CPC - Police Investigation

What does Sec 51A state

(1) That BEFORE a trial begins, the PROSECUTION MUST SUPPLY THE DEFENSE with the following documents (a) INFORMATION made under Sec 107 in connection with the offense (b) a COPY OF ANY document that the Prosecution is tendering as evidence (c) written statement of FACTS FAVORABLE to the Accused signed by the PP or the Prosecution (2) But NOT if the statements of FACTS would be contrary to PUBLIC INTEREST (3) Document is STILL Admissible as evidence DESPITE Non-compliance with Sub-Sec (1) (4) The Court can EXCLUDE ANY DOCUMENT delivered AFTER the trial has commenced if it shows that the delivery was DELIBERATELY and in BAD FAITH (5) If the document is delivered AFTER the commencement of the trial the Court MUST (a) give the Accused REASONABLE TIME to EXAMINE the document (b) allow the Accused to RECALL/RE-SUMMON/EXAMINE ANY WITNESS in relation to the document

How is a First Information Report supposed to be handled under Sec 107(1) - (4) of the CPC

(1) given ORALLY to an OIC AT the police station and MUST be put in writing by the OIC / under his direction & READ BACK to the informant (2) EVERY such information must be ENTERED INTO A BOOK kept by the officer (Police Investigation Diary - PIC) who must state - the DATE & HOUR the info was given - the report must be SIGNED by the INFORMANT (3) (a) If it was given while the officer was NOT AT the Police station, it will be regarded as if he was (3) (b) the officer must RECORD or HAVE IT RECORDED : - name & address of the informant - date and time of receipt of info And must PASS that info along to the OIC at the Police station or any OIC whose duty it is to accept i.e. The investgating officer (3)(c) the information given outside the police station must : - reduce to writing - entered into the PIC per (1) & (2) - signed by the informant (4) Police officers are DUTY BOUND to recieve ANY information relating to ANY OFFENSE committed ANYWHERE in MALAYSIA.

What are the legal implications of RE MOHAMMAD EZAM

1) 'save in accordance with law' in Art.5(1) requires that there must be specific and explicit law that actually provides for ARREST and DETENTION of a person for the PURPOSE OF INTERROGATION and/gathering INFORMATION. Since the Constitution is the supreme law of the Federation, such a strict interpretation is to be applied in interpreting s 117 of the CPC. 2) There is no room for a permissive interpretation that a deprivation of the liberty of the suspect to enable the police to question or to interrogate him is allowed because there is no law against it when Sec 117 of the CPC itself does not make it clear. 3) although section 112 empowers the police to examine a witness, it does not empower the police to arrest a witness for the purpose of examining him, let alone interrogate him. 4) Arresting a witness and keeping him in custody to answer questions under s 112 of the CPC or to be interrogated is such a novel, even radical, development to criminal procedure that there must be express words in the section so as to authorize it. 5) That the legislature chose to use terms other than 'interrogate' is clear indication that the legislature does not intend to retrogress to the laws of the age of inquisition under the courts of the Star Chamber. Interrogation in the sense of questioning aggressively is not simply asking questions, but questioning and insisting upon an answer until the interrogator is satisfied with his answers. The dangers of placing a person under remand so as to be so interrogated are heightened because he is not at liberty to walk out and walk away from such interrogation. Common law has held that statements gathered under duress are not credible and should not be given weightage or indeed be admissible. 6) whilst cooperation in investigations is a factor to be taken into account for mitigation in sentencing, non-cooperation is not a factor for enhancing sentence as it would negate his right to remain silent. 7) There is therefore, no basis to hold a person in custody until he cooperates. No matter how guilty a person may be, he is entitled to a trial where the burden is entirely upon the prosecution to prove, beyond reasonable doubt, that he is guilty of the offence with which he is charged. 8) s 117 of the CPC does not authorize the remand of a person for the purpose of questioning him aggressively (interrogating) because ss 112 and 113 of the CPC do not in any case authorize interrogation of a suspect, and he may be questioned systematically (examined) only if he had been cautioned. A remand order for the purpose of interrogating a suspect, or examining him without showing he has been cautioned is therefore bad in law. 9) The hearing serves the purpose of establishing clearly what are valid and what are not valid reasons for the making of a remand order. It also shows that remand orders must not be taken lightly, but must be scrutinized judicially. It is important to state which reasons are accepted when making the remand order because then the police will have proper guidance what the remand is for.

What is the implication of Sec 107 A

1) A REPORT of the status of the investigation must be supplied to the PP

What are the case facts of KING EMPEROR v KHAWAJA NAZIR AHMAD

1) A man passed away leaving property including a business that was continued to be run by his widow and children 2) one of his sons, Sheikh M Saleh wished the liquidation of the estates assets and division between siblings. He sought and obtained KHAWAJA NAZIR AHMAD as the receiver appointed by the Crown, believing he would be able to influence him to obtain for Saleh, extra monies from the estate. 3) It turns out that KHWAJA NAZIR AHMAD was not so easily influenced and in frustration, Sheikh M Saleh sought to have him removed as receiver by a civil suit. The civil suit was unsuccessful, but KHWAJA NAZIR AHMAD resigned voluntarily from the post. 4) Sheikh M Saleh with a brother then sought to again have the estate liquidated, the Court re-appointed KHWAJA NAZIR AHMAD in order to ascertain the true circumstances of the estate. 5) Incensed, Sheikh M Saleh proceeded under a number of continuous acts to persecute and interfere with KHWAJA NAZIR AHMAD's duties. Including having his solicitor Mr Gulab lodge 2 criminal reports against KHWAJA NAZIR AHMAD. Resulting in his books on the estate being confiscated twice during police investigations. 6) During trial, the court held that KHWAJA NAZIR AHMAD was a servant of the Crown, carrying out his duties and could not be removed or prevented from his work without the Crown's assent. 7) BUT it also held that the accusations against KHWAJA NAZIR AHMAD were NOT of the Non Seizable criminal kind, but rather on the SEIZABLE criminal variety. As such, the police do not have to wait for a Magistrates order to proceed with investigation and may act on some information of their own or credible informant.

