 178).

Confessions made to a magistrate

Under this section, a confession made to a magistrate is admissible. In Chong Teng v PP (1960)MLJ 153, the appellant was convicted of murder. He made a statement to a magistrate the day after his arrest, with an interpreter’s help. Both the magistrate and the interpreter testified at the trial, and it was clear that the statement was made voluntarily and accurately translated.

It was held that:

1. The statement amounted to a confession, and by reason of section 26 of the Evidence Ordinance, a confession made by a person in custody is only admissible if made in the immediate presence of a sessions court president or a magistrate.

2. In this case, the provisions of section 115 of the Criminal Procedure Code were complied with, and therefore the confession was properly admitted. (Cheong See Leong v Public Prosecutor [1948-49] MLJ Supp 56 followed).

The taking of such confessions is governed by section 115 of the Criminal Procedure Code, which provides that any Magistrate may record any statement or confession made to him and lays down the manner in which such a statement or confession is to be recorded.

However, it must be emphasised that the abovementioned cases were decided when Section 115 of the Criminal Procedure Code (Act 593) was still in force. This section no longer exists, having been repealed in 2007. – June 15, 2024.

* Muzaffar Syah Mallow is associate professor at the Shariah and Law Faculty of Universiti Sains Islam Malaysia.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.