You are on page 1of 12

Venus, the managing director of Petpot Construction Sdn Bhd at Taman Kasihku, Shah

Alam, made a police report at Shah Alam police station that her office was robbed by a group of
armed men with samurai swords at about 10 am on 13 December 2008. A number of items were
stolen which included then sets of mobile phone, five luxury watches, five laptops, a substantial
amount of cash and the company’s Mercedes. The employees were also locked in the office after
the robbers seized the keys to the office. Part of the incident was caught on close circuit
television (CCTV) installed by Kaseh Sdn. Bhd, a company which occupied the ground floor of
the same building. Karim, the manager, refused to have anything to do with the police
investigations for fear of reprisal from the robbers.

Inspector Alpha has been assigned to investigate the case. An initial investigation
revealed that the robbers are habitual criminals who are on the police wanted list. There are three
other companies within the same vicinity which had been robbed by the robbers. Lawak Event
Sdn Bhd was robbed a week prior to the robbery at Petpot Construction.

A roadblock was set up immediately at the junction of a main road leading up of Taman
Kasihku as well as the exit to the Federal Highway. A Mercedes driven by Beta was stopped and
searched by the Police. Since the car fitted the description in the police report, Inspector Alpha
seized it and all the four passengers of the car including Beta, the driver, were taken to the Shah
Alam police station for further investigation. At the police station, it was revealed that the other
three passengers, namely Galaxy, Chong and Aru were part of a syndicate which sells pirated
DVD’s including pornographic materials. Proceeds of the robbery from Petpot construction were
discovered in the boot of the car. When questioned by the police, Aru claimed that he had just
arrived in Shah Alam from Penang and had no knowledge that a robbery had been committed by
Beta, Chong and Galaxy.

The police also raided a house believed to have been occupied by the four suspects prior
to the robbery at Petpot Construction although Ali, the landlord, objected to it. The police seized
a car, a substantial amount of cash and pirated DVDs. Ali claimed that the search was unlawful.
All four men were subsequently arrested and produced before a Magistrate to obtain a remand
order. A four day remand order was granted by the Magistrate. Upon completion of the
investigation all four were charged with armed robbery of Petpot Construction.

i1
a) Explain whether Ali, the landlord, can object to search conducted by the police (10m)

Whether or not Ali can object to the search can be grounded in the lawfulness of the search. The
concern on lawfulness is twofold; i) the search at initial stage itself and ii) the subsequent action
afterwards which is the seizure of things not concerned with the contemplation of the search.

Tackling the first issue of the question is whether the search conducted by the police is unlawful.
Generally, search is a power given to the police for the investigation of the criminal offence.
There are two types of search under Criminal Procedure Code (CPC) which are search with
warrant and without warrant. It is not stated clearly in the facts whether the search conducted in
the case is with warrant or not. If warrant was available, section 59 of CPC lays down duty on
person in charge of place liable for search to allow entry into it. If warrant was issued, Ali must
allow and not object to the search upon demand and production of the warrant.

But since the facts of the case did not mention anything about warrant, can Ali object to the
search if it was without warrant? Search without warrant is governed under section 62 of the
CPC. It may be conducted by the police not below the rank of Inspector. There must be
reasonable cause to suspect that stolen property is concealed in such place. There must also good
ground of believing that delays in obtaining warrant would result to the property being removed.
List of the alleged stolen property shall also be delivered or taken down in writing. Owner of
stolen property shall also accompany the police in the search.

There is conflicting views on the effect of non-compliance with the section. In Chin Hock Aun v
PP (1989) 1 MLJ 509, it was held that there is no legal obligation to prepare and deliver a search
list under the term of the section. However, in Yong Moi Sin v Kerajaan Malaysia & Anor
(2000)1 MLJ 35, the court decided otherwise. The Court of Appeal set aside the High Court’s
decision and remitted the case to the Sessions Court for assessment of damages because the
search had not strictly complied with section 62(2) and (3) of the CPC. Yong Moi Sin seems to
weigh more for it being more recent.

All the ingredients mentioned in section 62 shall be fulfilled in order to make the search lawful.
Applying to the question, the police raided the house believing that the house has been occupied
by the suspects prior to the robbery at Petpot Construction. It was revealed that the robbers are
habitual criminals who are on the police wanted list. Being habitual criminals, they are most

2
likely to be an expert and experienced thus a strong ground to believe they are meticulous in
their work. The police might be successful in proving the high possibility that they will remove
the alleged stolen property if there is delay in searching the house.

