Third charge (KIV):

IN THE MAGISTRATE COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA
ARREST CASE NO. : BA-83-14-5/2021
PUBLIC PROSECUTOR
v
1. TEE (NRIC NO: 900730-14-5683)
2. KOFE (NRIC NO: 890204-14-5887)

CHARGE
That you, Tee and Kofe, on the 6th day of May 2020, at about 2.pm, at a burger stall at Jalan
Merdeka, Kuala Lumpur, in the Federal Territory of Kuala Lumpur, assaulted and used criminal
force in attempt to commit theft of property belonging to the victims, Comel and Lawa and you
thereby have committed an offence punishable under section 356 of the Penal Code.
PUNISHMENT
I found guilty, you may be punished with imprisonment for a term which may extend to two years
or with fine or with whipping or any two of such punishments.

Dated 6th May 2020

On the power vested on Public Prosecutor,

(CONSTAR)
Deputy Public Prosecutor

For the third charge, Kofe committed an offence under section 356 of Penal Code.
From the facts, Kofe assaulted and use criminal force on Lawa in attempting to steal the gold
chain belonging to Lawa. Thus, he may be punished with imprisonment for a term which may
extend to two years or with fine or with whipping or any two of such punishments.

SEARCH
- By a private person
The issue is whether the search conducted by John, a private person is lawful.
 Search is a process of investigation which will aid the officer to gather evidence and ensure the
chain of evidence is not broken. There shall be no proper investigation if search was not conducted.
Search can be conducted to persons and premises/property. There are two types of search on
premises/property which are search with warrant and without warrant. For search with warrant, under
Section 54 of Criminal Procedure Code (CPC), court may issue it where the court has reason to believe
that a person to whom a summons is issued will not produce such document or thing or where such
document or thing is not known to the court to be in the possession of any person.
For search without warrant, no application is needed before search. Section 116 of CPC
stipulated that when the production is necessary for the investigation, this section can be invoked if the
search needs to be conducted immediately. In order to conduct the search, Section 62 of CPC laid down
the elements to be satisfied. Firstly, credible information. Secondly, the police who conducted the search
must not be below inspector. Thirdly, it involves stolen property and lastly, the police have good grounds
that the property would be untraceable if search is not conducted immediately. As illustrated in the case
Yong Moi Sin v Kerajaan Malaysia [2000] 1 MLJ 35, the stolen property involved was a gold locket
that can be melted. Thus, Section 62 of CPC was invoked immediately as the gold locket would be
untraceable if it was melted.
Applying the issue, the search conducted by John was a search on premise without warrant.
Pursuant to Section 62 of CPC, there was credible information indicating Maria is a scammer by several
persons who dealt with her before. The property involved was a set of Swarovski necklace, earring and
ring online worth RM2500 that should be delivered to Cantik before 31 May 2020. Thus, it could be said
that search without warrant is necessary to trace the property as per section 116 of CPC. However, the
search can only be conducted by police ranked not below an inspector. Here, John is not an unauthorized
person nor is he a police officer. Therefore, the search conducted by John was unlawful ab initio.
In conclusion, the search on premise without warrant conducted by John was unlawful as he is an
unauthorized person.
- A private person has no power to conduct body search or search of premise without a
warrant. The act of John amount to trespass -- explain on tresspass

BODY SEARCH
- Pat down search
The first issue is whether the body search conducted by Sergeant Beta was lawful. According to Part
II, Fourth Schedule of Criminal Procedure Code, Paragraph 2 of list down the type of search such as
pat down search, strip search, intimate search and intrusive search. According to Section 20 of the Code,
the search conducted either by a police officer, or a private person towards an arrested person may be
carried out to remove any evidence of the crime. While Section 20A (1) states that any search of a person
must be in adherence to the Fourth Schedule and such procedure prescribed must be adhered to by
authorities carrying out the search. Paragraph 6 of the Schedule laid down the procedure of pat down
search.
Paragraph 1 laid down the objective of search is to attain incriminating evidence from arrest is
concealing an evidence, object or weapon on him. As an authorized officer, a police officer is subjected
under Part I Paragraph 3 of the Fourth Schedule to conduct search in accordance with the general
conduct. Paragraph 3(1) states that an officer conducting the body search shall do so in a professional
manner and to place the highest regard for the dignity of the person arrested.
Next, Paragraph 3(2) requires officers to strictly adhere to search conduct, firstly the officer
must introduce himself to the person that he arrested before any search is being done and he must do so in
a professional and courteous way and he shall not use unnecessary or humiliating language or remarks
against the person arrested and shall cause minimal embarrassment to the person. Secondly, searches
conducted by the officer must not be more extensive than needed to ascertain the existence of harmful or
unlawful articles believed to be concealed by the arrested person.
Paragraph 4(1) defined pat down search as the act of searching the outer clothing of a person
arrested which is to be conducted by quickly running the hands over the outer garments of the person
arrested. Sub-paragraph (2) lay down that pat down search may be conducted when there is reasonable
suspicion that a weapon, object, evidence or contraband is being concealed on a person arrested, and the
search may be conducted first, at the time of arrest, or before the arrested person is put into custody in a
lock-up or detention centre.
- The body search can only be conducted by a police officer on a person arrested.
- Put case law
By applying the law in this situation, Sergeant Beta carried out pat down search as one of types of
search under Paragraph 2, and in accordance to Section 20, he has the power to conduct the said search
as a Sergeant is a police officer. Sergeant Beta must adhere to the procedure of pat down search under
Fourth Schedule as stated under Section 20A (1) and Paragraph 6. Next, Sergeant Beta must comply to
Paragraph 3(1) which means that when he conducted search on Maria he must do so in professional
manner, and not to bring down Maria’s dignity as the person who will be arrested. Besides, Sergeant Beta
must conduct the search in order to achieve the objective as in Paragraph 1, to prove that Cantik’s
complain on Maria was correct. It can be said that Sergeant beta did achieve the objective when he
confirmed that Maria’s identity is in fact the account holder of the person Cantik claim.
Since it is silent in the facts, is it relevant to presume that Sergeant Beta comply to Paragraph
3(2) that he introduced himself as a police officer to Maria, he did not conduct the search in a demeaning
way or to humiliate Maria, he also did not mention anything or accuse Maria with unnecessary remarks.
Moreover, it can be said that Sergeant Beta did not do extensive search, but only necessary search on
Maria, as he did not take a long time to conduct the search, complying with Paragraph 3(2). Lastly, as it
is silent whether he requested Maria to take off her clothes, Sergeant Beta can be said to have carried out
pat down search in accordance to Paragraph 4(1) as he only checked outer garments of Maria. Sergeant
Beta also complies with Paragraph 4(2) as he only searches on Maria after Cantik informed him of the
problem, suffice to say that he has reasonable suspicion on Maria. He also conducts the pat down search
at the time Maria was arrested, and before she was put into custody.
In conclusion, body search which is pat down search conducted by Sergeant Beta against Maria
was lawful.

- Strip search

Whether the strip search conducted by Constable Alfa towards Anggur was lawful.

Search is a process of investigation which will aid the officer to gather evidence and ensure the chain of
evidence is not broken. There shall be no proper investigation if search was not conducted. Objective a) to
obtain evidence of the crime b) to seize contraband, proceeds of crime & things criminally possessed c)
for the discovery of evidence related to the reason of the arrest or to preserve the evidence.

Types of Search Of A Person. (Part II, Paragraph 2 of 4th Schedule CPC)

❏ Pat down search (Part III, Para 4-6)

❏ Strip search (Part IV, Para 7-9)

❏ Intimate search (Part V, Para 10-12)

❏ Intrusive search (Para VI, 13- 15)

RESPECTIVE LAWS
Section 20 of CPC: The search conducted either by a police officer, or a private person towards an
arrested person may be carried out to remove any fruits or evidence of the crime. Section 20A(1): Any
search of a person must be in adherence to the Fourth Schedule and such procedure prescribed must be
adhered by authorities carrying out the search.

GOVERNING PRINCIPLES (Fourth Schedule)

Paragraph 7 of Fourth Schedule. Sets definition of strip search as a search involving the removal of
some part of outer clothing or of all of it of the arrested person. Paragraph 7(2) : Strip search shall only be
conducted when (a) if arrest has been carried out, and (b) when there is reasonable suspicion that the
person arrested is concealing an evidence, object or weapon on him.

As an authorized officer, a Constable is subjected under Part I Paragraph 3 of the Fourth Schedule to
conduct search in accordance with the general conduct. Paragraph 3(1) states that an officer conducting
the body search shall do so in a professional manner and to place the highest regard for the dignity of the
person arrested.

Next, Paragraph 3(2) requires officers to strictly adhere to search conduct. (a), the officer must introduce
himself to the person that he arrested before any search is being done and he must do so in a professional
and courteous way and he shall not use unnecessary or humiliating language or remarks against the
person arrested and shall cause minimal embarrassment to the person. (b), provides search conducted by
the officer must not be more extensive than needed to ascertain the existence of harmful or unlawful
articles believed to be concealed by the arrested person.

Paragraph 8(1): A strip search shall not be conducted, without the prior approval of a police officer not
below the rank of Inspector. Paragraph 8(2): such approval pursuant to subparagraph (1) must be made
in writing & if made orally has to be induced in writing. if by a police officer > station diary

Paragraph 9(a): requires search to be held in private room out of the view of anyone outside the room,
no recording /communicating devices allowed in this room and only the officer conducting a search, the
second officer, and the person arrested present in the room during the entire search. Paragraph 9(b): The
officer conducting a search shall first explain in a language that the person arrested understands that he
shall be required to take off his clothes and to declare any item, object, evidence or contraband on his
body or clothing that is harmful or unlawful. Paragraph 9(c): The strip search does not require that
the person arrested removes all his clothes at the same time.

Paragraph 9(d): Search shall be divided into 4 quadrants, namely upper torso, arms, head and lower
torso. Paragraph 9(j): Inspection torso area from navel upwards, the arrestee allowed to wear his lower
garments. Paragraph 9(k): Inspection of lower torso below the navel and legs. Paragraph 9(l): There
shall be minimal physical contact between the officer and the arrestee. Paragraph 9(n): List of all things
seized in the course of the search shall be prepared by the officer and signed by the person arrested and
he shall be given a copy thereof.

EFFECT OF ILLEGALITY OF SEARCH

Saninathan v PP (1937) MLJ 39

It was held that the legality or illegality of a person’s arrest does not concern the court which is trying him
and that the magistrate is only concerned with the relevancy of the documents and not the manner in
which the police obtained possession of them.

Dato’ Seri Anwar Ibrahim v PP [2015] 2 CLJ 145,

The Federal Court held that “Similarly the admissibility of evidence under our law is not based on the
manner in which such evidence is obtained but as said earlier, on its relevancy.”

Emmanuel James Kalu v Public Prosecutor [2017] MLJU 447

A strip search means a search involving the removal of some part of outer clothings or removal of all
the arrestee clothing and during the search, the person arrested may be allowed to remain partly clothed
by allowing him to dress his upper body before removing items of clothing from his lower body. It is
justified by the used of the word in the definition of strip search in paragraph 7(1) of the Schedule. The
word ‘removal’ therein suggest a positive and affirmative act of taking away or removing of items
(clothing and items from clothing). It is to be noted that the definition uses the word ‘removal’ and not
‘recovery’.

Pendakwa Raya v Victor John [2016] MLJU 562

The issue raised by the defence was against the evidence given by PW3 pertaining to the strip search that
he conducted on the accused, when PW3 ordered the accused to remove his trousers to expose the drug
that were strapped to his legs. The defence’s contention is that PW3 had done the strip search on PW3 in
contravention of section 8(1) of part IV of the Fourth Schedule [Section 20A] CPC which states that a
strip search shall not be conducted without the prior approval of a police officer not below the rank of
Inspector. According to the defence, since PW3 had conducted the strip search on the accused illegally
without the prior approval of a Police Inspector, the evidence that he had obtained with regards to the
recovery of the drug exhibits was illegally obtained and as such inadmissible and should be rejected.

The court is of view that the defence’s contention on this issue is that the court is not concerned about the
legality or illegality of the strip search conducted by PW3 on the accused. This court is only concerned
about the relevancy of the evidence of the drugs exhibits obtained by the witness PW3 and not in the
manner the PW3 obtained possession of them as was enshrined in the case of Saninathan v PP [1937]
MLJ 39). As long the evidence obtained is relevant to the case, it is admissible irrespective whether it was
illegally or unlawfully obtained.

