hlkamah Rayuan /tingys ute alter charye Sivelingam vy FP CI4B2) CLI 230 Pada peringkat Rowuan+ Fee ct: on Kuate Mal > Ru Dette Yop Yeny Cpt) 2 MULT Sl] Las ; 5 20092002 1 kaon eter ly Raw decor pro spechve = Ron cehev gpelet Pre ti thal Wn Labor Khon vo: feces) ¢ cu Say LEGEND DESIGNATION LEGEND DESIGNATION NLU | MCTUNREPORTED AVAITABLE [FC | FEDERAL COURT ONLINE ONLY AT wn mij com my TNS LEGAL NETWORK SERVICES | SC] SUPREME COURT UNREPORTED CASE AVAILABLE ONLINE ONLY AT ny lian com ‘GOA | COURT OF APPEAL Ania | ACL WACAYSTAN REPORTS MILJ_——| MALAVAN TAW JOURNAL ‘LJ | CURRENT LAW JOURNAL Pc [PRIVY COUNCIL U/LINED [HYPERLINK TO WEBSITE OR PAGE * CASES WITHOUT THE ASOVE LEGEND ARE FROM HIGH COURT CATEGORY PAGE PREVENTION OF CORRUPTION ACT (MALAYSAIUSTOF CASES PREVENTION OF CORRUPTION ORDINANCE (MALAYSIA) UST OF CASES EMERGENCY LEGISLATION LIST OF CASES CHEQUE UST OF CASES [ACCOWPLICE LIST OF CASES NO CATEGORY 1 _ | Abatetient = 107 PC, whether preparing involees amounts w abatenient 2 | Abetment of corrupt practices in the approval of plans s.107 FC [3 Becepting.inaredients under s.Afa] PCA 198i, inaredients and presumption 4 | Accomplice, active role played by ac 5 | Accomplice, agent for the prosecution, when ITMappans to be one 6 | Accomplice. classes of accomplice 7] Assompiice. corvitl corroboration, duty of ludge iting alone to indicate lea appreciation ofthe risk involved ie wam himself of the danger involved 3} Accomplice, conviction without corroboration, whether the wording of He Tsk invelved S Bs Shown clearly In words by the ludae 7 | Accomplice, corroboration 10 | Accoi artcens criminis “1H | Accomplice, previous record in particular sort of erime Is not an accom 12__[ Accomplice, principle 13 Admissibility of evidence, court should only concem whether te exhibit Is adimsibve and not ow itwas obtained TE Admission, admission To police of or above the rank OF Inspector not acepted- meaning oT Constructive and physical arest 15 Adverse inference [16 | Adverse inference 17 | Adverse inference, falure Yo mark exer as "P™ 16 Adverse inference, non calling and offering of prosecition witness 19 | Affidavits in eriminal proceeding is admissible 20 | After tought defence 2 | After thought defence 22 Ate thought defence 23_| Agent, 5.2 PCA 1961, meaning of ‘24 | Agent, s.2 PCA 1961, meaning of Tee [ease on 4(e) PCA 161 25__| Alibi defence s.402A CPC, whether cauiloned siatement constitutes valid ONCE, amiendmient OF charge whether Itaffects alibi defence ti %_| Appeal, abatoment of appeal ofthe death of the accused 27_| Attempt, what amount to attempt 28_| Bad charactor of witness 28 | Ball Bond, forelture of 30_| Ball, revocation of 31_| Beyond reasonable and prima Tacle, connexion of 32_| Beyond reasonable doubt, meaning of 33_| Burden of proof ia a H__| Burden of proof, judgement must be read as a whole when the court wrongly apply burden to rebut IP +. (ewe Y) Rloaes 2 othar appro (aed?) > ert % -o oe- Laci Kow Chet tanner v- PF (rea) | ces 124- cern v OPGAAAY CLT Be oie ~ ©XV6 ysBlok Stuer core) ‘presumption ie on a balance of probabilities, s.60(1) Courts of Judicature Act 7066 35_| Burden of proof, wrong burden '36_| Caution Stament, what amounts to voluntariness J '37_| Caution statement, impeaching credit of accused 38 | Caution statement, Inconsistency with testimony in court = 38_| Caution statement, inconsistency with testimony in court : “40 Caution statement, value of exculpatory statement during prosecution Stage “41_| Caution statement, whether the exact caution words should be administered 2_| Caution under s.45 PCA 1997 whether fresh caution Is required upon subsequent recording 43 | Caution under s.45(3) APR 1987Singapore Cases 4 CBr, | Chain of evidence '46_| Chain of evidence 47_| Change of judges: 48_| Character, men of good character do commit crimes | Charge defective, date wrongly inserted 50_| Charge defective, failure to particularize offence 51_| Charge, alteration and amendment ‘52_| Charge, amendment by trial and appellate court 53_| Charge, amendment of, time to amend ‘54_| Charge, charge on punishable provision under S418 & 417 PC '55_| Charge, framing of charge under s.409 PC for an agent and government servant - '56_| Cheque, whether a property under $2 PCA 1961 ‘357 | Cheque, whether to prove that the current account of the cheque is active and there ready and sufficient to cover the amount of the cheque, '6_| Co-accused evidence against another co-accused, whether he Is an accomplice and need corroboration 'E_| Conduct of prosecution by Police Officer, Art 145 FC a '60__| Conduct of prosecution, Art. 145 FC 61_| Conduct, s BEA 2_| Consent 63_| Consent, validity of, 5422 CPC aa '84_| Corroboration z | Corroboration '86 | Corroboration, money found 7_| Corrupt, meaning of ‘68 Court of Judicature ACtS.60, only CA and FC fave the power to Invoke 69__| Credibility of witness, test to be applied co 70_| Cross-examination, unshaken in cross-examination nota test for credibility 71_| Cross-examination, whether there is a need fo address line of defence forwarded during cross- ‘examination of prosecution witnesses in calling for defence to be called T2_| Cross-examination, whether there is a need to challenge accused's testimony when the evidence of prosecution witness denying accused’ defence has been adduced Ti_| Defence Called not a final order and cannot be appeal 7%4_| Demeanor of witness, 75_| Denial 76 | Denial 77 | Deni 7e_| Discrepancies 73_| Discrepancies '0_| Dishonesty, meaning '81_| Disposal of property, rightful owner S473 (1) CPC '82_| Document, Certified True Copy 83_| Document, Certified True Copy ‘| Document, Certified True Copy '85 | Document, Electronically Recorded Evidence, article by Augustine Paul 86 _| Document, tendering photograph without calling the pgctographer and without the negative ~a7__| Document/exhibits, tendering documents/exhibits through 10 ft3 | Documents, — Carbon copies @_| Documents, photocopies ‘30_| Documents, admissibility oF ‘31 | Documents, classified document under Tax Law can be admitted during trial base on impied authority given by the witness whose fle involved when he testified in court '32_| Documents, computer generated document under s.90A Evidence Act 1950-requirement '33_| Documents, computer generated document under s.90A Evidence Act 1950-requirement ‘34_| Documents, made in the course of business 6.32(6) EA '95__| Documents, photocopy s.63(b) & s.65EA ‘96 | Documents, tendering document without the maker Inclusive of the contents 97_| Entrustment s.405 PC, meaning ‘96_| Entrustment 5.405 PC, meaning’ 98_| Failure fo cross examine "00__| False Statement under s.199 PC 4O1_| Favour need not be shown, s.6 PCA 1961 & 8.12 PCA 199) 402_| Finding of Facts 403_| First information Report 404_| First information Report, "berlindak atas maklumal 4105_| First information Report, Arrest Report to be produced if there was no FR 405_| First information Report, errors and omissions 407_| First information Report, failure to particularized relevant fact in report Is not material 108_| First information Report, time to lodge report "109__| First information Report. value of {i0__| Forgetfulness and failure to recall Tit _| Generalla specialibus non derogant 112_| Generalia specialibus non derogant 713_| Government servant, meaning of 11¢_| Hearsay evidence, article 115__| Hostile witness s.154 EA, time for application 416_| Identification Parade 117 | Identification Parade 118_| Identification Parade, conduct of 119_| Impeachment, whether impeachment by counsel during cross-examnination allowed, 5 155 EA 120. | Impeachment, whether impeachment Include a statement given in evidence atan earlier stage of te same proceeding, s.185(c) EA le in the same trial 721_[ in any manner .405 PC, meaning of ¥22_| Inducement, meaning of 123 | Information leading to fact discovered 5.27 EA -Actual words must be proved - Statement allegediy ‘made by accused during interrogation not recorded - Statement allegedly made by accused at place of discovery not recorded “724_| Ingredients and invoking of presumption under s (a) PCA 1967 125__| Ingredients under s.3(a) and s.4{a) PCA 1964 126 | Interpretation of the word “shall” “a7_| Interpretation of the word “shall”, whether mandatory 1128__| Judgement, oral and written where the former was In summary and the latter in detail “129__| Judicial and Official Act have been regularly performed, s.174 (e) Evidence Act 130__| Knowledge s.4(c) PCA 1987 131_| Wanner of dispotion of property 732_| Wens Rea, how to prove 133_| Notice of appel, time frame to fle appeal 34_| Other document, meaning of under s.4(¢) PCA 1967 135 _[ Other documents, meaning of, ejusdem generis s.4(6) PCA 1961 about medical cerificate ¥36__[ Other documents, meaning of, ejusdem generis, s.4(c) PCA 1967 137__| Petition of appeal, application to enlarge time to file petition of appeal ¥36_| Petition of appeal, application to enlarge time fo file petition of appeal 139 | Presumption, rebutting fire Ala chame ~ Yo Ming Simms v PP C1166) 1LUS 6g Lava YG Law 9 PP Ctqgs) a8 °2j{a0_| Presumption, rebutting TH Prima Facle, date of effective “az_| Prima Facie, meaning of “13_| Principles of sentencing as applied to offences relating to bribery and corruption, (Article) TH4_| Public Servant, definition under .2 PCA 1997 145__| Reasonable doubt, proof of {45 | Reasonable doubt, proof of 147 _| Reasonable doubt, whether defence story raises reasonable doubt 148_| Reasonsable doubt does not mean beyond the shadow of doubt 149__| Rebuttal Evidence 150_| Recalling of witnesses 151_| Recalling of witnesses 152_| Recalling of witnesses Recalling of witnesses Refreshing Memory ‘Relevancy under s.5-9 EA Retrial = oe Ruling cannot be changed subsequently '5.22 PCA 1961 legal obligation to give information read with s.178 PC '5.25 PCA 1961 failure to comply instructions. S2TEA 161 | S27 EA 182 | S27 EA 463 5.30 PCA 1961 and 5.37 PCA 1857 154 | S32(0) EA 485_| sA(e) PCA 1867, list of cases 165 | 5.422 GPC and 5.60 Courts of Judicature Act 1964-scope and application (Note: this case is in confict with Ku Yahya Ku Bahari decision) Tar _| Sale & Purchase Agreement.calling of parlies in S&P Agreement produced in court before not necessar 75_| Sanction 68 | Search List, fallure to prepare one does not affect prosecition case unless there is doubt to the | identity of the exhibit seized T70_| Search List, wnether accused's signature on W amounts To COnTESSIOn, | Similar fact evidence 772_| Solicit, meaning of 473_| Solicitation at the same time of accepting bribe, charge detective 1174_| Solicitation by 3 party or other means 475_| Solicitation not an ingredient under s.4(a) PCA 1961 = im 476_| Speaking Judgement 77_| Statement made by accused during arrest 178_| Stay of execution pending appeal, whether Stay of execution of Tine should be allowed and whether fine can be paid by instalment 173_| Tape recording, admissibility of other sounds not audible [180_| Tape Recording, admissibility of, procedures, 81_| Tape Recording, whether statement to police under S113 CPC 782_| Totally of evidencelcombined strands of evidence 483_| Transfer of case from Mgt Ct to Sessions Ctis fatal a4_| Trial, commencement of tial meaning of under 399 CPC 485_| Use, meaning of, .4(c) PCA 1961 786_| Wrongful gain and Wrongful loss, meaning of “17__| Wrongful gain and Wrongful loss, meaning under 823 & 24 PC 488 _| Wrongful gain and Wrongful loss, meaning under s.23 & 24 PC, case law 164 6.408 Pudine not AED Granasegaan