It is most probable that the facts of the case will help the polices to prove reasonable cause to
suspect and good grounds of believing the delay in obtaining warrant will result to the property
to be removed. If list are prepared and owner of stolen property accompany the search,
complying with section 62, then it will be a lawful search and thus, Ali can’t object to the search.

Looking into second ground whether Ali can object to the search, is on the subsequent seizure of
other things not being in initial contemplation of the police.

This is governed under section 435 of the CPC on seizure of alleged stolen property. It allows
the police officer to seize stolen property found or when there is suspicion that an offence has
been committed. This section seems to include search with or without warrant. In Chic Fashions
(West Wales) Ltd v Jones (1968) 2 WLR 210, it was decided that it is lawful to seize property
which is believed to be a stolen property even though they are not listed in the search warrant.

Therefore, in this case, the police have a right to seize any property believed to be stolen or
property found in circumstance where there is suspicion that offence is being committed. The
seizure of a car, a substantial amount of cash and pirated DVDs even if is not in contemplation of
the search will not render the seizure unlawful as long as there is suspicion that an offence has
been committed, which is obviously so in the current case. Pirated DVDs for example although
is not contemplated in the course of search in relation of the recent robbery, raise suspicion of an
offence again intellectual property, thus is covered under section 435 of CPC.

To conclude, if there is no search list and no accompanying owner of stolen property (besides
reasonable cause to suspect and good reason to believe that delay will cause property to be
removed, which from the facts on the case seems to rest more towards the police), the search will
be unlawful. However, if search list is prepared and owner accompanied, it is a lawful search. In
such case, Ali could not object to the search ab initio. The police also have a right to seize any
property not contemplated when commission of offence is suspected. So, the subsequent action
will not render the search unlawful thus Ali also can’t object to the search on ground of seizure
of things not contemplated.

3
b) The prosecution intends to call Karim as one of the witnesses. Explain briefly whether
Karim can testify without being present in court (5m)

As can be seen from the facts of the case, Karim do not want to have anything to do with the
case for fear of reprisal. The issue is whether Karim as a witness, can testify without being
present in court.

A witness in the first place cannot refuse to give witness account if demanded. Under Section
111 of CPC, the police officer may require the attendance of person acquainted to a case, to
which he must attend, the refusal of which the police can report to Magistrate for a warrant or
order to secure attendance. Witness must testify by being present in open court so that he can be
accessed by both parties and public. Without being present in court, the proceedings cannot be
conducted as accordance to CPC as the provision gives rights and opportunity to both parties to
cross examine the witness, see inter alia s 173(e), 179(2). The court must ensure that the
proceedings are conducted fairly to both parties.

However, the witness may have an alternative to testify without being present in court. This is by
virtue of Section 272B of CPC where a person other than the accused, may with leave of the
court give video or live evidence through a live video or live television link in any trial or
inquiry if it is expedient in the interest of justice to do so. As it is ‘live’ video, both parties will
have the opportunity and rights to cross-examine the witness. As in subsection 5 of Section
272B, it stated that the witness who gives evidence accordance to this section is deemed to be
giving evidence in the presence of the court, the accused person or his advocate, as the case may
be.

In applying to the above issue, Karim must testify by being present in open court so that he can
be accessed by the court. If he refused, the proceedings cannot be conducted in accordance to
CPC as the provisions give rights and opportunity to both prosecution and defence counsel to
cross examines the witness. This is to ensure that the proceeding is not prejudice towards the
accused. However, Karim, without being present in court, has an alternative to testify through a
live video or live television links under Section 272B of the CPC provided that the court
consider it necessary in the interest of the justice and granted a leave for that. As in this method,
Karim is deemed to be giving evidence in the presence of the court.

4
In conclusion, Karim can testify without being present in court, through live video provided that
the court think being necessary in the interest of justice to use the alternative of testifying
through a live video or live television links.

c) Section 107 of the Criminal Procedure Code provides that every information relation to
the commission of an offence should be reduced to writing if given orally. Explain the
following;
a. The failure to sign the FIR

b. The failure to reduce the oral information given to writing.
c. Is it fatal to the prosecution’s case if the FIR is not tendered as evidence in the
proceedings?
(20m)

First information report (FIR) is also commonly known as complaint to the police or police
report. The provision governing the FIR can be found in the CPC, under Section 107, which
generally provides that information on the commission of an offence given to the police must be
reduced to writing and be signed by the person giving it. Usually, the police will start on
investigation upon receiving the information. As per Augustine Paul J in Dato’ Seri Anwar bin
Ibrahim v PP [2000] 2 MLJ 486, information in section 107(1) means “complaint or accusation
or … information of a crime, given with the object of putting the police in motion in order to
investigate”.

