Chapter 5 - Police Investigation

Question 1

POLICE INVESTIGATION

Overview

Answer 1

1) Preventive action by the police
2) Prevention of offences
3) Inquiry to be held by Magistrate
4) First Information Report
5) Procedures after receiving FIR
6) Examination of witnesses under S.112

Question 2

POLICE INVESTIGATION

Preventive action by the police

Answer 2

S.103 - 106

Question 3

POLICE INVESTIGATION

Prevention of offences

Answer 3

S.66 - 69

Question 4

POLICE INVESTIGATION

Inquiry by Magistrate

Answer 4

1) The law:
- S.73
2) Scope:

• Siao Bee Yee v PP:
  No necessity for framing charge.
• Toh Seng Chor v PP:
  Enquire on the truth of the information.

Question 5

FIRST INFORMATION REPORT

The law & scope

Answer 5

S.107

Question 6

FIRST INFORMATION REPORT

Meaning of information

Answer 6

PP v DSAI (No. 3):

• Complaint / accusation / at least an information of the crime.
• Given with object of ordering the police to investigate.

Question 7

FIRST INFORMATION REPORT

Whether a condition precedent

Answer 7

1) Emperor v Khwaja Nazir Ahmad:

• Not a condition precedent;
• Police can start investigation on their own motion;
• When they have their own knowledge which genuinely leads them to believe that a cognizable offence has been committed.

2) PP v Foong Chee Cheong:

• No FIR made is not a ground to throw out a case;
• Most of police duties imply a power to investigate whether there has been information under S.107 CPC.
  i. e. FIR is not a condition precedent to start an investigation.

3) PP v DSAI (No. 3):
- There is no requirement that investigation and prosecution must be based on a police report.

Question 8

FIRST INFORMATION REPORT

Other forms of reports, whether FIR

Answer 8

WHY IT IS IMPORTANT TO DETERMINE?

• for admissibility under S.108A.
  1) Reports made orally - Herchun Singh v PP:
• FIR received orally is an FIR.
  2) Reports made after investigation - PP v Kang Ho Soh:
• Report made after investigation has commenced only qualify as arrest report.
  3) Reports made after investigation - Pendakwa Raya v Ismail Atan:
• Statements made & recorded after investigation do not qualify as FIR.
• It is more of an investigation statement & cannot be admitted under S.108A.

Question 9

FIRST INFORMATION REPORT

Evidential status of FIR

Answer 9

Whether substantive:

1) PP v Mohammad Terang bin Amit:
- FIR do not constitute substantive evidence and serve merely as corroborative evidence.
2) cf. Lee Eng Kooi v PP:

• Once the prosecution decided to put FIR as a prosecution exhibit, it becomes substantive evidence.
• The maker can be cross-examined with regard to his consistency & truthfulness as a witness.

Use of FIR at criminal trial:

1) Balachandran v PP:

• FIR can be used for two purposes at criminal trial:
• To contradict the maker of the report under S.145 EA;
• To corroborate the maker under S.157 EA.
• However, it cannot be treated as a substantive piece of evidence.
• Omission to produce FIR is not a ground to throw out a case.

Question 10

FIRST INFORMATION REPORT

FIR not produced at criminal trial

Answer 10

1) General rule - Balachandran v PP:
- Omission to produce FIR is not a ground to throw out a case.
2) Principles - Tan Cheng Kooi & Anor v PP:

General rule:

• • Omission of FIR does not per se fatal to the prosecution.
• • The fact that no FIR was made was not itself a ground for throwing out a case.

Exception:

– where the case against the accused depended entirely on the evidence of the complainant, the failure to produce FIR will deprive the accused of an opportunity to cross-examine his accuser.

3) Test - whether PP’s case depends entirely on the FIR or not - PP v Abdul Razak bin Johari:

• The case against the accused depends entirely on the evidence of the complainant & prosecution failed to produce FIR.
• Such failure had deprived the accused from an opportunity to cross-examine his accuser;
• OTF, S.114(g) is invoked & adverse presumption is raised against the prosecution.

