MASTER OF ENFORCEMENT LAW

PRE-TRIAL PROCEDURE (LAW782)

GROUP ASSIGNMENT
(ASSIGNMENT 2)

PREPARED BY :
1. MOHD SHARMIZAM B. ISHAK STUDENT ID NO: 2022124957
2. NOR SAHLIZA BT. RAHMAN STUDENT ID NO: 2022360635
3. MASNILA DAHNIATI STUDENT ID NO : 2022636138

PREPARED FOR : DR. CHE AUDAH BT. HASSAN

SUBMISSION DATE : 8th JULY 2023

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 ANSWER TO QUESTION (a) i:
Apel wishes to know if he can succeed in taking an action against Inspector Man for
unlawful arrest and the injury caused to Apel (20 marks)

i. Issue
a. Whether Apel arrestment by Inspector Man is lawful and in accordance with Criminal
Procedure Code and if it is not, can Apel take action towards Inspector Man?
b. Whether Apel can take action towards Inspector Man due to the injury caused by
Inspector Man when he arrested Apel?

ii. Facts
Apel was arrested by Inspector Man as to assist Inspector Man for an investigation of
snatch thefts at Dataran Merdeka, Kuala Lumpur at 5.00 pm (31 st January 2022).
Inspector Man decided to arrest Apel after saw Apel riding a blue Modenas Kriss 110
motorcycle around Dataran Merdeka. Earlier, a snatched theft victim, Stellar reported
that her handbag has been snatched at 3.00 pm on the same day by an unknown person
riding a blue Modenas Kriss 110. Apel denied of having any knowledge pf snatch thefts
in the area. Inspector Man, hold Apel’s hand in order to direct him to enter the police car
nearby when suddenly Apel tried to escape. Inspector Man however managed to stop
him, and a struggle ensued, resulting in Apel’s broken arm. Subsequently, Apel informed
police that his friend, Duku committed theft from a woman at Dataran Merdeka at about
3.00 pm.

Police discovered that Apel had been arrested for committing theft on 2 nd November
2021 of Rolex watch from Dato’ King’s office. However, he was not charged due to lack
of evidence as the Rolex watch was not found in his possession. Subsequently, Apel was
charged for an offence under Section 411 of the Penal Code for retaining a stolen Rolex
watch. Apel has also cheated Minah for the amount of RM5000 on 1 st July 2021 in Shah
Alam, Selangor. In Minah’s case, Apel had presented himself as an experienced
contractor whom Minah paid RM5,000 to upgrade her kitchen cabinet. It was discovered
that Apel was never involved in the construction business.

iii. Law
In this situation given, the offence which is snatch theft is under Section 378 of the
Penal Code and punishable under Section 379 of the same code is a seizable and
not bailable offence. This case was reported by the victim and recorded per Section 107
of the Criminal Procedure Code (CPC). Investigation in this seizable case can be
carried out by the police officer not below the rank of Sergeant or any officer in charge of
a police station without the order of the public prosecutor as stated in Section 109 of the
CPC. The investigations proceeded to the arrest.

The word arrest is not defined in the Criminal Procedure Code (CPC) (Act 593) or at
common law. Arrest is defined in Black’s Law Dictionary as to deprive a person of his
liberty by lawful authority. Taking, under real or assumed authority, custody of another
for the purpose of holding or detaining him to answer a criminal charge. What is an
‘arrest’ has been the subject of extensive judicial interpretation. These decisions have
led to arrest being categorised as either ‘constructive arrest’ or ‘actual arrest’. In
Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360 at 367, it was said; I have not found
the distinction between ‘constructive arrest’ and ‘legal arrest’ helpful. (Each of the
decisions was made on the facts of each particular case and conclusions of facts are not
to be treated as law. It does not matter if the arrest is actual or constructive. So long as
there is an arrest, a statutory caution is necessary).