farariyasingam vp wan easeSMG PF LSC Cane ye. NO- ‘CATEGORY ‘CASE LAW AND EXTRACT ‘Abatement s.107 PC, whether preparing invoices PP vy Kong Ful Pen 119921 ‘The fact that the respondent prepared the invoices, had them typed out and amounts to issued them using the name of his employers, not caring for what use the sbatement were fo be put to, was sufficient reason to call for his defence on beth the offences of s. 4(c) or one of abetment read with s. 107 of the Penal Code Accordingly, [aller the decision of the learned Sessions Court Judge to the ‘edent thatthe respondent's defence be called 2 | Abetment of Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 165, FC ‘corrupt practices in {he approval of plans s.107 PC Ca] Accepting, ie, _ | Hamidon Bin Wat Yatin VPP (1895) 3 CLI 724 Ingredients under S4la)PGA 1961, | The ingrecionts of ¢.4(a) of the PCA have been lucidly set out in PP v. inatedients and | Yuvaraj (1969)2 MLW 89 PC by Lord Diplock in the following words: presumption PP v- Jud No®| "Where a defendant is charged with an offence under s.4(a) of the Prevention bbs Henaiet | of Cotruption Act 1961, to which s.14 also applied, the cnus lies upon the Hrmsich | crosecution to prove the first ingredients of the offence viz. (1) that a kocop) = mez_| gratification was paid or given to or received by the defendant, and (2) that at @7__| the time of the payment, gittor receipt he was in the employment of a public ‘body. Upon proof of these two ingredients the existence of the thd ingredient, viz. (3) that the gratification was paid or given or received corruptly as an inducement or reward for doing or forbearing to do an actin relation to the affairs of that public body. is to be presumed “unless the contrary is proved”. | 7 | Recomblice_ active | Rattan Singh v PP [1974] 1 MLJ 162, ] fole played by accomplice ‘Though the word ‘accomplice” does not appear, this section modifies the law and practice not as to accomplices generally, but only as to a specified class | of accomplices so that a witness who is an accomplice only by reason of | making a corrupt payment is not presumed to be unworthy of credit. (See | Soosay Dass v Public Prosecutor [1951] MLJ57). if, however, he has played a | more active part in the transaction apart from the bare payment, he is not | protected by the section and the ordinary rules as regards accomplices apply. | (See Daimon bin Banda v. Public Prosecutor, supra). Considering the paris played in the case by P.W. 1, in the circumstances there was no doutt that his action went beyond concurrence, because after concurring, he went to see his two colleagues, P.W, 2 and Mahadevan, and suggested that each of them should raise the money to pay the appellant to which they all agreed. He did ot make a report until after P.W. 2 had told him that he (P.W. 2) had already Gone so. In other words, he was quite prepared to bribe the appellant and negotiated with P.W. 2’ and Mahadevan on the matter. In my view, this ‘amounted to an infamous conduct and therefore he was an accomplice in the real sense of the word. The learned president therefore miscirected himself When he concluded that it was too early a stage to treat PW. 1 as an ‘accomplice. ‘Accomplie. agent {or the prosecution, when ithappens to be one ‘Sathasivam and 2 others v PP [1949] 18 MLJ 102 @ 103 Now, the case mainly relied on by Mr. Cumarasamy was Karim Baksh v The Crown iLR 9 (Lahore) 580, but that case is different to the present case in that there the witness held to be an accomplice had, at the time he reported to the police, already committed an offence. | think the correct interpretation of the law on the point raised in the first ground of appeal, after studying the authorities cited, is that if a witness has made himself an agent for the prosecution before the actual commission of that offence he is not an ‘accomplice, | hold, therefore, in this case that the learned District Judge wascorfedt in holding that the witness Menikam was not an accomplice (o | Recomaiios, Harnicon bin Mat Yatim (1995) 3 CLJ 724 @ 7298 slasses of accomplice In Soosay Dass v. PP (1951) 17 MLd, the headnote reads as follows: ‘The prevention of Corruption Ordinance 1960, s.13(3) (in pari material with our present s. 18 of the PCA) modifies the law and practice not as to accomplices generally but only as to aspecified classes of accomplices. in cases which this Ordinance applies a witness who is an accomplice only by reason of making a corrupt payment is not presumed to be unworthy of credit. ‘A person who makes @ corrupt payment enly under pressure is less seriously discredited than one who does so voluntarly 7 | Accomplice, ‘Chiu Nang Hong v PP [1965] 31 MLJ 40 PC conviction without | Ng Yau Thal v PP [1987] 2 MLJ214 SC sorroboration, duty of udae siting indicate clearly his appreciation of the Hisk involved Warn himself of the danger involved 3 | Accomplice, Ng Yau Thal v PP [7987] CLI 257 (Rep) LSE] 1 CLI SEB, (TOBT) 2 LI 21 ‘conviction without | @ 216 SC corroboration, Heeerer the usk | ‘The waning as to the danger of convicting on uncorroborated evidence if the involved tobe" | prosecution is relying on the testimony of an accomplice does not involve shown clearly in| some legalistic ritual fo be automatically rected by the tral magistrate, or that words by the Judae | some particular form of words or incantation be used and if not used, the judgment is deemed to be faulty and the conviction set aside, There is no A magic formula and no set words must be adopted to express the warning’ [9 ] Accomplice, ‘Hamidon bin Mat Yatim (1995) 3 CLJ724 @ 729 HT \ | corroboration Now even if Rasul was an accomplice his evidence was materially corroborated by the discovery of the trap money (P10) under the left thigh of the appellant. In this regard Syed Agil Barakbah J, (as he then was) in Ramiy bin Ma, Yasin & Ors, v, PP (1982) CLJ 91 has this to say: The discoveries of the marked notes from each of the appellants are independent corroborative evidence which led to one and only irresistible conclusion that the appellant received the money from PW12. The presumption under s.14 of the Act that the gratification is deemed to have been given and received by the appellants corruptly as an inducement of reward, arises. 70 | Aesompiee, Ng Kok Lian & Anorv PP [1083]2 MLJSTSFC atticeps criminis ‘To be an accomplice the witness who received the bribe must be the one who \was abetting the offence of giving it committed by the accused, the giver. Only then would the receiver be regarded as particeps criminis, This means that just as the giver as a principal offender requires mens rea, so does an accomplice witness who received the gratification, If he received the gratification innocently or without any corrupt motive or if he did not receive it at all, although it was given to him, as far as he is concerned the gift did not change its character to become an illegal gratification just because the giver (the accused) gave it with corrupt motive or with evil Intention. Thus in every case when the issue is raised that a witness is an accomplice the court must study the evidence and make the necessary finding. There can be no tule of law or evidence that @ witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of,criminal ability, 1F [ Aasom, | Lone! De Siva VPP [T686] 22 MLIZ03 brevious record in partetar seitet | Held: the leamed District Judge was right in this case in holding that the witness was not an accomplice, @ person's previous record of participating ina particular sort of crime cannot in itself clothe him with the taint of an accomplice when in a subsequent transaction involving a crime of the same 2 sort he acts throughout simply 2s agent provocateur. (2 Accompii Hamidon bin Mat Yatim (1995) 3 CLJ 724 @ 728 F-G principle Perhaps the best approach to adap in cases involving accomplices would be to follow the guidelines set by Salleh abas Cu (Malaya) (as he then was) in Ng Kok Lian & Anor v PP (1983) 2 MLW 378, In that case his Lordship saia this: Thus in every case when the issue is raised that a witness is an accomplice the Court must sludy the evidence and make the necessary finding, There can be no rule of law or evidence that a witness is automatically an accomplice just because of his actus reus. The whole idea is completely contrary to the basic concept of criminal labiity z i 13 | Admissibility of Ng Yiu Kwok and Ors v PP [1989] 3 MLJ 166 SC xidence, court should only Held 2) The so-called investigation was in fact for the limited purpose of Sercemmether | procuring witnesses to tender certain exhibits in court which exhibits were sinelbieand not | 2!eady in the possession of the prosecution and they had already by then ane been tendered in court for identification. The court should only be concerned obtained with evidence to see if they are admissible, net when or how such evidence was obtained See also Kuruma v R [1955] + AlLER 236 7a | Ramission, Jayaraman & Ors v PP [1962] 2 MLJ 306 FC admission to police | Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219 PC intl ctieeeae PP v Salleh bin Saad [1983] 2 MLJ 164 HC Fank of inspector | pp y Lim Kin Ann [1988] 1 MLJ 401 HC meaning of constructive and physical arrest 15 | Adverse Inference | Kesavan Senderan v PP [1590] 1 CLI 343 @ S60 GST It Is for the prosecution therefore to decide which witnesses they will call and ‘which they will not. Neither the court nor the defence can dictate how that prosecution is to be conducted. At the end of the day, the court must decide only on the basis of the evidence properly adduced before it. What might or might not be said by any witness not called before it by the prosecution of the defence would be speculation and is not evidence. Section 114(g) of the Evidence Act 1950 (the Act) deals with the making of an adverse presumption in the event there is a withholding of evidence. It was made abundantly clear in Munusamy v. Public Prosecutor (1987) 1 MLJ 492 SC, that an adverse presumption or inference under s, 114(g) of the Act, can only be drawn if there is 2 withholding or suppression of evidence and not metely on account of a failure to obtain evidence. Section 114(g) does not mean that the prosecution must obtain witnesses and offer them for the defence. ‘The Supreme Court in Ti Chuee Hiang v, Public Prosecutor (supra), after the passage quoted above, had added: On the other hand, i is clear law that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion‘Whether to call them or hot. (See Teh Lee Tong v. PP [1856] MLJ 184) ‘There is no evidence before the learned trial judge that evidence had in fact been taken from En Anuar bin Baba, and that such evidence has been withheld. It is on the record only that the said person was called for identification by SP1. In the absence of any evidence, established for example during cross-examination of any other prosecution witness such as the investigating officer, that the police had in fact taken a statement from the said person, s. 114(g) of the Act cannot come into operation. All that could be said In the circumstances then is that the investigation took the risk of having 2 weaker case by not taking a stalement from the said person ‘The Supreme Court, in the same case, on the subject of the prosecution discretion to call only such witnesses as it requires to establish its case, said as follows, That discretion, however, must be exercised having regard in the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v. Oliva [1985] 3 All ER 116 Act p. 122: [1965] 2 WLR 1028 at p. 