SISTEM KEADILAN JENAYAH : KES-KES TANGKAPAN .

SISTEM KEADILAN JENAYAH MALAYSIA

Nota : Kuliah lama PG yang ada dalam simpanan. Ia adalah juga catatan tambahan yang dibuat oleh seorang yang amat dedikasi di dalam kelas kami . Setinggi terima kaseh kepada Che Zaimani yang begitu rajin dalam membantu kami dahulu. Kepada semua pelayar blog ini, semuga dengan paparan ini, ianya akan memberi menafaat kepada semua dalam memahami secara ringkas mengenai Sistem keadilan Jenayah Di Malaysia. Tq

Kes-kes tangkapan2

BRUNEI REPORT KUAN KWAI CHOI V AK ZAIDI BIN PG METALI 1993] 2 MLJ 207(Brunai)

[ Plantif ditangkap pada jam 10.30 pagi hari Sabtu dan cuba dibawah kehadapan Magistrate pada jam 4.00 petang. Setelah gagal mendapatkan Magistrate pada hari tersebut plantif ditahan sehingga hari Isnain. Diputuskan tahanan pada hari sabtu dati jam 10.30 pagi sehingga jam 4 petang adalah kelengahan yang tidak perlu dan pelantif dibayar bayaran pampasan kerana pemenjaraan salah ]

Catchwords:
Tort — False imprisonment — Warrant of arrest authorizing arrest of plaintiff — Police inspector arrested plaintiff and detained plaintiff at police station — No action taken to produce plaintiff before the court — Whether there was ‘unnecessary delay’ — Criminal Procedure Code s 47
Tort — False imprisonment — Whether public servant can be sued in personal capacity when carrying out official duties — Succession and Regency Proclamation 1959 s 25

Facts:

A warrant of arrest dated 11 June 1990 (‘the warrant’) was issued by the magistrates’ court authorizing police officers to arrest the plaintiff for failure to attend court and to produce the plaintiff before the court. On Saturday 23 June 1990 at about 10am, the defendant, an inspector of the Royal Brunei Police Force in the execution of the said warrant, arrested the plaintiff at her home and brought her to the police station where the plaintiff was locked up at about 10.30am. The defendant drove to the central police station where at about 11am, he wrote a minute to his superior, DSP Kamaludin who later in the day at about 4pm ordered the defendant to take the plaintiff to court. The defendant and DSP Kamaludin phoned up the court but could get no answer. Shortly before 4.30pm on the same day, the defendant signed a minute stating that he could not bring the plaintiff to court in time that day. Thereafter, the defendant had nothing further to do with the case. The plaintiff was kept in custody for 52 hours before being finally taken before the court on Monday 25 June 1990 at about 2pm. The plaintiff instituted the present suit against the defendant claiming damages for false imprisonment.
Holdings:

Held,

allowing the plaintiff’s claim with costs:
(1) There was nothing in the said warrant which authorized the detention of a person arrested under it. Under s 47 of the Criminal Procedure Code (‘the CPC’) it is provided that the police officer, or other person executing a warrant of arrest shall ‘without unnecessary delay’ bring the person arrested before the court. If a court is not sitting, or a magistrate is not available at the time when the arrest took place such circumstances may be regarded as a necessary delay. The plaintiff was arrested shortly after 10am and the magistrate should have been available for some six hours thereafter. The court found that there was unnecessary delay in this case as no effort was made to take the plaintiff in front of a magistrate during that time. Between 10.30am and 4pm on 23 June, the plaintiff was falsely imprisoned. From 4pm onwards, DSP Kamaludin had charge of the plaintiff and could have released her. Therefore, the liability of the defendant did not extend beyond the first six hours.

(2) A public servant could be sued, in a personal capacity for tortious acts which he carried out, as part of his official duties.

(3) The amount awarded to the plaintiff must represent the annoyance which she must have felt and the adverse effect on her reputation in being wrongly imprisoned. The sum of $3,000 was therefore awarded to the plaintiff as damages for wrongful imprisonment.

[Editorial Note: The plaintiff’s appeal against this judgment on quantum of damages vide Civil Appeal No 6 of 1993 was heard on 22 May 1993 by the Court of Appeal (Bandar Seri Begawan). The court (comprising Kutlu Fuad P, Alan Huggins Commissioner and Derek Cons Commissioner) dismissed the appeal.]

POLIS DIRAJA MALAYSIA V KEONG MEI CHENG AUDREY [1994] 3 MLJ 296

[ Pihak polis memohon semakan atas arahan pendaftar membebaskan suspek dari tahanan kerana alasan tangkapan tidak diberitahu. Diputuskan salinan diari penyiasatan tidak diserahkan seperti peruntukan seksen 117 CPC dan alasan tangkapan hendaklah diberitahu. Oleh yang demikian permohonan semakan ditolak]

Catchwords:
Criminal Procedure — Police investigation — Investigation diary — Whether grounds for continued detention must be supplied in the form of a diary — Whether affidavit sufficient — Whether police must report to public prosecutor — Criminal Procedure Code (FMS Cap 6) s 117(i) & Second Schedule Form XXVI
Criminal Procedure — Arrest — Without warrant — Whether unlawful if grounds of arrest not informed — Rank of arresting officer — Criminal Procedure Code (FMS Cap 6) ss 108(iii), 109(i) & 110
Criminal Procedure — Arrest — Grounds of arrest — Wife of accused — Refusal to co-operate with police — Whether sufficient
Criminal Procedure — Police investigation — Procedure applicable under s 117 — Registrar’s Circular No 1 of 1979 — Criminal Procedure Code (FMS Cap 6) s 117

Facts:
The respondent’s husband was charged with criminal breach of trust (‘CBT’) under s 409 of the Penal Code (FMS Cap 45) (‘the PC’). The respondent was alleged to have assured the police that she would surrender all share certificates and cash of RM70,000 (the subject matter of the offence allegedly committed by her husband) but failed to do so. She was subsequently arrested but was not tried nor charged with any offence. According to the police, it was the respondent’s unco-operative attitude which gave rise to a reasonable suspicion that the respondent had abetted her husband in committing CBT. This statement was affirmed in a police officer’s affidavit but was not in the form of a diary envisaged by s 117(i) of the Criminal Procedure Code (FMS Cap 6) (‘the CPC’).

