Lecture 2 Commencement Of Court Proceedings & Police Investigations

I. COMMENCEMENT OF COURT PROCEEDINGS

Commencement of Proceedings
- if a wrong has been done which is non-seizable do not normally look to the police for assistance
[A] Complaint to Magistrate
- you have to initiate the prosecution yourself (i.e. your client himself, or you on your client’s behalf), as
provided for under s. 116 CPC (wrong section?) so that when your client makes a police report, it will
be referred to a magistrate and your client will have to go to the Registrar’s Chambers and make a
formal complaint
- client will then be taken before the magistrate to swear or affirm it
- magistrate then decides whether the complaint discloses an offence
- if he finds that no offence is disclosed, the magistrate will refuse to issue a summons
- on the other hand, if the magistrate finds an offence, he is bound to issue process, but before doing so, it
is the practice for the magistrate to make an attempt to try and settle the matter between the two
opposing parties
- an attempt at reconciliation
- magistrate may, instead of issuing the notice, direct the police to investigate the matter
- what remedy do you have if the magistrate nevertheless decides that he will not issue a summons? 
this is not an order, but the magistrate is obviously exercising a judicial discretion
- if the exercise of that discretion is perverse, you are at liberty to apply to the High Court for a writ of
mandamus
[B]
- as a private citizen, you too can apply for a warrant of arrest if you want to exercise your rights of
private prosecution
- the procedure is the same
- briefly that is how you get the court process started; either by way of summons or by way of warrant of
arrest

- The CPC uses the concept of “taking cognizance of an offence” – link this to concept of starting a case in
court.

SEIZABLE OFFENCES – print adobe lecture pg for the charts

1. Offence committed
-> FIR -> Investigations -> Arrest & Investigations - 48 hrs - Charge in court/
Release on Station Bail - NFA or Stern warning (consult AGC)
- See Sched A CPC – to see whether offence is seizable. Column 3.

2. Magistrate’s Complaint
- s. 128(1)(a) CPC - Magistrate can take cognizance of an offence on complaint

NON-SEIZABLE OFFENCES
Offence committed
FIR
Investigations
Police not to charge/ Police to charge – No Further Action –Complainant to charge
Lodge Magistrate’s Complaint
Magistrate to Issue Summons or Warrant

Distinctin bet seizable and non seizable

Procedure for securing appearance of accused: Four ways in which an accused may be produced before a
court:
First appearance:
(a) His arrest without a warrant, followed by his being released on police bail to attend court on a specified day.
(b) His arrest without a warrant, but he is held in the police station until he is brought before the Court. – must
be prod within 48 hrs s36 CPC

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(c) Laying of a complaint before a Magistrate resulting in the issue of a summons requiring the accused to
attend court on a specified day. – for non seizabke offences
– Or in some instances magis may see reasoin to believe tt accusd may absconid or has absonicded
or not obey summons =>
(d) As in (iii), save that instead of issuing a summons the magistrate issues a warrant for the accused to be
arrested and brought before the court or, alternatively a warrant backed for bail by virtue of which the the
accused is arrested and then released on bail under a duty to attend court on a specified day: see CPC, s
54(a).
– Ie with or without bail

– • A general distinction between the two modes of arrest and a summons is that the former involves questions
of bail whilst the latter generally does not. However, the court can also impose bail in a summons case
(Taylor v PP [1989] SLR 540).

Facts
The appellant Taylor was summoned to attend court to answer charges under the Companies Act (Cap 50).
On the date of the summons, he appeared before the magistrate who released him on bail of $150,000 in one
surety. Taylor appealed against the magistrate’s order on the ground that the magistrate had no power to make
such an order. His main argument was that he appeared before the court on a summons, he did not come
within the category of persons contemplated in s 351 of the Criminal Procedure Code (Cap 68) (‘the Code’).
Held, dismissing the appeal:
(1) The magistrate was correct in his interpretation and application of Sch A of the CPC in holding that an
offence under s 402(1)(c) of the Companies Act was a bailable offence.
(2) Section 351 of the CPC applied to all cases of persons accused of bailable offences. It was not intended
that s 351 only applied to bailable offences where arrest of the accused had been effected prior to his
appearance in court. If the legislature had intended that the accused should first be arrested, they would have
worded the section accordingly.
(3) A person who ‘appears’ before a court in obedience to a summons, was considered to have surrendered
himself to the custody of the court.
(4) The magistrate exercised his discretion correctly in requiring bail of $150,000 in one surety as the
charge under s 402(1) of the Companies Act was a grave one. The appeal was accordingly dismissed.

 Also arrest – must go into dock; summon s- stands outside dock – if tand strial, sits at
table behind counsel
– • An accused may be offered police bail after his arrest, but once the accused is formally charged in Court
and pending the disposal of the case, fresh bail would usually be offered at the first mention by the Court. –
this is called court bail
 if don’t want cient to be in lockup – muyst come prepared with bailor and collateral for
the bail
 benchmarks for bail has ben published – also see lit on bail on website

Classification Of Cases

Arrest cases:
– (1) District Arrest Case (DAC); or
– (2) Magistrate’s Arrest Case (MAC)
– • The classification into DAC or MAC is made by the prosecution with reference to the hearing and
sentencing jurisdiction of the District Courts and the Magistrates’ Courts.

Summons cases:
(i) Police Summons (PS);
(ii) Private Summons (PSS) – where complainant is private individual ;
(iii) Classified according to the abbreviation of the prosecuting department – e.g. MOM, OA, BCA etc –
enforcement other than by police .
– • All charges are registered in the Crime Registry and the DAC, MAC, PSS, PS and PIC (for capital cases
or cases to be heard in HC – prelim inquiry case) numbers assigned. The classification is usually stamped on
the top right hand corner of the charge sheet.

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1. Arrest Cases (Charging in Mention Courts)

- Magistrate’s Court may take cognizance of an offence (which the Court must have jurisdiction to hear) on
any person brought before the Court in custody

S. 128(1)(d) CPC –
Cognizance of offences by Magistrate’s Court.
128. —(1) Subject to this Code, a Magistrate’s Court may take cognizance of an offence —(d) on any person
being brought before the Court in custody without process accused of having committed an offence, which the
Court has jurisdiction either to inquire into or to try.

- Upon arrest, the police shall without unnecessary delay and in any event within 48 hours produce a person
arrested before a Magistrate’s Court. => police cannot detain him beyond 48 hrs.
- Upon arrest without a warrant, the police shall without unnecessary delay, within 48 hrs produce a person
arrested before a Magistrate’s Court.

Section 35 & 36 of the CPC

How person arrested is to be dealt with.
35. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the
provisions herein as to bail or previous release, take or send the person arrested before a Magistrate’s Court.
Person arrested not to be detained more than 48 hours.
36. —(1) No police officer shall detain in custody a person arrested without a warrant for a longer period than
under all the circumstances of the case is reasonable.
(2) Such period shall not exceed 48 hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate’s Court.

Procedure: before trial

- Accused physically brought before a Mention Court (Ct 26, 23 – criminal cases) for charge to be tendered
against him
- Assignment of case number
o District Arrest Case eg. DAC 3546/2005
o Magistrate’s Arrest Case eg. MAC 2246/2005
  note that there is no power to put a criminal behind bars if there is a single MAC
charge, hence the MAC charges should be upgraded.
o Preliminary Inquiry Case – given to HC case eg. PIC 16/2005
o Juvenile Courts e.g. JAC
• How to charge accused with capital charge? – case triable only with HC (death
penalty). But first bring to ct 26 and get prelim inquiry
• So must first be charged in sub court and then give a PIC number and subseq pros
must go through PI, tender evid and show prima facie case against accused. Trial
will take place in HC
• Ie two stages
- Plea taken / No plea taken
• Accused pleads guilty -> dealt with immediately or at further mention
• Accused claims trial -> Pre Trial Conference. At PTC, to decide on witnesses, whether going to
use accused confessions etc.
• Plea taken (for plead guilty cases); or case adjourned for further mention/PTC
o  the accused who pleads guilty successfully, is sometimes sentenced immediately.
o In practice the case will be adjourned for a few mentions for parties to ready the case
before it is transferred to one of the Judge-manager courts for PTC.

- Holding Charge

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 o  temporary charge, further investigation due, case adjourned for 2 weeks.
o  sometimes plea can be taken for this, and case is referred to case management

Power to postpone or adjourn proceedings.

198. —(1) If from the absence of a witness or any other reasonable cause it becomes necessary or advisable to do
so the court may, by order, postpone the commencement of or adjourn any inquiry or trial on such terms as it
thinks fit for such time as it considers reasonable and may, if the accused is not on bail, by a warrant remand the
accused in such custody as the court thinks fit.
(2) No Magistrate’s Court shall remand an accused person to custody under this section for a term exceeding 8
days at a time.
(3) Every order made under this section by a court other than the High Court shall be in writing signed by the
Magistrate or District Judge and shall state the reasons for it.
Explanation..—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed
an offence and it appears likely that further evidence may be obtained by a remand this is a reasonable cause for
a remand.

• Court may exercise s198(2)CPC powers to remand accused if investigations not completed.
- During this period, although accused has a Art 9(3) Constitution and s 195 CPC right to
counsel, this right to counsel is not immediate, but arises within a reasonable time after arrest.
- There is a balance between the public interest for investigations to be completed and the
interest of the accused to have early legal advice.
- In Jasbir Singh v PP it was held that 2 weeks was a reasonable time.

Procedure: Summary trial

Procedure in summary trials.

180. The following procedure shall be observed by Magistrates’ Courts and District Courts in summary trials:
(c) if the accused refuses to plead or does not plead or claims to be tried, the court shall proceed to hear the
complainant, if any, and to take all such evidence as is produced in support of the prosecution;

• Summary trials are conducted in open court unless there are good reasons why they should be heard in
camera(chambers) s7 Sub Courts Act
• Trial commences with reading and explanation of charge to accused. Loh Siang Piow v PP
• Copies of the charge are tendered by the prosecuting officer to the accused and court.
• The charge must be read and explained to the accused in a language he understands. If the accused elects a
foreign language, the court is duty bound to arrange for a foreign interpreter.
- This is a statutory safeguard Section 209 CPC, and it is the court’s duty to ensure that the
accused is substantially able to comprehend the proceedings Mat Repin bin Mamat v PP:

Interpretation of evidence to accused.

209. —(1) Whenever any evidence is given in a language not understood by the accused and he is present in
person, it shall be interpreted to him forthwith in a language which he understands.
(2) When documents are put in for the purpose of formal proof, it shall be in the discretion of the court to
interpret as much of them as appears necessary.

• The PP may discharge an accused at any stage of the summary trial before judgment is delivered.

Public Prosecutor may decline further to prosecute at any stage of summary trial.
184. —(1) At any stage of any summary trial before judgment has been delivered, the Public Prosecutor may, if
he thinks fit, inform the court that he will not further prosecute the defendant upon the charge and thereupon all
proceedings on the charge against the defendant shall be stayed and he shall be discharged from and of the same.
(2) Such discharge shall not amount to an acquittal unless the court so directs except in cases coming under
section 177.

2. Magistrate’s complaint

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Section 128(1)(a) CPC
Cognizance of offences by Magistrate’s Court.
128. —(1) Subject to this Code, a Magistrate’s Court may take cognizance of an offence — (a) upon receiving a
complaint as defined by this Code;

- “Complaint” - allegation made orally or in writing to a Magistrate with a view to his taking action under this
Code that some person whether known of unknown has committed or is guilty of an offence. (s.2 CPC).
o Ie tender charge against person before a magistrate.
- Discretion to take cognizance of offence on complaint: Tan Hoe Watt v PP [1980] 2 MLJ 46 (HC , Kota
Bahru)

Tan Hoe Watt v PP [1980] 2 MLJ 46 (HC, Kota Bahru)

- Facts:
o The President of the President Sessions Court directed the appellant to lodge a police report
regarding complaints of assault and criminal intimidation, instead of examining the appellant under
Section 133 of the Malaysian CPC. Appellant appeals. The issue to be decided was whether the
President had the discretion to take cognizance of an offence on complaint or whether it was
mandatory on his part to take such cognizance.
- Held:
o A Magistrate is not bound under the law, immediately upon a complaint either orally or in writing
by any complainant, to proceed to take cognizance of the complaint;
o Before it can be said that a Magistrate had taken cognizance of an offence under Section 133 he
must have applied his mind to the offence for the purpose of proceeding with the matter;

(i) Who can make a complaint?

(a) Police / enforcement officers
- For non-seizable offences

(b) Private Individuals/Companies

- Police/AGC may decide not to prosecute eg. Simple hurt cases involving domestic disputes

(ii) Procedure
Procedure
a) if the complaint is made in writing, proceed to take cognizance if warranted, as under the CPC
(b) if it is an oral complaint either in open court or in chambers, if the Magistrate is not having other important or
urgent matter, proceed to hear the complaint and take cognizance if needs be. Otherwise request the complainant
to make a written complaint and proceed as under (a) above;
(c) if it is an oral complaint by a person produced before the Magistrate for remand or for an extension of
remand, where there is difficulty in filing a written complaint and where there is allegation of police assault, the
Magistrate should hear the complaint straightaway if he is free. If he is not free, to fix another earliest available
date to do so. The Magistrate may advise the complainant to lodge a police report if he has not done so and order
that the complainant be medically examined if there is an allegation of assault. If there is any difficulty of getting
an early date of hearing, the Magistrate should try and get another Magistrate to hear the complaint
(d) if there is allegation of police assault connected with a cautioned statement made by the complainant, the
assault case should be heard earlier than the complainant’s own matter.
(e) if the complainant makes the complaint at the beginning of the hearing of his own case, then preferably the
Magistrate should not take cognizance of the complaint, as in not making the complaint earlier, the complainant
obviously seeks to delay the trial. The complainant can nevertheless file the complaint even after the criminal
case against him has been completed.

- When Magistrate takes cognizance of an offence, he shall:

o examine the complainant upon oath/affirmation (s.133(1) CPC ); and
o reduce into writing substance of examination (s.133(2) CPC)
o Examination of complainant: Re Rasiah Munusamy [1983] 2 MLJ 294 (HC, Penang)
Re Rasiah Munusamy [1983] 2 MLJ 294(HC Penang), refd Datuk Seri S Samy Vellu[2000] (HC KL)

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- Facts: accused filed a complaint regarding illicit enticement of wife. Magistrate did not examine
complainant upon oath/ reduce complaint into writing. Merely called him up, unrecorded interview.
- [Held] Requirements are mandatory, must be rigidly followed to enable magistrate to decide on veracity of
complaint. If not followed, encourages mischievous complaints.
- This is a sort of preliminary enquiry to see if case made out. Complainee has no locus standi to appear
before the court as a party for he is not yet an accused person. Cannot claim right to be represented. But he
may sit in and be heard as a member of the public. Care though must be taken not to consider the merits of
the defence’s case, so as not to turn it into a trial before a trial.

Examination of complainant.
133. —(1) When a Magistrate takes cognizance of an offence on complaint he shall at once examine the
complainant upon oath.
(2) The substance of the examination shall be reduced to writing and shall be signed by the complainant and also
by the Magistrate
(3) This section shall not apply to —
(a) a complaint made by a police officer or by a public servant as defined in the Penal Code acting in his public
capacity in respect of an offence punishable with imprisonment for a period not exceeding 6 months or with fine
only; or
(b) a complaint by a public officer in respect of any offence against any law relating to local government or any
by-laws or rules made thereunder for the time being in force, provided that the complaint is in writing and signed
by the police officer or public servant

- No examination necessary where complainant is a police officer/public servant acting in official capacity;
Magistrate bound to take cognizance (s 133(3) CPC)
- Upon taking cognizance of complaint, Magistrate may :
o if there is reason to doubt the truth of the complaint, inquire into case himself or direct the police to
investigate - s.134(1) CPC
o if there is no sufficient ground for proceeding, dismiss the complaint - s.134(2) CPC

Postponement of process.
134. —(1) If the Magistrate sees reason to doubt the truth of a complaint of an offence of which he is authorised
to take cognizance, he may record his reason for doubting the truth of the complaint and may then postpone the
issue of process for compelling the attendance of the person complained against and either inquire into the case
himself or direct some police officer to make inquiries for the purpose of ascertaining the truth or falsehood of
the complaint and report to him the result of those inquiries.
(2) The Magistrate may dismiss the complaint if after examining the complainant and recording his examination
and considering the result of the inquiry, if any, there is in his judgment no sufficient ground for proceeding.

o where there is sufficient ground for proceeding, issue a summons (ss.42 – 45, 136 – 137 CPC) or a
warrant (ss.46-50, 54-55 CPC)
 need court order/ charge. If complainee does not appear, court can issue a warrant of
arrest. Charge will then be tendered to the complainee.
o Principles governing dismissal of complaint:
 Lim Thian Huat v Fozdar [1974] 1 MLJ 56 (HC Kuching)

Lim Thian Hunt v Fozdar [1974] 1 MLJ 56 (HC Kuching)

- Facts:
o The appellant made a police report alleging Dr Fozdar committed the offence of intentionally using
force. The police investigated the matter and recommended no further action. The State Advocate-
General to whom the matter was referred by the appellant decided that no criminal prosecution
should be instituted by the police. The appellant then made a complaint to a magistrate but he
alleged that the magistrate did not reach any decision in the matter. The appellant then obtained an
order of mandamus for the complaint to be considered by the magistrate. The learned magistrate
after considering the report of the police investigations dismissed the complaint and stated his
reasons for doing so. The appellant appealed against the order of the learned magistrate.
- [Held]

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 o the magistrate had considered all the materials which he had to consider and there was nothing
improper in the order passed by him. There was nothing in law to prevent the magistrate from
looking at the report of the police investigations, which were completed before the complaint to
him was made. Magistrate may exercise discretion whether to dismiss complaint.
o Since the magistrate had formed his own conclusions regarding the question of prima facie case
after due consideration of the statement of the complainant and had given his reasons for
dismissing the complaint, there were no grounds for interfering with his order.

- Once summons or warrant issued, normal criminal trial procedure applies

- In private summons cases, parties argue themselves or engage counsel to do so
- Where a private summons ends in an acquittal, PP’s concurrence is required for filing an appeal s.245
CPC
o why does PP have right to intervene – he has sole discretion to decide whether to institute
proceedings, what charges to prefer and how many charge to prefer. He is who state has entrusted
proceedings with. Discretion cannot be questioned. If decides not to charge, can do nothing about
it.
- No right of appeal in private prosecution without PP’s concurrence: Hawa bte Haji Mohamed Hussain v CJ
Miranda [1988] 3 MLJ 397 (HC, Singapore)

Hawa bte Haji Mohamed Hussain v CJ Miranda [1988] 3 MLJ 397 (HC, Singapore)
- Facts:
o The respondent was tried and convicted of the offence of voluntarily causing hurt to the appellant.
The magistrate gave him a conditional discharge for one year. Not satisfied with what she
considered to be a manifestly inadequate sentence, the appellant (who originally brought the
private summons against the respondent) filed a notice of appeal under S 247(1) CPC.
o At the commencement of the hearing of the appeal, the DPP appeared and submitted that the notice
of appeal should be rejected, and the Public Prosecutor was intervening to withdraw the appeal.
The Public Prosecutor relied on Art 35(8) of the Constitution for his submission, adding that
Section 247(1) of the Code should be read with s 336(1). The appellant, on the other hand,
contended that on a reading of s 247(1), the appellant, being a ‘party’ to the criminal matter below,
should not only have the right of appeal but a right of audience either by herself in person or by
counsel.
- Held:
o Appeal was dismissed. The Public Prosecutor under Section 336(1) CPC had the control and
direction of proceedings under the Code. Since the appeal before the court was a proceeding under
the Code, the Public Prosecutor could properly in his discretion intervene and withdraw the appeal.
His discretion was entrenched in Art 35(8) of the Constitution.

Procedure for appeal.

247. —(1) Subject to sections 242, 244 and 245 any person who is dissatisfied with any judgment, sentence or
order pronounced by any District Court or Magistrate’s Court in a criminal case or matter to which he is a party
may prefer an appeal to the High Court against that judgment, sentence or order in respect of any error in law or
in fact or, in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or
inadequate by lodging, within 10 days from the time of the judgment, sentence or order being passed or made,
with the Registrar of the Subordinate Courts at the court house at which the trial was held, a notice of appeal in
triplicate addressed to the High Court.

Public Prosecutor.
336. —(1) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of
criminal prosecutions and proceedings under this Code.

- [ Bail/ remand order – no bail will be granted. Police conduct further investigations. Then go back to magis
after a week, may apply for further remand. Up to magistrates to grant.]

II. POLICE INVESTIGATIONS

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Exam – case scenario!!! Accused do sth, police do sth, qn – what can the police do? What is the FIR?
Must read the cpc provisions themselves! See the words, see what powers the police have. Are they
entitled to arrest etc.

1. Commencement of Investigations (First Information Report)

(i) What is a First Information Report (FIR)?

