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Police Investigation

S103 police to prevent seizable offences

S104 Information of design to commit seizable offences

S105 Arrest to prevent seizable offences

S106 Prevention of injury to public property

S107 Information of offences

This is also deemed as first info report (FIR) where there is information be given to police
which is relating to the commission of an offence

CASE: PP v Pardeep Singh

HELD: The purpose of FIR is to inform police relating to the commission of offence and seek
for police investigation

CASE: PP v Chow Kam Meng

HELD: If there is no police report has been made before, then the arrest report will become
FIR

CASE: PP v Kamaruzaman Bin Sudin

HELD: The requirements inside the FIR are

1. there must be clear and tangile information

2. the information must be the info which can enable the conduct of investigation

CASE: Abdul Manaf Ahmad

HELD: The statement made under FIR is absolutely priviledge from the law of defamation
because it will cause the people fear from lodging a police report.

CASE: Emperor v Khwaja Rahman

HELD: The police investiagation usually start with the FIR but it’s not a mandatory term for
initiating an investigation. If police obtains the relevant info and has knowledge regarding a
case, then police may initiate the investigation
S107 (1) Every information relating to the commission of an offence, if given orally to an
officer in charge of a police station, shall be reduced to writing by him or under his direction
and be read over to the informant.

Q: How if the report is not reduced to writing

CASE: PP v Foong Chee Cheong

FACT: The report is not reduced to writing, magistrate held that this is invalid of law then
deem as no report has been made. Thus, police doesn’t have the power to take action regarding
to the report and the police investigation is invalid.

HELD: According to section 20 Police Act & section 23 CPC stated that police can arrest
without report as stated in section 107 of CPC or police act. Police Act also confer the police
the power to investigate without subject to only 1 report

The accuracy of FIR is relevant to credibility and trustfulness of witness or to the particular
report

CASE: PP v Lee Ah Seng

HELD: lagging the complainant to mention any of the relevant details under the first info report
would be his evidence exposed to a reasonable doubt

CASE: Chong Nyuk Min

FACT: details should be inserted inside FIR, police officer had make the report without
inserting many details and statements given by the accused. What had been put in FIR was only
the time and venue of the incident. At the time of the proceeding, he gave the statement with
affidavit where he add the other details inside the report.

HELD: Court won’t rely on the report but although he is not required to put all the details inside
FIR, but the failure to insert all the material details cause the doubt on the “bona fide” of the
police officer.

If the FIR is reduced to be written as stated in s107 and it’s not revealed and submitted to court
as exhibit for public prosecutor, then the court can raise adverse influence s114 (g) Evidence
Act.

If PP can prove prima facie case without FIR, then the failure of PP to submit FIR is not fatal
CASE: Foong Chee Cheong

HELD: The details inside FIR has been reduced to writing after the initiation of investigation,
it’s cannot be submitted as evidence but can be used to challenge the credibility of the person
who make the report. Contradictory assumptions cannot be incurred at a failure to tender as
exhibit for public prosecutor.

CASE: PP v Tan Cheng Koi

HELD: Failure to put the FIR to writing and tender as exhibit is not fatal to PP case provided
that PP can prove prima facie case.

CASE: Balachandran v PP

HELD: Court can use/apply adverse influence when PP fail to provide FIR if the accused raise
the doubt on the credibility of witness when providing the statement in court

CASE: Abdul Razak bin Johari v PP

HELD: Although in the normal circumstances, adverse influence under s114(g) EA 1950 was
not apply by PP. However, in this case, the witness who lodged the report was a vital witness,
the failure to tender FIR in the court cause the fatal to the case.

Conclusion : Measuring wood: whether the report was lodged by important witness, if YES, it
must be tender to court

S108A CPC Admission of certified copy of information as evidence

In any proceeding under this Code a copy of an entry relating to an information reduced to
writing under the provisions of section 107, and purporting to be certified to be a true copy by
the officer in charge of the Police District in which the police station where the information
given is situated, shall be admitted as evidence of the contents of the original and of the time,
place and manner in which the information was so recorded.

