Police Investigation

Application to remand accused pending further investigation

• Art 5(4) & s28(3) CPC - person arrested cannot be detained for more than 24 hours,

• if IO is of the view that investigation cannot be completed within 24 hours and there are grounds to believe that the accusations are well-founded,

• he must apply for a remand order from Mag under s117

• s119 - To apply for such order, IO shall transmit a copy of the investigation diary and produce the arrested person to the Mag

• PD 11/2021 - PO before the remand proceedings- must make sure that the investigation diary and other relevant documents are filed in court through e-filing system

Failure to produce the investigation diary under s119

• [Re the Detention of Sivarasa] - it is mandatory for police to produce diary under s119 - as it act as guideline for granting the remand order

• failure to abide by s117 - fatal to the application - the remand order can be set aside if granted.

Actual arrest

s15 CPC

• actual touching

• confining

• submission to custody

valid arrest under [Shaaban v Chong]

• used force to restrain arrestee

• state in terms that he is arresting

• by words or conduct states that he will if necessary use force to refrain arrestee from going where he desired

PP v See Chin Wah

• being watched, under supervision, immobilized = arrested

• arrestee not handcuffed because he is still needed to unlock the boot of the car for the police to search for incriminating evidence

Zainal v Chan Sin Mian

a person is arrested if he is compelled to accompany the PO , no words or conduct of arrest needed

Constructive arrest

A concept developed by virtue of common law , emphasizing the intent of the police officer and the awareness of the arrestee

PP v Kang Ho Soh

• distinction of actual and constructive arrest not significant

• a question of fact to be decided based on the circumstances

• asked A to stop and open door - showed intention to compel A to obey orders

Megat Halim v PP

constructive arrest does not amount to actual arrest , merely precursor - accused told police not to arrest him, showing that he believed he was yet to be arrested.

stopping on general suspicion v based on prior information

[PP v David Bonsu] - stopping based on general suspicion does not amount to arrest - merely to entertain the lingering suspicion in the PO’s mind - only when incriminating merchandise has been recovered - arrest effected

[Lim Kim Ann v PP] - merely said suitcase is his - not arrest

c/f

[PP v Tan Chun Cheng] - A only under arrest when police found the drugs based on their statement

Warrant

Form 2 - 2nd Schedule CPC - generally for more serious case - offences punishable by imprisonment more than 6 months and death

s2 - cases that are not a warrant case

• order of court issued to police - order police to arrest the accused and bring him to court

• s47 - court can order for a warrant in lieu of or in addition of summons if the crt believe the accused may abscond or disobey the summons before summon is issued/ failed to appear in court - (b) reasonable excuse for absence

• how charge is formed is important

• no withdrawal by complainant except for compoundable cases

Summons

Form 1 - 2nd Schedule CPC

s2 - offence punishable with imprisonment less than 6 months or death

generally for less serious case

• issued to accused

• order of court ordering the accused to attend court

• [Karpal Singh v PP] - cannot issue summon in a warrant case unless s47

• formal charge need not be framed

• complainant can withdraw case with court’s permission

When can police / penghulu arrest without warrant?

for seizable offence - s23(1)

• a reasonable complaint made

[Tan Kay Teck v AG]- objective test to decide whether complaint is reasonable

Facts: Appellant (Tan) secretly recorded discussions about certain debts - Complainant (AG) concerned that the recording would be used to jeopardize his pending civil suit - reported to police - Appellant and wife arrested - held - unlawful - no reasonable complaint - awarded damages

• credible information received

[Hashim v Yahya] - should be based on substantive materials , not mere assertion - info given was sufficient to arouse suspicion of any reasonable person that P was concerned with the offence - is yes - arrest justified

• reasonable suspicion exist

[Mohd Saifuddin v PP] - act of running away - is it due to pure panic or knowledge about the impugned drugs - would any reasonable man suspect him being the offender - if yes - arrest justified

Penghulu - s25

Can police arrest someone who commits a non-seizable offence?

