CPC November 2023

Question 1(a) – Lawful search

The legality of the search conducted on Bijan depends on several factors, including the type of
search conducted and the adherence to procedures outlined in the Criminal Procedure Code
(CPC). The scenario suggests that the police conducted a body search on Bijan, which under the
CPC, encompasses four types:

Pat-down search: Involves a quick run of hands over outer garments.

Strip search: Requires the removal of some or all clothing.

Intimate search: Entails physical examination of body orifices (excluding mouth, nose, and
ears).

Intrusive search: Involves internal body examination, typically conducted by medical

professionals.

The scenario doesn't explicitly state which type of search was performed. However, the
discovery of a package "containing transparent plastic that contained clear solids" indicates that
it was likely more than a pat-down search, possibly a strip search. The legality hinges on
whether the police had the authority to conduct such a search and if they followed the correct
procedures.

Authority to Conduct the Search

The CPC allows a police officer to search a person arrested without a warrant under specific
circumstances. Section 20 of the CPC states:

Whenever a person is arrested by a police officer under a warrant which does not provide for
the taking of bail or under a warrant which provides for the taking of bail but the person
arrested cannot furnish bail; or without warrant or by a private person under a warrant and the
person arrested cannot legally be admitted to bail or is unable to furnish bail, the police officer
making the arrest or, when the arrest is made by a private person, the police officer to whom
such private person hands over the person arrested may search such person...

In this case, Bijan was arrested without a warrant. The police can conduct a search if they have
reason to believe he has committed a seizable offense. The fact that Bijan was acting
suspiciously and attempted to flee gives the police reasonable grounds to suspect his
involvement in a crime.
Adherence to Procedures

The CPC outlines specific procedures for conducting body searches, which vary depending on
the type of search. These procedures are detailed in the Fourth Schedule of the CPC.

Conclusion

Based on the information provided, the search conducted on Bijan was likely lawful. The police
had the authority to search him upon arrest without a warrant due to his suspicious behavior
and attempted escape. However, to definitively determine the lawfulness of the search, more
information is needed about the specific type of search conducted and whether the police
adhered to the procedures outlined in the Fourth Schedule of the CPC.
Question 1(b) – Objective of Search

Answer from Fourth Schedule (Section 20A), objective of body search

Question 1(c) – Lawful arrest

The arrest of Bijan was likely lawful. The police have the authority to arrest without a warrant
under certain circumstances, as outlined in Section 23(1) of the Criminal Procedure Code. The
provision states that a police officer may arrest without a warrant any person:

(a) who has been concerned in any offence committed anywhere in Malaysia which is a
seizable offence under any law in force in that part of Malaysia in which it was
committed or against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists of his having been so
concerned;

In this scenario, although Bijan was not caught in the act of committing a crime, his suspicious
behavior and subsequent attempt to flee when approached by the police gave them reasonable
suspicion to believe that he might be involved in a seizable offense. The police officers also
properly identified themselves before approaching Bijan. Therefore, based on the available
information, the arrest appears to be justified under Section 23(1)(a) of the CPC.
Question 1(d) – Examination of witness

The Criminal Procedure Code (CPC) emphasizes the need for efficiency and promptness in
police investigations. The investigating officer's (IO) delay of five days before recording witness
statements could be seen as contradicting this principle.

The relevant provision in the CPC is Section 120(1), which states:

Every police investigation under this Chapter shall be completed without unnecessary delay...

While the CPC doesn't explicitly define "unnecessary delay," a five-day gap before recording
witness statements could potentially be construed as such, especially if there's no justifiable
reason for the delay. The promptness in recording statements is crucial to ensure the accuracy
and reliability of evidence. Delays can lead to witnesses forgetting crucial details or being
influenced by external factors.

In the given scenario, the IO cites being "busy with other cases" as the reason for the delay.
While this might be a practical consideration, it doesn't necessarily justify the delay in the eyes
of the law. The IO has a duty to prioritize investigations and ensure that evidence is collected
promptly.

If Bijan's case goes to trial, his defense could argue that the delay in recording witness
statements has prejudiced his case. They could claim that the delay has affected the reliability
of the evidence and hindered Bijan's ability to mount a proper defense. The court would then
need to assess whether the delay was reasonable under the circumstances and whether it has
resulted in any prejudice to the accused.

