CRIMINAL PROCEDURE I (LAW601)

GROUP ASSIGNMENT 1

GROUP:
LWH07E

Prepared by:
DANIAL & CO.
(FIRM 1)

NAME STUDENT ID

MUHAMMAD DANIAL BIN ABD MAJID 2018663504

SITI NURADILAH BINTI MOKHTAR 2018680778

NUR FAKHIRA BINTI ABDUL GHAFAR 2018644854

SITINUR SABRINA BINTI MOHAMMAD 2018680762

NURUL SYUHADAH BINTI AHMAD SHUHAIMI 2018645092

Prepared for:
DR. NADZRIAH BINTI AHMAD

Submitted on:
15th DECEMBER 2021 (WEDNESDAY)
(a) The first issue is whether the offence committed by Oren is seizable and non-bailable.

Under section 420 of the Penal Code, whoever deceives and induces the deceived to deliver any
property to any person, or to alter or destroy a valuable security, or anything that is signed or sealed and
capable of being converted into a valuable security, shall be punished by imprisonment for a term of not less
than one year and not more than ten years, as well as a fine. Pursuant to the First Schedule of Criminal
Procedure Code (CPC), the offence under Section 420 of the Penal Code may constitute an arrest without
warrant and is a bailable offence.

Applying to the question, Oren made an offence where he cheated Meon to induce him to buy a
holiday trip ticket to Pulau Tioman from a Happy Travel Agency and deliver a deposit of RM3000 but then
did not show up to give the tickets as they agreed. He also gave a fake office address to Meon. This offence is
punishable under Section 420 of the Penal Code and it is a seizable and bailable offence under the First
Schedule of CPC.

The second issue is to determine whether the arrest made by Meon, Boboi and Sam is lawful under
Section 27(1) of the CPC.

Arrest of a person may be made by a private person where in his view, that person had committed a
non-bailable and seizable offence and shall hand him over to the nearest police officer without any
unnecessary delay as stipulated under section 27(1) of CPC. The meaning of the context “in his view” was
defined in Metro (Golden Mine) Ltd v Paul Chua Wah Lian as the crime was committed in front of a
private individual and it is insufficient to rely on one's own opinion alone.

In Public Prosecutor v Sam Hong Choy, it was extended to when that private person was positive
that those attempting to flee were the perpetrators because he was so close to the crime scene despite not
seeing the incident. In this case, the private person heard gunshots and someone saying "Tolong kejar
perompak." He noticed two individuals running by him, pursued and arrested the accused. It was held that the
entire situation should be considered as a single transaction, and anyone who observes him doing the crime or
catches him running immediately after the crime should be able to arrest him.1 The requirement for the
arrested person to be taken to the nearest police station without unnecessary delay was explained in John

1
[1999] 4 MLJ 433
1
Lewis v Tims as not particularly instantly, but as soon as it is reasonable where in this case it was not
unreasonable to acquire approval by the managing director before the shoplifter was taken to the police.2

Applying to the situation, Oren was arrested by Meon when he saw Oren at the car park near the Gerai
Selera shop which was also assisted by Boboi and Sam. Since all of them are private persons, the arrest made
by them must be in accordance with Section 27(1) of the CPC. Firstly, the offence made by Oren which was
cheating under Section 420 PC is a seizable offence and bailable offence. Therefore, it does not fulfil the
requirement where it must be a non-bailable offence.

For the second requirement, the offence made by Oren must be made in their view or that they are
positive that Oren did it because they were so close to the crime scene despite the fact that they did not see it.
Since Meon was the victim himself, he definitely witnessed the offence committed by Oren. Boboi and Sam
only heard the argument and they did not witness the crime within the same transaction it was committed.
They arrested Oren merely based on their opinion after being told by Meon that he was cheated by Oren.
Hence, Boboi and Sam do not have the right to arrest. The next requirement which is to bring Oren to the
nearest police station without unnecessary delay was fulfilled where Oren was submitted to Sergeant Beta at
Section 11 Shah Alam police station without any delay.

In conclusion, the arrest made by Meon, Boboi and Sam towards Oren was unlawful.

The third issue is whether the arrest of Oren made by Sergeant Beta is a lawful arrest under Section
23 (1) (a) of CPC.