No, except if the accused refuse to provide name and residence or gives said info that the police has reason to believe to be fake - s24

If accused commit both seizable and non-seizable offence

• [Saul Hamid v Inspector] - can arrest without warrant

Can a private person make an arrest?

• s27 - If in his view , accused commits a non-bailable and seizable offence or that person is absconding

• ‘In his view’ -

[Durga Singh] - in his sight

[Sam Hong Choy v PP] - in his presence - within his sight - under reasonable suspicion - proximity of A to crime scene

Mag’s power of arrest

s30

s31

• [Hariharanand v The Jailor] - if Mag arrested the person under s30/31 - should not try the case himself - A should be produced to another competent Mag

Right to be informed of grounds of arrest

s28A(1) CPC shall be informed of the grounds of his arrest unless it is practically impossible to inform or A should know of the general nature of the offence

Abdul Rahman v Tan Jo Koh

• person arrested entitled to resist if not informed of the grounds of arrest

• force used to overcome the resistance = assault

Rights to legal counsel

Art 5(3) & s28A(2)(b) - shall be allowed to consult and be defended by legal solicitor of his choice - also in PD 11/2021 - if intend to obtain legal representation from Legal Aid Bureau - inform the LAB

UNLESS - police can prove by allowing this, there would be interruptions to the investigation - s28A(8) - risk of accomplice absconding, fabrication of evidence, witness safety

Right to remain silent

proviso to s112(2) CPC - if the answer to any question have the tendency of exposing him to criminal charge or penalty

Right to rest in lock up from 6pm - 6am

Rule 20 of Lock Up Rules 1953 - if A remanded - A cannot be examined from 6pm - 6am and must remain in the lock up for rest

If rights not complied with

• detention unlawful

• can bring civil suit to sue for damages for tort of assault, trespass to person and false imprisonment

• [Tan Kay Teck v AG] - Ps awarded damages for unlawful detention

• can apply for writ of habeas corpus to be released - s365, 366

• apply for revision of decision to detain

• police can argue reasonable suspicion - [Tan Eng Hoe] - mistakenly arrested Tan - looking for someone else - sued for wrongful arrest - dismissed - had reasonable suspicion - both stayed at the same time at the material time - about the same age - from Malacca - similar-sounding names - similarly dressed - carrying a black bag

Right to be brought before a Mag within 24 hours of arrest

• s28 CPC -strict compliance - amendment - no longer need to bring arrestee to court - can bring directly to Mag

• if cannot complete investigation - apply for remand under s117

• non compliance - invalid remand order

Judicial duty of Mag in remand proceedings - determining whether to grant remand

see s117

1. take into consideration the detention period prior to the application for remand

2. allow counsel representation during remand proceedings - s117(5)

   PD 11/2021 - duty to ensure suspect has been given chance to contact solicitor - or inform his right to be represented by Legal Aid Bureau - if not - may postpone the proceedings to a reasonable time within the same day to enable legal representation

3. record reasons of granting remand order

4. require production of a copy of investigation diary - s109 - mandatory - [Re Detention of Sivarasa]

5. duty to enquire the IO whether the application is fresh or second

6. duty to enquire how he was treated in custody

7. duty to direct the suspect to be brought to the hospital if medical attention is needed

** s117 - only applicable to accused - cannot be used to compel witness to come forward to assist investigation

Can the investigation diary be inspected by someone other than Mag?

• s119(2) - no

• unless A making reference to s159 - IO - refresh memory whilst under examination - s160 - where the testimony of fact mentioned is in the investigation diary

What if there is error in the investigation diary?