‘Gadis lokap’ case

On 25th November 2005, the existence of the video recording of a female detainee, apparently being
forced to do ear squats (ketuk ketampi) in the nude was made public. Thisi issue is immediately compared
the scandal to the Abu Ghraib scandal in Iraq where United States military personnel forced prisoners to
strip and abused them. The Commissioner’s report found that the body search manner was improper and
has been indiscriminately practised as there were no legislation permitting detainee to be stripped of all
clothing and do the ear squats nude. The searches must be conducted with due respect to decency as to
protect the detainee’s dignity. Although evidence was adduced that drugs were recovered as a result of the
ear squats, the incident did not justify every detainee to be subjected to such treatment. The policewoman
who ordered the detainee to do the ketuk ketampi ten times in the nude cannot justify her action by saying
that it was pursuant to the order of her superior.

Application

Section 20A applied in this question as it involved with the search of a person arrested in compliance with
the Fourth Schedule. Paragraph 7(1): The type of search conducted by Constable Alfa is strip search
because Constable Alfa instructed Anggur to walk to his office and to remove all his clothes to enable him
to conduct the search. Paragraph 7(2): An arrest has been made by Constable Alfa as per 7(2)(a) and
there is a reasonable suspicion (as per 7(2)(b)) that Anggur concealed the cash amounting to RM 5000
from Durian as Durian was scared that Anggur might disclose Durian’s intimate pictures with the call
girls to his wife. As this is on offence under section 385 of Penal Code (putting/attempting into fear to
commit extortion), thus there is a reasonable suspicion on Anggur that he was concealing the money
obtained from Durian. Thus, it can be said that Constable Alfa has act in accordance to Paragraph 7 of
the Fourth schedule.

Whether constable alfa may conduct search against anggur without authorization by inspector beta AND
WITHOUT THE PRESENCE OF A SECOND OFFICER?

Paragraph 8(1): Constable Alfa needs authorization from a higher rank officer (rank inspector & higher),
here, he must get approval from Inspector Beta before conducting search against Anggur. Furthermore, he
must also record the search in the police diary pursuant to Paragraph 8(2). There is nowhere in the facts
indicated that Inspector Beta approved the search conducted by Constable Alfa on Anggur as he did so
while Inspector Beta was on the phone. Furthermore, he also breached Paragraph 8(2) as there was no
indication from the facts to show that he has induce the act of strip search towards Anggur into the police
diary. Thus, it can be assumed that Constable Alfa acted on his own when he instructed Anggur to walk to
his office and to remove all his clothes in order to conduct the search.

Even if he had found the cash, the evidence is illegally obtained and should be rejected. However,
applying the case of Pendakwa Raya v Victor John, as long as the evidence obtained is relevant to the
case, it is admissible irrespective whether it was illegally obtained. Yet in this situation, the cash was not
found, hence no evidence was obtained and there shall be no relevancy in question. Paragraph 9(a): The
officer conducting a search, the second officer, and the person arrested shall be present in the private room
during the entire search. However, here, although it is in a private room, the second officer other than
Constable Alfa was not present. Only Constable Alfa and Anggur were present in the room.

Therefore, the strip search conducted by Constable Alfa on Anggur is unlawful because there was no
compliance with the procedure provided in Paragraph 8 and 9 of the Fourth Schedule.

Whether THE STRIP SEARCH REQUIRES TO REMOVE ALL CLOTHING AT THE SAME
TIME?

Applying Paragraph 3(1), if Constable Alfa was given authorization by Inspector Beta, he shall conduct
the body search a professional manner and with due respect to decency as to protect the detainee’s dignity
as per the ‘Gadis Lokap’ case. This should also be read together with Paragraph 3(2) to which Constable
Alfa shall only cause minimal embarrassment to Anggur and not too the search shall not be too extensive.

Although the strip search was done to find the RM 5000 from Anggur, Paragraph 9(b) stated an officer
must acknowledge the arrestee that a strip search will be conducted to him. Which from the facts of the
case there is an instruction from constable Alfa towards Anggur to strip off his clothes and there is a
protest by Anggur. By mean, Anggur acknowledge the instruction by Constable Alfa. Furthermore,
Paragraph 9(c) do stressed that a strip search does not required the arrestee to remove all the clothes at
the same time. Paragraph 9(d) asserted a strip search divided into 4 quadrants while Paragraph 9(j) &
(k) clearly stated an arrestee allowed to wear clothes for their body part which are not searched. From the
facts given, Constable Alfa instructed Anggur to remove all of his clothes which was a clear breach
Paragraph 9(c) as it could be done by quadrants to another quadrants from lower torso, upper torso, arms
and head pursuant to Paragraph 9(d).

By applying the case of Emannuel James Kalu, if there is the need for Constable Alfa to request Anggur
to remove partly or all clothes, he should allow Anggur to remain part of the clothes when switching. This
means that removal of clothes can be done by part, in which Constable Alfa and supposedly with another
officer, can start searching from Anggur’s upper body first then switch to the lower body and keep their
clothes on respectively when switching and shall be done in a private room out of the view of anyone else
to respect the Anggur’s dignity. As the strip search does not requires Anggur to remove all clothing at the
same time,therefore, Constable Alfa did not comply with Paragraph 9 of the 4th schedule.

In conclusion, the strip search conducted by Constable Alfa towards Anggur was unlawful due to non-
compliance with Paragraph 8 and 9 of the Fourth Schedule. Nevertheless, the effect of illegality of the
strip search on Anggur does not concern the court as the court only concerns with the relevancy of the
evidence.

SEARCH OF PREMISE & PROPERTY

1st example

The second issue in this question is whether the search of premise and the seizure of the property
conducted by Sergeant Alfa are done in accordance with CPC.
According to Section 62 of Criminal Procedure Code, search without warrant can be conducted
on information received by a police officer not below the rank of Inspector in relation to stolen property
concealed or lodged in any place and where there is good grounds to believe that delay in obtaining a
warrant of search is likely to lead to removal of the stolen property. The court in Yong Moi Sin v
Kerajaan Malaysia [2000] 1 MLJ 35 had laid down the necessary ingredients for Section 62 to be
invoked. Firstly, in order for this Section to be invoked, the essential matter that must be first considered
is that this Section can only be used when the case involves stolen property. Secondly, the police who
conducted the search on the premises must not be below the level of Inspector. Next, the information
gives rise to a reasonable cause for suspecting that any stolen property is concealed or lodged in any place.
Lastly, the police have good grounds that if search is not conducted, property would disappear or would
not be able to be traced.
Although the court in Yong Moi Sin v Kerajaan Malaysia decided that there was no compliance
with the last two ingredients, the court held that it is neither concerned about the illegality of the search,
nor how the evidence was obtained. The court found that what was important was that the search was a
genuine effort aimed at preserving evidence of the crime.
Section 116(1) explains the same matter of search without warrant, that is, this Section allows
police officers to conduct search without warrant when the production is necessary for the investigation.
Subsection (3) of the same Section allows a subordinate to the police officer to conduct a search
following a notice in writing made to him. On the matter of seizing incriminating items, Section 435 can
be invoked when other provisions within this Criminal Procedure Code are silent on this matter. This
Section states that Police may seize any property in suspicion an offence has been committed. This
Section can be invoked if there is a need to conduct search and matter urgently, and when there is a course
of investigation.
The case Kuruma v R [1955] 1 All ER 236 discusses the effect when the search is being
conducted illegally, and incriminating items are seized during the search. The court in this case stated that
where a search has been carried out contrary to the provisions of the Code and incriminating items are
secured as a result of the search, the admissibility of such items will not be tainted by the illegality of the
search.
In the given question, Sergeant Alfa had conducted a search outside of the house when he saw
spare parts and components of luxury motorbikes kept at the garage. This constitutes a search conducted
without a warrant. Following Section 62 of the CPC, Sergeant Alfa must be expected to comply with all
the ingredients embedded in this provision, which are also explained in the case Yong Moi Sin v
Kerajaan Malaysia. One of the requirements is that only police of the rank Inspector and higher can
conduct the search on this premise. However, in this question, Sergeant Alfa who is only of the rank of a
Sergeant had conducted the search. Thus, there is an obvious non-compliance in regard to the ingredients
listed under this provision.
As Section 62 and 116 are silent on the issue of seizing property, this allows Section 435 to be
referred to. By virtue of Section 435, Sergeant Alfa is allowed to seize any incriminating items when there
is suspicion that an offence has been committed. In this situation, the incriminating item can be said to be
the dismantled plat number similar to the number of a motorbike reported to be stolen kept at the
storeroom. Thus, this raises a reasonable suspicion to Sergeant Alfa that an offence might have been
committed by either Maria or Masdor. Nevertheless, it is worth to note that even after an illegal search, by
virtue of Kuruma v R and Yong Moi Sin v Kerajaan Malaysia the admissibility of the evidence
obtained by that search is not tainted by the illegality of the search conducted.
In conclusion, the search of premises conducted which also involved the seizing of property by
Sergeant Alfa can be said to not fully comply with the standards provided by CPC. Nevertheless, such
non-compliance will most likely not be fatal to the case if brought to trial before the court.

2nd example

Discuss the legality of the search and seizure conducted by Sergeant Neutron. (20 marks)

The issue is whether the search and seizure conducted by Sergeant Neutron is legal?
Section 116A1 confers any police officer not below the rank of inspector to conduct a
search without warrant. In order for the police officer to invoke this section before conducting a
search without warrant, they must firstly comply with conditions stipulated under Section 622.
Section 62(1)3 requires that there is to be credible information given to any police officer not
below the rank of Inspector and he has good grounds for believing that by reason of the delay in
obtaining a search warrant the property is likely to be removed. Section 62(2) CPC requires a
1 Ibid.
2 Ibid.
3 Ibid.
production of a list of stolen property. The same requirement can also be seen under Section 64
CPC. The importance of production of search list is seen in the case of PP v Lee Soo Lian4. In
this case, the court held that production of the search list should be continued because this would
show the integrity of the officer that conducted the search. This principle is once again reiterated
in the case of San Soo Ha v PP5 where it upheld the importance of search lists. Meanwhile
Section 62(3) CPC requires the person from whom the property was stolen or a representative
shall accompany during the course of search. Section 65 CPC requires the occupant to be present
at search and a copy of the list prepared and signed and to be delivered to the occupant at his
request. However, in Yong Moi Sin v Kerajaan Malaysia & Anor 6,despite no compliance with
requirements laid out in Section 62, it was held that it neither concerns on illegality of the search
nor how the evidence was obtained. Legal search can never be construed to be a criminal trespass
and the police would not be guilty of it and what was important is search was a genuine effort to
preserve evidence of the crime. Furthermore in regards to seizure of the item, the applicable
provision is Section 435 of CPC. This section invokes that any member of a police officer may
seize any property which is alleged or may be suspected to be stolen or which is found under
circumstances that create suspicion that an offence had been committed and such member if
subordinate to the officer shall immediately report the seizure to the officer. Said section provides
police who conducted the search without warrant the power to seize necessary items.
In application, Sergeant Neutron had made his own decision following further evidence
he received from a tip off to escort Ah Chan to the premise where he conducted a search on the
house. According to Section 62(1), only police officers not below the rank of inspector may
conduct a search without warrant. Sergeant Neutron is a police officer below the rank of
Inspector which means he does not have the authority to conduct the search without warrant.
Despite the fact, he has a good reason to act as soon as he could since Chea is a famous
underground black-market diamond seller. The possibility of Chea selling of the smuggled
gemstones and losing the evidence is high as the clock ticks. However, the search done is not in
compliance with Section 62(2) where a search list of the item is required. As in the cases of Lee
Soo Lian and San Soo Ha, production of search lists is important to show the integrity of the
police officer while conducting the search.
Applying the decision in the case of Yong Moi Sin, the court was not concerned on the
illegality of the search. What was important is that the search was a genuine effort aimed to
4 (1993) 2 CLJ 214
5 [1968] 1 MLJ 34
6 (2000) 1 MLJ 35
preserve evidence of the crime. Even though Sergeant Neutron has the best interest of preserving
the evidence in his mind when he was conducting the search, the search is still illegal as it is not
in compliance with Section 62. Hence, the non-compliance makes the search illegal. Under
Section 435, a police officer is given the power to seize items without warrant and Sergeant
Neutron had invoked his power by seizing the one strand of ruby bracelet in the premise. Since he
is a subordinate, he must report the seizure to his superior immediately as required in the above-
mentioned section. Thus, the seizure of the item is legal.
In conclusion, search made by Sergeant Neutron is illegal while the seizure made by him is legal.