What is the procedural and legal implication of Sec 107 A

1) A person who made the FIR can ask for a report of the status of the investigation from the OIC 2) That report must be given no later than 2WEEKS from the time the request is RECEIVED 3) BUT the OIC is NOT required to give a report if a) the offense is a SEIZABLE OFFENSE b) if 4 WEEKS have PASSED SINCE the FIR was MADE c) if the report would end up containing information that could negatively impact the investigation or the prosecution 4) Incidentally, unless (3) is the issue, if the report by the OIC isn't given by 2 WEEKS FROM THE RECEIPT OF REQUEST by the FIR maker, that person can complain of the failure of the OICE to give him/her a status report to the PP 5) When the PP RECEIVES such a complaint, the PP will direct the OIC to give the PP a DETAILED STATUS REPORT 6) the PP shall then ensure the informant is furnished the status report as directed by the PP by the PP's office or by the OIC

What are the implications of Sec 180

1) A refusal to sign the FIR is an OFFENSE

What are the case fact for ANTHONY GOMEZ v KETUA POLIS DAERAH KUANTAN

1) ANTHONY GOMEZ was charged with criminal intimidation of one Mr V Bernard Vas. An FIR was made and his solicitors sought access to the FIR to determine the details of the complaint made against him. 2) The Legal Advisor to Kuantan who was the DPP and the KETUA POLIS DAERAH KUANTAN denied ANTHONY GOMEZ's lawyers any access to the FIR. So they took it to the HC and then the FC. 3) At the FC it was held that - the FIR IS A PUBLIC DOCUMENT under Sec 74 of the Evidence Act - there is a common law right to inspect the document gng as far back as 1888 in the case of MUTTER v EASTLAND AND MIDLANDS RAILWAY CO. - Sec 76 of the Evidence Act makes the FIR admissible as evidence in Court - This is echoed in Sec 108A - As such, Sec 77 of the Evidence Act gives the Accused or interested parties the right to a certified true copy of the FIR - If this common law right is to be limited at all, it is still open to interested parties, an accused person by way of the FIR would be such an interested party as his liberty is at stake.

What are the requirements of Sec 120

1) All police investigations have to be completed WITHOUT UNNECESSARY DELAY and unless told by the PP otherwise the IO MUST submit a REPORT to the PP OF THE investigation TOGETHER WITH THE INVESTIGATION PAPERS within ONE WEEK of the expiry period of 3 MONTHS from the date of the FIR 2) despite this the PP can at any time (EVEN IF THE 3 MONTHS EXPIRY PERIOD has not occurred) order the IO or the OIC to submit a report in the form of the SECOND SCHEDULE OF THE CPC AND the INVESTIGATION PAPERS ( Form 26?)

What were the legal ramifications of the HC decision of PP v RAMASAMI A/L SIMMATHRI

1) An accused person doesn't NOT have a right to PUBLIC DOCUMENTS classed as PUBLIC DOCUMENTS by Sec 74 & Sec 75 of the Evidence Act if they were not made by him 2) POST MORTEM, DNA, FORENSIC and EXPERT WITNESS reports while documents made during the course of the investigation. Are by professional witnesses and so THERE IS NO FEAR OF THEIR BEING TAMPERED WITH and YET the accused is STILL NOT allowed access vide Sec 51 of the CPC bcs Sec 399 states that these documents may only be tendered as evidence if they are SERVED ON THE ACCUSED NOT LATER THAN 10 DAYS PRIOR TO TRIAL As such the accused may ask for time to review and prepare DURING THE TRIAL (Speed and Efficacy as well as Nexus to INVESTIGATION in SC : DATUK THIA THEE KIAN NOT followed) 3) Accused is also NOT ALLOWED access to STATEMENTS BY HIS CO-ACCUSED made under Sec 112 due to the FEAR OF WITNESS TAMPERING

What are the case facts of PP v ABDUL RAZAK BIN JOHARI

1) An off-duty Narcotics Dept police officer saw ABDUL RAZAK BIN JOHARI. At a bus stop in KL acting suspiciously while carrying a bag. He arrested ABDUL RAZAK BIN JOHARI and while searching him, found he had 1000 rolled up sticks of ganja. 2) The police officer took ABDUL RAZAK BIN JOHARI back to the police station where the police officer filed a police report and another officer took over the investigation. 3) The chemist report came back saying that the rolled sticks were 283g of cannabis. ABDUL RAZAK BIN JOHARI was charged with trafficking in dangerous drugs. But the FIR was not tendered as evidence and the off-duty Narcotics Dept police officer was the SOLE WITNESS at the scene. 4) This meant that the Accused could not cross examine the officer based on the FIR, and the FIR recorded things while the witness's MEMORY WAS STILL FRESH. 5) Failure to tender the FIR although it could easily have been, raised the presumption that it was detrimental to the Accused under Sec 114 of the Evidence Act. This undermined the weight of evidence against the accused and failed to establish a prima face case.

