POLICE INVESTIGATIONS• According to Section 13 of the CPC, there is obligation on a

person to provide information to the police if he is…

(1) aware of the commission of the crime

(2) aware of the intention to commit the crime

(3) aware of any sudden death

(4) aware of any unnatural death

(5) aware of any death by violence

(6) aware of any suspicious death

(7) aware of any body found without knowing that he died.

WHAT WE SHOULD DO?

1. See whether circumstances fall under Section 13 of the CPC.

2. Go to the police station to make report-record the FIR under Section 107 of the CPC.

3. Police has to determine whether it is seizable / non-seizable offence.

- Refer to Section 2 of CPC – definition of seizable and non-seizable

- Refer to 1st Schedule, 3rd Column of the CPC.

• After fulfilling any of the above circumstances, there are two possible situations:(1) Inform the police (Section 107 of the CPC)

Procedure For Recording FIR(1) Reduce into writing(2) Read it over to the informant(3) Filed, signed by the informant(4) Enter into the report book with date and time(5) Allocate a police report number.

(2) Do not inform the police (Section 176 and 202 of the Penal Code): an offence punishable with imprisonment

DEFINITION OF FIR

• S 107 of the CPC, it means “…information”.• Complaint to the police

S.107 provides that:a) Every information relating to the commission of an

offence, if given orally to an officer must be reduced in writing by the OCS and read over to the informant

b) Such information must be entered into a book to be kept by the OCS and signed by the informant.

Dato’ Seri Anwar Ibrahim’s Case

Augustine Paul J: “Information under Section 107 means something in the nature of a complaintcomplaint or accusationaccusation or at least informationinformation of a crime, given with the object of putting the police in motion in order to investigateto investigate, as distinguished from information obtained by the police when actively investigating a crime.”

• FIR not a condition precedent to commence investigation

• Not all police reports are FIR.

THE SIGNIFICANCE OF FIR

• The significance of FIR lies in the fact that it is usually made very early after the occurrence of the offence and the memory of the informant is still fresh and there is little likelihood of fabrication.

ISSUE: What If Fir Is Not Reduced Into Writing, No Fir, Will That Vitiate The

Criminal Prosecution?

• It depends on the question of how crucial is the FIR as evidence to convict the accused.

Emperor v Khwaja Nazir Ahmad [1945] AIR PC 18

Held: The receiving and recording of a report is not a condition precedent to the setting in motion of a criminal investigation and there is no reason why the police, if in possession through their knowledge or by means of credible though informal intelligence which genuinely led them to the belief that a cognizable offence has been committed, should not of their own motion undertake an investigation into the truth of the matters alleged.

• Without FIR, not necessarily vitiate the criminal prosecution.

• FIR not a pre-requisite to start proceeding or action if heard from other credible source, still can start.

PP v Foong Chee Cheong [1970] 1 MLJ 97

Gill J: “The fact that no FIR was made is not in itself a ground for throwing out the case.”

The magistrate acquitted the accused without calling for his defence on the ground that since the information had not been reduced in writing, the police had no power to act and tat consequently the arrest was void in law.

High Court:Order for retrial.

Dato’ Seri Anwar Ibrahim’s Case

The object of the section is merely to

activate the investigating function of the

police. It is not a requirement.

PRODUCTION OF FIR IN COURT

• Chin Thing Siong v PP

The report was decisive as to whether the story is true or not. The FIR was the only thing that the prosecution have. So, if it is not produced, it would be fatal.

Lee Yee Kok v PPThe FIR was crucial to corroborate the witness’ statement in court relating to description of the accused.

Tan Cheng Kooi v PP[ 1972] 2 MLJ 115

Chang Min Tat J: “Where the case against the accused depended entirely on the evidence of the complainant, the failure to produce FIR had deprived the accused of an opportunity to cross-examine his accuser and in this circumstances, the presumption under Section 114(g) of Evidence Ordinance must be raised, that the report would be unfavourable to the prosecution’s case.”

PP v Abdul Razak Bin Johari [1991] 1 MLJ 105

- the crime was drug trafficking and the complainant was the vital witness as he was the only one at the crime scene.- so the prosecution case depended entirely on the evidence of the complainant.- when the prosecution failed to produce FIR, such failure was fatal.- it raises the presumption of Section 114(g).- the accused was therefore acquitted.

Ong Hock Liong v PP

The principal witness was not the complainant. The main witness is a different person, thus not fatal to the prosecution case.

Obiter dicta: “Although of great importance, the omission of FIR does not however appear per se to be fatal to the prosecution.

