Does an agent provocateur need to be corroborated under the law?
Does Malaysia have an intelligence agency like the CIA or MI6? States usually have their own method of operative centre for matters of intelligence and espionage. What if James Bond was an agent of our own intelligence agency? He would most certainly be an agent provocateur, or in other words, a spy, and not merely an informer. That being said, let there be a hypothetical situation in which Mr Bond and friends were to fumble and be called in the Malaysian courts – does Mr Bond then require corroboration for the evidence given during his testimony before the court? Surely this has never happened in the British film series – having the greatest spy of all times to testify in court as a botched operation always gets concealed in the end. However, in reality, case laws have established on whether it is necessary to corroborate an agent provocateur and an informer. This article provides a comparative analysis of the legal positions in the jurisdictions of Malaysia, United Kingdom and Singapore.
II. The Malaysian Current Legal Position
A. Distinction between an accomplice and an agent provocateur
A distinction should be made between an accomplice and an agent provocateur as different corroboration rules apply.To begin with, the rules of corroboration do not apply for agent provocateurs, as opposed to accomplices. Hence, an accused can be convicted on the uncorroborated evidence of agent provocateurs if the court accepts the truth of the evidence.
It is essential to understand who an agent provocateur is. The Court in PP v Rosli bin Rikidin was aided by the definition found in Black's Law Dictionary (7th Ed.) – an agent provocateur is (1) An undercover agent who instigates or participates in a crime, often by infiltrating a group involved in suspected illegal conducts, to expose and punish criminal activity; (2) Person who entraps or entices another to break the law and then informs against the other as a lawbreaker. Additionally, the Concise Oxford Dictionary (9th Ed.) defines an agent provocateur as a person employed to detect suspected offenders by tempting them to overt self-incriminating action. The question of who an agent provocateur is was also considered in the 2016 decision by the Federal Court in Hari Bhadur Gale v PP. The Court referred to the United Kingdom Report of the Royal Commission on Police Powers and Procedure  Cmd 3297, which defined an agent provocateur as ‘a person who entices another to commit an express breach of the law which he would not otherwise have committed, and then proceeds or informs against him in respect of such offence’. The Federal Court interpreted the aforementioned definition as any person can be an agent provocateur and need not be only a class or category of persons or members of a law enforcement agency. Further, it was held in paragraph 34 of the judgment that:
“There is nothing in the first limb of S.40A(2) of the Dangerous Drugs Act to suggest that it has reversed or limited the common law principle that any person can be an agent provocateur and that only a police or a customs officer can be an agent provocateur. All it does is to highlight a situation (second situation) that even when an agent provocateur is a police or customs officer, any statement made to him by any person shall be admissible as evidence. The Court has no discretion to refuse admitting (as opposed to weight) such evidence.”
The Court in Teja Singh also held the law to be correctly stated in Emperor v Chaturbhuj Sahu which provided a satisfying rule to determine whether a person is an agent provocateur or accomplice:-
“It may sometimes be difficult to draw the line of discrimination between an accomplice and a pretended confederate, such as a detective, spy or decoy; but we think, that the line may be drawn in this way:-- If the witness has made himself an agent for the prosecution, before associating with the wrong-doers or before the actual perpetration of the offence, he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed.”
Apart from distinguishing between accomplice and agent provocateur, it must be noted that an agent provocateur is not an informer. In the Supreme Court’s decision in Munusamy v PP, whether a person is an informer or an agent provocateur depends upon the role played by that person in all the circumstances of the particular case. In PP v Ee Boon Keat, Augustine Paul J (as His Lordship was then) held that while an informer merely supplies information regarding an offence without taking part in it, an agent provocateur participates actively in the commission of the offence. A meticulous examination of the facts of each case is required to answer this question.