Failure to sign the FIR

Section 107(2) clearly provides that the report “shall be signed by the person giving it”. The
issue concerned here is the effect of failure to sign the FIR. What effect will such failure
delivers? The answer of which will involve the determining of it whether being a directory or a
mandatory provision. Construing it through the word ‘shall’ will be unwise and confusing since
we will see how the word ‘shall’ used in subsection (1) on ‘shall be reduced in writing’ will
bring to a different conclusion through cases decided (which will be discussed later in second
subheading on failure to reduce oral information to writing). Saved from conflicting
interpretation, Section 180 of Penal Code (act 574) clearly stated that;

Whoever refuses to sign any statement made by him, when required to sign that
statement by a public servant legally competent to require that he shall sign that
statement, shall be punished with imprisonment for a term which may extend to three
months, or with fine which may extend to one thousand ringgit, or with both.

5
A complaint or information made by a person in the FIR is obviously included in ‘statement’
caught under said section. Thus, the failure to sign it will be punished with imprisonment of
maximum three months or fine of maximum one thousand ringgit or both. Based on that, it can
be said that the signing of the FIR by the statement maker, is a mandatory requirement.

Failure to reduce the oral information given to writing

Section 107(1) and (3)(c) of the Criminal Procedure Code provides that oral information given
“…shall be reduced to writing..”. What will failure to do so deliver?

In PP v Foong Chee Cheong [1970] 1 MLJ 97, it was decided in the magistrate court that failure
to reduce the complaint into writing is fatal for the prosecution and because of that, the police
had no power to act thus making the arrest of the accused to be void in law. This is however
overturned in the High Court decision with reference to an Indian case (being persuasive since
our Penal Code is drafted from Indian Penal Code), Emperor v Khwaja Nazir Ahmad AIR 1945
PC 18, holding that FIR is not a condition preceding an investigation and thus the failure to
reduce it to writing is not a ground to throw a case. However, failure to reduce it into writing will
make the report inadmissible as evidence in court. Foong Chee Cheong is referred to in recent
case of PP v Balveer Singh a/l Mahindar Singh [2009] 1 MLJ 386.

Based on the cases, we can see that failure to reduce to writing is not a ground to throw a case,
but it might create an adverse inference which will not be of benefit to the prosecution because
of it being inadmissible as evidence in proceedings.

Failure to tender FIR in the proceedings

An issue of concern here is whether it is fatal to the prosecution’s case if the FIR is not tendered
in the criminal proceedings? We will see instances where the answer will not be fatal and
another instance where it will.

In Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115, it was stated that; “Although of great
importance, the omission of a FIR does not however appear per se to be fatal to the
prosecution”. The court in concluding that, reviewed earlier cases like Ooi Hock Siong v R
[1955] MLJ 229 and PP v Foong Chee Cheong, where it was decided that while the omission is
serious, there is also other evidence to support conviction and that the omission is not a ground
to throw out a case. From this, the non tendering of FIR will not be fatal to the prosecution’s case
as long as there are other evidence to support the alleged commission of offence. This can be

6
grounded back to the evidential status of the report as merely corroborative evidence than being
substantive; PP v Mohammad Terang bin Amit [1999] 1 MLJ 154. The report will be there to
corroborate on other evidence. If it can be shown that there is a prima facie case against the
accused through other available evidences, the failure to adduce the report as evidence will
certainly not be fatal to the prosecution; PP v Foong Chee Cheong [1970] 1 MLJ 97.

However, these shall be distinguished with cases like Chin Khing Siong v R [1952] MLJ 74 and
also Teo Thin Chan & Anor v PP [1957] MLJ 184, where failure to tender the FIR as evidence
will be fatal to the prosecution’s case. This is when the case depended entirely on evidence of the
complainant thus the very importance of the FIR. The court in Tan Cheng Kooi recognized that
the omission of FIR does not appear per se to be fatal, but since the evidence in that case came
entirely from the complainant, the appeal against conviction of accused was allowed because of
the failure to adduce the report. Chin Khing Siong was followed.