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution case is based, whether the effect of their testimony is for or against the prosecution (the Lord Roche in the Ceylon Privy Council case of Seneviratne v. R. [1936] 3 All ER 36 at p. 49, applied in R. v. Nugent (1977) 3 AIIER 662: [1977] 1 WLR 768). Considering the evidence on record as a whole, the evidence of Anuar bin Baba is not essential to the unfolding of the narrative upon which the prosecution is based. He is not a direct witness. The evidence he could give, with regard to the charge, falls within the category of hearsay evidence, retelling what he might have been told by SP1. The prosecution would have to call Anuar bin Baba if there is allegation put to SP1 that what he told that person contradicis his testimony before the court. There was no such allegation put to SP1, From the record, it appears the appellant had accepted that part of SP1's testimony. Furthermore, the defence could have called this person as its own witness when the defence is called, but it had not done so. ‘There is nothing on record that the defence had applied to call this person as its witness but that it had been objected to by the prosecution, or even that he was not available. There is no evidence the defence had been prevented from calling this person as a defence witness. It cannot be said therefore that the defence had been prejudiced by the prosecution since at the end of the day, the failure to call this person as a witness is the appellant's own failure. | hold therefore that the non-calling of En “Anuar bin Baba, in the circumstances, does not give rise to an adverse presumption and | dismiss this second ground of appeal % a 7 ‘averse inference Jazuli bin Mohsin v PP [1880]2 ML 160 Held (2)Th e prosecution is not relieved of the adverse presumption under s 114(g) of the Evidence Act 1950, by merely making available a witness to the defence, only in cases when they are unable to establish a prima facie case. In this case, sufficient evidence had been adduced by the prosecution to prove the charge, and no adverse presumption had been raised by their failure to call a witness, ‘Raverse inference, failure to mark exhibit as "P” Hamidon bin Mat Vatim (7095) 3 OLJ 724 @ 735 para FH ‘With respect, | cannot see how the failure to mark ID8 as P8 would cripple the prosecution's case to such an extent as to attract s.114(g) of the Evidence Act for the simple reason that the prosecution has never made any attempt to conceal nor suppress the existence of |D8 (see Munusamy v, PP [1987] 1 CLu250 SC; [7987] 1 MLJ 482 SC) The failure to mark 108 as PB cannot be equated with the decision in Ghazali bin Salleh & Anor. V. PP (supra) where the non-production of the cassette tape for 31 May 1986 episode withaut reasonable explanation was held to be fatal. Here, ID 8 was produced but not marked as a "P" exhibit and the pertinent question to ask is this : Without ID8, ccan the prosecution proved its case beyond reasonable doubt? The answer is in the alfirmative, The tape-recorded conversation (PS) and the recovery of the trap money 2s found by the trial Court beneath the left thigh of the appellant ‘were tangible evidence to link the appellant with the crime... ‘Raverse tnference, ron calling and offering of prosecution witness K Saravanan all S Karuppiah v PP (2002] 3 MLJ 465 Before us, the convition is being attacked on five main grounds. The first ground invelves the provisions of adverse inference under 8 114(g) of the Evidence Act 1950 (‘the Act’) ites contended by Mr Gurbachan that Suresh played an important role in the transaction, He was not just an introducer a Concluded by ine learned judge but the negotiator for the drug deal and hence, a trafficker. (That being the case, he ought to have been called by the prosecution oF offered for cross-examination or atleast made available tothe defence atthe ciose ofthe case forthe prosecution orn default, of otherwise been given an explanation why they were unable or unwilling to call him) Further, there was ne suggestion that his testimony would have been hostile to the prosecution or unreliable, Therefore, by such failure, not only there was a 1929 in the narrative of the prosecution witnaut the negotiators testimony but aiso, the presumption under 114g) of the Act woud have been attracted The leamed counsel cited the Supreme Coutt case of Ti Chuee Hiang v PP [1995] 2 MLJ 433 (hn suppor thereof. Upon scrutiny of the notes of proceedings, itwas obvious that atthe close for the prosecution, Suresh was neither called by the prosecution nor made available to the defence and the issue was taken up by Mr Naidu, the learned couneel for tne appeliant, in his submission before the trial court, both at the close of the case for the prosecution and al the close of the defence. On ths issue, the learned judge Saic) Leamed counsel for the appellant had submitted that the fallure by the prosecution to call Suresh as a witness or have him at least offered for cross examination was fatal to its case, and had raised an adverse presumption under s 114(g) of the Evidence Act /My view is that Suresh although his identity was knovin to the appellant, would not throw any further light on the prosecution story that had not already been fully narrated by SP8, Suresh Played the role as an introducer, the person who had brought SPB and the appellant into contact. It was in evidence and this fact was not disputed under cross examination that Suresh thereafter disappeared from the scene and was in no way involved in the negotiation on the buying and selling of the cannabis that took place between the agent provocateur /SP8 and the appellant. It was cnniy during their second meeting, in the absence of Suresh, that details on the delivery of the drugs were discussed and agreed upon /in view of the clear and uncontradicted evidence adduced by the prosecution | held the view that | even if Suresh was called to testily, it would have not made any difference, | and as such the presumption of an adverse inference cannot be invoked against the prosecution/ in the Supreme Court case of Namasiyiam & Ors v PP [1987] 2 LJ 336, it was found that an informer had played an active role to be an accomplice in the true sense of the word | However, it was held that in the light of the overwhelming prosecution evidence, the presence of the informer at the trial would not have made any difference, and that s 114(g) of the Evidence Act was net applicable, Ti Chuee Hiang v PP is a recent decision but itis not applicable here, for two reasons. Firstly, in that case although the counsel for the appellant hadcriticized the prosecution for falling to call the informer, the judge did not direct his attention to that point at all and for that reason the Supreme Court ‘concluded that there was a serious misdirection by way of non-cirection which has occasioned a grave miscarriage of justice in the trial court, and whereas in the case before us the leamed judge did direct his mind to that point and therefore, there was no serious misdirection. Secondly, the prosecution, through the testimony of SP8, did explain why it was not able to call Suresh, SP deposed in the examination in chief: ‘Saya telah cuba mencari orang beinama Suresh tetapl tidak berhasil seningga ke hari ini. Saya dapat tahu rumahnya beralamat 236, Taman Lintang, Sg Siput dan telah pernah pergi ke rumah itu tetapi tidak dapat ‘mengesan Suresh, Pihak polis masih cuba mengesan Suresh sekarang, ‘And when cross-examined by Mr Naidu, he said Tidak benar yang saya betul-betul tidak cari Suresh, He was not seriously challenged by the defence on this matter. Therefore, to our mind, the prosecution had sufficiently discharged its statutory duty in this respect. We follow the earlier decision of the Supreme Court relied upon by the learned judge Also, on the first ground, before us Mr Naidu raised the issue of non-calling of Aruldass as a witness by the prosecution. In our view, as Aruldass was called as a witness for the defence and having regard to his testimony, clearly this {ground has no merit. Perhaps, it may be useful to quote what was said by Ong J {as he then was) in Mohamed Ali v PP [1962] MLJ 230 on presumptions of fact and presumptions of law, viz at pp 231-232. In drawing presumptions under s 114 of the Evidence Ordinance 1950, itis to be observed that what the section says is that the existence of certain facts may be presumed which the court ‘thinks likely to have happened’ in the circumstances of the particular case, Presumptions of fact ‘must not be drawn automatically, or, as it were, by rule of thumb, without frst considering whether in the circumstances of each particular case there were ‘adequate grounds to justify any presumption being raised, Even, with regard to presumptions of law, Deviin LJ said recently in Berry v British Transport Commission [1961] 3 WLR 450 at p 463: Presumptions of law ought to be used only where their use is strictly necessary for the ends of justice, They are inherently undesirable — in the sense that ‘estoppels are odious’, and the ‘doctrine should never be applied without a necessity for it; per Bramwell LJ in Baxendale v Bennett [1878] 3 QBD 525 at p 529 — because they prevent the court from ascertaining the truth, which should be the prime object of a judicial investigation, and because if they are allowed to multiply to excess, the law will become divorced from reality and will ive among fantasies ofits own.” ‘Afidavits Kun Rekon Holdings Sdn. Bhd. v PR and oiher applications [7096] 5 WLI eximinal 261 111996] 2 CLI 689 proceeding is admissible Held, dismissing the preliminary objection: (1) Section 424 (1}(a) of the CPC is an enabling provision and is not intended to be an overriding, overpowering or dominant provision: rather its specifically enacted to make it ‘subject to any rules of court (see p 284D-£). (2) The inclusion of the phrase ‘subject to any rules of court’ in s 424 (1a) of the CPC means that the application, operation, effect or implication of 10that section Is specifically bound by or made subservient to any rules of | ‘court so that when any rules of court are invoked in a particular instance, they will take precedence (see p 264E-F), (9) Order 41 of the Rules of the High Court 1980 (‘RHC 1980’) is operative ‘and applies equally to both civil and criminal proceedings and s 424 of | the CPC is subject to O 41 of the RHC 1980. That being the case, the | result is that an affidavit signd by a Commissioner for Oaths may be | used in a criminal court in addition to and not in derogation from the provision of s 424 (1)(a) of the CPC (see p 2864-5), (4) Section 424 (1)(a) pf the CPC should be read together with © 41 of the RHC, ss 3 and 11 of the Courts of Judicature Act 1964 (‘CJA 1964’) and 12 of the Commissioner for Oaths Rules 1993 (‘the 1993 rules’) and be given a liberal interpretation since there is no prohibition or restriction excluding an affidavit swom in the Federation before a Commissioner for Oaths (see p 267E-F). ‘After thought defence ‘Chua Beow Huat v. PP (1970) 2 MLJ29 @ 32 | Kanan & SAG Kin ‘Mukhari in this Indian case said ‘The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross- ‘examination, it must foliow that he believed that the testimony given could not bbe disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is 2 rule of essential justice. It serves to prevent surprise at trial ‘and miscarriage of justice, because it gives notice to the