What are the case facts of PP v RAYMOND CHIA/ZAINAL ABIDIN v PP

1) Both accused had been charged with forgery of letters of credit and other documents which allowed them to obtained RM2.4 mil. 2) They both sought documents from the PP. RAYMOND CHIA wanted to inspect documents generally, ZAINAL ABIDIN wanted to inspect document specified and unspecified, the cautioned statements, FIR and 5 documents stated in the charge but their application was not clear with regards to which law they were applying (should be Sec 51). 3) During their appeals their request was allowed despite their application not being in the standard form, in so far as to enable the accused to know the particularities of the charge against them in order to prepare their defense. 4) The PP appealed against the judgement and it was held that you CAN APPEAL A FINAL JUDGEMENT OF SEC 51 UNDER SEC 307 of the CPC 5) In deciding on Sec 51 the Court will consider Sec 152, 153, 154 relating to FRAMING OF THE CHARGE in the CPC bcs the onus is on the PP to frame the charge with SUFFICIENT PARTICULARIZATION 6) Sec 51 is entirely the DISCRETION OF THE COURT. If it is before the trial, it should not be used to allow PRE-TRIAL DISCOVERY. So the Court will consider JUSTICE in the case. 7) An ACCUSED SHOULD HAVE SUFFICIENT NOTICE of WHAT IS ALLEGED against him to allow him to prepare a SUFFICIENT defense. AS LONG AS THE LAW IS SATISFIED, THE COURT IS SATISFIED. 8) If Sec 51 is applied for DURING THE TRIAL the RULE OF RELEVANCY applies as to what documents can be called and possibly shared with the accused. 9) The Court held that the appeals were wrong and the accused were not entitled to copies of specific documents as allowed by the lower courts. Bcs the judges were not exercising their inherent powers properly under Sec 316(c) of the CPC - not altering or reversing an order. 10) UNLESS the Accused applies for documents SPECIFIED IN THE CHARGE UNDER AN APPLICATION OF SEC 51, the request is liable to be SET ASIDE. And if it is successful, even then it is THE DISCRETION OF THE COURT.

What are the case facts of DATO THIA THEE KIAN

1) DATO THIA THEE KIAN and Ms Khoo were charged with aiding and abetting a Dato Soh in defrauding and procuring almost RM500 mil Uniphoenix Corp shares using funds from the margin accounts of a company called Omega Securities. 2) the charges of aiding and abetting Dato Soh were blandly made out and Dato Soh had disappeared. 3) the prosecution were relying on documents held at the Securities Commission 4) DATO THIA THEE KIAN and Ms Khoo's lawyers sought access to make copies of specifically five documents at the SECURITIES COMMISSION 5) At no time would the evidence possibly be tampered with and in no way would witnesses be intimidated, therefore the prosecution would not be unfairly disadvantaged by access. 6) However without access, DATO THIA THEE KIAN and Ms Khoo would be prejudiced in preparing for the trial. Any tendering of evidence DURING THE TRIAL WOULD CREATE DELAYS. And the case was of a COMPLEX NATURE. 7) Therefore the court held that the GENERAL RULE in RAYMOND CHIA interpreting Sec 51 could not be applied, an exception was required in the interests of justice. 8) The Court held that it was empowered to order the production of the evidence or access to it as it was at the time held to be NECESSARY and DESIRABLE, forming part of the PRIMARY SUBJECT MATTER and a CRUCIAL EVIDENCE. And that since the DATO THIA THEE KIAN and Ms Khoo had SPECIFICALLY STATED which documents, and that the documents would be at all times with the Securities Commission. The exception could be created.

DATUK SERI ANWAR IBRAHIM v PP (2010) HC

1) DATUK SERI ANWAR IBRAHIM sought access to video recordings of the scene of the crime (CCTV) both before and after the date of the alleged offense, copies of medical examination notes, copies of chemists notes, copies of any document or video recording of the witnesses (a Sec 112 matter) and access to the DNA samples brained at the sepossed screen of the crime. 2) the HC held that previous cases with regards to access to documents were decided prior to the inclusion of Sec 51A which was included in order to ensure that the defense were supplied with evidence and information to enable the to prepare a complete and orderly defense as well as ensure fairness and speed of the trial. 3) Thereof, the HC granted access to such copies. Giving effect to Sec 51A and bearing in mind Sec 51. Stating that their production to the defense in the present case did not prejudice the case for the prosecution nor was it against public interest. 4) As to witness statements under Sec 112 which traditionally are held as not accessible in order to prevent tampering of witnesses, the court held that given the PECULIAR nature of the present case, it would allow the defense copies of their statements and a list of the witnesses that were gang to be called by the PP under the Court's discretion of Sec 51 and in tandem with the statutory requirements of Sec 51 A 6) Further it held that the provisions of Sec 51 A should be adhered to and that PP should furnish the defense per the requirements of 51A 7) But that since the DNA samples were now sealed, to protect the chain of custody and credibility of evidence, the defense would not be able to obtain or inspect samples of the DNA which were being held at the National Chemistry Dept, though they would have access to the working notes and the report of the chemists.