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Arrest makes by a police officer or other person making the same shall actually touch or
confine the body of the person to be arrested unless there is a submission to the custody
by word or action as stated under Section 15 of the Criminal Procedure Code (CPC).
The law on how an arrest is made is like in the case of Public Prosecutor v Lim Kin Ann
[1988] 1 MLJ 401. An arrest which is a process to compel the attendance in court of a
person to answer proceedings against him may be made with a warrant of arrest or
without a warrant of arrest. A seizable offence or where the law, though the offence is
not seizable, confers a power to arrest on its occurrence can be made without a warrant
of arrest. When a police officer making an arrest, in his mind; there is a complaint,
information or suspicion that a seizable offence has been committed (Mahmood v
Government of Malaysia & Anor [1974] 1 MLJ 103; Chan Wey Siong v Ketua Inspektor
Sjafrin Oktridal Sjofjan & Satu Lagi [2004] 6 MLJ 191, [2004] 3 CLJ 180). A seizable
offence is defined in Section 2(1) of the CPC to be an offence for which a police officer
may ordinarily arrest without a warrant according to the third column of the First
Schedule and the power to arrest for such an offence is conferred in circumstances
where (Section 23(1)(a) of the CPC):
a. A person is concerned in the commission of a seizable offence:
- In Polis Di Raja Malaysia (PDRM) v Keong Mei Cheng Audrey [1994] 3 MLJ
296, sub nom PDRM v Audrey Keong Mei Cheng [1994] 3 CLJ 362 held that
there must be some lawful basis for an arrest and detention including a clear
nexus between the suspect and offence.
- An arrest without warrants for an offence that is not seizable also renders the
arrest unlawful. In Public Prosecutor v Ong Kee Seong [1960] 1 MLJ 156 at
157, it was held that the police officers in making the arrest could not be said
to be acting exercise of their legitimate powers in that:
The offence in so far as it relates to the first charge is a non seizable
offence and the purported arrest of the respondent cannot be justified
under Section 24 of the CPC for there is no suggestion that the
respondent refused to give his name and address on demand by the
police officers, nor it can be justified under Section 23(1)(e) of the
CPC.
b. Against whom a reasonable complaint has been made:
- In Chong Fook Kam & Anor v Shaaban bin Hussein & Ors [1967] 2 MLJ 54 at
58 it was considered that a reasonable complaint may be equated with
reasonable or probable cause as found in English authorities. What a
reasonable complaint or suspicion or to use the English alternative phrase,
reasonable or probable cause is a state of affairs that would lead a man of
ordinary care and prudence to believe or entertain an honest and strong
suspicion that the suspect is guilty of an offence.
c. Credible information has been received:
- In Hashim bin Saud v Yahaya bin Hasim & Anor [1977] 1 MLJ 259, ‘credible
information’ was illustrated. In this case, there was a police report of theft.
There was credible information against the plaintiff in that the source had
previously proved to be reliable in the sense that information by this source
had led to the arrests, prosecutions, and convictions.
d. A reasonable suspicion exists of his having been so concerned:
- The petitioner in In the Matter of the Petition of Right of Tan Eng Hoe
(Petitioner) v the Attorney-General of the Straits Settlements [1933] 2 MLJ
151, sub nom Tan Eng Hoe v AG of the Straits Settlements [1933] SSR 151
was arrested as his habits and movements had match the description given of
another person against whom a report of cheating had been made. It was
held in this case, there were facts that would create a reasonable suspicion in
the mind of a reasonable man and the police clearly acted bona fide without
prejudice.

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 - In the case of Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 at
221, PC – the two respondents were arrested and detained on suspicion of
having driven a lorry laden with timber from which a piece of wood had fallen
and hit the windscreen of a passing car killing a man in the car. Lord Devlin,
delivering judgement, distinguished two possible stages in the case:
o The first detention was unlawful because there was no reasonable
suspicion in the case.
o The second detention was lawful because reasonable suspicion was
present when the false alibi was furnished.

Section 15 (2) & (3) of the CPC stated that during arrest; if such person forcibly resists
the endeavour to arrest him or attempt to evade the arrest such officer or other person
may use all means necessary to effect the arrest. In Mahmood v Government of
Malaysia & Anor [1974] 1 MLJ 103, the plaintiff alleged that he was unlawfully and
negligently shot and wounded by the police in effecting his arrest on suspicion harboured
by the police that he was concerned in a seizable offence. The court held that the police
officer had not exceeded his power of arrest as he was entitled under Section 15(2) of
the CPC to use all means necessary since there was reasonable suspicion of the plaintiff
having been concerned in a seizable offence.

