Chapter 4 - Police Investigation (not including issues) PDF

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[2] POWER TO PREVENTCRIMES[1] AID & INFORMATIONFROM PUBLIC Section 103 – 106 of CPCMahfuz b Omar v Inspektor Mohd Zaid b Madzizat It was involving a protest group called BERSIH. The plaintiff alighted from a taxi & was arrested before reaching the lobby since he was suspected to be o...

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CPC CHAPTER 4: POLICE INVESTIGATION [1] AID & INFORMATION FROM PUBLIC

KEKNID95 [2] POWER TO PREVENT CRIMES Section 103 – 106 of CPC

Public to be bound in assisting the persons to prevent the crime Section 11, 12 and 13 of CPC

Mahfuz b Omar v Inspektor Mohd Zaid b Madzizat It was involving a protest group called BERSIH. The plaintiff alighted from a taxi & was arrested before reaching the lobby since he was suspected to be one of the protestors. It was held that since the arrest was done outside of the said place, there was no evidence of him were to commit offence and no basis of his arrest under Section 105 of CPC. It was therefore unlawful.

Failure to do so is an offence under Section 176 & 202 of PC.

[3] FIRST INFORMATION REPORT (FIR)

[3a] OBJECTS    

An initial information Made very early Starter of a proceedings Complaint/ report

Section 107 of CPC Hasib v State of Bihar To set the criminal law in motion To obtain information about the alleged criminal activity Tan Cheng Kooi v PP Not a substantive piece of evidence Inadmissible to prove the facts as correct Can corroborate/ contradict Balachandran v PP Only to contradict the testimony of witness under S145 of EA or to corroborate his testimony under S157 of EA Not a substantive evidence

[3b] WHO TO LODGE? Anyone; Eye-witness; Victims; Passer-by/hearsay; Police officer; Persons aware of the offence; Relative/ friend; Accused himself

OMISSION TO MENTION PARTICULARS IN FIR Issue: FIR is important as evidence & its absence/ mistakes would cause the case to be set aside? Lee Ah Seng v PP The witness did not mention the particulars of the wrongdoer in the FIR, but brought the matter during the examination. Since it casts doubt, it would be unsafe to convict the appellants. Herchun Singh v PP The complainant identified the appellant but the constable omitted it. It was held that it will; Weaken prosecution case Cast doubt Be refused by court All in all, accuracy of FIR is not the main ground to dismiss the case, but when there exist significant contradictions.

[3c] REGISTRATION FIR can be made at any police department/any enforcement agencies FIR cannot be refused; no valid reason to refuse it

[3d] INFORMATION Section 107(1) of CPC Section 107(2) of CPC Section 107(3) of CPC Section 107(4) of CPC

Section 107(4) of CPC

Failure to do so is an offence under Section 180 of PC.

FAILURE TO REDUCE INTO WRITING/ TO PRODUCE AT TRIAL

TO DRAW ADVERSE INFERENCE FOR FAILURE TO PRODUCE FIR

Issue: Failure to comply with Section 107 would be fatal to the proceedings?

Issue: Failure to adduce FIR would trigger such inference?

PP v Foong Chee Ceong It’s involving extortion offence where the FIR is not reduced in writing, making the arrest to be void. It was argued that FIR is not the ground to throw out a case, but to only impeach the credit of a person making it. Even if it’s inadmissible, it’s a prima facie case.

Balachandran v PP It was held that FIR is only to corroborate the testimony depending on the facts & circumstances of case. If the testimony of the witness is vague, then his FIR would be the evidence to enhance his credibility and reliability.

Tan Cheng Kooi v PP Same issue as Foong Chee & that it would be fatal if the case rests solely on the FIR.

PP v Safuadi bin Usman FIR would be tendered at court if the testimony was to be vague & unconvincing. And also to contradict the testimonies.

All in all, when the PP is able to establish prima facie case, having no FIR won’t vitiate/ the proceedings won’t be fatal.

All in all, failure to produce FIR would not be fatal to the proceeding.