[Ketua Polis Daerah JB v Ngui Tek Choi] - crt held that the error in the police report number was only typographical - no malice on the part of the police to apply for remand - despite error - there are other materials sufficient to enable Mag to decide whether or not to grant the order - no impediment for the Mag - remand order not vitiated despite error

Mag erred in ordering more days of remand when it shouldn’t due to nature of the offence

remand order illegal - order vitiated - Accused can file a civil suit to claim damages for false imprisonment and writ for habeas corpus

Writ of habeas corpus

any person has the right to apply to HC for an order under s365 to release a person who is illegally or improperly detained

• s366 - application + affidavit stating where the person is detained , the facts related to the detention - to convince the court that there is a probable ground to suppose that the person detained is held against his will and without just cause

• see [Tan Kay Teck]

application for revision against decision of detention

• Revision - process to correct or prevent miscarriage of justice which may arise from error in judgment and procedure and from neglect or indolence by those in authority [Hari Ram Seghal]

• apply by way of formal application to HC or by HC’s own motion

The significance of determining when the actual arrest was effected

• caution need to be administered before arresting for offences under DDA 1952, MACC 2009, Kidnapping Act 1961 - or statements made after the arrest is inadmissible

• also affect whether he was brought to the Mag in time

taking statement from witness

• s112 (1) - (5)

• signature or thumbprint under s112(5) - not mandatory - ‘whenever possible - [Abdul Ghani v PP)

• ‘in writing’ req under s112(1) - mandatory - [Jayaraman v PP] - allowed oral statement not reduced in writing admissible - read (1) tgt with (5) provided reasonable explanation given

General Rule of s112 statement

s113(1) - s112 statements are generally inadmissible as evidence in a trial unless the exceptions apply

Exceptions to s113(1)

• s113(2) - when the witness statement is being tendered to impeach the credit of the witness

• s113(3) - when the statement was made by the accused and the accused seek to tender it to support his defense

• s113(4) - when the statement is made in the course of identification parade - or if the statement is made by A and it leads to discovery

• s113(5) - when the statement is made by the A and he is charged with false statements or perjury

• s32(1)(a)- (j) EA 1950 - prerequisite - look at whether the maker of statement is unavailable - and whether the statement is second hand hearsay - s32(1) only apply to first hand hearsay

Is failure to reduce the FIR into writing a fatal to the pros case?

s107 - it is mandatory for every information in relation to the offence to be reduced into writing

[Tan Cheng Kooi v PP]

court held that failure to reduce FIR into writing and failure to adduce it is not fatal to the pros case as long as pros can successfully establish a prima facie case- such omission would be fatal when the pros case rely solely on the FIR

What if the police officer omit certain particulars in the FIR?

• [Tan Ah Seng v PP] - if the omission was on particulars that are important to the case, the credibility of the FIR would be compromised, and court must be careful in accepting the evidence

• Facts: conviction was quashed due to the discrepancies between FIR and witness testimony due to the omission

Is the accused entitled to a copy of the FIR?

newly inserted s51A - PP shall deliver to A a copy of the report made under s107 CPC with relation to the offence to which the A was charged with

• Prior to s51A - [Anthony Gomez v KPD Kuantan] - FIR is a public document within the meaning of s74 EA 50 - A has right to inspect the FIR due to his interest in the FIR

Is the informant entitled to the status of the investigation?

s107A - Yes, the complainant may request for a report on the status - police shall give a status report not later than 2 weeks from the request - complainant may make a report to PP if the balai failed to furnish the report within the stipulated period

• The offence must be seizable

• Request made 4 weeks after FIR is made

• will not undermine the investigation

Admissibility of FIR at trial

• s108A - a copy of FIR certified by the Officer in Charge of the Police District is admissible as evidence of the contents of the original FIR

• [PP v Kang Ho Soh] - if the report is not an FIR under s107 - s108A cannot apply

Significance of FIR

• function as starting point of investigation - first and earliest account of the incident - sets the authorities into action

• gives certain particulars regarding the complaint, inter alia, refer to s107 - useful to both pros and defense

• not substantive evidence - can only be used to contradict and corroborate maker of FIR

• can assist defense in preparation

• not condition precedent to start investigation - failure to reduce into writing not fatal if establish prima facie without FIR - if rely solely on FIR - fatal - Tan Cheng Kooi

• also mention omission of particular facts - Tah Ah Seng v PP

What can PO do to order someone to come forward and record witness statement?