- The first information report is a report of information received by the police relating to the commission of
an offence of which no previous information has been received.
- Consider whether a police investigation has begun when the report is made.
- Section 115 and Section 116 of the CPC governs this.
o procedure at the police station when information is received about the commission of a crime  s.
115 requires a police officer upon receiving oral information of the commission of an offence to
make a note of that information

Information of offences.
115. —(1) When information is received at a police station relating to the commission of an offence, being an
offence of which it appears that no previous information has been received in the station, the officer in charge
of the police station or any police officer whose duty it is to receive reports shall proceed according to one of the
following subsections.
(2) If the information is in writing, he shall forthwith mark on it the date and time of receipt, and, if
practicable, the name and address of the person (other than a postal messenger) by whom it was delivered, and
if it purports to be signed by the informant, he shall file it as a report
(3) If the information is given orally and he considers it practicable to reduce it to writing forthwith, he shall
record or cause to be recorded in a book kept for this purpose a report containing the name and address of the
informant, the date and time of his arrival at the station, the substance of the information and such other
particulars as the nature of the case may require, and the report shall be signed by the informant, by the recording
officer, and by the interpreter, if any.
(4) If the information is given orally and it appears to him impracticable to proceed forthwith under subsection
(3) he shall immediately make a note of first information in the station diary, and if the offence is seizable as
soon thereafter as circumstances permit, a fuller statement by the informant shall be recorded under section 121.
(5) For the purposes of this section, the office of any branch or sub-branch of the Criminal Investigation
Department or the Radio Division of the Singapore Police Force shall deemed to be a police station.

Information in non-seizable cases.

116. —(1) When the information so received or recorded under section 115 relates to a non-seizable offence the
case shall thereupon be investigated or the informant shall, by order of a police officer, be referred to a
Magistrate.
(2) No police officer shall in a non-seizable case exercise any of the special powers relating to police
investigations given by sections 120, 121, 125 and 126 without the order of the Public Prosecutor or a
Magistrate.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation, except
the power to arrest without warrant, as that police officer may exercise without an order in a seizable case.
(4) Any informant referred to a Magistrate shall be supplied with a copy of any report filed or recorded under
section 115 on which shall be endorsed the name of the police station at which the information was received.

- Information FIRST received at a police station relating to the commission of an offence of which no
previous information has been received - s.115(1) CPC. eg the very first call received relating to a stabbing.
o Say if FIR was erroneous. Witness will have to explain why in court.
- Radio Division (‘999’ calls) deemed a police station - s.115(5) CPC
- Possible not to have FIR: While an FIR often sets in motion police investigations, it is not a
condition precedent to the commencement of investigations.
- EXAM – there may be no FIR at all! Eg before any witness etc calls police, some police officer grabs the
accused and brings him to the police station. Ie investigations have already begun.

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(ii) Procedure when FIR is Received
- A) Written information - date and time made, name and address of informant - s.115(2)
- B) Oral information
o if practicable, reduce into writing in a book kept for this purpose, name and address of informant,
particulars of information (- s.115(3)
o if impracticable, make a note in Station Diary and , and if offence is seizable ASAP a fuller s121
statement (Section 115(4) CPC); record statement later - s.115(4). May not be possible always to
identify the informant. Police will still tender the report to court.
o  a failure to reduce the FIR into writing may render it inadmissible as evidence in court. *PP v
koo chee see 1970 1 MLJ 97 (except when impeahcin gmaker of FIR
o alternatively, failure to reduce into writing means tt without FIR, proseucito case is weakened –
s116 EA illustration (g)
- If FIR discloses
o Non-seizable offence (Section 116 of the CPC)
 Investigate or refer informant to Magistrate. Police do not have the powers of
investigation under s 120,121,125,126 CPC, unless PP or Magistrate so orders. (i.e.
powers of investigation, compel witnesses, take Evidence, etc.)
o Seizable offence (Section 118 of the CPC)
 Exercise powers of investigations under Section 120, 121, 125, 126 CPC.(below)

(iii) Significance of a FIR - EXAMS!

- Give information on a cognizable offence to the police so as to set them in motion. Need not contain
elaborate details of offence, nor need it disclose the entire case for the prosecution PP v Pardeep Singh
[1999] 3 SLR 116 (CJ YPH)
o “…main purpose of the FIR was to inform the police of a possible offence having been committed
and to get them down to investigate the scene.”
o purpose of a FIR is to give information of a cognisable offence to the police so as to set them in
motion. It need not contain elaborate details of the alleged offence, not is it necessary for the FIR
to disclose the entire case for the PP

- Record circumstances before they are forgotten or embellished. Very contemporaneous.

o Emperor v Khwaja Nazir Ahmad [1945] AIR 18 (PC) – suggests that if there are 2 FIRs in a case,
relating to 2 separate offences
- See also khee kim seong 1952 2 MLJ 54; tan chee hwee 1972 2 MLJ 115
- Statements made to police after FIR lodged generally inadmissible in evidence (s122(1) CPC : no
statement made by any person to a police officer in the course of a police investigation shall be used in
evidence … )
o PP v Ramasamy [1939] MLJ 163: If the fact that an investigation has commenced and is being
conducted in some form or other is the cause or occasion of a statement being made, or if the
statement results or proceeds from any act done in the investigation, then the statement is made in
the course of the investigation within the meaning and intent of, and is inadmissible under, s 113 of
the Criminal Procedure Code.
- Conversely, all evidence gathered before FIR is lodged is admissible subject to relevancy
- evid by witnesses usu inadmissible, DPP not under any olig to hand them over to defence counsel.
- On when investigations are said to have commenced :

Vellasamy v PP (1941) 1 MLJ 233

- Facts:
o Appellant was convicted under s 34(1) Minor Offences Ordinance, on a charge of stealing a $5
fountain pen. On appeal, the conviction was quashed as it was found that there was no ground for
suspicion against the accused. The question arose whether certain statements made by the accused
to the Police were admissible.
- [Held]

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 o Whether a statement made to the Police by a person accused was admissible depended on (a)
whether or not the admission was a confession and (b) whether or not the admission was made in
the course of a police investigation under Chapter XIII of the CPC;
o If 1) the accused were not under arrest at the time when he made the statement.; and 2) the
statement was not made in the course of an investigation under Chapter XIII of the CPC; and 3) the
statement was not a confession, Then the statement made by the accused in answer to the
detective’s or constable’s question was admissible in evidence
o the offence with which the accused was charged was one for which the Police may ordinarily arrest
without warrant and the offence was a seizable one.

Lim Kim Chuan v PP [1948] MLJ 117

- Facts:
o 6 grounds of appeal, 5 contended that the Magistrate erred in law in admitting hearsay evidence. 1
ground of appeal contended that the statements made to the police in the course of a police
instigation were wrongly admitted. Question as to when the investigation should be deemed to
have been started.
- [Held]
o A conviction following the admission of inadmissible evidence is not necessarily bad, if there is
sufficient admissible evidence on the record to enable the Court to come to its finding
o Where a statement is made to a Police Officer in the course of the investigation it is immaterial
whether the offence is seizable or non-seizable;
o once the suspicion of a Police Officer has been aroused to such an extent as to cause him to
proceed to any action, then investigation has been commenced  statement inadmissible

Ng Yan Pee v PP [1959] 5 M.C. 249

- the time when investigations are said to have commenced is a question of fact.
- Facts: There was a tape recording of a bribe attempt, and the policeman was telling his superior.
- This was held to be a discussion with his superior, and investigations had not started

(iv) Evidential Value of a FIR

- Defence is entitled to the FIR.
- s.117 CPC - admissible as evidence of contents of information as well as of the date, time and place
- the information was received
o contents of FIR viewed in context. Does not need to be strictly accurate given the contemporaneity
of the circumstances

Admission of certified copy of information as evidence of original entry.

117. —(1) In any proceeding under this Code, a copy of a report received or recorded under section 115 (2) or (3)
or of a note made under section 115 (4) and in each case purporting to be certified as a true copy by a police
officer not below the rank of inspector in charge of the police station where the information was received shall be
admissible as evidence of the contents of the original and of the date, time and place at which the information
was received

- FIR, though important and its absence may weaken prosecution’s case, is not substantive evidence

PP v Fong Chee Cheong [1970] 1 MLJ 97

- Facts:
o Respondent charged with extortion. Complainant made an oral FIR and the police acted on it. The
magistrate acquitted the respondent without calling on his defence on the grounds:
 the report of the complainant had not been reduced to writing in the first instance and the
absence of the first information report made the arrest of the accused void in law;
 the only evidence that could corroborate the evidence of the complainant was that of his
employee and relative who was very much an interested party.
- The Public Prosecutor appealed.
- Held: Allowing the appeal:

10
 o However important a document a first information report is, it can never be treated as a piece of
substantive evidence and the fact that no first information report was made is not itself a ground
for throwing out a case;
o There is no legal presumption that an interested witness should not be believed; he is entitled to
credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary
and the surrounding circumstances.
- Comments: generally absence of a FIR casts a cloud of suspicion and tends to weaken the prosecution case.
However, this did not happen in Fong Chee Cheong.

• But where the case depends entirely on complainant’s evidence, failure to produce FIR deprives accused of
cross examining his accuser and court may presume under s 116 illustration (g) of the Evidence Act that
FIR is unfavourable to prosecution.

Court may presume existence of certain fact

116. The court may presume the existence of any fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct, and public and private business, in their relation to the
facts of the particular case.
(g) that evidence which could be and is not produced would if produced be unfavourable to the person who
withholds it;

Tan Cheng Kooi v PP [1972] 2 MLJ 115

• Facts: Appeal by the accused against their conviction on extortion. In this case, the FIR was oral, and no
written report was subsequently produced at trial. Hence all the evidence against the appellants came
entirely from the complainant.
• [Held] Allowing the appeal
- “…a misconception that the first information or police report should contain the entire case for the
prosecution … main purpose was merely to give information of a cognizable offence to the police
so as to set them in motion. The fact that such details were not mentioned in the report was
therefore irrelevant.”
- Where the case against the accused depended entirely on the evidence of the complainant, the
failure to produce the FIR would deprive the accused of an opportunity to cross-examine his
accuser, and which would raise the presumption under [equivalent to s116 in old EA], that the
report would be unfavourable to the prosecution case. Therefore, in the present case, the conviction
of the accused cannot be upheld.

• If there are material discrepancies between the FIR and the informant’s or complainant’s testimony in court,
the report can be used to impeach the credibility of the witness as a previous inconsistent statement:
- Tan Pin Seng v PP [1998] 1 SLR 418.
- Furthermore the credibility of the maker will be severely affected if the offence in the FIR is
entirely inconsistent with the charge that the accused is facing: Sahadevan s/o Gundan v PP
[2003] 1 SLR 145.
 “…the inconsistencies relating to … first information report could not be lightly
disregarded, affecting the credibility...”
 “..the FIR did not contain mere omissions of material facts, but that the offence disclosed
in it had been entirely inconsistent with that of which the appellant was charged and
convicted …”

(v) Right to FIR

- Accused is entitled to request for a copy of the FIR
- CPC is silent on right of accused to inspect FIR but under common law accused has the right as a person
interested in it, to inspect if it was necessary for the protection of his interest.

Anthony Gomez v Ketua Police Daerah Kuantan (1977) 2 MLJ 24

- Facts:

11
 o Appellant was charged with criminal intimidation by threatening one Mr. Vas. The appellant’s
solicitor applied for a copy of the FIR made by Mr Vas but this was refused. The appellant then
applied for an order that the OCPD supply a certified copy to the appellant. The application was
dismissed in the High Court and the appellant appealed to the Federal Court.
- Held:
o Allowing the appeal: although the CPC is silent as to the right of a person to inspect a first
information report, it is clear that under the common law the appellant has that right as he is a
person interested in it and inspection is necessary for the protection of his interest. The first
information report is admissible in evidence in the criminal trial under [equivalent of s117 CPC]
and therefore the appellant or his counsel should be supplied with a copy.

PP v Mohamed Musa van Amurullah [2002] 1 MLJ 561

- accused person must as of right be given a copy of the FIR so that he can be in a position to defend himself
by being acquainted with the facts leading to the initial complaint made against him.

- Is Anthony Gomez applicable to civil proceedings ? – accused right to ask for copy of FIR.
o Eg traffic accident. The answer is strictly speaking, this is not criminal procedure. BUT YES
Loo Fong Siang v Ketua Police [1981] 2 MLJ
- Facts:
o Applicant was involved in a road accident. As a result, he suffered serious injuries and commenced
legal proceedings against the rider of the motorcycle for damages. His solicitors applied to the
respondent for "all the police reports, sketch plan and key and photographs taken in connection
with the accident" and the respondent supplied them with all the relevant documents except the
police report made by the rider of the motorcycle.
o In reply to further requests by the applicant’s solicitor for a copy of the said report the respondent
claimed that he could not supply the report because the maker of that report was not a client of the
applicant’s solicitor. The applicant then applied to court for an order, for the report to process his
claim for damages.
- Held: Allowing the application:
o (1) A person who seeks to establish negligence on the part of someone who collided into him has a
legitimate interest in knowing what the other person’s version of the accident as given in his police
report is;
o (2) A public document is defined as "a document made for the purpose of the public making use of
it." And that is exactly what police reports under [equivalent S 115 CPC] are. If the right of the
public to have access to public documents is to be limited or curtailed, then the legislature would
have expressly so stated or it must be established that it is contrary to public interest. In the
absence of such limitations, public documents must be treated as "public documents".

- Does accused have corresponding right to statements of witnesses recorded by police?

o NO. common request but answer is no.

Husdi v PP [1979] 2 MLJ 304

- Facts:
o Accused charged with house breaking by night. His counsel applied for copies of cautioned
statements to the police, and statements recorded by the police from witnesses in the course of
investigation. Application was refused by DPP and application was made to the HC. When the
matter came up for hearing, only the application for the statements made in the course of police
investigations was pursued, as it had been held in Khoo Siew Bee v Ketua Polis Kuala Lumpur
[1979] 2 MLJ 49 that an accused person is entitled as of right to his cautioned statement.
- [Held]
o The right of an accused person to the FIR is nothing more but a consequence of his right to be
informed as soon as may be of the grounds of his arrest, under Article 5(3) of the Constitution and
this Article is an offshoot of the common law.
o On the other hand, the right to inspect a statement to the police made in the course of police
investigations, which is a statutory, not a common law, creature, would depend on the construction

12
 of the relevant statutory provisions, particularly those under the CPC. There is no provision in the
CPC or the EA, which is construable as giving a right to inspect such a statement.
o The statement made to the police in the course of a police investigation is a privileged document
and there can therefore be no right to inspect such a document. Further as a matter of public policy
it is undesirable for the prosecution to supply the defence with the police statements, as there is a
real danger of tampering with witnesses.

2. Powers of Arrest - EXAMS!!!!

- Be clear about all the powers of arrest. See factual matrix of the qn. If provisions do not apply, then there is
no power of arrest.
- Note that there are also other law enforcement officers – eg central narcotics bureau under misuse of drugs
act, CPIB under Prevention of Corruption Act. In those other acts, they will usually state that officers will
have all the powers under partr section of the CPC.
- police force have specialized units and divisions A, D, E, F, G and J
- divisional police deal with routine matters and crimes which happen within the area in which they are
responsible
- within the divisional police station, you have the Commander of the Division, and the Head of investigations
who is the most senior police officer responsible for criminal investigations, and under him the Chief
Investigation Officers
- ‘seizable offence’ is defined in the CPC as “an offence for which and “seizable case” means a case in which
a police officer may ordinarily arrest without warrant according to the third column of schedule A”, s. 2
Interpretation.
2. In this Code, unless there is something repugnant in the subject or context —
"bailable offence" means an offence shown as bailable in Schedule A or which is made bailable by any
other law for the time being in force, and “non-bailable offence” means any other offence;
"non-seizable offence" means an offence for which and “non-seizable case” means a case in which a
police officer may not ordinarily arrest without warrant according to the third column of Schedule A;
"offence" means any act or omission made punishable by any law for the time being in force;
"seizable offence" means an offence for which and “seizable case” means a case in which a police officer
may ordinarily arrest without warrant according to the third column of Schedule A;
- schedule A
- this definition is very important when it comes to powers of the police to search, powers of bail and so on

General CPC provisions

- ss.24-31 CPC : General provisions on arrest
- s.24(1) : 3 ways of effecting arrest :
(a) touching;
(b) confining; or
(c) submitting to custody by word or action
- s.28(1) : Once arrested, the person ‘shall not be subjected to more restraint than is necessary to prevent his
escape’

Arrest how made.

24. —(1) In making an arrest the police officer or other person making the arrest shall actually touch or
confine the body of the person to be arrested unless there is a submission to the custody by word or action.
If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such officer or
other person may use all means necessary to effect the arrest.

No unnecessary restraint.
28. —(1) The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

- s.24(2) : If such person ‘forcibly resists’ arrest or ‘attempts to evade arrest’, may use ‘all means necessary to
effect the arrest’
o see Mahmood v Govt of Malaysia [1974] 1 MLJ 103 on the extent of force which may be
exercised - extent of force to be exercised, may even include shooting to prevent escape “as a last
resort”.

13
Mahmood v Govt of Malaysia [1974] 1 MLJ 103
- Facts:
o Plaintiff alleged that he was unlawfully and negligently shot at and wounded by a police officer
while he was at Lake Gardens. The defence was that when the police officer fired the shots (he had
fired a warning shot into the air first as well) he was lawfully discharging his police duties to
prevent the plaintiff from escaping from the scene where an offence was reasonably suspected to
have been committed
- Held:
o On the evidence the plaintiff had failed to prove his allegations that he had been shot by the police
officer negligently and without warning. In the circumstances the police officer was not negligent
and was justified as a last resort to fire the shot to effect the plaintiff’s arrest and prevent him from
escaping.

What amounts to an arrest? EXAM!!!

1. No definition of arrest in the CPC nor at common law, question of fact in circumstances of the case:

PP v Shee Chin Wah [1998] 5 MLJ 429

- Facts:
o Accused was stopped by a police party while driving. He drove the car to the side, alighted, and
produced a pack of 12 rolls of cigarettes which had a roll of nipah leaves suspected to be ganja.
The police then found a plastic bag in the spare tyre compartment, later confirmed to be containing
cannabis. At this stage, the accused was alleged to have said, ‘itu ganja’ (that is cannibis) and
‘bagilah saya peluang’ (give me a bleeding chance lah dey).
o The accused was charged under [equivalent of MDA] for trafficking in 2.7kg of cannabis. Several
issues had to be decided by the court : (i) were the remarks – ‘itu ganja’ and ‘bagilah saya peluang’
- after the plastic bag was discovered in the boot of the car admissible; (ii) at the time of making
the remarks, was the accused already under arrest even though he was not physically arrested or
even told so; (two other irrelevant issues)
- Held:
o Generally, arrest may be actual arrest or constructive arrest. Whether a person is actually under
arrest is a question of fact to be decided according to the circumstances of each case. In this case,
the accused had been found in possession of 12 rolls of cigarettes suspected to contain cannabis,
the police did not want to hamper his movements as his assistance was still required, and further
with the view of the raiding officer that he had considered the accused to be under arrest, it was
clear that the accused was under arrest.
o In short, the discovery of the drugs upgraded the accused from a mere user to a potential trafficker
in the eyes of the police and the accused would most likely have been arrested when he made the
remarks. However, the fact that a caution was not administered after the arrest rendered the
remarks inadmissible as evidence.

2. Whether a person is arrested depends not on the legality of the arrest but whether he has been deprived
of the liberty to go where he pleases - Spicer v Holt [1976] RTR 389

3. Stopping a person to make inquiries does not amount to an arrest

Shaaban v Chong Fook Kam [1969] 2 MLJ 219

- Facts:
- Appeal against the decision of the Federal Court, which awarded the respondents the sum of
$2,500 each for false imprisonment. The respondents were arrested and detained by the police. The
police suspected that one or other of the respondents was driving the lorry from whose trailer a
timber fell which hit the windscreen of a car causing the death of one man. The lorry did not stop.
The respondents who were interrogated after the arrest denied that they were at the place of the
accident. In the Federal Court, Suffian FJ said that the information available to the police was
insufficient to prove a prima facie case against the respondents.
- Held:

14
 - (1) The test adopted by the Federal Court was incorrect as the police are entitled to arrest if a
reasonable suspicion existed of the respondents being concerned in the offence of reckless driving
and dangerous driving causing death; not necessary to show prima facie proof of such offence;
- (2) While the police had good reason AT THE TIME OF ARREST to suspect that one or other of
the respondents was driving the lorry from whose trailer the piece of timber fell, they had no
reason to suspect that the driver was driving the lorry recklessly or dangerously and therefore the
police were not entitled to arrest and detain the respondents.
- (3) AFTER interrogation of the respondents the police had reason to suspect that the respondents
were concerned in the offence of reckless driving and therefore their detention was lawful.