B. Effect of non-disclosure of an agent provocateur by the prosecution
Will the non-disclosure of an agent provocateur by the prosecution in the trial be fatal? The issue of non-disclosure was considered by the Federal Court in Wan Yurillhami bin Wan Yaacob & Anor v PP, which held that the informer is protected from giving evidence while an agent provocateur is not. If a person is merely an informer, the prosecution is not required to call him as a witness or offer him to the defence as the informer is protected under a specific provision such as S.40 of the Dangerous Drugs Act. On the contrary, an agent provocateur is required to give evidence in court as a prosecution witness. If he is not called, he has to be offered and made available to the defence. Failure to comply with this requirement will attract the application of adverse inference under S.114(g) of the Evidence Act 1950(Act 56) against the prosecution's case.
Nevertheless, depending on the circumstances of the case, the failure to make an agent provocateur available as a witness to the defence may not always be fatal to the prosecution's case if the agent's evidence was neither material nor relevant.
One of the leading Malaysian authorities on the issue of non-corroborative evidence for agent provocateurs is Teja Singh & Mohamed Nasir v PP. The Court relied on the passages in Roscoe's Criminal Evidence, 15th Edition (p.156) and Phipson on Evidence, 8th Edition (p.478), and also the headnote in Rex v Bickley which stated that “The evidence of a police spy or agent provocateur is not that of an accomplice and does not require corroboration.” This set the pathway for future cases and legislations in Malaysia on agent provocateurs as that line from Bickley continued to be cited until today. There is no doubt that there may be witnesses in any of the categories, as cited in Roscoe’s, who may be wholly unworthy of credit. In Spenser Wilkinson J’s view, however, the credit of any such witness depends upon the facts of each particular case and not upon the particular label which can be attached to him.
The difference in requirement of corroboration between an accomplice and an agent provocateur is enunciated in a passage by Maule J’s judgment from the case of R v Mullins,which was quoted with approval by the Court in Teja Singh:
“An accomplice confesses himself to be a criminal, and may have a motive for giving information, as it may purchase immunity for his offence. A spy (agent provocateur), on the other hand, may be an honest man; he may think that the course he pursues is absolutely essential for the protection of his own interests and those of society… If he does so and if he believes that there is no other method of counter-acting the dangerous designs of wicked men, I can see no impropriety in his taking upon himself the character of an informer. The government are, no doubt, justified in employing spies; and I do not see that a person so employed deserves to be blamed if he investigates offences no further than by pretending to concur with the perpetrators. Under such circumstances they are entirely distinguished in fact and in principle from accomplices, and although their evidence is entirely for the jury to judge of, I am bound to say that they are not such persons as it is the practice to say require corroboration.”
C. Applicable rules on corroboration by an agent provocateur
When an agent provocateur is called upon to testify in court, he is just another witness- his evidence is therefore, subject to the general rules of evidence and procedures, both statutory and common law. However, there is an exception to this general rule when there is a statutory provision to approach a particular category of evidence and witness in a certain manner . Corroboration warning for agent provocateur has been dispensed with in certain statutes. The evidence given by such agents shall also be admissible in trial and that 'admissibility' as opposed to 'weight' is of prime importance. The emphasis on the word ‘shall’ denotes that the court has no longer any discretion to refuse to admit such statement in evidence. These statutes can be referred to in Table 1.1 below.
Statutes which provide for the admissibility of uncorroborated evidence by agent provocateur
Besides, these statutes on specific type of offences also provide for specific rules on the credibility of an agent provocateur. The provisions are usually similar, hence will be reproduced to take their construction as: “No agent provocateur shall be presumed to be unworthy of credit by reason only of his having attempted to commit, or to abet, having abetted or having been engaged in a criminal conspiracy to commit, such offence if the main purpose of such attempt, abetment or engagement was to secure evidence against such person.”
In Hari Bhadur Gale, the Federal Court held that the variations or exceptions in the statutes [S.40A(1) of the Dangerous Drugs Act in this case] serve to remove or minimise the impact of the presumption of credit unworthiness as a witness against an agent provocateur. Such presumption could otherwise be invoked under the general rules of evidence and procedure given the role that he might have played in the commission of the offence in question. Without the subsection, a trial judge may have a basis to exclude such evidence on the ground of prejudicial effect outweighing its probative value, unfairness, abuse of state or executive power and abuse of the court process, or even if admitted, he may give no or little weight to the evidence upon finding the agent provocateur unworthy of any credit as a witness (see also Brannan v Peek).