Arrest without a warrant of arrest may be made by the 5 following categories which are
the police officer, the penghulu, the private person, the magistrate, and the Justice of
Peace. Section 23(1)(a) of the CPC stated any police officer or penghulu may without
an order from a Magistrate and without a warrant arrest any person who has been
concerned in any offence committed anywhere in Malaysia which is seizable offence
under any law in force in that part of Malaysia in which it was committed or against whom
a reasonable suspicion exists of his having been so concerned. The words ‘police officer’
must be construed strictly to mean he is a member of the Police Force and nothing else
(R v Wong Ah Kin & Ors [1935] 1 MLJ 169). Pursuit of offenders is stated under Section
26 of the CPC which allow the police officer to pursue the person in any part of Malaysia
during the time of arresting the person. Meanwhile, if a person in lawful custody escapes,
he can be pursue and arrest in any place either within or without the jurisdiction where
he was so in custody and deal with that person as he might have done on the original
taking as provided in Section 32 of the CPC.

Regarding the rights of person arrested, in the Article 5(3) of the Federal Constitution
states that when a person is arrested; he shall be informed as soon as may be of the
grounds of his arrest and shall be allowed to consult and be defended by a legal
practitioner of his choice. This is amplified in Section 28A of the Criminal Procedure
Code (CPC) which states that a person arrested without a warrant, shall be informed as
soon as may be of the grounds of his arrest by the police officer making the arrest. This
provision can be seen in the case of Christie & Anor v Leachinsky (1947) 1 All ER 567, it
is a condition of lawful arrest that the party arrested should know on what charge or on
suspicion of what crime he is arrested. A police officer arresting without warrant should
state at the time on what charge the arrest is being made or at least inform of the facts
which are said to constitute a crime on his part. The phrase of “as soon as may be” is not
defined either in Article 5(3) of the Federal Constitution or in Section 28(A) of the
CPC which no exact time frame stated. In Public Prosecutor v Mah Chuen Lim & Ors
(1975) 1 MLJ 95 at 96, a reference was made to the interpretation and General Clauses
Ordinance 1948 explained that where no time is prescribed within which anything shall
be done, anything shall be done with all convenience speed. To define this “convenience
speed”; it would depend on the circumstances of each case.

iv. Application

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 In this situation given, the offence which is snatch theft is under Section 378 of the
Penal Code and punishable under Section 379 of the same code is a seizable and
not bailable offence. Inspector Man has been assigned to investigate for the past one
week of four cases of theft at Dataran Merdeka (Section 109 of the Criminal
Procedure Code). Add on to that Stellar a snatch theft victim has reported her case by
lodging a police report at the Dang Wangi Police Station which the theft happened on
31st January 2022 at 3.00 pm (Section 107 of the CPC). Inspector Man arresting Apel
without a warrant which he felt it is necessary. His action is in accordance with Section
23(1)(a) of the Criminal Procedure Code (CPC) [Act 593]. Below are the facts that
make this arrestment lawful under the section mentioned:
a. Inspector Man is a police officer
b. The offence (theft) is a seizable offence
c. Inspector Man received a reasonable complaint in which a police report has been
made by Stellar saying that a motorcyclist had snatched her handbag when she
was sight seeing at Dataran Merdeka Kuala Lumpur. Even though Stellar was
unable to identify the thief but she noticed that the motorcycle as a blue Modenas
Kriss 110 which is similar to her brother’s motorcycle
d. Credible information has been received as Stellar can describe wholly regarding
the details of the theft as mentioned in the sentence earlier including the type of
motorcycle that the thief riding
e. A reasonable suspicion exist – Inspector Man saw Apel riding blue Modenas
Kriss 110 motorcycle around Dataran Merdeka at about 5.00 pm on 31 st January
2022 on the same day Stellar’s handbag has been snatched. The suspicion arise
as the type of motorcycle ride by Apel is the same described and matched the
description given by Stellar regarding the type of motorcycle ride by the theft.
This creates a reasonable suspicion in the mind of a reasonable man and the
police (Inspector Man) clearly acted bona fide without prejudice.
The act of Apel on trying to escape from being capture by Inspector Man further increase
the suspicion of Apel involving in the case of theft that Inspector Man is investigating.