4. When individual is told he is being arrested or when arresting person’s words or conduct make clear
force will be used, if necessary, to prevent individual from escaping

5. Key is whether the person feels compelled to submit to authority of the arresting officer; use of the
word ‘arrest’ or physical restraint not necessary

PP v David Ackowuah Bonsu [1998] 7 MLJ 451

- Facts:
o The accused was charged under the [equivalent to MDA] for trafficking in 743.8gm of heroin. He
was found to have carried the drugs in a folder when he crossed the customs checkpoint at the
Malaysia-Thai border. The prosecution relied on a statement made by the accused when the
customs officer was about to probe the folder. Counsel for the accused contended that the
statement was inadmissible because no caution under [equivalent MDA] was administered to the
accused before it was uttered, and the accused was already under constructive arrest at that time
because he was escorted by the customs officer to the Customs Office.
o The prosecution submitted that the accused was never under arrest before the discovery of the
heroin and that he was arrested only after the substance suspected to be drugs was discovered from
the folder.
- Held:
o (Convicting the accused: irrelevant point on possession of folder)
o There was no evidence to suggest that the accused was under arrest earlier, be it constructive arrest
or actual. At that stage, the drugs had not yet been recovered from the folder. Therefore, there was
no reasonable suspicion of the commission of any offence by the accused. Having the accused
escorted by an officer while on the way to the Customs Preventive Office for questioning,and also
while in the office was merely a prudent precautionary measure taken by the authority, and did not
amount to constructive arrest of the accused.
o Shaaban followed.
Zainal bin Kuning v Michael Chan [1996] 3 SLR 121
- Neither words of arrest nor physical restraint were used, but an arrest was effected nonetheless.
- When an arrest is lawful
- Held:
o “…the first respondent clearly had credible information or reasonable suspicion that the appellants
were concerned in the crime he was investigating, and under s32(1)(a) … he was empowered to
arrest the appellants without warrant. Their arrests were therefore not wrongful.”
- Facts: The appellants claimed damages against the respondents for false arrest and malicious prosecution.
The first respondent was the officer in charge of investigations against the appellants, while the second
respondent was joined to represent the government.
- The appellants claimed that they had been under false arrest, and hence under false imprisonment. In
addition, it was said by the appellants that there was no reasonable and probable cause for their prosecution
as the statements given by them were extracted forcibly and certain matters should have been followed up.
Furthermore the prosecution itself was conducted maliciously. The trial judge, in dismissing the claims,
found that there was no false arrest, and that in respect of each of the appellants, there was reasonable and
probable cause for the prosecution. It was held that the statements were given by the appellants voluntarily.
- Held: Dismissing the appeal:

15
 o (2) A person is arrested when he is compelled to accompany a police officer, and neither words of
arrest nor physical restraint need be present. All the three appellants were under compulsion to
accompany the police officers, and they were therefore under arrest.
o (3) An arrest without warrant made on the grounds of credible information or reasonable suspicion
must be based on definite facts and founded on some definite fact tending to throw suspicion upon
the person arrested.
o On the facts, the first respondent had credible information or reasonable suspicion founded upon
information furnished by Abdul Hannan. The arrests were thus not wrongful.

PP v Rosyatimah bte Neza & Anor [1989] 1 MLJ 360

Jayamaran & Ors v PP [1982] 2 MLJ 306
Alderson v Booth [1969] 2 QB 216

Legality of Arrest?
- As long as power is in CPC. If not there then illegal, but still does not preclude court fr trying the accused of
crime for which he is arrested though accused can seek remedies for wrongful arrest.
- Saminathan v Public Prosecutor:
• Court indicated that it was not concerned with the legality or illegality of an accused person’s
arrest
• the appropriate remedy is for the accused to seek civil or disciplinary action against the arresting
authorities, such as an action for false imprisonment or malicious prosecution

1. Generally, the court concerns itself whether the charge brought against the accused is made out (or not). It is
not so concerned about the legality or illegality of the arrest. I.e. If one has done the act, or if the evidence is
relevant, the court will admit it even if illegally obtained.

2. In the case of Saminathan v Public Prosecutor, search and entry of accused’s room was illegal because
done by a police office of inadequate rank.

3. Court held illegality of the arrest did not affect its jurisdiction to try the accused, whose remedy lay
elsewhere (civil proceedings, false imprisonment or malicious prosecution)

4. Courts do have a common law doctrine of discretion to reject illegally obtained evidence, although the
decision in R v Sang (illegal undercover agents case) drastically limited the scope of this doctrine, where
the public interest in the conviction and punishment of crime prevails over other considerations. SM
Summit Holdings v PP held that Sang applied to Singapore, but the court retains a discretion in certain
circumstances (below). R v Sang [1980] AC 402; Kuruma v R [1955] AC 197

5. In PP v Kok Khee, if the accused person’s arrest is wrongful, he is entitled to struggle; held if the accused
person’s arrest was wrongful, that accused person was entitled to struggle against the arresting officers
because he would be resisting an illegal or unjustifiable use of force towards him

Saw Kim Hai & Anor v R [1956] MLJ 21

- Facts: The appellants were convicted on 2 charges of assisting in lottery offences under the Common
Gaming Houses Ordinance. On the appeal it was argued that the police had not strictly proved that their
entry to the premises had been carried out in accordance with the provisions of the Ordinance, and thus the
presumption under s 11 of the Ordinance did not arise.
- [Held] The presumption raised by the Common Gaming Houses Ordinance arises as soon as it is proven that
a person has been found in possession of the documents therein referred to, no matter how or where that
person was found.

SM Summit Holdings Ltd & Anor v PP [1997] 3 SLR 922

- Facts:
o Private investigator procured a party suspected of IP infringements to replicate 8 stampers, which
was THE act that was the copyright infringement. Deposed this in his statutory declaration so
warrants could issue.

16
- [held]
o HC admonished the illegal conduct of the investigator, and his statutory declaration ought to have
been excluded from court’s consideration in determining whether search warrants could issue.
o distinction from Sang (in which police conduct induced the offence), but here the illegal conduct
was an essential ingredient of the offence. Also the conduct was that of a private investigator not a
police officer. Here the illegality and threat to rule of law assumes a particularly malignant aspect.
Hence this evidence is excluded.

Types of Arrest
- 3 types of arrest :
o a. Arrest without warrant (ss.32-41 CPC)
o b. Arrest with warrant (ss.46-49, 54 CPC)
o c. Private arrest by citizen

A) Arrest without warrant

- 1. s.32(1) CPC : A police officer may, without a warrant, arrest any person whom he has reasonable grounds
to believe has committed a seizable1 offence
o A seizable offence is defined in the CPC as “an offence for which and “seizable case”
o means a case in which a police officer may ordinarily arrest without a warrant according to the
third column of Schedule A”. – S 2 of CPC. If you cannot arrest w/o warrant  non-seizable
offence.
- 11 instances when police may arrest without a warrant. These include:
o person obstruct officer in his duty or if escape/attempt to escape from lawful custody
o person who by repute is a habitual robber, housebreaker etc
o person committing a breach of the peace `may arrest’ implies executive discretion exists on the part
of the police to arrest - *Shaaban
- Hashim bin Saud v Yahaya Hashim [1977] 1 MLJ 259
- need to fall under one of the limbs. threshold is very low – police officer not worried of wrongful arrest
etc.

- provisions in s32:
(a) any person who has been concerned in any seizable offence 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;
- ‘reasonable suspicion’ based on definite facts and founded on some definite fact tending to throw suspicion
upon the person arrested
(b) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on
such person, any implement of housebreaking;
(c) any person who has been proclaimed under section 51;
(d) any person in whose possession anything is found which may reasonably be suspected to be stolen or
fraudulently obtained property, and who may reasonably be suspected of having committed an offence with
reference to that thing;
(e) any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to
escape from lawful custody;
(f) any person reasonably suspected of being a deserter from any force referred to in section 140B of the Penal
Code or to which Chapter VII of that Code may be extended;
(g) any person found taking precautions to conceal his presence under circumstances which afford reason to
believe that he is taking those precautions with a view to committing a seizable offence;
(h) any person who has no ostensible means of subsistence or who cannot give a satisfactory account of himself;
(i) any person who is by repute an habitual robber, housebreaker or thief, or an habitual receiver of stolen
property knowing it to be stolen, or who by repute habitually commits extortion or in order to commit extortion
habitually puts or attempts to put persons in fear of injury;
(j) any person in the act of committing in his presence a breach of the peace; or
(k) any person subject to the supervision of the police who has failed to comply with any of the requirements of
this Code.

1
See section 2 and Schedule A of the CPC. See sections 128, 133 and 136 of the CPC one
how to obtain a warrant of arrest

17
- 2. s.33 CPC - Refusal to give or gives possibly false name or address, or gives a foreign address: non-
seizable offences
o s. 33: where person who commits non-seizable offence refuses to give his name and residence, or
is believed to have given false ones, is arrested for the purpose of ascertaining these; he must be
brought before a magistrate within 24 hours if his true name and residence have not been
ascertained before then

Refusal to give name and residence.

33. —(1) When any person in the presence of a police officer commits or is accused of committing a non-
seizable offence and refuses on the demand of a police officer to give his name and residence or gives a name or
residence which the officer has reason to believe to be false, he may be arrested by that police officer in order
that his name or residence may be ascertained, …

- 3. Powers under other Acts : eg. s.16(1)(b) National Registration Act, s.25 Misuse of Drugs EXAMS!!!!!

MDA:
Powers of search and seizure
24. —(1) Any officer of the Bureau, police officer not below the rank of Assistant Superintendent of Police or
any police officer authorised by him or any senior officer of customs may at any time —
(a) without a warrant enter and search any place or premises in which he reasonably suspects that there is to be
found —
(i) any controlled drug, controlled substance or article liable to seizure; or
(ii) a person who has committed or is reasonably suspected to have committed any offence under this Act or any
seizable offence under the regulations;
(b) search any person found in that place or premises; and
(c) seize and detain any controlled drug or controlled substance found in that place or premises, or any article
liable to seizure.
(2) For the purpose of exercising his power under this section, an officer may, with such assistance as he
considers necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, box,
container or any other thing.

Powers of arrest
25. —(1) Any officer of the Bureau, police officer, officer of customs, or special police officer or member of the
Vigilante Corps authorised in writing by a police officer not below the rank of Assistant Superintendent of
Police, may arrest and search without a warrant any person who has committed or whom he reasonably suspects
to have committed an offence under this Act or a seizable offence under the regulations.
(2) Any person arrested under subsection (1) shall, together with any controlled drug, controlled substance or
article liable to seizure, be taken to the Central Narcotics Bureau, a police station or a customs station and may
be searched.
(3) No woman shall be searched under this Act except by another woman.
(4) An officer making an arrest under this section may seize and detain any controlled drug, controlled substance
or article liable to seizure.

Power to search ship, aircraft, vehicle or train and person arriving in or departing from Singapore
26. —(1) Any officer of the Bureau, police officer or officer of customs may —
(a) stop, board and search any ship, hovercraft, aircraft, vehicle or train if he has reason to suspect that there is
therein any controlled drug in contravention of this Act, controlled substance or any article liable to seizure;
(b) search any person in that ship, hovercraft, aircraft, vehicle or train; and
(c) search any person arriving in Singapore or about to depart from Singapore.
(2) An officer may seize and detain —
(a) any controlled drug, controlled substance or article liable to seizure as a result of any search under this
section; and
(b) any ship, hovercraft, aircraft, vehicle or train which has been used in the commission of or in connection with
an offence under this Act.

Forfeiture of controlled drugs, controlled substances and articles seized

27. —(1) Where anything is seized under this Act, the officer who carried out the seizure shall immediately give

18
notice in writing of the seizure to the owner of that thing, if known, either by delivering the notice to him
personally or by post at his place of residence, if known.
(2) The notice under subsection (1) shall not be required to be given where the seizure is made in the presence of
the offender or the owner or his agent, or in the case of a ship or an aircraft, in the presence of the master or
captain thereof.
(3) An order for the forfeiture of any controlled drug, controlled substance or article shall be made if it is proved
to the satisfaction of a court that an offence under this Act has been committed and that such drug, substance or
article was the subject matter of or was used in the commission of the offence notwithstanding that no person
may have been convicted of that offence.
(4) If there is no prosecution with regard to any controlled drug, controlled substance or article seized under this
Act, that drug, substance or article shall be deemed to be forfeited at the expiration of one month from the date of
the seizure thereof unless a claim thereto has been made before that date in such manner as may be prescribed.

Forfeiture of ship, hovercraft, aircraft or vehicle

28. —(1) Where a person has been convicted of an offence under this Act, the court may order to be forfeited to
the Government any ship, hovercraft or aircraft which has been proved to have been used in any manner in
connection with the offence.
(2) Where a person has been convicted of an offence under this Act, the court shall, upon the application of the
Public Prosecutor, order to be forfeited to the Government any vehicle which has been proved to have been used
in any manner in connection with the offence.
(3) This section shall not apply to any ship or hovercraft of more than 200 tons net or to any aircraft belonging to
any person carrying on a regular passenger service to and from Singapore by means of that aircraft.
(4) No ship, hovercraft, aircraft or vehicle shall be forfeited under this section if it is established by the owner
thereof that the ship, hovercraft, aircraft or vehicle was unlawfully in the possession of another person without
the consent of the owner.

Disposal of things forfeited

29. —(1) All things which are forfeited to the Government under this Act shall be disposed of in such manner as
the Minister thinks fit.
(2) The Minister may, in his discretion and after any proceedings under this Act are concluded, entertain and give
effect to any claim to or in respect of anything which has been forfeited to the Government.

Obstruction of inspection or search

30. —(1) It shall be an offence for a person to —
(a) obstruct any officer of the Bureau, police officer, officer of customs or other public officer in the exercise of
any power under this Act;
(b) fail to comply with any lawful requirement of any officer of the Bureau, police officer, officer of customs or
other public officer in the execution of his duty under this Act;
(c) fail, without reasonable excuse, to furnish such information in his possession as may be required by any
officer of the Bureau, police officer, officer of customs or other public officer; or
(d) furnish to any officer of the Bureau, police officer, officer of customs or other public officer any information
which he knows or has reason to believe to be false.
(2) In subsection (1), “public officer” includes any special police officer or member of the Vigilante Corps
exercising any power under section 25.

- 4. General powers of arrest w/o warrant for seizable offences:

When police may arrest without warrant.

32. —(1) Any police officer may without an order from a Magistrate and without a warrant arrest
(a) any person who has been concerned in any seizable offence 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;

- Note :- “may arrest” implies executive discretion exists on the part of the police to arrest – Shaaban
- Seizable offence is defined in s.2 CPC as: `an offence for which…police officer may ordinarily arrest
without warrant according to the 3rd column of Schedule A’
o eg. rioting (s147 PC), rape (s376PC), robbery (s392PC) cf. VCH (s.323)

19
- Importance of distinction between seizable and non-seizable offences: extent of powers of investigations (ss
120, 121, 125, 126 CPC).
o A person whom a police officer is investigating in a seizable offence is required to give statements
to the police officer. Section 179 of the CPC states that persons charged in the High Court shall be
brought in the name of the Public Prosecutor or a person authorised by him.

- 5. Possible civil action for wrongful arrest

o eg: false imprisonment suits. Can provide a defence for accused who might have inflicted hurt on
police (above, PP v Kok Khee).
• The three limbs in s32(1)(a) CPC– reasonable complaint, credible information, reasonable
suspicion – are cumulative and not mutually exclusive:

Hashim bin Saud v Yahaya Hashim [1977] 1 MLJ

- Facts:
o Plaintiff claims damages for wrongful detention and denial of right to consult counsel. The plaintiff
was arrested on 8 August on suspicion of theft. On 9 August as the investigations were not
completed, the accused was produced in court and an application made for further detention til 19
August. The plaintiff was released on 14 Aug. The plaintiff was not allowed to see counsel during
the period of his detention when police investigations were in progress.
- [Held]
o on the facts, the arrest of the plaintiff was lawful as there was reasonable suspicion that the
plaintiff was concerned with the theft. Thus his subsequent detention by the police before
production before the Magistrate, and subsequently by special order of the Magistrate was legal;
o Where a person is lawfully detained, his detention does not become unlawful if the police denies
that person his right to consult and be defended by a legal practitioner of his choice.
o The claim for damages in this case therefore failed and must be dismissed.

i) Reasonable Complaint
- Test is objective and not subjective
Tan Kay Teck & Anor v AG [1957] MLJ 237
- Facts:
o Petitioners claimed damages from the Crown for false imprisonment, alleging that they were
wrongfully arrested and detained by the police. The petitioners, husband and wife, were woken up
and arrested, kept at the police station from midnight until 5am before being released on police
bail. Later that morning they appeared before the Magistrate and were charged with having
wrongfully confined one Mr. Ng. After that they were released on bail but were re-arrested outside
the courtroom and taken to the CID to be fingerprinted before being allowed to go home. They
came before the Magistrate again on 30 March and were remanded on bail until 13 April but when
the case came up on that date, the prosecution offered no evidence and they were released
- Held:
o (1) A police officer is entitled to arrest a person without warrant if he has received a reasonable
complaint that such person has been concerned in an offence. In this case no reasonable complaint
was made against the petitioners, and therefore their arrest without warrant and their subsequent
detention was unlawful.
- question whether there was a reasonable or probable cause is not to be determined
subjectively … It is a question which objectively the Court has to decide on the evidence
before it.
o (2) As the petitioners had been released by the Magistrate on bail, the police had no authority to
take them into custody again in order to convey them to the Criminal Investigation Department for
finger printing:- their action, in effect, amounted to a second false imprisonment;
o (3) False imprisonment does not merely affect a man’s liberty, it also affects his reputation. Where
a person has been falsely imprisoned, it is in the public interest that sufficient damages should be
awarded in order to give reality to the protection afforded by law to personal freedom.

20
- Must be based on facts since the exercise of executive discretion to arrest without a warrant under Section
32(1) is subject to judicial control (Shaaban [1974] 2 MLJ 103)
- see also Tims v John Lewis & Co. [1951] 2 KB 459

ii) Credible Information

- Source of information should be reliable
- Hashim bin Saud v Yahya [1977] 1 MLJ 259
o Source (informant) had previously proved to be reliable and past information had led to an arrest
and successful prosecution
o Information given was sufficient to arouse the suspicion of any reasonable person
iii) Reasonable suspicion
- Must be based on some definite facts tending to show suspicion; honest belief may be inadequate
- Test of `reasonable suspicion’ is of a lesser standard than prima facie case; prima facie refers only to
admissible evidence - but `reasonable suspicion’ permits consideration of matters that might not have been
admissible as evidence

Zainal bin Kuning (above)

- an arrest without warrant must be based on definite facts and founded on some definite fact tending to throw
suspicion upon person arrested.
- Test of ‘reasonable suspicion’ is of a lesser standard than prima facie case. Prima facie refers only to
admissible evidence – but ‘reasonable suspicion’ permits consideration of matters that might not have been
admissible as evidence.

Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul Rahman & Anor [1999] 6 MLJ 8000
- Facts:
o Plaintiff was a technician with Penang Botanical Gardens. Arrested on 21 March 1987 by the first
defendant and was subsequently detained and placed under remand pending investigations for 9
days. The plaintiff claimed inter alia that: (i) his arrest was unlawful; (ii) his subsequent detention
was unlawful;
o The defendants however contended, inter alia, that: (a) they had received credible information that
the plaintiff had been concerned with two seizable offences on 21 March 1987, i.e. and as such
they were empowered and authorized to arrest the plaintiff; (b) the arrest effected on the plaintiff,
and the subsequent detention, were therefore lawful, valid and of full legal effect
- [Held]
o In deciding whether there exists ‘reasonable suspicion’, account is to be taken of the circumstances
as they appeared at the time of the arrest and detention. The court is concerned to discover whether
the authorities acted in bad faith or whether the arrest or detention is an arbitrary act and whether
the law was correctly applied and interpreted. The court has to keep foremost in its mind the
distinction between ‘reasonable suspicion’ and ‘prima facie proof’.
o ‘Prima facie proof’ consists of admissible evidence whilst `suspicion` can take into account matters
that may not be put in evidence at all. On the facts, the police had not acted arbitrarily and had not
abused their statutory power of arrest by arresting the plaintiff on 21 March 1987.

Shaaban (above)
- distinction between reasonable suspicion and prima facie proof.

Tan Eng Ho v AG [1933] MLJ 151

- When an arrest is lawful
- Held:
 “…the circumstances were such that any reasonable man would have fairly suspected A of being
the person who had committed the offence complained of and that the Police were justified in
effecting the arrest.”