Under Section 27(2) of CPC, a police officer may rearrest a person arrested under Section 27(1) of the
CPC if there is ground to believe he is subject to the provisions of Section 23 of the CPC. Section 23(1) (a)
further states that any police officer or penghulu may arrest any person involved in any seizable offence
without a warrant or an order from a Magistrate. Arrest may be made when a reasonable complaint is made,
credible information is acquired, or a reasonable suspicion arises that an arrest could be made.

The police may lawfully arrest a person through a reasonable complaint by the victims themselves or
through oral or written police reports. In Chong Fook Kam & Anor v Shaaban Bin Hussien & Ors, a

2
[1952] 1 All ER 1203

2
reasonable complaint can be equated with a reasonable or probable cause. It is a situation that would cause a
person of ordinary care and sound judgement to believe or entertain an honest and strong suspicion that the
suspect is guilty of an offence.3 In Tan Kay Teck & Anor v AG, it was stated that an objective, rather than a
subjective, test should be used to determine whether a complaint is reasonable.4 The court in this case referred
to the case of Tims v. John Lewis & Co. where to determine whether the arrest was made based on a
reasonable complaint, the Court must first determine what facts were known to the police officer and then
decide whether those facts amounted to a reasonable complaint that the arrested person had actually
committed the offence.5

Applying to Oren’s situation, Sergeant Beta may rearrest Oren after he is arrested by Meon, Boboi and
Sam under section 27(2) of CPC if it fulfils the element under section 23(1)(a) of the CPC. The offence
committed by Oren was a seizable offence hence Sergeant Beta may arrest him without warrant from the
Magistrate. Sergeant Beta may arrest Oren on the basis of a reasonable complaint made by Meon at the police
station after Oren failed to show up at Café Corner, Section 11 Shah Alam on 23 November 2021 to deliver
the flight tickets. In the police report, Meon also stated that he is unable to contact Oren because the contact
number he previously used was terminated and he discovered that the office address was fake because it
belonged to Delicious Bakery shop for the previous two years.

Based on Chong Fook Kam & Anor v Shaaban Bin Hussien & Ors, a person of ordinary care and
sound judgement will reasonably believe that Oren is indeed guilty of cheating based on the facts given. A
person that does not have the intention of cheating would not terminate his contact number and fake an office
address. Following the case of Tan Kay Teck & Anor v AG and Tims v. John Lewis & Co., the facts known
by Sergeant Beta based on the police report made by Meon are sufficient and reasonable for him to believe
that Oren did commit the offence of cheating. Therefore, the objective test of a reasonable complaint was
fulfilled to allow Sergeant Beta to arrest Oren.

In conclusion, the arrest of Oren by Sergeant Beta is lawful.

3
[1967] 2 MLJ 54
4
[1957] MLJ 237
5
[1951] 2 KB 459
3
(b) Whether the search conducted on the premises by Inspector Oscar is in accordance with the law.

i) The first issue is whether the search conducted on the premises by Inspector Oscar is in accordance
with Section 116 of the Criminal Procedure Code (CPC).

When the police conduct a search, the purpose is to find relevant evidence and to see the chain of
evidence. This is supported by Yong Moi Sin v Kerajaan Malaysia & Anor,6 the objective for conducting
the search was to conduct an inquiry and obtain evidence to aid the police investigation. It must be done in
accordance with the law. In Ghani & Ors v Jones,7 the common law does not permit police officers or
anyone else to ransack anyone’s house simply to see if he may have committed some crime. Therefore, a
search may only be conducted for obtaining incriminating evidence. There are two types of searches on
property namely, with or without warrant. In applying the law to the current issue, since it is silent as to
whether Inspector Oscar has obtained a warrant from the magistrate, it can be assumed that there was no
warrant when he did the search on the property. This is because the search was conducted on the same day
when Minah had informed Inspector Oscar on the location of where Oren was staying. Therefore, section 116
and 51 of the CPC is discussed.

Section 116 of CPC provides when a police officer finds that the production of any document is
necessary and has a reason to believe that such document will not be produced by the persons who are
summoned under Section 51 of CPC, the officer may search the place. Section 51 states that anytime a court
or a police officer conducts an investigation that requires the production of any property or document, the
court may issue a summons or a written order to the officer authorizing him to conduct a search on the
premises involved. Thus, Section 116 of CPC can be invoked if the matter is urgent and if there is no
compliance with section 51 of the CPC.