In making an arrest, Inspector Man may use all means necessary to effect the arrest
when Apel try to escape from him as provided in Section 15(2) of the CPC even though
after the struggle, unfortunately Apel got broken arm. Inspector Man is not in the wrong
when he pursues Apel, trying to stop him from running away leading to the injury of
Apel’s broken arm. The offenders also can be pursuit by the police officer as provided in
Section 26 of the CPC if the offender try to run away in the case of arrest without a
warrant. Inspector Man also did not forget to inform the reason of the arrest to Apel
which Inspector Man informed that Apel is being arrested to assist his investigations.
This action fulfilled the Section 28A of the CPC on rights of person arrested.

In the police station, Inspector Man noticed that Apel was wearing a Rolex watch
encrypted with the word “King”. Police discovered that Apel had been arrested for
committing theft on 2nd November 2021 of Rolex watch from Dato’ King’s office but no
charge was made as lacking evidence. With this new discovery of evidence, Apel was
charged an offence under Section 411 of the Penal Code (PC) for retaining a stolen
Rolex watch. This Section 411 of the Penal Code is a seizable and not bailable offence.
Even though Apel is not charged with theft but with further questioning and investigations
done by the police officer, Apel is charged under Section 411 of the PC which further
support the action of Inspector Man as a correct action and still in accordance to law
which this offence of Section 411 of the PC is a seizable offence that the offender can be
arrested without a warrant by police officer under Section 23(1)(a) of the Criminal
Procedure Code.

v. Conclusion

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 In the nut of shell, the arrestment of Apel by Inspector Man is lawful which it is in
accordance with Section 23(1)(a) of the Criminal Procedure Code (Act 593).
Inspector Man also allowed to pursuit the offender as provided in Section 26 of the
Criminal Procedure Code and he obliged to Section 28A of the Criminal Procedure
Code where he informs Apel on the reason of his arrestment. Inspector Man also not in
the wrong when arresting Apel even though Apel had broken arm as this arrestment and
unintentional injury is not against the law (Section 15 (1) dan (2) of the Criminal
Procedure Code). Therefore, Apel may not be successful in taking an action against
Inspector Man for unlawful arrest and the injury caused to Apel.

ANSWER TO QUESTION (a) ii:

Apel wishes to know if he can succeed in taking an action against Inspector Man for
unlawful search (20 marks)

i. Issue
Whether the search by Inspector Man towards Apel is lawful and in accordance with
Criminal Procedure Code and if it is unlawful, can Apel take action towards Inspector
Man?

ii. Facts
On 31st January 2022, Apel was arrested by Inspector Man without warrant as to assist
Inspector Man for offence of theft. Apel was taken to the Dang Wangi Police Station and
Inspector Man saw Apel was wearing a Rolex watch encrypted with the word “King”.
When questioned, Apel stated he found the Rolex watch when cleaning a toilet at a
building and feeling happy he took it for himself. Shortly after, around 6.30 pm on the
same day of the arrestment, Inspector Man ordered Apel to proceed to a private room
and instructed Apel to take off all his clothes. Inspector Man seized the Rolex watch.
Subsequently, Apel was charged for an offence under Section 411 of the Penal Code for
retaining a stolen Rolex watch.

iii. Law
The common law does not permit police officers or anyone else to ransack anyone’s
house, or to search for papers or articles therein, or to search his person simply to see if
he may commit some crime or another (Ghani & Ors v Jones [1969] 3 All ER 720).
Search may only be conducted in accordance with the circumstances provided by law
and with the purpose of obtaining incriminating evidence (Queen v Syed Hassan Ali
Chowdry 8 WR 78). Under the Criminal Procedure Code (CPC), search of persons
may be conducted without a warrant in the search of persons arrested for the
instruments, fruits or evidence of the crime as provided in Section 20 of the CPC. The
procedures on search of persons are provided in Section 20A of the CPC. Searching of
person shall comply with the body search as specified in the Fourth Schedule of this
Code (Section 20A (1) of the CPC). Section 20A (2) of the CPC provides that the
provisions of the Fourth Schedule shall apply to any search of a person conducted by
any officer of any enforcement agency conferred with the power of arrest or search of a
person under any law. A body search may be conducted on a person arrested only if it
fulfils with any of the following objectives below (CPC Fourth Schedule Para 1(1)):
a. To obtain incriminating evidence of the commission of the offence for which he
has been arrested.
b. 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
c. For the discovery of the evidence related to the reason of the arrest or to
preserve the evidence or to prevent disposal of such evidence by the person
arrested
For the purposes of the Fourth Schedule of the CPC, ‘person arrested’ means a person
who is arrested or a person who is in lawful custody of his arrest (CPC Fourth Schedule