SEARCH LIST
The issue is whether the Magistrate would convict Masdor for retaining stolen property as the
search list of items seized was not prepared and could not be tendered.
- Requirements for search list under sec 64
Search list is to provide the exact location where the exhibits are found as well as the details of items. The
objectives of the search list are to identify and analyse on the search list relating to police powers in
conducting the search, observing the legal framework that governs the production of search list during the
trial, examining the consequence of an illegal search, and to analyse provisions relating access to premises
and seizure of exhibits. According to Section 64 of Criminal Procedure Code (CPC), the search list for
all items seized is to be prepared and signed by the officer conducting the search. Further, Section 65
states that the occupant of the premise has the right to remain there during the search and a signed copy of
the list is to be delivered to the occupant. This can be seen in the case of Yong Moi Sin v Kerajaan
Malaysia & Anor [2000] 1 MLJ 3, a list of the property shall be delivered or noted down in writing
together with a declaration that it has been stolen and the informant has reasonable grounds to believe that
it has been deposited at such location. For identification purposes, the individual from whom the property
is stolen shall accompany the officer during the search. However, the court is not concerned about how
the evidence is obtained if there is a non-compliance. Moreover, in PP v Lee Soo Lian (1993) 2 CLJ
214, the court emphasised the importance of having a search list because it demonstrates the officer's
integrity in conducting the search. The court stated that the accused's signature on the search list was just
acknowledgment of receipt of the report and not a confession.

- Explain the case of San So Haa in detail. Court will scrutinize the recovery of the items seized.

In the circumstances in which the search list is not prepared, the police's integrity will be
questioned. This can be illustrated in the case of Liaw Wee Seingy v PP [2012] 2 AMR 455, where the
court stated that although the production of the search list is not compulsory, it will demonstrate the
integrity of the officer who conducted the search. Another similar case can be seen in San Soo Ha v PP
[1968] 1 MLJ 34, it was contended that the officer who conducted the search did not prepare a search list
as required under Section 64 of the CPC. The court held that the failure to comply with Section 64 of the
CPC to prepare a search list does not entitle the appellant to an acquittal and such failure would only cast
doubt on the bona fides of the parties conducting the search. Moreover, in Isidro Leonardo Quito Cruz v
PP [2013] 2 MLJ 1, the issue raised was on the arresting officer's failure to produce a search and seizure
list after the appellant was arrested in the KLIA arrival hall. The evidence shows that another officer was
together with the arresting officer when a body search was conducted on the appellant and he gave
testimony before the court. Hence, the court concluded that those so-called flaws did not vitiate the
prosecution case. The failure on preparing the search list will only be fatal if it is prejudicial as per the
case of Alcontara a/l Ambrose Anthony v Public Prosecutor [1996] 1 MLJ 209.
In this current situation, Sergeant Alfa discovered spare parts and components of luxury
motorbikes stored in the garage, he got suspicious and started an immediate search outside the house.
When he noticed the kitchen door was open, he forced it open and entered the house through it. During the
search, a dismantled plat number was discovered in a storeroom that was similar to the number of a
motorbike reported to be stolen kept at the storeroom. Maria and Masdor were arrested, and the items
were seized and brought to the police station.
By applying Section 64 of the CPC, a list of all things seized when Sergeant Alfa conducting a
search which are spare parts and components of luxury motorbikes kept at the garage and a dismantled
plat number in a storeroom similar to the number of a motorbike reported to be stolen kept at the
storeroom shall be prepared and signed by him. Sergeant Alfa then shall deliver a copy of the list prepared
and signed by him to Masdor and Maria as per Section 65 of the CPC. Nevertheless, the search list of
items seized was not prepared and thus, could not be tendered. By referring to the case of Liaw Wee
Seingy v PP and San Soo Ha v PP, the search list demonstrates the integrity of Inspector Alfa who
conducted the search at the house belonging to Masdor and Maria. The failure to comply with the
provisions relating to the search list may cast doubt upon the bona fides of the parties conducting the
search. However, it is obvious that the stolen items were recovered from the possession of the Masdor
since Masdor is the occupant of the house. Hence, in spite of the fact that Sergeant Alfa did not prepare
the search list and it could not be tendered, it merely cast a doubt on the prosecution’s case and the non-
production of the search list at the trial will not adversely affect the prosecution’s case as Sergeant Alfa
only did not comply with the procedure. In contrast with the case of Alcontara a/l Ambrose Anthony v
Public Prosecutor, the failure to prepare the search list would not be fatal as there is no acute conflict on
such evidence.
Further, by pursuant to the case of Isidro Leonardo Quito Cruz v PP, although the search list of
items seized was not prepared and tendered, Masdor will not be acquitted as Sergeant Beta, a witness to
Sergeant Alfa's search, testified in the court to support the non-production of the search list at the trial.
Sergeant Beta's testimony had corroborated Sergeant Alfa's evidence as it can be assumed that there is no
contradict evidence made by them during the trial. Hence, as both Sergeant Beta and Sergeant Alfa
testified in the court, Masdor cannot argue that the evidence was obtained in an unauthorised manner,
which would be fatal to the case as there is no law that makes such evidence inadmissible. In this case,
there is no doubt that Masdor stole the items mentioned above.
To conclude, as the Magistrate, Masdor would still be convicted for retaining stolen property
although the search list of items seized was not prepared and tendered as it will not cause the case to be
fatal.

ARREST

The third issue is whether the arrest conducted by Sergeant Beta and Sergeant Alfa towards Maria
and Masdor was lawful.

- Arrest of Maria for what offence? Cheating or retaining stolen property or both? Discuss sec
23. Arrest of Masdor for retaining stolen property – also sec 23

Under Black’s Law Dictionary, arrest is defined as to deprive a person of his liberty by lawful authority.
Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to
answer a criminal charge. There are 2 types of arrest which are an actual arrest and constructive arrest.
Yet, in PP v Kang Ho Soh [1992] 1 MLJ 360, it was mentioned that it is not important whether the arrest
is constructive or actual as Section 15 of CPC has clearly stated that when the person submits to custody,
then there is an arrest. Here, there was an arrest towards Maria and Masdor by both officers in which they
were arrested and brought to the police station.
Section 23 of CPC allows a police officer to arrest without a warrant. Section 23(1)(a) of CPC
provides power for Sergeant Beta and Seregant Alfa to arrest Maria and Masdor without a warrant
provided that the offences committed by them were seizable offences by virtue of Section 2 of CPC. The
offence committed by Maria could be regarded as cheating and dishonestly inducing delivery of property
under Section 420 of Penal Code (PC). While the offences by Masdor were housebreaking under Section
457 of PC and theft under Section 379 of PC and punishable under section 379A of PC. All the alleged
offences are seizable offences. Furthermore, this section also requires Sergeant Beta to have reasonable
suspicion against Maria and Masdor, to enable him to effect the arrest. As in the case Mahmood v
Government of Malaysia & Anor [1974] 1 MLJ 103, the Court is satisfied that there exist sufficient
grounds to raise a reasonable suspicion that a seizable offense has been committed and thus, the second
defendant was entitled to use all venues or means necessary to effect their arrest and capture.
Applying the issue, there was a reasonable suspicion towards Maria as there was credible
information from Cantik and other persons and the body search confirmed her identity as the holder of the
account who cheated on them. There was also a reasonable suspicion towards Masdor as there was a
report lodged on the incidents of house breaking and theft of motorbikes. Sergeant Alfa also discovered a
dismantled plat number similar to the number of a motorbike reported to be stolen kept at the storeroom.
Hence, it was sufficient for Sergeant Beta and Sergeant Alfa to invoke Section 23 of CPC.
To conclude, the arrest of Maria and Masdor conducted by Sergeant Beta and Sergeant Alfa
without warrant was lawful.

Arrest by private person

- Section 27

1st example
The issue is whether Apel’s arrest by Pak Mat and Ali is lawful?
The Criminal Procedure Code (CPC) or common law do not define the word “arrest”, however,
in Black’s Law Dictionary, “arrest” is defined as to deprive a person of his liberty by lawful authority.
Article 5(1) of the Federal Constitution states that “no person shall be deprived of his personal liberty in
accordance with the law”. This means that the arrest must be in accordance with CPC, otherwise it is
considered the suspected person is deprived of his liberty. Section 15 states that in making an arrest the
police officer or other person making the same shall touch or confine the body of the person to be arrested
unless the person submitted by word or action. Three modes that amount to arrest are, actual touching, by
confining the body of the person to be arrested or submission to custody by word or action.
Arrest can be categorized as constructive arrest or actual arrest. Actual arrest means that whatever
constitutes a valid arrest under the Code. In the case of PP v Johari bin Abdul Kadir [1987] 2 CLJ 66,
the court held that he was arrested because if the man tried to escape from the bus, the police would have
stopped him. While constructive arrest can be seen in the case of PP v Roseyatimah bte Neza & Anor
[1989] 1 MLJ 360, the court held that there was arrest as she was in the state of being watched or guarded.
A person was under arrest if it can be implied that personal liberty has been restrained. The case of
Sha’aban v Chong Fook Kam [1969] 2 MLJ 219 provides three situations that constitute a valid arrest
which must adhere to Section 15(1) of CPC. Firstly, the arrestor states a clear term, secondly, there is a
use of force by the arrestor, third, though the arrestor did not use force but it is clear from his words or
actions that he will use force to prevent the individual from fleeing. While in the case of Jayaraman &
Ors v PP [1982] 2 MLJ 306 FC, it was held that the statement “Don’t go anywhere” did not constitute an
arrest. But it is observed that there was an arrest because the liberty of the people was restrained.
Considering that the men were at the place where the attacks took place, it would be rational for the men
to not move when the police told them so.
Section 27 of the CPC provides that a private person may arrest without warrant any person who
commits a non-bailable and seizable offence in his view. The person arrested must be handed over without
unnecessary delay to the nearest police officer or police station. The private person may only exercise this
when the offence in question is committed in his view. “View” here has two interpretations which are his
sight, or his opinion. The strict interpretation in Durga Singh [1963] 1 Gr LJ 827 states that “view”
means in his presence. The case of PP v Sam Hong Choy [1995] 4 MLJ 121 laid down the liberal
interpretation “in his view” as such close proximity to the scene. It was held that a man committing a non
bailable and seizable offence and tries to escape, is to be treated as one single transaction. Though the
private person did not actually witness the non bailable offence and seizable offence, it suffices when he
was certain that the persons running away were the offenders. The case of Nazir v Rex AIR 1951 All 3,
liberal approach not only interpreted “view” as only his sight, but also his presence, but in Sheo Balak
Dusadh v PP 1948 AIR All 103 held that the act of running and robbery itself constitutes a series of
action. Seeing another man running is considered that he had seen an act which constitutes the action of
robbery as a whole.
By applying Section 15 of the CPC, Pak Mat and Ali can be presumed to have made an action to
arrest. Ali as the passer-by had chased after Apel and successfully grabbed him by touching him, while
Pak Mat’s action amounted to Apel's arrest when he shouted to Ali to assist him in arresting Apel. Both
actions of Ali and Pak Mat linked with Article 5(1) of Federal Constitution and falls under the definition
of “arrest”, where Apel’s liberty of moving around has been deprived by Ali and Pak Mat. It can be said
that both Ali and Pak Mat had done a constructive arrest towards Apel, by referring to the case of PP v
Roseyatimah bte Neza, Apel is in the state of being held guarded, firstly when he was chased by Pak
Mat, and secondly when he was caught by Ali. These two events proved that Apel’s personal liberty has
been restrained.
Next, Pak Mat chased Apel falls under the first situation under the case of Sha’aban v Chong
Fook Kam, where he shouted to Apel immediately after he saw Apel was taking money from Nenas
aggressively. He also fits the third situation where he clearly showed that by chasing Apel is for the
purpose to prevent Apel from getting away. While Ali falls under the second situation under the same case
as he used force upon Apel in order to arrest him for Pak Mat. By applying the case of Jayaraman & Ors
v PP, Pak Mat and Ali’s actions indeed constitute an arrest by limiting Apel’s liberty.
Based on Section 27 of the CPC, Apel’s taking away Nenas’s money and kicked his bicycle are
non-bailable and seizable offence, witnessed by Pak Mat. Pak Mat and Ali are private person to arrest
Apel and hand him over to the police authority immediately. As for Pak Mat, his “view” suits the strict
interpretation under the case of Durga Singh as he was presence in the situation when Apel kicked
Nenas’s bicycle and took his money forcefully. By applying PP v Sam Hong Choy also, he can be said to
be in close proximity to the scene as he witnessed Apel’s actions. After he shouted only Apel ran away,
hence this falls under liberal interpretation. While for Ali, he also falls under liberal interpretation as per
PP v Sam Hong Choy, he saw Apel was running away and he heard Pak Mat was shouting for him to
catch Apel, though he did not see the non-bailable offence committed by Apel, but seeing Apel ran away
after being chased by Pak Mat is sufficient and reasonable for him to make the arrest upon Apel. While for
Ali, as referring to the case of Sheo Balak Dusadh v PP, Ali saw Apel run away and listening to Pak
Mat’s shouting to catch Apel is considered as one transaction under liberal approach.
For conclusion, Pak Mat and Ali under Section 27 legally arrest Apel as they are private person
and Apel committed non-bailable offence and seizable offence as he kicked Nenas’s bike and took away
his money, hence Apel’s arrest by Pak Mat and Ali is lawful.