4) Test - whether the testimony needs corroboration or not - Balachandran v PP:

• FIR is a corroborative evidence.
• Where the evidence of a witness does not require to be corroborated in law, there is no obligation to tender corroborative evidence to support his testimony.
• Even if the case for the prosecution rests solely on the evidence of one witness in the category that DOES NOT require corroboration, there is no requirement in law for his evidence to be corroborated & there is no requirement to tender FIR.
• The need for FIR to be used to corroborate the testimony of a witness depends on the facts and circumstances of each particular case.

Question 11

FIRST INFORMATION REPORT

Omission to state name of accused

Answer 11

1) Principles - Wong Soon Choon v PP (CA, 2016):

General rule:

• Omission of the accused’s name in the police report does not in any way detract from the weight & value to be attached to the testimony of the complainant himself.

Exception:

• Failure to state material particulars in the first information report may be fatal if there were no good reasons for the omission or contradictions.
• The truth of his evidence became open to reasonable doubt by reason of failure to give a reasonable explanation for the omission.

Question 12

FIRST INFORMATION REPORT

Whether FIR is protected by defence of absolute privilege

Answer 12

1) Lee Yoke Yam v Chin Keat Seng:
- statements in S.107 are protected by defence of absolute privilege by reason of public policy consideration.
2) cf. Anthony Gomez v Ketua Polis Daerah Kuantan:

• under the common law the appellant has the right to FIR as he is a person interested in it and inspection is necessary for the protection of his interest.
• FIR is admissible in evidence in the criminal trial under section 157 EA and therefore the appellant or his counsel should be supplied with a copy.

Question 13

FIRST INFORMATION REPORT

Admissibility of certified copy of FIR

Answer 13

1) The law:
- S.108A
2) The scope - Balachandran v PP:

• Only FIR is admissible under S.108A in addition to S.145 and 157 of the Evidence Act 1950 while the other reports are admissible only under the latter provisions of law.
  S.108A deals with the admissibility of a certified true copy of a first information report;
  i.e. its evidentiary value would remain on the same footing as that of the original.

Question 14

FIRST INFORMATION REPORT

Admissibility of certified copy of FIR

Answer 14

1) The law:
- S.108A
2) The scope - Balachandran v PP:

• Only FIR is admissible under S.108A in addition to S.145 and 157 EA;
• other reports are admissible only under 145 & 157 EA.
• S.108A deals with the admissibility of a certified true copy of a first information report;
• i.e. its evidentiary value would remain on the same footing as that of the original.

Question 15

FIRST INFORMATION REPORT

Report on status of investigation

Answer 15

1) The law:
- S.107A
2) Scope:

Allows the informant to inquire on the status of report, provided that:
- the offence is a seizable offence;
- 4 weeks have lapsed from the date of the information;
it does not contain any matter which will adversely affect the investigation.

3) Failure to give status report - S.107A(4):
- Complainant may report to PP & PP will report to OCPD.
4) Scope of right - Ahmad Rashdi Imran v Bank Negara Malaysia:

• S.107A CPC read together with sub-s. 79(1) of AMLATFA only allows access on the status of an ongoing investigation to be given to the complainant;
• This is with a condition that no adverse effect can prejudice the said investigation.
• The plaintiff herein was not a complainant & he was only a mere bystander.
• He had no right whatsoever to this application as embedded under s. 107A of the CPC.

Question 16

FIRST INFORMATION REPORT

Recent application

CA, 2016

Answer 16

Mohd Azran bin Rahmat & Anor v Mazlan bin Aliman (CA, 2016)

• Where there is an information filed under S.107, the police is duty-bound to investigate;
• Police is also duty bound under S.107A to give a status report to the person who had given the information, if he so requests it.
• A reasonable suspicion that an offence is committed is sufficient to require the police to proceed to complete the investigation and put the matter to the court to determine whether an offence as charged, had been committed or not.
• The final charge itself could only be formulated after the investigations had been completed.