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Para 1 (2)). As stated in Fourth Schedule of the CPC there are 4 types of body search
and there are general conducts that need to be follow during search of persons. The 4
types of body search are pat down, strip, intimate, and intrusive search. An officer
conducting a body search shall do it professionally and have the highest regard for the
dignity of the person arrested. The officer shall comply strictly with the following
procedures:
a. The officer shall introduce himself before the search, shall be courteous,
professional, not using unnecessary or demeaning language or remarks against
the person arrested and shall cause minimal embarrassment to the person.
b. The search shall not be more extensive than necessary to ascertain the
existence of harmful or unlawful articles believed to be concealed on the person
arrested.
c. Same sex officer doing the search with strict regard to decency.
d. Where the gender of the person arrested is doubtful, his gender shall be
determined by interview, looking through his identification card or birth certificate
and only then decide on the appropriate officer to proceed with the search.
e. A second officer is needed for strip, intimate, and intrusive search.
f. No officer shall disclose to the public on the person arrested flaws.
g. In the course of search, the officer shall respect:
i. The religious and cultural sensitivities
ii. The physical, psychological, medical, and metal characteristics
Of a person arrested
h. When a person arrested is pregnant, elderly or a person with disabilities, the
search shall be conducted in a proper manner taking into consideration the state
of the person’s medical and physical condition.

For this case, strip search (Para 7 (Part IV), Fourth Schedule of the CPC) has been
conducted towards Apel. A strip search means a search involving the removal of some
part of outer clothing or removal of all the person’s arrested clothing. The strip search
may only be conducted if an arrest has been made or when there is reasonable
suspicion that the person is concealing an object, evidence, contraband or weapon on
him. As stated in (Para 8 (Part IV), Fourth Schedule of the CPC), authorization to
conduct strip search are as below:
1) Need approval of a police officer not below the rank of Inspector.
2) The approval under subparagraph (1), if given orally shall be reduced in writing
by the officer conducting the search, in the case of a police officer, into the station
diary.

Procedures on strip search is provided under Para 9 (Part IV), Fourth Schedule of the
CPC.
a) Must do in private room out of others view, no recording or communicating device
and only the officer conducting a search, the second officer and the person
arrested shall be in present in the room during the entire search.
b) Explain to the arrested person that he need to remove his clothes and declares
the item he had on him.
c) Person arrested no need to removes his clothes all at the same time.
d) Search will be divided into part by parts of the body.
e) All the removed clothes and personal items shall be thoroughly inspected.
f) To check the person’s arrested hair which officer may need to use his fingers to
squeeze the person’s hair without pulling it.
g) Searching the ears in proper way.
h) Searching the nasal area in a proper way.
i) Searching the mouth in a proper way.
j) Person arrested is allowed to wear his lower garments for an inspection of the
person’s torso from the navel upwards.

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 k) Person arrested is allowed to wear his upper garments for an inspection of the
person’s lower torso below the navel and the legs.
l) The officer has minimal physical contact with the person arrested during the
search involving his intimate parts of the body.
m) After the search is completed, the person arrested shall be allowed to put back
his clothes.
n) A list of all things seized in the course of the search shall be prepared by the
officer conducting the search and signed by the person arrested and he shall be
given a copy thereof.

iv. Application
At Dang Wangi Police Station, Inspector Man saw Apel wearing a Rolex watch encrypted
with the word “King”. Apel stated that he found the Rolex watch when cleaning a toilet at
a building ad he took it for himself. On this discovery of Rolex watch, which Inspector
Man suspect that it might be a stolen property, the same reason Apel been arrested,
search was conducted towards Apel by Inspector Man which match the objective of
search as provided in Part I, Fourth Schedule in Para 1(1) of the CPC, assuming that
Apel is arrested in lawful custody after his arrest as to fulfil the definition of ‘person
arrested’. Search of a person done towards Inspector Man is fall under strip search. The
reason is not a ‘pat down search’ is because, Inspector Man requesting Apel to take out
his clothes, which in ‘pat down search’, only outer clothing will be search. This search is
also not an ‘intimate or intrusive search’ is because, Apel only been asked to take out his
clothes and not more than that such as the need to squat down, cough, examination by
medical officer, and many more which is the element in ‘intimate and intrusive search’.