The police applied to the magistrates’ court to continue detaining the respondent for further questioning. However, the registrar ordered the release of the respondent from police custody and held that the arrest of the respondent was made without a warrant and she was not told of the reasons for her detention. The police have applied for a revision of the order. The issues before the court are: (i) whether the respondent’s arrest and detention were legal; and (ii) whether the registrar’s order was proper.

Holdings:
Held, dismissing the application and confirming the registrar’s order:
(1) A diary containing details of the proceedings in the investigation referred to in s 117(i) of the CPC must be supplied to the magistrate under s 117. As a matter of law, it must be in the form specified by s 119 and must be replete with grounds indicating that the information against the accused is well founded. In this case, the police did not transmit a copy of the diary to the magistrate.

(2) It is also incumbent upon the police to report to the public prosecutor on investigations under Ch XIII of the CPC through the use of Form XXVI in the Second Schedule. This was not done.

(3) The offence of CBT under s 409 is a seizable offence, ie a police officer may ordinarily arrest without warrant. In such a case, the police must inform the person arrested of the grounds of arrest and, under ss 108(iii), 109(i) and 110 of the CPC, the power to arrest is confined to a police officer not below the rank of sargeant. Here, the respondent’s arrest had been effected by a constable and she had not been informed of the reasons for her arrest.

(4) Although the court has jurisdiction to try an accused notwithstanding that his arrest may have been illegal, this was not applicable as the registrar was not ‘trying’ the respondent at the time.

(5) There must always be some lawful basis for arrest and detention including a clear nexus between the suspect and the offence. The law did not allow an arrest based on the respondent’s status as wife of the accused or on the anger of the police merely because she did not co-operate with them.

Per curiam
An application under s 117 should be made in duplicate and registered in court on the date it is filed, and recorded in serial numbers (ie one file for each police district or station) for each year. All court records and documents, eg diary and notes of proceedings, must remain in the court whether the application is approved or rejected. The police officer must report back to the magistrate on the date and time the accused (or remanded) person is released or granted bail in the form specified in the Registrar’s Circular No 1 of 1979. The magistrate should KIV his file to the relevant date of each order and if the release order is not received from the OCPD, the magistrate must inquire into the matter. The magistrate must also send a monthly return of all such orders and inquiries to the High Court judge.

YAAKUB BIN AHMAD v PUBLIC PROSECUTOR [1975] 2 MLJ 223

[Perayu telah disabitkan atas kesalahan rompak bersenjata. Perayu mendakwa pembicaraan adalah tidak adil oleh kerana beliau digari semasa pembicaraan. Diputuskan tidak menjadi kesalahan hakim membenarkan perayu digari semasa pembicaraan dan tidak prajudis]

Catchwords:
Criminal Law and Procedure — Identification parade — Accused handcuffed during trial — Whether accused prejudiced.

Facts:
The appellant had been convicted on a charge of armed robbery. On appeal it was argued (1) that a fair trial of the appellant was prejudiced by reason of the fact that he was kept handcuffed throughout the trial; (2) the verdict of the jury was unreasonable and could not be supported having regard to the evidence of identification by two witnesses at an identification parade which was the only evidence to connect the appellant with the offence.

Holdings:
Held, dismissing the appeal: (1) in the circumstances of this case there was nothing wrong in the judge granting the application that the appellant be handcuffed during the trial and the trial of the appellant was in no way prejudiced;

(2) there was nothing irregular in the identification parades at which the witnesses identified the appellant as the person who had committed the offence with which he was charged;

(3) the summing-up of the learned judge on the evidence in relation to the identification parades was not open to any criticism.

RAMANATHAN S/O CHELLIAH V PUBLIC PROSECUTOR [1996] 2 MLJ 538

[ Perayu dibawa kemahkamah untuk dibaca pertuduhan dan dia digari semasa pertuduhan dibaca atas alasan beliau masih di bawah jagaan polis dan tidak sehingga diberi jamin. Permohonan untuk menanggalkan gari tidak diluluskan. Perayu meminta semakan dibuat. Diputuskan budibicara untuk mengari atau tidak mestilah dibuat secara pertimbangan kehakiman dan mestilah mempunyai butiran material untuk berbuat demikian dan bukan sekadar pihak pendakwa memohon berbuat demikian]

Catchwords:
Criminal Procedure — Accused — Restraint of accused — Accused charged for outraging the modesty of two ladies — No application made by prosecution to have accused handcuffed — Whether proper to use handcuffs during trial or arraignment — Whether a matter of discretion for judge

Facts:
The accused in this case (‘the appellant’) was produced before the sessions court on two charges of allegedly outraging the modesty of two athletes under s 354 of the Penal Code (Cap 45). He was brought to court in handcuffs from the police station, and was put in the dock for the charges to be read to him. The appellant’s counsel applied to the sessions court judge to have the handcuffs removed. The deputy public prosecutor opposed the application, whereupon the sessions court judge rejected the application of appellant’s counsel. After the arraignment proceedings were over, the appellant was released on bail, and presumably, it was then that the handcuffs were removed.