In determining whether the search without warrant conducted by Inspector Oscar can be justified, the
requirements under section 116 of the CPC must be complied with. It is no doubt that evidence found at the
Apel’s occupied premises would assist in the investigation. However, since the scamming operation was done
through an online platform, it is logical that the form of evidence proving that Oren did such an act would be
in the form of an electronic device. Thus it can be said that the search was not a matter of urgency in obtaining
evidence because such evidence can still be tracked and traced through IP addresses on devices used in the

6
[2000] 1 MLJ 35
7
[1969] 3 All ER 720
4
scamming operation. Analysis can still be done despite Oren deleting his data as information in electronic
devices can be recovered easily. Since Oren was detained, he would not have the opportunity to tamper with
such evidence and if Apel were to help Oren in disposing of his tracks and evidence, the investigating team
would still be able to recover such information. Moreover, the info of Orens’s bank account information may
still incriminate him with the money transferred to him thus connecting him to the crime committed.
Therefore, this would not be a justifiable reason to conduct a search at Apel’s occupied premises without
waiting for a warrant . Applying section 51 of the CPC, there is a possibility that Oren would cooperate in
producing such relevant property since he was still detained under Inspector Oscar. This would easily help
Inspector Oscar in compelling Oren to cooperate in producing the devices used by him in his scamming
operation. Hence, the search without warrant at Apel’s premises is not fulfilled under section 116 of the CPC.

Under section 410 of the Penal Code, it states that if a property has been transferred by theft or
property has been criminally misappropriated or cheating has been committed, it is considered as a stolen
property. In section 410(2) of the Penal Code, the expression stolen property includes property into or which
has been converted or exchanged and anything acquired by such conversion or exchange whether immediately
or otherwise. Since stolen property is involved, section 62(1) of the CPC may be invoked. There are 4 main
requirements that need to be fulfilled, firstly, the police officer has received credible information. Secondly,
the search is conducted by a police officer not below the rank of an Inspector. Thirdly, the stolen property is
involved and lastly, the police officer has a good ground to believe that if the search is not conducted, the
property in question will disappear and cannot be traced. However, the property must be a specific stolen
property. This can be illustrated in the case of Yong Moi Sin v Kerajaan Malaysia & Anor, whereby he
stolen property involves is in relation to a gold locket and the nature of the locket is can be melted, which
once melted then the traces of evidence can no longer be traced by the police.

Applying the law to the current issue, Minah had transferred RM5000 to Remy disguised by Oren and
Meon had transferred RM3000 to Oren. This act of scamming by Oren is covered under cheating under
section 410 of the Penal Code, whereby the money transferred by the victims to Oren is considered stolen
property. In normal practice, most scammers will not keep the money they had received in a bank account
instead they opt for cashing them out and converting them into items. This would then help them cover the
money they received from their victims, hence money converted into items or properties will be considered as
stolen property under section 410(2) of the Penal Code. Therefore, the luxury handbags and expensive

5
handphones found on the premises would lead to a possibility that such items were converted by the money
received by Oren in his scamming operation. Hence, section 62(1) of the CPC on search without warrant for
stolen properties may be applicable.

Firstly, despite Inspector Oscar receiving information from Minah in regards to where Oren was
living, it would not be a reasonable ground to believe the scam money was kept in Apel’s occupied premises.
This is because Minah only informed on the location of where Oren was living and not the location where she
suspected the scam money was kept. Moreover, if Inspector Oscar were to suspect the scam money was there,
there is still no good reason for him to believe that the money would be removed from the premise as Oren
was still under his detention and was not allowed to be represented by a lawyer. Furthermore, the requirement
under section 62(1) of the CPC is in regards to a specific stolen property. Hence, even though there is a
chance that Oren may have converted the money into buying a property or item, Inspector Oren would not
have known the exact specific stolen property that he was intended to search at the said premise. Therefore,
Inspector Oscar cannot be allowed to search without a warrant under this section.

In conclusion, the search conducted on the premises by Inspector Oscar is not in accordance with the
law referring to section 116 of the CPC.

ii) The second issue is whether the seizure of the property, which is the recovery of a laptop in the living
room, several expensive handphones and three luxury handbags from Apel’s bedroom, is admissible in court.