• s111 - empowers PO investigating - require attendance - person appear acquainted with circumstances - person shall attend

• if refuse - PO can report to Mag - issue a warrant to secure attendance - s111(2)

• if intend to record statement - need not be in form of questions and answers

• fail to attend when summoned - s174 PC - offence

• to compel production of docs or things - s51 - s54

if offence is seizable - based on info in FIR

s109

If the offence is a non-seizable offence - based on info in FIR

s108(3) - The police can investigate only if he receive order to investigation from PP

s108(1) - if not he will refer the complaint to the Magistrate and the complainant is entitled to private prosecution under s128

When in doubt as to whether the case is seizable or non-seizable - based on FIR info

• depends on what the IO finally charges the accused for after investigating, not based on his knowledge at the time of commencing inquiry

• s110 - when seizable offence suspected, IO must send report to PP to update on investigation

• proviso to s110(1) - situations where PO may not investigate on the spot

• (2) - PO must state reasons for not investigating

• (3) - if PO deputize his power under (1) - deputy shall only act under s110

Is the A entitled to the s112 WITNESS statement?

[Husdi v PP] - s112 witness statement are absolutely privileged from disclosure

[Siti Aisyah v PP] - if A can demonstrate that it is necessary and desirable at the time of application for him to have access to the witness statement

doctrine of stare decisis - Husdi still good law cuz Siti Aisyah is a COA decision and Husdi is FC

Implications that a complainant may face

• may be called as a witness to testify in court bcuz FIR per se is not substantive evidence [Balanchandran v PP]

• may even be asked to execute bond to appear if the court is not confident about his appearance

• since s51A entitles the A a copy of the FIR report before trial commences - complainant risk retaliation - as his identity would be exposed

• may be prosecuted under Penal Code if the complainant gives false information in the FIR - s182 PC

• may be impeached if the statement can be used in court under s113(2)

Is leave of court required before commencing impeachment proceedings?

No, it is not mandatory , only required as a matter of practice

Can the complainant be impeached based on her previously inconsistent statement?

s155© EA 1950 - yes

Credit of witness may be impeached by the adverse party

What happens if the witness gave conflicting statements or lied?

Court should allow the witness to explain her conflicting statements - if the court is convinced that her explanation is satisfactory - his credit is saved

If credit of witness cannot be saved, should he be impeached immediately?

[Dato Mokhtar Hashim v PP] - the court cannot immediately order for impeachment of the witness during pros case - should only decide whether to disregard his testimony after assessing her credit with rest of the evidence at the close of pros case

Can a suspect be re-arrested immediately for another offence within 24 hours of release?

[Abdul Ghani Harun] - NO - to prevent abuse of court process and the writ of habeas corpus proceedings - breach of A’s constitutional right to liberty under Art 5 FC

s51A

• s51A - pros shall before commencement of trial deliver to A a copy of any document which would be tendered as part of the evidence for pros - usually 3 weeks before trial

• After pros delivered doc to A - A shall, before trial commences, deliver to the pros

  • a defense statement stating the nature of the defense and

  • matters on which the A takes issue with the pros with reason and

  • a copy of any evidence to be tendered as evidence for defense

• s62 MACC 2009 - didn’t include the saving provision like in s51A(3) - is it unconstitutional - Lim Guan Eng v PP - FC overturned COA - not unconstitutional as it does not prevent the defense from tendering additional evidence - as per EA50’

• COA - in contravention with Art 8 - equal protection before the law - Art 5 - right to fair trial - places unfair and onerous burden on the defense - if s62 is interpreted at face value - precluding the tendering of evidence from D after trial commenced - discriminated unfairly and unreasonably against the A - principle of equality of arms - guarantee each party a reasonable opportunity to present their case without being at substantial disadvantage compared to opponent

Does CCTV falls under the ambit of documents under s51A?