What are the case facts of PP v FOONG CHEE CHEONG

1) FOONG CHEE CHEONG and a colleague went to a Methodist Girl School and threatened the supplier of biscuits and sweets with violence unless they paid him protection money of RM10. 2) There were three of the suppliers, a father and son and a relative. The relative stayed with FOONG CHEE CHEONG while the father and son ostensibly went to obtain RM10. Instead, they went to a police station and filed an oral report. 3) The OIC feeling that were he to reduce the oral report into writing and read it back to the father, instead gave him a RM10 note which the OIC signed and ordered one detective constable and one constable to accompany the father and son back to the school. 4) There they waited in the supply van observing the father give the note to FOONG CHEE CHOONG in exchange for his relative's safety, upon which the officers arrested FOONG CHEE CHEONG for extortion. 5) Later, back at the police station, the oral report was then reduced into writing after the investigation and arrest had been started. And so could not be used as evidence against the accused FOONG CHEE CHEONG. 6) The magistrate threw out the case on the issue that the FIR had not been reduced into writing per Sec 107(1) 7) But on appeal, the HC followed KING EMPEROR v KHWAJA NIZAR AHMAD and held that the FIR was not substantive evidence and the police COULD PROCEED on informal credible information that genuinely leads them to believe a SEIZABLE offense had been committed. Failure to turn the FIR into writing in the circumstances (time was of the essence) did not provide grounds to throw out the case. FOONG CHEE CHEONG was ordered to be retried under a different Magistrate.

What are the case facts for KHOO SIEW BEE v PP

1) KHOO SIEW BEE and another were charged under the DDA for custody of a dangerous drug in an increased amount. 2) KHOO SIEW BEE and the other accused had given statements to the police under caution and while under investigation. Under Sec 113 of the CPC, these cautioned statements were admissible evidence. 3) KHOO SIEW BEE's defense lawyer sought access to copies of the cautioned STATEMENT. 4) The Court held that under Sec 74 the CAUTION STATEMENTS were PUBLIC DOCUMENTS bcs a confession made to a judicial officer like a magistrate or a police officer while under investigation FORMS the ACT or RECORD OF DUTY of the judicial officer or police who is UNDER A DUTY TO RECORD IT. It is therefore a Public Document. 5) Under Sec 76 of the Evidence Act, a member of the PUBLIC who can show a DIRECT AND TANGIBLE interest in the public document is entitled to obtain a copy and examine the public document BEFORE THE COURSE OF THE TRIAL. 7) As these were statements that were to be used as evidence in their trial, made by them and signed, KHOO SIEW BEE had a direct and tangible interest and so was entitled to access to this public document. And there was no fear that there would be an intimidation of witness as a result of access to their own statements. 8) However the Court held that this DOES NOT APPLY TO STATEMENTS MADE BY OTHER WITNESSES.

MUZAMMIL IZAT BIN HASHIM v PP

1) MUZAMMIL IZAT BIN HASHIM was accused of rape. He sought for the documents relating to his charge; consisting of the witness statement testimony, co-accused statements, sketch of the crime scene, professional reports, DNA reports etc. 2) the hearing for the APPLICATION of these documents was brought fwd. MUZAMMIL IZAT BIN HASHIM's counsel applied for time and were denied this. They then payed to the HC to exercise its revisionary powers. 3) the HC held that in essence what MUZAMMIL IZAT BIN HASHIM was seeking was the exercise of powers under Sec 51 although the proper procedure to invoke it had not been followed (what is the proper procedure?) 4) The HC stated that exercise of Sec 51 was subject to : - THE JUSTICE OF THE CASE - THE STAGE OF PROCEEDING 5) It also FURTHER stated that the Accused was not entitled to copies but had to make them himself per case law. And that the Accused was not allowed to know the MODE BY WHICH THE PP SOUGHT TO PROVE the CHARGES, as that would amount to pre-trial discovery (so what is allowed?) 6) Also it stated that that the APPLICATION should be made BEFORE the court that was TRYING THE CASE as that court would have the ability to see the justice of the case (see the evidence first hand. I think, confirm it)

N INDRA P NALLATHAMBY v PP

1) N INDRA P NALLATHAMBY was the mother of a person who died while in police custody, his name was Kugan Ananthan. N INDRA P NALLATHAMBY was dissatisfied with the results of the post mortem by Serdang Hospital . As such she requested and paid for PPUM to conduct a second post mortem under the supervision and completion of Dr Prasahnt. 2) On 6 April 2009 the police sought an order for search and seizure of 70 parts of Kugan Ananthan's body, his blood, urine, stomach contents and any original documentation including the memory card of such documentation. The request was made under Sec 54(1)(a) at the PJ Session Court and was issued by the Registrar who made two conditions on the warrant : A) that it must be executed within 3 days B) that the items seized were to be presented to the Magistrates Court forthwith 3) ASP MAarzuki who applied for the search warrant then proceeded to exercise it and seized these items and Kugan Ananthan's remains from PPUM. His blood and stomach contents were sent to Jabatan Kimia, his urine was sent to IMR. All the items were returned to ASP Marzuki by 4.30pm the same day. But ASP Marzuki did not surrender the items of Kugan Ananthan's remains to the Magistrates Court as was directed in the warrant, rather he kept them. 3) N INDRA P NALLATHAMBY then applied for the search order to be revised on 4 Sept 2009, the hearing was postponed until 11 Sept at the request for the DPP. 4) The Court held that a search warrant was a very drastic measure as it infringed on the right of property and privacy of the citizen and that bfr one can be issued, a judicial deliberation of its necessity must be made. However, the Registrar was empowered to issue a search warrant as a Registrar was inter alia a Second Class Magistrate and the court held that such power existed somewhere between Sec 83(a) and Sec 83(b) of the SCA. Applicant of intelligent deliberation and judicial reasoning was apparently evinced by the two requirements the Registrar made. 4) The next point was that ASP Marzuki was wrong in law for seeking a search warrant under Sec 54(1)(a) of the CPC when there was no proof that FIRST an order had been made and properly delivered under Sec 51 of the CPC. Sec 51 takes precedence BEFORE Sec 54 can be applied. 5) Next the locus standi for N INDRA P NALLATHAMBY as brought into question by the DPP. But the Court held that as the mother of Kugan Ananthan, N INDRA P NALLATHAMBY had a right to apply for his remains to be released to PPUM so that the post mortem she had requested could be complete. Unfortunately, the DPP informed the court that a police officer was being charged in the subordinate courts for the death of Kugan Ananthan and so the PP's office sought to retain the remains as evidence that may possibly be used in their prosecution (including the 70 parts of his body, blood, urine, stomach contents and not just the pathologist's report?) 6) As such the Court ordered that the search warrant be complied with and the remains seized were to be presented before a Magistrates Court for the MAGISTRATE TO DETERMINE WHETHER N INDRA P NALLATHAMBY could have the remains of her son back to finish the second post mortem she had requested or whether the PP could keep the remains of her son for their prosecution case.