Ramly & Ors v Jaffar [1968] 1 MLJ 209

SM Summit Holdings [1997] 3 SLR 922

21
5. Other acts
- s. 25 Misuse of Drugs Act, s. 40 Miscellaneous Offences (Public Order & Nuisance) and s. 51
Immigration Act
MDA - Powers of arrest
25. —(1) Any officer of the Bureau, police officer, officer of customs, or special police officer or member
of the Vigilante Corps authorised in writing by a police officer not below the rank of Assistant
Superintendent of Police, may arrest and search without a warrant any person who has committed or
whom he reasonably suspects to have committed an offence under this Act or a seizable offence under the
regulations.
[12/77;20/98]
(2) Any person arrested under subsection (1) shall, together with any controlled drug, controlled
substance or article liable to seizure, be taken to the Central Narcotics Bureau, a police station or a
customs station and may be searched.
[49/75;20/98]
(3) No woman shall be searched under this Act except by another woman.
(4) An officer making an arrest under this section may seize and detain any controlled drug, controlled
substance or article liable to seizure.
MO - Power of arrest
40. —(1) Subject to the provisions of this Act, any police officer may arrest without warrant any person
offending in his view against any of the provisions of this Act, and take him before a Magistrate’s Court
to be dealt with according to law.
[10/89]
(2) Any animal, conveyance or article concerning by or for which an offence has been committed may be
seized and taken to a pound or police station unless given up sooner by order of a Magistrate’s Court,
until the charge is decided in due course of law.
IA - Power of search and arrest
51. —(1) Any immigration officer or any other officer generally or specially authorised in writing in that
behalf by the Controller, and any officer of the Singapore Customs acting under the instructions of such
immigration officer, and any police officer may without a warrant and with or without assistance —
(a) enter and search any premises; and
(b) stop and search any vehicle, train, vessel or person, or search any aircraft, whether in a public place or
not,
if he has reason to believe that any evidence of the commission of an offence under this Act or the
regulations is likely to be found on the premises or person or in the vehicle, vessel, aircraft or train, and
may seize any evidence so found.
[21/73; 13/77; 38/93]
(2) No woman shall be searched under this section except by a woman.
(3) Any police officer, immigration officer or customs officer may arrest without warrant any person who
he reasonably believes has committed an offence under this Act or the regulations.
(4) Where any person is arrested by an immigration officer or customs officer under subsection (3), the
immigration officer or customs officer shall comply with sections 35 and 36 of the Criminal Procedure
Code (Cap. 68) as if he were a police officer.

B) Arrest with a warrant

- In all other cases for which a person cannot be arrested without a warrant, a warrant of arrest must be
obtained. Section 46-49 & 54 CPC. PROCEDURE FOR WARRANT OF ARRREST IS VERY IMPT FOR
EXAMS
- 4th Column of Schedule A, CPC shows whether a warrant or summons is required. S136 CPC
Form of warrant of arrest.
46. —(1) Every warrant of arrest issued by a court under this Code shall be in writing and signed by a
Magistrate or District Judge or a Coroner, as the case may be, or in the case of the High Court by a Judge
of the High Court or by the Registrar, and shall bear the seal of the court.
(2) Every such warrant shall remain in force until a court cancels it or until it is executed.

22
Court may direct by endorsement on warrant security to be taken.
47. —(1) Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on
the warrant that, if that person executes a bond with sufficient sureties for his attendance before the court at the
next sitting of the court following the day of arrest and thereafter until otherwise directed by the court, the officer
to whom the warrant is directed shall take such security and shall release that person from custody.
(2) The endorsement shall state —
(a) the number of sureties; and
(b) the amount in which they and the person for whose arrest the warrant is issued shall be respectively bound.
(3) Whenever security is taken under this section the officer to whom the warrant is directed shall, when so
required, forward the bond to the court.

Warrants to whom directed.

48. —(1) A warrant of arrest shall ordinarily be directed to the Commissioner of Police and all other police
officers of Singapore, and any police officer may execute the warrant.
(2) The court issuing a warrant may direct it to any person by name not being police officers, and all or any one
or more of such persons may execute the warrant.
(3) When a warrant is directed to more persons than one it may be executed by all or any one or more of them.

Notification of substance of warrant.

49. The police officer or other person executing a warrant of arrest shall notify the substance thereof to the
person arrested and, if so required, shall show him the warrant or a copy thereof under the seal of the court
issuing the warrant.

Issue of warrant in lieu of or in addition to summons.

54. A criminal court may, in any case in which it is empowered to issue a summons for the appearance of any
person, issue, after recording its reasons in writing, a warrant for his arrest —
(a) if either before the issue of the summons or after the issue of the summons but before the time fixed for his
appearance the court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his
appearing in accordance therewith and no reasonable excuse is offered for such failure.

- Person arrested should be produced in court without unnecessary delay s50 CPC.
- Reciprocal arrangements with courts in Malaysia and Brunei. If those courts issue a warrant/ summons,
local court can endorse it, so it can be validly executed or served as if it were issued here: S55 CPC. Upon
custody, person is produced before local cts, then transferred to foreign ct.

C) Private Arrest
- Private person’s powers of arrest are closely circumscribed and exist in only 2 situations ie limited and very
clearly stipulated:

A) 1st situation:

- s.34(1) CPC: Any private person may arrest any person who, in his view, commits a non-bailable and
seizable offence…and shall, without unnecessary delay, hand over the person …to the nearest police
officer…police station
- Follow-up action to be taken by the police – ss 34(2) - (4)
- s. 34(5) CPC, commits an offence on or with respect to the person or property of another party

Arrest by private persons. Procedure in such cases.

34. —(1) Any private person may arrest any person who, in his view, commits a non-bailable and seizable
offence, or who has been proclaimed under section 51, and shall, without unnecessary delay, hand over the
person so arrested to the nearest police officer or, in the absence of a police officer, take that person to the nearest
police station.

34. -- (2) If there is reason to believe that such person comes under section 32 a police officer shall rearrest him.

23
(3) If there is reason to believe that he has committed a non-seizable offence and he refuses on the demand of a
police officer to give his name and residence or gives a name or residence which the officer has reason to believe
to be false or gives a residence which is not within Singapore he shall be dealt with under section 33.
(4) If there is no reason to believe that he has committed any offence he shall be at once released.
(5) Any person who commits an offence on or with respect to the person or property of another may, if his name
and residence are unknown, be apprehended by the person injured or by any person who is using the property to
which the injury is done, or by the employee of either of those persons or by any person authorised by or acting
in aid of either of those persons, and may be detained until he gives his name and address and satisfies such
person that the name and address so given are correct or until he can be delivered into the custody of a police
officer.
- Seizable and non-bailable offences (see Schedule A, 3rd and 5th columns and ss.351-352 on bailable and
non-bailable offences)

When person accused of non-bailable offence may be released on bail.

352. —(1) When any person accused of any non-bailable offence is arrested or detained without a warrant by a
police officer or appears or is brought before a court, he may be released on bail by any police officer not below
the rank of sergeant or by that court, but he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or imprisonment for life:
Provided that the court may direct that any person under the age of 16 years or any woman or any sick or infirm
person accused of such an offence be released on bail. …

- ‘In his view’ - must the private person actually witness the commission of an offence or whether it is
sufficient if he forms a reasonable opinion that the offence was committed by the suspect?
o Definition : - in his sight in his presence.
 Durga Singh [1963] 1 Cr.L.J. 827
 Kartar Singh [1956] AIR (Puri) 122
  Indian cases :- offence has to actually be “within sight”.
  but later amendments to Indian CPC : “in his presence” = no need sight

Ivy Hwang : “ Wrongful arrest by private person” 23 Mal.L.R. 182 discussing Metro (Golden Mile) Pte
Ltd v Paul Chua Wah Liang

- In an oral judgment delivered in the High Court on August 13,1980, Mr. Justice Choor Singh upheld the
decision of District Judge Adrian Soon which awarded businessman Paul Chua Wah Liang and his 5
children damages totalling $1,800/- for wrongful detention and slander. This timely judgment stressed man’s
liberty of movement and proved both illuminating and instructive as regards the right of arrest by shop
employees of suspected shoplifters.
- The facts of the case are simple. As reported in the newspapers, on June 16, 1978, as businessman Paul
Chua and his 5 children were about to drive off from the store carpark after shopping at Metro (Golden
Mile) Pte. Ltd. they were stopped by two employees of the store. After being told that there was a mistake in
the bill they were escorted to a first floor office where their parcels were checked and one of the children,
Ian (aged 7), was searched. Everything appeared in order, an apology was extended on behalf of the store
and the Chuas subsequently left.1
- In giving judgment Mr. Justice Choor Singh said: “If [the arrest] is unlawful a man can bring an action for
false imprisonment and get damages.”
- This statement poses 2 questions. Firstly, under what circumstances is there an arrest; and secondly, when is
such arrest is unlwful.
- “Arrest” connotes the imposition of total restraint upon the movements of an individual.2
o In its stricter context and the one pertinent to this article it connotes custody of another for the
purpose of holding or detaining him to answer a criminal charge.3
o Mere words would amount to an arrest only if in the circumstances of the case, they are calculated
to bring, and do bring to a person’s notice that he is under compulsion and he thereafter submits to
the compulsion.4
o In this case, evidence was given by the plaintiff Paul Chua that he went along with the employees
of the store in order to avoid the embarrassment of a confrontation in the carpark. The defence on

24
 the other hand argued that there was a voluntary accession on the part of the plaintiffs to a polite
request to follow by the employees of the store.
- The learned Judge had this to say: “When a private security guard or other employee of a departmental store
stops a customer after he has left the store and tells him ‘come along with me back to the store, I want to
check the parcel you are carrying’ this is an arrest.... It is irrelevant whether they went willingly or under
protest.”
- From the facts as reported in the newspapers however, it is unclear whether such strong words of
compulsion were used. The Chuas were merely told that “there was a mistake in the bill” and to follow the
employees of the store. A voluntary accession to a polite request would not amount to an arrest. However in
this instance the Judge was probably correct in his holding that there was an arrest as it is reasonable to
believe that the Chuas did not voluntarily follow the employees of the store but did it out of compulsion in
order to avoid further embarrassment in the carpark.
- Once it is decided that there is an arrest, the next question to ask therefore is whether the arrest is lawful. In
this instance, we are only concerned with the right of arrest by private persons (including private security
guards and members of CISCO) as opposed to arrest by police officers.5 The relevant law governing the
right of arrest by a private person is to be found in section 31 of the Criminal Procedure Code.6 By virtue of
this section, any private person may arrest any person, who in his view, commits a non-bailable and seizable
offence, such as theft.

- : - The phrase “in his view” is an unfortunate choice of words by the legislature as it can mean either “in his
presence” or “in his opinion”. At first impression, the latter meaning seems more likely. An examination of
other sections under the same heading “Arrest Without a Warrant” show that the express words “in his
presence” were used time and again in the other sections.7 It is therefore unlikely that if the legislature had
intended to permit an arrest by a private citizen only if the offence is committed “in his presence” the words
themselves would not have been expressly used.
- Nevertheless, the Indian Courts in a series of decisions interpreting the section of the Indian Criminal
Procedure Code from which our provision is derived have held that the words “in his view” mean “in his
presence” or “within sight of him”.8
- Such interpretation is based upon the rationale that there should be as little abrogation of an individual’s
liberty as possible and that a private person’s right of arrest, unlike that of a police officer, should be strictly
confined. Unfortunately, there is no reported local decision which expressly deals with this matter. In light of
the highly persuasive authority however, the Indian Courts’ interpretation appears to be the one most ikely
followed by local courts. This is consistent with Mr. Justice Choor Singh’s judgment where he said: “So far
as arrest is concerned, a police constable has more power than a private person... he can justify it on the
ground that the accused had committed a seizable offence. He does not have to go further, as a private
person has to do, and prove that a seizable offence has in fact been committed.”
- Such a statement that a seizable offence be actually committed naturally rejects the interpretation that
section 33 permits an arrest by a private person on his subjective opinion that a non-bailable and seizable
offence has been committed in his presence.
- In the case of theft therefore, the security officer or other private person effecting the arrest must show that
the theft was actually committed in his presence. A theft is complete once there is a moving of the property
with the intention of taking it dishonestly out of another’s possession.9 Thus in order that there be a lawful
arrest the person effecting the arrest must actually see the removal of the article from the shelf of the store.
The fact that he catches a customer walking past the cashier or trying to leave without paying is in itself
insufficient for such fact is only evidence of theft and does not constitute the act of theft itself.
- It is therefore insufficient that a departmental store installs a mechanical device such as a “magic eye” which
activates an alarm when a customer tries to leave without paying for goods concealed on his person.
Technically, none of the store’s employees can effect an arrest for none of them can actually say that they
saw the theft.
- An interesting situation would be one as to when the theft is actually witnessed with the aid of a mechanical
device such as a television monitor. In the absence of any authority, it is submitted that in the interest of
apprehending shoplifters and the like, a store employee who sees a theft committed in the store from the
monitor screen of a security room should be in law permitted to effect an arrest under section 33 of the
Criminal Procedure Code.
- Another point stressed by the learned judge is that the arrest is only lawful if a non-bailable and seizable
offence has actually been committed.10 This may sometimes be unjust on the person effecting an arrest for

25
 circumstances may not always be what they seem to the observer. A possible instance is that of the shopper,
who after purchasing the article returns to exchange it for say, one of another colour. Too embarrassed or
lazy to search out the sales supervisor she effects the change by herself. Though there may be all the
appearance of a theft to a security officer who arrests her as she leaves with the second article, nevertheless
in absence of an actual theft, technically he is open to an action in false imprisonment.
- : - from the above, we conclude that although it may not always be just to the person effecting the arrest or
practical in terms of apprehension of shoplifters, an arrest by a private person is only lawful if the person
actually arrested commits an act of theft within his sight. An arrest under any other circumstances is
therefore unlawful and the person arrested can maintain an action in false imprisonment.
- Hence, the learned Judge’s statement that “departmental stores should do all their checking of bills and
parcels before a customer leaves the store” appears to be, with all due respect, misconceived and misleading.
In absence of the customer’s consent, the store is equally not entitled to restrain their customers for the
purpose of checking their bills and parcels when the customer is still on the store’s premises unless the
preconditions to an arrest under section 33 (as discussed earlier) are satisfied. In any event, no search can be
made of any person arrested or his property.11
- All in all therefore, section 33 appears to be far too restrictive.
- In the absence of a right to apprehend shoplifters, even for the purpose of obtaining their name and Identity
Card numbers, in all but the most stringent of circumstances, the stores appear to be very much helpless as
against such offenders.
- Here, a comparison can be made with the position in England where any person may arrest without warrant
anyone who is, or whom he with reasonable cause suspects to be, in the act of committing an arrestable
offence.12 Furthermore, where an arrestable offence has been committed, any person may arrest, without
warrant, anyone who is, or whom he suspects to be guilty of the offence.13
- It is submitted that such legislation is indeed to be preferred to the local legislation. There seems no logical
reason why a civic minded private person should not be able to effect a citizen’s arrest where he reasonably
suspects another person to be guilty of a non-bailable and seizable offence or in the act of committing an
arrestable offence.
- The fact that there must be sufficient grounds, for suspicion provide an adequate safeguard to an individual’s
liberty without being unduly harsh upon the person effecting the arrest. What amounts to reasonable
suspicion is of course, a question of fact dependent upon all the circumstances of the case.

PP v Sam Hong Choy (Criminal Trial No 57-1-92 High Court, Johor Bahru Mallal’s 4th ed Vol 5 para 524)

PP v Sam Hong Choy [1999] 4 MLJ 433

- Facts :- man heard gun shots, and saw 2 men running past him, apprehends one, man gets shot.
- [held] “in his view” given a liberal interpretation. Words do not cover mere suspicion or (reasonable)
opinion. Words would cover situation where one does not actually see the offence being committed, but is
certain (because he is in close proximity).

- “without unnecessary delay”

John Lewis & Co Ltd v Tims [1952] 1 All E.R. 1203

- Facts:
o Respondent and her daughter entered appellants' shop where daughter stole. They left the shop and
the daughter placed the stolen things in a bag carried by the respondent. Two detectives employed
by the appellants followed the 2 women outside the shop, saw them steal from another shop. As
they came out, 1 of the 2 detectives accosted them, said they had stolen the articles, and asked
them to come with her.
o The appellants’ regulation was that only a managing director/ general manager was authorised to
institute any prosecution. The respondent and her daughter were taken back to the appellants' shop
and detained until the chief store detective and the managing director heard the account of the two
detectives, after which the police were sent for and the respondent and her daughter were taken to
the police station, charged, and released on bail. Next morning the daughter was convicted, but
charges against respondent were withdrawn by consent of the court due to insufficient evidence.
Respondent sues for false imprisonment.
- Held:

26
 o Where a person in exercise of his common law right arrested a person without warrant, he should
take the arrested person before a justice of the peace or a police officer, not necessarily forthwith,
but as soon as was reasonably possible; in the circumstances, the taking of the respondent to the
appellants' office to obtain authority to prosecute was not an unreasonable delay before handing
her over to the police; and, therefore, the appellants were not liable for false imprisonment.

see also Walters v W.H. Smith [1914] 1 K.B. 595 on private arrest generally

B) 2nd situation:

s.34(5) CPC -Any person who commits an offence on or with respect to the person or property of another may, if
his name and residence are unknown, be apprehended by the person injured or by any person who is using the
property to which the injury is done, or by the employee of either of those persons or by any person authorised
by or acting in aid of either of those persons, and may be detained until he gives his name and address and
satisfies such person that the name and address so given are correct or until he can be delivered into the custody
of a police officer.

: - list down the requirements!

Wrongful Arrests
1. False imprisonment possibility of aggravated damages under Rookes v Bernard
2. Malicious prosecution

Tay Boo Jiang v Chan Yip Tong [1967] 1 MLJ 84

- Facts:
o The plaintiff claimed damages for false imprisonment and malicious prosecution. The allegation
was that as a result of a report to the police made by the defendant the plaintiff was arrested and
detained by the police. Further the defendant had made a complaint to a magistrate that the plaintiff
had given false evidence in a civil case and the defendant was charged with perjury, sanction for
prosecution having been given by tthe Attorney General.
- Held: Dismissing the claim:
o The defendant in this case did not authorise the arrest of the plaintiff nor did he make any charge
on which it became the duty of the police to act. The police acted on their own initiative in
arresting the defendant and on the facts of the case their action was lawful.
o The defendant was not prompted by malice in making his complaint to the magistrate and as the
Attorney General had granted a sanction for the prosecution of the defendant there could not be
said to be an absence of reasonable and probable cause on the part of the defendant in setting the
law in motion.

3. Compensation orders under s.402 CPC

Power to award compensation and costs.

402. —(1) If in any case a Magistrate’s Court acquits the accused and is of opinion that the prosecution was
frivolous or vexatious it may, in its discretion either on the application of the accused or on its own motion order
the complainant or the person on whose information the prosecution was instituted to pay to the accused, or to
each or any of the accused where there are more than one, such compensation not exceeding $50 as the court
thinks fit:
Provided that the Court —
(a) shall record and consider any objections which the complainant or informant may urge against the making of
the order; and
(b) shall record its reasons for making the order.
(2) Whenever in like circumstances an accused is acquitted by the High Court or a District Court, the Court may,
in addition to exercising the powers conferred on a Magistrate’s Court by subsection (1), order the complainant
or informant to pay to the accused, or to each or any of them, the full costs, charges and expenses, to be taxed by
the Registrar or District Judge, incurred by the accused in and about his defence.
(3) Such compensation shall be no bar to an action for false imprisonment.

4. Writs of habeas corpus to secure liberty

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Cases cited in lecture are not habeas corpus cases!…. But perhaps reflect principles applicable….

Saw Kim Hai v Anor v R [1956] MLJ 21

Choong Kim Loy (below)

PP v Kok Khee (above)

- facts justify respondent putting up a struggle since he was resisting an illegal or unjustifiable use of force
towards him. Unless and until an arrest had been made legally, respondent entitled to prevent or resist the
confiscation of his private property.

Khor Ah Kah v PP [1964] MLJ 309

- Facts: Appellant convicted under Section 353 Penal Code, deter police from execution of duty as public
servant. Police tried to arrest son of appellant. But on record not clear what son did wrong, whether he was
arrested or not, impossible to say arrest legal or not. One of grounds of appeal was the prosecution failed to
prove that the police was acting in the execution of his duties.
- Held: The prosecution failed to prove that the police constable was in law a public servant acting "in the
execution of his duty". Appeal allowed, conviction quashed, and fine repaid.

5. Extortion/ Injury
- Where arrest is threatened without reasonable basis or on false or fraudulent grounds, this can amount to
‘harm illegally caused’ and hence come within the definition of Extortion.
- PP v Chua Boon Teck: if a police officer purports to exercise his power of arrest for a non-seizable
offence, with no warrant, it can also be illegal within the meaning of s44 Penal Code (definition of
“injury”). since he had no such legal power capable of being exercised

“Injury”.
44. The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or
property.