According to section 64 of the CPC, the officer who conducted the search has to list down the
exhibits that were found in the course of the particular search in order to show that these items are relevant to
the case in question. Meanwhile, section 65 of the CPC states that the occupant of the place searched, or
some person in his behalf, shall in every instance be permitted to attend during the search, and a copy of the
list prepared and signed under this section shall be delivered to that occupant or person at his request.
Pursuant to section 62 and section 116 of CPC, both provisions are silent regarding seizing exhibits; therefore,
section 435 of CPC can be referred to in order to overcome the shortcomings of the two provisions
mentioned. Section 435 of the CPC states police officers may seize any property which creates suspicion that
an offence has been committed or any alleged or suspected stolen property during a search. Thus, it can be
seen that this provision provides a wide power in conducting search and seizure of articles or items.

6
 Ghani & Ors v Jones provides some guidelines to the police when conducting search and seizing
items, emphasising that they cannot go beyond what is necessary to the point of infringing the privacy of the
person. One of the guidelines is that the police officer has reasonable grounds to believe that a serious crime
was committed. Secondly, articles or instruments found are the fruit of crime or instruments used to perpetrate
crime. Next, the police officer has reasonable ground in believing that the person possessing the items had
committed crime or accessory to crime. Fourthly, the police officer cannot keep or remove the item seized
during search longer than necessary and lastly, the police officer when conducting the search must strike a
balance of society's interest, finding perpetrators and preserving evidence. However in PP v Sheridan,8 it
stated that although the search which led to the seizure of incriminating items did not comply with the
provisions specified in the CPC, such items are still admissible.

Applying the law to the current issue, Inspector Oscar had fulfilled his obligation was in providing a
search list in regards to seizure of the property when conducting the search which in this case included the
recovery of a laptop, several expensive handphones and three luxury handbags found in Apel’s bedroom
pursuant to section 64 of the CPC. Section 65 of the CPC was also complied with as Inspector Oscar when
conducting the search on the premise, the occupant of the premise, Apel was present hence given the right of
the occupant to be present when search was conducted at his place.

Although Section 116 and Section 62 of CPC is silent on the power of Inspector Oscar to seize the
property listed in the search list he may rely on section 435 of CPC. The recovered item which includes a
laptop, several expensive handphones and three luxury handbags found in Apel’s bedroom creates suspicion
that the offence of the scamming operation has been committed. In regards to the luxury handbags, it would
amount to suspicion as it can be said that such items are the product of illegally obtained money from the
scamming operation which was then converted into such items. These handbags, could help in court as to
strengthen the case where the court may ask, ‘would it be reasonable for a person to have three luxury
handbags unless they have received a huge sum of money’. Meanwhile, for the laptop and expensive
headphones, it would create suspicion that such devices were used by Oren in conducting the scamming
operation as it was done through an online platform.

Applying Ghani & Ors v Jones, Inspector Oscar has reasonable grounds to believe that a serious
crime was committed as two police reports were made by Meon and Minah involving different scams done by

8
[1984] 1MLJ 141
7
the same person. The laptop discovered has been proved that it was the device used by Oren committing the
act of scamming based on the analysis of the history search on the laptop revealing it has been used to send
messages to female victims including Minah, using online platform, Romance. Since such items was in the
house where Oren was living, it is reasonable to believe that the individual in possession of the items were
Oren thus making him the perpetrator of the crime. Inspector Oscar did not infringe the privacy of Oren and
Apel as he only took items which were raising suspicion to the case. Hence, the seizure of the property which
included the recovery of a laptop in the living room, several expensive handphones and three luxury handbags
from Apel’s bedroom is allowed. Applying PP v Sheridan, the issue of admissibility of such items has been
proved to not comply with the law since the search conducted was done without a warrant, but the items
would still be admissible as the illegality of the search will not taint its admissibility.

In conclusion, the seizure of the property during the search on the premises is admissible in court.

iii) The third issue is whether the search on Apel’s body is lawful by virtue of Section 17 of the CPC and
Section 20A of the CPC.

