Lecture 2 Commencement Of Court Proceedings & Police Investigations I. COMMENCEMENT OF COURT PROCEEDINGS Commencement of Proceedings if a wrong has been done which is non-seizable do not normally look to the police for assistance [A] Complaint to Magistrate - you have to initiate the prosecution yourself (i.e. your client himself, or you on your clients behalf), as provided for under s. 116 CPC (wrong section?) so that when your client makes a police report, it will be referred to a magistrate and your client will have to go to the Registrars Chambers and make a formal complaint client will then be taken before the magistrate to swear or affirm it magistrate then decides whether the complaint discloses an offence if he finds that no offence is disclosed, the magistrate will refuse to issue a summons on the other hand, if the magistrate finds an offence, he is bound to issue process, but before doing so, it is the practice for the magistrate to make an attempt to try and settle the matter between the two opposing parties an attempt at reconciliation magistrate may, instead of issuing the notice, direct the police to investigate the matter - what remedy do you have if the magistrate nevertheless decides that he will not issue a summons? this is not an order, but the magistrate is obviously exercising a judicial discretion if the exercise of that discretion is perverse, you are at liberty to apply to the High Court for a writ of mandamus [B] as a private citizen, you too can apply for a warrant of arrest if you want to exercise your rights of private prosecution the procedure is the same briefly that is how you get the court process started; either by way of summons or by way of warrant of arrest

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

SEIZABLE OFFENCES print adobe lecture pg for the charts 1. Offence committed -> FIR -> Investigations -> Arrest & Investigations - 48 hrs - Charge in court/ Release on Station Bail - NFA or Stern warning (consult AGC) See Sched A CPC to see whether offence is seizable. Column 3. 2. Magistrates Complaint s. 128(1)(a) CPC - Magistrate can take cognizance of an offence on complaint NON-SEIZABLE OFFENCES Offence committed FIR Investigations Police not to charge/ Police to charge No Further Action Complainant to charge Lodge Magistrates Complaint Magistrate to Issue Summons or Warrant Distinctin bet seizable and non seizable Procedure for securing appearance of accused: Four ways in which an accused may be produced before a court: First appearance: (a) His arrest without a warrant, followed by his being released on police bail to attend court on a specified day. (b) His arrest without a warrant, but he is held in the police station until he is brought before the Court. must be prod within 48 hrs s36 CPC

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

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

Facts The appellant Taylor was summoned to attend court to answer charges under the Companies Act (Cap 50). On the date of the summons, he appeared before the magistrate who released him on bail of $150,000 in one surety. Taylor appealed against the magistrates order on the ground that the magistrate had no power to make such an order. His main argument was that he appeared before the court on a summons, he did not come within the category of persons contemplated in s 351 of the Criminal Procedure Code (Cap 68) (the Code). Held, dismissing the appeal: (1) The magistrate was correct in his interpretation and application of Sch A of the CPC in holding that an offence under s 402(1)(c) of the Companies Act was a bailable offence. (2) Section 351 of the CPC applied to all cases of persons accused of bailable offences. It was not intended that s 351 only applied to bailable offences where arrest of the accused had been effected prior to his appearance in court. If the legislature had intended that the accused should first be arrested, they would have worded the section accordingly. (3) A person who appears before a court in obedience to a summons, was considered to have surrendered himself to the custody of the court. (4) The magistrate exercised his discretion correctly in requiring bail of $150,000 in one surety as the charge under s 402(1) of the Companies Act was a grave one. The appeal was accordingly dismissed. Also arrest must go into dock; summon s- stands outside dock if tand strial, sits at table behind counsel An accused may be offered police bail after his arrest, but once the accused is formally charged in Court and pending the disposal of the case, fresh bail would usually be offered at the first mention by the Court. this is called court bail if dont want cient to be in lockup muyst come prepared with bailor and collateral for the bail benchmarks for bail has ben published also see lit on bail on website

Classification Of Cases Arrest cases: (1) District Arrest Case (DAC); or (2) Magistrates Arrest Case (MAC) The classification into DAC or MAC is made by the prosecution with reference to the hearing and sentencing jurisdiction of the District Courts and the Magistrates Courts. Summons cases: (i) Police Summons (PS); (ii) Private Summons (PSS) where complainant is private individual ; (iii) Classified according to the abbreviation of the prosecuting department e.g. MOM, OA, BCA etc enforcement other than by police . All charges are registered in the Crime Registry and the DAC, MAC, PSS, PS and PIC (for capital cases or cases to be heard in HC prelim inquiry case) numbers assigned. The classification is usually stamped on the top right hand corner of the charge sheet.

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1. Arrest Cases (Charging in Mention Courts)

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

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

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

Section 35 & 36 of the CPC How person arrested is to be dealt with. 35. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein as to bail or previous release, take or send the person arrested before a Magistrates Court. Person arrested not to be detained more than 48 hours. 36. (1) No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable. (2) Such period shall not exceed 48 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrates Court. Procedure: before trial Accused physically brought before a Mention Court (Ct 26, 23 criminal cases) for charge to be tendered against him Assignment of case number o District Arrest Case eg. DAC 3546/2005 o Magistrates Arrest Case eg. MAC 2246/2005 note that there is no power to put a criminal behind bars if there is a single MAC charge, hence the MAC charges should be upgraded. Preliminary Inquiry Case given to HC case eg. PIC 16/2005 Juvenile Courts e.g. JAC

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How to charge accused with capital charge? case triable only with HC (death penalty). But first bring to ct 26 and get prelim inquiry So must first be charged in sub court and then give a PIC number and subseq pros must go through PI, tender evid and show prima facie case against accused. Trial will take place in HC Ie two stages Plea taken / No plea taken

Accused pleads guilty -> dealt with immediately or at further mention Accused claims trial -> Pre Trial Conference. At PTC, to decide on witnesses, whether going to use accused confessions etc. Plea taken (for plead guilty cases); or case adjourned for further mention/PTC o the accused who pleads guilty successfully, is sometimes sentenced immediately. o In practice the case will be adjourned for a few mentions for parties to ready the case before it is transferred to one of the Judge-manager courts for PTC.