Detention and Procedure upon Arrest

A) Arrest without warrant :

- to take suspect before Magistrate without unnecessary delay, subject to bail - s.35
- s. 35 CPC provides that a person arrested without warrant shall, subject to release on (police) bail, be
brought before a magistrate “without unnecessary delay”, and s. 36 provides that a person arrested without
warrant cannot be detained by the police for more than 48 hours
- detain for no longer than all the circumstances of the case is reasonable, in any event not exceeding 48 hours
-s.36(1)
- art. 9(4) Constitution also provides “where a person is arrested and not released, he shall, without
unreasonable delay, and in any case within 48 hours (excluding the time of any necessary journey), be
produced before a magistrate and shall not be further detained in custody without the magistrate’s authority”
Liberty of the person
9. —(3) Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest
and shall be allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released, he shall, without unreasonable delay, and in any case
within 48 hours (excluding the time of any necessary journey), be produced before a Magistrate and shall
not be further detained in custody without the Magistrate’s authority.

How person arrested is to be dealt with.

35. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the
provisions herein as to bail or previous release, take or send the person arrested before a Magistrate’s Court.

Person arrested not to be detained more than 48 hours.

36. —(1) No police officer shall detain in custody a person arrested without a warrant for a longer period
than under all the circumstances of the case is reasonable.

B) Arrest with warrant :

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- without unnecessary delay, bring suspect before the court which requires his attendance . s50 CPC (above)

C) Private Arrest:
- without unnecessary delay, hand over the person to the nearest police officer police station
3 Fundamental Rights under the Constitution

Art 9(3) Constitution: - the only constitutional right given to arrested persons
“Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be
allowed to consult and be defended by a legal practitioner of his choice.”

=> Two rights :

1. To be informed as soon as may be of the grounds of arrest
2. To consult and be defended by a lawyer of his choice and right to counsel

1) Right to be informed of Grounds of Arrest

- qualifications:
- in order to provide him with the opportunity of offering an explanation in the even that his arrest was based
on a misunderstanding.
o “As soon as may be” - within a reasonable time? at earliest possible moment ? may be a few days –
held to be constitutional in some cases
o Question of fact in every case. In Aminah v Superintendent of Prisons, informed of grounds
several hours after arrest = OK.
- How much to inform?
o sufficient if informed in general terms, no need to be told in detail or in strict legal
terminology: Chong Kim Loy v Timbalan Menteri Dalam Negeri
o to inform of :
 - under what power he is being arrested; and
 - grounds for his arrest
- Where reasons for arrest are not furnished, suspect entitled to resist arrest and any force used to overcome
the resistance would amount to assault

Abdul Rahman v Tan Jo Koh [1968] 1 MLJ 205

- Facts:
o Appellant carpenter, appeal on claim for damages for assault and false imprisonment, against the
Respondent police constable.
o At a coffee shop, R suspected A of carrying a concealed weapon. R asked A whether he carried
any, and upon denial R invited A to go to the police station to be searched. A refused to go to the
police station, thereupon R arrested A. A resisted the arrest, dragged 100 yards to police station.
Searched in the presence of 2 police who witnessed a knife recovered from his sarong.
o During the struggle, A’s sarong slipped and he was not wearing any underwear. He also alleged that
the respondent punched him in the stomach at the police station.
- Held:
o applied Christie v Leachinsky (below), but distinguished it on facts.
o There was a conflict of evidence as to whether the A was told the reason for his arrest. Ct agreed
with trial judge, in finding that A’s great reluctance to go to the police station with R was because
he was afraid of R’s accusations, and not to a consciousness of his innocence. I.e. ct believed the
policeman. Appeal dismissed with costs.

see also PP v Kok Khee, for illegal arrest (above)

Christie v Leachinsky [1947] 1 All E.R. 567

- that a person arrested on suspicion is entitled to know reason of his arrest, if reason was withheld, the arrest
and detention is false imprisonment until the time he is told. It would follow that a person is entitled to resist
the arrest and any force used to overcome the resistance would amount to assault.

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Aminah v Superintendent of Prison Pangkalan Chepa Kelantan [1968] 1 MLJ 92

Choong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia [1989] 3 MLJ 121
- Facts:
o Applicant sought a writ of habeas corpus, challenging both the validity of a detention order made
by the minister under [equivalent of MDA], and his detention. The applicant had been arrested by a
police officer who believed he had grounds to justify the detention of the applicant, as the applicant
previously and still was associated with trafficking of dangerous drugs. The applicant was detained
in a police station pending investigations. Following investigations by the police and the
submission of reports from the police and the inquiry officer, pursuant to the Act the minister made
a 2-year detention order. The order was served on the applicant the next day, and a day later he was
taken into a detention centre.
o Inter alia, the applicant argued that the affidavit of the arresting officer revealed that there had been
a violation of the applicant’s constitutional right to be informed as soon as may be of the reasons
for his arrest. It was contended that it was not enough for the arresting officer to inform the
applicant that the latter had been “involved in activities involving drugs”; and that it was essential
to add the words ‘trafficking in drugs’.
- Held:
o In this case, the applicant should have been informed not merely that he was being arrested
because he had been involved in activities involving drugs. The arresting officer should have gone
further and add that the activities involving drugs were drug trafficking activities. The omission,
unfortunate though it was, did not invalidate the arrest or the subsequent detention.
o The applicant must have known that the activities alleged against him were drug trafficking
activities and indeed he had not gone on affidavit to say otherwise. Certainly, no prejudice as a
result of the omission was either proved or even alleged by the applicant or his counsel during the
argument.

Chepa, Kelantan [1968] 1 MLJ 92

2) Right to Counsel

- Art 9(3) Constitution: “…and shall be allowed to consult and be defended by a legal practitioner of his
choice..”
- AND s195 CPC: Right of accused to be defended.
195. Every person accused before any criminal court may of right be defended by an advocate.

Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137
Ooi Ah Phua v OIC, Kedah Perlis [1975] 2 MLJ 18
R v Lemsatef [1977] 2 AER 835

- has the accused a right to counsel during questioning?

 if you insist on being present, the answer will be that you have no right
 if your client wants a lawyer present, in practice it will not be allowed
- if the answer to the notice is given after consideration or consultation with counsel, then any omission
in the statement considered to be material may be viewed by the court in the light of s. 123 which
entitles the court to draw an adverse inference
Circumstances in which inferences may be drawn from accused’s failure to mention particular facts
when charged, etc.
123. —(1) Where in any criminal proceedings against a person for an offence evidence is given that the
accused, on being charged with the offence or officially informed that he might be prosecuted for it, failed
to mention any such fact, being a fact which in the circumstances existing at the time he could reasonably
have been expected to mention when so charged or informed, as the case may be, the court, in
determining whether to commit the accused for trial or whether there is a case to answer, and the court, in
determining whether the accused is guilty of the offence charged, may draw such inferences from the
failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable
of amounting to, corroboration of any evidence given against the accused in relation to which the failure
is material.

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 (2) In subsection (1), “officially informed” means informed by a police officer or any other person
charged with the duty of investigating offences or charging offenders.
(3) Nothing in subsection (1) or (2) shall in any criminal proceedings —
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of
anything said in his presence relating to the conduct in respect of which he is charged, in so far as
evidence thereof would be admissible apart from those subsections; or
(b) be taken to preclude the drawing of any inference from any such silence or other reaction of the
accused which could be drawn apart from those subsections.
(4) Subsections (1) and (2) shall not apply as regards a failure to mention a fact if the failure occurred
before 1st January 1977.
- Goh Ah Lim [1989] 3 MLJ 461, Tsang Yuk Chung [1990] 3 MLJ 264
- court will more readily draw an adverse inference
- it may be better that the statement be given on the spur of the moment
- explain to court the circumstances under which the statement is given and ask that the adverse inference
be withdrawn

- right arises at point of arrest but its exercise must be balanced against duty of the police to protect the
public and to be able to carry out effective investigations
- no further right to be informed of one's right to counsel

• “within a reasonable time after arrest” – question of fact.

- Right arises at time of arrest, but exercise can be delayed. Balance between the public interest for
police to protect the public/ investigations to be completed/effective and the interest of the accused
to have early legal advice.
- In Jasbir Singh v PP it was held that 2 weeks delay was a reasonable time. Delay also for the
ongoing Huang Na case.
• Note right to select counsel limited by fact whether counsel is similarly willing and able to represent him
Balasundaram v PP [1996] 2 SLR 331.
• no further right to be informed of one’s right to counsel

Rajeevan Edakalavan v PP [1998] 1 SLR 815

• Facts:
- Petitioner was a Molester on bus. Bus driver drove the bus to Yishun Bus Interchange. The
petitioner was arrested and brought to Ang Mo Kio Police Division.
- Petitioner was charged under Section 354 Penal Code. At trial petitioner appeared in person
without representation by counsel. He pleaded guilty to the charge, was convicted, and was
sentenced to six months` imprisonment and three strokes of the cane.
- He petitioned for criminal revision on the ground that the proceedings in the court below were
flawed, culminating in a miscarriage of justice.
• [Held]
- Article 9(3) : “shall be allowed to consult and be defended by a legal practitioner of his choice”.
However, nowhere in art 9(3) did it provide that there was a further right to be informed of one’s
right to counsel. The words `shall be allowed` were couched in negative terms so there was no
obligation imposed on the relevant authority to inform and advise the person under custody of his
right to counsel. To read an additional constitutional right to be so informed would be tantamount
to judicial legislation! No duty on police to inform accused.
- The second limb of the right to counsel was that one has a right to counsel of his choice. The key
words were “of his choice”, so he can select a legal practitioner who he can consult and who can
defend him.
- It was not the duty of the judge to inform the accused of the defences or other options that might be
open to him and advantageous to his case. That was the duty of counsel who was appointed to
defend him in court, if the accused so chose to be represented. The onus did not shift to the judge
(or the prosecution) simply because the accused was not represented. That would be placing too
onerous a burden on the judge. The judge’s position of impartiality and independence would be
gravely undermined. There would evidently be a conflict of interest and an issue of bias.

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- Accused is required to be remanded further, he will be held incommunicado and court is entitled to refuse
access to counsel until investigations are completed
- Right to counsel depends on the balance to be struck between public interest and the interest of the accused
to have legal advice early on the other
- Court must carefully weigh these competing interests before deciding what is a reasonable time before an
accused can have access to counsel:
• Jasbir Singh & Anor v PP [1994] 2 SLR 18

Jasbir Singh:
- Held, dismissing the appeal:
o (1) There was no violation of Jasbir’s constitutional right of access to counsel. Article 9(3) of the
Constitution did not specify when the accused person was entitled to consult a legal practitioner, or
even that the accused person must be informed of such a right. An arrested person must be granted
access to counsel within a reasonable time from his arrest. In this case, two weeks was a
‘reasonable time’ in all view of all the circumstances. What was crucial was that the accused be
given sufficient notice of the matter with which he was charged. The omission in the charge in the
present case did not cause injustice as this requirement was satisfied.
o (2) The court found no reason to disagree with the trial judge’s findings of fact or his assessment
of the witnesses’ credibility. On the facts, there was sufficient evidence to prove the relevant act of
trafficking and from which to infer a common intention between the two appellants to traffic in
these drugs.
o (3) On the evidence, the initiative to sell the drugs emanated from Jasbir. Fullet was not an agent
provocateur and there was no reason to disbelieve his evidence.
o (4) The trial judge was justified in refusing the defence an adjournment to adduce expert
evidence as to the authorship of a statement allegedly made by defence witness Zainal as the
defence was unable to show any real basis for applying for an adjournment. The exception in
s 23(3) of the Misuse of Drugs Act (Cap 185) applied to Zainal’s statement and Jasbir suffered no
injustice by the admission of Zainal’s statement. Furthermore, the trial judge did not place
improper reliance on Zainal’s statement.
o (5) Jasbir suffered no prejudice in being refused permission to cross-examine Chiranjit during the
voir dire of the latter’s cautioned statement as that statement was admitted only after the trial judge
decided that the prosecution had proved beyond reasonable doubt, its voluntariness
- judgement:
o 47 We had regard also to the only relevant Singapore authority on this issue, Lee Mau Seng v
Minister for Home Affairs, Singapore & Anor. All that was said of the constitutional right of
access to counsel in that case was: If a person who is arrested wishes to consult a legal
practitioner of his choice, he is, beyond a shadow of a doubt, entitled to have this
constitutional right granted to him by the authority who has custody of him after his arrest
and this right must be granted to him within a reasonable time after his arrest. The only
exception … is if there is provision in an enactment, which enactment is not ultra vires the
Constitution, depriving him of this right. [Emphasis added.]
o 48 Wee Chong Jin CJ, in giving the above judgment, did not elaborate on what he considered
a ‘reasonable time’ to be. However, since the only exception he allowed was that categorically
enacted by statute, it may be surmised that he intended the element of allowance for police
investigations and procedure to be already built into the ‘reasonable time’ time-frame. In
short, the Lee Mau Seng criterion really led to the same practical result as that set by the
Malaysian courts in the above-mentioned cases. In fact, this court preferred the Lee Mau Seng
criterion since, with all due respect, it seemed to us somewhat elliptical to say on the one hand
that an arrested person had a right to see counsel immediately but to stipulate on the other
hand that the police could deny him that right if they needed time to complete investigations.
o 49 In effect, therefore, neither Lee Mau Seng nor the Malaysian cases constituted support for
counsel’s submission that the first appellant suffered an injustice in not being granted immediate
access to a lawyer following his arrest. There is a world of difference between ‘within a
reasonable time’ and ‘immediately’; and, in our view, two weeks in the present case was a
reasonable period of time. In any case, as pointed out by the deputy public prosecutor, the
recording of a statement under s 122(6) of the CPC does not compel an accused person to make
any statement which incriminates him. The notice given under s 122(6) states only that he has to

32
 state any fact which he intends to rely on in his defence in court, and informs him of the
consequences of any omission to do so.

- Balasundaram v PP [1996] 2 SLR 331: accused person’s application to be represented by counsel of his
choice was turned down, and on appeal it was held that the right to be represented by counsel of his choice
was not an unqualified right

3) Right to be produced before a Magistrate without unnecessary delay.

- Article 9(4) states that an arrested person must be produced before a Magistrate without unnecessary delay,
and in any case must be produced within 48 hours of his arrest.
- c.f. Internal Security Act : trumping provisions in Constitution

Choong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia

- that MDA equivalent legislation, with preventive detention by Minister, is not inconsistent with Art 9(4)
rights. So too bad that he was not produced before a Magistrate in 24 hours (Malaysian requirements).

3. Powers of Search and Seizure EXAMS!!!!! – whether police can search and seize

1. General powers of search & seizure

Seizable & Non Seizable Offences
- if it is a non-seizable offence, the police have no automatic powers of search
- the powers of search of the police are very wide
- for other searches, the police must obtain a search warrant
- that is provided for in s. 61 – 64
Section 29(2) CPC
Section 26 CPC
Section 69(1) CPC
Section 70(1) CPC
Section 61(1) CPC
Section 62 CPC
Form of search warrant.
63. —(1) Every search warrant issued by a court under this Code shall be in writing signed by a Magistrate or
District Judge, or in the case of the High Court by a Judge of the High Court or by the Registrar, and shall bear
the seal of the court.
[62
(2) Every such warrant shall remain in force for a reasonable number of days to be specified in the warrant.
(3) Search warrants issued under this Code may be executed in any part of Singapore.

i) Pre-arrest search of place : S 25(1) CPC

Search of place entered by person sought to be arrested.

25. —(1) If any person acting under a warrant of arrest or any police officer having authority to arrest has reason
to believe that any person to be arrested has entered into or is within any place, the person residing in or in
charge of the place shall, on demand of the person so acting or the police officer, allow him free ingress to the
place and afford all reasonable facilities for search in it.

• Not a blanket search power, tide in with power of arrest.

• Person “to be arrested” :- operate pre-arrest
• Tan Yock Lin:- power to not just search, but implicitly also to seize the suspect person.
• ‘Any person acting under a warrant of arrest’ – not necessarily a police officer, maybe an enforcement
officer.
• “Reason to believe” – objective test, involves a lesser degree of conviction than certainty but a higher one
than speculation

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Koh Hak Boon v PP [1993] 3 SLR 421
• Facts:
- Charge of Disposal of stolen property under Section 414 of the Penal Code. 3 appellants were
found guilty as charged. Each appealed against conviction and sentence. Issue whether the
appellants knew or had “reason to believe” that the property was stolen property.
• Held: Dismissing the appeals:
- “Reason to believe” in Section 414 does not involve the necessity of showing that the
circumstances were such that a reasonable man must have felt convinced in his mind that the
property he was dealing with was stolen property. It involves a lesser degree of conviction than
certainty and a higher one than speculation.
- Test to be applied by the court, but from the perspective of the accused person. It must relate to the
standards of belief of a reasonable man and not to those of any particular accused person.
However, some element of subjectivity must be involved because what might be apparent to a
person with specialized knowledge of a certain field might not be apparent to a layman of even
very high intelligence. The court must assume the position of the actual individual involved (i.e.
including his knowledge and experience), but must reason (i.e. infer from the facts known to such
individual) from that position like an objective reasonable man.

SM Summit Holdings v PP [1997] 3 SLR 922.

ii) Post- arrest Search of Place : s29(2) CPC

Search of persons arrested.

29. (2) A police officer investigating into a seizable offence in the exercise of his powers under Chapter XIII may
enter the house or other place of abode of any person who is under arrest in connection with the offence and
search such premises for any evidence of the offence.

o Whereas Section 25(1) operates pre-arrest, once subject is arrested, powers to search his residence arise
from Section 29(2), provided the offence under investigation is a seizable offence.
o But search must be in connection with the offence subject is arrested for – Ghani v Jones [1970] 1 QB 693.
Nonetheless, illegally obtained evidence is still admissible R v Sang (much earlier).
o If it is a non-seizable offence, police must apply for search warrant.

iii) Searching of persons on premises: s26 CPC

Search of persons in place searched.

26. Whenever a search for anything is or is about to be lawfully made in any house or place in respect of any
offence all persons found in it may be lawfully detained until the search is completed, and they may, if the thing
sought is in its nature capable of being concealed on the person, be searched for it by or in the presence of a
Magistrate or Justice of the Peace or a police officer not below the rank of sergeant.

 Prerequisite: there is/ is about to be a lawful search of a place for a thing in respect of any offence. Then all
persons found in it may be lawfully detained until search is complete.
 If the thing sought is capable of being concealed on the person, such person may be searched but only in the
presence of
- Magistrate
- Justice of the Peace, or
- Police Officer not below the rank of Sergeant

iv) Searching arrested person s29(1) CPC

Search of persons arrested.

29. —(1) Whenever a person is arrested —
(a) 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
(b) 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,

34
the police officer making the arrest or, when the arrest is made by a private person, the police officer to whom the
private person makes over the person arrested may search such person and place in safe custody all articles other
than necessary wearing apparel found upon him and any of those articles which there is reason to believe were
the instruments or the fruits or other evidences of the crime may be detained until his discharge or acquittal.

• Place in safe custody all articles other than necessary wearing apparel found on him and;
• Detain anything reasonably believed to be the instruments or the fruits or other evidence of the crime until
his discharge or acquittal

v) Searching Women s28(2)

28. —Mode of searching women.
(2) Whenever it is necessary to cause a woman to be searched the search shall be made by another woman with
strict regard to decency.

vi) Other provisions:

- s. 58 gives power to the police to require a person to produce any document or other thing that the police
consider necessary or desirable for the investigation, trial etc, which the police believe that person has in his
possession
- this power is granted to both the police and the court
- the police can given a Notice to Produce
- upon receipt of a Notice to Produce a Document, the recipient of the notice is obliged to produce that
document
- s. 58 does not apply to an accused person
- if the police officer has reason to think that you are not going to oblige, then he can obtain a search warrant
- final Section of Schedule A refers to “Offences Against Laws Other Than The Penal Code” and there it tells
you how to identity whether an offence, under a law other than the Penal Code, is seizable or not, bailable or
not, compoundable or not

Summons to produce document or other thing.

58. —(1) Whenever any court or police officer considers that the production of any document or
other thing 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 the document or thing 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:
Provided that in the case of bankers’ books no police officer below the rank of inspector shall
exercise any of the powers conferred by this section or order the production of such books save at the
place of business of the bank.
(2) Any person required under this section merely to produce a document or other thing shall be
deemed to have complied with the requisition if he causes the document or thing to be produced
instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect any of the provisions of the Evidence Act or to
apply to any book, letter, postcard, telegram or other document in the custody of the
Telecommunication Authority of Singapore.

- Power to break down doors/windows S25(2)

Search of place entered by person sought to be arrested.

25. (2) If ingress to that place cannot be obtained under subsection (1) it shall be lawful in any case for a person
acting under a warrant and in any case in which a warrant may issue but cannot be obtained without affording the
person to be arrested an opportunity of escape for a police officer to enter the place and search in it, and in order
to effect an entrance into the place to break open any outer or inner door or window of any place whether that of
the person to be arrested or of any other person if after notification of his authority and purpose and demand of
admittance duly made he cannot otherwise obtain admittance.