[3e] ADMISSIBILITY Section 108A of CPC Report is not a FIR is admissible under S108A PP v Kang Ho Soh It was argued that it was an arrest report & not a FIR. It was held that failure to adduce arrest report would not be fatal to the proceeding. PP v Rohani Ahmad Report made 14 days after the investigation is not a FIR relating to the offence. It was inadmissible. Anuar Abdul Aziz v PP FIR is:  an initial information  the starting point of investigation  the basis of the case for commencement of proceeding  a complaint to obtain early information  to contradict or corroborate testimony  not a substantive evidence  to enhance credibility of witness when his testimony was vague  Report pertaining to the arrest of a person is not FIR but an arrest report

[3f] COPY OF FIR Section 51A of CPC Accused is entitled to have the copy of FIR to prepare for his defence Anthony Gomez v Ketua Polis Daerah Kuantan The accused was denied of his right to have the copy. The accused contended that it is a public document. It was rejected by HC. But was held by FC that it is a public one under S76 of EA and the accused has right to be supplied with a copy of it since he has interest in it. Husdi v PP Accused has right to be supplied with the copy PP v Mohamad Musa bin Amarullah FIR is to enable him to be prepared to conduct his defence

CPC CHAPTER 4: POLICE INVESTIGATION

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[4] PROCEDURES

1) 2)

NON-SEIZABLE OFFENCE

SEIZABLE OFFENCE Who: Any police officer not below the rank of sergeant/ any officer in charge to do so under Section 109 of CPC

Section 108 of CPC

1)

Subsection (1): Not to investigate; or

No power = not invalidate the proceedings

2)

Subsection investigate

Provisions:

PP v Seridaran

Section 110(1) of CPC – 2 situations

Issue: whether the investigation conducted without prior permission from PP is a nullity?

Section 110(2) of CPC reasons for not investigating

–

Section 110(3) of CPC Investigation status Section 107A of CPC Aims: -

-

Provides for accountability & good governance of police officer Tightening the current procedure [5] PROCEDURE UPON

(2):

To

Upon appeal, it was held that it is mandatory to get an order to investigate for a NSO. The evidence obtained were therefore illegal. However it did not affect the jurisdiction of court. PDRM v Keong Mei Cheng Audrey It was a case related to CBT.

a) Produce ARRIVING ATreport; THE SCENEThe TO arrest was made by a woman corporal and not an MAKE INQUIRIES b) Produce investigation ASP in accordance to Section paper to PP within one week upon the expiry of 3 months

[5] RECORDING STATEMENTS FROM PERSONS

[4b] PROCEDURE UPON ARRIVING AT THE SCENE TO MAKE INQURIES

[4a] PROCEDURE IN INVESTIGATION ON RECEIVING FIR

3)

Question witness, if he cannot be questioned, an issuance of written order under Section 111 of CPC is to be done by officer requiring the witness’s attendance; Officer to comply with Section 111 of CPC

INVESTIGATION CANNOT HOURS Provisions: Section 28 of CPC Section 117 of CPC

BE COMPLETED WITHIN 24

1st ISSUE: Recording statement to be in the form of questions and answers or not. PP b Abdullah bin Ambik It was about an offence of perjury. It was held that the statements need not be in the form of questions and answers. 2nd ISSUE: whether the signature/ thumb print is mandatory in the recorded statement

Category

Duration of detention

Offences punishable of less than 14 years

-

Offences punishable with deaths/ imprisonment of 14 years/more

Section 112 of CPC

-

-

First application: Detention not more than 4 days, Second application: Detention not more than 3 days ,First application: detention not more tha 7 days; Second application: Detention not more than 7 days

BOND FOR APPEARANCE OF COMPLAINANT & WITNESS – Section 118 of CPC

108(3), 109 and 110 of CPC.

[6] RECORDING STATEMENT FROM PERSONS

Abdul Ghani bin Jusoh v PP It was concerning an offence of culpable homicide. Such issue arose and a judge said that it is not mandatory thus the absence of it is not fatal to the admissibility. However it was held that it is mandatory to have the signature and failure to do it is on the party to give adequate reasons. Jayaraman & Ors vPP Writing requirement was held as not mandatory and there was reasonable explanation for failure to reduce the statements into writing. 3rd ISSUE: Voluntariness of the statements Noliana Sulaiman v PP It was involving an offence of perjury. Her statement contradictedh oral evidence in court. The oral statement should be inadmissible since it was involuntary done. Yusof bin Omar v PP The appellant was convicted for giving false evidence. He appealed saying that his statement was made involuntarily. The said issue, as held by COA can still be raised during the appeal. Thus, it is not necessary for PP to prove the voluntariness of S112 statements before such statement may be admitted as evidence in court.