[Benjamin William v PP] - FC held no

Failure to deliver under s51A

• may affect admissibility- but nevertheless s51A(3)-(5)

• documents may be delivered after trial commenced provided s51A(5) - A given opportunity to recall and re-examine witness

• crt retain discretion to exclude docs - deliberate - withheld in bad faith - s51A(4)

• failure to deliver - does not make it inadmissible - s51A(3)

• if pros refuse to deliver - s51 - D may apply to court to issue a summons or order to pros to produce the document or thing in possession

• [DSAI v PP] - s51 & s51A - separate and distinct - s51A - impose duty on pros to produce - s51 - gives court discretion to order production for discovery

s51

• [PP v Raymond v Chia] - when relying on s51 to inspect doc - must consider justice of case and what stage of proceedings the application is made

  • [Raymond Chia] - before trial start - s152-154 - if document specified in charge - pros must allow inspection to enable D to prepare defence -

  • [Datuk Tiah] -even if not specified in charge - should be made available to D as it is relevant to the offence

  • applied during trial - should consider whether it is relevant to the offence

  • even if document not tendered in Court - A can still apply to inspect the docs under s51 - Raymond Chia - A entitled to those documents - if relevant and essential for adjudication

[Gu Kien Lee v KPD Kota Kinabalu]

Facts: applicant lodged 2 police reports about his yacht being detained - no further news from police

Held: premature for police to conclude absence of criminal misappropriation without investigation

• PP has duty to issue OTI, compel investigation and check the status- s108

• PP’s role is not to usurp police’s investigation powers but act as a check point

• where seizable offence is suspected - s110- Police has a duty to fully and properly investigate police reports without unnecessary delay and report the results to PP - s107A

Is it necessary to prepare search list and effect of failure

• s64 - a list of all things seized shall be prepared and signed - ideally - shall prepared immediately after the search to avoid dispute as to what was seized

• s65 - occupant of the premise searched shall be permitted to be present and entitled to a copy of the search list when requested

Significance of search list

• to corroborate the evidence of the PO regarding property found

• to avoid planting of evidence or any allegation thereof

[San Soo Ha v PP]

failure to prepare search list under s64 not fatal - but crt will scrutinize the evidence carefully because omission will cast doubt on bona fide of the search

[Alcontara v PP]

• search list must be tendered when there is an actual conflict btw evidence of PW and defense in respect of where the exhibits were found

• Failure would attract adverse inference against pros under s114 (g) EA 50’

conducting a search of body of a person

s17 -

• all persons found maybe lawfully detained when a search is lawfully conducted at a place until the search is completed

• if things sought is capable of being concealed upon the person- person detained may be searched for in presence of….

Searching a person arrested

s20 - police may search an arrested person - all articles other than necessary wearing apparel maybe placed in safe custody - if police has reason to believe that any such articles are related to the crime - may detain the article until discharge or acquittal

s413 CPC

• property seized alleged to have been stolen or suspected to be stolen shall be reported to Mag - Mag shall order to deliver the property to the rightful owner - by serving notice to the person and require him to take delivery within a prescribed time

• if the owner cannot be ascertained - direct it to be detained in police custody - CPO shall issue public notification specifying the article and require any person who has any claim to appear before him and establish claim within 6 months from the date of public noti

• Mag may also order for the property to be destroyed or disposed of if it is of no appreciative value or it is impractical to sell or unreasonable to keep in police custody

• The owner of the property can also apply by way of noa + affidavit request item to be returned

Search on woman

s19(2) - should be done with strict regard to decency by another woman

Methods of search

s20A - shall comply with Fourth Schedule to CPC

Power of police to seize property suspected to be stolen

s435 - any police officer may - with or without warrant -seize - alleged or suspected to have been stolen property or found in suspicious circumstances that an offence has been committed

Ghani v Jones following [Chic Fashion v Jones]

• police entitled to take anything they find during search which they reasonably believe to be material evidence in relation to the crime for which they enter for or other crime