other side of the ‘actual case that is going to be made when the tuin of the party on whose tbehalf the cross-examination is being made comes to give and lead evidence by producing witnesses. it has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he ‘must put to each of his opponent's witnesses in turn, so much of his own case 228 concerns that particular witness or in which that witness had any share. if hhe asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." ‘After thought defence Hamicon Bin Mat Yatim v. PP (1995) 3 CLJ 724 @ 735 para AC “questions were not put to Rasul in the course of cross-examination (AEG Carapiet v. AY Derderian [1961] AIR Cal, 259; Re Pichi Muthu [1970] 2 MLJ 143; Wong Swee Chin v. PP [1981] 1 MLJ 212 FC, PP v. Datuk Hj, Harun bin Hj. Idris & Ors. [1971] 1 MLJ 180 especially at p. 194) and, consequently, they ‘can be dismissed as mere after thoughts" ‘Affer thought defence PP v Ho din Look and another trial [1999] 3 WiLJ 625 Held (8) There was no evidence of David's presence and there was no evidence even remotely supporting David's presence at or about the time of the commission of the crimes. As against the weight of the unchallenged evidence on the entire sequence of events inside the lounge that not one of the two men who entered the lounge left the lounge until after the robbery and sheoting, there was only the word of OKT2 who had been keeping his defence “up his sleeve’ that he walked out of the lounge before the commission of the crimes and that David walked into the lounge after he walked out trom the tounge. Surely, it was evident that David's alleged role was an invertion and an afterthought (see p 8566-H). B ‘Aagent, 32 PCA 1961, meaning of Sidik Mat Tan & 1 Lag) lwn PR [1984] 4 CLJ 607 Diputusken: [1] Kegagalan seseorang polis sukarelawan membuat deklarasi seperti yang diperuntukkan dalam s_39_Akta Polis 1967 tidak menjejaskan ulperlantivannya. DeWarasi yang dikehendaki cibuat oleh sekeyen Ini anyalan suatu ikrar bagi memperingatkan orang tu supaya_-menjalankan lugastugasnya dengan tekun. lanya bukaniah satu peruntukan penal dan peninggalannya tidak menjadi satu kesalahan. Diputuskan: [2] Seksyen 2 Akta mentafsirkan “agen” sebagai seseorang yang digunakhidmat oleh atau bertindak untuk orang lain dan tatsiran ini termasuk seseorang yang berkhidmat dengan "badan awam yang ditafsirkan sebagai termasuk Kerajaan Malaysia. Seterusnya s_2 juga mentatsikan "pegawai awam" sebagai seseorang yang bekerja secara tetap atau sementara dengan sesuatu badan awam dan "prinsipal" ditafsirkan termasukiah seseorang majan, Menurut’ Perkara 132(1)(6)_Perlembagaan Persekutuan perkhidmatan awam adalah termasuk pasukan polis. O'samping itu menurut Bahagian VIIl Akta Polis 1987 seseorang pegawai polis sukarelawan, apabila dimobilisasikan akan ciber gaji dan elaun, Peruntukan- peruntukan yang didapati di dalam bahagian ini menunjukkan mereka berkhidmat secara sukarela dan oleh ity boleh dianggap sebagal pekerja sementara apabila dimobilisasixan, Dengan hal yang demikian adalah jelas bahawa kedua-dua perayu di sini jatuh di bawah tafsiran “pegawai awam” dan dengan itu, selaku agawai polis sukarelawan, mereka adalah “agen” yang bertindak bagi pihak prinsipainya, iat Kerajaan Malaysia. wm Agent, s2 PCA 1981, meaning of [ease on 4{c) PCA 1984 Veon An Shoon v PP [1879] 2 MLJ 131 @ 133 ‘The learned counsel for the appellant dealt at length in his written submission on the meaning of the word “agent” as defined in section 2 of the Act. In his view the interpretation of the word should mean that the person employed by the Government of Malaysia should also act in representative capacity for the Government, He submitted that unless an employee acts as the representative of the Government it cannot be stated that he is an agent on the basis of his employment only. To support that view he referred to the definition of the word agent’ in Contracts Act, 1950 in which se fa person employed to do any act for another to represent another in cealings with third person.” To illustrate his view he also referred to the distinction between an agent and a servant in Halsbury's Laws of England Vol. 1 at page 145. With due respect, basically, | think that is @ wrong approach towards interpretation of a criminal law. The definition of the word ‘agent’ in section 2 of the Prevention of Corruption Act which deals with criminal liability of an individual cannot be equated with the definition of the same word in Contracts ‘Act which deals with civil rights and liabilities of a person. Both laws are not in pati materia and the position and liability of an agent in each respective law are different altogether. In my opinion the learned Magistrate has correctly held that the appellant in this case was an agent, being a person serving under a public body as defined in section 2 of the Prevention of Corruption Act and ‘public body’ is defined to include the Government of Malaysia — see R v Barret (George) 1976] 3 All ER 895 on interpretation of ‘agent’ in section 1(3) of the English Prevention of Corruption Act, 1908 which is similar to our Prevention of Corruption Act of 1961 B ‘Abt defence s.402A CPC, Whether cautioned statement constitutes valid notice, amendment of charge whether it affects alibi Hussin bin Silt v PP [1988] 2 MLJ 232 SC In this case, the accused was charged with rape, The accused sought at the trial to rely on the defence of alibi, No notice under section 402A of the Criminal Procedure Code had been given to the Public Prosecutor, However, the accused had made a cautioned statement to the police which was alleged to contain the defence of alibi. At the trial in the Sessions Court, the charge er Unoa, ff ph 12] defence: ‘was amended by alfering the time in the charge from "B30 pm to 8.00 pm- It was argued that because of this amendment in the charge the provisions of section 402A of the Criminal Procedure Code were no longer applicable, A the trial, the accused was convicted and sentenced to three years’ imprisonment, ‘The learned President rejected the accused's evidence of alibi. His appeal to the High Court was dismissed, The accused was given leave to refer two questions of law of public interest to the Supreme Court. The two questions as reframed were 2a) whether a cautioned statement recorded under section 113 of the Criminal Procedure Code can constitute a valid notice under section 402A of the Criminal Procedure Code; if the answer is in the negative, then (b) whether in aan offence where the charge is amended in the course of the trial relating to the time set out in the original charge, section 402A of the Criminal Procedure Code is not applicable, and notice required to be served thereunder need not bbe so served to render evidence in support of a defence of alibi admissibie, Held, answering both questions in the negative 1) for the purpose of compliance with section 402A of the Criminal Procedure Code, actual written notice containing particulars of the alibi must be given to the Public Prosecutor within the prescribed period, Therefore, cautioned statement recorded by the police under section 113 of the Criminal Procedure Code does not constitute a valid notice under section 402A of the Code. The answer to the first question is in the negative; (2) _ the alteration in the charge as to time by half an hour could not possibly On the facts of the case alter the legal position as to the requirement of alibi notice. Both the original and amended charges refer to one and the same ‘oceasion and accordingly any argument on the basis of the whereabouts of the accused on “another occasion” which evidence is not “evidence in support of a defence of alibi’ does not arise at all; (3) _the accused also failed to satisfy the court that by reason of any error or Comission in the particulars given in the original charge, the time, place and date of the alleged offence were so uncertain that he was in fact misled in not supplying the particulars of alitx required to be given to the Public Prosecutor, ‘within the prescribed period, s0 as to justify the trial court to conclude that the disputed evidence which he intends to adduce at the trial is, having regard to the circumstances of the case, not ‘evidence in support of a defence of alibi" and thereby should remain outside the restriction of section 402A of the Code; (4) having regard to the facts and circumstances of this case, in particular the nature of the offence, the particulars given in the charge, the materiality of the amendment and the type of alibi evidence intended to be adduced, the ‘second question posed should also be answered in the negative, % | Appaal, abatement | Yap Eu Leong Sunny vPP [1994] 9 LI 494 HC fof appeal of the | Choo Cheng Liew representative ofthe estate of Sunny Yap Eu Leong, death of the deceased) v PP [1997] 1 MLU 345 FC accused BT Attempt, what | Wiohd Ai Jaafar v PP [1908] 4 MLI 210 amount to attempt W | Bad character of | PP v Thavanathan [1054] 2 MJ 436 HC witness B | Ball Gord, Wong Swes Vee v PRI004]4 CLIT HC forfeiture of 13PP ov rd Cada: Ms Orbe Birnipmapvensn Fendanyy v(t rox Cunluch evaky wheres be Mige ca 4 Lael Lease Chea’ bakecahdizin teak PPK eu alinnibon buf A's 40 ceren 3 Bail, revocation of Wong Kim Woon v PP [1900] 5 MLJ 174 3 Beyond reasonable land prima facie, ‘connexion of| PP v Mohan Singh Lachman Singh [1995] 4 CLI 620 a Beyond reasonable doubt, meaning of Yan Wing Lee v. PP (1004) 2 OLJ 453 @ 460 AB itis not the duty of the prosecution to prove the guilt of the accused beyond any shadow of doubt or to any mathematical accuracy.” a Burden of proof ‘Akin Khan bin Abdul Rahman v PP [1987] 2 MLJ217 SC | | | | a 4 Burden of proof, Judgement must be read as a whole when the court wrongly apply burden to rebut presumption ie on a balance of. probabilities, .60(1) Courts of Judicature Act ‘954 K Sarevanan all S Karuppiah v PP [2002] 3 MLJ 465, (On the last ground, Mr Gurbachan strenuously attacked the final conclusion made by the learned judge. The learned judge concluded In the end, this court was left with no doubt that he prosecution had satisfied its onus of proof and that the appellant had failed, on a balance of probabilities to raise any reasonable doubt on the prosecution's case. (Emphasis added.) He argued that as the prosecution did not rely on any statutory presumption to prove Its case, the defence has a lesser burden to cast 2 reasonable doubt in the prosecution's case. The inclusion of the words ‘on a balance of probabilities’ by the learned judge had placed an onerous burden on the defence and therefore, a serious misdirection. We are of the view that this passage must not be looked at in isolation but to be read together with the whole judgement. The learned judge stated: It may be convenient at this point to immediately state that the court found this explanation to be too far fetched to be believable, and further, on an objective assessment, had found it to be too fanciful to cast a reasonable doubt on the prosecution's case (Mohd Yatin v PP [1950] MLJ 57 [at p 20 of the appeal record) In my view the evidence of these two witnesses, called by the defence, completely destroyed any chance of my finding that the appeliant’s, story might be worthy of creating a reasonable doubt, even if unbelievable. (at p 21 of the appeal record) Having heard and seen the appellant, | have no hesitation, in evaluating his evidence, to totally reject it as one too incredible to be believed. In short, his story was a complete lie and had not