What are the case facts of PP v PARDEEP SINGH

1) PARDEEP SINGH and Ricky went back to the Oxford Hotel at 3am to demand payment from a Caucasian male guest for girls that Ricky had introduced him to. 2) At the Hotel, there was a refusal by the guest. Resulting in Ricky breaking a bottle while PARDEEP SINGH stood nearby. The guest called the front desk Mansger who, together with the Security Manager went to the fourth floor, where Ricky and PARDEEP SINGH were and requested that Ricky and PARDEEP SINGH follow them to the ground floor. 3) During this time Ricky and PARDEEP SINGH shouted repeatedly upon which the Manager asked that they keep their voices at a lower level so as not to disturb the guests. They did not. PARDEEP SINGH said that he would remain until Ricky was paid. Upon which the Manager telephoned the police. Ricky said he was going back to the Fourth floor. He took the lift upstairs and disappeared. 4) On the phone with the police, the Manager in the FIR said that there had been a fight involving three people at the hotel, one of whom was a guest. 5) Two police officers came to the Oxford Hotel, they searched for Ricky but could not find him. And they arrested PARDEEP SINGH for criminal trespass. The Magistrate dismissed the charges and held that the FIR not being written or the same as the testimony given by the Manager of what he did and saw personally was integral. 6) On appeal, the court held PARDEEP SINGH guilty. And stated that: the FIR does not need to fulfill the entire the case but merely be sufficient to inform the police of a SEIZABLE offense in order to make the police act. The form of the report only requires BRIEF DETAILS informing the time, date and place. It does NOT REQUIRE ELABORATE DETAILS and if they are not mentioned, it is irrelevant. Any discrepancy btwn the FIR and testimony will go towards impeaching the credibility of the informant.

What are the case facts and law made by PP v RAMASAMI A/L SAMATHRI

1) RAMASAMI A/L SAMATHRI was accused of the murder of 5 people along with a co-accused but the charge did not specify how the were supposedly killed or who they were 2) RAMASAMI A/L SAMATHRI applied to the court under Sec 51 of the CPC and in the alternative via definition and right to access of public documents under Sec 74 & 75 of the Evidence Act for access to the post mortem reports, dental records and forensic reports in order to prepare his defense 3) the court held that while these were public documents, he had no right to access or to have copies bcs they were not made by him 4) the court held that while they were necessary and desirable to the investigation under Sec 51 of the CPC, the Court was constrained by Sec 399 of the CPC making the documents admissible only if service is made 19 days prior to trial on the accused. Despite the prior law stating that admissibility or relevancy was not the preceding factor, material interest at the time was. 5) further the court held that the Accused was only entitled access to documents made by him or which were made about him like medical reports or a document admissible by the prosecution/defense DURING TRIAL but not if it was for the purpose of impeaching a witness in pursuant to Sec 145 of the CPC in which case the procedure as laid out by MUTHUSAMY and HUSDI's case applied.

RETNARASA ANARASA v PP

1) RETNARASA ANARASA sought various documents including medical reports and the post mortem report to be released to him too, during an inquest into the death of his wife. The Magistrate held that this was not allowed until the chief medical witness gave evidence (so only allowed to impeach credibility of the witness) 2) RETNARASA ANARASA appealed to the HC against the Magistrates order. The HC allowed the request (by now watered down to just a request for the post mortem report) 3) The HC held that the Practice Directions to Judges 2007 NO. 1 titled "Guidelines on Inquests" stated that documents should be released AS THE NORM and to proceed otherwise required the judge to report as to why he/she was departing from the norm. The Practice Directions 2007 had the force of law as they were enacted by the then Chief Justice per Sec 4, Sec 59(3) and Sec 76(3) of the Subordinate Courts Act read with Sec 35 of the Courts of Judicature Act. 4) In addition the judge noted that Sec 51A was enacted to give effect to "the changing trend in criminal procedure with regard to pre-trial discovery". The HC held that Sec 51A should be read TOGETHER with Sec 51 and that Sec 51A was not confined to trials alone bcs per Sec 51, "enquiries" also came within the purview. 5) In addition, bcs this was an INQUEST AND NOT A TRIAL. Where the search for the truth and investigatorial rather than an adversarial approach was to be taken. There was no reason to fear embarrassment or prejudice. If in an adversarial situation documents are allowed to be shown to the other side, what more in an investigatorial circumstance. Especially in an era of "transparency". 6) POINT TO RMBR : THIS WAS AN INQUEST NOT A TRIAL

