DISCLOSURE IN A

CRIMINAL PROCEEDING
 PRE-TRIAL DISCLOSURE PURSUANT TO
SECTION 51A CPC

51A. Delivery of certain documents

(1) The prosecution shall before the commencement of the trial deliver to the
accused the following documents:

(a) a copy of the information made under section 107 relating to the
commission of the offence to which the accused is charged, if any;

(b) a copy of any document which would be tendered as part of the evidence for
the prosecution; and

(c) a written statement of facts favourable to the defence of the accused signed
under the hand of the Public Prosecutor or any person conducting the
prosecution.
 PRE-TRIAL DISCLOSURE PURSUANT TO
SECTION 51A CPC

(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable
to the accused if its supply would be contrary to public interest.

(3) A document shall not be inadmissible in evidence merely because of non-

compliance with subsection (1).

(4) The Court may exclude any document delivered after the commencement of the
trial if it is shown that such delivery was so done deliberately and in bad faith.

(5) Where a document is delivered to the accused after the commencement of the trial,
the Court shall allow the accused—

(a) a reasonable time to examine the document; and

(b) to recall or re-summon and examine any witness in relation to the document.
S51A CPC

• The new insertion of S51A gives broader prospect for the accused to conduct
his defence.
• It relates to pre-trial disclosure of evidence by prosecution.
• In M’sia, S51A permits some form of pre-trial disclosure of evidence by the PP
and no obligation on the part of the accused.
• In England, common law rules of procedure imposes on the prosecution
extensive obligation for pre-trial disclosure of evidence.
• Art 6(3)(b) The European Convention of Human Rights states:

“everyone charged with a criminal offence has the right to be informed

promptly, in a language which he understands and in detail of the
accusation against him.
CONTD…

• The PP is obliged to supply the following documents:

(a) FIR (S.107 cpc);

(b) copy of document which will be tendered as part of the
evidence for the prosecution; and
(c) If it is not contrary to public interest, a written statement
of facts favourable to the defence of the accused signed
under the hand of the Public Prosecutor.
CONTD…

• S51A promotes pre-trial discovery of evidence in Criminal

cases.
• Differences between S51 & S51A:
• S51 permits the defence to apply and it is entirely at the discretion of
the court to allow such application; whereas S51A requires PP to
supply, and that section does not give any rights for the accused to
apply.
CASES

• BENJAMIN WILLIAM HAWKES v. PP [2020] 8 CLJ 267

(There is no duty on the prosecution to deliver an unclear CCTV footage

to the defence that would be of no assistance to the prosecution's case,
and which had not been intended to be part of the prosecution's exhibits
or evidence before the commencement of trial under s. 51A(1)(b) of the
Criminal Procedure Code . The failure of the prosecution to disclose the
CCTV footage will not cause irreparable prejudice to the accused or
deny the accused his right to a fair trial when there is no exculpatory
and material evidences favourable to the defence that is withheld or
suppressed by the prosecution in the CCTV footage.)
 CONTD…

• On the other hand, S62 of the M’sian Anti Corruption Act 2009 provides:

“Once delivery of documents by the prosecution pursuant to section 51A of the

criminal Procedure code has taken place, the accused shall, before
commencement of the trial, deliver the following documents to the prosecution:
(a) a defence statement setting out in general terms the nature of the defence
and the matters on which the accused takes issue with the prosecution, with
reasons; and
(b) a copy of any document which would be tendered as part of the evidence for
the defence.”
CONTD…

• The law does not impose any form of sanction against the
prosecution in the event pre-trial disclosure is not made by the
prosecution.
• S51A does not give any form of right for the accused to demand from
the PP in contrast to S51.
• Alternatively, the accused may complain to the trial judge and the
judge may make a ruling on those issues.
• S51 and S51A has nothing to do with the jurisprudence relating to
admissibility and S51A is only limited to disclosure in the right
perspective.
CONTD…

• If the documents are not supplied in accordance with S51A,

the PP may still tender the document and the defence may be
given time to study them.
• Case See Kek Chuan v PP, the COA held that if documents are
not supplied to the defense in accordance with S51A, the PP
is not barred from tendering those documents and the defense
may be given time to study those documents.
• See Dato Anwar Ibrahim’s case
• PP v Mohd Fazil Awaluddin.
DATO’ SERI ANWAR IBRAHIM V PP
[2010] 2 MLJ 312

• The object of S51 is limited access. Its scope is restricted in

law. S51 and S51A are two separate and distinct provisions.
S51A is a provision which imposes an obligation upon the
prosecution to supply certain documents and materials.
• It has no connection to S51 which gives court a discretion
to allow discovery in specific situations.
• Hence, S51A should not be used to interpret S51.
 PRE-TRIAL CONFERENCE LINKED TO 51A CPC