The appellant, not being satisfied with the order of the sessions court judge to have the appellant handcuffed (‘the order’), filed a motion in the High Court requesting a revision of the order. The appellant’s counsel argued that it was improper for the appellant to remain handcuffed in the dock on the grounds that: (i) an accused person is under the custody of the court and no longer that of the police, once he is put in the dock; and (ii) there were no grounds whatsoever upon which the court could exercise its discretion to order the handcuffs. The deputy public prosecutor, on the other hand, contended that even though an accused person is in the dock, he is still in the custody of the police, and as long as he is not on bail, he ought to be handcuffed for reasons of security. The High Court judge was of the view that the order was proper, and dismissed the appellant’s motion. Hence, this appeal.
Holdings:

Held, allowing the appeal:
(1) It is in the sole discretion of the presiding officer to consider whether it is essential to have an accused person handcuffed, be it during the entire trial or at the arraignment, if and when an application is made by the prosecution. Such discretion must be exercised judiciously and not merely because the prosecution wants it to be. It is clear that firstly, there must be an application by the prosecution, and secondly, in order for the court to exercise its discretion judiciously, there must be some credible material before the court in support or otherwise of the application (see p 542C–D)
.
(2) In the present appeal, based on the record of proceedings, the deputy public prosecutor did not make any such application nor was there any credible material that was put before the court.The deputy public prosecutor conceded that the only ground put forward was that the appellant was not on bail then. Based on the alleged charges faced by the appellant, it could hardly be justified for him to be handcuffed. The sessions judge, therefore, did not exercise her discretion judiciously (see p 542E–F).

ABDUL RAHMAN v TAN JO KOH [1968] 1 MLJ 205

[ Perayu menuntut ganti rugi kepada anggota polis yang dikatakan menangkap dan memukulknya. Semasa rondaan anggota polis telah melihat perayu dalam keadaan mencurigakan membawa senjata merbahaya. Apabila diminta pergi ke balai Perayu enggan dan lalu si seret ke Balai Polis di mana setelah dipereksa sepucuk pisau dijumpai. Walau bagaimana pun perayu telah memberi cerita berlainan dari pihak polis. Apabila dia enggan pergi ke Balai Polis telah memegang leher baju nya dan diseret dan dia telah bergelut kerana kain sarung yang dipakai hendak tercabut dan terasa malu kerana tidak memakai seluar dalam. Rayuan di ketepikan atas alasan cerita perayu tidak boleh di percayai ]

Catchwords:
Tort — Assault — False imprisonment — Justification — Conflicting evidence — Damages.

Facts:
This was an appeal from a dismissal on a claim for damages for assault and false imprisonment brought by the appellant, a carpenter, agaisnt the respondent police constable attached to the police station at Tumpat, Kelantan.

The appellant and respondent gave somewhat different versions as to what happened. According to the respondent he met the appellant in the course of his rounds at a coffee shop. From the appellant’s behaviour the respondent suspected the appellant of carrying a concealed weapon upon his person and the respondent asked the appellant whether he carried any. On the appellant denying possession of any weapon the respondent invited the appellant to go to the police station to be searched. The appellant refused to go to the police station immediately and thereupon the respondent arrested the appellant. The appellant however resisted the arrest and he was dragged to the police station (which was 100 yards away) by the respondent. He was searched in the presence of two police constables who witnessed the recovery of a knife from the fold of his sarong.

The appellant in his evidence said that when he refused to go to the police station the respondent caught him by the collar of the shirt and sarong and dragged him towards the police station. In the struggle which ensued the appellant’s sarong slipped in consequence of which he found himself in an embarrassing situation as he was not wearing any underwear. He therefore submitted to the arrest. He also alleged that the respondent punched him in the stomach at the police station.

Holdings:
Held
(1) in regard to the alleged assault in the police station the trial judge had discredited the evidence of the appellant and this court was not disposed to interfere with that finding of fact;

(2) as for the assault in the coffee shop there was a conflict of evidence as to whether the appellant was told the reason for his arrest. The learned trial judge had considered this point and had stated in his conclusion that the appellant’s great reluctance to go to the police station with the respondent stemmed from the fear of what the respondent had told the appellant in the coffee shop regarding what the respondent suspected the appellant of carrying and not to a consciousness of his innocence. There was no reason to disagree with this conclusion. The appeal should therefore be dismissed with costs. (1) Christie v Leachinsky [1947] AC 573 .

OOI AH PHUA v OFFICER-IN-CHARGE CRIMINAL INVESTIGATION, KEDAH/PERLIS [1975] 2 MLJ 198

[Sabjek telah ditangkap dan permintaan untuk berjumpa dengan peguam sebaik saja selepas itu telah di tolak. Dengan itu pemohonan Habeas Corpus dibuat atas alasan melangggar perlembagaan artikel 5 dan dengan itu tahanan adalah tidak salah. Diputuskan hak berjumpa sabjek sebaik saja selepas ditangkap tidak boleh dilakukan .Pertimbangan hendaklah dibuat antara hak tertuduh dan tugas polis melindungi masyarakat dari pesalah bagi membolehkan polis mengumpul keterangan dan mengganggu penyiasatan polis ]

Catchwords:
Administrative Law — Habeas Corpus — Arrest by police — Refusal to allow solicitor to see person arrested — Right to counsel — Whether denial renders detention unlawful — Criminal Procedure Code (FMS Cap 6), ss 255, 365 — Federal Constitution, art 5(3).
Constitutional Law — Fundamental liberty — Right to counsel — Federal Constitution, art 5(3).
Habeas Corpus — Arrest by police — Refused to allow solicitor to see person arrested.

Facts:
This was an appeal from the decision of Hashim Yeop A Sani J (reported in [1975] 1 MLJ 93) dismissing an application for a writ of habeas corpus The facts in this case were that the subject had been arrested by the police on 26 December 1974 and after being produced before the magistrate on 28 December 1974 he was formally charged on 7 January 1975 for abetment in armed robbery The appellant, the father of the subject, instructed solicitors and counsel attempted to see the subject but was unsuccessful Subsequently, the appellant applied for a writ of habeas corpus and it was alleged that (1) the right of the subject to consult and be defended by counsel of his choice commenced immediately after his arrest; (2) this right is an unqualified right and the denial of this right by the police had rendered the detention unlawful The application having been dismissed in the High Court, the appellant appealed to the Federal Court.