ralsed any reasonable doubt fon the prosecution's case. (at p 22 of the appeal recora) From these passages, we are satisfied that the learned judge had made the correct conclusion on the burden of proof after having properly and adequately assessed the evidence before him especially the defence. We have sorutinized the whole evidence and we are satisfied that there is overwhelming evidence to show that the prosecution had proved its case beyond reasonable doubt and that the defence had failed to raise any feasonable doubt on the prosecution's case. Therefore, we regard the inclusion of the words ‘on a balance of probabilities’ as mere verbosity. In Shanmugam a/l Manusamy v PP [1999] 1 MLJ 288, the trial judge said that there was a prima facie case against the appellant that if unrebutted would fender 2 conviction. This court, after having gone through the evidence adduced by the prosecution and having no doubt that there was ample 14‘evidence to show at the end of the prosecution case that the prosecution had Proved its case beyond reasonable doubt, held that the choice of the words ‘prima facie’ was only the wrong usage of words. Whatever itis, to our mind, this is @ fit and proper case to apply the proviso to the provisions of s 60(1) of the Courts of Judicature Act 1964 as we consider that no substantial miscarriage of justice had occurred For the above reasons, we find there is no merit in this appeal s Burden of proof, wrong burden Re Tan Boon Liat @ Allen & Anor (197) 2 MLJ 108 Harun bin Abdullah v PP [1998] 2 AMR 1983 PP v Surandran all Rajaretnam [1998] 3 CLJ 184 PP v Surandran all Rajaretnam [1998] 2 AMR 1260, Ishak Shaari v PP [1997] 3 CLJ Supp. 228 ‘Yap Sin Hock v PP [1992] 2 MLJ 714 ‘Thomas v R [1960] 102 CLR 584 % Caution Stament, what amounts to voluntariness ‘Aziz bin Muhammad Din v PP (1996) 5 MLJ 473 @ 506 D1 ‘As Lord Salmon said in DP v Ping Lin [1976] AC 574 at p 606: Unfortunately, there are far too many reported cases concerning appeals against decisions allowing evidence of confessions or statements to go before a jury. A whole body of case law seems to have been conjured up out of what are essentially decisions on questions of fact, This has, | fear, led to a great deal of unnecessary confusion and complication in a branch of the law which is essentially clear and simple. | entirely agree with my noble and learned friend, Lord Kilbrandon, that in deciding whether an alleged confession or statement was free and voluntary and should be admitted in evidence, it is useless, just as it is in an accident case, to search for another case in which the facts seem to be similar and treat it as binding. Facts vary infinitely from case to case__The judge's task is to consider the evidence before him, to ‘assess its implications and to decide the case of his view of that Thus words uttered by a person in authority can be said to affect the voluntariness of a statement only if it can be shown that they had an effect on the willingness of the accused to give the statement. Only a confession made by an accused in the belief that he will or may be better off by speaking or that ‘a refusal to speak will or may make it worse for him would not be admissible, In Lau Kee Hoo v PP [1984] 1 MLJ 110 there was evidence to show that the accused was induced to make a statement by being told that if he signed the statements he would be treated lenientiy and would not be tried in court. It was con this understanding that the accused signed the statement. Zakaria Yatim J (as he then was) ruled that the statement was not admissible, In this appeal the accused did not go on record to show that the words complained of had any effect on him. There is nothing to show that as a result of the words used he was compelled or induced to make the statement. On the contrary he said, ‘Polis tidak paksa saya untuk beri percakapan, Polis ada cakap perlahan F Caution statament, impeaching credit of accused PP v. Wong Yee Sen & ORS (1890) 1 MLJ 187:- “Held (1) A cautioned statement of an accused person, provided that it is voluntary, not introduced during the prosecution's case, can be permitted to be Used by the the prosecution to impeach the credit of the accused person during the case for the defence." ‘See also PP v Samsul Kamar bin Mohd Zain [1986] 2 MLJ 252 ‘Caution statement, inconsistency with testimony in court Mathew Lim V. Game Warden, Pahang (1860) 26 MLJ 89 @ 90 A-B “Once this has been done and it is proved that the previous statement when compared with the evidence given in court contains material inconsistencies 1sThe witness's credit 1s impeached and his evidence becomes worthless because the witness himself has been shown to be unworthy of credit.” 2B [Caution sateen | PP v. bo AH Eng (1a65) 31 MLJZ41 @ 245 Hal Kit wreonetstcney ah testimony in court | «in a sense, the previous statement is like an Indian-rubber — it does not produce vwiiten testimony, but merely erases the evidence given in the fines box. Te earlier eftement cannot be substituted forthe evidence in Court which ie debeteved.” ‘40 | Caution statement, | Mansor bin Md, Rashid & Anor v. PP (1997) 1 CLJ 233:- value ot exculpatory “Held (6) ...A purely exculpatory or self-serving statement is not evidence of ae the facts stated although it may be admitted to show the reaction or attitude of Prosecution stage | tne accused at the time he made it. in considering whether there was a case to answer, the trial judge ought not to take into account such a statement as the basis for founaing ah order of sequal and discharge "| Caution statement PTan Ewe Hust vPP (2002) 1 GLIS4 @ 61 AB CA ‘whether tho oract caution words —_| it is not necessary to use the prescribed words of the statutory caution; it should be | ~ | vould be sufcient i the words used are of Iie elfecton the accused. On bn Yahya v- PP [1992] 1 GLU 17, [1992] 1 CLJ (Rep) 100. The recording ofest here, had instead of using the exect words ofthe statutory caution, unwtingly provided him with a clearer option for him not ta give the statement but the ppelart opted to gve the cautoned statement. Tere sno principle of ustoe that has been Inuted by the chole ef words thatthe recording office Used wimen ne administered the caution, We woud keto noe that incoming to cut Conoluson we also considered the Court of Appeal (FM) case of Poon Hang vope [1949] te MLS tha WF | Caution under 545 | PPV Ramasamy afi Sebastian [TBST] TWiLD 75 [Saapae) FCA eer whether ‘Tsang Yuk Chung v PP [1990] 3 MLJ 264 (Singapore) reauted upon subsequent recording fe | Caution under ——| PP Tan Boon Tat TESOTS WLI ASE 8.45(3) APR 1997 | Tsak Yuk Sang v PP [1990] 3 MLJ 2¢ Singapore Cases _| sim Ah Cheoh & Ors v PP [1991] 2 MLJ 953 @ a fcer, ‘tile [1954] 2 MLJ Xow by Chal Yong Seng LLM (WUSY oF UncowTs Ti Barrister at Law. | Chan oFewaeHGS | Su An Ping [S60] FLT TS Held (1) i is unnecessary to call evidence to ensure that there Is no breakin chain of evidence. ifthe officer who. picked up the objec at the seere produced tt and ented it as that very object thats enough and there tere heed to call every officer who handled f uness there Ig doubt as to the identity. 1] Chain oF awaanes PPV. LIN MONG BHAING [S68] ZCLIa7S [8] The prosecution falled to establish a continuous chain of evidence relating toe exhib. though the law i lear in that "tf unnecesoary to call evidence to ensue there is no break nthe chain of evidence but where @ doubt as to th Kertty ofan exhib ares, afallure to ascuce evince fo | proce ne receseary ink n he eran of eudence woud be Taal to tne | prosecutton case pet Abdu Hara Cl (Malaya) in Teoh Hoe Chyev. PP. In this cate, there is doubt not only tothe Ident ofthe tenant in whose house the druge were found but alo there is doubt ao othe len of he drugs themselves which were sent fo the chemist a7] Change oF]uage5 | Wehamed Anuardn bin Abdul Salam & AnorV PP [1G96)3 WLI 288 HC Abdul Hama bin Uin [2000] 6 ML 34 He {| Character mon at | Yapp Yuk Tshin V- PP (1992) 3 GL 826 (Rep) TTSSD}ZOLI 1085 good character do 16‘commit crimes ‘Character is important but it cannot displace evidence of wrongdoing, Notwithstanding the decision in Syed Ismail v. PP [1967] 2 MLJ 126, this Court is of the view that men of good character do commit crimes: there is always (s0 agreed the learned Counsel for the appellant in the appeal) the first time. Good characteris best left 2s a mitigating factor and not baited as a ground to cleanse any transgression against the law. @ Charge defective, date wrongly Inserted, Taw Kiat Lang v PP [1966] 1 MLJ21S Held (3) the mistake in the fist charge could not be regarded as material as the date was not an essential part of the alleged offence, 30 ‘Charge defective, ilure to particularize offence Zulikflee bin Mohd Dom v PP [1897] 4 MLJ 161 cr Charge, alteration and amendment "458. Court may alter or add to charge (1) Any court may alter or add to any charge before judgement is pronounced (2) Every such alteration or addition shall be read and explained to the accused" 3 ‘charg amendment by trial and appellate court PP v Yeon Teck Chye AND Lim Hong Pung & Anorv PP [1981] 2 MJ 176 ("this case is on CBT 5.408) 3 ‘Charge, amendment of, time to amend. PP V, Jorge Enrique Pelion Telion (7698) 4 OLJ 278 “The general power of amending or even adding a charge with which the court is vested under the Criminal Procedure Code is found in section 168 and it reads = "158. Court may alter or add to charge ‘Any Court may alter or add to any charge at any time before judgement is pronounced Every such alteration or addition shall be read and explained to the accused’ “It says that this can be done at any time before judgement. But the best time to do 50 is at the close of the evidence for the prosecution. It is at that ‘tage that the court is in the best position to decide exactly the case which the accused is required to meet. Liew Cheok Hin v. R (1950) MLJ 131 Wong Siok Yong v. PP (1972) 1 MLJ 203. “In the present case the learned trial Judge amended both the charges not only at the end of the case for the prosecution but after having heard the submissions of both learned counsel for the defence and the learned Deputy Public Prosecutor. In other words, all the evidence both oral and ocumentary that the prosecution could produce to prove its case were before the learned trial Judge together with the addresses by both counsels on how the evidence was to be perceived and the law to be. applied. The learned trial Judge certainly at that point of time had the best ‘opportunity to make a proper finding. Of course whether he did make a proper finding is ancther matter. However, with respect, we are of the view that in the present case he had made a proper finding as to the evidence land a correct application of law. In other words, he was right in amending both charges at this stage’, a ‘Charge, charge on punishable provision under 5.415 & 417 PC Rogayai bie Che Mat v PP (2007]5 MLJ 77 7% Charge, framing of ‘charge under 5.409, PC for an agent ‘and government servant ‘Tan Liang Chewv PP (1987) 5 MLJ 38 Diputuskan(1) Sekirannya seorang pengkhidmat awam dituduh untuk kesalahan pecah amanah jenayah dibawah s.409 Kanun tersebut, die akan ituduh dengan can_dengan arta atau dengan diperkuasakan dengan ‘dalam __keupavaannya _sebaga\ knidmat_awam Walaubagaimanapun, seKirannya seorang ejen difuduh, dia akan ditudun dengan Giamanahken dengan harta atau dengan diperkuasakan dengan harta ‘di dalam perialanan kegiatannya sebagai,..