Question 17

PROCEDURES AFTER RECEIVING FIR

Overview

Answer 17

1) No offence disclosed
2) Non-seizable offence disclosed
3) Seizable offence disclosed

Question 18

PROCEDURES AFTER RECEIVING FIR

No offence disclosed

Answer 18

NFA

Question 19

PROCEDURES AFTER RECEIVING FIR

Non-seizable offence disclosed

Answer 19

1) The law - S.108:

• Refer informant to Magistrate;
• No investigation before obtaining order to investigate.
• After obtaining OTI, power to investigate is the same as in seizable cases.

2) Failure to obtain OTI - PP v Seridaran:

• Absence of OTI or failure to obtain OTI does not vitiate the trial.
• Failure to obtain OTI does not render evidence obtained by the police in such investigation illegal or inadmissible.
• In essence, failure to produce or obtain OTI does not affect the jurisdiction of the court to hear the case.

3) Procedures for investigation:

• Investigate at the scene: S.110
• Require attendance of witness: S.111
• Examine witness: S.112
• Search: S.116
• Remand if necessary: S.117
• Send report to PP: S.120

Question 20

PROCEDURES AFTER RECEIVING FIR

Seizable offence disclosed - overview

Answer 20

1) Investigate & report to PP
2) Call for witness
3) Examine witness
4) Search evidence
5) Remand & investigation diary
6) Execute bond

Question 21

SEIZABLE OFFENCE DISCLOSED

Investigate & report to PP

Answer 21

1) The law:

• S.109: Special powers of investigation.
• S.110: Investigation at scenes.

2) Duty to report to PP - PDRM v Audrey Keong Mei Cheong:

• Where an officer has a reason to suspect the commission of a seizable offence, he shall send a report to PP;
• Whether or not he decides to investigate it himself or to deputise it.
• This is so unless the offence is such a character which the PP has directed need not be reported to him, i.e. usually a less serious offence.

Question 22

SEIZABLE OFFENCE DISCLOSED

Call for witness

Answer 22

1) The law - S.111:
- Order in writing to require attendance of persons acquainted.
2) Meaning of “any person” - Pakala Narayana Swami v Emperor:

• include any person, though he may thereafter be the accused of the offence.
• Investigation of a crime often involves the examination of a number of persons none of whom or all of whom may be suspected at the time.

3) Service of order - Uthayakumar a/l Ponnusamy v Pendakwa Raya & Ors:

• Order must be served by the investigating officer.
• Failure of the IO to serve the order which he has issued may have misled the Magistrate who issued the warrant of arrest against the applicant.

Question 23

SEIZABLE OFFENCE DISCLOSED

Examination of witness

Answer 23

1) The law:

- S.112

Question 24

SEIZABLE OFFENCE DISCLOSED

Search for evidence

Answer 24

1) The law - S.116:
- gives powers of investigating officer to search for evidence.
2) Who is authorised to search - Mohammad Shafiq Dollah v Sarjah Mejar Abdul Manaf Jusoh:

• Seksyen 116 KTJ hanya terpakai kepada pegawai penyiasat sahaja dan bukan pegawai tangkapan (arresting officer).
• Search by other than IO is unlawful & the officer may be liable at civil claim for damages as in the case above.

Question 25

SEIZABLE OFFENCE DISCLOSED

Remand & investigation diary

Answer 25

1) Law on remand - S.117:

- Remand if investigation cannot be completed within 24 hours.

Question 26

SEIZABLE OFFENCE DISCLOSED

Execute bond

Answer 26

1) The law - S.118:

- Execution of bond for complainant & witnesses.

Question 27

EXAMINATION OF WITNESS UNDER S.112

Overview

Answer 27

1) Recording 112 statements
2) Admissibility of 112 statements
3) Free will & no discouragement
4) Issues on 112 statements

Question 28

RECORDING 112 STATEMENTS

Overview

Answer 28

1) language
2) re-read
3) sign or thumbprint
4) must be written
5) caution requirement
6) interested officer taking part in recording
7) right to remain silent when it is incriminating

Question 29

RECORDING 112 STATEMENTS

Language

Answer 29

1) General principle - Tan Too Kia v PP:

• It is desirable that a suspect should be interrogated using the language in which he is at home,
• But it does not necessarily & strictly so in the sense that if he is not, his statement is inadmissible.
• What is important is that a person interrogated should understand the language used by the interrogator.