2nd example

Jambu questioned the legality of Mangga’s actions in arresting him. Discuss whether
Jambu can be successful in taking action against Mangga.

The issue is whether Jambu may take action against Mangga on the legality of his arrest.

Section 27(1) CPC provides for private persons to be vested power to make an
unwarranted arrest, provided that it is in his view, such a seizable offense that is non-bailable had
been committed, or, he has been proclaimed under Section 44 CPC. Furthermore, the offense of
theft as per Section 3787 is an offense that can be arrested without a warrant as per section
379,referring to the First Schedule of CPC. Section 27(1) also provides that a private person
must hand over the arrested persons without necessary delay to the nearest police officer or the
police station, if the former is not present. If the offender is found to be as prescribed in the
descriptions of Section 23, police officers are to re-arrest the offender as per Section 27(2)8.
Thus, in order to allow unwarranted arrest by a private person, it must be proven that the seizable
offence had taken place “in his view”, and that is to be strictly interpreted as within his sight as
derived from the case of Durga Singh9. However, the case of PP v Sam Hong Choy10 had “in his
view” to be interpreted liberally. One of the issues in this case was whether the private person
was lawfully empowered to arrest the appellant as he heard a person yelling “tolong kejar,
perompak!” while hearing the sound of a gunshot. It was argued by the respondent counsel in
following the interpretation of Section 59 of Indian CPC that a private person is lawfully
empowered to arrest a person who has committed “in his view” should not only have its meaning
to the extent of “his sight”, but it shall include “in his presence”, as in Nazir v Rex11.Despite so,

7 Note at 3.
8 Ibid.
9 [1963] 1 GR LJ 827
10 [1994] 4 MLJ 433
11 1951 AIR All 3
any arrest should not be made on the basis of mere opinion or suspicion, as this would only defeat
the purpose of this provision. It was held that even if private person had not witnessed the offense
committed, he was certain that offender was escaping after committing offense was not based on
mere suspicion. the proximity test shall be applied in determining if the private person was within
proximity of the offense being taken place for him to act as per Section 27.

On the facts, if it were constituted that Jambu had committed theft that may be arrested
without warrant as per Section 379, Mangga had acted as a private person in arresting Jambu
despite absence of a warrant and is permitted as per Section 27 as it is within his view that when
he chased after Jambu, in applying the proximity test, he was certain there had been a seizable
offense committed when he saw Sergeant Neutron shouting and pushing aside customers sitting
around at the cafe and later stumbled on the road in pursuit of Jambu.Despite Mangga having not
witnessed the alleged offense of snatch theft committed, Jambu attempting to escape from being
pursued was him acting as an offender and would form as part of a single transaction and should
be constituted as the commission of offence had transpired within the view of Mangga. On this
basis, in applying the facts of Sam Hong Choy, given that the view of Mangga was interpreted
liberally, Mangga is entitled to arrest Jambu in accordance with Section 27(1). Furthermore,
despite Mangga having lost the whereabouts of Sergeant Neutron upon arresting Jambu, he
handed Jambu over to the nearby police station at Section 2, Shah Alam without any necessary
delay as required in the same provision.

In conclusion, Jambu may not take action against Mangga as he was lawfully empowered
to arrest Jambu by virtue of Section 27 and has adhered to its requirements.

Arrest by Police Officer ranked Constable

The issue is whether the arrest conducted by Constable Nano on Oren is lawful?
First sub-issue is whether the requirement of arrest under the Criminal Procedure Code (CPC) is fulfilled?
- Section 23(1)(a)
Arrest is defined in Black’s Law Dictionary as deprivation of personal liberty by lawful authority
by lawful authority. Article 5(1) of the Federal Constitution provides that no person shall be deprived of
his personal liberty in accordance with the law. Thus, arrest must be in accordance with law, otherwise the
suspected person will be deprived of his personal liberty. Section 2 interprets seizable offence as offence
where police officer may arrest without warrant. Under First Schedule, offence of extortion is a seizable
offence, whereby Section 384 provides that whoever intentionally puts any person in fear of any injury
and thereby dishonestly induces that person to deliver property commits “extortion”.
In the current situation, Oren threatened Jambu to expose Jambu’s father’s drug addiction on the
school’s Twitter account forcing Jambu to give his watch to Oren. This amounts to the offence of
extortion under Section 384 and consequently it falls within a seizable offence within interpretation of
Section 2 and allowing Constable Nano to arrest Oren without warrant.
Actual arrest was illustrated in the case of PP v. Johari bin Abdul Kadir [1987] 2 CLJ 66, it
was arrest because if the man tried to escape from the bus, the police would have stopped him. Section 15
states that in making an arrest the police officer shall touch or confine the body of the person to be arrested
unless there is a submission to the custody by word or action. An arrest will only be lawful if the police
satisfy the requirements in Section 15. Case of Sha’aban v. Chong Fook Kam [1969] 2 MLJ 219
highlighted elements constituting a valid arrest. Arrest occurs when a police officer states in terms that he
is arresting or when he uses force to restrain the individual. It occurs also when, by words or conduct, he
makes it clear that he will, if necessary, use force to prevent the individual from going where he may want
to go.
Here, in accordance with Section 15, Constable Nano had arrested Oren by way of touching him
and confining Oren’s body. As illustrated in PP v Johari bin Abdul Kadir, it is an actual arrest based on
the act of handcuffing Oren, it can be said that Constable Nano would not want him to escape. Referring to
Sha’aban v. Chong Fook Kam, arrest occurred here when Constable Nano used force to restrain Oren by
pushing him through the wall, handcuffing him and pulling him out of the Internet Café.
According to Section 23(1)(a), a police officer may arrest without warrant any person who has
been concerned in a seizable offence and a reasonable suspicion exists of his having been so concerned.
To illustrate on reasonable suspicion, the case of Tan Eng Hoe v AG [1933] MLJ 151may be referred to.
Here, the applicant fitted the description of the offender, he looked physically similar to the perpetrator.
The court held a reasonable man would have suspected the applicant of being the offender in the
circumstances thus the police was justified in arresting him without warrant.
Here, Constable Nano is a police officer and the offence committed by Oren is extortion, which is
a seizable offence thus Section 23(1)(a) is applicable here and Constable Nano may arrest him without
warrant. In addition, by virtue of Section 23(1)(a), the requirement of arrest applicable here is reasonable
suspicion. Similarly with the case of Tan Eng Hoe v AG, description of Oren, who was wearing a blue
colored shirt has been communicated by Sergeant Omega to Constable Nano. Putting on the analogy of
the reasonable man, it is reasonable for Constable Nano to suspect Oren to be the offender informed by
Sergeant Omega due to the similar description such as the blue coloured shirt worn by Oren. Thus, the
requirement of reasonable suspicion under Section 23(1)(a) is fulfilled. To conclude, the requirement of
arrest under Section 15(1) and Section 23(1)(a) CPC has been complied with.
Arrest involving a child
However, in arresting a child, Section 83A of Child Act 2001 (CA) must be referred to. This
section provides that a child cannot be handcuffed following arrest unless the offence he is held for is a
grave crime, or the child forcibly resists arrest, or attempts to evade arrest. Case of Re N (A Child) [2003]
3 MLJ 45, the court Section 83(1) of Child Act makes it manifestly clear that the arrest and detention of
a child has to be in accordance with the Act thereby rendering CPC inapplicable as expressly provided
and Section 110 of the Act which provides for the arrest of 'any person' for the commission of any offence
against the Act to be in accordance with the CPC must be interpreted as being applicable to a person who
is not a child.
Here, it can be assumed that Oren is a school student, below 18 years old as it was mentioned in
the fact about e school’s Twitter account, and is therefore a child within the meaning of the CA. By virtue
of Section 83A of CA, the procedure to arrest Oren must be in compliance with this Section. Case of Re
N (A Child) illustrates that the arrest of a child must be in accordance with this Child Act. Here,
Constable Nano did not comply with this provision as he handcuffed Oren. There is no necessity to
handcuff Oren because Oren has obediently followed Constable Nano’s instruction thus Oren did not
forcibly resist the arrest or attempted to escape. In addition, the crime of extortion is not a grave crime.

Next, the issue of whether the use of force during arrest is valid will be discussed. Section 15(1)
of CPC clearly states that a police officer only needs to touch or confine a person to effect an arrest.
Therefore, force cannot be used against a person who has submitted to police custody. Based on Section
15(2), if a person forcibly resists the arrest or attempts to evade the arrest, the officer may use all means
necessary to effect the arrest. Thus, the police have the right to use reasonable force if the person resists.
But, Section 19(1) states the person arrested shall not be subjected to more restraint than is necessary to
prevent his escape.
In the current situation, despite the fact that Oren obediently followed Constable Nano’s
instructions, Nano still pushed Oren roughly towards the wall. By virtue of Section 15(2), Constable Nano
is allowed to use force in arrest if Oren resisted the arrest. However, there is no resistance in the
beginning, thus the rough push against the wall is not reasonable. Next, by virtue of Section 19(1),
considering the young age and condition of Oren who was scared during that moment, it is unnecessary to
drag Oren out roughly from the Café which resulted in more bruises on Oren’s body. It can be said that
Constable Nano violated Section 19(1) by using excessive force. Even though Constable Nano might be
required to use force towards Oren when Oren kicked his leg, only proportionate restraint is allowed and
not an excessive one.
Therefore, Constable Nano has violated Section 83A of CA by handcuffing Oren even though no
resistance to arrest was made by Oren. Next, Section 15(2) may be invoked to justify Constable Nano’s
using force against Oren however, as the force used is excessive, Section 19(1) is not complied with. To
conclude, Constable Nano’s arrest against Oren is not in compliance with procedures under CPC
rendering the arrest unlawful.
In conclusion, the requirement for arrest under Section 15 and Section 23(1)(a) has been fulfilled
by Constable Nano however Section 19(1) of CPC and Section 83A of Child Act were not complied with
thus the arrest is unlawful.

SECTION 28A of CPC

Jambu is feeling distressed for not being able to contact Pisang. Discuss the propriety of the
actions undertaken by Inspector Proton.

The issue is whether Inspector Proton has conferred rights to Jambu as an arrested person.

It is a fundamental right for any person arrested to be informed on the ground of their
arrest immediately upon apprehension as vested in Article 5(3) of the Federal Constitution.
Section 28A CPC consequently lays out rights provided for an arrested person, including their
right to be informed of their ground of arrest as per Section 28A(1) CPC. this was decided in
Abdul Rahman v Tan Jo Koh 12 where it is an entitlement for the arrested person to be
immediately made known on his reason of arrest. Section 28A(2)(a) CPC requires the officer to
inform the arrested persons that he can communicate with two classes of persons- either his
relative or a friend to inform them on his location, or to consult a legal practitioner in (2)(b),
before being put in question to extract statements from arrested person. On this basis, the
communication must be put into effect immediately by the officers if the arrested person intends
to communicate either by (a) or (b) as per Section 28A(3 CPC. LP Suffian in Ooi Ah Phua13
requires balance to be met between rights conferred to consult his own lawyer for an arrested
person and a police officer performing his duties in protecting the public from offenders by
arresting them to attain evidence born on them as it should not detriment the course of
investigation. On that note, the burden to prove cause of delay would lie on the officers and may
be challenged if the burden was not discharged. The rights conferred as per Section 28A(2) shall
not be applicable for the police officers to be in compliance with if it would allow any
accomplice of the person arrested to figure out a plan in avoiding arrest or if there would arise
any fabrication of evidence or concealment of witness in Section 28A(8)(a)(i) and (ii) CPC. It

12 [1968] 1 MLJ 205

13 [1975] MLJ 198
shall also be inapplicable if there is any urgency in recording any statements to ensure safety of
other persons, as provided in Section 28A(8)(b).The exception of non-adherence to rights
provided in section 28A shall only be authorised upon application by any officers that are above
the rank of Deputy Superintendent of Police, as mentioned in Section 28A(9) CPC. Hence,
Section 28A(10)CPC demands the reasonings for the authorisation required in subsection (9) to
be documented and recorded immediately on why the officer reasonably believes that it should
not be complied with as per the circumstances described in subsection (8).if the situation in (8)
has concluded and cease to exist, and he maintains as an arrested person under detention, the
abovementioned rights for an arrested person shall immediately apply and the officers shall be
noncompliance of such rights, as per section 28A(11) CPC.