The Federal Court in Wan Mohd Azman Hassan v PP held that in the case of an agent provocateur’s evidence, the statutory approval for the admission of such evidence as governed by S.40A of the Act, is indisputable. The law is silent on the need to subject such evidence to a balancing exercise although it was argued by the counsel of the appellant to apply such requirement in the interest of fairness, like the position in England. The Federal Court highlighted that the principle of fairness is a double-edged sword. In the fight against the drug menace, Parliament has deemed it fit that such evidence of an agent provocateur is admissible without any restrictions. The trial judge is no longer vested with a discretion to exclude such evidence. Hence, there is no need to corroborate the evidence of an agent provocateur. The court’s role is to only interpret legislations and not adding new elements especially when the words in statutes are clear and unambiguous.
In foreign jurisdictions, agent provocateur is discussed conjointly with the defence of entrapment. Specific provisions in Malaysian statutes have not altered, but reaffirmed the substantive rule of law that entrapment (or use of agent provocateur) does not per se afford a defence to a criminal charge. The Federal Court in Wan Mohd Azman Hassan v PP held that the common law position that entrapment is not a substantive defence remains the law. Moreover, the Malaysian Evidence Act, does not provide for any such exclusionary provision such as that in S.78 of the English Police and Criminal Evidence Act 1984, which shall be discussed in Part III(A) below.
III. Comparative Jurisdictions
A. English position
The issue of protection of members of the public from the activities of undercover police officers and others came under the attention of the government by the government in the beginning of the 20th century. The matter was first considered by the Royal Commission on Criminal Procedure in 1929, followed by the Home Office through its guidelines in 1969 and in 1984.With the advent of the Police and Criminal Evidence Act in 1984 (‘the 1984 Act’), the Association of Chief Police Officers also issued further guidelines to assist in briefing any police officer assigned to work as a test purchase officer.
Post-World War II, one of the authorities on the issue of agent provocateurs was that by Lord Goddard CJ in Brannan v Peek, “It is not right that police authorities should instruct, allow or permit detective officers or plain clothes constables to commit an offence so that they can prove that another person has committed an offence.” However, it is to be observed that Lord Goddard did not say that the evidence of the police officer sent into a public-house to commit an offence should be rejected; and neither did Lord Goddard refer to any exercise of discretion by the court or matters of public policy.
Next came the 1967 position which was found in Sneddon v Stevenson, similar to the Malaysian rule on non-corroboration of evidence by agent provocateur in Teja Singh, “The evidence of a police spy or “agent provocateur” was not that of an accomplice and did not require corroboration”.
The landmark authority before the 1984 Act came in the form of R v Sang. Lord Diplock held that under the English system of criminal justice, the judge does not have the discretion by himself to acquit the accused or to direct the jury to do so, notwithstanding that he is guilty of the offence. A trial judge in a criminal trial always have the discretion to refuse to admit evidence if, in his opinion, its prejudicial effect outweighs its probative value. Except for admissions and confessions and generally with regard to evidence obtained from the accused after the commission of the offence, he has no discretion to refuse to admit relevant, admissible evidence on the grounds that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. In the exercise of discretionary power, it is not a ground to exclude evidence merely because the evidence was obtained from the result of the agent provocateur’s activities.
Nevertheless, the decision in R v Sang on the admissibility of evidence obtained unfairly has not been entirely reversed by Parliament via the introduction of S.78 of the 1984 Act. There is also S.82(3) of the 1984 Act which can be interpreted as to preserve the judge's common law discretion to exclude evidence so as to ensure a fair trial.
In R v Harwood, the Court of Appeal stated that S.78 of the 1984 Act has not abrogated the rule that neither entrapment nor agent provocateur affords a defence to a criminal charge. The rule that entrapment was no defence could not be evaded by the procedural device of preventing the prosecution adducing evidence of the commission of the offence.