If the report was not FIR, it cannot be tender under s108A

ISSUE: Whether the accused can apply to obtain FIR

CASE: Anthony Gomez v Ketua Polis Daerah, Kuantan

HELD: the accused had the right to access (to see ad read the doc) as he has interest on it
CASE: Husdi v PP

HELD: Court provides right to accused to inspect the doc in pursuant to Art5(3) if FC that a
person must be informed the ground of arrest

CASE: Loo Fang Siang v PP

HELD: right to obtain FIR is similar in both civil and criminal

S108 CPC

If the offence is non-seizable case, police cannot investigate unless obtain order to investigate
from PP

If OTI is fulfilled, police can investigate the case under this chapter as there is seizable offence
case except the non-seizable offence (without warrant)

If OTI if not fulfilled, police must refer to the one who lodge a report to the magistrate under
s133-136 CPC

Q: How if the police investigate without OTI

CASE: PP v Seridaran

Although the investigation is not accordance with law, court has jurisdiction to try the case and
evidence still can be induced and received

CASE: Polis Diraja Malaysia v Keong Mei Cheng Audrey

If there is seizable offence, police can continue to action under s109

S109 Investigation in seizable cases

Investigation officer can apply all inside this chapter and the IO must be the surgeon or higher
level or OCS (ketua balai polis)

S110 Procedure where seizable offence suspected

(1) If from information received or otherwise a police officer not below the rank of Sergeant
or an officer in charge of a police station has reason to suspect the commission of a seizable
offence he shall, unless the offence is of a character which the Public Prosecutor has directed
need not be reported to him, immediately send a report of the same to the Public Prosecutor,
and shall proceed in person or shall depute one of his subordinate officers to proceed to the
spot to inquire into the facts and circumstances of the case and to take such measures as may
be necessary for the discovery and, where not inexpedient, arrest of the offender:

Provided as follows—

(a) when any information as to the commission of any such offence is given against any person
by name and the case is not of a serious nature the police officer receiving the same need not
proceed in person or depute a subordinate officer to make an inquiry on the spot;

(b) if it appears to the police officer receiving the information that there is no sufficient ground
for proceeding or further proceeding in the matter he shall not do so.

S111 Police officer’s power to require attendance of witnesses

(1) A police officer making an investigation under this Chapter may by order in writing
require the attendance before himself of any person who from the information given or
otherwise appears to be acquainted with the circumstances of the case, and that person shall
attend as so required.

CASE: Uthayakumar Ponusamy

HELD: the notice stated under s111 must be the person himself tendered personally to the
accused who is required to attend. In this case, the order is not valid because the order is
tendered to a corporate but the order is issued by IO.

If the order under s111 is not fulfilled, 1 warant will be issued to arrest the person. Right after
the IO acquainted the attendance of the witness to police station then the person mayb
investigated under s112

S112 Examination of witnesses by police

(1) A police officer making a police investigation under this Chapter may examine orally any
person supposed to be acquainted with the facts and circumstances of the case and shall reduce
into writing any statement made by the person so examined.

Q: is it necessary for the examination turn to be question and answer ?


CASE: PP v Subramaniam

HELD: It’s nt required to put the question in writing but it’s sufficient to make it in narrative
form

(2) Such person shall be bound to answer all questions relating to the case put to him by that
officer: Provided that such person may refuse to answer any question the answer to which
would have a tendency to expose him to a criminal charge or penalty or forfeiture.

(3) A person making a statement under this section shall be legally bound to state the truth,
whether or not such statement is made wholly or partly in answer to questions.

- this is an offence 193 PC and can be challenge the impitchment

CASE: Abdullah bin Ambik

The witness must tell the truth and the failure to do so maybe an offence under s193 CPC and
the statement made by witness mayb challenged the impitchment (honesty)

(4) A police officer examining a person under subsection (1) shall first inform that person of
the provisions of subsections (2) and (3).

(5) A statement made by any person under this section shall, whenever possible, be taken down
in writing and signed by the person making it or affixed with his thumbprint as the case may
be, after it has been read to him in the language in which he made it and after he has been given
an opportunity to make any corrections he may wish.

CASE: Abdul Ghani bin Jusoh v PP

FACT: Appeal against the admissibility of statements given under s112 CPC which was not
signed or thumb printed as required under s112(5) CPC

HELD: “Whenever possible” under s112(5) CPC, signature/ the thumb print is not mandatory.
But adduced statement in writing is mandatory

CASE: PP v Jayaraman & Ors

CASE: Veeran Kutty


CASE: Liik Ching Kwong

HELD: The statement is only required to be reduced to writing “whenever possible”

CASE: Kamde Raspani

FACT: There is an accused who is Jawa has given the statement by the language of Jawa. The
police officer translated by himself and wrote in BM and he read again to the accused in BM.