What happens if its a SEIZABLE /SUSPECTED seizable offense

1) Sec 109 - A SARGEANT can begin to investigate w/o an order from the PP AND 2) Sec 110 - MUST REPORT to the PP and carry out investigation or arrests him/herself or deputise another officer but that officer wont have the same powers as the SARGEANT/OIC * Note : if the SARGEANT/OIC feels there are INSUFFICIENT GROUNDS to proceed, he/she will cease and RECORD REASONS

What are the legal implications of Sec 111

1) Sec 111(1) gives the Investigating Police Officer the power to order the attendance of a witness attendance / or a person who is a possible witness before him - through an ORDER IN WRITING (2) If that person does NOT ATTEND before the IO, the police can report the refusal to the MAGISTRATE who has the DISCRETION to issue a warrant to secure attendance

What are the legal implications of DATUK SERI ANWAR IBRAHIM v PP 2010

1) Sec 51 A is a statutory requirement that imposes an OBLIGATION on the PP to furnish the defense with certain materials and documents 2) Sec 51 A has no relation to Sec 51 3) Sec 51 is a Court Discretionary Power to order the production of documents and materials that are desirable and necessary to the investigation in the interest of the smooth running of the trial with consideration to the justice of the case 4) This means that Sec 51 does PROVIDE FOR DISCOVERY (PRETRIAL) but only in CERTAIN CASES 5) BUT these documents have to not only be held NECESSARY AND DESIRABLE for the investigation by the COURT but also be SPECIFIED IN THE CHARGE and so as seen, the scope can be narrow and subjective according to the view of the judge 6) if the application is made pre-trial (BEFORE WITNESSEs are called to lead evidence) then the application is confined to documents SPECIFIED in the charge or in relation to the framing of the charge with a mind to Sec 152, 153, 154 on the particularization and specificity of charges. 7) Raymond Chia and Husdi are still good law. sec 51 A not to be interpreted liberally, Niether Sec 51 bcs prosecution do not need to share with the acccused exactly how they plan to PROVE THE CHARGES.

What is the implication of Sec 108 A of the CPC

1) The FIR is admissible as evidence of the TIME, PLACE + MANNER in which the offense supposedly took place and its CONTENTS vide a CERTIFIED TRUE COPY 2) BUT it is NOT evidence of the TRUTH

What are the Legal implications of DATO THIA THEE KIAN v PP

1) The GENERAL RULE is that the Accused is only allowed to have access to documents SPECIFIED OR REFERRED TO in the CHARGE per RAYMOND CHIA v PP 2) BUT the EXCEPTION to this Rule is where a) the documents are SPECIFIED BY the ACCUSED b) the prosecution has admitted that it would be relying on these documents c) the thing called for has SOME RELATION TO or CONNECTION WITH the SUBJECT MATTER of INQUIRY or supplies some LINK in the CHAIN of EVIDENCE i.e. ANYTHING that can REASONABLY be regarded as forming PART OF THE EVIDENCE in the CASE can be ORDERED to be produced. That is the PRIMARY OBJECT of these provisions (Sec 51 of the CPC) so long as it is considered NECESSARY/ DESIRABLE for the PURPOSE OF INQUIRY the power to order production is there. The important thing is that AT THE TIME it APPEARS to be RELEVANT. 3) it would depend on the CIRCUMSTANCES OF THE CASE but here the CHARGES were COMPLICATED involving documents relating to many COMPLEX Transaction 4) It is pertinent in the interest of justice that THE ACCUSED BE SUFFICIENTLY INFORMED as to the nature of the charge which includes IN WHAT WAY he/she allegedly committed the offense in order to answer / PREPARE A PROPER WND ORDERLY DEFENSE. This means more than mere date, time, places or people. 5) BALANCED the interest of a fair and speedy trial (PROPERLY AND ORDERLY DEFENSE) against any PREJUDICE TO THE PROSECUTION's CASE + PUBLIC INTEREST

What was the decision in RE MOHAMMAD EZAM

1) The nature of the offence for which he is investigated is of planning and organizing daily public demonstrations in the streets and involved the connivance, cooperation and participation of many other persons. It is obvious that such investigations would take time, and his release would jeopardize the investigations. In the circumstances, the initial remand of four days cannot be said to be unnecessary. (Doesn't this conflict with the constitutional right to Freedom of Assembly and Freedom of Expression)

What are the legal implications of HUSDI v PP 1980

1) The reason for taking witness statements/police statements is to collect evidence regarding the FIR and to determine whether or not to pursue charges against the Accused. 2) At the end of the investigation the Police must report to the PP under Sec 120 of the CPC 3) In the 1980 case, it was held that the defense may be furnished with the police statement TO IMPEACH THE CREDIBILITY OF A WITNESS but it MUST FIRST REQUEST THE COURT, who will then examine the witness statements and only if there is a material discrepancy, MAY order that the defense be furnished with a copy. 4) This assertion was made on the basis that Malaysians are fearful people, afraid of committing their civic duty and will be deterred from reporting or giving information if it is likely that the information will be furnished to the defense who need to assert the right of the accused. (BUT ignores the fact that the defense would have no knowledge of the witnesses statements discrepancy (in order to impeach them) as they don't have access to it)

What does Sec 51 of the CPC state?