- Power to break down doors/windows when trapped S27

35
27. Any police officer or other person authorised to make an arrest may break open any place in order to liberate
himself or any other person who having lawfully entered for the purpose of making an arrest is detained in it.

- Power to seize offensive weapons.

30. The officer or other person making any arrest under this Code may take from the person arrested any
offensive weapons which he has about his person, and shall deliver all weapons so taken to the court or officer
before which or whom the officer or person making the arrest is required by law to produce the person arrested.

- Search of person for name and address.

31. Every person lawfully in custody, who by reason of incapacity from intoxication, illness, idiocy, lunacy or
infancy is unable to give a reasonable account of himself, may be searched for the purpose of ascertaining his
name and place of abode.

- Powers of police to seize property suspected to be stolen.

68. —(1) Any police officer may seize any property which is alleged or suspected to have been stolen or which is
found under circumstances, which create suspicion of the commission of any offence.

- The catch all provision

- For common law position, see Chic Fashion (West Wales) v Jones [1968] 2 QB 299 & Elias v Pasmore
[1934] 2 KB 164

- Additional Powers in search for stolen prop, for rank of sergeant and above

When search may be made without warrant.

69. —(1) If information is given to any police officer not below the rank of sergeant that there is reasonable
cause for suspecting that any stolen property is concealed or lodged in any dwelling-house or other place and he
has good grounds for believing that by reason of the delay in obtaining a search warrant the property is likely to
be removed, that officer by virtue of his office may search for specific articles alleged to have been stolen in the
house or place specified.
(2) A list of the articles stolen or missing shall be delivered or taken down in writing with a declaration stating
that a robbery or theft has been committed and that the informant has good ground for believing that the property
is deposited in that house or place.
(3) The person who lost the goods or his representative shall accompany the officer in the search unless that
person or his representative cannot be found without unreasonable delay.
(4) In this section, “stolen property” has the meaning given to it in section 410 of the Penal Code.

Summary search. - - (in summary, means that in respect of stolen property, the police officer may search w/o
search warrant for that property only).
70. —(1) Any police officer may, under the circumstances mentioned in this section, be authorised in writing by
the Commissioner of Police to enter and, if so authorised, may enter any house, shop, warehouse, yard, grounds
or other premises in search of stolen property and search and seize and secure any property which he believes to
have been stolen in the same manner as he would be authorised to do if he had a warrant and the property seized,
if any, corresponded to the property described in the search warrant.
(2) Whenever any property is seized under this section the person on whose premises it was at the time of seizure
or the person from whom it was taken, if other than the person on whose premises it was, shall, unless previously
charged with receiving the property knowing it to have been stolen, be summoned before a Magistrate’s Court to
account for his possession of the property, and the Court shall make such order respecting the disposal of the
property and may award such costs as the justice of the case requires.
(3) The Commissioner of Police may give such authority as aforesaid in the following cases or either of them:
(a) when the premises to be searched are, or within the preceding 12 months have been, in the occupation of or
used by any person who has been convicted of receiving stolen property or of harbouring thieves;
(b) when the premises to be searched are in the occupation of or used by any person who has been convicted of
any offence involving fraud or dishonesty and punishable with imprisonment.

36
(4) It shall not be necessary for the Commissioner of Police on giving such authority to specify any particular
property but he may give the authority if he has reason to believe generally that those premises are being made a
receptacle for stolen goods.

- Special power of investigation for seizable cases s125 CPC

Search by police officer.

125. —(1) Whenever a police officer making a police investigation in a seizable case considers that the
production of any document or other thing is necessary to the conduct of an investigation into any offence which
he is authorised to investigate and there is reason to believe that a person to whom a summons or order under
section 58 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 a search to be made for it 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.

2. Search warrants
- ss.61 - 70 CPC

i) Issue of Search Warrants:

Section 61 of the CPC

- Where any court has reason to believe
a) A person will not comply with Summonses under Section 58(1) or requisitions under Section 59(1)
CPC and produce a doc or other thing;
b) That Doc or other things is not known to the court to be in the possession of any person; or
c) Court considers that the purposes of justice of any inquiry, trial or other proceedings under the CPC
would be served by a general search or inspection,
- The court may issue a warrant.

Section 62 of the CPC

- Magistrate’s Court may issue a warrant to search premises and seize stolen property, forged documents, or
forged or counterfeited trade marks.
- Powers under Section 62 CPC exercisable only by a Magistrate’s Court.
Lam Chiak v PP [1986] 1 MLJ 374
- time period for which a warrant is valid
- Held , dismissing the application:
o (1).Section 62(2) did not provide that a warrant shall specify a reasonable number of days in which
it is to remain in force. What was provided essentially was the continuation in force of a warrant
after its issue, subject only to one limitation: the period therein to be specified in which it is to
remain in force must be reasonable. The requirement to specify the number of days in a warrant is
directory and not mandatory.
o (2).In the instant case the failure to specify in the warrant the number of days in which the warrant
was to remain in force did not render the warrant invalid immediately after the date of its issue.
The warrant was valid when it was issued and remained valid for a reasonable number of days,
notwithstanding that such number of days was not stated therein. (In the circumstances of this case
a period of five to seven days after its issue was undoubtedly reasonable).
o (3).The warrant was therefore in force at the date of its execution.

SM Summit Holdings v PP [1997] 3 SLR 922

37
- HC judge has no power to sit as magistrate, cannot issue search warrant out of court.
- Scope of validity:
o “Even though the first two warrants were valid, the items seized … did not form part of the
infringement … did not fall within the terms of the first two search warrants … As such, the
documents seized were not authorised by the search warrants and had to be returned ...”
- Facts: These two related actions were heard together. The first was a criminal revision brought by the
petitioners to quash the three search warrants granted on 12 August 1997. The petitioners applied to quash
the three warrants, and seeking an order for all the items and documents seized pursuant to the three
warrants to be returned. They argued that the search warrants were not validly granted, and even if they were
valid, the execution of the search warrants was improperly done. Further they argued that third warrant was
issued by a High Court judge who had no jurisdiction to do so.
- Held: The test for sufficiency of information before the magistrate to satisfy ‘reason to believe’ in s 62 CPC
or ‘reasonable cause to suspect’ in s 136(9) Copyright Act was an objective one. In considering whether
there was ‘reason to believe’ or ‘reasonable cause to suspect’ that the relevant offence was committed, the
magistrate was entitled to take into matters which would not otherwise have been admissible at trial or
matters which were admissible but would not have on their own proven the case. Based on the totality of the
evidence, there was sufficient information in the two statutory declarations by the former employees to
justify the magistrate issuing the search warrant.
- Secondly, Section 136(9) Copyright Act and s 62 CPC did not impose a requirement for the complainant to
make full and frank disclosure before the magistrate in the application for a search warrant.
- Finally, the third warrant was issued by a High Court judge who purportedly sat as a magistrate and directed
all orders issued by him as that issued by the subordinate courts. However a High Court judge had no power
to sit as a magistrate or to issue orders as a magistrate. Hence the third warrant was quashed for want of
jurisdiction. Evidence seized under the third warrant had to be returned to the owners.
- Comments: It was not the case that all forms of illegally obtained evidence outside confessions or
admissions were admissible at a trial or could properly have been considered by a magistrate in an
application for a search warrant. There was a distinction between, on one hand, illegality on the part of the
law enforcement officer in the obtaining of evidence of a crime that was already committed, and on the other
hand, illegality that preceded the crime and which was designed to bring about the commission of the crime.
In the former, illegality was only in relating to the means of proof of an offence already committed and in
the latter, the illegality on the conduct of the law enforcement officer constituted an essential element of the
charge. In the latter, the evidence ought not to have been considered by the magistrate as the illegality and
the threat to the rule of law assumed a particularly malignant aspect.

- Is making of a summon under Section 58 CPC or a requisition under Section 59 a pre-requisite to invoking
Section 61(1)(c)?

- Sufficiency of information to satisfy “reason to believe” test?

- Section 64 of the CPC states that a Magistrate’s Court may issue a search warrant to search for persons
wrongfully confined.

Miscellaneous Provisions
- Section 63 – Form of search warrant (see also Form 8)
- Section 65 – Persons in charge of a closed place is obliged to allow search, otherwise forced entry is
permitted.
- Section 66 – List of all things seized must be made and signed. A copy is to be given to the occupant at his
request. Occupant or his agent permitted to attend during the search.
- Section 67 – Court power to impound document or other thing produced before it.
- Is illegally obtained evidence admissible?
o Illegally or irregularly obtained evidence does not in itself prevent the evidence from being
admissible if it is relevant and not unduly prejudicial.

Karuma v Queen [1955] AC 193

PP v Saridan [1984] 1 MLJ 141

38
Cheng Swee Tiang v PP [1964] MLJ 291

- However distinction drawn in SM Summit between the admissibility of evidence and the retention of
evidence pursuant to illegally obtained search warrants. There challenge came in early. Private pros matter
(IP case), plaintiffs had seized exhibits illegally and kept hem. Admisslbe but court will not allow the party
to hold the exhitis all the way till trial comes. But if entitled tohold on to them, then can use in trial even
though obtained illegally.
- R v Sang principles. First consider its relevance to the case. If evidential value is outweighed by its
prejudicial effect= discretion to exclude. If self-incriminating admission= discretion to exclude. Fact that the
court has a discretion doesn’t mean it will be exercised R v Trump.
- How are the cases below still relevant in the light of R v Sang applied via Summit? Look above at my
discretion to exclude evidence on bad arrests bit. I shall still leave these cases here.
- Note distinction drawn in SM Summit between the admissibility(OK) and retention(BAD) of evidence from
illegally obtained search warrants. I.e. Cannot retain illegally obtained evidence

PP v Seridaran [1955] 1 MLJ 141

- Facts:
o The issue before the present Court was, "in a prosecution of a non-seizable case conducted by the
police before a court, where such non-seizable case has earlier been investigated by the police, is it
incumbent on the prosecution to produce the order to the police to investigate issued by the Public
Prosecutor?"
o The learned Magistrate applied his mind solely to the failure to produce the said order, and upon
such failure, he had relied for holding the trial before him to be a nullity and ordered an acquittal.
- Held:
o 1) irrespective of whether such an order to investigate has in fact been obtained or not by the police
under s 108(ii) of the Criminal Procedure Code, it is not incumbent for the prosecution to produce
such an order at the trial, for failure to produce it in no way affects the jurisdiction of the court to
hear the case unlike s 129(1) of the Criminal Procedure Code, e.g. where it is expressly provided
that the court shall not take cognisance of certain specified offences except with the previous
sanction of the Public Prosecutor;
o 2) even assuming the trial to be a nullity, the learned magistrate should have discharged the
defendant, with such discharge not amounting to an acquittal. The order of acquittal would
therefore be set aside and a re-trial be ordered.

Cheng Swee Tiang v PP [1964] MLJ 291

- Facts:
o The appellant was charged with assisting in the carrying on of a public lottery, to wit, a "characters
lottery" and at the conclusion of the trial he was found guilty and sentenced to a fine of $750 or
three months imprisonment in default. Two police officers on the instructions of a superior officer
entered the appellant’s shop, which deals in textiles, provisions and cigarettes for the express
purpose of entrapping the appellant into accepting their stakes in a 10,000 characters lottery.
- Held:
o While evidence unlawfully obtained is admissible if relevant, there is a judicial discretion to
disallow such evidence if its reception would operate unfairly against an accused. Kuruma v The
Queen [1955] AC 197; [1955] 1 All ER 236 and Callis v Gunn[1963] WLR 931; [1963] 3 All ER
677 followed. From a standpoint of principle two important interests come into conflict when
considering the question of admissibility of evidence so obtained. On the one hand there is the
interest of the individual to be protected from illegal invasions of his liberties by the authorities
and on the other hand the interest of the State to secure that evidence bearing upon the commission
of crime and necessary to enable justice to be done shall not be withheld from the courts on any
merely technical ground. Purely on principle it is not clear that the harm to the public is
substantially incontestable if evidence unlawfully obtained is admitted.
o Test is one of relevancy; as long as relevant will be admissible – courts take robust view in sg
- Comments:
o Justice Ambrose DISSENTED. He said, "To my mind the discretion referred to in Kuruma’s case
and Callis v Gunn seems to be a new development of the common law in England. It was not
referred to by Lord Goddard in Brannan v Peek [1947] 2 All ER 573. It was not mentioned by

39
 Spenser Wilkinson J in his judgment in Teja Singh and Mohamed Nasir v Public Prosecutor
[1950] MLJ 71, where it was argued unsuccessfully that the courts should frown upon questionable
methods to the extent of refusing to accept the evidence of agents provocateurs. It is not mentioned
in Sarkar’s Law of Evidence, 10th Edn, 1959. It appears therefore that the courts in India have not
recognized such a discretion. I do not see how the courts in Singapore can recognize such a
discretion without express statutory provision."

4. Powers to Compel Production of Documents & Things

Summons to produce document or other thing.

58. —(1) Whenever any court or police officer considers that the production of any document or other thing 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 the document or thing 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:

- commonly used by defence to apply for accused’s long statement. S121 CPC.
- Accused persons normally given caution statement under 122.6 CPC but long statement not furnished to
counsel normally. Some cases saying that pros not obliged to release long statement to defence- good
reasons. Accused to go to court and give his version of what happened. To check if any unconsistencies that
he been fabricating evidence to exonerate himself. A

- s58(3) + s59 CPC : cannot compel Telecomms and Postal Authority

- s58(1) CPC : proviso 2 : only inspectors and above can inspect banker’s books, at the bank itself
- Points to note:
• Issued by any court or police officer
• Production of document/thing is ‘necessary or desirable for purposes of any investigation, trial or
proceeding under CPC’
• Directed at person in possession or power over the document/thing.
• Section 42 – 45 of the CPC (procedures relating to summons) applies. See also Section 60 CPC.

Form of summons.
42. —(1) Every summons to appear issued by a court under this Code shall be in writing and signed by a
Magistrate or District Judge, as the case may be, or in the case of the High Court by a Judge of that Court or by
the Registrar, and shall bear the seal of the court.

Summons by whom served.

(2) Such summons may be served by a police officer or by an officer of a Magistrate’s Court or District Court,
and, if the summons is in connection with an offence under an Act which it is the duty of a Government
department to enforce, by an officer of that Government department. The court issuing the summons may, if it
sees fit, direct it to be served by any other person.
(3) Every such summons shall remain in force until it is cancelled by the court or until the person summoned is
discharged therefrom by a court.
(4) When a summons cannot be served within such time as will give reasonable notice to the person summoned
to attend the court on the date stated therein, the court may in writing substitute some later date for the date so
stated.

Summons how served.

43. —(1) The summons shall, if practicable, be served personally on the person summoned by showing him the
original summons and by tendering or delivering to him a copy thereof under the seal of the court.
(2) Every person on whom a summons is so served shall, if so required by the serving officer , sign a receipt for
the copy thereof on the back of the original summons.
(3) In the case of a corporation the summons may be served on the secretary or other like officer of the
corporation.
(4) Where the person to be summoned cannot, by the exercise of due diligence, be found the summons may be
served by leaving a copy thereof for him with some adult member of his family or with his employee residing
with him.

40
Procedure when personal service cannot be effected.
44. When the person to be summoned cannot, by the exercise of due diligence, be found and service cannot be
effected as directed by section 43 (4) the serving officer shall affix a copy of the summons to some conspicuous
part of the house or place in which the person summoned ordinarily resides, and in such case the summons, if the
court so directs either before or after such affixing, shall be deemed to have been duly served.
Proof of service.
45. When a summons issued by a court is served an affidavit of such service purporting to be made before an
officer duly authorised to administer an oath shall be admissible in evidence.
Sections 42, 43, 44 and 45 to apply.
60. Sections 42, 43, 44 and 45 shall apply in relation to summonses under this Chapter. (Chapter VI)

- Which is the court, which has jurisdiction to issue summons? Must it be the court in which the trial, inquiry
or proceeding is being held? At which stage of proceedings should the application should be made?
o Answers : Trial court. Should NOT be at preliminary stage, only after prosecution called evidence.

Kulwant Singh v PP [1986] 2 MLJ 10

- cannot be at pre trial stage counsel will ask for it at pre trial stage. Singh says that must wait till trial begins
and defence makes applic to trial judge and judge decies whether nec or desirable to give statement to
accused.
- Facts: Applicant awaiting committal proceedings before a magistrate. He made two statements to the police.
One was under Section 121(6) of the CPC. The other was made earlier. He applied to the High Court to be
furnished with certified copies of a number of documents arising out of the investigations. He was furnished
with a certified copy of the FIR. He proceeded only with his application for a certified copy of the earlier
statement to the police.
- Held: Application dismissed.
o (1) The High Court had no jurisdiction to hear this application because: (a) there was no provision
in the SCJA giving any such jurisdiction; and (b) if the application was under s 58(1) CPC, the
application should have been made not to the High Court, but to the trial court, in this case the
magistrate who would conduct the preliminary inquiry.
o (2) Barring applications for documents referred to in the charge, an application under s 58(1) to the
trial court could be made only after the prosecution called evidence. The rule of relevancy had to
be strictly enforced. Only in the course of proceedings would there be material on which the court
could decide on relevancy and the necessity or desirability of compelling production of the
required documents. The application could be made only after such material became available.
o (3) Section 78 of the Evidence Act gave the right to a certified copy of a public document where
there was a right to inspect that document. No right to inspect was given by the Evidence Act. It
had to be found in some other statute. The applicant had no right under any law to inspect a
statement he made to the police. Therefore, he could not ask a court to compel production of a
certified copy of his earlier statement.
o (4) When a court issued or refused to issue a summons under s 58(1) there was no right of appeal
against such issue or refusal but it could be made a ground of appeal after final order on the
conclusion of proceedings.
o (5) There was no warrant under statute or the common law to introduce into criminal proceedings
the process of discovery in civil proceedings.

- Must applicant specify documents sought to be seized?

o Yes
o SM Summit Holding no fishing expeditions.
o Tan kee koon 1955 3 SLR 124 – must show tt ec or desirable for prdtn, before court will
order the production

- ‘Necessary or desirable’ mean the same and are cumulative to `relevant’

PP v Teoh Choon Teck [1963] MLJ 24

- Facts:

41
 o The accused was charged in the Magistrate’s Court at Penang with two charges of forgery under
Section 465 of the Penal Code, in one of which the document he was alleged to have forged was a
letter and in other charge he was alleged to have made a false endorsement on a cheque. It was the
defence case that both the signature on the letter and the endorsement on the cheque were those of
the complainant.
o Prior to the accused being charged the police had searched his house and taken away a number of
documents, among which was the letter referred to in the first charge. After the accused had been
charged in court his counsel asked to be allowed to inspect the documents seized by the police and
take copies of them. This request was opposed by the prosecution. In the end the Magistrate made
an order that since the documents belonged to the accused, he was entitled to photostat copies of
them, but was not entitled to the originals. The Deputy Public Prosecutor thereupon filed an appeal
against this order of the Magistrate.
- Held:
o In criminal trials before a Sessions or Magistrates’ Court, apart from the provisions of Section 59
and 182(l) of the Criminal Procedure Code, there is no power for the President or the Magistrate to
order the prosecution to produce the documents relevant to the case.
o Secondly, as the documents were specifically referred to in the charges and as it was essential for
the accused to have the originals or photostat copies in order for him properly to prepare his
defence, which could not otherwise be prepared, the Public Prosecutor in order to ensure that
justice was not only done but seen to be done should not have raised objections, on the particular
facts of this case, to the defence being supplied with photostat copies of the letter and the cheque
and also any other documents removed from his possession which he required for the furtherance
of this defence.

- Omission to produce constitutes an offence under s.175 of the Penal Code

175. Whoever, being legally bound to produce or deliver up any document to any public servant, as such,
intentionally omits so to produce or deliver up the same, shall be punished with imprisonment for a term which
may extend to one month, or with fine which may extend to $500, or with both; or, if the document is to be
produced or delivered up to a court of justice, with imprisonment for a term which may extend to 6 months, or
with fine which may extend to $1,000, or with both.
Illustration
A, being legally bound to produce a document before a Magistrate’s Court, intentionally omits to produce the
same. A has committed the offence defined in this section.