Searches on persons without warrant are permitted under section 17, 20 and 22 of the CPC. In the case
of Ghani & Ors v Jones, the common law prohibits police officers or anybody else from ransacking
someone’s house, searching for papers or goods or searching his person solely to see if he has committed
some crime. A balance between the preservation of documentary evidence and the privacy of the individual
being searched is needed. In regards to section 17 of the CPC, it states that search in any place is capable of
being concealed upon the person where the search of the place may be extended to search of all person found
in that premise in the presence of or by a Magistrate or Justice of the Peace or a police officer not below the
rank of Inspector.

Applying the current issue, during the search at the premises, Inspector Oscar had instructed his team
to conduct a body search on Apel in his presence, when they were conducting a search without a warrant on
the said premise. Thus, this is in accordance with section 17 of the CPC whereby the search at Apel’s
occupied premise has been extended to the search on Apel’s body as he was present at the time the search was
conducted on the said premise. Hence, the requirement under section 17 of the CPC for the search to be done
in the presence of a police officer ranked not below Inspector is fulfilled, making the search on Apel’s body
pursuant to section 17 of the CPC.

8
 In Mostafa Lesanibaroogh Ebrahim and RasoulAhmadi Nematollah v PR9 and according to
paragraph 7(2) of the Fourth Schedule, it listed down the 4 types of searches on a person namely, pat down
search, strip search, intimate search and intrusive search. In PP v Bayati Heider,10 it was stated that for every
type of search conducted, it must comply with Section 20A of the CPC read together with the Fourth Schedule
of the CPC. According to Paragraph 1(1) of the Fourth Schedule of CPC, a search may only be conducted
with the purpose of obtaining incriminating evidence of the commission of the offence for which he has been
arrested, to seize contraband, the proceeds of crime, or other things criminally possessed or used in
conjunction with the offence for which he has been arrested or for the discovery of evidence related to the
reason of the arrest or to preserve the evidence or to prevent disposal of such evidence by the person arrested.
These objectives need to be met by the police officers before they can conduct searches on persons, otherwise
it would amount to infringement of privacy. A person arrested here is referred to a person who is arrested or in
lawful custody after his arrest stated under paragraph 1(2) of the Fourth Schedule.

By virtue of section 17 of the CPC, a search on a person without a warrant may be conducted by
complying with the procedures in section 20A of the CPC read together with the Fourth Schedule of the CPC.
In applying to this present case, it has been clearly stated under Para 1(1) of the Fourth Schedule that a
search may only be conducted to search for incriminating evidence for which ‘he’ has been arrested. ‘He’
refers to the accused, which in this present case is Oren who was involved in a scammer operation through an
online platform known as ‘Romance’ whereas Apel is merely the occupant. Since there is no previous
evidence that Apel has done any misconduct, searching Apel’s body for evidence would be unlawful and in
reference to Ghani & Ors v Jones, searching a person’s body solely to see if has committed some crime is
prohibited. The last limb of Para 1(1) of the Fourth Schedule which says that a search may be allowed to
prevent disposal of such evidence by the person arrested, this could not be applied as the search was done to
‘obtain’ incriminating evidence on Apel’s body and not to ‘prevent’ disposal of such evidence. There has been
no evidence showing that Apel has any evidence on him nor done any misconduct in the first place, therefore
how could the police officers assume that Apel could ‘dispose’ of any evidence? Therefore, Paragraph 1(1)
of the Fourth Schedule has not been complied with.

In conclusion, the search on Apel’s body is unlawful by virtue of Section 20A and Fourth Schedule
Para 4 of CPC.

9
[2017] 1 LNS (Legal Network Series) 515
10
[2014] 2 CLJ 915
9
(c) The issue is whether the remand application made by Inspector Oscar for both Oren and Apel shall be
granted under Section 117 of the Criminal Procedure Code (CPC).

According to Section 117(1) CPC, it provides that whenever any person is arrested and detained in
custody, and that the investigations cannot be completed within 24 hours fixed by section 28 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 relating to the case
and shall at the same time produce the accused before the Magistrate.

Section 117(7) CPC further provides that upon granting a remand order, the magistrate must record
his reasons for doing so. In Suhaimi Yusof v PP,11 where the magistrate merely granted the remand without
any reason to support his order, he had failed in exercising his judicial mind, which caused the order to be set
aside. Nevertheless, before a Magistrate can grant or refuse a remand application made under Section 117(1)
CPC, there are three important elements that a Magistrate needs to consider. Firstly, production of the arrested
person before the Magistrate. For this element, a magistrate should ask himself why he would want the person
to be brought to him to enable the magistrate to decide whether or not a remand is necessary and for an
arrested person to make any representation he may wish in the matter.