Holdings:
Held, dismissing the appeal: (1) the right of an arrested person to consult his lawyer begins from the moment of arrest but that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyers on the one hand and on the other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them The right should not be exercised to the detriment of any investigation by the police;

(2) in any event habeas corpus was not the correct remedy in this case as the only complaint was that after the arrest of the subject, his solicitor was denied access to him.

SAUL HAMID v PUBLIC PROSECUTOR [1987] 2 MLJ 736

[Permohonan peguam untuk hadir semasa remand telah ditolak. Semakan dibuat untuk menentukan sama ada peguam boleh hadir semasa remand. Diputuskan peguam boleh hadir kecuali polis boleh memuaskan hati Magistrate kehadiran peguam akan menyebabkan gangguan kepada penyiasataan yang tidak berpatutan]

Catchwords:
Criminal Law and Procedure — Remand proceedings — Right to counsel — Criminal Procedure Code, (FMS Cap 6), s 117.
Constitutional Law — Remand Proceedings — Right to counsel — Federal Constitution (Malaysia), art 5(3).
Jurisdiction — “Inferior criminal court” — Meaning of — Criminal procedure Code (FMS Cap 6) ss 117 and 323.

Facts:
The police in the present case wanted to apply for remand of the accused for a further period of time. Counsel for the accused wanted to be present during the remand proceedings to oppose the application for further remand. However, the president of the Sessions Court refused to gave him any audience at that stage.

As a result the present proceedings were brought by way of revision to determine the main issues in this case, namely (1) whether a Magistrate or president who authorises or refuses to authorise the detention of an arrested person pursuant to the provision of s 117 is an “Inferior Criminal court” within the meaning of s 323 of the criminal Procedure code (FMS Cap 6) (“the Code”); (2) whether an arrested person has the right to be represented by a legal practitioner in remand proceedings under s 117 of the code.

Holdings:
Held
(1) when a magistrate or president exercises powers under s 117 he does so as an inferior Criminal Court within the meaning of s 323 of the Code;

(2) generally an arrested person has a right to be represented by a legal practitioner in remand proceedings before a magistrate under s 117 unless the police can discharge the onus of satisfying the Magistrate that to allow him to exercise that right would result in undue interference with the course of investigation;

(3) from the record of the proceedings in the Court below, the president had erred; first, in peremptorily excluding counsel merely on the ground that counsel has no right to be heard, and secondly, in not recording his reasons for extending the order for remand as required under the explicit provisions of s 117 (iii) of the Code. R v Local Government Board [1902] 2 Ir R 373 , 383, 384.] Chong Fook Kam & Anor v Shaaban & Ors [1968] 2 MLJ 50 , 52. Ooi Ah Phua v Officer in charge, Criminal Investigation Kedah/Perlis [1975] 2 MLJ 198 , 200 Hashim Bin Saud v Yahya Bin Hashim & Anor [1977] 2 MLJ 116 Quinn v Leathem [1901] AC 495 , 506. Balakrishna v Emperor [1931] Lah AIR 99 . Re Llewelyn Evans [1930] Lah AIR 95 . Sunder Singh v Emperor [1930] Lah AIR 945 . Ramli bin Salleh v Insp Yahaya Bin Hashim [1973] 1 MLJ 54 , 56.

KARPAL SING S/O RAM SINGH v MENTERI HAL EHWAL DALAM NEGERI MALAYSIA & ANOR [1988] 1 MLJ 468 [1988] 1 MLJ 468

[Arahan penahanan sabjek di bawah ISA telah dikeluar oleh menteri dengan menyatakan 6 sebab alasan penahanan. Sabjek mempertikai alasan keenam yang menyatakan pada suatu tempat dan masa tertentu telah mengeluarkan kenyataan isu perlantikan guru besar bukan Manderin bagi membangkitkan perasaan perkauman dalam masyarakat Cina. Kenyataan ini diakui oleh menteri sebagai kesilapan dan sabjek tidak membuat kenyataan berkenaan. Diputuskan tindakan berkenaan adalah tidak teliti dan tidak bertanggungjawab dan melanggar peruntukan akta. Habeas Corpus dibenarkan]

Catchwords:
Administrative Law — Habeas corpus — Writ of — Application for — Various allegations raised by Minister — Mala fides — Meaning of — Error in allegation — In accurate and irrelevant allegation — Allegation outside the scope of Internal Security Act 1960.
Constitutional Law — Habeas corpus — Writ of — Application for — Whether applicant can be allowed to appear in court and argue his own case — Importance of habeas corpus proceedings.

Facts:
The applicant who is a Member of Parliament, a State Assemblyman and an advocate and solicitor was placed under detention by virtue of a detention order issued by the first respondent under s 8 of the Internal Security act 1960. The applicant applied for a writ of habeas corpus. He challenged the detention order.

There was six allegations made against the applicant which formed the basis of the detention order. The present case centred on the sixth allegation which was that the applicant, at the place, time and on the date stated in the detention order, used the issue of appointing non-Mandarin qualified headmasters and seniro assistants in the national-type Chinese primary schools to incite racial sentiments of the Chinese community. This allegation was later admitted by the Minister to be an error as the detainee did not on that date, time and place apoke of the issue. Tindakan demikian adalah tidak teliti dan bertanggungjawab dan dibuat di luar skop undang-undang berkenaan. Rayuan dibenarkan]

Holdings:
Held, allowing the application:
(1) there are three exceptions to the non-justiciability of the Minister’s mental satisfaction in cases of this kind. They are (a) mala fides, (b) the stated grounds of detention not being within the scope of the enabling legislation, i.e. the Act, and (c) the failure to the comply with a condition precedent;