It was also held in PP v Abdul Razak bin Johari [1991] 1 MLJ 105 that the failure to produce the
FIR might lead court to draw an adverse inference against the prosecution under section 114(g)
of the Evidence Act 1950 if the case depended entirely on evidence of the complainant. The
effect of failure by the prosecution to tender in evidence the police report was also raised as one
point of law in the recent case of Balachandran v PP [2005] 2 MLJ 301;

Where it is not tendered in evidence in such a situation the evidence of the witness
stands to be rejected; not because it lacks corroboration but because it may not
pass the test of credibility and reliability on its own. It is only to that extent can it
be said that the failure to produce the first information report is fatal.
See also the recent case of Pendakwa Raya v Lukman bin Aswah [2009] MLJU 0145, where the
principle in Foong Chee Cheong, Tan Cheng Kooi, Balachandran etc were referred to and
affirmed.

It can be seen from the cases cited that failure to produce FIR as evidence will be fatal to the
prosecutions’ case if the case depends entirely on evidence by complainant while it will not be
fatal if a prima facie case can be made against the accused by other evidences without producing
FIR as evidence. As stated in Balachandan, “the strength of its case is to be assessed as it
stands”.

7
d) Discuss whether an arrest has been effected by inspector Alpha when the four men were
taken to the police station. (15m)

The issue is whether the action of Inspector Alpha taking the four men to the police station
constitutes an arrest.

According to the First Schedule of the CPC, for section 397 of the Penal Code, armed robbery is
a seizable offence. In the third column, the police may ordinarily arrest without warrant. Arrest
without warrant by the police is governed by section 23(1) of the CPC. The provision laid down
several occasions in which the police may arrest without warrant. One of those is when seizable
offence has been committed where a reasonable complaint has been made, credible information
has been received, or reasonable suspicion exists against the person (section 23(1)(a)). In
addition, section 23(1)(d) provides that the police may arrest without warrant if the person is
found to be with anything stolen or reasonably suspected to be stolen. There is also provision to
stop and search any car without warrant in The Police Act. According to section 24(1)(b) of the
Police Act, any police officer may stop and search any vehicle without warrant if there is
reasonable suspicious to suspect that it is being used in committing any offence against the law.

CPC does not specifically define arrest. Section 15 of CPC merely tells on the procedure of an
arrest. It tells on how an arrest can be made. According to said section, an arrest is made when
the police officer touch or confine the body of the person to be arrested. Arrest has also been
made when there is a submission to the custody by word or by action. In addition, the Halsbury’s
Law of England states that arrest by words is effective when the words are calculated to bring
notice that the person is under compulsion.

In Shaaban & Ors v Chang Fook Kam & Anor [1969] 2 MLJ 219, the Privy Council reiterated
on how an arrest is made, thus making it effective. It occurs in three ways. First is when the
police officer state in terms that he is arresting. Second is when the police use force to restrain
the person whom he is going to arrest. Lastly, when the police’s words or conduct indicates that
he is going to use force if necessary to stop the person whom he is arresting from going away.

8
The court in Jayaraman v PP, by applying the principle in Shaaban also held that there was no
arrest when the corporal told the people in the temple not to leave the place. This is due to the
fact that the act of the corporal was merely to stop them from going away as the police wanted to
make further inquiries into the incident.

In the latest case of Yong Moi Sin v Kerajaan Malaysia & Anor (2000)1 MLJ 35, the court had
distinguished between custody and arrest. The court ruled that a person who is in police custody
is not under an arrest and the two can never be equated. The judge had also referred to the case
of Harbansingh Sardar Lanasingh v Madar and decided that it is not an arrest when a person is
being drive away in his car accompanied by several officers of the law. In addition, the court had
also interpreted the word custody to include certain circumstances where one of those
circumstances is when police officers accompany a person to the police station. That amounts to
a submission to custody.

To apply the above principles of the law, it is submitted that there may not be an effective arrest
when Inspector Alpha brought the four men to the police station for further investigation.

Firstly, the First Schedule of the CPC read together with section 397 of the Penal Code, armed
robbery is a seizable offence. So, in accordance with section 23(1)(a) of the Code, as the police
had received information which tells the description of the car, the police can arrest them without
warrant. Furthermore, as the police had also found stolen items in the car, by virtue of section
23(1)(d) of the CPC, they may arrest all the men without warrant.