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Holding Charge

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

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

Court may exercise s198(2)CPC powers to remand accused if investigations not completed.

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

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

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

Interpretation of evidence to accused. 209. (1) Whenever any evidence is given in a language not understood by the accused and he is present in person, it shall be interpreted to him forthwith in a language which he understands. (2) When documents are put in for the purpose of formal proof, it shall be in the discretion of the court to interpret as much of them as appears necessary. The PP may discharge an accused at any stage of the summary trial before judgment is delivered.

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

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

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

Tan Hoe Watt v PP [1980] 2 MLJ 46 (HC, Kota Bahru) Facts: o The President of the President Sessions Court directed the appellant to lodge a police report regarding complaints of assault and criminal intimidation, instead of examining the appellant under Section 133 of the Malaysian CPC. Appellant appeals. The issue to be decided was whether the President had the discretion to take cognizance of an offence on complaint or whether it was mandatory on his part to take such cognizance. Held: o A Magistrate is not bound under the law, immediately upon a complaint either orally or in writing by any complainant, to proceed to take cognizance of the complaint; o Before it can be said that a Magistrate had taken cognizance of an offence under Section 133 he must have applied his mind to the offence for the purpose of proceeding with the matter; (i) Who can make a complaint? (a) Police / enforcement officers - For non-seizable offences (b) Private Individuals/Companies - Police/AGC may decide not to prosecute eg. Simple hurt cases involving domestic disputes (ii) Procedure Procedure a) if the complaint is made in writing, proceed to take cognizance if warranted, as under the CPC (b) if it is an oral complaint either in open court or in chambers, if the Magistrate is not having other important or urgent matter, proceed to hear the complaint and take cognizance if needs be. Otherwise request the complainant to make a written complaint and proceed as under (a) above; (c) if it is an oral complaint by a person produced before the Magistrate for remand or for an extension of remand, where there is difficulty in filing a written complaint and where there is allegation of police assault, the Magistrate should hear the complaint straightaway if he is free. If he is not free, to fix another earliest available date to do so. The Magistrate may advise the complainant to lodge a police report if he has not done so and order that the complainant be medically examined if there is an allegation of assault. If there is any difficulty of getting an early date of hearing, the Magistrate should try and get another Magistrate to hear the complaint (d) if there is allegation of police assault connected with a cautioned statement made by the complainant, the assault case should be heard earlier than the complainants own matter. (e) if the complainant makes the complaint at the beginning of the hearing of his own case, then preferably the Magistrate should not take cognizance of the complaint, as in not making the complaint earlier, the complainant obviously seeks to delay the trial. The complainant can nevertheless file the complaint even after the criminal case against him has been completed.

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When Magistrate takes cognizance of an offence, he shall: o examine the complainant upon oath/affirmation (s.133(1) CPC ); and o reduce into writing substance of examination (s.133(2) CPC) o Examination of complainant: Re Rasiah Munusamy [1983] 2 MLJ 294 (HC, Penang)

Re Rasiah Munusamy [1983] 2 MLJ 294(HC Penang), refd Datuk Seri S Samy Vellu[2000] (HC KL)

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

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

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

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

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

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Lim Thian Hunt v Fozdar [1974] 1 MLJ 56 (HC Kuching) Facts: o The appellant made a police report alleging Dr Fozdar committed the offence of intentionally using force. The police investigated the matter and recommended no further action. The State AdvocateGeneral to whom the matter was referred by the appellant decided that no criminal prosecution should be instituted by the police. The appellant then made a complaint to a magistrate but he alleged that the magistrate did not reach any decision in the matter. The appellant then obtained an order of mandamus for the complaint to be considered by the magistrate. The learned magistrate after considering the report of the police investigations dismissed the complaint and stated his reasons for doing so. The appellant appealed against the order of the learned magistrate. - [Held]

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

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

Hawa bte Haji Mohamed Hussain v CJ Miranda [1988] 3 MLJ 397 (HC, Singapore) Facts: o The respondent was tried and convicted of the offence of voluntarily causing hurt to the appellant. The magistrate gave him a conditional discharge for one year. Not satisfied with what she considered to be a manifestly inadequate sentence, the appellant (who originally brought the private summons against the respondent) filed a notice of appeal under S 247(1) CPC. o At the commencement of the hearing of the appeal, the DPP appeared and submitted that the notice of appeal should be rejected, and the Public Prosecutor was intervening to withdraw the appeal. The Public Prosecutor relied on Art 35(8) of the Constitution for his submission, adding that Section 247(1) of the Code should be read with s 336(1). The appellant, on the other hand, contended that on a reading of s 247(1), the appellant, being a party to the criminal matter below, should not only have the right of appeal but a right of audience either by herself in person or by counsel. Held: o Appeal was dismissed. The Public Prosecutor under Section 336(1) CPC had the control and direction of proceedings under the Code. Since the appeal before the court was a proceeding under the Code, the Public Prosecutor could properly in his discretion intervene and withdraw the appeal. His discretion was entrenched in Art 35(8) of the Constitution. Procedure for appeal. 247. (1) Subject to sections 242, 244 and 245 any person who is dissatisfied with any judgment, sentence or order pronounced by any District Court or Magistrates Court in a criminal case or matter to which he is a party may prefer an appeal to the High Court against that judgment, sentence or order in respect of any error in law or in fact or, in an appeal against sentence, on the ground that the sentence imposed is manifestly excessive or inadequate by lodging, within 10 days from the time of the judgment, sentence or order being passed or made, with the Registrar of the Subordinate Courts at the court house at which the trial was held, a notice of appeal in triplicate addressed to the High Court. Public Prosecutor. 336. (1) The Attorney-General shall be the Public Prosecutor and shall have the control and direction of criminal prosecutions and proceedings under this Code.