The Court of Appeal in R v Smurthwaite & Gill held again that S.78 has not altered the substantive rule of law that entrapment or the use of an agent provocateur does not, per se, afford a defence in law to a criminal charge. A purely evidential provision in a statute, which does not even mention entrapment or agent provocateur, cannot have altered a substantive rule of law enunciated by the House of Lords in R v Sang about 14 years prior. Had Parliament intended to alter the substantive law, it would have done so in clear terms. The right approach to the 1984 Act is to examine the language of the relevant provision in its natural meaning and not to strain for an interpretation which either reasserts or alters the pre-existing law.
Thus, the fact that the evidence has been obtained by agent provocateur does not, ipso facto, require the judge to exclude it. However, should the judge considers that in all circumstances the obtaining of the evidence in that way would have adverse effect as described in the statute, then he will exclude it. The Court of Appeal found that it is impossible to give a more general guidance as to how a judge should exercise his discretion under S.78, since each case must be determined on its own facts.
Regina v Shannon was an application under S.78 of the Police and Criminal Evidence Act 1984 to exclude evidence on the grounds of entrapment. The Court of Appeal held that while the facts and circumstances of such entrapment might be taken into account, the principal focus of the judge's attention had to be upon whether the fairness of the proceedings will be adversely affected by admitting the evidence of the agent provocateur. Other factors which have to be considered are the nature and reliability of the prosecution evidence and the fullness and fairness of the opportunity available to a defendant to deal with the evidence which the prosecution sought to adduce. If the unfairness complained of is no more than the visceral reaction that it is in principle unfair as a matter of policy or of law, then that is not by itself sufficient, unless the behaviour of the police (or someone acting on behalf of or in league with the police) and/or the prosecuting authority has been such as to grant a stay on grounds of abuse of process. There was no general rule requiring a court on grounds of fundamental fairness not to not to entertain a prosecution at all in cases of incitement or instigation by an agent provocateur regardless of whether the trial as a whole could be a fair one in the procedural sense.
It is important to consider that Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (play a crucial role in cases of admissibility of evidence by agents provocateur post-1998. There was a real concern that the adoption of entrapment evidence might contravene an accused's right to a fair hearing under Art.6. The approach by the English courts since then makes it necessary to balance the two competing requirements that (i) those who commit crimes should be convicted and punished, and that (ii) there should not be an abuse of process which would constitute an affront to the public conscience. In such balancing exercise, it will be necessary for the court in each individual case to take into account a number of factors according to their respective circumstances.
B. Singaporean position
Singaporean cases share a similar position to Malaysia on the non-requirement for corroborating evidence by an agent provocateur due to the precedent from Teja Singh. In Lian Teck Chew v Regina, the Singaporean Criminal Court of Appeal held that it is unfortunately true that certain offences can only be detected by the action of this kind by the police and their agents, extending in some cases so far as the commission of actual offences. The propriety of the action is a matter for the authorities concerned, and convictions so obtained are good.
Wee Chong Jin CJ in Cheng Swee Tiang v PP stated that while the Courts have, consistently and without language ambiguity, criticised the use of agent provocateurs, whether they be law enforcement officers or not, the courts have also consistently admitted evidence obtained by such persons provided its admissibility does not operate unfairly against an accused. Both on principle and authority, no absolute rule can be formulated and the question is one that dependson the circumstances of each particular case. The dicta of Ambrose J is also worth noting, “It is one thing to lay a trap for catching a man who has every intention of assisting in carrying on a crime [in this case, public lottery] and quite another thing to instigate a man to assist in carrying on the crime when he has not evinced any intention to do so.”
In the landmark decision of How Poh Sun v PP, Yong Pung How CJ held that the evidence of an agent provocateur cannot be excluded in the exercise of judicial discretion. Further, the defences of agent provocateur and entrapment do not exist in Singaporean law. It is not the province of the court to consider whether the law enforcement agencies [in this case, the Central Narcotics Bureau (CNB)] should have proceeded about its work in one way or the other. The court can only be concerned with the evidence before it.Yong Pung How CJ also stated in two other cases that Courts need not treat the evidence of an agent provocateur (for the purpose of exposing a criminal) with ‘special caution over and above any other witness’ and to hold otherwise would be to place a stumbling block in the investigative methods of our law enforcement agencies.