ISSUE: Whether s112(5) has been complied or not ?

HELD: No compliance with s112(5) as it must be read in the language where the accused used.

Q: whether statement made under s112 must be voluntary

CASE: Yusof bin Umar

FACT: The accused was charged under s193 PC because of giving the fake statement and the
accused argued that the statement is made involuntarily.

HELD: the statement under s112 is need not to be voluntary

CASE: Nurliana binti Sulaiman

FACT: the accused was charged for perjury under s193PC when the statement contradicted
with her oral evidence in court. She was convicted and later appealed on the ground that her
s112 statement was not given of her free will.

HELD: the statement under s112 have to read together with s114, the statement must be made
voluntary

Q: Whether the statement made under s112 can be tendered as evidence?

How if the statement made by the person subsequently the person bcome the accused, then
whether it can be tendered or not subjected to s113 (OLD ACT)

The relevancy applied provided that the person is not accused

CASE: PPv Abdullah Ambik


FACT: If the person who make the statement in court different from the statement made to
police under s112, then he can be challenged his impitchment (honesty) and in order to make
decision, court wont take into consideration whether the statement is made voluntary or not

REASON: voluntary is needed when the person is the accused

S116 Search by police officer

S116A Search and seizure without warrant

S116B Access to computerized data

S116C Interception of communication and admissibility of intercepted communications

S118 Police officer may require bond for appearance of complainant and witnesses

S119 Diary of proceedings in investigation

Q: Whether DI can be tendered in the proceeding of the accused

This is only to refresh the memory of IO in court proceeding and the accused has power to
access the ID which the IO refer at the time of proceeding

ID is not exhibit

S120 Report of police officer

(1) Every police investigation under this Chapter shall be completed without unnecessary
delay, and the officer making the investigation shall, unless the offence is of a character which
the Public Prosecutor has directed need not be reported to him, submit to the Public Prosecutor
a report of his investigation together with the investigation papers in respect of such
investigation within one week of the expiry of the period of three months from the date of the
information given under section 107

Admissibility of Statement
Old s 113 CPC- Statement made by any person charged with any offence (accused person
only)

Present s 113 CPC- Statement made by any witness, other than the accused, called for the
prosecution or for the defence

Although the old s 113 is not applied, but the principle for the admission of statements of the
accused is still applicable- refer to s 37A of the DDA 1952, s 53 of Malaysian Anti-Corruption
Act 2009 & s 16 of Kidnapping Act 1961

Old s 113 CPC

1. STATEMENT MADE TO OR IN HEARING OF ANY POLICE OFFICER OR


ABOVE THE RANK OF THE INSPECTOR

I: What is the meaning of the statement of accused made ‘to and in hearing’?

It includes the statement which interpreted by the third party to the inspector.

Cheong See Leong v PP

F: The accused was charged with possession of firearms under the Emergency Regulation. The
statement was recorded by the recording officer. The interpreter was a sergeant who interpreted
it to the recording officer in Malay and the recording officer recorded it in English.

H: An independent interpreter is uninterested in the subject matter and may be taken as a mere

'conduit-pipe' 管道 incapable of invention to the detriment of the accused. A statement made

through 'conduit-pipe' by an accused to a police inspector is a statement properly made by him


to the inspector.

I: What is the meaning of above the rank inspector?

Abdul Ghani bin Jusoh & Anor v PP

H: An inspector does not include probationary inspector under the old Police Act 1967, but the
Police Act is amended and a probationary inspector now has the same rank as an inspector.

I; Whether the statement is admissible when the interpreter or recording officer is involved in
the police investigation?
The statement is not admissible if the interpreter or recording officer is involved in police
investigation as there is likelihood of bias.

PP v Yong Kong Hin

H: If the recording officer has detailed knowledge of the case, he should abstain from being
the recording officer.

Lee Lok v PP

H: The investigating officer which actively took part in the police investigation should not be
the recording officer.