CPC CHAPTER 4: POLICE INVESTIGATION

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[6] ADMISSIBILITY OF STATEMENTS PRIOR TO AMENDMENT S113 – any statement made may be used in cross-examination & for the purpose to impeach the credit of witness.

The power of the police to record cautioned statements & to rely on the same evidence is abolished. This is due to the incidence of frequent abuses by the police in recording the statement.

REQUIREMENTS PROVIDED UNDER THE SECTION: 1)

AFTER AMENDMENT Section 113 of CPC

Made to a police officer of or above the rank of inspector Abdul Ghani Jusoh v PP (referred to Ng Goh Weng & Anor) Not all cautioned statements are admissible. It is admissible when it fulfils the conditions under such section, they are: above rank of inspector; and voluntarily made (no threat/ inducement/promise). Since it was made to probationary inspector, it was inadmissible.

2)

Accused has right to remain silent after statutory caution has been administered Karpal Singh v AG Malaysia Caution will be triggered when a person is arrested & not otherwise. a)

Uncertainty of the nature of arrest Jayaraman v PP The FC held that there was no arrest, the statements are admissible though no caution was administered.

b)

Effect of defective caution GR: statements is inadmissible administered is defective.

if

the

caution

Poon Heong v PP There was a need to administer caution under Dangerous Drugs Act, The police however omitted to include the words “answer any question”. It was held by COA that the caution was defective and inadmissible. This was because the accused would think that he was bound to answer all questions. 3)

Voluntariness of the accused making the statements Dato’ Mokhtar Hashim v PP It was involving a murder offence and the issue of voluntariness arose. It was held that it is inadmissible unless it is shown by the PP that it is voluntarily made. The test would be to prove beyond reasonable doubt that it was made voluntarily, no fear or prejudice or hope of advantage, or by oppression. Francis Anthonysamy v PP It was upon an appeal made against the death sentence for the murder of a Bangladeshi national for the purpose of obtaining a human skull in order to win a 4 digit lottery. Issue was whether non-compliance with old S113 of cautioned statement need to be followed. It was held that the caution was administered; the appellant was asked by the officer of the existence of any threat or promise; BOP is on the PP; self-incrimination issue.

New S112 is used to record the statement of witnesses including the accused himself. It includes The police can request statement under S112 without the need to administer caution. The statement cannot be used by PP to impeach the accused but to impeach the credit of witness, and for accused to support his defence. This amendment has retrospective effect. Eg: accused committed the offence in 2005, but the trial started in 2010. The section is applicable. OLD S113

PRESENT S113

SECTION 112

Accused person only to make statements

Includes statements made by witnesses

Statements made by both accused and witnesses

Statement made at any time during investigation, before charged

Statement made during investigation

Statement made during investigation

Made to any PO above the rank of inspector

Made to a police office

Made to investigating officer

Not applicable

Statement made may be admitted as evidence

Not applicable

Made orally/ in writing

Only on admission of statements in evidence

Oral statement to be reduced in writing

No requirement to speak the truth; used to impeach the credit of accused

To impeach the credit of witnesses other than accused

Bound to state the truth. To impeach credit of witnesses other than accused

Caution to be adminisered

No need

No need

Not under threat, promise, inducement

Not applicable

Statement must be voluntary

Concerning admissibility of statement/ confession

No issue of confession

No issue of confession

[7] OFFENCES OTHER THAN THE OFFENCES UNDER PC 1)

S37A of Dangerous Drugs Act 1952 [Requirement: must be an inspector/ above/ senior officer of customs] MW Barrett v PP It was made to the person not a senior officer of customs. It was inadmissible

2)

S53 of Malaysian Anti Corruption Act 2009 [Requirement: to be made to any police officer] PP v Datuk Haji Harun Haji Idris Involving corruption offence. Issue on retrospective effect of S112 & S113 arose. It did have effect, and even if it didn’t, the statement is admissible.

3)

S16 of Kidnapping Act 1961 Requirement: must be recorded by an inspector/above; must first caution him in prescribed manner before asking any questions – it must be re-administered if interrogations are stopped and continued again at a later date.

must be re administered if interrogations are stopped and continued again at a later date....