(2) mala fides does not meant at all malicious intention. It normally means that a power is exercised for a collateralor ulterior purpose, i.e. for a purpose other than the purpose for which it is professed to have been exercised;

(3) although the error relating to the sixth allegation was probably made in the course of enquiries by the police, the Minister cannot rid himself of the error of the police because the process starting with the initial arrest of the applicant under s 73 of the Act pending enquiries unitl the execution of a detention order made by the Minister would appear to be a continous one. Such being the case, any period or any part of such one continuous process can be looked into to see if the care and caution have been exercised with a proper sense of responsibility for the purpose of ascertaining if the detention order was properly made;

(4) viewed objectively and not subjectively, the error, in all the circumstances, would squarely amount to the detention order being made without care, caution and a proper sense of responsibility. Such circumstances have gone beyond a mere matter of form;

(5) the sixth allegation, though an irrelevant allegation which the court can enquire into, was also an inaccurate allegation that can be treated as being outside the scope of the Act;

(6) with regard to the contention that the detention order was necessary having regard to the first to fifth allegations, this court should not accede to the contentions.

[Editorial Note: A preliminary point was raised as to whether the applicant should be allowed to appear in court to argue his own case. The learned judge allowed the applicant’s application and the reasons for the learned judge’s decision is stated in the judgment.]

SAMINATHAN & ORS v PUBLIC PROSECUTOR [1955] 1 MLJ 121

Catchwords:
Customs Ordinance, 1952, ss, 145, 131(1), (e), (g) and (2) — Smuggling — presumption under
ss, 115 and 131(2) — Rebuttal — Rules of Evidence governing burden of proof in Civil and
Criminal cases — Evidence Ordinance, 1950, s 3 — “Proved” — “Beyond reasonable doubt”.

Facts:
In this case the appellants were charged with offences contrary to s 131(1) (e) and (g) of the Customs Ordinance. At the close of the prosecution case the learned President held that there was no case for the defence to meet and acquitted the appellants. On appeal by the prosecution Store J held [(1954) MLJ 162] that the learned President had misdirected himself on the question of when the presumption under ss 115 and 131(2) of the Customs Ordinance arose and ordered the case to be sent back to the learned President for him to call upon the appellants for their defence. After the appellants had given their defence, the learned President found them guilty of the charge, convicted and sentenced them.

The appellants appealed on the following grounds: (1) there was no, or no sufficient, evidence against any of the appellants which if unrebutted would have warranted a conviction: (2) if the presumption under ss 115 and 131(2) applied to the facts proved by the prosecution, the prosecution adduced evidence of the articles and the conduct of the appellants was sufficient to rebut the said presumption; (3) the learned President erred as to the quantum of the evidence necessary to displace the presumption of law under the provisions of the said Customs Ordinance; (4) the learned President did not give sufficient consideration to the evidence adduced by the appellants.

Holdings:
Held: (1) Storr J had already decided that the prosecution had established a case and that there was sufficient evidence for the defence to be called and therefore the first ground must fail; (2) as to the second ground the circumstances and conduct of the appellants did not rebut the presumption raised against them; (3) with regard to the third ground, if the learned President had erred at all, he erred in favour of the appellants; (4) as to the last ground the evidence adduced by the appellants went to strengthen the evidence which was given for the prosecution and did not help the defence.

Held also: under s 131(2) of the Ordinance the accused had to prove that he did not know that the goods were uncustomed or adduce such evidence as to make the existence of the fact that the accused had no knowledge that the goods were uncustomed so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that that fact existed.

[ Editorial Note: — in the course of his judgement, Buhagiar J made a through survey of three aspects of he law of evidence: (a) Rules of Evidence with regard to burden of proof in civil and criminal cases; (b) Evidence Ordinance, 1950 s 3; (e) burden and rebutting statutory presumptions.]

SUKMA DARMAWAN SASMITAAT MADJA V KETUA PENGARAH PENJARA MALAYSIA & ANOR 1999-1 MLJ 266

[ Sabjek telah disabit salah kerana liwat dan dihukum 6 bulan penjara. Sabjek mempertikaikan bahawa sebagai muslim beliau sepatutnya dituduh di bawah mahkamah syariah dan oleh itu hakim yang menghukumnya tidak memupunyai kuasa dan memohon Habeas Corpus. Diputuskan Habeas Corpus tidak terpakai bagi hukuman yang dibuat oleh Mahkamah, tetapi rayuan boleh dibuat. Mahkamah session mempunyai kuasa untuk menjatuhkan hukuman kerana sabjek dituduh di bawah Kanun Keseksaan.]

CATCHWORDS:
[*1] Criminal Procedure - Habeas corpus - Invalid ground for - Appellant charged under Penal Code (FMS Cap 45) - Sentenced to six months' imprisonment by sessions court - Application for habeas corpus - Whether habeas corpus available

Criminal Procedure - Jurisdiction of court - Sessions court - Appellant a Muslim charged under Penal Code (FMS Cap 45) - Tried and sentenced by sessions court - Whether sessions court had jurisdiction - Whether appellant came under jurisdiction of syariah court

HEADNOTES:

The appellant was charged with an offence of gross indecency under s 377D of the Penal Code (FMS Cap 45) and was produced before the sessions court. He pleaded guilty, and was convicted and sentenced to a term of imprisonment of six months. He subsequently moved the High Court for a direction of a habeas corpus under s 365 of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The substance of the appellant's case was that the sessions court had no jurisdiction over him and therefore, his detention in prison was pursuant to an order that was null and void and of no effect. The appellant argued that the syariah court had jurisdiction over this case. The High Court dismissed the habeas corpus application [*2] and the appellant appealed against that decision.

There were two issues in this appeal: (i) whether habeas corpus would lie in a case such as the present where an applicant is seeking release from custody under execution of a sentence imposed by a court; and (ii) if the remedy was available, whether the appellant should be given it. The respondents argued that, having regard to the fact that the appellant's detention was pursuant to the execution of a sentence passed by a court of law, the only remedy available to the appellant was by way of an appeal against the decision of the sessions court. The High Court judge overruled this objection and held that habeas corpus was available, but refused the appellant relief.