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

II. POLICE INVESTIGATIONS

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Exam case scenario!!! Accused do sth, police do sth, qn what can the police do? What is the FIR? Must read the cpc provisions themselves! See the words, see what powers the police have. Are they entitled to arrest etc. 1. Commencement of Investigations (First Information Report) (i) What is a First Information Report (FIR)? The first information report is a report of information received by the police relating to the commission of an offence of which no previous information has been received. Consider whether a police investigation has begun when the report is made. Section 115 and Section 116 of the CPC governs this. o procedure at the police station when information is received about the commission of a crime s. 115 requires a police officer upon receiving oral information of the commission of an offence to make a note of that information Information of offences. 115. (1) When information is received at a police station relating to the commission of an offence, being an offence of which it appears that no previous information has been received in the station, the officer in charge of the police station or any police officer whose duty it is to receive reports shall proceed according to one of the following subsections. (2) If the information is in writing, he shall forthwith mark on it the date and time of receipt, and, if practicable, the name and address of the person (other than a postal messenger) by whom it was delivered, and if it purports to be signed by the informant, he shall file it as a report (3) If the information is given orally and he considers it practicable to reduce it to writing forthwith, he shall record or cause to be recorded in a book kept for this purpose a report containing the name and address of the informant, the date and time of his arrival at the station, the substance of the information and such other particulars as the nature of the case may require, and the report shall be signed by the informant, by the recording officer, and by the interpreter, if any. (4) If the information is given orally and it appears to him impracticable to proceed forthwith under subsection (3) he shall immediately make a note of first information in the station diary, and if the offence is seizable as soon thereafter as circumstances permit, a fuller statement by the informant shall be recorded under section 121. (5) For the purposes of this section, the office of any branch or sub-branch of the Criminal Investigation Department or the Radio Division of the Singapore Police Force shall deemed to be a police station. Information in non-seizable cases. 116. (1) When the information so received or recorded under section 115 relates to a non-seizable offence the case shall thereupon be investigated or the informant shall, by order of a police officer, be referred to a Magistrate. (2) No police officer shall in a non-seizable case exercise any of the special powers relating to police investigations given by sections 120, 121, 125 and 126 without the order of the Public Prosecutor or a Magistrate. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation, except the power to arrest without warrant, as that police officer may exercise without an order in a seizable case. (4) Any informant referred to a Magistrate shall be supplied with a copy of any report filed or recorded under section 115 on which shall be endorsed the name of the police station at which the information was received.

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

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

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Exercise powers of investigations under Section 120, 121, 125, 126 CPC.(below)

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

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

Vellasamy v PP (1941) 1 MLJ 233 Facts: o Appellant was convicted under s 34(1) Minor Offences Ordinance, on a charge of stealing a $5 fountain pen. On appeal, the conviction was quashed as it was found that there was no ground for suspicion against the accused. The question arose whether certain statements made by the accused to the Police were admissible. - [Held]

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

Lim Kim Chuan v PP [1948] MLJ 117 Facts: o 6 grounds of appeal, 5 contended that the Magistrate erred in law in admitting hearsay evidence. 1 ground of appeal contended that the statements made to the police in the course of a police instigation were wrongly admitted. Question as to when the investigation should be deemed to have been started. [Held] o A conviction following the admission of inadmissible evidence is not necessarily bad, if there is sufficient admissible evidence on the record to enable the Court to come to its finding o Where a statement is made to a Police Officer in the course of the investigation it is immaterial whether the offence is seizable or non-seizable; o once the suspicion of a Police Officer has been aroused to such an extent as to cause him to proceed to any action, then investigation has been commenced statement inadmissible Ng Yan Pee v PP [1959] 5 M.C. 249 - the time when investigations are said to have commenced is a question of fact. Facts: There was a tape recording of a bribe attempt, and the policeman was telling his superior. This was held to be a discussion with his superior, and investigations had not started (iv) Evidential Value of a FIR Defence is entitled to the FIR. s.117 CPC - admissible as evidence of contents of information as well as of the date, time and place - the information was received o contents of FIR viewed in context. Does not need to be strictly accurate given the contemporaneity of the circumstances Admission of certified copy of information as evidence of original entry. 117. (1) In any proceeding under this Code, a copy of a report received or recorded under section 115 (2) or (3) or of a note made under section 115 (4) and in each case purporting to be certified as a true copy by a police officer not below the rank of inspector in charge of the police station where the information was received shall be admissible as evidence of the contents of the original and of the date, time and place at which the information was received

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FIR, though important and its absence may weaken prosecutions case, is not substantive evidence

PP v Fong Chee Cheong [1970] 1 MLJ 97 - Facts: o Respondent charged with extortion. Complainant made an oral FIR and the police acted on it. The magistrate acquitted the respondent without calling on his defence on the grounds: the report of the complainant had not been reduced to writing in the first instance and the absence of the first information report made the arrest of the accused void in law; the only evidence that could corroborate the evidence of the complainant was that of his employee and relative who was very much an interested party. The Public Prosecutor appealed. Held: Allowing the appeal:

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However important a document a first information report is, it can never be treated as a piece of substantive evidence and the fact that no first information report was made is not itself a ground for throwing out a case; o There is no legal presumption that an interested witness should not be believed; he is entitled to credence until cogent reasons for disbelief can be advanced in the light of evidence to the contrary and the surrounding circumstances. Comments: generally absence of a FIR casts a cloud of suspicion and tends to weaken the prosecution case. However, this did not happen in Fong Chee Cheong. But where the case depends entirely on complainants evidence, failure to produce FIR deprives accused of cross examining his accuser and court may presume under s 116 illustration (g) of the Evidence Act that FIR is unfavourable to prosecution.