Further explanation on the conduct of strip search by Inspector Man towards Apel, it is
not done in a professional manner. Assuming that Inspector Man already informed Apel
on how Apel need to take off his clothes accordingly, there is absent of a second officer
in the room during the search (Fourth Schedule in Para 9(a) of the CPC). Furthermore,
it was not stated (in the case illustration given), a list of all things seized was given to
Apel by Inspector Man. A list of things seized shall be prepared by Inspector Man and
signed by Apel and Apel shall be given a copy of it (Fourth Schedule in Para 9(n) of
the CPC). Add on to that, this strip search is also unlawful because the record on
approval to conduct strip search is not written in the diary (Fourth Schedule in Para
8(2) of the CPC).

v. Conclusion
In conclusion, the conduct search which is search of a person by Inspector man towards
Apel is unlawful and contradicted with Procedure on Body Search, Fourth Schedule
of the Criminal Procedure Code specifically on the Authorization to Conduct Strip
Search (Para 8 (Part IV), Fourth Schedule of the CPC) and Procedure on Strip
Search (Para 9 (Part IV), Fourth Schedule of the CPC). Therefore, Apel can take
action towards Inspector Man in view of the illegal search towards him.

ANSWER TO QUESTION (b):

Examine whether Astro was correct in granting the remand order. (20 marks)

i. Issue

ii. Facts

iii. Law

iv. Application

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 Fulfil
a. Section 117(1) – “grounds for believing….”  there is solid ground to
believe Duku is the thieve which Apel claimed Duku the thieve
b. Section 117(5) – represtation made by Duku’s counsel
Not fulfil Section 117(2)(a): given 6 days yang mana boleh 4 hari sahaja
Not fulfil Section 117(3): not stated in the diary that accused has been remanded
before

v. Conclusion
Astro was NOT CORRECT in granting the remand order

ANSWER TO QUESTION (c):

Evaluate whether Selcom acted correctly in issuing a warrant for the arrest of
Inspector Man. (20 marks)

i. Issue : Whether Selcom acted correctly in issuing a warrant for the arrest of
Inspector Man?

ii. Facts
On 7 February 2022, Inspector Man released Duku after slapping him once on the cheek
during the period of investigations. Based on that incident Duku then lodged a police report
against Inspector Man for an offence under section 352 of the Penal Code. On 9 February
2022, Duku applied to Selcom, a Magistrate to issue a warrant of arrest against Inspector
Man. He enclosed with his application; his police report and an affidavit in which he stated
he was slapped once on the cheek by Inspector Man as well as a medical report confirming
that he had sustained bruises on his cheek.
On 11 February 2022, Selcom served due notice on the Public Prosecutor that he would
hold an examination of Duku on 18 February 2022. On that day, Selcom dispensed with
Duku’s attendance. Instead, he ordered a warrant to be issued for the arrest of Inspector
Man after studying all the documents attched to Duku’s application.

iii. Law
Section 128(1) of the CPC provides that the Magistrate may take cognizance of an offence
in any of the following four situations:
a) upon receiving a complaint as defined under the CPC,
b) upon his own knowledge or suspicion that such offence has been committed,
c) whenever it appears to the Public Prosecutor that an offence has been committed
and he, by warrant under his hand requires a Magistrate to inquire into the
offence and such Magistrate receives the warrant, and
d) on any person being brought before him in custody without process accused of
having committed an offence which such Magistrate has jurisdiction to try.
The term “complaint” above, as defined under section 2(1) of CPC, means that allegation
made orally or in writing to a Magistrate with a view to his taking action under the CPC that
some person whether known or unknown has committed or is guilty of an offence. Before an
application for summons can be heard, there must first be a complaint as in the case of
Public Prosecutor v. Mah Chuen Lim & Ors. The complaint must be a belief funded on the
information of a credible witness, of facts imputing guilt to another is sufficient reasonable