Held, dismissing the appeal:

(1) The expressions 'unlawfully detained' and 'detention' in art 5(2) of the Federal Constitution do not apply to the case of a person held in a prison in execution of a sentence passed by a court of competent jurisdiction. The only remedy is that of appeal under s 307 or s 358 of the CPC or an application for the court to exercise its powers of revision under s 323 of the CPC or s 35 of the Courts of Judicature Act 1964. The only instance [*3] where habeas corpus may exceptionally lie would be a case where the court passing sentence had no jurisdiction to do so. Absence of jurisdiction must be patent upon the face of the record and not by having recourse to matters outside the record.

The judge was wrong in the construction he placed upon art 5(2) of the Federal Constitution (see p 277B-F).The charge against the appellant under s 377D of the Penal Code (FMS Cap 45) is one which the sessions court had jurisdiction to try. It also had the jurisdiction to pass the sentence of six months imprisonment upon the appellant. Therefore, the appellant's case did not come within the exception and habeas corpus was not available to him as a matter of law (see p 277G- H).

(2) The expression 'jurisdiction of the syariah courts' in art 121(1A) of the Federal Constitution refers to their exclusive jurisdiction. If a person professing the religion of Islam does a proscribed act which is an offence both under the Penal Code (FMS Cap 45) and the Syariah Criminal Offences (Federal Territories) Act 1997 ('the Act'), then the courts referred to in art 121(1) will have jurisdiction to try such an offence. It is only in respect of offences under [*4] the Act that a syariah court has exclusive jurisdiction.

In the present case, the sessions court was not dealing with an offence of 'liwat' under the Act but with an offence of gross indecency under s 377D of the Penal Code (FMS Cap 45). Further, art 145(3) of the Federal Constitution does not confer jurisdiction upon a court which has none. The fact that the Attorney General has instituted criminal proceedings before a particular court would not confer jurisdiction upon that tribunal if it lacked jurisdiction for some reason (see pp 280B-C, H-I and 281C-D).

CHRISTIE AND ANOTHER v. LEACHINSKY.

HOUSE OF LORDS

[1947] AC 573, [1947] 1 All ER 567, 45 LGR 201, 176 LT 443, [1947] LJR 757, 63 TLR 231, 111 JP 224

HEARING-DATES: 2, 3, 5, 6, 9, 10 December 1946, 25 March 1947

25 March 1947

[ Sebab tangkapan adalah penting diberitahu kepada orang ditangkap]

CATCHWORDS:
Trespass -- False imprisonment -- Need to make charge known to person arrested -- Arrest without warrant -- Charge of unlawful possession under local Act -- Charge not justifying original arrest or continuing detertion under arrest -- Reasonable and probable cause for suspecting felony -- Dismissed of charge at police court -- Re-arrest inside the court -- Subsequent charge of larceny -- Charge dismissed -- Liverpool Corporation Act, 1921 (c. lxxiv), ss. 507, 513.

HEADNOTE:
On Aug. 31, 1942, the respondent was arrested by the appellants, who were police officers, and charged under the Liverpool Corporation Act, 1921, s. 507, with unlawful possession of a bale of cloth. Admittedly, the arrest was not authorised by the section, but the police bona fide and on reasonable grounds believed that he had stolen the cloth. He was detained in custody until the following day when he was brought before the magistrate and remanded in custody until Sept. 8. Thereafter he was remanded on bail until Sept. 15. At the hearing the respondent was discharged, it being stated that the Leicester police had decided to prosecute him for larceny, and before leaving the court he was re-arrested.

Later in the day, the Leicester police, charging him with larceny, took him to Leicester with a view to his committal for trial, but the charge was dismissed by the magistrates. The respondent claimed damages for false imprisonment and trespass to the person. Although the offence of unlawful possession under the Act of 1921 was one for which in the circumstances there was no power of arrest without warrant, the appellants pleaded that their action was justified because they had reasonable and probable cause for suspecting, and, in fact, suspected, that the respondent had stolen or feloniously received the bale of cloth.

HELD: (i) an arrest without warrant, either by a policeman or by a private person, can be justified only if it it an arrest on a charge which is made known to the person arrested unless the circumstances are such that the person arrested must know the substance of the alleged offence, (e.g., where the alleged wrongdoer is caught red-handed), or where he forcibly resists arrest; the circumstances of the present case were not covered by any such qualification; and, therefore, the initial arrest and imprisonment were unlawful and constituted false imprisonment.

(ii) as regards the re-arrest on Sept. 15, the respondent knew what was the alleged felony in respect of which he was being detained, and, so, although it took place inside the court, this arrest was lawful.

Per VISCOUNT SIMON: The authorities seem to establish the following propositions: --
1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seizd.

2. If the citizen is not so informed, but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained.

4. The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that restraint should be imposed.

5. The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. These propositions equally apply to a private person who arrests on suspicion.

Public Prosecutor v Audrey Keong Mei Cheng [1997] 3 MLJ 477

COURT OF APPEAL (KUALA LUMPUR) — CRIMINAL APPEAL NO W–05–96 OF
1995
SHAIK DAUD JCA, AHMAD FAIRUZ JCA, MOKHTAR SIDIN JCA
20 JANUARY 1997

Criminal Procedure — Police investigation — Application for further detention under s 117 — Whether magistrate should consider the lawfulness of the arrest — Criminal Procedure Code (FMS Cap 6) s 117

Criminal Procedure — Police investigation — Application for further detention under s 117 — Failure to produce investigation diary — Whether mandatory for a copy of the diary to be supplied to the court — Whether letter setting forth the facts upon which the detention order was requested for was sufficient — Criminal Procedure Code (FMS Cap 6) s 117

The respondent's husband was charged with the offence of criminal breach of trust ('the offence'). In the course of investigation, it was ascertained by the police that the respondent was in possession of share scripts and money pertaining to the offence. The respondent allegedly agreed to surrender the scripts and money over to the police but failed to do so. She was subsequently arrested and an application was made to the magistrates' court for an order to extend her detention under s 117 of the Criminal Procedure Code (FMS Cap 6) ('the CPC'). The application was rejected by the registrar on the ground that the arrest was unlawful and the respondent was ordered to be released. The Public Prosecutor applied to the High Court for a revision of the registrar's order under s 325 of the CPC. However, the judge affirmed the registrar's findings and dismissed the application. The prosecution appealed against the judge's
decision.