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Court may presume existence of certain fact 116. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; Tan Cheng Kooi v PP [1972] 2 MLJ 115

Facts: Appeal by the accused against their conviction on extortion. In this case, the FIR was oral, and no written report was subsequently produced at trial. Hence all the evidence against the appellants came entirely from the complainant. [Held] Allowing the appeal a misconception that the first information or police report should contain the entire case for the prosecution main purpose was merely to give information of a cognizable offence to the police so as to set them in motion. The fact that such details were not mentioned in the report was therefore irrelevant. - Where the case against the accused depended entirely on the evidence of the complainant, the failure to produce the FIR would deprive the accused of an opportunity to cross-examine his accuser, and which would raise the presumption under [equivalent to s116 in old EA], that the report would be unfavourable to the prosecution case. Therefore, in the present case, the conviction of the accused cannot be upheld. If there are material discrepancies between the FIR and the informants or complainants testimony in court, the report can be used to impeach the credibility of the witness as a previous inconsistent statement: - Tan Pin Seng v PP [1998] 1 SLR 418. - Furthermore the credibility of the maker will be severely affected if the offence in the FIR is entirely inconsistent with the charge that the accused is facing: Sahadevan s/o Gundan v PP [2003] 1 SLR 145. the inconsistencies relating to first information report could not be lightly disregarded, affecting the credibility... ..the FIR did not contain mere omissions of material facts, but that the offence disclosed in it had been entirely inconsistent with that of which the appellant was charged and convicted

(v) Right to FIR Accused is entitled to request for a copy of the FIR CPC is silent on right of accused to inspect FIR but under common law accused has the right as a person interested in it, to inspect if it was necessary for the protection of his interest. Anthony Gomez v Ketua Police Daerah Kuantan (1977) 2 MLJ 24 Facts:

11

o

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

-

Held:

o

PP v Mohamed Musa van Amurullah [2002] 1 MLJ 561 accused person must as of right be given a copy of the FIR so that he can be in a position to defend himself by being acquainted with the facts leading to the initial complaint made against him.

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Is Anthony Gomez applicable to civil proceedings ? accused right to ask for copy of FIR. o Eg traffic accident. The answer is strictly speaking, this is not criminal procedure. BUT YES

Loo Fong Siang v Ketua Police [1981] 2 MLJ Facts: o Applicant was involved in a road accident. As a result, he suffered serious injuries and commenced legal proceedings against the rider of the motorcycle for damages. His solicitors applied to the respondent for "all the police reports, sketch plan and key and photographs taken in connection with the accident" and the respondent supplied them with all the relevant documents except the police report made by the rider of the motorcycle. o In reply to further requests by the applicants solicitor for a copy of the said report the respondent claimed that he could not supply the report because the maker of that report was not a client of the applicants solicitor. The applicant then applied to court for an order, for the report to process his claim for damages. - Held: Allowing the application: o (1) A person who seeks to establish negligence on the part of someone who collided into him has a legitimate interest in knowing what the other persons version of the accident as given in his police report is; o (2) A public document is defined as "a document made for the purpose of the public making use of it." And that is exactly what police reports under [equivalent S 115 CPC] are. If the right of the public to have access to public documents is to be limited or curtailed, then the legislature would have expressly so stated or it must be established that it is contrary to public interest. In the absence of such limitations, public documents must be treated as "public documents". Does accused have corresponding right to statements of witnesses recorded by police? o NO. common request but answer is no.

Husdi v PP [1979] 2 MLJ 304 Facts: o Accused charged with house breaking by night. His counsel applied for copies of cautioned statements to the police, and statements recorded by the police from witnesses in the course of investigation. Application was refused by DPP and application was made to the HC. When the matter came up for hearing, only the application for the statements made in the course of police investigations was pursued, as it had been held in Khoo Siew Bee v Ketua Polis Kuala Lumpur [1979] 2 MLJ 49 that an accused person is entitled as of right to his cautioned statement. [Held] o The right of an accused person to the FIR is nothing more but a consequence of his right to be informed as soon as may be of the grounds of his arrest, under Article 5(3) of the Constitution and this Article is an offshoot of the common law. o On the other hand, the right to inspect a statement to the police made in the course of police investigations, which is a statutory, not a common law, creature, would depend on the construction