172A. Pre-trial conference

(1) During the pre-trial conference, an advocate representing an accused may

discuss with the prosecution the following matters relating to the case:
(a) identifying the factual and legal issues;
(b) narrowing the issues of contention;
(c) clarifying each party's position;
(d) ensuring the compliance with section 51A;
(e) discussing the nature of the case for the prosecution and defence, including
any alibi defence that the accused may rely on;
(f) discussing any plea bargaining, and reaching any possible argument thereto;
and
(g) any other matters as may be agreed upon by the advocate representing the
accused and the prosecution that may lead to the expeditious disposal of the
case.
 PRODUCTION ORDER BY COURT PURSUANT TO
APPLICATION MADE UNDER SECTION 51 CPC

51. Summons to produce document or other things

(1) Whenever any Court or police officer making a police investigation considers that the
production of any property or document is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code by or before that Court or officer,
such Court may issue a summons or such officer a written order to the person in whose
possession or power such property or document is believed to be requiring him to attend and
produce it or to produce it at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce any property or document shall be
deemed to have complied with the requisition if he causes the property or document to be
produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed to affect the provisions of any law relating to evidence
for the time being in force or to apply to any postal article, telegram or other document in the
custody of the postal or telegraph authorities.
 INVESTIGATION OFFICER EXERCISING HIS
POWER PURSUANT TO SECTION 116 CPC – LINK
WITH S51 CPC

116. Search by police officer

(1) Whenever a police officer making a police investigation considers that the production of any document or
other thing is necessary to the conduct of an investigation into any offence which he is authorized to
investigate and there is reason to believe that the person to whom a summons or order under section 51 has
been or might be issued will not or would not produce the document or other thing as directed in the
summons or order or when the document or other thing is not known to be in the possession of any person,
the officer may search or cause search to be made for the same in any place.

(2) That officer shall, if practicable, conduct the search in person.

(3) If he is unable to conduct the search in person and there is no other person competent to make the search
present at the time, he may require any officer subordinate to him to make the search, and he shall deliver to
the subordinate officer an order in writing specifying the document or other thing for which search is to be
made and the place to be searched, and the subordinate officer may then search for the thing in that place.

(4) The provisions of this Code as to search warrants shall, so far as may be, apply to a search made under this
section.
 DISCLOSURE OF DEFENCE OF ALIBI

402A. Alibi

(1) The Court shall, at the time the accused is being charged, inform the accused as to his right to put
forward a defence of alibi.

(2) Where the accused seeks to put forward a defence of alibi, he shall put forward a notice of his
alibi during the case management process.

(3) Notwithstanding subsection (2), where the accused has not put forward a notice of his alibi
during the case management process, he may adduce evidence in support of an alibi at any time
during the trial subject to the following conditions:
a) the accused has given a written notice of the alibi to the Public Prosecutor; and
b) the Public Prosecutor is given a reasonable time to investigate the alibi before such
evidence can be adduced.

(4) The notice required under this section shall include particulars of the place where the accused
claims to have been at the time of the commission of the offence with which he is charged,
together with the names and addresses of any witnesses whom he intends to call for the purpose of
establishing his alibi.
 DISCLOSURE OF REPORT

399. Reports of certain persons

(1) Any document purporting to be a report under the hand of any of the persons mentioned in
subsection (2) upon any person, matter or thing examined or analysed by him or any document
purporting to be a report under the hand of the Registrar of Criminals upon any matter or thing
relating to finger impressions submitted to him for report may be given in evidence in any inquiry,
trial or other proceeding under this Code unless that person or Registrar shall be required to attend
as a witness—

(a) by the Court; or

(b) by the accused, in which case the accused shall give notice to the Public Prosecutor not
less than three clear days before the commencement of the trial:

Provided always that in any case in which the Public Prosecutor intends to give in evidence any
such report he shall deliver a copy of it to the accused not less than ten clear days before the
commencement of the trial.
 DISCLOSURE OF REPORT

(2) The following are persons to whom the provisions of this section apply:

(a) officers of the Institute for Medical Research;

(b) Government Medical Officers;
(c) chemists in the employment of any Government in Malaysia or of the
Government of Singapore;
(d) any person appointed by the Minister by notification in the Gazette, to be
a Document Examiner;
(e) Inspector of Weights and Measures appointed as such under any written
law relating to weights and measures in force in Malaysia; and
(f) any person or class of persons to whom the Minister by notification in the
Gazette declares that the provisions of this section shall apply.

3) The persons referred to in subsection (2) and the Registrar of Criminals are by
this Code bound to state the truth in reports made under their hands.
 S51A v S402A & 399

S51A: PROCEDURAL
S402A & 399: EVIDENTIAL