Applying the above provisions and case to the instances, Jambu, as an arrested person, is
vested with rights stipulated in Article 5(3) of FC and Section 28A, in applying the case of
Abdul Rahman. Thus, as the officer in charge, Inspector Proton must act in accordance with the
above-mentioned provisions. Other than having to inform Jambu on his ground of arrest
immediately as per Section 28A(1), he was also entitled to make communication with Pisang, a
friend to Jambu to inform him of his whereabouts in fulfilling Section 28A(2)(a). Inspector
Proton is thus placed under obligation to allow the communication to be made between Jambu
and Pisang in applying Section 28A(3) immediately before beginning the questioning of Jambu.
However, in the facts, Inspector Proton had immediately carried on attaining statement from
Jambu and consequently had made no effort to contact Pisang, despite it being a right vested for
Jambu. the exception provided in Section 28A(8) in not adhering to arrested person’s rights
would not apply in the current situation as Inspector Proton had insufficient reason to believe that
there would be any tampering of evidence or concealment of witness would take place by Jambu
as per Section 28A(8)(i) and (ii) subsequently. Applying Ooi Ah Phua to the present case,
Inspector Proton is required to provide proof on his conduct to deny Jambu from communicating
with Pisang as per Section 28A, and that if such communication was allowed, it would affect the
course of investigation in ensuring public safety.

In conclusion, Inspector Proton was not acting in accordance with Section 28A of CPC.

REMAND
The issue is whether Sergeant Beta may apply for a remand of Maria and Masdor and the
possibility of it being granted.
- Discuss both Maria & Masdor separately : remand for what offence and the requirements for
the application
Article 5(4) of the Federal Constitution and general rule in section 28 of CPC provides that no
person shall be detained for more than 24 hours. Section 117(1) of CPC provides that whenever any
person is arrested and detained in custody and it appears that the investigation cannot be completed within
the period of twenty-four hours and there are grounds for believing that the accusation or information is
well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy
of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the
accused before the Magistrate. Based on this Section, there are three elements that need to be fulfilled
before a remand application can be granted. Firstly, the accused must be produced before a Magistrate to
enable the magistrate to see the necessity of remand and enable the accused to make any representation.
Based on the given situation, after a period of 24 hours, police must produce Maria and Masdor before a
magistrate for application of remand with the purpose of completing the investigation as per Section 117.
Failure to produce them before a magistrate would be a violation of Article 5(4). The fact is silent on the
production of them before the magistrate thus this element will be fulfilled once they are produced before
the magistrate.
Secondly, there must be furnishing grounds for believing that the accusation or information is
well founded. The case of Dasthigeer Mohamed v Kerajaan Malaysia [1999] 6 CLJ 317 illustrates that
a remand order cannot be based solely on the fact that a serious crime has been committed and that the
person arrested is a suspicious person. It must be based on some degree of confidence that he is the
wrongdoer and that the remand is necessary to complete investigations, which cannot be achieved if he is
released on bail. In the current situation, Sergeant Beta must show that the grounds for believing that the
accusation is well founded exist. Here, the ground could be the fact that the search in Maria and Masdor’s
house resulted in discovery of a dismantled plat number similar to the number of a motorbike reported to
be stolen. Referring to Dasthigeer Mohamed v Kerajaan Malaysia, there is a degree of confidence that
Masdor and Maria are involved in the stolen motorbike’s case as the dismantled plate numbers were found
at their place, hence the remand is necessary for the police to complete the investigation. Even though
Maria denied the knowledge of the stolen items, the accusation is still well founded as Maria lives in the
house where the stolen items were found hence there is a ground to believe that she might be involved in
stealing the items. In addition, a further investigation found that Masdor was previously convicted for the
offence of stealing which strengthened the suspicion that Masdor is involved in the crime. Furthermore,
the investigation revealing the previous conviction of Masdor indicates that the 24 hours has been utilised
by the police and result in a useful finding however the 24 hours is not adequate to complete the
investigation hence remand is necessary. Therefore, this element is satisfied.
Thirdly, the investigating officer must produce the Investigation Diary to the Magistrate.
According to Section 119 of CPC, investigation diary is a day by day record need to be maintained by
every investigating office and the content includes the time at which the order, if any, for investigation
reached him, the time at which he began and closed the investigation, the place or places visited by him
and a statement of the circumstances ascertained through his investigation. By virtue of Section 117(1)
and Section 119, the production of investigation diary is mandatory. This can be seen in the case of PP v
Audrey Keong Mei Cheng [1997] 3 MLJ 477 whereby the court emphasised that it is mandatory for the
police to produce a copy of the diary as prescribed by s. 119 of the CPC and failure would allow
application of further detention. Besides that, in Re Detention of R. Sivarasa & Ors [1997] 1 CLJ 47, no
transmission of proper entries of diary was held to be fatal to the application for the extension of remand,
as it meant that the Magistrate did not have the prescribed material to act upon in his judicial enquiry in
deciding whether or not to order further remand. In the given situation, further investigation revealed
previous conviction of Masdor thus it can be said that the police has conducted the investigation and the
details of the investigation should be included in the diary and be produced before the magistrate as it is a
substantial material for a magistrate to act on his judicial enquiry and determine whether remand to be
granted or not as explained in the Re Detention of R. Sivarasa & Ors. In addition, Sergeant Beta must
describe the investigation adequately and diligently in the entries of the diary. The production of the diary
with proper and complete content of the diary will fulfil this element. On the other hand, if Sergeant Beta
fails to produce this diary or produce an inadequate entry of diary, the application for remand will be
rejected as discussed in Re Detention of R. Sivarasa & Ors.
Next, according to Article 5(4) of FC, the magistrate shall grant the remand order of a person
arrested and detained in custody so that the police can complete their investigation. In the case of Re
Detention of R.Sivarasa & Ors, it was mentioned that grounds mentioned in Section 117(1) are subject
to judicial scrutiny and the Magistrate shall evaluate the necessity to grant a remand order and the liberty
of an individual after arrest is at stake and Art. 5(4) of the Federal Constitution reposes a judicial duty on a
Magistrate to decide whether a person should be detained. Here, the magistrate has a judicial duty to
decide whether to grant an application of remand of Maria and Masdor. Assuming all elements of remand
have been fulfilled, there is a high probability that the remand application will be granted by the
magistrate as the magistrate will likely be satisfied that remand is necessary to help complete investigation
considering the fact that all elements are fulfilled and Section 117(1) has been complied with.
In conclusion, Sergeant Beta may apply for remand of Masdor and Maria as Section 117 of CPC
has been complied and there is a high probability that the order of remand will be granted.

REQUEST TO ACCESS ID
In addition, Section 119(2) of the CPC states that an accused person shall not be entitled to
inspect the diary either before or in the course of any inquiry or trial. This can be illustrated in Saul
Hamid v Public Prosecutor [1987] 2 MLJ 736 where the arrested person is not entitled to call for or
inspect the ID unless the police officer concerned refers to it for purposes of sections 159 or 160 of the
Evidence Act, 1950, in which only such parts of it as are referred to shall be shown to the arrested person.
Similarly, the case of Re The Detention of Leonard Teoh Hooi Leong [1998] 1 MLJ 757 also
emphasised that neither the accused person nor his counsel would have any means of knowing the entries
of the diary before or in the course of any inquiry or trial. In this instant case, by referring to Section
119(2) of the CPC and the above cases, Apel’s counsel has no right to inspect the ID unless Plato or
Inspector Bruno makes disclosure thereof during the remand proceedings and if Inspector Bruno refers to
it for purposes of Section 159 or 160 of the Evidence Act 1950, to refresh Apel’s memory and only such
parts of it shall be shown to the arrested person as in Section 119 CPC. There is nowhere in the fact which
stated that Plato or Inspector Bruno makes disclosure under Section 159 or 160 of the Evidence Act.
Thus, although Plato granted the remand application without taking into account a request made by Apel's
defence counsel to inspect the particulars in the Investigation Diary during the remand proceeding, it is
still considered to be legal.
Other than that, in Bal Krishna v Emperor AIR 1931 Lah 99, the Magistrate has a duty to
balance between allowing the police to conduct investigation and also not depriving the person of his
fundamental liberty. Further, in Re Detention of R.Sivarasa & Ors, the grounds mentioned in Section
117(1) are subject to judicial scrutiny and the Magistrate shall determine the necessity to grant a remand
order and a Magistrate has a judicial duty under Article 5(4) of the FC to decide whether a person should
be detained.
In the current case, Plato has a judicial duty to decide whether to grant an application of remand
for Apel. Since there are good grounds for the application of remand to be granted, Plato must have been
satisfied that remand is necessary to help complete investigation because all elements are fulfilled under
Section 117(1) and Section 119 of the CPC.
In conclusion, Plato has satisfied that the remand is absolutely necessary in order for Inspector
Bruno to complete their investigation. The decision made by Plato in granting the remand application is
considered legal as there was good grounds for granting the remand and all the elements under Section
117 and 119 of the CPC have been fulfilled.

LEGALITY & PROCEDURE OF ISSUANCE OF SUMMON/WARRANT

The issue is whether the issuance of a warrant by Tolstoy, the Magistrate against Constable Nano is
legal?
The first sub-issue is whether Tolstoy has a good ground to issue the warrant in the first place?
Summons and warrants of arrest are the means by which a person accused of an offence is brought
to court to face criminal proceedings against him. A ‘summons case’ is defined under Section 2(1) of
CPC to mean a case relating to an offence not being a ‘warrant case’. For a summon to be valid, it must
satisfy the requirement under Section 35 of CPC whereby it must be in writing, clear and specific, signed
by the Registrar and sealed by the court. In Michael Raymond Taylor v PP [1989] 3 MLJ 212, a person
who appears before a court in obedience to a summons surrenders himself to the custody of the court.
Whereas a ‘warrant case’ relates to an offence punishable with death or with imprisonment for a term
exceeding 6 months as per Section 2(1) of CPC. Section 38 of CPC stipulated that a warrant of arrest
shall be issued by a court, be in writing, signed and bear the court’s seal. The warrant may be issued; (1)
Magistrate’s court of any class; or (2) a sessions court or its registrar, as per Section 5(1) of Subordinate
Courts Act 1948.
Column 4 to the First Schedule of CPC provides a guide for the specific process on whether a
warrant or a summons shall be issued in the first instance. Here, Lawa lodged a report under Section 323
of PC against Constable Nano. Pursuant to Column 4 to the First Schedule of CPC, it specifically stated
that for the offence of voluntarily causing hurt under section 323 of the PC, a summons shall ordinarily
be issued in the first instance. Therefore, Tolstoy has no good ground to issue the warrant in the first place.
The second sub-issue is whether the issuance of warrant is done properly or not?
In the process of initiation of proceedings, according to Section 128 of CPC, pertaining to
cognisance of offences by a Magistrate, a Magistrate may take cognisance of an offence in the event of;
(a) upon receiving a complaint. Complaint under Section 2(1) of CPC is defined as an allegation made
orally or in writing to a Magistrate with a view to his taking action that some person, whether known or
unknown, has committed or is guilty of an offence.
Under Section 133 of CPC, pertaining to an examination of complainant, subsection (1) stated that; (a)
the Magistrate shall set a date for the examination of the complainant; (b) the Magistrate shall serve on the
Public Prosecutor (PP) a notice in writing at least 7 clear days before the date of the examination. The
notice must specify the date of the examination, and particulars of the complaint received; (c) the
Magistrate shall not proceed with the examination unless the prescribed notice under (b) has been served
on the PP; (d) on the date of examination, the complaint shall be reduced into writing and signed by the
complainant and the Magistrate and; (e) the PP may appear and assist the Magistrate during the
examination. In Re Rasiah Munusamy [1983] 2 MLJ 294, the Magistrate must first, upon receipt of a
complaint under section 133(1) and 132 is at once to examine the complainant upon oath and reduce the
substance of the examination into writing which shall be signed by the magistrate and the complainant. It
is a kind of a preliminary enquiry, but care must be taken not to inquire into the case for the defence.
Section 133(2) of CPC stated that this section will not be applicable when the application is made
by a police officer, public officer or a public servant acting in his official capacity, meaning that it only
applies to a complaint made by a private person. The Magistrate, after satisfied as to the allegations in the
complaint, could order a summons be issued and order for the attendance of the accused by virtue Section
136(1) of CPC. Furthermore, under Section 47 of CPCs, application for warrant may be issued in lieu of
a summons if the Magistrate sees reason to believe that the person complained against has absconded or
will not obey the summons as per the case Karpal Singh v PP [1991 ] 2 MLJ 544.
To apply, Tolstoy, the Magistrate took cognisance on the complaint by Lawa against Constable
Nano pursuant to Section 128(1)(a) of CPC under Section 323 of PC that she sustained bleeding and
bruising on her body. In the process of examination of complaint, on 30 June 2019, Tolstoy has set the
date of examination to 20 July 2019 as per Section 133(1)(a) of CPC and then informed the PP the
intention to conduct examination, 20 days before the examination. However, the notice must be served in
writing yet Tolstoy only informed the PP. Thus, it does not comply with Section 133(1)(b) of CPC and
pursuant to Section 133(1)(c) of CPC, examination shall not proceed. On the issue of DPP’s absence
during examination, the ‘may’ in Section 133(1)(e) of CPC indicated that the absence of DPP will not
affect the examination. Furthermore, since this is a complaint by a private person, Section 133 of CPC
must be adhered to. Yet, Tolstoy did not follow the procedure especially under Section 133(1)(b) of CPC.
The act of conducting the examination although not following the law and procedure shows that Tolstoy
was not acting professionally, given he is a Magistrate. Thus, the examination conducted is illegal.
Subsequently, during the examination, after being satisfied with Lawa’s police report and
application of issue of summons, Tolstoy ordered the issue of warrant against Constable Nano instead of
issue of summons which contrasted Section 136(1) of CPC. Referring back to the first issue, it was
correct for Lawa to apply summons but Tolstoy was wrong to issue a warrant as he did not follow the
column 4 to the First Schedule of CPC that for offence under Section 323 of PC, summons shall be
issued at the first instance.
To conclude, Tolstoy, the Magistrate, has no good ground to issue the warrant in the first place.
Moreover, the procedure was not properly done under the Criminal Procedure Code. Therefore, the
issuance of a warrant against Constable Nano is illegal.