Mohamed Yusof bin Haji Ahmad v PP

H: The involvement of the recording officer in the police investigation was not itself a vitiating
factor. In this case, the recording officer had not taken an active part in the police investigation.
Thus, he was qualified.

Teo Siaw Peng v PP

H: The recording officer was not the investigating officer and had no personal interest. The fact

of knowing or seeing the exhibits 证物 at the police station did not disqualify the officer from

recording the accused's statement.

PP v Zainal Abidin bin Ismail & 3 Ors

H: The statements were still admissible even though the recording officer was involved in the
investigation of the case. The relevance of the involvement of the recording officer as the
investigating officer would only be to the weight of such evidence.

I: When the statement is interpreted, few conditions need to be considered:

i. The interpreter must be a capable person and makes sure that both parties understand. But,
the interpreter is not necessarily the police officer.

PP v Forster
F: The accused was Germans and charged with drug trafficking. A clerk who worked at
Embassy of Germany was called to interpret.

H: The clerk was eligible to interpret.

PP v Chan Choon Keong & Ors

I: Whether the interpreter is capable to interpret?

F: The interpreter was interpreted from Hokkien to English. He was be asked to interpret the
Hokkien word for ‘inducement but he failed to interpret.

H: He was not a capable person.

ii. The accused should understand the language

Tan Too Kia v PP

F: The accused was a Teochew but the language used by the interpreter to interpret was
Hokkien.

H: The interpreter should use Teochew to interpret. The accused can understand it.

PP v Kamde bin Raspani

F: The accused had a Javanese accent 爪哇口音 and called an interpreter. The recording officer

recorded the statement in Bahasa Malaysia which were the words of the interpreter and not the
accused. The statement was read back to the accused but not interpreted to him.

H: The statement was needed to interpret in Javanese.

iii. Whether the interpreter can take part in the raid 突击 and in the arrest of the accused?

Cheong See Leong v PP

F: The sergeant who also took part in the raid and in the arrest of the accused, also acted as the
interpreter.

H: Although the interpreter acted as 'conduit-pipe', but there was likely to be bias as the
interpreter had some interest.
2. STATEMENT NOT TO BE CAUSED BY INDUCEMENT 诱 导 , THREAT OR

PROMISE AND MUST BE VOLUNTARY. IF OBJECTION BY THE ACCUSED,

PROSECUTION MUST PROVE VOLUNTARINESS AT VOIR DIRE 一切照实陈述.

Issue: voluntariness of the statements


114 CPC No discouragement from making statement to police

No police officer or other person shall prevent or discourage any person from making in the
course of a police investigation under this Chapter any statement which he may be disposed
to make of his own free will.

Case: Dato Mokhtar bin Hashim v PP

Held: the statement must be free from oppression, otherwise they are not admissible.

Issue: How does the court determine whether it is a statement given freely by the accused?

- This is a question of fact. The subjective test and objective test will be used.

Case: PP v Ping Lin

Held: The court will use both of this test to ensure whether the accused are reasonably providing
statement under oppression. (what matters is what is in the mind of the accused and not the
mind in the police)

Case: Mohd Fuzi

Facts: The accused had given the statement when his hand was hand cuffed at the back

Held: This is pressure and the statement was not taken voluntarily

PP v Naikan

Facts: the police said 'you have better tell the truth'

Held: the word is a threat


Case: Ramasamy Sebastian (Singapore case)

Held: 'you have better tell the truth' is NOT a threat

Case: Mohemed Yusof

Fact: The accused is questioned by a drunk police officer. His face was red and he was in a
state of anger.

Held: this is a threat because the threat is not necessarily something made directly. The relevant
factors relevant that the court will take into consideration are the background of the accused,
age, health of the body and others.

Case: Kamdingrasmi

Fact: The accused is questioned for 16 and half hours

Held: this is oppression

Issue: What is the procedure for determining voluntariness

-the court will suspend the main trial and the court will hold a voir dire (trial within trial)

Case: Abd. Mahmud v PP

voir dire procedure

Fact: The accused claims the fact is made involuntarily then the magistrate continues to ask the
accused to prove his claim.

COA: this is the wrong procedure.