Nevertheless, there may not be an arrest when the police brought all the four men to the police
station because the act of the police did not fall within any of the scope given under section 15(1)
of the CPC. Besides that, there is nothing to indicate that the police have state in terms that he is
arresting, neither the police use force to restraint the four men nor that the police’s words or
conduct indicates that he is going to use force if necessary to stop the four men from going away.
Thus, by applying the principles in Shaaban, no arrest has occurred.

In addition, by applying the principle in Jayaraman, as the police brought them to the police
station, it may not amount to an arrest as what the police do by bringing them to the station was
merely to make further inquiries into the alleged offence.

Aside from all the above, what the police did may amount to custody as oppose to an arrest. This
is due to the fact that by applying the principles in Yong Moi Sin and Harbansingh Sardar, as the

9
police accompanied all the four men to the station, that may indicates a submission to a police
custody and custody is not to be equated with an arrest.

In conclusion, the act by Inspector Alpha in bringing all the four men to the police station for
further investigation may not amount to an arrest and may not be an effective arrest. Instead, it
may amount to a custody based on the reasons abovementioned.

e) With reference to the statutory provisions and judicial decisions, explain whether the
charge against the four men can be tried at the same trial.

The issue in the situation is whether the charge against the four men can be tried at the same
trial. The concern is twofold; i) whether more than one accused can be joined together at the
same trial and ii) whether different charges can be tried together at the same trial.

The general rule is that every charge of one offence should be tried separately or every accused
person should be tried separately. This rule is provided in S.163 of the Criminal Procedure Code
(CPC), which is the rule against joinder of charges / rule against joinder of accused persons (joint
trials).

There are four exceptions to this provision where sections 164, 165, 166 and 170, with the
former three being applicable to one accused, while section 170 apply when there is more than
one accused person. Cases have held that all the four exceptions are mutually cumulative and not
mutually exclusive. This means that if one exception applies to a particular set of facts, the other
exceptions are not excluded. This can be seen in the case of Lim Yean Leong v PP [1940] MLJ
272, where the court held that, on the facts of the case, applying the principle of mutual
cumulation, both the exception under section 164 (same kind) and section 165(1) (same
transaction) applied at the same time.

Section 170, being the most relevant exception here, refers to situation or offences when the
court may allow more than one accused to be tried jointly. First is when they are accused of
committing the same offence or second, in case of different offence is when it is committed in
the course of the same transaction. Third is when one is accused of committing an offence,
abetting or attempting to commit the same offence.

In Jayaraman & Ors [1979] 2 MLJ 88, the eight accused persons were tried jointly in one trial
under S.170(1) of the CPC and for each accused person the four charges were tried in the same
trial.

10
Here, Aru, Beta, Chong and Galaxy were suspected of being involved in the armed robbery,
which is an offence under section 391 of PC and can be tried by Session Court. Aru might be
dropped off the suspect list if on investigation it can be proven that he was not involved with the
robbery alleged of being committed by Beta, Chong and Galaxy. That is if his alibi of being in
Penang can stand. Fairly assuming that it is so; Beta, Chong and Galaxy, all being accused of
armed robbery, can be tried together since they committed the same offence, which is covered
under purview of section 170 permitting the joinder of trial on ground of commission of the
same offence, here, being the armed robbery. Based on that, applying the same reasoning for the
offence against intellectual property law and distributing pornographic material, Aru, Chong and
Galaxy can also be tried together for the offence.

The next concern here now, is whether all of them can be tried together, by joining together the
charge of armed robbery and also offence of distributing the illegal material.

The latter offences are distinct from gang robbery and thus generally can’t be tried together.
However section 170 and principle of mutual cummulation permits the joinder of different
charges/offences IF it is carried out in the same transaction.

But it is clear that the offences to sell pirated DVD and pornographic material here are not
carried out in the same transaction with the gang robbery and thus ought not to be included. They
form two different, distinct transactions. Thus, the offence of selling pirated and pornographic
material should be charged separately from the charge of armed robbery.

In conclusion, Beta, Chong and Galaxy can be jointly tried for the charge of armed robbery. In
the other hand, Aru, Chong and Galaxy can be jointly tried for the charge of selling pirated and
pornographic material. However, all four of them can’t be tried together with the charge of
former and latter offences being jointly tried as the charge is not of the same offence nor it is in
the same transaction.

11
12