Secondly, there must be grounds for believing that the accusation or information is well founded. At
this stage, the magistrate has to decide whether there are grounds for believing that the accusation or
information is well founded and when the police request for the detention to be longer, there must be
justification provided before the magistrate could allow the extension. This is illustrated in Re Detention of
Sivarasa,12 where the court held there must be the grounds for believing that the person produced is the
person involved in the accusation in the police report and to justify the period of further remand requested.
Thus, a magistrate ought not to give a remand order without satisfying himself as to its necessity and that the
period of remand should be restricted to the necessities of the case. If the necessities of the case for remand or
further remand are not shown, no remand order should be made.

Furthermore, in Dasthigeer Mohamed v Kerajaan Malaysia,13the court held 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

11
[2006] 1 CLJ 185
12
[1996] 3 MLJ 611/ [1997] 1 CLJ 471
13
[1999] 6 CLJ 317
10
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. Basically,
if the grounds produced are not well-founded as to necessitate the detention of the suspect, no remand order
should be made. Example of not well-founded grounds is when the accused is detained on the ground that he
is only a potential witness. To illustrate, in Chong Fook Kam v Shaaban,14 the court held that the law does
not empower the police to arrest and detain potential witnesses. Similarly, in PP v Audrey Keong Mei
Cheng,15 the court held that it was an abuse of the law to compel witnesses or potential witnesses to come
forward to assist in police investigations.

The last element is the production of an investigation diary in remand application as provided under
Section 117(1) CPC and Section 119(1)(a) to (d) CPC further provides the details that are required to be in
the investigation diary. The production of an investigation diary (ID) is mandatory in making an application
for a remand as stated in the case of PP v Audrey Keong Mei Cheng, whereby a failure to do so will cause a
magistrate to not entertain the application. The production of ID is important to help the magistrate to come to
a decision as all the investigation process of a case was written in the ID. This can be seen in the case of
Dasthigeer Mohamed v Kerajaan Malaysia, where the court states that the purpose of the ID is to help to
show how the first 24 hours had been utilised, why and for how long the arrested person should continue to be
held in custody and not released on bail and why the arrested person should be held in police custody. The
production of ID is also to know whether the police have been doing their duty diligently while carrying out
the investigation, as if not, it may deprive the accused’s right not to be detained.

Applying the law, generally Inspector Oscar is allowed to apply a remand to detain Oren and Apel
under Section 117 of CPC if it appears that the investigations cannot be completed within 24 hours and as the
Magistrate, I have the power to decide the necessity of the remand with reasons justified as provided in
Section 117(7) of CPC to enable Inspector Oscar to complete his investigation. However, before the remand
application can be granted, Inspector Oscar must fulfil the three requirements provided under Section 117(1)
CPC.

For the first requirement, which is the production of the arrested person before the magistrate, it is
considered fulfilled by Inspector Oscar on the day he produced Oren and Apel in the Magistrate Court before

14
[1968] 2 MLJ 50
15
[1997] 3 MLJ 477
11
the Magistrate on 27 November 2021 since they were arrested on 26 November 2021. Applying the second
requirement as illustrated in Re Detention of Sivarasa & Ors, there is a well founded ground for me, as the
Magistrate, to believe and grant the remand and allow Inspector Oscar to detain Oren longer than 24 hours as
Oren is involved in a cheating case whereby he has scammed and cheated the victim, Meon before ran away
with Meon’s money. The remand is a necessity of the case for Inspector Oscar to further his investigations,
therefore the second requirement of remand for Oren has been fulfilled.

However, as for Apel, Inspector Oscar cannot arrest and detain Apel because pursuant to Chong Fook
Kam v Shaaban and PP v Audrey Keong Mei Cheng, the ground for the remand application for Apel that
was submitted by Inspector Oscar in his investigation, is not a well founded ground to necessitate the
detention of Apel as he is only a potential witness to Oren’s cheating case, not a person who is directly
involved in the crime in the police report and it is an abuse of law if such application being allowed by the
Magistrate. Besides, contrary to the case of Dasthigeer Mohamed v Kerajaan Malaysia, there is nothing to
support the confidence for Apel to be the wrongdoer in the current case as he is only a potential witness. Since
the second requirement is not fulfilled, detaining Apel longer than 24 hour is a direct contravention under
Section 117 of CPC and allowing such remand will lead to an abuse of power of Magistrate as illustrated in
Re Syed Mohammad bin Syed Isa.