(seorang] jen’. Tuduhan pertama terhadap tertudun pertama adalah sebagai 'seorang ejen Koperasi Kewangan Perindustrian Malaysia Bhd, sebagai pengarah dan dalam kedudukan sedemikian mempunyai kuasa tethadap harla...”. Tuduhan sedemikian adalah salah (lint ms 348F-G), Yap Sing Hock & Anor v PP (1992) 2 MLJ 714 dan Cooray v R (1953) AC 407 diikut Held(1) If a public servant is charged for criminal breach of trust under s.409 he would be charged with being entrusted with property or wth dominion ever property in his capacty of a public servant. If however, an agent is charged he would be charged for being entrusted with property or with dominion over the property ‘in the way of his business as..(an) agent. The first charge against the first accused charged him for being ‘an agent of Koperasi Kewangan Perindustrian Malaysia Bhd, to wit, a5 dtector and in such capacity entrusted with dominion over property... Such a charge was clearly bad (see SABF-G); Yap Sing Hock 8 Anor v PP (1982) 2 MLJ 714 and Cooray v R (1953) AC 407 followed, ‘cheque, whether a property under s.2 PCA 1961 Mohamed bin Long [1977] 1 NLJ 76 (FC) @ 76 It is also contended (ground 6) that the learned president had misdirected himself in law in holding that Exhibt P14 came within the definition of > There are generally two methods for proving that things, including photographs, are those taken at the scene, either (1) by tracing custody of the film from the moment of taking until production in court, or (2) by identification of the ultimate print, through oral or other evidence, with the scene recorded (see Russell v Russell (1875) 4 QSCR 103 (in banco);, Schmidt v Schmict (1969) QWN 3 at §; Barron v Valdmanis, unreported, NSW Sup Ct Meares J, 2 May 1978) ‘As the photographs tendered for identification had been properly identified | admitted them as exhibits and caused them to be marked as exhs P5 A-D and P7 without the need for the photographer to formally tender them with the negatives. The prosecution then closed its case and was fixed for continued hearing on the following da {87 | DocumentiEwhibits, | PP v. Lin Lian Chen (1991) 1 MLJ S16 @ S19 tendering fou oe “In the course of police investigation, the investigating officer, who has the on conduct of the investigation of a particular case assigned to him, will normally keep in his possession, or has custody and control of, all exhibits in connection with the case. It is common practice in our courts for the prosecution to tender exhibits through the investigating officer." @ | Documents, Rengasamy v PP [1974] 1 MLJ223, Carbon copies After the close of the prosecution case the learned President of the Sessions 24Court decided rt fo call for the defence and acquitied and discharged the respondent, According to his statement of grounds of decision the reason for not calling for defence was that he held that the analysis cash books (marked for the purpose of identiication as P2A, P2B and P2C respectively) are secondary evidence falling under section 63(b) of the Evidence Act since they are carbon copies and therefore inadmissible since no evidence had been adduced under section 65 to render them admissible. | hold that the carbon copies of the analysis cash books are not secondary evidence under section 63(b). | hold that they are primary evidence faling under section 62 (Expianation 2) of the Evidence Act, being documents made by one and the ‘Same uniform process as the top copies, and therefore they are admissibie as primary evidence under section 62. By looking atthe entries in the documents P2A, P2B and P2C one should have no doubt that they are carbon copies, They are entries made in the ordinary course of keeping account of revenue collection in a Government department, and they were made in books of printed forms, and therefore it can reasonably be inferred that each of the ‘carbon copies was made by one and the same uniform process as the respective top copy. It would of course be ideal if the prosecution had produced the top copies instead of the carbon copies, w Dosuments, photocopies ‘Tan Si Tan Hian Tsin [1979] 1 MLJ 73 @ 75 &76FC Now what were produced in court was not the original Tatung’s documents but Photo-stat copies thereof which Ho, in his disquiet about the propriety of the Whole transaction, made for his own protection, and then kept in his personal file. The question of admissibility arose. Ho said that the originals were with Folex and of_-—scourse, being primary evidence, the originals should be produced. But there was evidence from Joseph Tay that after a search of the Company's records which he carried out at the request of the Police, he could not discover the originals and in the circumstances, secondary evidence of the documents becomes available under the combined provisions of sections 65 and 63(b) of the Evidence Act 1950, Documents, admissibility of Ng Yiu Kwok and Ore v PP [1989] 3 MLJ 166 Held (2) The so-called investigation was in fact for the limited purpose of procuring witnesses to tender certain exhibits in court which exhibits were already in the possession of the prosecution and they had already by then bbeen tendered in court for identification. The court should only be concerned with evidence to see if they are admissible, not when or how such evidence was obtained. a Documents, classified document under Tax Law can be admitted during trial base on impied authority given by the witness whose file involved when he testited in court ‘Sharif Bungsu b. Shanf Zen & Nordin b, Salles v PP [100] MLJU 645 {available online only) ‘As regards the interpretation of section 138 (2) (c) of the Income Tax Act 1967 |'can understand the anxety of the learned counsel for the Appellants to have it considered seriously. If indeed it was wrongful and in breach of the statutory provision of the Income Tax Act to allow the admission of such documents then there would have been nothing for the Prosecution to rely on in relation to the issue inducement, In particular there would have been nothing to support the contention that the 2"* Appellant showed the documents to PW.5, Now, that section reads: \\Page 17>> *{2) No classified material shall be produced or used in court or otherwise except - (a) forthe purposes of this Act or another tax law: (b) in order to institute or assist in the course of a prosecution for any offence committed in relation to tax 25oF i relation to any tax or duty Imposed by another tax] law, or (c) with the written authority of the Minister or of the person Cr partnership to whose affairs it relates.” It is the contention of learned counsel for the Appellants that the proper person giving the authority for the release of those documents should be the father of PW.5's father, namely, Mr. Yaw Soon Hua 2s it is a mandatory requirement, Yet according to leared counsel the learned SCJ concluded that it was by implication that authority was given. This is what the learned SCJ said at page 311 of Appeal Record: "21, Before proceeding further, section 138 of the Income Tax Act 1967 (Act 53) must be addressed to. The prosecution submitted, inter alia, that the production in Court of P.4, P.5, P.6 and P.7 could be done under section 138(2) of the said Income Tax Act. The reason given is that PWS, being the managing partner of Yaw Soon Hwa & Sons Company, having been called as a witness and presumably having not indicated any objection, dengan sendirinya kebenaran untuk mengemukekan eksibiteksibit tersebut ||Page 18> diperolehi...” Aoparently, this contention was made considering that the said exhibits directly concem the business of the said company. The contention it seems, is that by implication PWS has authorised the production of the said exhibits. Although, it could be argued whether, even in such a situation, a "written authority’ is nevertheless required, | am inclined to agree with the prosecution contention, In the circumstances, it would appear that the said s. 138 (2) has by implication been substantially complied with, and hence the admissibility of the said exhibits.” | have perused the Notes of Proceeding and indeed there is no dispute that the Income Tax number OG 700- 9111-01 belongs to Yaw Soon Wah. PW.1 Chan Lai Kien confirmed this, But itis also in evidence that such tax returns were issued in connection with the business of Yaw Soon Wah, namely, the istribution of newspapers and stationary, And that he had retired from the business about 4-5 years at the time of the trial was not in dispute, (see: the evidence of PW.5). The running of the business was therefore taken over by PW.S. Thus, in reality it could be said that PW.5 was the man behind the business upon which the tax returns were submitted, That being the case | find no reason to fault the conclusion of the learned SCJ that since it was PW.S who came to Court to adduce such evidence and that no objection was received before or at the time of the trial it could safely be said that he had |lPage 19>> authorized the release of the same. In any event | do not think it {is the business of the Appellants to complain on the tendering of those documents whilst relying on the specific provision in the Income Tax Act 1967 as in my view such provision is intended for the benefit of the tax payer, probably for confidentiality reason, and not to be utilized by anyone as an obstacle to benefit him. Moreover, itis trite law that a piece of evidence is ‘admissible so long as itis relevant to the fact in issue and it is admitted regardiess of the manner of its procurement. (see: Kuruma v R [1955] + AIIER 238). Accordingly there is also no merit in this other complaint a ‘Doouments, computer generated document under .80A Evidence Act 1950-requirement Gnanasegaran Pararajasingam v PP [1997] 4 CLJ6 COA Hela: Per Shaik Daud Ismail JCA [1] The Sessions Court Judge was right in finding that misappropriation had occured between the dates the various amounts were deposited in the ‘accounts and the dates the accounts were closed. 