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 and probable cause for laying a complaint against and prosecuting that other on a criminal
charge, but the belief must be such as would be entertained by a reasonable and discreet
mind as in the case of Nelligan v. Wemys.
Once the Magistrate has taken cognisance of the case, the following examination
procedures in Section 133 of Pthe CPC are next, it provides that,
(1) When a Magistrate takes cognisance of an offence on a complaint
(a) The Magistrate shall set a date to eximine the complainant in accordence with this
section
(b) The Magsitrate shall set serve on the Public Prosecuter a notice in writing at least
seven clear days before tyhe date of the examination of the complaint and such
notice shall specify the date of the examination of the complainant and the particulars
of the complainant received by the Magistrate under section 128
(c) The Magistrate shall not proceed to eximine the complainant unless the notice
required by paragraph (b) has been served on the Public Prosecutor in accordence
with that paragraph
(d) The Magistrate shall examine the complainant upon oath and the substance of the
examination of the complainant shall be reduced to writing and shall be signed by the
complainant and the Magistrate
(e) The Public Prosecutor may appear and assist the Magistrate in the examination of
the complainant
In the case of Re Rasiah Munusamy [1983] 2 MLJ 294. The whole entire case here talks
about what happens once the magistrate has taken cognizance that there is a complaint,
whereby in this case it highlighted that the magistrate can use their power under section
133 to conduct investigation. The judge in this particular case stated that the procedure in
section 133 of the CPC, they are mandatory because so the magistrate can see there is in
fact sufficient ground for the complaint and merely to call the complainant to attest the
complaint upon oath is not sufficient and it is also not sufficient to follow this up with
unrecorded or unsworn interview.

iv. Application
As defined in Section 2(1) of the CPC, Duku, as the complainant, has orally or in writing
made allegations to Selcom, with the aim of the Magistrate taking action under the CPC that
Inspector Man has committed or is guilty of an offense, namely the offense under Section
352 of the Penal Code, which pertains to assaults or the use of criminal force on any person
other than on grave and sudden provocation.
Based on the case of Reza Kianmehr v PP [2013] 7 CLJ 265, as per the provisions outlined
in section 128(1)(a) of the Criminal Procedure Code, Selcom, authorized to acknowledge
an offense upon receiving a complaint as defined by the CPC which in this case, Duku
applied to Selcom along with his police report and an affidavit in which he stated he was
slapped once on the cheek by Inspector Man as well as a medical report confirming that he
had sustained bruises on his cheek. Selcom's action of processing the complaint from Duku
indicates that the Magistrate has observed the mentioned offense and intends to initiate
proceedings against the offender in relation to the offense.
In initiating criminal proceedings, the Magistrate must abide to the requirements stipulated in
Section 133(1) of the CPC whereby it is mandatory and any breach of such provision would
constitute an illegality as was held in the case of Re Rasiah Munusamy and Bong Kim
Son v. Public Prosecutor. Subsequently, the procedures set under Section 133(1) of the
CPC are applied to the statement of facts as follows:

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 Firstly, the Magistrate must set a date for the examination of the complaint. Selcom did
indeed set the examination for 18 March 2020. Secondly, the magistrate shall serve on the
Public Prosecutor a notice in writing at least seven clear days before the date of the
examination specifying the date of the examination and particulars of the complaint received
under the provisions of the Section 128 of the CPC. In this situation, Selcom issued the
examination notice to the Public Prosecutor on 11 February 2022, which is at least seven (7)
days before the examination date. Thirdly, on the specified date, the Magistrate is required to
examine the complaint under oath and record the essential details of the complaint in writing.
The written examination should then be signed by both the complainant and the Magistrate.
However, in this case, Selcom based his examination entirely on the contents of Duku’s
report. Although Duku might have submitted a written report, Selcom failed to personally
examine Duku on oath and neglected to sign the written report with his own hand.
Furthermore, Selcom dispensed Duku's presence and ordered a warrant to be issued for the
arrest of Inspector Man by just studying Duku’s documents. Having established a prima facie
case merely on his study of Duku’s report is a violation of the procedure set down under
Section 133(1)(d) of the CPC.
v. Conclusion
In conclusion, Selcom acted incorrectly in issuing a warrant for the arrest of Inspector Man
as Selcom failed to personally examine the complainant on oath and neglected to sign the
written report which it’s not fulfilling Section 133(1)(d) of the CPC.

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