ORDER FOR ATTENDANCE

The issue is whether the order for attendance made by Constable Nano to Sunny is lawful?

Section 13(1) of CPC provides that the public are obliged to report to the police if they know of a
crime. In the case of Jusninawati bt Abdul Ghani v PP , the court affirmed that the new amendment of
Section 13(1)(a) CPC puts a duty on the public to give information about the commission of an offence
punishable under the Code or any other written law. Failure to follow such law will be punishable under
Section 176, with penalties of up to six months’ imprisonment, a fine of up to RM2,000, or both,
depending on the type of information withheld.
Attendance of witness in general terms is the power vested to the policemen to require attendance
of a witness to give their testimony or insight in regards to the case. This is provided in Section 111 of the
criminal procedure court. Attendance of witnesses is purposely to question the said witness whereas there
is also power of the policemen to conduct such questioning sessions.
In Section 112, it vest the right of the investigation officer to question or examine any person.
Section 112(2) compels the person being questioned under obligation to provide answers to questions
produced by the officer in regards to the case. The said witness shall be legally compelled to speak only
the truth as per Section 112(3). Moreover, Section 112(4) puts an obligation on the police officer
conducting the oral examination to inform the person being examined, on their duty to answer all the
questions in truth as per (2) and (3).
Meanwhile in Section 113 is in regards to the admission of statements of evidence. Section
113(2) provides that When any witness is called for the prosecution or for the defence other than the
accused, the court shall, on the request of the accused or the prosecutor, refer to any statement made by
that witness to a police officer in the course of a police investigation.
In the case of PP v Sandra Margaret Birch [1977] 1 MLJ 129, the Court held the view that any
statement or information given must fulfill the requirements of section 113 of CPC. Namely before there
shall be no threat, inducement or promise was used and after arrest a proper caution ought to be
administered during questioning.
Furthermore, in this case the court also in view in order for a testament of a witness to be admitted
in court, the witness must be acquainted with the facts and circumstances of the case at the material
time. In other words, the said witness must be examined by the officers as soon as possible. It is noted that
whatever admission under 112 is not admissible in court. All the information pursuant to section 112 is
only to get information in assisting investigating. Hence the said admission is not admissible in court.
Whereas, Section 113 is the exception for section 112 and in order for it to be admissible the requirement
illuminated in PP v Sandra Margaret Birch [1977] 1 MLJ 129 must be fulfilled.
In Charles Ak Peter Nain (M) / Public Prosecutor v Public Prosecutor / Charles Ak Peter
Nain (M) (CROSS APPEAL) [2008] MLJU 279, the court stated that if the making of the statement
appears to the court to have been caused by any inducement, threat or promise having reference to the
charge proceeding from a person in authority and sufficient in the opinion of the court to give the person
charged grounds which would appear to him reasonable for supposing that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceeding against him, the statement
made would be inadmissible. Illuminating what had been affirmed in Sandra Margaret Birch.
From the facts of the case, Sunny has the obligation to make a statement to the authorities as per
Section 13(1) and he may be punished as pursuant to Section 176. Moreover, it is clear that Sunny was
being called right after Sunny refused to give his statement at the Cafe before. Constable Nano has the
right to make such an order to call Sunny to give his evidence as pursuant to Section 111. Furthermore,
Constable Nano has the power to question and examine Sunny as illuminated in Section 112. It would be
foreseen after the refusal by Sunny, Constable Nano viewed him as a main witness hence Sunny was
considered by Constable Nano as acquainted with the facts and circumstances of the case at the material
time. Furthermore, for the statement made by Sunny to be admissible in court, Constable Nano must not
apply threat or promise or any inducement to Sunny and cautiously when questioning him. Hence it is
clear all the requirements as per Sandra Margaret Birch has been fulfilled.
To conclude, Constable Nano was acting lawful in making such an order towards Sunny.

OBLIGATION TO PROVIDE INFORMATION

Whether Oren and Beta (eye witness) are under obligation to provide information to Sergeant
Omega. (10 Marks)
Section 13(1)(a)1provides the obligation on any person that is aware of the commission of any
offence punishable under Section 384 of the Penal Code which related to an offence of extortion, to give
information to the police officer at the nearest police station unless he has a reasonable excuse not to do
so.
Meanwhile, section 1762 makes it an offence if any person that is legally bound to give
information on the commission of an offence but refused to do so, to be punished with imprisonment for a
term which may extend to 6 months or with fine which may extend to RM2,000 or with both. In the case
of Bheema and Ors v State of Rajasthan 3, the court held that Section 176 of Indian Penal Code intended
to apply to parties who commit an intentional breach of obligation to report and not where the public
servant has already obtained the information from other sources. The mere fact that another person was
also present at the time of the occurrence and was under a similar obligation to report does not justify
omission to report. However, if the person legally bound to give information had no knowledge about the
matter, he would not be answerable under this section.
In application, Oren and Beta are aware of the extortion that occurred at Ah Peng’s stall as they
were there when it happened. Therefore, they have an obligation to make a report at the nearest police
station. If they refuse, they will be liable under Section 176 of Penal Code. By virtue of Bheema’s case,
Oren and Beta had committed breach of legal obligation to give information when they intentionally
refused to do so when they were aware of the situation. Furthermore, Oren also knows one of the men that
spoke to Ah Peng.
In conclusion, Oren and Beta are under the obligation to provide information to Sergeant Omega.

REFUSING TO ANSWER
The issue in this case is whether Beta had acted within his rights to refuse addressing
questions put forward by Inspector Proton during the investigation.
It is a public duty for any persons to provide information as enshrined in Section 134.
Every person that was acquainted on any commission of an offense prescribed under the Penal
Code as per Section 13(1)(a) is required to furnish the police with such information, either to the
nearest police station or to the officer in charge himself. 5.In Jusninawati binti Abdul Ghani v
Pendakwa Raya6 where the court interpreted the amendment of CPC in 2016 of this provision
was to cast a duty to the public to provide information on the offense punishable by PC. Failure
to do so by withholding themselves from omitting such datas would amount to an offense as per
Section 1767in withholding such knowledge regarding the case from any public servants with a
punishment up to a term of a month in imprisonment, or with a one thousand Ringgit fine, or
both. A six months imprisonment or a six thousand ringgit fine would be imposed if such
information omitted would assist in apprehending the offender, or preventing offender from
committing offense.
On the above basis, Section 1128 prescribes the process of investigation by the police
officer to conduct the examination of witnesses which shall be carried out orally. 9 Section 112(2)
compels the person being questioned under obligation to provide answers to questions produced
by the officer in regards to the case. However, the right to not answer questions is also
granted in Section 112(2) thought it is limited to questions that may be self-incriminating
towards the witness himself, that may reveal himself to be criminally charged, as in the case of
Francis Antonysamy v Public Prosecutor10.When producing such a statement, the said witness
shall be legally compelled to speak only the truth as per Section 112(3). Moreover, Section
112(4) puts an obligation on the police officer conducting the oral examination to inform the
person being examined, on their duty to answer all the questions in truth as per (2) and (3).
Applying the above instances to the case at hand, it is a duty of Beta, as a public person
as per Section 13(1) CPC to furnish the officer-in-charge, that is Inspector Proton on any
information in regards to the commission of offense he had witnessed punishable under the Penal
Code in applying the interpretation provided in Jusninawati binti Abdul Ghani v Pendakwa
Raya11 Beta’s refusal to furnish such information to a public servant, in this case would be
Inspector Proton, would amount to him being sanctioned under Section 176 of PC for
intentionally withholding information during examination of witnesses. On the facts, Inspector
Proton has clearly adhered to the procedure prescribed in Section 112 of CPC when he had
informed Beta on the said provisions, as stipulated under Section 112(4) of CPC where it
requires Inspector Proton to do so before starting the examination. Although it was already
informed to Beta on his duty to be legally compelled in answering all questions professed to him
in regards to the case, and is consequently bound to speak only the truth as per Section 112(2)
and 112(3) accordingly, Beta’s refusal in making a statement after being questioned would be
acting against the duty of a witness enshrined in Section 112 (2). The right to not answer
questions as stipulated in the same provision, would not apply in the situation of Beta as such
evidence that he omits to reveal does not possess elements of self-incrimination, in applying the
case of Francis Antonysamy v Public Prosecutor12. thus, Beta is still compelled to be answering
all the questions
To conclude, it is not a right vested in Beta as a person of public to refuse addressing the
questions professed to him by Inspector Proton as he is legally compelled to provide responses
during examination of witnesses.

ADMISSIBILITY OF STATEMENT
The issue is whether Oren’s statement is admissible? (20 Marks) Section 112 13 confers power
to the police to examine any person acquainted with the facts and circumstances of the case. A
person is under a legal obligation to answer questions pose by police officer truthfully as stated
under Section 112(2)14 and Section 112(3)15. Section 112(4)16 stated that the police officer
investigating must inform the legal obligations which are to answer all questions relating to that
case put to him by that officer and the person is legally bound to state the truth under this
provision to the person acquainted with the facts. Failure to comply with the conditions as
stipulated under Section 112 of CPC may cause the court to reject the statement as in the case of
Pendakwa Raya v Tamil Selvam a/l Maniam 17. In this case the court rejected the statement
made by the accused because the police did not fulfil the conditions under Section 112 of CPC.
Whereas in Section 112(5)18 requires the statement made by the person witnessed to be reduced
into writing and read back to them and must be signed or thumb-printed by such person. It’s
mandatory for the statement to be read back to the person in the language in which he’d made it
and he’s allowed to make corrections. Failure in doing so may render the statement as
inadmissible as in the case Pathmanabhan a/l Nalliannen & Ors v Public Prosecutor19.
In application, Inspector Proton did not explain the provisions of Section 112 of CPC to
Oren before he recorded Oren’s statement. This is against the condition stipulated in Section
112(4)20 where the investigating officer is required to inform the legal obligation under this
provision to the person acquainted with the facts. Oren was not informed of his legal obligation
hence Inspector Proton failed to comply with the condition under Section 112(4) of CPC. Failure
in doing so may cause the court to reject the statement made by Oren as in the case of Pendakwa
Raya v Tamil Selvam a/l Maniam21.
Furthermore, Inspector Proton also did not give Oren the chance to read the statement
he’d made. Inspector Proton did not give Oren the opportunity to make an amendment to his
statement and immediately asked for Oren to sign the statement. According to Section 112(5)22,
signing or affixation of thumbprint on the statement made is made only after the statement has
been read to him in the language in which he had used to make the statement and after being
given the chance to make an amendment to the statement. Inspector Proton failed to comply with
the condition under Section 112(5)23 as he did not, firstly, read back the statement to Oren nor let
Oren read back the statement he had made; and secondly, did not let Oren to make any
amendment for the statement made had he wanted to do any. Inspector Proton had instead
straight away asked Oren to sign the signature. Ideally, Inspector Proton should’ve firstly read
back the statement to Oren in the language in which Oren had made the statement in and
secondly given the opportunity to Oren make amend to the statement as he wished. Only then
should Inspector Proton ask Oren to sign the statement made. Failure in complying these
requirements may attach no weight to the statement that had been made Oren.
In conclusion, the statement made by Oren may not be admissible by the court as
Inspector Proton has failed to comply the conditions in Section 112(4)24 and Section 112(5)25.