In conclusion, while the CPC doesn't mandate a specific timeframe for recording witness
statements, it emphasizes the need for promptness in investigations. The IO's five-day delay
could be seen as an unnecessary delay and potentially jeopardize the prosecution's case.

Also to refer to Section 112 – Examination of witness by police

Question 2(a)

The Criminal Procedure Code (CPC) of Malaysia distinguishes between seizable and non-
seizable offenses primarily based on the severity of the punishment and the power of a police
officer to arrest without a warrant.

Seizable offense: An offense for which a police officer may, under normal circumstances, arrest
a person without a warrant. The First Schedule of the CPC lists specific offenses and indicates
whether they are seizable or not. Generally, seizable offenses are those punishable with death,
imprisonment for a term exceeding three years, or where a specific law designates them as
seizable.

Non-seizable offense: An offense for which a police officer cannot ordinarily arrest a person
without a warrant. These are typically less serious offenses, often punishable with a fine or
imprisonment for a term not exceeding three years.

The distinction between seizable and non-seizable offenses is crucial in determining the powers
of the police during investigations and arrests. In the case of seizable offenses, the police have
broader powers to arrest and investigate without first obtaining a warrant. However, for non-
seizable offenses, they generally need a warrant or a specific order from the Public Prosecutor
to exercise such powers.
Question 2(b) – First Information Report (FIR)

The failure to adduce the First Information Report (FIR) at trial will not automatically trigger an
adverse inference against the prosecution. The FIR, while an important document that sets the
criminal investigation in motion, is not the sole piece of evidence that the prosecution relies on
to prove its case. The prosecution's case is built on various forms of evidence, including witness
testimonies, forensic reports, and any other relevant material.

The admissibility of the FIR as evidence is governed by Section 108A of the Criminal Procedure
Code (CPC), which states:

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.

This provision allows a certified copy of the FIR to be admitted as evidence, but it doesn't
mandate its production. The prosecution has the discretion to decide which evidence to
present, as long as it's sufficient to prove the case beyond a reasonable doubt.

The failure to produce the FIR might raise questions about the thoroughness of the
investigation or the prosecution's strategy. However, it wouldn't necessarily lead to an adverse
inference unless the defense can demonstrate that the absence of the FIR specifically
prejudices the accused's case or casts doubt on the prosecution's evidence.

Case : PP v Fong Chee Cheong

1. If FIR reduced to writing under S.107 before investigation, court may make adverse
inference.
2. If PP establish a prima facie case, no need FIR

In conclusion, while the FIR is a significant document in criminal proceedings, its absence at trial
doesn't automatically weaken the prosecution's case. The court will consider the overall
evidence presented and won't draw an adverse inference solely based on the missing FIR unless
there's a clear demonstration of prejudice to the accused.
Is accused entitled to copy of FIR?

Yes, the accused is entitled to a copy of the First Information Report (FIR). The entitlement
stems from the provisions of Section 51A(1)(a) of the Criminal Procedure Code, which states:

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;

The "information made under section 107" essentially refers to the FIR. Therefore, the accused
has a legal right to receive a copy of the FIR before the trial commences. This is to ensure
transparency and allow the accused to prepare their defense adequately.
Question 2(c) – procedure to investigate seizable offence (Part V of CPC)

The Criminal Procedure Code (CPC) of Malaysia lays out the procedure for investigating seizable
offenses. The critical aspect of a seizable offense is that a police officer may arrest a person
without a warrant. The following steps elucidate the process:

Receipt of Information: The process commences when a police officer, at least of the rank of
Sergeant, or an officer in charge of a police station, receives information suggesting the
commission of a seizable offense. This information may be in the form of a First Information
Report (FIR) or acquired through other means. The officer is obligated to record the
information, even if received outside the station premises. The information is then relayed to
the relevant officer in charge of a police station. (Section 107)

Reporting to the Public Prosecutor: The police officer must promptly inform the Public
Prosecutor about the suspected seizable offense, unless the Public Prosecutor has instructed
otherwise for that specific category of offense. (Section 110(1))