- If the summons is not complied with or there is reason to believe it will not be complied with, apply for a
search warrant by invoking complementary provision in s.61(1)(c) CPC
- Summons for accused person’s police statements:

- Can defence apply under Section 58 of the CPC for accused’s statements where ‘necessary or desirable’?
e.g. for corroborative purposes
o answer now seems to be YES. Soosainathan [2003] SGCA 9; PP v Ng Weng Siang [2003] 4 SLR
619
o Where defence witnesses have all finished testifying, no more basis for denying right of accused’s
statement since no longer fear of tailoring of evidence

Png Chong Hua v PP [1997] 2 SLR 417

Tay Kok Poh Ronnie v PP [1996] 1 SLR 185

- Facts:
o Corruption case. Appellant tried in a joint trial with Chua. Prosecution’s case was that the appellant
gave $100 to Koh to give to Goh to pass to Chua. The charge merely alleged that the appellant
gave the money to Chua through Goh at the worksite. When asked to give his s 122(6) statement,
the appellant had said that he had nothing to say.
o At the trial, Koh gave evidence that the appellant gave the $100 to him with the above instructions.
When he gave the money to Goh, he told Goh that the appellant wanted him to hand it to Chua.
Goh's evidence, on the other hand, was that when Koh gave him the money, he merely pointed at

42
 Chua and said nothing. The appellant denied that he gave any money to Koh. His defence was that
he was not even at the office at the material time. He claimed to be at a worksite at Marine Parade
on the morning of 13 July 1993, but he could not remember who was with him at the time. His
evidence was that whatever he had told the CPIB officers in his Section 121 statement was the
truth. The appellant called an employee of his, Low, to give evidence that he was not in the office
at the material time. The prosecution relied heavily on a single paragraph in the Section 121
statement in which the appellant denied that he handed any money to Koh in his office. The
defence was not allowed a sight of the rest of that statement even after the defence witnesses had
finished giving evidence.
o The appellant was convicted along with Chua. He appealed.
- Held: Allowing the appeal:
o The court could not accept the prosecution’s submission that the appellant must have known of the
crux of the prosecution’s case by November 1993, when the Section 121 statement was recorded as
the court could only refer to a single paragraph of the Section 121 statement to come to such a
conclusion. This would have been a dangerous course to follow as the solitary paragraph could
easily have been taken out of context. It was impossible to assess the weight to be attributed to this
lone paragraph
- Comments:
o Since the appellant maintained that what he said in the statements was the truth, the contents of the
Section 121 statement would have become part of his testimony. The entire Section 121 statement
should, therefore, have been admitted and marked as evidence.
o Once the defence witnesses had finished giving evidence, there was no longer any basis for
denying the defence sight of the accused’s s 121 statement as there was no question of the
defence tailoring evidence at this stage and all the material that would be required for the
court to determine its relevancy would also be before the court (see p 196H-I).
o By Section 159 of the Evidence Act, an accused’s Section 121 statement could be used to
corroborate his testimony. Hence, the defence was denied a relevant piece of evidence by the
prosecution when it refused at this stage to let the defence have the statement. Where the case
involved a bare allegation by a prosecution witness against the bare denial of the accused, such
evidence could turn out to be of pivotal importance. Denial of such evidence was not conducive to
a fair trial

- Can defence apply under Section 58 CPC for production of witness statements?
o Answer :- s 122(1) and s122(2) CPC : NO, because it shall not be used as evidence!
Admissibility of statements to police.
122. —(1) Except as provided in this section, no statement made by any person to a police officer in the course
of a police investigation made under this Chapter shall be used in evidence other than a statement that is a written
statement admissible under section 141.
(2) When any witness is called for the prosecution or for the defence, other than the accused, the court shall, on
the request of the accused or the prosecutor, refer to any statement made by that witness to a police officer in the
course of a police investigation under this Chapter and may then, if the court thinks it expedient in the interests of
justice, direct the accused to be furnished with a copy of it; and the statement may be used to impeach the credit
of the witness in the manner provided by the Evidence Act.

5. Special Powers of Investigation and recording of statements

a) In Seizable Cases

CPC –
Investigation in seizable cases.
118. —(1) Any police officer may, without the order of the Public Prosecutor, exercise all or any of the special
powers relating to police investigations given by sections 120, 121, 125 and 126 in any seizable case.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that
the case was one in which that officer was not empowered under this section to exercise the special powers of
police investigations given by sections 120, 121, 125 and 126.

- s. 119(1) requires that the police refer any case in which they have effected an arrest to the Public Prosecutor

43
Procedure where seizable offence suspected.
119. —(1) If from information received or otherwise a police officer has reason to suspect the commission of a
seizable offence he shall forthwith proceed in person or shall depute one of his subordinate officers to proceed to
the spot to investigate 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 and shall report the same to the Public
Prosecutor:
Provided that —
(a) where 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 information need not proceed in person or depute a
subordinate officer to make an investigation 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.
(2) In each of the cases mentioned in paragraphs (a) and (b) of the proviso to subsection (1) the police officer
receiving the information shall state in his report his reason for not fully complying with subsection (1).
(3) Where a police officer not below the rank of inspector exercises the power of deputation given by subsection
(1) the subordinate officer so deputed shall not be entitled to use any of the powers given by sections 120, 121,
125 and 126:
Provided that the Commissioner of Police with the written approval of the Attorney-General may authorise by
name and in writing any police officer below the rank of inspector to use in seizable cases all or any of the
powers referred to in this Chapter in such circumstances as may be stated in the written authority.

• To require attendance of witness (Section 120)

Police officer’s power to require attendance of witnesses.

120. —(1) A police officer making a police investigation under this Chapter may, by order in writing, require the
attendance before himself of any person being within the limits of Singapore 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:
Provided that no person shall be required under this section to attend at any place distant more than 11 kilometres
from his usual place of abode.
(2) If any such person fails to attend as so required such police officer may report such failure to a Magistrate
who may thereupon in his discretion issue a warrant to secure the attendance of that person as required by such
order.

• To examine and record his statement (Section 121)

Examination of witnesses by police.

121. —(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.
(2) Such person shall be bound to state truly the facts and circumstances with which he is acquainted
concerning the case except only that he may decline to make with regard to any fact or circumstance a statement
which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) A statement made by any person under this section shall be read over to him and shall, after correction if
necessary, be signed by him.

• To search of documents/ other things which are necessary to conduct of investigation (Section 125)

Search by police officer.

125. —(1) Whenever a police officer making a police investigation in a seizable case considers that the
production of any document or other thing is necessary to the conduct of an investigation into any offence which
he is authorised to investigate and there is reason to believe that a person to whom a summons or order under
section 58 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 a search to be made for it in any place.
(2) That officer shall, if practicable, conduct the search in person.

44
(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.

• To require bond of appearance of complainant and witnesses (Section 126)

- – ie if do not turn up, must pay certain amt of money

Police officer may require bond for appearance of complainant and witnesses.
126. —(1) If upon a police investigation under this Chapter it appears to the officer making the investigation that
there is sufficient evidence or reasonable ground of suspicion to justify the commencement or continuance of
criminal proceedings for a seizable offence against any person, the officer shall require the complainant, if any,
and so many of the persons who appear to the officer to be acquainted with the circumstances of the case as he
thinks necessary, to execute a bond to appear before a court and give evidence in the matter of the charge against
the accused.
(2) The officer in whose presence the bond is executed shall send it to the court.
(3) If any complainant or witness refuses to execute the bond, that officer shall report the matter to the court
which may then in its discretion issue a warrant or summons to secure the attendance of the complainant or
witness before itself to give evidence in the matter of the charge against the accused.

b) Non seizable cases

- Section 116 – Investigation powers of the police without order of PP, for non-seizable offences:
o Police cannot exercise powers under Section 120, 121, 125 or 126 without order of Magistrate or
PP (Section 115(2) of the CPC)
o Where such orders are received, police can exercise such powers except power to arrest without
warrant (Section 116(3) of the CPC)

Information in non-seizable cases.

116. —(1) When the information so received or recorded under section 115 relates to a non-seizable offence the
case shall thereupon be investigated or the informant shall, by order of a police officer, be referred to a
Magistrate.
(2) No police officer shall in a non-seizable case exercise any of the special powers relating to police
investigations given by sections 120, 121, 125 and 126 without the order of the Public Prosecutor or a
Magistrate.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation, except
the power to arrest without warrant, as that police officer may exercise without an order in a seizable case.
(4) Any informant referred to a Magistrate shall be supplied with a copy of any report filed or recorded under
section 115 on which shall be endorsed the name of the police station at which the information was received.

6. Other powers of investigations

. Police Investigations
- any person who is called to make a statement is by law required to state truly the facts and
circumstances with which he is acquainted
- any person who refuses to give a statement commits an offence under s. 179 PC, and for furnishing
false information, there is an offence prescribed in s. 177 PC
Furnishing false information.
177. Whoever, being legally bound to furnish information on any subject to any public servant, as such,
furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be
punished with imprisonment for a term which may extend to 6 months, or with fine which may extend to
$1,000, or with both; or, if the information which he is legally bound to furnish respects the commission
of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the
apprehension of an offender, with imprisonment for a term which may extend to 2 years, or with fine, or
with both.

45
 Illustrations
(a) A, a landholder, knowing of the commission of a murder, within the limits of his estate, wilfully
misinforms the police of the district that the death has occurred by accident in consequence of the bite of
a snake. A is guilty of the offence defined in this section.
(b) A, a police officer, or penghulu, knowing that a considerable body of strangers has passed through his
village in order to commit a gang-robbery in the house of Z, a wealthy merchant residing in a
neighbouring place, and being bound to give information of the above fact to his superior officer, wilfully
misinforms the officer that a body of suspicious characters passed through the village with a view to
commit gang-robbery in a certain distant place in a different direction. Here A is guilty of the offence
defined in this section.
Explanation.
In section 176 and in this section “offence” includes any act committed at any place out of Singapore,
which if committed in Singapore would be punishable under any of the following sections, namely, 302,
304, 382, 392, 393, 394, 395, 396, 397, 399, 402, 435, 436, 449, 450, 457, 458, 459 and 460, and
“offender” includes any person who is alleged to have been guilty of any such act.
Refusing to answer a public servant authorised to question.
179. Whoever, being legally bound to state the truth on any subject to any public servant, refuses to
answer any question demanded of him touching that subject by such public servant, in the exercise of the
legal powers of such public servant, shall be punished with imprisonment for a term which may extend to
6 months, or with fine which may extend to $1,000, or with both.

- PP v Loh Chai Huat [2001] SGDC 174 (look at case doc)

- Rosli bin Othman v PP:
• Court dealt with the issue of a witness’s (in that case, the complainant’s) statements given to the
police during the course of investigations
• Court held that the approach to s. 122(2) CPC was that once grounds were put forward and the
Court was satisfied that there was reason to believe the existence of inconsistency between the
witness’s previous statement(s) and his/her evidence in Court, the Court shall have no choice but to
look at the statement to assess the factual basis for the application (in that case by the
Defence/Appellant) that there was a material inconsistency

Admissibility of statements to police.

122. —(2) When any witness is called for the prosecution or for the defence, other than the accused,
the court shall, on the request of the accused or the prosecutor, refer to any statement made by that
witness to a police officer in the course of a police investigation under this Chapter and may then, if
the court thinks it expedient in the interests of justice, direct the accused to be furnished with a copy
of it; and the statement may be used to impeach the credit of the witness in the manner provided by
the Evidence Act.
- First information report (FIR) together with the s. 122(6) statement are routinely asked for from the
police
- CPC is silent on the right of the accused to inspect the FIR, but under the common law, the accused has
the right as a person interested in it, to inspect it if it was necessary for the protection of his interests
- This position was developed further in the case of Husdi v PP where it was stated that the right of an
accused person to the FIR was nothing more but a consequence of his right to be informed as soon as
may be of the grounds of his arrest

7. Identification Parade
- ‘The usual and proper way of identifying persons suspected of a particular crime is to hold a proper
identification parade’ See PP v Anor Singh [1948 – 1949] MLJ Supp 55.
- No legislative procedures prescribed for the conduct of identification parade. In practice, 2 types.
(a) Rogue gallery
 Records of photographs of criminals kept by Criminal Records Officer, CID
 Short list of possible culprits drawn up from details given by witnesses
(b) ID Parade
- Actual line-up of suspects for identification through one-way mirror

I) However, it is not always necessary to hold an ID parade.

46
- identification parade is but one of the many means by which the identity of the accused is matched with the
identity of the suspected offender
- a trial judge may be confronted with an unprecedented fact, unique to the case before him, which helps
augment the witness’s positive identification of the accused as the suspected offender
- in light of Yong CJ’s use of the guidelines in Turnbull in Ang Jwee Herng, the judge is at total liberty to use
this fact to match the 2 identities

- ie no need ID parade if eg date rape.

- Mehtab Singh v State of Madhya Pradesh [1975] AIR SC 274
- Surjit Singh v State [1986] CRI. LJ 1910

Ang Jwee Heng v PP [2001] 2 SLR 474 : (CJ)

- Whether it is necessary depends on the circumstances of each case. Obviously not necessary if caught red-
hadnded. However if accused is not known to the eyewitness, it may be prudent for the police to conduct an
ID parade not only to ensure that the witness’s memory regarding the identity of the accused person is tested
but also to ensure that the investigation is proceeding on the right track and that the person arrested is the
real culprit.
- On facts, accused who was not a complete stranger to the witnesses, and he was seen on brightly lit premises
for > 1 occasion, each time for 10-15 min, = ample opportunity to observe him = no need for ID parade.
(Non-exhaustive list of factors at manual pg 57 like obstructions, frequency of seeing)
• defence counsel attacked the failure by the police to conduct an identification parade for the prosecution
witnesses
• he argued that the dock identification of the appellant by the witnesses in court, more than seven months
after they were arrested and more than eight since they last saw him, was unreliable and should not have
been relied upon by the district judge
• Yong Pung How CJ ruled point was already dealt with in Awtar Singh s/o Margar Singh:
 Whether it is necessary to conduct an identification parade depends on the circumstances of each
case
 It would not be necessary when the accused person is arrested while committing the offence
 However, if the accused person is not known to the eyewitness, it may be prudent for the police to
conduct an identification parade not only to ensure that the witness’s memory regarding the
identity of the accused person is tested but also to ensure that the investigation is proceeding on the
right track and that the person arrested is the real culprit
 On the facts of the present case, it was clear that the appellant was not a complete stranger to [the
relevant witnesses] even if he had not been formally introduced to them nor they to him
 What was important was that he had been seen on the brightly-lit premises on more than one
occasion, where he had remained for at least 10 to 15 minutes on each visit
 In the circumstances, the men were afforded ample opportunity to observe him which they did
 The failure to conduct an identification parade in this case did not diminish the probative value of
the identification evidence given

Loh Kim Lan & Anor v PP

- (CJ) lack of parade not destroy positive effect of other ID evidence.
- While the failure to conduct an identification parade may in certain circumstances render the identification
evidence of the eyewitness suspect, it is not every failure which adversely affects the probative value of an
eyewitness’ evidence

cf : PP v Sarjeet Singh [1994] 2 MLJ 290

- the respondents were tried for robbing a taxi driver
- the identification evidence of the taxi driver was found to be wholly unsatisfactory
- no identification parade was conducted even though the alleged incident took place in the dark and there was
no evidence that the taxi driver knew his assailants prior to the robbery
- he was not asked by the prosecuting officer to identify his assailants in court on the day of the hearing
- the court was of the view that an identification parade ought to have been conducted
- learned judge in Sarjeet Singh continued that the failure to hold an identification parade in such a case
would not invariably vitiate the trial but it would be undoubtedly a very important feature in considering the
credibility of the witnesses on the point of identification

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- the acquittal of the respondents was affirmed

Awtar Singh s/o Margar Singh [2000] 3 SLR 439 (CJ)

- Holistic approach, look to whether all of ID evidence was of good quality, according to Turnbull guidelines
+ non-exhaustive list of factors.
- in what circumstances will the court go the extra mile to rule that an identification parade ought to have been
conducted and what would be the consequences of such a ruling?
- If the accused person is not known to the eyewitness, it may be prudent for the police to conduct an
identification parade not only to ensure that the witness’s memory regarding the identity of the accused
person is tested but also to ensure that the investigation is proceeding on the right track and that the person
arrested is the real culprit

PP v Manit Wangjaisuk [1995] 1 SLR 326 HC

- Facts: Murder committed in the course of gang robbery under Section 396 of the Penal Code, 4 co-accused.
Prosecution based primarily on statements made to the police by the respondent’s co-accused (the 1st, 2nd
and 4th accused). At the close of the prosecution case, the trial judge held that the prosecution had failed to
make out a case against the respondent because the statements adduced from the respondent’s co-accused
did not positively identify the respondent as one of the perpetrators of the offence charged. The judge held
further that there was no other evidence in the case, which sufficiently incriminated the respondent in
respect of the charge against him. Accordingly, he discharged and acquitted the respondent without calling
on his defence.
- On appeal, the prosecution argued that the statements made by the respondent’s co-accused in fact identified
the respondent as an accomplice, and that, in addition to the statements, there existed other evidence
showing the respondent’s involvement in the offence charged.
- Held: Allowing the appeal:
o (1) The cautioned statements of the second and fourth accused identified the respondent as an
accomplice in the offence charged.
o (2) In addition to the statements, there existed other evidence led by the prosecution, which
showed the respondent’s involvement.
o (3) The respondent himself had also been identified by the fourth accused from photographs shown
to the latter by the police. The investigating officer’s failure to describe or produce in court the
photographs in question was a factor, which affected only the accuracy of the identification
evidence; accuracy is not a relevant factor in a trial court’s consideration of the evidence at the
close of the prosecution case.
o (4) A case had been made out by the prosecution against the respondent, which if unrebutted,
would warrant his conviction. The case against the respondent was to be remitted to the High Court
for his defence to be called.

Tan Han Tiong v PP [1994] 2 SLR 587 HC

- Facts:
o Trafficking in furtherance of the common intention of them both. The first appellant was pillion
rider on a motorcycle, which refused to stop when directed to do so by police officers in a police
patrol car. After a short chase, the first appellant was arrested by the police officers. He had earlier
been seen holding a white plastic bag whilst riding on the motorcycle and later whilst running
away from the police officers. When arrested, he no longer had the bag with him. However a white
plastic bag bearing the word ‘Takano’ was recovered from a pick-up parked near the scene of his
arrest and two packets of granular substance, discovered on analysis to be diamorphine, were
found in the bag. The first appellant denied knowledge of the bag or its contents but admitted, in
his cautioned statement, to there having been a plastic bag placed between the motorcycle rider and
himself on 19 February 1989. He claimed however that it had been placed there by the rider of the
motorcycle.
o The rider of the motorcycle escaped from the police officers. Subsequently the second appellant,
who was arrested in an unconnected raid by officers from the CNB some weeks after 19 February
1989, was ascertained to be the registered owner of the motorcycle. In an identification parade, two
of the four police officers that had been present on 19 February 1989 identified the second
appellant as the motorcycle rider. However the first appellant, when shown a photograph of the
second appellant, denied that he had been the motorcycle rider and insisted instead that it had been

48
 someone else he knew only as ‘Ah Kow’. The second appellant himself claimed that he had lent
his motorcycle to one ‘Ah Kow’ on 18 February 1989 and that Ah Kow had failed to return the
motorcycle.
o The trial judge rejected the defences of the two appellants and found them guilty of the charge
against them. On appeal, counsel for the second appellant argued that the identification evidence
against the second appellant was unreliable and inadequate.
- Held: allowing the appeal of the second appellant:
o  As to the second appellant, the only factor linking him to the events of 19 February 1989 was
his ownership of the motorcycle FG 3418B. Apart from the evidence of the two special constables
who picked out the second appellant at the identification parade on 16 March 1989, there was a
paucity of other evidence capable of establishing the second appellant as the motorcycle rider of 19
February 1989.
o On appeal the identification evidence of these two special constables was shown to be
unsatisfactory, particularly in view of their admission at trial that they had seen the motorcycle
rider only for a few seconds and from a distance of some seven to eight metres. The other two
police officers, which had in fact had a better view of the motorcycle, failed entirely to
identify the second appellant as the rider in the identification parade.
o Furthermore, despite the case against the second appellant having turned a great deal on the
identification of the motorcycle rider, none of the four police officers involved had been asked at
any point to render a full description of the rider to the investigating officer. Consequently the
appellate court agreed with counsel that the identification evidence in the case was insufficient to
demonstrate beyond reasonable doubt the guilt of the second appellant.

II) Conduct of ID Parade

- carried out by investigation officer in charge
- held at the earliest opportunity and all available witnesses are required to attend at the very first parade
- room equipped with one-way mirror
- witnesses in the viewing room are able to see members of the parade through the one-way mirror, without
themselves being seen
- Ong Lai Kim v PP (also Public Prosecutor v Ong Poh Cheng) for the court’s response to an argument that
the use of a one-way mirror during an identification parade was improper
- accused person is place among a number of persons
- deficiencies were held as affecting only the weight to be attached to the identification
- accused person will be invited to stand where he pleases
- will also be asked if he has any objection to any of the persons present or to the arrangements made
- witnesses are not allowed to see the accused person until everything is ready

chan sin v PP 1949

- Held at earliest opportunity
- Specially constructed room equipped with one-way mirror dividing between line-up room and viewing room
- Line-up should be of sufficient numbers and consists of persons of similar appearance, nationality,
ages
- Accused allowed to choose his position and may change it between witnesses
- Accused may object to any person being present and may comb his hair or change his attire
- Witness escorted into viewing room for identification
- Witness’s identity kept confidential from line-up
- Every circumstance connected with parade to be recorded – eg positions of the line up, etc. so that later if
challenged, can be taken out to be reviewed.