2) The need for interpreter - Diana Nelson Tanoja v PP:

• The absence of the interpreter did not render the statement of the accused inadmissible in law;
  This is so as long as the accused understand the cautioned.

Question 30

RECORDING 112 STATEMENTS

Re-read

Answer 30

1) The law:
- S.112(5)
2) Opportunity to make corrections - PP v Kamde bin Raspani:

• At the conclusion of the recording, the contents will be read back to him in the language in which he made it or contents shall be translated to him, if necessary.
• He must be given opportunity to make corrections.
• When he is so satisfied, then he will be required to sign or affix his thumb prints thereon.

Question 31

RECORDING 112 STATEMENTS

Sign or thumbprint

Answer 31

1) The law:
- S.112(5)
2) Effect of non-compliance - Abdul Ghani bin Jusoh:

• All statements recorded pursuant to S.112 must be authenticated by a signature or a thumb print.
• However, the court may accept statements which have not been signed or thumb printed, IF there is a reasonable explanation for the failure.
• e.g. reasonable explanation like accused has injured his fingers or arms.
• It is held that where NO reasonable explanation is given, the statement will be inadmissible.

Question 32

RECORDING 112 STATEMENTS

Must be written

Answer 32

1) The law - S.112(1) & (5):

• (1) shall reduce into writing
• (5) whenever possible, in writing

2) Scope - Jayarahman & Ors v PP:

• The phrase “shall reduce into writing” under S.112(1) makes it obligatory for the statement to be reduced into writing.
• If it was not possible for the RO to reduce the accused’s statement into writing, there should be an accompanying explanation for the failure to do so.

Question 33

RECORDING 112 STATEMENTS

Caution requirement

Answer 33

1) The law - DDA:
- S.37B(1)(b)
2) The law - Kidnapping Act:
- S.16(1)(b)
3) Defective caution - whether admissible - Chian Swee Ong v PP:
- The fact that the caution is defective should not render the caution statement inadmissible because his subsequent oral testimony in court should not override the contemporaneous document.
4) Missing coma - whether fatal - Khairuddin bin Hassan v PP:

• FC have read and re-read the words of the caution and found that, even without the comma, there is no ambiguity in the caution.
• The words in the caution simple enough that, even without any translation, would be easily understood by any Malay-speaking person.

5) Whether caution needs to be explained - Mohd Zaiham Mislan v. PP (FC, 2010):
- though the then section 37A(1) of the Act (the predecessor to section 37B(1)(b)) was silent on whether the caution needed to be explained, there may still be a requirement for it to be explained in appropriate cases or circumstances.
6) Recent application - Tan Chun Cheng v PP (CA, 2020):

• the mere reading of the caution would not suffice.
• There is a requirement in law for the caution and its consequences to be explained to the accused.
• when the caution is not explained to the accused, the statement taken will not be admissible in evidence as requirements under S.37B is not fulfilled.

Question 34

RECORDING 112 STATEMENTS

Interested officer taking part in recording

Answer 34

1) General rule - Mohamed Yusof bin Haji Ahmad v PP:

• Officers who have had interest or are involved in the raid or arrest of the accused should refrain from part in the recording of the statement from the accused;
• This is so even for acting as the interpreter, i.e. he should refrain from being the interpreter thereof.

2) Effect on admissibility - Cheong See Leong v PP:

• If such officers do take part in the recording, it may vitiate the admissibility of the statements recorded thereby.
  The test is whether there is a likelihood of bias arising from his interest in the subject matter.