The actual procedure is that the trial must be suspended and the PP must testify to determine
the statement made voluntarily. The prosecution's witnesses will give the statement and will be
questioned by the defense. It was then followed by the defense witnesses to give statement and
be questioned. At the end of the voir dire procedure, the court will decide whether it has been
conducted voluntarily.

Case: Tan Koo Kia v Chong Boo See

Held: the burden of proof on voluntariness lies on PP. It must be proven beyond reasonable
doubt.
Case: PP v Mustafa bin Ahmad

Issue: a statement was held to be admissible at the voir dire,but was subsequently found to be
involuntarily made at the main trial.

Held: the statement made by the accused was voluntary. However, at the end of the trial after
hearing the evidence as a whole, the learned judge was no longer satisfied beyond reasonable
doubt that the statement was voluntary on the ground that the contents of statement become
irrelevant. This has been decided the correct procedure. The court had the discretion to exclude
a statement which had previously been ruled admissible by the same court.

Case: Mohd. Ahmad

3. CAUTION TO BE ADMINISTERED

If the accused was arrested and was requested to make statement, requirements must be adhered
under s113 old CPC. There are few matters regarding ‘caution’ (warning):

i. There must be an arrest.

In the event of an arrest, the caution must be administered properly.

Issue: how to give the warning properly

It must be in the form of a warning in that section or by using the same words with the similar
meaning

Case: Poon Heng

Fact: the police have read the caution but have missed the word 'or to answer any question'

Held: caution was not given properly

ii. the language used must be understood by the accused. It must be translated if necessary.

Case: PP v Mohamed Zaki

Fact: Accused was Thai citizen who spoke in Kelantan’s dialect. RO read the caution and
recorded the statement in standard Malay.

Held: The caution read to him and the statements are not admissible since both of them not
understand to each other.
Case: Mohd Fuzi

iii. in certain cases, must explain the meaning

Case: PP v Mohd. Yusof

Held: if the accused understands BI / BM, then reading only the warning by itself are sufficient
because the word is a safe accessory and easy to understand

iv. the statement was made several times in 1 day, how many times of caution should be
given

Case: Ramasamy Sebastian

Facts: statement have been taken 3 consecutive days. The caution had been administered on
the first day.

Held: Although it is made for 3 days, as it is 1 transaction, so only 1 caution is required

4. -WRITING AND SIGNED BY THE PERSON

-READ TO HIM

Is 112 (5) CPC need to be followed when taking the statement?

S112 Examination of witnesses by police

S112. (5): A statement made by any person under this section shall, whenever possible, be
taken down in writing and signed by the person making it or affixed with his thumbprint as
the case may be, after it has been read to him in the language in which he made it and after he
has been given an opportunity to make any corrections he may wish.

Case: Jayaraman & Ors v PP

Held: the statement is only required in writing if possible. It should also be signed if necessary.
But in practice, the fact is made in writing and signed.

Case: Hasibullah Gazali

Held: Failure to obtain the accused’s signature may result in the court thinks that the statement
was not made voluntarily. When it is taken in writing, it must be read once again to the accused
in his language and the accused is required to make amendments/additions.
Case: Kamde Raspan

Facts: The accused is Jawa and the statement had been given in Javanese. A translator is
appointed and when the statement had been read back, it is read with standard BM.

Held: Must be read in Javanese language

*The old S113 is a section commonly used. If there is a special provision in a particular statute,
then it is necessary to refer to that particular statute.

*Principle in old cases that applying s113 can be used


Procedure – admissibility of statement

PP has discretionary power to choose to admit the statement or not.

Law Tim Wah v PP

Held- The prosecution may choose not to admit the statement if there is other sufficient
evidence. The adverse presumption under s114(g) of the Evidence Act 1950 will not apply.

If PP choose to admit the statement, whole statement deemed to be inadmissible.

Lim Yow Chan v PP

F- The accused be detained due to corruption, he gave the statement to police, admit that RM
50 found in pocket but he also gave the statement about that police not in corruption. PP only
admitted the first sentences.

H- has to admit whole statement.

How PP use the discretionary power?

-it is according to the type of statement. 2 type of statement in the accused.

i. inculpatory statement (the accused admitted)


ii. exculpatory statement (the accused deny the offence)

The purpose of PP to admit the statement of accused

a. As a substantive statement
b. To challenge the honesty of witness

Which stage PP have to admit the statement depends on the purpose of use of the statement.
If the purpose of use of statement of accused is as substantive statement, then PP have to
admit it during the prosecution case (kes pendakwaan).