The issues before the court were whether: (i) the registrar was right in law in rejecting the s 117 application on the ground that the arrest was unlawful; and (ii) the provisions of s 117 had been complied with in the application. The record of proceedings showed that no investigation diary, as envisaged by s 117, was produced before the registrar; only a letter setting forth the facts upon which the detention order was requested forwas produced.

Held, dismissing the appeal:
(1) At the further detention stage, the magistrate is not to be concerned with the issue of the legality or otherwise of the arrest of the applicant. To do so would require the magistrate to embark on an enquiry which may in turn necessitate the calling of witnesses which is not the intention of s 117. The purpose of s 117 is to enable persons arrested under s 28 of the CPC to be detained for longer than 24 hours where it appears that the investigation cannot be completed within that period. What the magistrate has to decide at that stage is whether there are any grounds for believing that the accusation or information is well founded. Therefore, the registrar
was wrong in law in ordering the release solely on the ground that the arrest was unlawful (see p 481E–H).

(2) Section 117 makes it mandatory for an investigating officer seeking a detention order of an arrested person from a magistrate to produce a copy of the investigation diary (as prescribed under s119 of the CPC). In this case, the records showed that no such diary was produced before the magistrate. The fact that a letter setting out the circumstances of the application was produced did not satisfy the requirement. Therefore, on this ground, the registrar was right, albeit for a different reason, in refusing to order the further detention of the respondent (see p 482C–F, H–I).

(3) Furthermore, the contents of the letter only showed that the respondent would, in all probability, only be a potential witness against her husband. It would be an abuse of law for the police to use s 117 to compel witnesses or potential witnesses to assist in their investigation. There are other provisions of the CPC for this purpose (see p 482G–
H).

Per curiamIn exercising his revisionary powers under s 325 of the CPC, the judge ought to confine himself only to the record of the proceedings and nothing else. An application for revision is essentially a criminal proceeding, therefore affidavit evidence has no place in such proceedings (see pp 482I and 483A–B).

RE THE DETENTION OF R SIVARASA & ORS ,1996-3 MLJ 611

67 orang telah ditangkap kerana membuat demontrasi dan diremad selama 3 hari. 10 orang lagi suspek dipohon tahanan lanjut selama 10 hari. Semakan dipohon atas arahan yang dikeluar oleh Magistrate. Diputuskan arahan remand di ketepikan kerana pihak polis tidak mengemukakan salinan diari seperti seksen 119 CPC dan hanya diberikan butir-butir pergerakan tahanan yang berlawanan denan seksen 119 CPC. Magistrate tidak mempunyai alasan material untuk melanjutkan tahanan]

CATCHWORDS:
[*1] Criminal Procedure - Remand order - Extension of detention period - Application before magistrate - No copy of - entries in the diary' was transmitted to magistrate - Whether fatal to application - Whether three sheets of typewritten paper which consisted of a timetable of when suspects were being taken out from and being sent back to the cells constituted 'entries in the diary' - Criminal Procedure Code (FMS Cap 6) ss 117 & 119

Criminal Procedure - Remand order - Extension of detention period - Application before magistrate - Duties of magistrate - Requirement that there be grounds for believing that accusation or information is well founded for police officer to make his application for detention - Whether grounds as stated in application subject to careful judicial scrutiny - Criminal Procedure Code (FMS Cap 6) s 117 - Federal Constitution art 5(4)

HEADNOTES:

On 9 November 1996, 67 people were arrested by the police in an alleged demonstration which took place at Asia Hotel, Kuala Lumpur. The suspects were remanded under s 117 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') from 10 November 1996 till 13 November 1996. An application was then made to the magistrate for an extension [*2] of the detention period of 10 suspects under s 117 of the CPC for another 10 days, ie from 13 November 1996 until 22 November 1996. Under the heading 'Alasan-Alasan' in the application, it was indicated, inter alia, that the application had to be made as the detention period was too short and was insufficient for the police to complete investigation.

The magistrate stated at the end of her notes of proceedings that she was satisfied with the reasons as appeared in the application, and also in the investigation diary that was given. She went on to allow the application for the extension of detention.

Apparently, the investigation diary that had been referred to by the magistrate consisted of three sheets of typewritten paper, which had the heading 'Pergerakan Soalsiasat Tahanan' and a timetable of when the 10 suspects were being taken out from and being sent back to the cells where they were detained. In the afternoon of 13 November 1996, an urgent application for the revision of the magistrate's remand order under s 323 of the CPC was filed in the High Court. The complaint was that the omnibus remand order made on the 10 persons by the magistrate was not in compliance with s 117 of [*3] the CPC.

Held, setting aside the magistrate's remand order:

(1) From the record of proceedings and the documents which the magistrate purported to rely on, it was clear that the magistrate had not appreciated the strict nature of s 117 of the CPC and the case law on the matter (see p 615G-H).

(2) Pursuant to s 117 of the CPC, the police officer has a mandatory duty to transmit to a magistrate a copy of the entries in the diary as prescribed under s 119 of the CPC when producing a suspect before him (see p 616E and 617E-F).