3) Exception - the accused himself decided - Juraimi bin Hussin & Ors v PP:
- The only exception is that when the decision that the involved officer should record her statement was made by the accused himself & not the police officer.
4) Exception - knowing or seeing the exhibits - Teow Siaw Peng v PP:
- The fact of knowing or seeing the exhibits whilst at the police station should not be a reason to disqualify the officer in recording the statement.

Question 35

RECORDING 112 STATEMENTS

Right to remain silent when it is incriminating

Answer 35

S.112(2)

Question 36

ADMISSIBILITY OF STATEMENTS IN EVIDENCE

Under CPC

Answer 36

1) The law:
- S.113:
2) Scope:

General rule:
- Inadmissible.

Exceptions:

• For the purpose of impeaching the credit of the witnesses apart from the accused;
• For the purpose of supporting the accused’s defence;
• For the purpose of admissibility of statement made in identification parade;
• For the purpose of admissibility of S.27 statements, i.e. information leading to discovery;
• For the purpose of admissibility of exceptions to rules against hearsay;
• For the purpose of using evidence in proving charges in relation to making the statement or the contents of the statement.

3) Scope - Chua Kian Voon v Menteri Dalam Negeri Malaysia (FC, 2020):

• GR: Section 113(1) expressly stipulates that no statement made by any person to a police officer in the course of a police investigation made under the relevant chapter of the Code shall be used in evidence.
• Exceptions: The rest of the said s. 113 stipulates situations when such a recorded statement may be admissible. - Example: s. 113(3) expressly requires that where the accused had made a statement during the course of a police investigation, such statement may be admitted in evidence in support of his defence during the course of the trial.

Question 37

ADMISSIBILITY OF STATEMENTS IN EVIDENCE

Under other laws

Answer 37

1) Under DDA for offence under DDA: S.37B

• Admissible: S.37B;
  Can also be used to impeach or cross-examine the witness.
• PROVIDED THAT conditions are satisfied;
• Conditions:
  S.37B(1)(a): without threat, inducement or promise.
  S.37B(1)(b): satisfied caution has been administered.

2) Application of S.37B DDA - Tan Chun Cheng v PP (CA, 2020)

• General rule: PR v Kang Ho Soh: Any statements made to a police officer by a person after arrest is inadmissible unless the statutory preconditions laid down by section 37B of the Act are satisfied (previously it was section 37A(1)).
• And the statutory requirement is that the arresting officer must have administered the caution as stipulated in section 37B(1)(b) of the Act.
• OTF, the evidence of PW4, who is said to have translated the caution given by PW3 in Bahasa Malaysia to Mandarin, is that he did not explain the caution to the appellants.
• In Mohd Zaiham Mislan v. PP [2010] 1 CLJ 1, the Federal Court held that though the then section 37A(1) of the Act (the predecessor to section 37B(1)(b)) was silent on whether the caution needed to be explained, there may still be a requirement for it to be explained in appropriate cases or circumstances.

3) Under Kidnapping Act for offence under KA: S.16

• Admissible: S.16 KA;
  Can also be used to impeach or cross-examine the witness;
• PROVIDED THAT CONDITIONS ARE SATISFIED;
  Conditions:
• S.16(1)(a): without threat, inducement or promise.
• S.16(1)(b): satisfied caution has been administered.

4) Application of S.16 KA - PP v Gurdial Singh Pretum Singh & Ors:

• a failure to read the provisions of s. 16(2) will leave a doubt as to whether an accused fully understands that he is not obliged to answer any question.
• Therefore, under the Act, it is imperative to read the provisions of s. 16(2) to the accused, to remove that doubt, and to comply with the requirements of the law as well.

Question 38

ISSUES ON 112 STATEMENTS

Overview

Answer 38

1) Whether the accused is entitled to S.112 statements
2) Whether it is necessary to ascertain voluntariness
3) Whether counsel can be present when statement is taken as complainant
4) Voir dire
5) Admissibility of mixed-statements

Question 39

ISSUES ON 112 STATEMENTS

Whether the accused is entitled to S.112 statements

Answer 39

1) General rule - Husdi v PP:

• prosecution is not obliged to supply to the accused statements recorded from potential witnesses.
• this is so as there is danger in tampering with the witness.