Investigation: The police officer, or a subordinate delegated by them, will then initiate an
investigation at the scene of the crime. The objective is to uncover the facts and circumstances
of the case, gather evidence, and, if feasible, apprehend the offender. The police officer retains
the discretion to decide whether to conduct the investigation personally or assign it to a
subordinate. (Section 110(1))

Investigative Powers: The CPC grants police officers certain powers to facilitate the investigation
process. These include:

The authority to summon any individual believed to possess knowledge about the case for
questioning. (Section 111)

The power to examine any person suspected to be familiar with the case details and document
their statements. (Section 112)

The right to search any location where they suspect evidence related to the offense might be
located. (Section 116)

The ability to request a Magistrate for a remand order to detain the suspect for further
investigation if the investigation cannot be concluded within 24 hours. (Section 117)

Conclusion and Reporting: The investigation should be finalized without any undue delays.
Subsequently, the investigating officer must furnish a comprehensive report, accompanied by
all pertinent documents and evidence (investigation papers), to the Public Prosecutor. This
report is due within one week following the three-month period from the date of the initial
information received, unless the Public Prosecutor provides alternative instructions. (Section
120(1))

Decision on Prosecution: The Public Prosecutor will then scrutinize the investigation report and
determine if there's adequate evidence to press charges against the suspect. If sufficient
evidence exists, the Public Prosecutor will proceed with initiating criminal proceedings.

It is imperative to emphasize that the police are bound to adhere to the procedures and
safeguards stipulated in the CPC throughout the investigation. Any deviation from these
procedures could potentially lead to the inadmissibility of evidence in court, thereby
jeopardizing the success of the prosecution's case.
Question 3(a) – Lateral & Vertical Transfer

The Criminal Procedure Code (CPC) of Malaysia provides for the transfer of criminal cases
between courts to ensure fair and efficient trials. The CPC distinguishes between two types of
transfers:

Lateral Transfer: This involves the transfer of a case from one court to another court of equal
jurisdiction. The transfer may be initiated if it's believed that a fair and impartial trial cannot be
held in the original court, or for the convenience of parties and witnesses, or for the ends of
justice. The power to order a lateral transfer lies with the High Court. (Section 417(1)(bb))

Vertical Transfer: This refers to the transfer of a case from a lower court to a higher court,
implying a change in jurisdiction. The transfer may be ordered if the case involves complex legal
issues, requires a view of the crime scene, or if it's in the interest of justice. The High Court has
the authority to transfer cases vertically, either to itself or to another court of superior
jurisdiction. (Section 417(1)(aa) and (cc))

In essence, the primary distinction lies in the jurisdictional level of the courts involved. Lateral
transfer maintains the same level of jurisdiction, while vertical transfer moves the case to a
higher court with greater authority.
Question 3(b) – Transfer of cases

The Sessions Court Judge's (SCJ) decision that he could only transfer the PJ cases to the KLSC if
the latter had jurisdiction over the PJ cases is incorrect. The SCJ has the power to transfer cases
to another Sessions Court, even if that court doesn't inherently have jurisdiction over the case.
The relevant provision in the Criminal Procedure Code (CPC) is Section 417, which states:

(1) Whenever it is made to appear to the High Court—

(e) that such an order is expedient for the ends of justice, or is required by any provision of this
Code, it may order—

(bb) that any particular case or class of cases be transferred from a criminal Court subordinate
to it to any other such criminal Court of equal or superior jurisdiction;

The power to transfer cases under Section 417 lies with the High Court. However, the Sessions
Court also has the power to transfer cases to another Sessions Court under the same provision,
as the Sessions Court is a 'criminal Court subordinate to' the High Court. The transfer can be
made if it is deemed 'expedient for the ends of justice.' The grounds cited by the DPP, such as
the connection between the cases, the involvement of the same witnesses and documents, and
the convenience of the parties, could all contribute to the argument that a transfer would be in
the interest of justice.

The SCJ's concern about the KLSC's jurisdiction over the PJ cases is also misplaced. The CPC
allows for the transfer of cases even to courts that wouldn't ordinarily have jurisdiction. Section
417(1)(aa) states:

that any offence be tried by any Court not empowered under sections 121 to 126 but in
other respects competent to try such offence;

This provision allows for the transfer of cases to courts that are otherwise competent to try the
offense, even if they don't have territorial jurisdiction under Sections 121 to 126. Therefore, the
KLSC, being a Sessions Court, is competent to try the offenses under the Anti-Money
Laundering Act, and the transfer can be made even though the offenses didn't occur within its
territorial jurisdiction.