(3) In this case, no copy of the entries in the diary was transmitted to the magistrate. This was fatal to the application for extension of detention, as it meant that the magistrate did not have the prescribed material (especially that referred to in s 119(1)(d)) to act upon in her judicial enquiry whether to order further remand (see p 618B).

(4) The three sheets of paper produced in this case did not contain copies of 'entries in the diary' as prescribed under s 119, and certainly did not relate to 'the day by day' proceedings of the officer making the police investigation which were entered into his diary. Also, the timetable listed in the papers could not [*4] be considered as copies of the entries prescribed under s 119 (see pp 616I and 617A-B).

(5) Section 117 of the CPC also requires that there be grounds for believing that the accusation or information is well founded for the police officer to make his application for detention. These grounds are subject to judicial scrutiny. It has to be stressed that a magistrate ought not give a remand order in police custody without his satisfying himself as to its necessity and that the period of remand ought also to be restricted to the necessities of the case. If the necessities of the case for remand or further remand are not shown, no remand order should be made (see p 619A, E); Bal Krishna v Emperor AIR 1931 Lah 99 followed.

(6) The liberty of an individual after arrest is at stake and art 5(4) of the Federal Constitution reposes an onerous judicial duty on a magistrate to decide whether a person should be detained or detained further (see p 618G).

(7) The application for extension of detention was an omnibus application for the detention of 10 named persons, and there was no condescension to details as to what each of them was arrested for and why it was necessary to extend the remand [*5] of each of them. Whatever vague reasons shown on the application (which did not show any nexus between the suspects and a suspected offence or offences) for the continued detention of each of them were without any foundation (see p 619G).

(8) Sections 28 and 117 have been inserted into the CPC for a good reason, so that the detention by the police of a person beyond 24 hours after his arrest is not as a result of an executive act but as a result of a judicial decision in consonance with art 5(4) of the Federal Constitution. It was unfortunate that the magistrate did not advert to what was required of her under s 117 (see p 619H).

RE THE DETENTION OF LEONARD TEOH HOOI LEONG ,1998-1 MLJ 757;

CATCHWORDS:
[*1] Criminal Procedure - Police investigation - Application to revoke remand order - Investigation of kidnapping case - Whether remand order against solicitor retained by kidnapped person lawful - Whether solicitor prime suspect or potential witness

Criminal Procedure - Police investigation - Application to revoke remand order - Whether police had grounds for believing that accusation or information was well founded before application for detention was made - Criminal Procedure Code (FMS Cap 6) s 117

Legal Profession - Professional privilege - Communication between solicitor and client - Whether communication privileged where criminal investigation was involved

HEADNOTES:

Mr Leonard Teoh Hooi Leong, an advocate and solicitor ('the detainee'), was retained by one Nor'aishah bte Bokhari ('Nor'aishah') to advise her on her conversion to Christianity. On 30 December 1997, Nor'aishah disappeared from her parents' house and a police report was made. The police report principally alleged that Nor'aishah had been kidnapped by her lover. The police conducted extensive investigations and ultimately produced the detainee before the magistrate.

The magistrate, upon perusal of a letter from the investigation [*2] officer, the police report and the investigation diary, had remanded the detainee for a period of seven days. Counsel for the detainee applied to the High Court to exercise its revisionary powers to revoke the remand order. It was argued that the detainee was a potential witness and not a prime suspect and consequently that remand order should be set aside and the detainee released forthwith.

Held, declaring the remand order lawful:

(1) As the police were investigating a kidnapping case involving Nor'aishah, the detainee's refusal to inform the police of Nor'aishah's whereabouts made him a prime suspect -- the accused person -- and the remand order would be appropriate in the circumstances and his remand by the magistrate was therefore lawful in law (see p 764E-F).

(2) A solicitor cannot be compelled to disclose legitimate communications, whether oral or written, passing directly between him and his client. This privilege, however, does not extend to communications made in furtherance of a fraud or a criminal act. The communications between the detainee and Nor'aishah were no longer privileged as it involved a criminal investigation (see p 764C-D, F).

(3) It is a mandatory requirement [*3] for the police to produce the investigation diary to show the entries under s 119 of the Criminal Procedure Code (FMS Cap 6) ('the CPC') to the magistrate for the purpose of obtaining a remand order (see p 765H-I);

Re The Detention of R Sivarasa & Ors (1996) 3 MLJ 611 followed.In the present case, the magistrate had before him a letter from the investigating officer of the case, which set out the need to remand the detainee accompanied by the police report in regard to the arrest of the detainee. Of crucial importance was the investigation diary of the police that was transmitted to the magistrate for his perusal. Under s 117 of the CPC, the learned magistrate may, on the mere perusal of the entries in the police diary and having satisfied himself, authorize the detention of the arrested person in custody for a term not exceeding 15 days in the whole.It is the duty of the police to comply fully with the provisions of s 117 of the CPC and the magistrate should insist on strict compliance of that section.

If the police do not satisfy the magistrate that a remand was necessary for the purpose of investigation, the magistrate is entitled under the law to release the accused person. In [*4] the context of the present revision, the police had grounds for believing that the accusation or information (s 117(1) of the CPC) was well founded before the application for the detention of the detainee was made. The investigation diary of the police clearly indicated that the detainee knew the whereabouts of Nor'aishah but he refused to reveal her whereabouts to the police.Accordingly, the court was satisfied with the correctness, legality or propriety of the remand order recorded by the magistrate in this revision as envisaged in s 323(1) of the CPC (see pp 766B-D, 767C-E and 768D).

Obiter:

The detainee was not entitled to call for nor inspect the investigation diary unless the police officer who had made the investigation referred to it for purposes of ss 159 or 160 of the Evidence Act 1950, in which case, only such parts of it as were referred to shall be shown to the arrested person (see s 119(2) of the CPC). It followed that even counsel for the arrested person was not entitled to have sight of the investigation diary -- the more so when the investigation in the present case was still ongoing (see p 766D-E).