Is Ah Chan obliged to present himself at the police station as directed by Sergeant Neutron?
Discuss.

The issue is whether Ah Chan is obliged to present himself at the police station as directed
by Sergeant Neutron.

In conducting an investigation, a police officer has power to acquire attendance of a

witness or witnesses. Section 111(1) CPC states that a police officer conducting an investigation
may by way of an order in writing require an attendance before himself any person appears to be
acquainted with the circumstances of the case being investigated to attend as required. In
subsection (2) CPC, if there is refusal to attend as required, the police officer may report such
refusal to a Magistrate in which in his discretion issue a warrant to compel the attendance of such
witness as required by the order. The purpose of acquiring an attendance of a witness is that the
witness can be questioned pursuant to Section 112 CPC. In the case of PDRM v Keong Mei
Cheng Audrey14, only to the extent where the police had issued an order in writing for the
attendance and she refused, such refusal will then be reported to a Magistrate who may issue a

14 [1994] 3 MLJ 296

warrant. In another case, Uthayakumar Ponnusamy v PP15, to render the order to attend
enforceable, the order under Section 111 should be served by the investigating officer himself.

In application, Ah Chan is considered as the witness in the case because he was the man
in the shop where the man in purple shirt ran into the shop and he did see such a man running into
his shop and then escaped through the back door. By virtue, Section 111, Inspector Proton, the
officer who conducts the investigation, may by way of an order in writing require an attendance
of Ah Chan before himself, However, such an order was made by Sergeant Neutron. He
approached Ah Chan and told him that he was required to be present at Section 2 Police Station
in Shah Alam on 2 November 2020 at 11.30 am to enable Inspector Proton to further question
him on the whereabouts of the snatched thief. Thus, it was in contradiction with Section 111
where Inspector Proton is the one who should give the order in writing. Thus, by virtue Section
111(2), only such refusal of Ah Chan to attend may be reported by Inspector Proton to a
Magistrate in his discretion to issue a warrant to compel the attendance of Ah Chan as required
by such order. This is supported by the cases of Keong Mei Cheng Audrey and Uthayakumar
Ponnusamy, to render the order to attend by Ah Chan enforceable, the order must be made under
Section 111 where it should be served by Inspector Proton himself. Failing to do so, Ah Chan is
not obliged to present himself at the police station.

FIRST INFORMATION REPORT (FIR)

The issue that may arise is whether the non-tendering of FIR is fatal to the prosecution case.
- Discuss the FIR and effect of its non-tendering. Fatal or not? Discuss on whether two witnesses
can testify
Section 13 of Criminal Procedure Code (CPC) gives rise to an obligation to the public who has the
knowledge of such offences to provide information to the police. In this section, it has provided the
situation where a police report must be lodged by the public which will act as an informant. Paragraph 1
of CPC says that if the person or informant of the public firstly aware there is a commission of a crime
and in paragraph 2 of section 13 CPC provide that the obligatory for the informant to tender the
knowledge to an authorized officer if he aware there is intention to commit a crime by a person.
Furthermore, Section 107 CPC provides that an offense should be reported to an officer of a police
station where such report shall be induced in writing. In other words, a complainant or victim shall lodge
a police report of an offense. Hence, Section 13 of CPC is the circumstances where a person has the
locus standi to lodge a report and such report must be made to an authorized officer pursuant to Section

15 [2005] 7 CLJ 466

107 of CPC.
Section 107(3)(a) CPC provides a situation where the report was not given specifically in a
police station shall be deemed to be received at the police station. While in Section 107(3)(b) CPC, the
police officer shall record the information and induce it into writing even though the information was not
made in a police station. Further in Section 107(3)(c) CPC, such information must be signed by the
informant. Meanwhile, Section 107(4) CPC provides that the obligation of a police officer to receive any
information in relation to any offence committed in Malaysia. In addition, whatever information given to a
police officer, must be induced in writing.
In the case of Mohamad Masa bin Amarullah [2002] 1 MLJ 561, simply provide that an FIR is
the first information received by the police on the commission of the offence. In other words, FIR is the
information tendered to an officer at the very start prior to the investigation occurring, not during or at the
end of an investigation. While in the case of PP v Dato Seri Anwar [1999] 2 MLJ 1. It was provided that
the information must be something in the nature of a complaint, accusation or at least information of a
crime. Meanwhile, in Tan Cheng Kooi v PP [1972] 2 MLJ 115, it was provided that FIR must not
include anything more than the first information and nothing gathered in the course of police
investigation. Furthermore, it also stated that no matter when it was tendered to the officers, it can still be
accepted as FIR even if it was lodged after the investigation. In other words, there is no time barred for a
FIR to be lodged.
It was provided from the facts that Cantik and John were asked to proceed to the police station to
lodge a report and they agreed to do so. Hence, there is a FIR made by both Cantik and John as pursuant
to section 13 of CPC, it is an obligation for both Cantik and John to make such a report of an alleged
offence whereas both of them have the knowledge of it as they are the victims. Section 107 of CPC is
invoked as well as the report was lodged conventionally at a police station. The lodged FIR by Cantik and
John was merely brief details of the time and place of the alleged offence as pursuant to the case of Tan
Cheng Kooi v PP [1972] 2 MLJ 115 and Mohamad Masa bin Amarullah [2002] 1 MLJ 561.
In regards to whether the non-tendering of FIR is fatal to the prosecution case. According to Tan
Cheng Kooi & Anor v PP [1972] 2 MLJ 115, where the case against the accused depended entirely on
the evidence of the complainant, the failure to produce the first information report would deprive the
accused of an opportunity to cross-examine the complainant. Meanwhile, in In Ooi Hock Siong v R
[1955] MLJ 229. The judge in view that the omission of a first information report does not however
appear per se to be fatal to the prosecution. In Balanchandran v Public Prosecutor [2005] 2 MLJ 301,
FIR is not a substantive piece of evidence and it is inadmissible for the purpose of proving that the facts
stated in it are correct. But it can be used by way of corroboration or contradiction.
Timhar Jimdani Ong & Anor v PP [2010] 3 CLJ 938. It was provided that a first information
report or any police report need not contain the entire case of the prosecution. Its main purpose is to give
information of an offence that only states the brief details of the time and place of the alleged offence and
the particulars of the offenders if available. Further details will surely be recorded from potential
witnesses including that of the arresting officer himself. Thus, any omission or shortcomings in that police
report cannot be viewed as fatal to the prosecution’s case or be held to be materially inconsistent with its
narration of facts during trial.
In the more recent case of Public Prosecutor v Tan Chun Cheng & Anor [2018] MLJU 1593, a
police report is merely a brief account of what had transpired at the scene of crime. Likewise, any
omission or shortcomings in this police report cannot be viewed as fatal to the prosecution’s case or be
held to be materially inconsistent with its narration of facts during trial.
From the cases cited above, it is clear that non tendering of FIR would not be fatal to the
prosecution case. The facts that it was a brief details of the time and place of the offence occurred and any
omission from the FIR would not be viewed as a fatal to the prosecution case as referred to Public
Prosecutor v Tan Chun Cheng & Anor [2018] MLJU 159 and Timhar Jimdani Ong & Anor v PP
[2010] 3 CLJ 938 . FIR is not a substantive piece of evidence and it is inadmissible for the purpose of
proving that the facts stated in it are correct. FIR can be used by way of corroboration or contradiction as
pursuant to Balanchandran v Public Prosecutor [2005] 2 MLJ 301. Hence, from the authority given it
is clear that the non tendering of FIR in a prosecution case will not be fatal in accusing Maria for the
charges. In fact it will give advantage for the prosecutor as it would deprive the accused of an opportunity
to cross-examine the complainant pursuant to the case Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115.
To conclude, the non tendering of FIR wouldn't be fatal to the prosecution case.

The first sub-issue is whether the police report made by Ah Peng is a First Information
Report (FIR).
Making a report is an act of giving information on the commission of an offence as in
Section 10735. Police report may be done by an aggrieved party, any witness or by any person
who has information of an offence. FIR can be defined according to PP v Perdeep Singh36, FIR
serves to inform the police of a possible offence having been committed and to get them down to
the scene for investigation to be conducted. FIR can come from more than one source and such
information may have been recorded at or about the same time. However, once the police have
taken active steps to investigate, any further information becomes statements recorded in the
course of police investigations as in Section 11237. Then, the statement will no longer be
regarded as a FIR. In the case of Tan Cheng Kooi & Anor v PP 38, a report should be recorded at
the earliest opportunity in which any failure or a delay in lodging a report at the first reasonable
opportunity must be explained. In the case of PP v Mohammad Terang Bin Amit 39, the police
reports were not lodged at the first reasonable opportunity due to complainants being all school
children who resided at the hostel of the school they were studying at. The complainants would
not have the opportunity or access to lodge the police reports. Thus, the police reports were
delayed in lodging at the first reasonable opportunity were explained.
In application, pursuant to the act of Nenas and Apel extorted Ah Peng, around 2.15 pm,
Ah Peng arrived at Shah Alam Police Station located in Section 2 to lodge a police report. The
report was made by Ah Peng himself as the victim of the crime of extortion. By virtue, the case
of PP v Perdeep Singh, the report made by Ah Peng is a FIR whereby the report was to inform
the police that an act of extortion of RM 1,000 was committed and to direct the police to the
scene at his kuey teow stall at the Food Court PLAZA EMAS Mall, Shah Alam to conduct
investigation as in Section 107. Even though Ah Peng’s police report was lodged two hours and
fifthteen minutes after Mangga has lodged his police report, Ah Peng’s police report is still a FIR
because FIR can come from more than one source and such information may be recorded at or
about the same time so long the police has yet taken an active steps to investigate. After the
police reports made by Mangga and Ah Peng had been lodged, only then Inspector Proton started
his investigation. By referring to the case of Tan Cheng Kooi & Anor v PP, Tan Cheng Kooi &
Anor v PP, Ah Peng’s report should be lodged at the earliest opportunity. In this circumstance,
by virtue of the case of PP v Mohammad Terang Bin Amit, Ah Peng was unable to lodge a
report at the earliest opportunity because during the incident, Ah Peng was injured and in pain.
He was receiving treatment at the hospital which was brought by Inspector Proton. Immediately
after he received the treatment, he lodged the police report. From that fact, it shows that Ah Peng
was not delaying his action to lodge the police report.
In conclusion, it can be said that the police report made by Ah Peng is a FIR. The second
sub-issue is whether the FIR must be produced as evidence in court during trial for prosecution’s
case.