12

o

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

2. Powers of Arrest - EXAMS!!!! Be clear about all the powers of arrest. See factual matrix of the qn. If provisions do not apply, then there is no power of arrest. - Note that there are also other law enforcement officers eg central narcotics bureau under misuse of drugs act, CPIB under Prevention of Corruption Act. In those other acts, they will usually state that officers will have all the powers under partr section of the CPC. police force have specialized units and divisions A, D, E, F, G and J divisional police deal with routine matters and crimes which happen within the area in which they are responsible within the divisional police station, you have the Commander of the Division, and the Head of investigations who is the most senior police officer responsible for criminal investigations, and under him the Chief Investigation Officers seizable offence is defined in the CPC as an offence for which and seizable case means a case in which a police officer may ordinarily arrest without warrant according to the third column of schedule A, s. 2 Interpretation. 2. In this Code, unless there is something repugnant in the subject or context "bailable offence" means an offence shown as bailable in Schedule A or which is made bailable by any other law for the time being in force, and non-bailable offence means any other offence; "non-seizable offence" means an offence for which and non-seizable case means a case in which a police officer may not ordinarily arrest without warrant according to the third column of Schedule A; "offence" means any act or omission made punishable by any law for the time being in force; "seizable offence" means an offence for which and seizable case means a case in which a police officer may ordinarily arrest without warrant according to the third column of Schedule A; schedule A this definition is very important when it comes to powers of the police to search, powers of bail and so on General CPC provisions ss.24-31 CPC : General provisions on arrest s.24(1) : 3 ways of effecting arrest : (a) touching; (b) confining; or (c) submitting to custody by word or action - s.28(1) : Once arrested, the person shall not be subjected to more restraint than is necessary to prevent his escape Arrest how made. 24. (1) In making an arrest the police officer or other person making the arrest shall actually touch or confine the body of the person to be arrested unless there is a submission to the custody by word or action. If such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such officer or other person may use all means necessary to effect the arrest. No unnecessary restraint. 28. (1) The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. s.24(2) : If such person forcibly resists arrest or attempts to evade arrest, may use all means necessary to effect the arrest o see Mahmood v Govt of Malaysia [1974] 1 MLJ 103 on the extent of force which may be exercised - extent of force to be exercised, may even include shooting to prevent escape as a last resort.

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

1.

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

PP v Shee Chin Wah [1998] 5 MLJ 429 Facts: o Accused was stopped by a police party while driving. He drove the car to the side, alighted, and produced a pack of 12 rolls of cigarettes which had a roll of nipah leaves suspected to be ganja. The police then found a plastic bag in the spare tyre compartment, later confirmed to be containing cannabis. At this stage, the accused was alleged to have said, itu ganja (that is cannibis) and bagilah saya peluang (give me a bleeding chance lah dey). o The accused was charged under [equivalent of MDA] for trafficking in 2.7kg of cannabis. Several issues had to be decided by the court : (i) were the remarks itu ganja and bagilah saya peluang - after the plastic bag was discovered in the boot of the car admissible; (ii) at the time of making the remarks, was the accused already under arrest even though he was not physically arrested or even told so; (two other irrelevant issues) Held: o Generally, arrest may be actual arrest or constructive arrest. Whether a person is actually under arrest is a question of fact to be decided according to the circumstances of each case. In this case, the accused had been found in possession of 12 rolls of cigarettes suspected to contain cannabis, the police did not want to hamper his movements as his assistance was still required, and further with the view of the raiding officer that he had considered the accused to be under arrest, it was clear that the accused was under arrest. o In short, the discovery of the drugs upgraded the accused from a mere user to a potential trafficker in the eyes of the police and the accused would most likely have been arrested when he made the remarks. However, the fact that a caution was not administered after the arrest rendered the remarks inadmissible as evidence.

2. 3.

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

Shaaban v Chong Fook Kam [1969] 2 MLJ 219 Facts: Appeal against the decision of the Federal Court, which awarded the respondents the sum of $2,500 each for false imprisonment. The respondents were arrested and detained by the police. The police suspected that one or other of the respondents was driving the lorry from whose trailer a timber fell which hit the windscreen of a car causing the death of one man. The lorry did not stop. The respondents who were interrogated after the arrest denied that they were at the place of the accident. In the Federal Court, Suffian FJ said that the information available to the police was insufficient to prove a prima facie case against the respondents. - Held:

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

4. 5.

When individual is told he is being arrested or when arresting persons words or conduct make clear force will be used, if necessary, to prevent individual from escaping Key is whether the person feels compelled to submit to authority of the arresting officer; use of the word arrest or physical restraint not necessary

PP v David Ackowuah Bonsu [1998] 7 MLJ 451 Facts: o The accused was charged under the [equivalent to MDA] for trafficking in 743.8gm of heroin. He was found to have carried the drugs in a folder when he crossed the customs checkpoint at the Malaysia-Thai border. The prosecution relied on a statement made by the accused when the customs officer was about to probe the folder. Counsel for the accused contended that the statement was inadmissible because no caution under [equivalent MDA] was administered to the accused before it was uttered, and the accused was already under constructive arrest at that time because he was escorted by the customs officer to the Customs Office. o The prosecution submitted that the accused was never under arrest before the discovery of the heroin and that he was arrested only after the substance suspected to be drugs was discovered from the folder. Held: o (Convicting the accused: irrelevant point on possession of folder) o There was no evidence to suggest that the accused was under arrest earlier, be it constructive arrest or actual. At that stage, the drugs had not yet been recovered from the folder. Therefore, there was no reasonable suspicion of the commission of any offence by the accused. Having the accused escorted by an officer while on the way to the Customs Preventive Office for questioning,and also while in the office was merely a prudent precautionary measure taken by the authority, and did not amount to constructive arrest of the accused. o Shaaban followed. Zainal bin Kuning v Michael Chan [1996] 3 SLR 121 Neither words of arrest nor physical restraint were used, but an arrest was effected nonetheless. When an arrest is lawful Held: o the first respondent clearly had credible information or reasonable suspicion that the appellants were concerned in the crime he was investigating, and under s32(1)(a) he was empowered to arrest the appellants without warrant. Their arrests were therefore not wrongful. - Facts: The appellants claimed damages against the respondents for false arrest and malicious prosecution. The first respondent was the officer in charge of investigations against the appellants, while the second respondent was joined to represent the government. The appellants claimed that they had been under false arrest, and hence under false imprisonment. In addition, it was said by the appellants that there was no reasonable and probable cause for their prosecution as the statements given by them were extracted forcibly and certain matters should have been followed up. Furthermore the prosecution itself was conducted maliciously. The trial judge, in dismissing the claims, found that there was no false arrest, and that in respect of each of the appellants, there was reasonable and probable cause for the prosecution. It was held that the statements were given by the appellants voluntarily. - Held: Dismissing the appeal:

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o o o

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

PP v Rosyatimah bte Neza & Anor [1989] 1 MLJ 360 Jayamaran & Ors v PP [1982] 2 MLJ 306 Alderson v Booth [1969] 2 QB 216 Legality of Arrest? - As long as power is in CPC. If not there then illegal, but still does not preclude court fr trying the accused of crime for which he is arrested though accused can seek remedies for wrongful arrest. Saminathan v Public Prosecutor: Court indicated that it was not concerned with the legality or illegality of an accused persons arrest the appropriate remedy is for the accused to seek civil or disciplinary action against the arresting authorities, such as an action for false imprisonment or malicious prosecution 1. Generally, the court concerns itself whether the charge brought against the accused is made out (or not). It is not so concerned about the legality or illegality of the arrest. I.e. If one has done the act, or if the evidence is relevant, the court will admit it even if illegally obtained. In the case of Saminathan v Public Prosecutor, search and entry of accuseds room was illegal because done by a police office of inadequate rank. Court held illegality of the arrest did not affect its jurisdiction to try the accused, whose remedy lay elsewhere (civil proceedings, false imprisonment or malicious prosecution) Courts do have a common law doctrine of discretion to reject illegally obtained evidence, although the decision in R v Sang (illegal undercover agents case) drastically limited the scope of this doctrine, where the public interest in the conviction and punishment of crime prevails over other considerations. SM Summit Holdings v PP held that Sang applied to Singapore, but the court retains a discretion in certain circumstances (below). R v Sang [1980] AC 402; Kuruma v R [1955] AC 197 In PP v Kok Khee, if the accused persons arrest is wrongful, he is entitled to struggle; held if the accused persons arrest was wrongful, that accused person was entitled to struggle against the arresting officers because he would be resisting an illegal or unjustifiable use of force towards him

2.3.

4.

5.

Saw Kim Hai & Anor v R [1956] MLJ 21 - Facts: The appellants were convicted on 2 charges of assisting in lottery offences under the Common Gaming Houses Ordinance. On the appeal it was argued that the police had not strictly proved that their entry to the premises had been carried out in accordance with the provisions of the Ordinance, and thus the presumption under s 11 of the Ordinance did not arise. - [Held] The presumption raised by the Common Gaming Houses Ordinance arises as soon as it is proven that a person has been found in possession of the documents therein referred to, no matter how or where that person was found. SM Summit Holdings Ltd & Anor v PP [1997] 3 SLR 922 - Facts: o Private investigator procured a party suspected of IP infringements to replicate 8 stampers, which was THE act that was the copyright infringement. Deposed this in his statutory declaration so warrants could issue.

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[held] o

o

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

Types of Arrest 3 types of arrest : o a. Arrest without warrant (ss.32-41 CPC) o b. Arrest with warrant (ss.46-49, 54 CPC) o c. Private arrest by citizen A) Arrest without warrant - 1. s.32(1) CPC : A police officer may, without a warrant, arrest any person whom he has reasonable grounds to believe has committed a seizable1 offence o A seizable offence is defined in the CPC as an offence for which and seizable case o means a case in which a police officer may ordinarily arrest without a warrant according to the third column of Schedule A. S 2 of CPC. If you cannot arrest w/o warrant non-seizable offence. - 11 instances when police may arrest without a warrant. These include: o person obstruct officer in his duty or if escape/attempt to escape from lawful custody o person who by repute is a habitual robber, housebreaker etc o person committing a breach of the peace `may arrest implies executive discretion exists on the part of the police to arrest - *Shaaban Hashim bin Saud v Yahaya Hashim [1977] 1 MLJ 259 need to fall under one of the limbs. threshold is very low police officer not worried of wrongful arrest etc. provisions in s32: (a) any person who has been concerned in any seizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned; - reasonable suspicion based on definite facts and founded on some definite fact tending to throw suspicion upon the person arrested (b) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking; (c) any person who has been proclaimed under section 51; (d) any person in whose possession anything is found which may reasonably be suspected to be stolen or fraudulently obtained property, and who may reasonably be suspected of having committed an offence with reference to that thing; (e) any person who obstructs a police officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody; (f) any person reasonably suspected of being a deserter from any force referred to in section 140B of the Penal Code or to which Chapter VII of that Code may be extended; (g) any person found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking those precautions with a view to committing a seizable offence; (h) any person who has no ostensible means of subsistence or who cannot give a satisfactory account of himself; (i) any person who is by repute an habitual robber, housebreaker or thief, or an habitual receiver of stolen property knowing it to be stolen, or who by repute habitually commits extortion or in order to commit extortion habitually puts or attempts to put persons in fear of injury; (j) any person in the act of committing in his presence a breach of the peace; or (k) any person subject to the supervision of the police who has failed to comply with any of the requirements of this Code.1