In conclusion, the SCJ erred in dismissing the DPP's application. The SCJ has the power to
transfer the PJ cases to the KLSC, and the KLSC can hear the cases even though they originated
in Petaling Jaya. The DPP has strong grounds for their revision application to the High Court,
and the High Court is likely to overturn the SCJ's decision and order the transfer of the cases.
The requirements for the transfer of the PJ cases to the KLSC, as outlined in the Criminal
Procedure Code (CPC) and relevant case law, appear to have been met in this scenario. The
Deputy Public Prosecutor (DPP) has applied for the transfer under Section 417 of the CPC,
which allows for the transfer of cases if it is "expedient for the ends of justice." The DPP has
provided several grounds to support this claim:

Connection between the cases: The DPP has stated that the charges in the PJ cases originated
from the KL cases, and the money recovered in the PJ cases is the subject matter in the KL
cases. This suggests a strong factual connection between the two sets of cases, making a joint
trial more efficient and logical.

Same witnesses and documents: The DPP has also pointed out that both sets of cases involve
the same witnesses and documents. This further strengthens the argument for a joint trial, as it
would save time and resources for all parties involved, including the court, the prosecution, the
defense, and the witnesses.

Location of offenses: The offenses were committed within the Klang Valley area, and there's no
indication that Putih's interests would be prejudiced by having the cases heard in the KLSC
instead of the PJSC. The proximity of the locations further supports the convenience and
efficiency of a joint trial.

No prejudice to the accused: The DPP has explicitly stated that Putih's interests would not be
prejudiced by the transfer. The CPC requires that any transfer should not be to the detriment of
the accused.

The SCJ's dismissal of the application based on a misunderstanding of jurisdiction is not a valid
reason to deny the transfer. As explained in the previous response, the KLSC is competent to try
the offenses, and the transfer can be made even if it doesn't have inherent territorial
jurisdiction.

In conclusion, the DPP has presented compelling grounds for the transfer of the PJ cases to the
KLSC. The factual connection between the cases, the involvement of the same witnesses and
documents, the proximity of the locations, and the absence of prejudice to the accused all point
towards the transfer being "expedient for the ends of justice." The DPP's application for
revision to the High Court is likely to succeed, and the High Court is expected to overturn the
SCJ's decision and order the transfer.
Question 4(a) – Delivery of documents (Fatal or non – fatal)

The counsel's submission that Section 51A of the CPC is a mandatory provision is incorrect. The
provision states that the prosecution must deliver certain documents to the accused before the
trial commences. However, it also explicitly states that non-compliance with this requirement
does not automatically render the evidence inadmissible.

The relevant part of Section 51A states:

(3) A document shall not be inadmissible in evidence merely because of non-compliance with
subsection (1).

This indicates that while the prosecution is obligated to provide the documents, their failure to
do so doesn't invalidate the trial or the evidence presented. The court has the discretion to
admit the evidence even if it wasn't served on the accused beforehand.

The only exception is when the prosecution deliberately and in bad faith delivers the
documents after the trial has commenced. In such cases, the court can exclude the evidence.
However, this doesn't seem to be the situation in the given scenario.

Therefore, the counsel's argument that the conviction should be set aside solely based on non-
compliance with Section 51A is unlikely to succeed. The court will likely consider the overall
fairness of the trial and whether the accused was prejudiced by not receiving the documents in
advance. If the court finds that the accused had a fair opportunity to defend themselves despite
the non-compliance, the conviction is likely to stand.
Question4(b) – Section 51 CPC

The statement "Section 51 of the Criminal Procedure Code is a general provision to be invoked
at any stage of an inquiry, investigation or trial or other proceeding under the Code" is generally
accurate, but requires some clarification to fully capture its scope and application.