If to challenge the honesty of witness, it can be admitted during the defence?

Teng Chen Choi

F- PP had close case without admitted the statement. When the accused in defence, PP wish
to challenge the honesty of the accused, and requested the judge introducing the statement at
the end of the defence.
H- cannot, because court gave 2nd time of chance to PP to prove the case. Every statement or
evidence which PP have to use must be introduced during prosecution. PP cannot introduce
or admit it after the case closed.

Same as the case- Peh Ning Ning

Wong Yee See

F- same as above

H- not agree with the case Teng Chen Choi, and decided that PP can introduce the statement
of the accused during the offence stage for the first time, for the challenging honesty of
witness purpose.

Issue- Through whom to admit the statement

PP v Mohamed Noor Jantan

H- Can be introduce or admitted through RO (recording officer)

Lin Lian Chen

H- through the Investigating Officer because IO has control and possession over it.

After the case, then there are amendment on Interpretation Act which S 31A(1) of Evidence
Act was introduced by the Evidence (Amendment) Act 1993 which provides that a statement
shall not be admissible in evidence unless such statement is given by an officer to whom the
statement was made, example recording officer.

However, Parliament removed 31A (abolished) , so rule in Lin Lian Chen still holds. (I.O still
in control and possession)

Exculpatory statement (es)

If there is es, the accused sure want to produce or introduce or admitted the statement, but
which stage?
PP v Mohamed Noor Jantan
H- the accused can introduce or admitted the statement in the stage of prosecution with the 2
method.
1. recording officer (RO) as prosecution witness for other purpose, during the reply of
statement of RO
2. if not asking RO to prosecute, the statement can only be introduced or produced when
the defence start, and RO will become witness of defendant.

The importance of above can be read in Lin Lian Chen, which statement can be introduced by
IO and it mean that the defendant can with 2 way also, which is IO or RO.

Sometimes, the statement can be 2 part, inculpatory and exculpatory, if PP want to introduce
the statement, can the exculpatory part destroy inculpatory part?

Chee Chiew Heong v PP

F- the accused was charged for drug trafficking offence under DDA 1952, she made a cautioned
statement that she was to carry a parcel for someone to pick it up and she felt that the parcel
contained dried prawns. The prosecution tendered the cautioned statement. The Session Court
ignored the exculpatory part and convicted her.

H- in HC, held that due to the exculpatory part of the accused’s statement, the statutory
presumption of possession had been rebutted and the accused’s defence ought not to have been
called at the end of the prosecution’s case.

PP v Mohd Nadzir bin Mohd Noor

The accused was charged for drug trafficking offence. The prosecution adduced the cautioned
statement of the accused. The inculpatory part was that the accused admitted throwing a
package. The exculpatory was that he was told to keep the package not realising that it
contained drugs. On the evidence given by prosecution witness, the motor cycle rider had run
away. The accused who was the pillion rider, still on the bike, waited and then parked the bike.
Then 2-3 mins later, he threw the package which was found contain drugs.

H- the presumption that the accused knew the package contain drugs was rebutted because of
the exculpatory part in the cautioned statement and from the evidence led by the prosecution.
The accused’s behaviour before throwing the package also showed his innocence. The accused
was acquitted w/o calling his defence.

Refer the case Chee Chiew Heong v PP, the part exculpatory rebutted the ownership.
Chee Kean Choi

F- the accused admitted because of the provocation (exculpatory)

H- not believe provocation and accused convicted

Adetunji Adeleye Sule

The accused was charged in drug trafficking offence, PP successfully introduced the statement
in the earlier stage. The supreme court held that the exculpatory part of statement can’t be
excuse and PP failed to establish the case because the court can’t believe the statement w/o
collaborated statement.

This is important if the accused or defendant haven’t gave the explain, or the statement to police
haven’t been certified or tested. Supported by case Mawar Mohd Rashif

Important incident about statement, the accused.

Statement to police can be challenged- Krishnan

H- since the caution was not administered asap after arrest, the statement is inadmissible.
Before challenging the statement, there must be voluntary, this is different from normal witness.

Case- Abudullah bin Ambik