Admissibility of FIR: s108A CPC

• FIR must be certified by the Officer in Charge of Police District (OCPD) to be admissible as evidence of the contents of the original FIR

• Original FIR is in the station book and cannot be removed from the police station

Issue: whether a report which is not FIR is admissible under

s108A CPC• PP v Kang Ho Soh [1992] 1 MLJ 360

Acting on an information the police set up a roadblock and on searching found dangerous drugs in the accused’s car.The accused was arrested and at the police station a report was put up as to the seizure.Def argued: Arrest Report was not produced as evidence and therefore fatalHeld: report was an arrest report and not FIR and as such was not admissible under s.108A

PP v Ismail b Atan [1992] 2 CLJ 1253]

• The accused was charged under s.39B DDA. The prosecution attempted to tender a police report made by PW3. The defence objected to its admissibility and as it was not a FIR

Held: Report was an arrest report and thus inadmissible under s.108A CPC

Issue: Whether the accused is entitled to a copy of the FIR to prepare the defence?• Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24- Accused charged under s.506 PC - Applied to the OCPD to be supplied with a copy of FIR by the

complainant. OCPD refused.- Application to the High Court arguing that FIR was a public

document and thus accused had a right to inspect it.- High Court held: not a public document- Federal Court: FIR was a public document within the meaning

of s 74 EA. - Accused had a right to inspect the FIR and to be supplied with a

copy of it because he has interest in it.

Husdi v PP [1979] 2 MLJ 304

• The common law right of the accused to inspect the FIR arose from the duty of the police to inform the accused the reason for his arrest, as required under the Constitution

Evidential value of the FIR

• Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115 Shall not be treated as a substantive piece of evidence but may be used for purposes of corroboration or contradiction

- Corroboration under s157EA but a very weak type of corroborative evidence.

[Karthiyayani & Anor [1975] 1 MLJ 119 FC]

• Where the evidence of the complainant is the only evidence against the accused, the failure to produce the complainant’s report at the trail raises a presumption that it would , if produced, have been unfavourable to the prosecution’s case.

[R V Chin Khing Siong 1951] MLJ 74]Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115

• Where there is other evidence apart from the complainant’s report, the failure to produce the report by the prosecution , although a serious omission, will not be fatal to the prosecution’s case.

[PP v Foong Chee Cheong [1970] 1 MLJ 97]

Omissions in the FIRHerchun Singh & Ors v PP

[1969] 2 MLJ 209 (FC)• The effect of contradictions or omissions in the FIR is a

matter of appreciation which differs from case to case• Irrelevant errors in FIR should not be given exaggerated

importance and omissions be objectively considered in the light of surrounding circumstances.

False FIR• An offence under sect 182 of the

Penal Code

PROCEDURE IN INVESTIGATION ON RECEIVING FIR

• S.107, the police officer conducting the investigation must first consider whether the offence complained in the FIR is a:

i. Non seizableii. Seizable offence

s.108 CPC: Procedure for non seizable offence

• 2 options:i. The IO does not wish to investigate- refer to magistrate-complainant brings the matter before a Magistrate who may take cognisance of the offence- Magistrate shall examine the complaint under oath.

• 2) the police officer wishes to investigate a. s 108(2) obtain OTI from PP b. s 108(3) officer not below Sergeant or any

officer in charge of a police station (OCS) may investigate except the power to arrest without a warrant.

PDRM v Keong Mei Cheng, Audrey [1994] 3 MLJ 296

Procedure under s 109CPC

• Investigation in seizable offence• Sergeant or any OCS, without , OTI

may investigate any seizable case

WHAT POWER HAS BEEN GIVEN?

1. Power to investigate the crime scene (Section 110 of the CPC)

- “…to proceed to the spot to inquire into the fact…”

- to conduct interview etc.

2. If they are acquainted with the people but can’t conduct interview with them at the crime scene they have power to call these people (Section 111)

3. To require the attendance of witness, has the power to take statement from them (Section 112)and has the power to record the statement.

4. Search and seizure.

5. Power to make an arrest.

6. Power to apply remand order after arrest.

7. Power to ask the bond to be executed.

8. Obligation to report it to DPP - whether or not to proceed with the case.

POWER OF POLICE TO RECORD THE STATEMENT (SECTION 112)

• S.112 provides that:-a. IO may examine orally any person acquainted

with the facts and circumstances of the case and shall reduce into writing any statement made

b. Bound to answer all questions asked by IO- Provided if statements would expose him to

criminal charge or penalty or forfeiture he may refuse to answer.

c. To state the truth, whether or not such statement is made wholly or partly in answer to question

d. IO must give general caution under sub(2) and (3)

e. The statement shall whenever possible be taken down in writing and signed by the maker or affixed with his thumb print after reading it to him in the language he made it and after giving him an opportunity to correct it.

Explanations on (b), (c) and (d)

PP v Kamde Bin Raspani

• Section 112(4) – Caution does not need to be administered but has to tell the warning under subsection (2) and (3).

• Section 112(2) – They are bound to answer all the questions.

• Section 112(3) – Bound to state the truth.

• Section 112(4) - Warning to the witness

• It is a “privilege communication”.

Dato’ Seri Anwar Ibrahim

Prosecution may if it is so desires waive the privilege attached to the statement and under Section 112 and used them for the purpose of Section 157 of the Evidence Act 1950.