- Note :- Evidence of positive ID in line-up, recorded in a police statement, will still be admissible as
evidence in court, if it is given by a police officer who will give evidence that witness chose no. X (the
accused) in the line-up. This is a backdoor via s122(3) for the 122(1) witness statement’s ID evidence.

III) Utmost concern is fair conduct of parade to accused

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- Line-up should comprise of persons of same nationality, same station of life with no great age disparity
Chan Sin v PP [1949] MLJ 106

Ong Phee Hoon James [2000] 3 SLR 293 (CJ)

- Breach of procedural requirements in holding ID parade does not automatically lead to inadmissibility,
provided that it was conducted fairly; failure to comply with instructions or police orders not fatal However,
May affect weight to be attached to ID evidence.
- However, if there is bad faith or `deliberate flouting’ of procedural requirements rather than mere
inefficiency, identification will not be upheld.
- the practice in relation to identification parades is to include at least eight persons, other than the suspect, in
the line-up
- this was clearly not done in the present case
- litmus threshold
- any procedural impropriety which is not detrimental enough to reach the bad faith threshold only causes the
parade results to be given less weight
- the casual ‘face-to-face’ manner in which the identification of the appellant was carried out was improper
- accordingly, the weight that should be attached to the identification evidence of the five illegal immigrants
should be minimal

- this is in tandem with the holistic approach towards identification evidence as espoused in the cases of Ang
Jwee Herng and Awtar Singh s/o Margar Singh

- Test is whether de facto prejudice was caused, not mere apparent prejudice

Thirumalai Kumar v PP [1997] 3 SLR 434  nonetheless there may still be conviction based on the overall
ID evidence.

- Facts: The appellant was convicted after trial in a district court on four charges: (i) rash driving in a manner
as to endanger human life (ii) speeding (iii) failing to stop when ordered to do so by a uniformed police
officer (iv) giving false information to a police officer. He was fined $1,000 in default two weeks’
imprisonment with one year`s disqualification from driving, $600 in default one week imprisonment, and
$500 in default one week imprisonment in respect of the first three charges respectively, and imprisoned for
two weeks in respect of the fourth charge. The vehicle in question was registered under the appellant’s
name. It was abandoned at a car park in Jurong East Street 24 after a protracted high-speed chase by a traffic
policeman on patrol, one Sgt Sapii. The appellant denied that he was the driver who had committed the
offences. He asserted that he had lost his car key some two weeks earlier around the `Jurong area`. He had
parked the car below his flat at Blk 334 Jurong East Avenue 1 at about 7 to 7.30pm that night and had
remained indoors thereafter. He discovered that his car was missing the next morning. His wife and mother
came forward to support his alibi. Twelve hours after the commission of the offences, Sgt Sapii identified
him as the driver at an identification parade. This was convened after the appellant sought to report the loss
of his car. He eventually lodged a report alleging the loss of his car after he had been charged with the s 279
offences. This report formed the basis for the fourth charge.
- On appeal, the appellant’s main contention was that Sgt Sapii’s observation of the driver during the chase
was not reliable. He claimed that the identification parade had not been conducted scrupulously and fairly.
There were only four other persons in the line-up. As Sgt Sapii himself had admitted, they did not appear
similar. Finally, he contended that the district judge had failed to consider his alibi evidence.
- Held: Dismissing the appeal and enhancing the sentence in respect of the first charge:
o The district judge had no doubt that Sgt Sapii had positively identified the appellant and that there
was no question as to the quality of the identification. He had given due consideration to the
evidence and was entitled to conclude that Sgt Sapii's observations were reliable.
o A breach of the procedural requirements in the conduct of the identification parade did not
lead automatically to inadmissibility. On the other hand, where there was evidence of bad
faith or a ‘deliberate flouting’ of procedural requirements rather than mere inefficiency, the
identification will probably not be upheld
o Nothing untoward was communicated between Sgt Sapii and the investigating officer, nor was
there any discernible indication of deliberate bad faith. The shortcomings such as the limited size
and composition of the line-up may have affected the weight to be attached to the identification.

50
 However, given that he had just seen the driver only twelve hours earlier, the likelihood that Sgt
Sapii’s identification was accurate had to be considered as well. In the circumstances, there was no
merit in the appellant’s contentions
o those in the line-up are extremely different in appearance
o the persons in the line-up need not be of exactly the same description
o must be self-evident that the more similar their general appearance, the greater the reliability of the
identification
o does not mandate that all the persons procured for the line-up should look similar
o such requirement would be quite impracticable
o an approach which accords with broad common sense must be taken
o the central issue is the extent of prejudice or unfairness caused by any procedural breach or defect
o provided the parade is conducted fairly, a failure to comply strictly with instructions in the parade
book or other police orders need not be fatal
o where there is evidence of bad faith or a ‘deliberate flouting’ of procedural requirements rather
than mere inefficiency, the identification will probably not be upheld
o shortcomings such as the limited size and composition of the line-up may have affected the weight
to be attached to the identification

- Witnesses are not allowed to see the suspects/line-up until everything is ready
- Witnesses should also not be assisted by photographs or by any verbal of written description of suspect
- Witnesses should not be assembled in same room prior to ID parade as this affords opportunity for them to
fortify and correct their recollection of suspect
o Low Thim Fatt v PP [1989] 1 MLJ 304
 prosecution witness had an opportunity to see the accused person at the police station
prior to the identification parade
 the court was of the view that this vitiated the witness’s subsequent identification of the
accused person at the parade
- less than desirable for the witnesses at an identification parade to be assembled in the same room before the
identification is carried out
- this would give the witnesses an opportunity to fortify and even correct their recollection of the person to be
identified: PP v Ong Poh Cheng

- R v Dickman:
• court held that “the police ought not, either directly or indirectly, do anything which might prevent the
identification being absolutely independent, and they should be most scrupulous in seeing that it is so”

- One way mirror

o Professor Tan Yock Lin argues that the predominant view is that identification ought to be
conducted in the presence of the accused person so as to afford him an opportunity to challenge the
circumstances of the identification
o one-way identification leaves the accused person completely in the dark as to whether the witness
was prompted in the identification
o preservation of the principle of ‘innocence until guilt is proved’

PP v Ong Poh Cheng [1996] 4 MLJ 279

- Facts: The accused was originally charged for discharging a firearm with intent to cause death or harm, an
offence punishable under s 3 of the Firearms (Increased Penalties) Act 1971. According to the evidence, the
accused had robbed a goldsmith shop. As soon as he stepped out of the shop, the accused was seen firing his
gun in the direction of the adjoining shops. In the submission of no case to answer, counsel for the accused
submitted that amongst others, that the identification parade held, using a one-way mirror, was entirely
improper
- Held: Where there is sufficient cause, it is certainly not improper to conduct an identification parade using a
one-way mirror provided that such parade may only take place when the accused’s solicitor, friend or
appropriate adult is present or the parade is recorded on video. In this case, however, the identification
parade was conducted in a manner that was less than fair, as the accused was not given an opportunity of
seeing the actual identification process and his accusers. While the accused did decline the presence of his

51
 solicitor, none of the other safeguards was adopted. Further, the witnesses at the identification parade were
assembled in the same room before the identification was carried out. This was less then desirable as it
might give the witnesses an opportunity to fortify and even correct their recollection of the person to be
identified.

Desmond Lee
- There are no statutory provisions in the Evidence Act,140 Criminal Procedure Code141 or elsewhere
dealing specifically with Identification Parades. Such procedures are probably dealt with by police general
orders and other internal regulations not readily available to the public.
- Zakaria Yatim J thus held in Ong Lai Kim v. PP142 that section 5 of the Criminal Procedure Code provided
for the importation of English procedure on Identification Parades.
o In particular, this meant that parades could be conducted using one-way mirrors preventing direct
contact between accuser and the accused, provided the accused's solicitor, friend or appropriate
adult was present to witness the entire proceedings or otherwise the parade should be
videotaped.143 Nonetheless the learned judge in that case was satisfied that the parade was
properly conducted using a one-way mirror as the opportunity was extended to the accused to let
counsel attend the parade. It just happened that the accused did not engage any counsel.
- In Ong Poh Cheng,144 Jeffrey Tan JC implicitly criticised the judgment in Ong Lai Kim145 for not
satisfying all the safeguards meant to ensure the transparency of the parade to the defence.
- What is clear is that the courts will not tolerate Identification Parades where the composition of distracters
or foils in the line-up is clearly unfair towards the accused. In Chan Sin v. PP,146 the suspect in a capital
case was a fifty-eight year old Chinese man. He was lined up alongside three Malay men, a Sikh male, a
Chinese woman and two Chinese boys aged ten and sixteen. The learned judge quashed the conviction and
admonished the Inspector who arranged the Parade. What is equally unforgivable is the 'fixing' of Parades,
either inadvertently or intentionally, by letting the eyewitness view the suspect or see a photo of the suspect
prior to the Parade proper.147
- Whilst the Courts understand that the general practice is to include at least eight distracters of the same age
group and race,148 they have.been rather tolerant of procedural breaches in recent years.
o In Lee Tiaw Chwee v. PP149 the court was comfortable with a series of Identification Parades in
which only the suspects were wearing their own pants and shoes whereas the distracters were all
dressed in police pants and shoes. The judge was satisfied by the witnesses' testimony that they had
relied on facial features to pick out the suspects and not on the fact that the suspects' attire stuck
out like a sore thumb.
o This attitude is hard to reconcile with more stringent standards exacted in cases such as Mohamed
bin Majid150 and Ong Poh Cheng.151 In the former, an Identification Parade was struck down as
unfair when the rape suspect, who was a dark-skinned Malay youth, was lined up against seven
fair-skinned Malay boys. In the latter case, the Identification Parade was deemed unfair not only
because safeguards were not taken during the use of the one-way mirror, but also because the
individual eyewitnesses were all grouped together in the same room where they could each see
who the others had identified as the perpetrator.
- One possible explanation for the trend towards tolerance of procedural flaws is the court's sympathy to the
practical difficulties faced by police authorities in getting a proper parade lined up. In Thomas Heng152 the
court did not comment on the conduct of the Identification Parade in which the accused was invited to
remove his glasses so that he would not stick out in a line up of distracters who did not wear glasses, even
though the perpetrator whom the eyewitnesses had seen was bespectacled.153
- Zakaria Yatim J, in Ong Lai Kim154 felt that the use of the one-way mirror was justified even though the
accused did not have a solicitor to observe the parade proceedings and even if none of the other safeguards
such as videorecording the proceedings were adopted. It was sufficient that the police had extended the offer
to the accused, as ‘the Identification Parades must be held to complete the police investigation’ [emphasis
added]. In Thirumalai155 the officer in charge of the parade acknowledged that the choice of distracters fell
short of the usual standards required. Nonetheless Yong CJ felt that the parade was conducted scrupulously
and fairly with no prejudice to the accused. He argued that a requirement for distracters to bear some
resemblance to the suspect ‘... would foreseeably lead to serious problems in the conduct of police
investigations. An approach which accords with broad common-sense must be taken.’

IV) Reliance on the IP

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- if there is no other supporting evidence of the identification, the judge should be mindful that a conviction
which relies on such poor identification evidence would be unsafe

Public Prosecutor v BR [2004] SGDC 121 (para 44 to 48) (no headnotes, please look at case doc itself)

QUALITY OF THE IDENTIFICATION EVIDENCE

41. When the molest occurred in the lift, A testified that she was facing the molester and that she had a good
look at the person who molested her. She was very sure that the accused was the person in the lift that day.
….
44. The approach to be adopted in relation to identification evidence can be found in the Court of Appeal
decision of Thomas Heng Aik Ren v PP [1998] 3 SLR 465. This was summarised by the Chief Justice in PP v L
(A Minor) [1999] 3 SLR 219 at para 22:
“….
45. Applying the test laid down in Thomas Heng Aik Ren v PP, I found that the case against the accused
depended substantially on the correctness of the identification evidence. Therefore, the next step was to
determine whether the quality of the identification evidence was good.
46. I was of the view that the quality of A’s identification evidence was good for the following reasons:
(a) She was in the same lift as the accused and was facing him during the incident. From the time the door
opened on the second floor and the accused walked into the lift till the time the accused exited the lift on the
eleventh floor, A would have gotten a very good look at the face of the accused.
….
47. As I found that the quality of the identification evidence was good, there was no need to proceed to the
third stage of the Turnbull guidelines and ask whether there was additional evidence to support the correctness of
her identification.
48. Therefore, I find that when A picked out the accused’s photograph and when she picked out the accused
during the identification parade, she did so because she recognised him as the man who molested her in the lift.

Public Prosecutor v Abdul Rahman Bin Sultan Ahmat [2005] SGDC 246 (para 50 to 59)

Identification Evidence
- The Accused claimed that both Tan and Tee had mistakenly identified him as the man who was seen in the
video tape stealing Tee’s bamboo stick and clothes. It was also submitted that the video quality was poor
and inadequate for anyone to make a positive identification.
- 50. The law on identification evidence was laid down in Heng Aik Ren Thomas v PP [1998] 3 SLR 465.
T
- 51. Applying the 3 step test enunciated to the present case it, its clear that the case against the Accused
depends substantially on the correctness of the identification evidence which is alleged by the Defence to be
unreliable. The next step would require an examination of the quality of the identification evidence taking
into account the non-exhaustive list of factors and circumstances enumerated above.
- 52. The identification of the Accused by Tan and Tee was pursuant to viewing a video recording of the
offence. The same video was replayed in Court. There were three instances of where the man was seeking
walking to and away from the direction of the video camera. On each occasion the man is seen in the video.
From the recording one is able to observe the look, height gait, and clothes the subject was wearing. Tan had
told the Court that she immediately recognised the subject as the Accused, as the Accused was known to her.
She was able to identify the Accused’s facial features. She added that she was also able to identify the
Accused’s clothes as she had seen him wear the same clothes before.
- 53. Tee also similarly stated that she was able to identify the Accused as the man seen in the video as she
had seen him in the vicinity of her residence previously. She corroborated Tan’s evidence by stating that she
too had seen the Accused in the same clothes.
- 55. Having observed their demeanour and having weighed their respective testimonies in Court with the
evidence in its entirety, the Court accepted Tan and Tee as truthful witnesses. The Court found their
testimony to be truthful, cogent and consistent with the objective evidence presented before the Court. They
corroborated each other’s evidence. There was no basis for them to collude and falsely implicate the
Accused.
- 58. Taking into account all the circumstances in which the identification was made, the Court was
satisfied that the identification evidence was of sufficiently good quality to sustain a conviction.
- 59. Having established the quality of the video identity was good, there would be no necessity for the
Court to determine if there was any other evidence that supported the correctness of the identity.

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 Notwithstanding the Court noted that the Accused had also readily admitted in his police statement that he
was the man seen in the digital photographs extracted from the video tape, when this was shown to him.

- Law on identification evidence in Singapore :

- Evidential law - Turnbull [1977] QB 224 guidelines modified in Singapore into 3-step test :
o A) Whether case against accused depends wholly or substantially on correctness of identification
evidence which defence alleges is mistaken
o B) If so, is identification evidence is good quality, taking into account circumstances of
identification?
o eg. How long the witness had the accused in his sight, the distance between them, lighting
condition, etc.
 This involves close scrutiny by the courts. Osman bin Ramli
 The quality of the evidence is more important than its quantity, so the court may rely on
the identification evidence of one or more of a group of witnesses even though the
remainder were not able to identify the accused (eg. in an identification parade) Ang Wee
Herng
• However, the evidence may carry more weight if supported by evidence of more
people. Multiple witnesses are unlikely to make the same mistake.
Ramakrishnan
• whether those who are identifying must all identify the correct suspect, case of
Ramakrishnan s/o Ramayan v PP:
o irrelevant that only 6 out of 15 students were able to positively
identify the appellant at the identification parade
o the point was that, so long as the court was satisfied with the
evidence and identification by the victims named in the charges,
the fact that the other nine students could not identify the
appellant would be of no consequences since they were not
involved in these incidents mentioned in the charges
- the more affirming witnesses there are, the greater the weight to be attached to
the identification evidence
- Yong CJ:
• this is common sense since honest witnesses do not tend to make the same
mistakes especially when the identification procedures are properly carried
out and there had been no opportunity for innocent contamination
- suspects are identified by their dress sense as well
- Lee Tiaw Chee v PP:
• Counsel for the appellant submitted that the evidence on the identification
parades was unreliable as the accused persons were wearing their own
pants and shoes while the other people in the parades were dressed in
police pants and shoes
• CJ stated:
 PW1, PW2 and PW3 had testified that they had picked out the
respective accused persons according to their faces and not their
jeans
 Although it was proper for all the paraders to be similarly attired,
the identification of the 5 accused were not based on their
different attire
 My finding was not solely based on the identifications made at
the parades
o (para 34) … the length of time that the witness observed the accused, the distance at which the
observation was made, the presence of obstructions in the way of the observation, the number
of times the witness had seen the accused, the frequency with which the witness saw the
accused, the presence of any special reasons for the witness to remember the accused, the
length of time which had elapsed between the original observation and the subsequent
identification to the police and the presence of material discrepancies between the description
of the accused as given by the witness and the actual appearance of the accused.

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 o C) Where quality of identification evidence if poor, is there supporting evidence of identification to
convince judge there is no mistaken in identification.
o D) If not, court ‘should… be mindful that a conviction which relies on such poor identification
evidence would be unsafe’ (rather than giving the accused an acquittal)

• Turnbull guidelines on identification (applied locally in Heng Aik Ren) : supporting evidence need not be
corroborative in the Baskerville sense, but merely supportive.
• Applied in Thomas Heng Aik Ren v PP and Ramakrishnan s/o Ramayan v PP
• Factors to be considered in stage 2 in deciding if the identification evidence is of good quality is not
exhaustive

• Where the identification is by two or more witnesses, such identification will carry more weight since
honest witnesses do not tend to make the same mistakes, especially when the identification procedures are
properly carried out and there has been no opportunity for innocent contamination.

• When identification evidence is of poor quality and the court at stage three of the test has to consider if there
is any other evidence which supports the correctness of the identification, such supporting evidence need not
be of the corroborative kind required by R v Baskerville [1916] 2 KB 658. In fact, odd coincidences, if
unexplained, be supporting evidence.

Cases :
Ye Wei Gen v PP MA 337 of 1998 “emblazoned by shock and trauma of criminal act”
- Facts: The appellant was accused of peeping at the victim in the Female bathroom at Keppel Club. The
victim was just about to take a shower at the time and was completely naked. She saw the appellant peeping
at her through a gap between the shower curtain and the wall of the shower cubicle. Although the victim
shouted out at him as soon as she saw him, he continued staring at her for a few more seconds before
leaving the Female bathroom. The victim went to look for her boyfriend who was also having a shower at
the time in the Male bathroom. While the couple were discussing the incident, they saw the appellant and
the appellant's boss and colleague walking past. The victim pointed out the appellant as the peeping Tom to
her boyfriend. However, her boyfriend decided not to confront the appellant directly and instead asked the
trio whether they were from the management of the club. The appellant's boss replied in the negative. The
couple then reported the matter to the security counter by the poolside of the club. The appellant was called
to the security counter by the management of the club. Again the appellant pointed him out as the offender
to her boyfriend. The appellant vehemently denied committing the offence. The district judge found that the
victim's identification evidence was of good quality and was sufficient to convict the appellant of the
offence. The appellant was sentenced to pay a fine of $2,000, which he paid in full before the appeal.
- Held:
o [1] The Turnbull guidelines which had been adapted for use in a non-jury system by the Court of
Appeal in Heng Aik Ren Thomas v Public Prosecutor [1998] 3 SLR 465 applied to this case.
Here the victim's identification evidence was of good quality for several reasons. There was
sufficient lighting in the Female bathroom enabling the victim to see the offender's facial features
clearly, the victim and the offender were less than one metre apart, the offender had continued to
stare at the victim for a few more seconds despite her shouting at him and had looked at the victim
face on. The victim would also have the offender's face emblazoned in her memory, as this was the
first time she had been at the receiving end of such an offence. As step two in the Turnbull
guidelines had been answered in the affirmative, there was no need to consider whether there was
other supporting evidence for the victim's identification of the appellant as the offender.
o [2] No corroboration warning need be given in this case even though it concerned an offence of a
sexual nature as the only live issue before the court was that of identification; Tang Kin Seng v
Public Prosecutor [1997] 1 SLR 46.
o [3] The appellant had failed to show why the appellate court should overturn the district judge's
finding of fact in the court below regarding the issues of whether the victim was telling the truth,
whether there was sufficient lighting for her to identify the appellant as the offender correctly and
the appellant's whereabouts at the time of the offence. The appeal was thus dismissed.

PP v L (a minor) MA 225 of 1998

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Ramakrishnan s/o Ramayana [1998] 3 SLR 645
- Note that the accuracy of the identification evidence is not a relevant consideration at the close of the
prosecution’s case. (PP v Manit Waijasuk [1995] 1 SLR 326)

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