26Tia] When there is evidence that money eriusied to the appellant and deposited in a bank had been dissipated by hm then the sue of him applying to the Court for a datrbution order woulé not constitute any defence, 28 the money is no longer there to be distributed. This line of defence cannot raise ‘ny doubt on the prosecution's case [2)Section 90 of the Evidence Act 1950 , which has seven sub-sections, should not be read disjointedly. They should be read together as they form fone whole provision for the admissibility of documents produced by computers, [ZalSub-section (1) of s._90A allows the production of computer generated documents or statements if there is evidence, firstly, that they were produced by 2 computer, and secondly, that the computer produced them in the course of its ordinary business. However, once the prosecution adduce evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s. (2), as sub-s, (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. {2b] In the present case, since Zainal had stated that the statement of accounts were computer printouts, the first part of sub-s, (1) hes been proved and it would be superfious for him to issue a certificate under sub-s, (2), Once the Court accepts the evidence of Zainal, and there is no reason for the Court not to the prosecution has succeeded in proving what s. S0A(1) requires them to prove, namely that such document was produced by the computer, and in view of the deeming provisions of sub-s. (6), the second partis also proved Hence, there is no reason for the Court to reject the whole of the evidence of Zainal Per Mahadev Shankar JCA (concurring) [1]Section 908 was enacted to bring the "best evidence rule" up to date with the realities of the electronic age. The effect of s90A(1) in the present scenario is that it is no longer necessary to call the actual teller or bank clerk ‘who keyed in the data to come to Court provided he did so in the course of the ordinary use of the computer. [1a] Zainal was the branch officer in charge of all the operations of the branch He was therefore responsible for the conduct of the activities of the branch for ‘which that computer was used. If he chose he could have issued a certificate as required by s_90A(2) and without his actual presence all the computer generated documents would have been admitted in evidence as provided by s, SOA(1) . The viva voce evidence of the man in the witness box counts for more than a certificate issued by him [2] The charges against the acoused were conclusively proved. In the case of the first charge, the conversion took place as soon as the cheque was paid into the accused's office account because in effect he put the money into his ‘own pocket. As for the second charge, even if the accused had a good reason for delaying payment (and he had none), conversion was conclusively proved when the total amount in the client's account shrank below the total amount due to the complainants. [3] The prosecution cannot be expected to prove a negative. The contention that there was another client's account where other moneys were being kent in reserve to meet this liabilty goes to defence and s_106 of the Evidence Act _| applies. That burden is on the accused because itis a fact specially within his a]knowledge, [3a] It would not have helped the accused even if he had led evidence to show that he had other client's accounts where individually or cumulatively the credit balances therein had exceeded RM133,000. Whilst the Solicitors’ Account Rules 1978, r. 3(2) permits a solicitor to maintain more than one client's account, r. 7(aj() only permits the withdrawal of 2 client's money "for a payment to or on behalf of the client’. The effect of r. 7(a)li) is that the complainants’ money could only be taken out to pay the complainants or to their order. To use one client's money to settie a solicitors liability to some other client is a criminal offence. 35 | Documents, Gnanasegaran Pararajasingam v PP [1997] 4 CLI6 COA (SM Version] ‘computer ‘generated ‘| ik Daud tsmail generated 4, | Diputuskan: Oleh Shaik D: i HMR S.80A Evidence Act 41950-requirement [1] Hakim Sesyen adalah betul apabila mendapati bahawa berlaku pelesapan i antara tarikh-tarikh jumlah wang berkenaan disimpan di dalam akaun-akaun dan tarikhetarikh akaun-akaun tersebut ditutup, [1a] Bila terdapat keterangan yang menunjukkan bahawa wang yang di amanahkan kepada perayu dan yang disimpankannya di bank itu telah dihakisi olehnya, maka isu bahawa beliau telah memohon kepada Mahkamah Untuk perintah pembahagian tidak boleh menjadi suatu pembelaan, oleh kerana tiada lagi wang untuk dibahagikan. Pernbelaan sebegini tidak boleh mencetuskan apa-apa keraguan terhadap kes pendakwaan, [2}Seksyen 904 Akta Keterangan 1950 , yang mengandungi tujuh seksyen kecil, tidak hharus dibaca secara berasingan, Seksyen ini harus dibaca bersesama kerana ia merupakan satu gugusan peruntukan yang merperkatakan tentang kebolehterimaan dokumen-dokumen yang diterbitkan oleh komputer. [2a] Seksyen kecil (1) s. 908 membenarkan pengemukaan dokumen atau ernyataan yang diterbitkan oleh komputer jka terdapat keterangan, pertamanya, bahawa dokumen atau pernyataan tersebut diterbitkan oleh komputer, dan kedua, bahawa komputer telah menerbitkannya “in the ordinary course of its business". Bagaimanapun, sebaik sahaja pendakwaan memberikan keterangan melalui seorang pegawai bank bahawa sesuatu dokumen itu telah dlterbitkan oleh Komputer, pendakwaan tidak lagi bertanggungan untuk mengemukakan satu sijil di Bawah seksyen Kecl (2), oleh kerana seksyen kecil (6) memperuntukkan bahawa sesuatu dokumen yang diterbitkan oleh komputer hendakiah diandaikan sebagai telah diterbitkan oleh komputer tersebut "in the course of its ordinary use’ [2b] Dalam kes ini, oleh kerana Zainal telah menyatakan bahawa penyata ‘akaun berkenaan adalah cetakan komputer, bahagian pertama seksyen kecil (1) telah pun terbukti dan adalah sia-sia baginya untuk mengemukakan sijl di bawah seksyen kecil (2). Sebaik sahaja Mahkamah menerima masuk keterangan Zainal, dan tiada sebab mengapa Mahkamah tidak harus berbuat demikian, pinak pendakwaan telah berjaya membuktikan apa yang dikehendakki oleh s_90A(1),,iaitu bahawa dokumen tersebut telah diterbitkan oleh komputer, dan mengambil kira peruntukan anggap yang terdapat dalam sseksyen Kecil (6), bahagian kedua juga telah dibuklikan. Oleh hal yang demikian, tiada sebab mengapa Mahkamah harus menolak keselurunannya keterangan Zainal Oleh Mahadev Shankar HMR (menyetujui) | 28Ti]Sexsyen SOA telah digubal untuk mewujudian "kaedah keterangan terbaie™ sejajar dengan realitialaf elektronik Kesan s, 90A(1) dalam senario ¢i sini ialah ianya tidak lagi perlu untuk memanggil teller atau kerani bank yang memasukkan data yang berkenaan tersebut ke Mahkamah dengan syarat beliau berbuat demikian dalam kegunaan biasa komputer tersebut. [1a] Zainal adalah Pegawal Cawangan yang bertanggungjawab terhadap operasi Cawangan berkenaan. Beliau dengan ity adalah bertanggungjawab tethadap semua aktiviti yang dijalankan oleh Cawangan berkenaan untuk yang mana komputer tersebut telah digunakan, Beliau boleh memilih untuk mengemukekan satu sijil seperti kehendak s. 90A(2) tanpa perlu hadir di Mahkamah, dan tanpa kehradirannya semua dokumen yang dicetak oleh komputer tersebut akan diterima-masuk sebagai Keterangan di bawah s. 908(1) . Keterangan viva voce seseorang saksi di dalam kandang saksi adalah lebih kuat dari sil yang dikeluarkan olehnya. [2] Tuduhan-tuduhan terhadap tertuduh telah dibuktikan dengan muktamadnya. Bagi tuduhan pertama, pelesapan berlaku sebaik sahaja cek berkenaan dimasukkan ke dalam akaun pejabat tertuduh Kerana kesan sebenar perovatan itu ialah tertuduh telah memasukkan wang ke dalam poketnya sendiri. Berhubung tuduhan kedua, jikapun tertudun mempunyai alasan yang kuat untuk melengahkan pembayaran (beliau tidak mempunyai ‘apa-apa alasan pun), pelesapan terbuktl dengan secara muktamad apabila jumlah penuh wang yang ada di dalam akaun Klien menjadi kurang dati jumlah yang sepatutnya dibayar kepada pengadu, [3] Pendakwaan tidak perlu membuicikan suatu perkara negatit. Pengataan bahawa terdapat satu lagi akaun Klien di mana wang-wang lain telah disimpan Untuk membayar liablti di sini adalah isu untuk pembelaan dan s. 105 Akta Keterangan adalah terpakal, Beban pembuktiannya adalah terletak atas tertuduh kerana ianya adalah satu fakta yang hanya beliau mengetahuinya. (3a) lanya tidak dapat membantu tertuduh walaupun beliau boleh membuktikan bahawa wujud beberapa akaun klien lagi di dalam mana tersimpan sejumlah wang yang melebihi RM133,000. Sungguhpun benar bahawa k. 3(2) Kaedah-kaedah Akaun Peguamcara 1978 mengizinkan ‘sesecrang peguameara mengurus lebih dari satu akaun Klien, k. 7(a)(i) hanya membenarkan pengeluaran wang seseorang klien "untuk pembayaran kepada atau bag) pihak klien tersebut’. Kesan k. 7(a)() ialah wang pengadu hanya boleh dikeluarkan untuk membayar pengadu atau mengikut arahannya, Menggunakan wang seorang klien untuk menyelesalkan liabilti pequameara termadap Klien lain adalah satu kesalahan jenayah, [Rayuan ditolak] 37 [Besa made] Ng vu Knok and Or PP [188] SW Teo bests 320) | sig) appeared cuit clear thiscase that he documents which were aamitoa, were made nthe oure of te buseos of he holt The makers & the documents were ousice the jration and unwng to come ths Surty. The documents were poticed by pean response or thet Sefekouping Ina station ike ths unre the documents were prepare tthe course of busness and te makers mee cssge the jure eno ress or were uring fo came tots county, al he cout auld reas to oat) the requirement of s 38) of the Enderee Ac was Wat thors wen soo evidence to show that te mater atendaneo could ot be posed without diay or expense vtich the cout considered unveasonable unde he beunstances There was sufiet evicence tat fect ne cana ‘95 | Documents, Lee Kok Nam [1995] 5 CLJ 283. protcopy 3530) Boeeen Held(1) A Photestat, being a copy made from the original by a mechanical process within the meaning of s.63(b) of the Evidence Act 1950, is 29undoubledly secondary evidence, and wil be available as evidence only under the combined provisions of ss. 65 and 63(b) of the same Act. It will not be available if an explanation is not given as to why the original is not produced. ‘The explanation must of course satisfy one of the conditions of s. 65, Held(2) In the instant case, the photostats (excest for P4), without the ‘evidence satistying any one of the conditions precedent for Its admission, were undoubtedly, inadmissible evidence. Even in spite of the failure by the defence to object to their admission, the Photostats should not have been admitted % Documents, tendering document without the maker inclusive of the contents ‘Dato Mokhtar Bin Hashim & Anor v, PP (1983) 232 @ 277 & 278 “It ls also contended on behalf of the 1" appellant that P17A is @ documentary hearsay and that the handwriting and signature therein must be proved to be that of the 1" appeliant. The signature or handwriting in a document may be proved by circumstantial evidence if that iresistibly leads to the inference that the person in question must have signed or wiitten it (Baru Ram v. Presanni) and a document can also be regarded as evidenced by its contents and the internal evidence afforded by the contents can be accepted as authentication as when it states facts and circumstances which could have been known only to the person to whom the authorship of a document is a question of fact and ‘may be proved like any other fact by direct as well as circumstantial evidence which must be of sufficient strenght to carry conviction, a Entrustiment $405 PC, meaning Bahru Zaman bin Ali v. PP (1949) 15 MLJ23 @ 23, "Held (2) that when money is given to any person in his official capacity, Whether he has any right to take it or not, he is entrusted with it within the Meaning of .405 of the Penal Code. Entrustiment 8405 PC, meaning RATANLAL AND DHIRAJLAL'S LAW OF GRIMES 24" EDITION @ 1964 “Further the person handing over the property must have confidence in the person taking so as to create a fiduciary relationship between them’. @ 1965-1866 “A person authorised to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him and though the person paying may no longer have any proprietary interest nonetheless the person on whose behalf it was collected becomes the owner as soon as the amount is handed over to the person so authorised to collect on his behalf” Failure to Gross ‘examine Wong Swee Chin v. PP [1981] 1 MLJ.212 FC @ 213 Mr. Jagjit Singh also raised as one of his main grounds of appeal that the trial Judge erred in law when he held that the failure of the defence to cross examine the two prosecution witnesses on the ammunition actually found in the trouser pockets of the appellant at the time of his arrest (the subject-matter of the third charge) constituted a clear admission of the charge of possession by the appellant. We consider that statement of the law as a misdirection. A correct statement of the law is that failure of the defence to cross-examine the