Section 51 of the Criminal Procedure Code (CPC) empowers a Court or a police officer
conducting an investigation to compel the production of any document or other thing deemed
necessary or desirable for the purposes of any investigation, inquiry, trial, or other proceeding
under the CPC. The provision allows for the issuance of a summons (by the Court) or a written
order (by the police officer) to the person believed to be in possession or control of the said p

The statement's accuracy lies in its assertion that Section 51 can be invoked at any stage of a
criminal proceeding. This includes the initial investigation stage, during inquiries or trials, and
even in other proceedings under the CPC, such as appeals or revisions. The broad language of
the provision, referring to "any investigation, inquiry, trial or other proceeding," supports this
interpretation.

However, the statement needs clarification regarding the scope of its application. While Section
51 can be invoked at any stage, its use is contingent upon the necessity or desirability of the
property or document for the proceedings. The Court or police officer must believe that the
production of the item is essential for the investigation, inquiry, trial, or other proceeding.

Furthermore, the provision has certain exceptions. It does not override any existing laws
related to evidence or apply to postal articles, telegrams, or other documents in the custody of
postal or telegraph authorities. Specific procedures are outlined in the CPC for dealing with
such items.

In conclusion, Section 51 of the CPC is indeed a general provision that can be utilized at various
stages of criminal proceedings. However, its application is subject to the necessity of the
property or document for the proceedings and the exceptions outlined in the Code.
Question 4(c) – Chemist report (Section 399 & Section 51A)

Yes, the accused is entitled to a copy of the chemist report. The entitlement is derived from the
provisions of Section 51A(1)(b) of the Criminal Procedure Code, which states:

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

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

A chemist report, being a crucial piece of evidence that the prosecution would likely rely on in a
drug-related case, falls under the category of documents that must be delivered to the accused
before the trial begins. This ensures that the accused has adequate time to review the report,
consult with experts if necessary, and prepare their defense accordingly.
Question 5(a) – stay on execution (S311)

The next step that Mr. Sree Lawan should take is to immediately apply to the High Court for a
stay of execution. The relevant provision in the Criminal Procedure Code (CPC) is Section 311,
which states:

Except in the case of a sentence of whipping (the execution of which shall be stayed pending
appeal), no appeal shall operate as a stay of execution, but the Court below or a Judge may stay
execution on any judgment, order, conviction or sentence pending appeal, on such terms as to
security for the payment of any money or the performance or non-performance of any act or
the suffering of any punishment ordered by or in the judgment, order, conviction or sentence
as to the Court below or to the Judge may seem reasonable.

The legal principles applicable to support this step are:

The power to grant a stay of execution lies with both the lower court (Sessions Court in this
case) and the High Court. The Sessions Court Judge has already rejected the application, so the
next recourse is to approach the High Court.

The High Court has the discretion to grant a stay on such terms as it deems reasonable. This
could include requiring Halim Bad to provide security or fulfill certain conditions to ensure his
appearance for the appeal hearing and to prevent him from absconding.

The purpose of a stay is to prevent the execution of the sentence while the appeal is pending.
This is to ensure that if the appeal is successful, Halim Bad will not have unnecessarily served
any part of the sentence.

The decision to grant a stay is based on the facts and circumstances of each case. The High
Court will consider factors such as the severity of the sentence, the grounds of appeal, the
likelihood of success of the appeal, and the potential prejudice to Halim Bad if the stay is not
granted.

In advising Halim Bad, Mr. Sree Lawan should explain that the Sessions Court Judge's rejection
of the stay application doesn't preclude them from seeking a stay from the High Court. He
should prepare a strong application highlighting the grounds of appeal, the potential prejudice
to Halim Bad if the stay is not granted, and any other relevant factors. The application should
also address the terms that the High Court might impose, such as providing security, to increase
the chances of the stay being granted.
Section 5(b) – Notice of Appeal & Petition of Appeal (Section 307)

The Criminal Procedure Code (CPC) stipulates the following time periods for filing the Notice of
Appeal and Petition of Appeal:

Notice of Appeal: The notice of appeal must be filed within 14 days from the date of the
judgment, sentence, or order being passed or made. (Section 307(1) CPC)

Petition of Appeal: The petition of appeal must be filed within 14 days after the copy of the
grounds of decision has been served on the appellant or their advocate. However, if the
appellant applied for a copy of the notes of evidence within the initial 14-day period for lodging
the notice of appeal, they have 14 days from the date they are notified that the notes are
available to file the petition of appeal. (Section 307(4) and (5) CPC)