The Court of Appeal in PP v Rozman bin Jusoh & Anor held that there is no common law or statutory defence of entrapment. A person, who is capable of forming a specific criminal intent and commits an offence owing to the entrapment set up by others can be properly convicted of the offence as if he had committed the offence entirely on his own initiative. If the requisite mens rea and actus reus are present, they cannot be said to have been diminished or eradicated simply because the offender was induced or influenced by an agent provocateur, however active a role such agent provocateur might have played in persuading the offender to commit the offence. If entrapment can be considered at all, it is relevant only insofar as mitigation of the sentence is concerned.
In light of the move by other jurisdictions to remove the corroboration requirement for accomplices and child victims of sexual offences, it is pertinent to consider whether Malaysia should introduce rules to corroborate the evidence given by an agent provocateur.
The need to corroborate evidence by agent provocateurs must be balanced with the political, economic and social conditions of the country. To illustrate, Malaysia is located in the Golden Triangle, a hub for the illegal drug trafficking trade. Requiring corroboration rules would thus burden the enforcement of law and the administration of justice. It is indeed difficult to secure evidence conventionally. Covert activities of drug traffickers are carried out with a high degree of secrecy that, without using this technique of surveillance and investigation, it may be impossible for anti-drugs law enforcers to penetrate into this nefarious underworld activity and identify who the perpetrators are. The act of the police in resorting to this method of using an agent provocateur, though undesirable, is necessary in circumstances where drug trafficking has become a national issue, which may lead to a national crisis. The use of Agent Provocateurs, undercover agents or police spies is now a common method utilized by the police in flushing out and ultimately apprehending drug traffickers.
A memorandum by the Malaysian Bar in 2013 stated that the evidence of an agent provocateur is often frowned upon because he is a particeps criminis.The common law has recognised the dangers of accepting as truth the evidence of an agent provocateur without corroboration as it gives rise to the dangers of fabrication. It violates the concept of fairness and would bring the administration of justice into disrepute. The Malaysian Bar cited the European Courts of Human Rights in Teixeira de Castro v Portugal, which voiced its concern on the use of undercover agents [in this case agent provocateur] and urged for safeguards, “even in cases concerning the fight against dangerous drugs trafficking”. Nevertheless, the ECHR considered that the case must be examined as a whole on its fairness and emphasised that the conduct of prosecuting authorities in the prevention and investigation of criminal offences was primarily a matter for regulation by domestic law.
Nevertheless, Malaysia does not subscribe to Art.6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This is why it is essential to distinguish the English and Malaysian current positions. With such backdrop, it came as no surprise that the House of Lords held in Looseley (supra) that it would be an abuse of process and a misuse of state power if a person were lured, incited or pressured into committing a crime which he would not otherwise have committed. It is, however, important to note that the House of Lords also made it clear that active complicity by the State or its agents did not always necessarily equate an abuse of executive power warranting the attendant consequences. Lord Nicholls speech in Looseley stated at paragraph 3 that “In some instances, a degree of active involvement by the police in the commission of a crime is regarded as acceptable. Test purchases fall easily into this category.”
In conclusion, the law should remain as it is and there is no need to corroborate the evidence of agent provocateurs in Malaysia. The Courts should always take into consideration the facts and circumstances which are unique to its case. People must refuse to commit a crime even if tempted or invited to do so. The fact that a defendant would not have committed an offence but for the activity of an agent provocateur should never be a defence. A man who intends to commit a crime and did commit the crime is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom. It would moreover be seriously detrimental to public safety, and law and order if in such circumstances, the law immunised an accused from conviction. Lord Alverstone CJ in R v. Mortimer observed, “I do not like the police traps any more than does anybody else, but at the same time there are some offences the commission of which cannot be found out in any other ways, and unlawful acts were done in consequence of the trap are nonetheless unlawful.”
Written by Erique Phang Li-Onn, a final year law student of the Faculty of Law, University of Malaya.
Edited by Rachel Ng and Nurul Zafirah Jaya.