2) Exception - for the purpose of impeachment - Husdi v PP:

• The defence may have access to 112 statement for the purpose of impeaching the credit of witness.
• NOTE: By virtue of S.113 CPC, it may only be used to impeach witnesses except the accused.

3) Exception - for the purpose of defence - Siti Aisyah v PP:

• Since statutory law allows such police statements to be admitted in evidence in certain circumstances, it seems that such police statements were never intended to be privileged documents.
• With the addition of s. 51A to the CPC, the prosecution has a duty to deliver certain documents to the accused prior to the commencement of the trial.
• OTF, application is made at the end of prosecution case;
  Based on what was disclosed during prosecution case, 112 statement is certainly necessary for the defence to advance their case.

OVERVIEW:

1) Can be supplied as it is a public document - Haji Abdul Ghani Ishak;
2) Cannot be supplied as it is privileged & there is a danger of tampering the witness - Husdi v PP
3) Cannot be supplied pre-trial, followed Husdi v PP - Najib Razak v PP
4) Witness statement by co-accused cannot be supplied - Haji Abdul Ghani Ishak v PP

Question 40

ISSUES ON 112 STATEMENTS

Whether it is necessary to ascertain voluntariness

Answer 40

1) Noliana bte Sulaiman v PP:
- 112 + 114: it is necessary that a S.112 statement must have been voluntarily made before it can have any value as evidence.
2) Burden of proof - Noliana bte Sulaiman v PP:
- the burden is on the accused to show that the statements were not voluntarily made as it is an assertion made by her.
2) Burden of proof - cf. Dato’ Mokhtar Hashim & Anor v PP:
- Prosecution must established beyond reasonable doubt that the statement is voluntary.
3) Burden of proof - Chan Ming Cheng v PP:

To prove in/voluntariness:
- The burden lies on the prosecution to show positively that the statement was voluntarily given.

To raise a reasonable doubt on the voluntariness:
- There is also no burden on the accused to raise a reasonable doubt as to the voluntariness of his cautioned statement.
- The only burden on him is to show suspicious circumstances surrounding the making or recording of his cautioned statement.
- What amounts to suspicious circumstances:
So long as the suspicion is reasonable as to the voluntariness of the statement, it is incumbent on the trial judge to hold it inadmissible.

4) Test for voluntariness - Hasibullah Mohd Ghazali v PP:
- Statements taken under oppressive circumstances are also inadmissible.
5) Discretion to exclude evidence - Francis Anthonysamy v PP:
- Exclusion of illegally obtained evidence is discretionary and the exercise of discretion depends on the facts of each case.

Question 41

ISSUES ON 112 STATEMENTS

Whether counsel can be present when statement is taken as complainant

Answer 41

SPRM v Latheefa Beebi Koya:

• A witness in criminal cases cannot claim a constitutional right to be represented by counsel.
• Art. 5(2) only speaks of the right of a person unlawfully detained & it does not confer any constitutional right on the complainant to be represented by counsel during the recording of his statement as a witness.

Question 42

ISSUES ON 112 STATEMENTS

Voir dire

Answer 42

1) Whether necessary - PP v Mohd Fahmi bin Hamzah:
- voir dire is necessary whenever the admissibility is challenged, provided that the dispute over the admissibility of a confession is not confined to a pure point of law.
2) Procedure at voir dire - Separate & collateral proceeding - Lim Seng Chuan v PP:
- A trial within a trial ought to be considered as a separate or collateral proceeding.
3) End of voir dire - PP v Aidil Ma’arof:
- at the end of voir dire, the judge shall further consider all the evidence adduced including that of the defence, if any, in their context and decide on the admissibility or otherwise of the contested statement.

Question 43

ISSUE ON 112 STATEMENTS

Admissibility of mixed-statements

Answer 43

Chan Kin Choi v PP:

• Mixed-statements were admissible;
• However, the incriminating part is likely to be true whereas the excuse did not carry the same weight.