• Factors to be considered when deciding whether an item can be seized in a search conducted without warrant:

1) reasonable grounds to believe a serious offence has been committed

2) reasonable grounds to believe the article in question is an instrument or fruits or evidence of the crime

3) reasonable grounds to believe the person in possession of the article is involved in the crime

4) must not keep it any longer than it is reasonably necessary for them to complete investigation - should make a copy if it will suffice for the purpose of investigation

5) lawfulness of the conduct of police

s63 CPC - search without warrant

• summary search authorized by CPO - search and seize property believed to be stolen

• will only be authorized if the place is occupied by a person who has previously been convicted of theft of stolen property or fraud or dishonesty

s116 - search without warrant

• search of things if IO believe

  • production of anything necessary to the conduct of an investigation into any offence he is authorised to investigate

  • reason to believe the person would not produce the thing even if a summons is issued under s 51

  • when the thing is not known to be in possession of any person

In what circumstances would a search warrant be issued?

• s54 - court has reason to believe that a person whom summons has been issued under s51 will not produce the required doc - property isnt known to court to be in possession of any person - purpose of justice

• s56- warrant to authorize search of evidence - if Mag has reason to believe an offence has been committed OR any evidence necessary to the investigation is in the premise

• s58 - warrant to search for persons wrongfully confined - if Mag has reason to believe that a person is wrongfully confined - if such person found - shall be immediately brought before Mag - may break into the premise if entry denied - s59(2)

• [Kerajaan Malaysia v Then See Nyuk] - absence of prosecution did not affect the warrant of search or seizure

Form of search warrant

s57 - a search warrant shall remain in force for a reasonable number of days to be specified in the warrant

‘not specified’ - what is reasonable number of days?

• [Lam Chiak] - SG case

  • the legislature left it to the court issuing the warrant to specify the time period

  • requirement of time period not mandatory - directory - as long as meet the test of reasonableness

  • in this case - executed 6 days after issued

Search for a person sought to be arrested without warrant

s16 - police or penghulu has reason to believe - person sought to be arrested is in the premise - person in charge shall allow entry to search - may use reasonable force to break into the premise if entry denied - s18 - if police officer detained in the premise - empowered to break open any place to liberate himself

person in charge of closed premise to allow free ingress

• s59 - with warrant - if refuse entry - may use reasonable force to break into - s16(2)

• s116(4) - s59 and s16(2) also applies to search without warrant

[N Indra v PP] - Registrar signing search warrant

Held: search warrant signed by Registrar was valid - Registrar was acting in her capacity as 2nd class Mag - applying her judicial mind to the application before issuance of search warrant

Will any discrepancies in the witness's testimony with another cause him to be discredit by default?

[PP v Cho Sing Koo] - crt didnt discredit the witness bcuz it was held that the matters in contradiction were insignificant and trivial.

• Honest mistakes and lapses in memory should be differentiated with deliberate falsehood where the witness demonstrably and undoubtedly lie on material points .

• The courts recognize human fallibility in recollection - human memories do fade over time

• Perfect testimony is an illusion , in fact a sign of concoction

• if not genuine mistake, treat with caution or discard

Should an accused be kept handcuffed in court?

[Ramanathan Chelliah v PP] - generally - presumed innocent until proven guilty - not normal practice to put the A under restraint in court - but crt can exercise its discretion judiciously - to subject A to some form of restraint if - risk of escaping - if he is violent - alleged of having committed a violent crime

Can the police commence investigation without FIR?

[DSAI v PP] - crt adopted Privy Council decision in [Emperor v Khwaja] - FIR is not condition precedent to commence investigation

Common provision in exam

• theft - 379,379A, 380

• robbery - s392

• wrongful confinement - s342

• obstructing public duty - s186

• voluntarily causing hurt - s323 -325

• forgery - s465

• rape - s376

How to secure attendance of a witness?

• s396

• s118 - require bond of appearance of complainant and witness