The Issue is whether Omega has the obligation to disclose the report to Apel’s defence
counsel before trial.
- Section 51A CPC
- Section 107 CPC
Every information relating to the commission of an offence shall be reduced into writing
which, if it is the first information received, is called the First Information Report ('FIR'). Section
108A27 provides that the report is admissible as evidence of the contents of the original and of the
time, place and manner in which the information was received. In Anthony Gomez v Ketua Polis
Daerah Kuantan28, the accused has the right to be supplied with a copy of the FIR against him,
based on the common law which accords right to a person to have access to a document in which
he has an interest. Section 51A29 however, now renders it mandatory for the delivery to the
accused person copies of the information made under Section 10730.
Section 51A provides for mandatory disclosure whereby it requires the prosecution to
provide certain documents for use of the accused.31 In PP v Mohd Fazil bin Awaludin32non
compliance with Section 51A, which concerns with conduct of a trial, would not make the trial a
nullity. The disregard of a provision relating to the conduct of a trial, even though prescribed in a
mandatory manner, was not fatal unless the court was satisfied that the accused had been
prejudiced.A more extreme stand was adopted in Federal Court decision in Dato’ Seri Anwar
bin Ibrahim v Public Prosecutor33, that Section 51A is a mandatory obligation on part of the
prosecution to supply an accused person the first information report made under Section 107, a
copy of any documents which would be part of the prosecution’s case and any statements of
facts favourable to the defence and the provision must be complied with before commencement
of trial.Section 5134 is a provision conferring discretion of court to allow discovery in specific
instances. In the exercise of the discretion under Section 51, if the application is made at the pre-
trial stage, it is to allow the justice of the case would have been met if the applicant had been
fully notified of the charge he faces.
Applying the law above to the present case, Section 51A renders it as mandatory for
Omega to deliver to Apel’s defence counsel a copy of Mangga’s report that was made under
Section 107 of the CPC. Applying the case Anthony Gomez v Ketua Polis Daerah Kuantan to
the present case, this is to ensure that there is a fair system for the disclosure, which may assist
Apel’s defence counsel in the timely preparation and presentation of its case. By virtue of
section 51, it is not within the discretion of Omega to refuse the request of Mangga’s report to
Apel’s defence counsel for the purpose of preparing for trial.
In conclusion, Omega has no discretion to refuse and has the obligation to allow Apel’s
defence counsel to have a copy of Mangga’s report.

CHARGE

JOINT TRIAL

The issue whether a joint trial can be conducted for Apel, Nenas and Sunkis?
 The general rule under Section 163 of CPC dictates that every person shall be tried separately.
This is to prevent unfairness or embarrassing the accused because of the confusion of issues and the
introduction of evidence tending to show that he is guilty of some other offence as per R v Sakandar
Khan [1939] 1 MLJ 123. However, a joint trial can be done in three situations pursuant to Section 170 of
CPC. Firstly, under subsection (1), when more persons than one is accused of the same offence or of
different offences committed in the same transaction or; secondly, when one person is accused of
committing one offence and another of abetment or attempt to commit the same offence or; under
subsection (2), persons accused of offences relating to property and persons accused of receiving,
retaining, assisting in the disposal or concealment of such property.

Different offence

In Yee Chee v R [1953] SLR 64, Section 170(1) of CPC also applies where in the same
transaction, persons are accused of committing different offences. ‘Offence’ means an offence which all
the persons jointly tried are concerned and does not merely mean an offence under the same section of the
law. However, in Hashim & Anor v Public Prosecutor [1966] 1 MLJ 229 stated that there must be a
nexus between the offences in which they must be committed in the same transaction although separate
charge sheets are used for the each accused. In Amrita Lal Hazra [1915] 42 Cal 957, what constitutes
‘same transaction’ is; i) proximity of time when offense was committed; ii) proximity of place where
offense had taken place; iii) continuance of one offense to another and; iv) community of purpose and
design.

Same Offence

Jayaraman & Ors v PP: Where eight accused persons were jointly charged with four charges of
culpable homicide not amounting to murder, the court found that the four alleged offences were
committed in a series of acts so connected as to form one transaction, thus allowing the case to fall within
the exception contained in Sec. 170 enabling them to be tried together.

Disposal of stolen property

In relation to disposal of stolen property, pursuant to Section 170(2) of the CPC, joint charge and
trial shall be conducted if offense committed by accused pertains to property such as theft, extortion,
criminal breach of trust, cheating or criminal misappropriation with persons accused of receiving,
retaining, assisting or concealing the said property that had been allegedly transferred by the first named
offender or had abetted or in the process to abet the offense named lastly.

The presence of a common intention where the same offence was committed
 Section 34 of PC stated that when a crime is done by several persons, in furtherance of the
common intention of all, each person is liable for that act. The provision implies that there was a pre-
arranged plan in existence. Thus, in order to convict several accused persons for the same offence, it must
be proven that the crime was done in concert pursuant to such plan.

Shamsuddin bin Hassan & Anor v Public Prosecutor [1991] 3 MLJ 314. The prosecution need
only establish that one of the accused persons committed the act and there is evidence that the others
participated in it.

Public Prosecutor v Mohd Farid bin Mohd Sukis & Anor [202] 8 CLJ 814 HC. Invoking
common intention is a fundamental element of joint charge involving the same offence. This Section also
provides a rule of evidence to infer joint responsibility for a criminal act committed by several persons and
it operates to impute liability to participants whose act contributed to the crime committed though he could
not be proved to have committed the actus reus itself.

Public Prosecutor V Neoh Bean Chye & Anor [1975] 1 MLJ 3 held that joint or separate trials
being left to the discretion of the judges who must consider the interests of justice & the interests of the
prisoners, a joint trial was appropriate as the charge was one of murder in furtherance of the common
intention of both the accused as per section 34.

Apel, Nenas, and Sunkis have committed offence whereby Apel had committed an offence of
lurking house-trespass/ house breaking (section 457) of the Penal Code (PC) as he lurking in a gazebo
located near Cantik’s front gate and he also dishonestly received stolen property (section 411) of the PC
where Sergeant Oscar found the Cartier watch with him which belongs to Cantik, as can be implied that it
was passed to him from Nenas or Sunkis in the house. Sunkis - offence of housebreaking (Section 457)
and theft (Section 380) as he took the diamond ring from Cantik’s handbag and kept in his bag. Nenas -
offence of Housebreaking (Section 457) and attempt to commit theft under Section 511 as he was trying to
open Cantik’s safety box placed in the cupboard.

For every offence committed by Apel, Sunkis and Nenas, the general rule is under section 163
CPC, a separate trial shall be conducted. However, as per section 170(1), the facts provided that the
alleged offences that were committed by the accused are within the same transaction to allow a joint trial
to be conducted. By referring to the case of Amrita Lal, Apel, Nenas, and Sunkis can be said to fulfill the
first test as three of them were at Cantik’s house on 10 March 2018 around 1 pm which shows that there is
a proximity of time, Next, there is a proximity of place since three of them at Cantik’s house to commit
housebreaking and theft where the fingerprint impressions found in Cantik’s house matched those of
Nennas and Sunkis. The third proximity test is also fulfilled as there is continuity from one offence to
another offence since they committed housebreaking and subsequently committed theft.
 These events where Apel, Nenas and Sunkis were so closely connected as the purpose of them
committing house breaking is to commit the offence of theft.Therefore, the offence committed by Apel,
Nenas, and Sunkis are within the same transaction and shall be permissible to be charged in a joint trial as
per Section 170(1) of the CPC. Besides, by applying Section 170(2), Apel and Sunkis and Nenas may be
tried together as Apel and Sunkis had broken into Cantik’s house and consequently committed theft and
Nenas also had broken into Cantik’s House and attempted to commit theft. Apel, Nenas and Sunkis
committed the offence of lurking house trespass/house breaking. Hence, we can conclude that there is a
common intention among them three and each of them should be liable for the act. Even though Apel was
only lurking in Cantik’s gazebo in her garden, we can imply that three of them had pre-arranged the plan,
where Apel to guard the house for Nenas and Sunkis to proceed with offence of theft. By referring the
case of Shamsuddin bin Hassan, it is sufficient for the prosecution to prove that only one of them
committed the offence as per Nenas’s confession, in which he said that ‘sunkis and I planned to break a
house in shah alam’ and the prosecution proved that Apel was part of the plan when he too, lurking
Cantik’s house and retain the stolen property of Cantik’s Cartier watch, in executing the plan, three of
them satisfied the requirement set up in Section 34 of Penal Code. In conclusion, a joint trial may be
conducted for Apel, Nenas and Sunkis.

JOINDER OF CHARGES

The issue is whether the offences committed by Sunkis against UTunes Sdn Bhd may be tried
together with the offence he had committed against Cantik

Definition of charge: R v Mohamed Humayoon Shah.

DEFINITION OF CHARGE

Wharton’s law Lexicon : Charge means to prefer an accusation against one. To charge a person means to
‘accuse’ the person ‘charged’ by way of judicial recognition & notification of prima facie case to the
accused. Three constituent part to a charge: Time and place of the offence, Nature of the offence, Law
against which the offence is alleged to have been committed

The general rule under Section 163 of CPC dictates that every person shall be tried separately. This is
also known as ‘Rule Against Duplicity’. This is to prevent unfairness or embarrassing the accused because
of the confusion of issues and the introduction of evidence tending to show that he is guilty of some other
offence as per R v Sakandar Khan [1939] 1 MLJ 123.
Section 163 of the CPC : 1. For every different offence accused unto a person, there shall be a separate
charge against him unless said offence falls within the exceptions of Section 164, Section 165, Section 166
and Section 170 of the CPC. 2. Every charge (distinct offence), shall be tried separately

Exceptions to general rule: joinder of charges

Section 164(1) of CPC: The offences of the same kind must be committed within the space of 12 months
starting from the first offence to the last offence.

Public Prosecutor v Lim Swee Chan [1968] 2 MLJ 16 the essence of Section 164 of the CPC is that an
accused person may be charged and tried at one trial for not more than three offences of the same kind
committed in the space of 12 months from the first to the last of such offences in respect of the same or
different persons.

Section 164(2) of CPC. (1) they are punishable with the same amount of punishment under the same
section of the Penal Code. (2) they are offences punishable under sections 379, 380, 382, 392, 393, 394,
395, 396, or 397 of the Penal Code. (3) they are an offence under any section of the Penal Code or of any
other law and an attempt to commit any such offence when such an attempt is an offence.

Any joinder of charges where the offences committed were not of the same kind or were spread over a
period longer that that permissible would be illegal.

LIM MENG SEE V PP. Where the appellant was convicted of an offence of an offence of cheating and
two offences of criminal breach of trust, the joining of the charges at one trial was held an illegality as the
offence of cheating was not of the same kind and had no connection with the other two transactions of
criminal breach of trust.

Sec. 121 of CPC: Every offence shall ordinarily be inquired into and tried by a Court within the local
limits of whose jurisdiction it was committed.

Application
Sunkis committed 2 offences
1. Against Utunes Sdn Bhd Section 381 of Penal Code: theft by clerk or servant of property in
possession of master
2. Against Cantik Section 457: Lurking house-trespass or housebreaking in order to commit an offence
punishable with imprisonment
According to the three constituent part to charge, the informations such as time and place of the offences
committed by Sunkis must be stated in the charge. Other than that, nature of the offence must also be
stated in the charge. Lastly, the law against which the offence is alleged to have been committed which in
this current case it is Penal Code.

Generally, Sunkis must be charged and tried separately for both offences committed by him pursuant to
Section 163 of CPC. This is known as Rule against Duplicity. R v Sandar Khan, this is to avoid duplicity
and embarassment of the accused which in this case is Sunkis to the evidence that is tendered to show that
Sunkis is guilty of some offences. However, there are exceptions provided against this rule under Section
164. According to subsection (1) of this section, Sunkis may be tried together with not more than 3
offences. In this case, Sunkis was charged with two offences which are under the Sec. 381 and Sec. 457 of
PC against different people. Which fulfills the first requirement laid down under this subsection. Next, the
time committed must be within twelve months. As in this case, the report made by The Manging Director
of UTunes Sdn Bhd was on 2 January 2017 while the offence against Cantik was reported on the 10
March 2018 which is more than 12 months interval required under the provisio. Thus, Sunkis cannot be
tried in one trial for these two offences provided that it was not within the twelve months interval required.

In addition to that, according to subsection (2) of this section, the offences committed by the accused
which intended to be tried in a same trial must be in the same kind. As it was provided earlier, Sunkis was
charged under the offence of theft by clerk or servant of property in possession of master under Sec. 381
of PC which punishable with 7 years of imprisonment. On the other hand, for the offence committed
against Cantik which was charged under the Sec. 457 of PC which is punishable with 14 years of
imprisonment as the offence committed by Sunkiss involved theft.

Referring to the case of PP v Lim Swee Chan, although Sunkis is charged for two offences, as the offences
committed are not of the same kind; being charged for two different offences, Sunkis cannot be tried
jointly for the two offences that he was charged for. As the exception in Section 164(1) does not apply to
Sunkis, he will be tried separately as per Section 163 for each of the offence against Utunes and Cantik.

The offences committed by Sunkins against UTunes SDn Bhd cannot be tried in one trial together with the
offence he had committed against Cantik.