Lastly, as required under Section 117(1) CPC as the mandatory requirement, Inspector Oscar must
produce the investigation diary to the Magistrate where his failure to do so will cause his remand application
will not be entertained by the Magistrate at all as illustrated in the case of PP v Audrey Keong Mei Cheng.
In the current issue, Inspector Oscar has submitted the investigation diary relating to the investigation on
cheating committed by Oren as required under Section 117(1) and Section 119 of CPC. Nevertheless, despite
Inspector Oscar having submitted the investigation diary to the Magistrate, the last requirement is only
considered to be fulfilled on part of Oren, but not Apel. This is because considering the facts given and also
the discussed second element, the remand shall not be granted towards Apel as he is not the suspect of the
case and merely a potential witness who will help the investigation.

In conclusion, as the Magistrate, I will only grant the remand for Oren since all the requirements under
Section 117 of CPC have been fulfilled, justifying the remand order to be given to further detain Oren, but
not for Apel as he is only a potential witness in the current case.

12
(d) The first issue to be addressed is whether the non-tendering of the First Information Report (FIR) is
fatal in the prosecution of Oren for cheating done on Meon.

Section 107(1) of the Criminal Procedure Code states that the police are to put in writing any
information received relating to a commission of an offence. Thus, this writing of information is considered as
FIR. To further explain FIR, in PP v Perdeep Singh an FIR is when a report is made to inform the police of a
possible offence having been committed and to get them down to the scene for the investigation to be
conducted.16 Thus, the lodgment of a report to the police which initiates a police investigation on the matter is
a FIR. According to Ooi Hock Leong v R, it is a practice to produce the FIR as part of the prosecution
case.17Additionally, referring to Tan Cheng Kooi v PP, although it is a practice to produce FIR in criminal
trials, FIR is only used according to Section 157 of the Evidence Act as a previous statement to corroborate
the author of it.18 This meant that FIR is only tendered to show consistency between the statements made by
the complainant in the FIR and the his testimony in the trial and may give ground for belief in the
complainant’s truthfulness if these two are consistent thus shows why FIR is not necessary to be tendered as it
is not a piece of substantive evidence as it is only to be used to corroborate the witness's statement in court.

However, there are instances where it is necessary for FIR to be produced. This can be seen in PP v
Abdul Razak bin Johari, where FIR is necessary to be produced if the complainant was the principal or only
witness.19 The failure to produce it can lead to the presumption of adverse inference under Section 114(g) of
the Evidence Act as the non-production of FIR in cases such as this would deprive the accused of the
opportunity to cross-examine the complainant. However, in Martin Rhienus v Sher Singh, even when the
complainant is the only witness, FIR would not be essential to be tendered when there is other evidence or
evidence of other witnesses to establish the guilt of the accused.20

Referring to the issue above and applying PP v Perdeep Singh, since Meon had lodged a report to the
police and this enabled the police to conduct an investigation on Oren’s act, the report made by Meon is FIR
according to Section 107 of the CPC. Applying Ooi Hock Leong v R and Tan Cheng Kooi v PP, the
tendering of FIR is not necessary as it is only a matter of practice and is only to be used to corroborate Meon’s
statement in the proceedings. However, since Boboi and Sam only had witnessed Meon beat Oren and thus
16
[1999] 3 SLR 110
17
[1955] MLJ 229
18
[1972] 2 MLJ 155
19
[1991] 1 MLJ 105
20
[1949] 1 MLJ 201
13
would not be privy to any knowledge of cheating done by Oren, this makes Meon the only person to
experience the cheating thus making him the only witness. Thus applying PP v Abdul Razak bin Johari,
Meon’s situation necessitates FIR to be tendered and the non-tendering of FIR would attract adverse inference
under Section 114(g) of the Evidence Act as it will deprive Oren of the opportunity to cross-examine Meon.
Applying Martin Rhienus v Sher Singh, as Boboi and Sam are not privy to any knowledge regarding the act
of cheating done by Oren, this meant that there is no other evidence or evidence of other witness to establish
Oren’s guilt, thus further necessitating for the FIR to be tendered in Meon’s case.