In Halim Bad's case, he needs to ensure that both the Notice of Appeal and the Petition of
Appeal are filed within these stipulated timeframes to ensure his appeal is not deemed
withdrawn.
Question 5(c) – Section 307 (Notice & Petition of Appeal)

The content of the Notice of Appeal and Petition of Appeal that Mr. Sree Lawan, the defense
counsel, needs to file on behalf of Halim Bad to the High Court should be in compliance with
the Criminal Procedure Code (CPC) to enable the High Court Judge to make an appropriate
decision. The contents should be as follows:

Notice of Appeal

The Notice of Appeal, as per Section 307(1) CPC, should be lodged within 14 days from the date
of the Sessions Court's decision to reject the stay of execution. It should be addressed to the
High Court and include:

1. Appellant's Information: Halim Bad's name, identification details, and contact

information (postal or electronic address for service).
2. Case Details: The Sessions Court case number, the offense Halim Bad was convicted of
(Section 372A of the Penal Code), the date of the conviction, and the sentence imposed.
3. Grounds of Appeal: The primary ground of appeal in this case would be the Sessions
Court Judge's refusal to grant a stay of execution pending appeal, especially considering
the nature of the sentence, which includes imprisonment and whipping. The Notice of
Appeal doesn't need to elaborate on the grounds; it's sufficient to state that the appeal
is against the conviction and sentence.
4. Prescribed Appeal Fee: The required fee must be paid at the time of lodging the Notice
of Appeal.

Petition of Appeal

The Petition of Appeal, as per Section 307(4) CPC, should be lodged within 14 days after the
Sessions Court serves a copy of the grounds of decision. It should also be addressed to the High
Court and include:

1. Appellant's Information: Similar to the Notice of Appeal.

2. Case Details: Similar to the Notice of Appeal.
3. Grounds of Appeal: The Petition of Appeal needs to elaborate on the grounds for
challenging the conviction and sentence. In this scenario, the grounds could include:
o The Sessions Court Judge's failure to provide reasons for rejecting the stay of
execution application. This could be argued as a violation of natural justice and
procedural fairness, as Halim Bad was not given an opportunity to understand
the reasons for the rejection.
o The severity of the sentence, particularly the whipping, which could be argued
as excessive or disproportionate to the offense.
o Any other potential errors in law or fact that might have occurred during the
trial, affecting the conviction or sentence.
 4. Prayer for Relief: The Petition of Appeal should conclude with a request to the High
Court to set aside the conviction and sentence, grant a stay of execution pending the
appeal, and any other appropriate relief.

By including these elements in the Notice of Appeal and Petition of Appeal, Mr. Sree Lawan can
effectively present Halim Bad's case to the High Court and increase the chances of a favorable
outcome, including a stay of execution pending the appeal's determination.
Question 6(a) – Open court & in camera proceedings (Section 7)

The Criminal Procedure Code (CPC) of Malaysia lays down the legal framework for the
prosecution of an accused person in a criminal case. The CPC addresses both open court
proceedings and "in camera" proceedings, each with its own set of regulations.

(i) Open Court Proceedings

The general rule in criminal trials is that they must be conducted in open court. Section 173 of
the CPC, which outlines the procedure for summary trials, and Section 259, which deals with
the postponement or adjournment of proceedings, both imply that trials should be held in open
court. The principle of open justice is also enshrined in Section 7 of the CPC, which states:

The place in which any criminal Court is held for the purpose of inquiring into or trying
any offence shall be deemed an open and public Court to which the public generally
may have access.

This means that members of the public have the right to attend and observe court proceedings.
The rationale behind this is to ensure transparency and accountability in the administration of
justice.

(ii) "In Camera" Proceedings

However, the CPC also recognizes certain situations where it might be necessary to conduct
proceedings "in camera," meaning in private, excluding the public. The specific provisions
allowing for in-camera proceedings include:

 Section 265A of the CPC allows for in-camera proceedings when a witness for the
prosecution refuses to have their identity disclosed and wishes to give evidence in a
manner that protects their identity from the accused and their counsel.
 Section 338(2) of the CPC allows a Magistrate conducting an inquiry into a death to
exclude the public or specific individuals at any stage of the inquiry on special grounds
of public policy or expediency.
 Section 172C(4) of the CPC mandates that the examination of the accused in a plea
bargaining application be conducted in camera to ensure the voluntariness of the
application.