prosecution witnesses on the matter merely goes to the credibility of their testimony, to wit, the fact that they found the ammunition in the appellant's, trouser pockets remains unshaken. On this point we need only say there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness's testimony. Sut as is ‘common with all general rules there are also exceptions as pointed out in the judgment of the Supreme Court of New Zealand in Transport Ministry v Garry [1973] 1 NZLR 120, 122 where Haslam J. said at page 122— “In Phipson on Evidence 11th edition paragraph 1544 the learned authors suggest examples by way of exception to the general principle that failure to 30‘ross-examine will amount fo an acceptance of the witness's testimony, Viz where ".. the story is itself of an incredible or romancing character, or the abstention arises from mere motives of delicacy ... of when counsel indicates that he is merely abstaining for convenience, €.9., to save time. And where several witnesses are called to the same point itis not always necessary to cross- examine them all" 100 False Statement under s.199 PC PP v Sharma Kumari [2000] 3 OLJ 596 101 | Favour need not be | Gurbachan Singh v PP [1066] 2 MLJ 125 also Jamil bn Mahmood shown, 5.6 PCA 1961 & 5.12 PCA 1997, 102 | Finding of Facts | PPV Ku Lip See [1981] 1 MLI258 Wong Swee Chin v. PP [1981] 1 MLJ 212 FC @ 213 PP v Wan Razali Kassim [1970] 2 MLJ 79 FG Tan Thong Jin v PP [2002] 3 CL 552 COA 103 First information Report PR V Ismail bin Attan (1992) 2 CLJ 1253 @ 1255 Hl Kanan & 1256 AD Kin “First information report is admissible as evidence under s.108A of the Criminal Procedure Code, However, one must first determine whether it is a first information report. As defined by Dr. Mallal in his 4". Edition of the Criminal Procedure Code at page 138 ‘information’ in this section means something in the nature of a complaint or ‘accusation of at least information of a crime, given with the object of putting the police in motion in order to investigate as distinguished from information obtained by the police when actively investigating a crime The information referred to may come from more than one source or more than one such information may be recorded at or about the same time, but ‘once the police have taken active steps in investigation, any written statement waitten by them fall within s.121 and are inadmissible in evidence.” ‘The rational is rather simple; if statements are recorded after investigation, be it in the form of a police report or otherwise, it can be made to fit into the case ‘as has then developed. This would not be fair to the accused person since by that time the police could say what they wish to suit the circumstances of the case." TOE | First information | Alcontara all Ambrass Anthony v PP [1986] 1 MLJ 205 Report, “bertindak ‘alas maklumat" 705 [First information —[ PP v Chow Kam Meng [2001]7 CLI 87 Held 7 Report, arrest Report to be Held [1] The term ‘first information report’ is used in relation to the first police roduced i there | report filed alleging the commission of an offence, and if there is no previous 7 police repor, the arrest report is infact the first infermation report. Both reports are entries in a public or oficial record and made by a public servant in the performance of his duty and if it states a fact in issue ora relevant fac, is itself 2 relevant fact under s, 35 of the Evidence Act. 106 | First information | Flerchun Singh v PP [1969] 2 MLJ209 @ 210 & 211 FC Report, errors and omissions It was strongly argued that the police report, made shortly after the robbery by the complainant, not only failed to identify them but contained the further statement “I do not know them (saya tidak kenal)’, This statement was taken by a police constable of the rank and file only, who was stationed at the police post in Carey Isiand. It was contradicted by the complainant who denied he had said these words, in fact, he remembered telling the police about Adaikan, the third appellant, as well as giving a description of 31the first appellant. He remembered telling the policeman that there were Sikhs among the robbers and that one of them was 2 brother of the estate watchman, but whose name he could not recollect at the time he made the report. The learned trial judge, having heard the complainant's explanation, was satisfied that the latter was still very much shaken by the alarming experience he had undergone when he made his report but that, despite his agitation, he did mention some names to the police, This was a finding of fact, that the report which was taken down contained errors and omissions for which the constable alone was responsible. This view of the trial juge as to the credibility of the witness must be given proper weight and consideration. An appellate court should be slow in disturbing such finding of fact arrived at by the judge, who had the advantage of seeing and hearing the witness, unless there are substantial and compelling reasons for disagreeing with the finding see Sheo Swarup v King-Emperor AIR 1934 PC 227. Hence, this case is distinguishable from Ah Mee v Public Prosecutor [1967] 1 MLJ 220, cited to us in argument, where the complaiant clearly gave the number of her assailant’s, car as M 6049, a contradiction for which she and no ether person could have been held responsible, ‘As regards omissions in the first information report, we would endorse Sohonis commentary on section 154 of the Indian Criminal Procedure Code (16th Edition, Vol. 1, page 750), which is similar to section 107 of our Criminal Procedure Code, as follows:— “Iisa mistake to believe that a person cannot be the accused unless his name appears in the first information report. The provisions of the Code lay down no such stipulation. All that Is required for purpose of this section is that there should be clear, definite information about the commission of a cognizable offence to set the investigation machinery in motion. Further, the information required need not contain the circumstances of the commission of the offence, nor the names of the offenders or the witnesses, for the main purpose of investigation is to ascertain these matters... The first information Teport is not an Encyclopaedia, It is not the beginning and ending of every case, It is only a complaint to set the affairs of law and order in motion, It is oniy at the investigation stage that al the details can be gathered and filled up, But it cannot be said that omissions in the first information report would always be of no significance. The report is not substantive evidence and omissions in it will not ipso facto lead to the case being thrown out. But it is a piece of corroborative evidence; omissions in it wil, other things being the same, deprive the prosecution of the most valuable corroboration and thereby make the story suspicious. When a first information report contains an omission as to an important fact relied upon by the prosecution, the omission is important and in the absence of any other evidence, the court may in a given case refuse to consider the evidence of the informant on that fact because of such omission. For a correct appraisal of the effect of omission as contradicting the informant it is essential to keep in view the circumstances in which the report was lodged! For instance, an omission in a report hurriedly lodged under the press of events should not have the same significance as one in a report lodged after cool calculation.” In shor, it is wreng to hold up the first information report as a sure touchstone by which the compainant’s credit may invariably be impeached, It can only be Used for that purpose with discrimination, in much the same way as previous statements by the witness are used, so that irrelevant errors in detail are not given exaggerated importance, nor omissions, objectively considered in the light of surrounding circumstances,107 First information Report, failure to particularized relevant fact in report is not material Heiohun Singh @ OS VPP [i969] LNSSD (1859) 2 WLI 209 @ ATF "As regards omissions In the first information report, we would endorse ‘Sohonis commentary on section 154 of the Indian Criminal Procedure Code (16” Edition, Vol |, page 750), which Is similar to section 107 of our Criminal Procedure Code, as follows: — ‘Itis a mistake to believe that a person cannot be the accused unless his name ‘appears in the first information report. The provisions of the Code lay down no such stipulation, All that is required for purpose of this section is that there should be clear, definite information about the commission of a cognizable offence to set the investigation machinery in motion. Further, the information required need not contain the circumstances of the commission of the offence, nor the names of the offenders or the witnesses, for the main purpose of investigation is to ascertain these matters, .. The fist information report is not aan Encyclopaedia, It is not the beginning and ending of every case. itis only a complaint to set the affairs of law and order in motion. It is only at the investigation stage that all the details can be gathered and filled up. But it ‘cannot be said that omissions in the first information report would always be of ‘no significance. The report is not substantive evidence and omissions in it will hot ipso facto lead to the case being thrown out But it is a piece of corroborative evidence; omissions in it will, other things being the same, deprive the prosecution of the most valuable corroboration and thereby make the story suspicious, ‘When a first information report contains an omission as to an important fact relied upon by the prosecution, the omission is important and in the absence of any other evidence, the court may in a given case refuse to consider the evidence of the informant on that fact because of such omission. For a correct, appraisal of the effect of omission as contradicting the informant itis essential to keep in view the circumstances in which the report was lodged For instance, an omission in a report hurriedly lodged under the press of events should not have the same significance as one in a report lodged after cool calculation, In short, it is wrong to hold up the first information report as a sure touchstone by which the complainants credit may invariably be impeached. it can only be Used for that purpose with discrimination, in much the same way as previous statements by the witness are used, so that irrelevant errors in detail are not given exaggerated importance, nor omissions, objectively considered in the light of surrounding circumstances," 108 First information Report, time to lodge report “Abdul Rahman bin Sahir & Anor v PP [1995] 7 CLI 33 Held [1] The report from the outset, it must be said that the report by PW4 is acceptable as there is no law, except for the 24 hour rule in respect of accident cases, which compels the making of a report within a time frame. However all reports must be lodged within a reasonable time and in this case PW45 explanation of the intervening Chinese New Year period and his having to go to Penang were factors which contributed to the delay in reporting, Nachatar Singh s/o Bhag Singh v. Public Prosecutor [1986] 2 CLi 452, 703 First information Report, value of Fong Chee Cheong V PP (1970) 7 MLJ 97 * 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 in itself a ground for throwing out a case" 70 Forgettuness and failure to recall Pie bin Chin v PP [1085] 1 MLJ 234 @ 235 & 26 33