What does “any person” means:

• Witness and the person who may eventually be the accused person

Issue: Whether writing requirement, signature/thumb

print are mandatory?

Abdul Ghani Bin Jusoh [1981] 1MLJ 25(FC)

Facts: 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 112(5) CPC, signature/the thumb print is not mandatory.But adduced statement in writing is mandatory

Compare withPP v Jayaraman & Ors v PP [1982] 2

MLJ 306 (FC)“Whenever possible” applies to both i.e. reduce in writing and signed and affixed thumbprint.

Facts: Oral statement made by the accused and not reduced into writing were admissible because of the phrase under s 112(5) CPC provided reasonable explanation is given.

Section 112(5) – Language

-it has to be done in the language that he is familiar with.

Tan Too Kia v PPSuffian LP: “…the language he used at home.”- his mother tongue is Teo-Chew, but he was asked in another Chinese dialect – contravening Section 112(5).

Held: right to be questioned in the language you understand, not your mother tongue…

Section 112(5) – After he has been given an opportunity to make any correction.

Issue: Whether the recording of statement during examination or interrogation should be in the form of questions and

answers

PP v Subramaniam & Anor [1956] MLJ 58

The interrogation need not be recorded in a question and answer form. It can be just typed or write down the answer.

PP v Abdullah bin Ambik [1984] 1 CLJ 159 “recorded statement need not be in the form of questions and answers”

Issue: Whether s.112 statement is to be read with s. 114 and must be voluntary

• s.114 CPC provides that no police officer or other person shall prevent or discourage any person from making a statement during the police investigation

• S112 statement, read with s114 must be made voluntarily and the burden is on the accused to show that the statement was not made voluntarily.

Norliana Sulaiman v PP [2001] 1 CLJ 36,Facts: charged for perjury under s193 PC 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.

Voluntariness.• Yusof bin Omar lwn Pendakwa Raya

[2001] 2 AMR 1433 Accused was charged under s 193PC and

was convicted thereof. He appealed on the ground that the statement under s112CPC was given involuntarily and the Court should conduct voir dire to determine its voluntariness.

Held: the issue of voluntariness under s112CPC is not to be determined in a voir dire but to be raised in the defence.

• Husdi v PP

The defence may have access to statement (Section 112) for the purpose of impeaching the credit of the witness.

Admission of s112 CPC statement

• Regulated under s113 CPC.• S113(1) - Statement under s112CPC shall

not be used as an evidence.“privilege communication” [124EA]

• However s.112 statement can be used for purpose of impeaching the credibility of the witness.

• To impeach, a copy of the statement shall be made available to the accused if directed by the court for impeachment proceeding.

• Accused person’s statement can only be used by the accused for purpose of his defence during the course of the trial.

DIFFERENCE BETWEEN s112 AND former s113 OF THE CPC

{37A DDA, s.16 KA, s.75 ISA, Reg. 21 ESCAR)

SECTION 112 SECTION 113

1. Statement under 112 only made during police investigation.

1. Made at any time before or after, within or outside police investigation.

2. Statement can be made to police officer. - cross refer to Section 109 i.e. not below rank of sergeant.

2. Police officer: at the rank or above the rank of inspector.

3. Person could be anyone. - witness, accused, anyone.

3. Person is only accused person.

4. Statement can be taken even without caution being administered but warning under subsection (2) and (3) must be given.

4. Caution must be administered.

5. More concerned on procedure of taking down statement.

5. More concerned on admissibility of statement in court.

RIGHTS OF ACCUSED PERSON TO INSPECT AND OBTAIN COPIES OF CERTAIN DOCUMENT

1. FIR (SECTION 107)

Anthony Gomez v Ketua Polis Daerah Kuantan

Suffian LP: “The FIR is public document under Section 74 of the

Evidence Act. Section 76 is silent as the right of the applicant to

inspect the document. By referring to common law, any person

who is interested in public document and inspection of public

document must be given the right to inspect the document. This

is necessary for the protection of his interest.”

2. ACCUSED PERSON’S OWN STATEMENT

Khoo Siew Bee

Suffian LP: “Since the police officer who recorded the cautioned statement was under duty to record thestatement, it is therefore a public document.

• Section 107 – not necessary witness, only informant.

• Section 112 – witness.

3. ANY DOCUMENT – RECORDING BY ANY PERSON (WITNESS’ STATEMENT, CO-ACCUSED ETC)

Khoo Siew Bee

Be it noted that my ruling only applies to statement

recorded by accused, not from others who are

potential witnesses against or for them as to which the

prosecution under no duty to supply to the defence.

Statement of the co-accused?

Haji Ghani Ishak v PP [1994] 2 MLJ 385Accused is not entitled to the statement of the co-accused who is a competent witness against the accused.

• Other documents:- PP v Raymond Chia & Anor [1985] 2 MLJ 436-document if the document is specified in the charge.

3.Arrest & Rights Relating to Arrest.ppt