In these instances, the court has the discretion to exclude the public to protect the interests of
witnesses, maintain public order, or ensure the fairness of the proceedings.

In conclusion, the general rule is that criminal trials in Malaysia are conducted in open court.
However, the CPC provides for specific exceptions where proceedings can be held in camera to
protect certain interests or ensure the proper administration of justice.
Question 6(b) – Witness (S399 & S425)

The chemist can still give oral evidence in court even though the chemist report has been
served on the accused before the trial begins. The Criminal Procedure Code (CPC) does not
prohibit the calling of an expert witness to give oral evidence merely because their report has
been served on the accused. The service of the report is intended to give the accused notice of
the evidence that the prosecution intends to rely on, and to provide them with an opportunity
to prepare their defense. It does not, however, preclude the prosecution from calling the expert
to give oral evidence in court.

The relevant provision in the CPC is Section 399(1), which states that an expert 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." The provision does not limit the admissibility
of oral evidence from the expert even if their report has been admitted into evidence.

In fact, calling the expert to give oral evidence can be beneficial for both the prosecution and
the defense. The prosecution can use the expert's testimony to clarify any ambiguities in the
report and to address any challenges raised by the defense. The defense, on the other hand,
has the opportunity to cross-examine the expert and challenge their findings.

Therefore, Judge Suzana New should allow the chemist to give oral evidence, even though the
chemist report has been served on the accused. The chemist's testimony can provide valuable
insights into the analysis conducted and the conclusions reached, aiding the court in its
determination of the facts.
Question 7(a) – Appeal to FC

The general rule under the Criminal Procedure Code (CPC) is that the Court of Appeal is the
final appellate court for criminal matters. However, there are exceptions where an appeal can
be made to the Federal Court. The relevant provision in this case is Section 374 of the CPC,
which states:

Any person aggrieved by any decision or direction of the High Court under this Chapter may
appeal to the Federal Court within thirty days from the date of the decision or direction
appealed against.

The "Chapter" referred to in Section 374 is Chapter XXXVI, which deals with "Directions of the
Nature of a Habeas Corpus." The provision allows for appeals to the Federal Court against
decisions of the High Court related to habeas corpus applications.

In Song Lap's case, his application to strike out the charge was not a habeas corpus application.
It was a procedural application challenging the validity of the charge. Therefore, Section 374
does not apply, and he cannot appeal the Court of Appeal's decision to the Federal Court. The
Court of Appeal's decision is final in this matter.
Question 7(b) – Section 107 – 111 (power to investigate)

The grounds raised by Tom Kurus' defense counsel, Mr. Sitham Garang, during the trial are not
valid. The argument that the police had no right to investigate and that Tom Kurus is entitled to
an acquittal due to the absence of a written police report is incorrect. The Criminal Procedure
Code (CPC) allows the police to initiate an investigation based on various sources of
information, not just written police reports.

The relevant provision in the CPC is Section 107, which states:

(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.

This provision clearly indicates that information about an offense can be given orally, and the
police officer is then required to reduce it to writing. The CPC does not mandate that the
information must originate from a written police report filed by the victim.

Furthermore, Section 109(1) of the CPC empowers any police officer not below the rank of
Sergeant or any officer in charge of a police station to exercise the special powers of
investigation in any seizable case without the order of the Public Prosecutor. Robbery under
Section 392 of the Penal Code is a seizable offense, meaning the police can arrest and
investigate without a warrant.

The defense counsel's argument that the victims themselves should have lodged a police report
is also flawed. While victims are encouraged to report crimes, it's not a prerequisite for the
police to initiate an investigation. The police have a duty to investigate any credible information
they receive about a seizable offense, regardless of its source.

In conclusion, the absence of a written police report does not invalidate the investigation or
entitle Tom Kurus to an acquittal. The police were within their rights to investigate based on the
information provided by Ms. Ain, and the subsequent charge against Tom Kurus is valid. The
defense counsel's preliminary objection should be overruled.