1) WHENEVER any COURT/POLICE OFFICE in the course of an investigation believes that any property/document is NECESSARY/DESIRABLE for the purpose of any INVESTIGATION/INQUIRY/TRIAL or OTHER PROCEEDING UNDER THE CODE. - THE COURT can issue a summon - The POLICE OFFICER can issue a written order To the person who they believe has possession of the required item, to require that he attends and produces the item at the time and places stated by either the Court/Police Officer in the Summons/Written Order 2) Any person who falls within this category but is only required to PRODUCE the item is deemed to HAVE COMPLIED if he causes the item to BE PRODUCED INSTEAD OF ATTENDING PERSONALLY to produce said item 3) The section does not impact any legal provision relating to Evidence or postal article, telegram, other document in postal/telegram authorities possesssion (WHY?)

What are the case facts for UTHAYAKUMAR PONNUSAMY v PP

1) the investigating office was DSP Gan but the serving officer was a Corporal who DSP Gan had farmed the service out to. 2) ORDER was held unlawful

What are the legal implications of UTHAYAKUMAR PONNUSAMY v PP

1) the order in writing of the OI must be served by the OI himself onto the person sought to order attendance.

What are the case facts of PP v SERIDARAN

1) the police proceeded in investigating a NON-SEIZABLE case w/o the OTI 2) at trial the issue of the OTI was raised and PP were asked to produce it. They could not. 3) MAGISTRATE nullified the trial and acquitted the accused. 4) on APPEAL the HC Judge held that - it's not a requirement that the PP produce the OTI - ILLEGALLY OBTAINED EVIDENCE IS STILL RELEVANT IN THE PUBLIC INTEREST - what will happen instead is a DISCHARGE NOT AMOUNTING TO ACQUITTAL and the accused may be tried again

What are the case facts of LOO FOO SIANG v KETUA POLIS DAERAH BUTTERWORTH.

1) this was a civil case rather than a criminal case. LOO FOO SIANG was hit by a motorcycle gng in the opposite direction and was seriously injured. He was therefore attempting to prepare his case. All the documents except the FIR were supplied to his lawyers on the basis that he was not the maker of the FIR. 2) LOO FOO SIANG sued the KETUA POLIS DAERAH BUTTERWORTH and the court held that - the FIR is a public document and therefor open to the public to make use of per the definition of "public document" per EARL JOWITTS DICTIONARY OF ENGLISH LAW - LOO FOO SIANG is an interested party irrespective of whether he is involved in a criminal or civil matter bcs "interest" has yet to be limited by legislation - Unless there is legislation or it goes against public interest, public documents are to be made accessible to the public

What are the implications of Sec 182

2) False information given in the FIR may amount to an offense

What is the impact of not producing the FIR as evidence?

If the whole case rests on the person who made the FIR as the SOLE WITNESS. Failure to produce the FIR is detrimental to the case as it does not allow the Accused to cross examine the complainant on the contents of the FIR which would have been made when MEMORY WAS STILL FRESH AND TENDED LESS LIKELY TO FABRICATION. Per PP v ABDUL RAZAK BIN JOHARI

What happens after an FIR us made under Sec 107 of the CPC

It depends : 1) If its a SEIZABLE & SUSPECTED seizable offense 2) NON SEIZABLE offense

Is it fatal if the oral FIR is not converted into writing and differs from testimony later in court.

No but it Depends On the Facts, PP v PARDEEP SINGH

Is the right to inspect based on the applicants interest in it limited?

No, it is a public document. As long as one has an interest in, there is no statutory legislation against it, it is not against public interest, the public has a right to use a public document. Especially if one has an interest in it. Per the case of LOO FOO SIANG v KETUA POLIS DAERAH BUTTERWORTH

If the FIR under Sec 107(1) is not reduced into writing, does it mean that the case can be thrown out during trial

No, per the case of PP v FOONG CHEE CHEONG. Even though an FIR is important, it does not amount to substantive evidence. The fact that one was not made IS NOT GROUNDS for THROWING OUT A CASE. *Police powers to act are also under Sec 23 and Sec 20 of the Police Act

What if the police proceed w/o an OTI from the PP in a NON-SEIZABLE offense, is the case nullified?

No. PP v SERIDARAN - it is NOT INCUMBENT on the PP to produce the OTI - the case will be DISCHARGED NOT AMOUNTING TO ACQUITTAL - illegally obtained evidence still relevant per KURUMA v QUEEN

What happens if it's a NON-SEIZABLE offense

Per Sec 108 1) refer the informant to a MAGISTRATE 2) wait for an ORDER TO INVESTIGATE from the PP 3) SERGEANT/OIC may investigate but CANNOT ARREST w/o a WARRANT