In conclusion, non-tendering of the FIR in the prosecution of Oren for cheating done to Meon is fatal
as since Meon is the only witness and there is no other evidence that can establish Oren’s guilt, FIR in such a
situation is deemed essential.

The second issue to be addressed is whether the non-tendering of the Search List is fatal to
prosecution of Oren for cheating done to Minah.

Section 64 of the Criminal Procedure Code states that any items seized are to be listed and noted
where those items were found. In Liaw Wee Sieng v PP, the court held that it is not a requirement for the
prosecution to produce the Search List to the court or to the defence.21However, although tendering of a
Search list is not in requirement, the court in PP v Lee Soon Sian, held that the tendering of the Search List
would reflect the integrity of the officer conducting the search as it would be reasonable for the court to
assume that a contemporaneously prepared search list would be complete and exhaustive on the items relevant
to the case.22 Thus, according to San Soo Ha v PP, the non-tendering of the Search List would cast doubt
upon the bona fide of the parties conducting the search and would afford grounds of scrutiny by the
court.23This meant that the tendering of the Search List is not necessary but the non-tendering of the Search
List would give avenues for the court to question the integrity or genuinity of the seized items which are
presented as evidence.

In PP v Gurchan Singh a/l Mall Singh, a Search List is necessary to be produced when there is an
acute conflict of evidence between what is stated on the list and evidence produced by the officer who
conducted the search in court.24This meant that when there is a variance between what is presented in the

21
(2012) 2 AMR 455
22
[1993] 2 CLJ 214
23
[1968] 1 MLJ 34
24
[1992] 2 CLJ 80
14
court and what is stated in the Search List, the search list must be tendered as to enable the court to ascertain
the credibility of the prosecution witness. A Search List is also necessary to be produced as in PP v Lee Chee
Meng, when an officer refers to the search list in the course of trial.25 When there is reference made to the
items in the Search List but the officer failed to produce the search list, the non-tendering of the search list
would be a serious flaw to the prosecution evidence as it showed no integrity in the chain of evidence and
could lead to an adverse inference under Section 114(g) of the Evidence Act.

Referring to the issue above and applying Section 64 of the Criminal Procedure Code, the laptop,
phones and luxury handbags seized are listed and noted where it is found by Inspector Oscar. Although
applying Liaw Wee Sieng v PP, the tendering of the search list is not a requirement but applying Lee Soon
Sian, the tendering of the Search List would reflect the integrity of Inspector Oscar while conducting the
search and the seized items tendered as evidence, and applying San Soo Ha v PP, since the Search List is
tendered, the tendering of it had dispel any doubt on the bona fide of the search made by Inspector Oscar and
would not afford grounds of scrutiny from the court on any of the seized items presented as evidence.

However, since the prosecution relied on the evidence of the bank statement to show the transfer made
to Oren and the laptop seized in Oren’s house only shows that the laptop was used to chat with Minah, the
prosecution here had not relied on any seized items as evidence thus would not have referred to the Search
List thus applying PP v Lee Chee Meng, since there is no reference made to the Search List, the
non-tendering of the search list would not have been fatal and would also not attract adverse inference under
Section 114(g) of the Evidence Act. Applying PP v Gurchan Singh a/l Mall Singh, Oren’s defense that
Remmy was actually Apel could cause an acute conflict of evidence between what is stated on the list and
evidence produced by the officer in court if the prosecution had relied on the laptop seized as its owner is
unknown. Since the prosecution only relied on the evidence of the bank statement and not on the laptop to
ascertain that Minah had transferred money to Oren, there is no reference made to the Search List thus Oren’s
defense that Remmy was actually Apel would not cause an acute conflict of evidence between what is stated
on the list and evidence produced by the officer in court thus further negates the need to tender a Search List.

In conclusion, the non-tendering of the Search List is not fatal to the prosecution of Oren in Minah’s
case as there is no reference made to the seized items on the Search List and subsequently there is no acute
conflict of evidence between what is stated on the list and evidence produced by Inspector Oscar in court.

25
[1992] 1 MLJ 322
15