What is the impact of 108A of the CPC

Sec 108A allows a CERTIFIED TRUE COPY of the FIR to be admitted as evidence

What are the powers contained in Sec 113 of the CPC

Sec 113 refers to the ADMISSIBILITY OF THE WITNESS 1) Save for the exceptions stated in Sec 113. a WITNESS STATEMENT made during the course of investigation is NOT TO BE USED AS EVIDENCE 2) the WITNESS STATEMENT can be referred to in order to IMPEACH A WITNESS under the Evidence Act when the WITNESS is called for the PROSECUTION / DEFENSE OTHER THAN THE ACCUSED. the requirement is that the Request must be applied for. Also ONLY IF THE COURT THINKS FIT (In the interest of justice) Order that the Accused ALSO BE FURNISHEDith a copy 3) If the ACCUSED has made a STATEMENT during the course of investigation (How a WITNESS can become an ACCUSED during the course of a Sec 112) THAT STATEMENT can be admitted as evidence IN SUPPORT OF THE ACCUSED during the trial (but would also expose him to impeachment) (right?) 4) NOTHING in Sec 113 makes admissible any statement made during an IDENTIFICATION PARADE/ Falling within Sec 27 or Para 32 (1) (a)(i) and (j) of the Evidence Act 5) BUT CONTRARY TO (1) ANY PERSON CHARGED WITH - the making - the CONTENTS OF A WITNESS STATEMENT made under Sec 112 CAN BE USED AS EVIDENCE BY THE PROSECUTION

What are the powers allowed under Sec 117

Sec 117 deals with PROCEDURE when an INVESTIGATION CANNOT BE COMPLETED within 24 Hrs 1) When a person is detain/held in custody and it APEARS that the investigation can't be completed in 24 hrs as set by Sec 28. + There are GROUNDS for BELIEVING the accusation/information is WELL-FOUNDED the IO will IMMEDIATELY give the MAGISTRATE a COPY OF THE POLICE INVESTIGATION DIARY and At the same time PRESENT the ACCUSED BEFORE THE MAGISTRATE 2) The MAGISTRATE whether he has/has not jurisdiction to TRY the case can authorize detention a) if the offense is punishable with < 14 years imprisonment - 4 DAYS detention and no more than 3 DAYS detention on the 2nd APPLICATION b) if the offense is punishable with 14 years imprisonment or > - max 7 DAYS on the 1st APPLICATION and max 7 DAYS on the 2nd APPLICATION 3) the officer must state in the copy of DIARY entries given the Magistrate any period of detention already experienced by the accused PRIOR TO this application for detention even if it doesn't relate to the current application 4) The MAGISTRATE MUST TAKE INTO CONSIDERATION ANY DETENTION PERIOD 5) REPRESENTATIONS made by either the ACCUSED HIMSELF or his legal counsel MUST BE ALLOWED by the MAGISTRATE BFF deciding on the detention 6) If the MAGISTRATE has no jurisdiction to TRY the case but considers DETENTION necessary he can - order the ACCUSED be produced before a. Magistrate with triable jurisdiction. - before himself and a magistrate with triable jurisdiction to transmit the case to the HC. If the HC has triable jurisdiction. 7) If detention is authorized, the MAGISTRATE MUST RECORD HIS REASONS FOR DOING SO.

What are the legal Implications of KHOO SIEW BEE v PP

That a CAUTION STATEMENT IS A PUBLIC DOCUMENT and therefor can be examined and supplied to the public. But in particular a public who has a direct and tangible. But that statements made by witnesses were NOT accessible to the accused.

What are the powers held in Sec 112

This section covers the EXAMINATION of a WITNESS 1) A POLICE OFFICER making an investigation can verbally QUESTION any person supposedly acquainted with the FACTS /+ CIRCUMSTANCES of the case and put ANY STATEMENT by the WITNESS into WRITING 2) a WITNESS is BOUND to answer ALL QUESTIONS In relation to the case put to him by the police officer BUT the WITNESS CAN REFUSE TO ANSWER ANY QUESTION which MIGHT/HAS THE TENDENCY to expose the WITNESS HIMSELF to a CRIMINAL CHARGE/penalty or forfeiture 3) A WITNESS is LEGALLY BLUND to state the TRUTH whether the STATEMENT is made WHOLLY OR PARTLY to questions 4) A POLICE OFFICER questioning a WITNESS MUST FIRST INFORM THE WITNESS that while he us LEGALLY BOUND TO SYATE THE TRUTH whether in part of wholly to any QUESTION. THE WITNESS MAY REFUSE TO ANSWER ANY QUESTION (administering CAUTION) 5) A STATEMENT by a WITNESS under Sec 112 MUST be in WRITING (whenever possible) AND SIGNED/affixed with a THUMBPRINT BUT ONLY AFTER the STATEMENT has been read back to the WITNESS in the LANGUAGE the witness MADE THE STATEMENT and only after the witness has had the opportunity to make ANY CORRECTIONS HE WISHES

Are the police allowed to proceed in an investigation without an order from the Magistrate

Yes, but only if the charge is a SEIZABLE or SUSPECTED SEIZABLE OFFENSE per KING EMPEROR v KHWAJA NAZIR AHMAD * However the FIR is NOT A CONDITION PRECEDENT to the setting in motion of a police investigation. The police may act on information of their own or that given by a credible but informal informant that GENUINELY leads them to believe a SEIZABLE offense has been committed **BUT RMBR THAT THIS WAS HELD TO BE A SEIZABLE OFFENSE CASE.

Is the FIR a public document and does the Accused have a right to see it?

Yes, it IS a PUBLIC DOCUMENT and the ACCUSED as a party Interested, has a legitimate right to INSPECT it it and OBTAIN A CERTIFIED TRUE COPY. Per ANTHONY GOMEZ v KETUA POLIS DAERAH KUANTAN

According to Sec 3(3) of the Police Act. What are the FUNCTIONS of the Police

a) the MAINTANENCE of LAW & ORDER b) PRESERVATION of PEACE & SECURITY c) PREVENTION & DETECTION of crime d) APREHENSSION & PROSECUTION of OFFENDERS e) collection of SECURITY INTELLIGENCE