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

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

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

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

MDA: Powers of search and seizure 24. (1) Any officer of the Bureau, police officer not below the rank of Assistant Superintendent of Police or any police officer authorised by him or any senior officer of customs may at any time (a) without a warrant enter and search any place or premises in which he reasonably suspects that there is to be found (i) any controlled drug, controlled substance or article liable to seizure; or (ii) a person who has committed or is reasonably suspected to have committed any offence under this Act or any seizable offence under the regulations; (b) search any person found in that place or premises; and (c) seize and detain any controlled drug or controlled substance found in that place or premises, or any article liable to seizure. (2) For the purpose of exercising his power under this section, an officer may, with such assistance as he considers necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment, box, container or any other thing. Powers of arrest 25. (1) Any officer of the Bureau, police officer, officer of customs, or special police officer or member of the Vigilante Corps authorised in writing by a police officer not below the rank of Assistant Superintendent of Police, may arrest and search without a warrant any person who has committed or whom he reasonably suspects to have committed an offence under this Act or a seizable offence under the regulations. (2) Any person arrested under subsection (1) shall, together with any controlled drug, controlled substance or article liable to seizure, be taken to the Central Narcotics Bureau, a police station or a customs station and may be searched. (3) No woman shall be searched under this Act except by another woman. (4) An officer making an arrest under this section may seize and detain any controlled drug, controlled substance or article liable to seizure. Power to search ship, aircraft, vehicle or train and person arriving in or departing from Singapore 26. (1) Any officer of the Bureau, police officer or officer of customs may (a) stop, board and search any ship, hovercraft, aircraft, vehicle or train if he has reason to suspect that there is therein any controlled drug in contravention of this Act, controlled substance or any article liable to seizure; (b) search any person in that ship, hovercraft, aircraft, vehicle or train; and (c) search any person arriving in Singapore or about to depart from Singapore. (2) An officer may seize and detain (a) any controlled drug, controlled substance or article liable to seizure as a result of any search under this section; and (b) any ship, hovercraft, aircraft, vehicle or train which has been used in the commission of or in connection with an offence under this Act. Forfeiture of controlled drugs, controlled substances and articles seized 27. (1) Where anything is seized under this Act, the officer who carried out the seizure shall immediately give

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notice in writing of the seizure to the owner of that thing, if known, either by delivering the notice to him personally or by post at his place of residence, if known. (2) The notice under subsection (1) shall not be required to be given where the seizure is made in the presence of the offender or the owner or his agent, or in the case of a ship or an aircraft, in the presence of the master or captain thereof. (3) An order for the forfeiture of any controlled drug, controlled substance or article shall be made if it is proved to the satisfaction of a court that an offence under this Act has been committed and that such drug, substance or article was the subject matter of or was used in the commission of the offence notwithstanding that no person may have been convicted of that offence. (4) If there is no prosecution with regard to any controlled drug, controlled substance or article seized under this Act, that drug, substance or article shall be deemed to be forfeited at the expiration of one month from the date of the seizure thereof unless a claim thereto has been made before that date in such manner as may be prescribed. Forfeiture of ship, hovercraft, aircraft or vehicle 28. (1) Where a person has been convicted of an offence under this Act, the court may order to be forfeited to the Government any ship, hovercraft or aircraft which has been proved to have been used in any manner in connection with the offence. (2) Where a person has been convicted of an offence under this Act, the court shall, upon the application of the Public Prosecutor, order to be forfeited to the Government any vehicle which has been proved to have been used in any manner in connection with the offence. (3) This section shall not apply to any ship or hovercraft of more than 200 tons net or to any aircraft belonging to any person carrying on a regular passenger service to and from Singapore by means of that aircraft. (4) No ship, hovercraft, aircraft or vehicle shall be forfeited under this section if it is established by the owner thereof that the ship, hovercraft, aircraft or vehicle was unlawfully in the possession of another person without the consent of the owner. Disposal of things forfeited 29. (1) All things which are forfeited to the Government under this Act shall be disposed of in such manner as the Minister thinks fit. (2) The Minister may, in his discretion and after any proceedings under this Act are concluded, entertain and give effect to any claim to or in respect of anything which has been forfeited to the Government. Obstruction of inspection or search 30. (1) It shall be an offence for a person to (a) obstruct any officer of the Bureau, police officer, officer of customs or other public officer in the exercise of any power under this Act; (b) fail to comply with any lawful requirement of any officer of the Bureau, police officer, officer of customs or other public officer in the execution of his duty under this Act; (c) fail, without reasonable excuse, to furnish such information in his possession as may be required by any officer of the Bureau, police officer, officer of customs or other public officer; or (d) furnish to any officer of the Bureau, police officer, officer of customs or other public officer any information which he knows or has reason to believe to be false. (2) In subsection (1), public officer includes any special police officer or member of the Vigilante Corps exercising any power under section 25.

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

When police may arrest without warrant. 32. (1) Any police officer may without an order from a Magistrate and without a warrant arrest (a) any person who has been concerned in any seizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned;

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

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Importance of distinction between seizable and non-seizable offences: extent of powers of investigations (ss 120, 121, 125, 126 CPC). o A person whom a police officer is investigating in a seizable offence is required to give statements to the police officer. Section 179 of the CPC states that persons charged in the High Court shall be brought in the name of the Public Prosecutor or a person authorised by him. 5. Possible civil action for wrongful arrest o eg: false imprisonment suits. Can provide a defence for accused who might have inflicted hurt on police (above, PP v Kok Khee). The three limbs in s32(1)(a) CPC reasonable complaint, credible information, reasonable suspicion are cumulative and not mutually exclusive:

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Hashim bin Saud v Yahaya Hashim [1977] 1 MLJ Facts: o Plaintiff claims damages for wrongful detention and denial of right to consult counsel. The plaintiff was arrested on 8 August on suspicion of theft. On 9 August as the investigations were not completed, the accused was produced in court and an application made for further detention til 19 August. The plaintiff was released on 14 Aug. The plaintiff was not allowed to see counsel during the period of his detention when police investigations were in progress. [Held] o on the facts, the arrest of the plaintiff was lawful as there was reasonable suspicion that the plaintiff was concerned with the theft. Thus his subsequent detention by the police before production before the Magistrate, and subsequently by special order of the Magistrate was legal; o Where a person is lawfully detained, his detention does not become unlawful if the police denies that person his right to consult and be defended by a legal practitioner of his choice. o The claim for damages in this case therefore failed and must be dismissed. i) Reasonable Complaint - Test is objective and not subjective Tan Kay Teck & Anor v AG [1957] MLJ 237 Facts: o Petitioners claimed damages from the Crown for false imprisonment, alleging that they were wrongfully arrested and detained by the police. The petitioners, husband and wife, were woken up and arrested, kept at the police station from midnight until 5am before being released on police bail. Later that morning they appeared before the Magistrate and were charged with having wrongfully confined one Mr. Ng. After that they were released on bail but were re-arrested outside the courtroom and taken to the CID to be fingerprinted before being allowed to go home. They came before the Magistrate again on 30 March and were remanded on bail until 13 April but when the case came up on that date, the prosecution offered no evidence and they were released Held: o (1) A police officer is entitled to arrest a person without warrant if he has received a reasonable complaint that such person has been concerned in an offence. In this case no reasonable complaint was made against the petitioners, and therefore their arrest without warrant and their subsequent detention was unlawful. - question whether there was a reasonable or probable cause is not to be determined subjectively It is a question which objectively the Court has to decide on the evidence before it. o (2) As the petitioners had been released by the Magistrate on bail, the police had no authority to take them into custody again in order to convey them to the Criminal Investigation Department for finger printing:- their action, in effect, amounted to a second false imprisonment; o (3) False imprisonment does not merely affect a mans liberty, it also affects his reputation. Where a person has been falsely imprisoned, it is in the public interest that sufficient damages should be awarded in order to give reality to the protection afforded by law to personal freedom.

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

ii) Credible Information Source of information should be reliable Hashim bin Saud v Yahya [1977] 1 MLJ 259 o Source (informant) had previously proved to be reliable and past information had led to an arrest and successful prosecution o Information given was sufficient to arouse the suspicion of any reasonable person iii) Reasonable suspicion - Must be based on some definite facts tending to show suspicion; honest belief may be inadequate - Test of `reasonable suspicion is of a lesser standard than prima facie case; prima facie refers only to admissible evidence - but `reasonable suspicion permits consideration of matters that might not have been admissible as evidence Zainal bin Kuning (above) an arrest without warrant must be based on definite facts and founded on some definite fact tending to throw suspicion upon person arrested. Test of reasonable suspicion is of a lesser standard than prima facie case. Prima facie refers only to admissible evidence but reasonable suspicion permits consideration of matters that might not have been admissible as evidence. Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul Rahman & Anor [1999] 6 MLJ 8000 Facts: o Plaintiff was a technician with Penang Botanical Gardens. Arrested on 21 March 1987 by the first defendant and was subsequently detained and placed under remand pending investigations for 9 days. The plaintiff claimed inter alia that: (i) his arrest was unlawful; (ii) his subsequent detention was unlawful; o The defendants however contended, inter alia, that: (a) they had received credible information that the plaintiff had been concerned with two seizable offences on 21 March 1987, i.e. and as such they were empowered and authorized to arrest the plaintiff; (b) the arrest effected on the plaintiff, and the subsequent detention, were therefore lawful, valid and of full legal effect - [Held] o In deciding whether there exists reasonable suspicion, account is to be taken of the circumstances as they appeared at the time of the arrest and detention. The court is concerned to discover whether the authorities acted in bad faith or whether the arrest or detention is an arbitrary act and whether the law was correctly applied and interpreted. The court has to keep foremost in its mind the distinction between reasonable suspicion and prima facie proof. o Prima facie proof consists of admissible evidence whilst `suspicion` can take into account matters that may not be put in evidence at all. On the facts, the police had not acted arbitrarily and had not abused their statutory power of arrest by arresting the plaintiff on 21 March 1987. Shaaban (above) distinction between reasonable suspicion and prima facie proof. Tan Eng Ho v AG [1933] MLJ 151 When an arrest is lawful Held:

the circumstances were such that any reasonable man would have fairly suspected A of being the person who had committed the offence complained of and that the Police were justified in effecting the arrest.

Ramly & Ors v Jaffar [1968] 1 MLJ 209 SM Summit Holdings [1997] 3 SLR 922

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

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

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Court may direct by endorsement on warrant security to be taken. 47. (1) Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if that person executes a bond with sufficient sureties for his attendance before the court at the next sitting of the court following the day of arrest and thereafter until otherwise directed by the court, the officer to whom the warrant is directed shall take such security and shall release that person from custody. (2) The endorsement shall state (a) the number of sureties; and (b) the amount in which they and the person for whose arrest the warrant is issued shall be respectively bound. (3) Whenever security is taken under this section the officer to whom the warrant is directed shall, when so required, forward the bond to the court. Warrants to whom directed. 48. (1) A warrant of arrest shall ordinarily be directed to the Commissioner of Police and all other police officers of Singapore, and any police officer may execute the warrant. (2) The court issuing a warrant may direct it to any person by name not being police officers, and all or any one or more of such persons may execute the warrant. (3) When a warrant is directed to more persons than one it may be executed by all or any one or more of them. Notification of substance of warrant. 49. The police officer or other person executing a warrant of arrest shall notify the substance thereof to the person arrested and, if so required, shall show him the warrant or a copy thereof under the seal of the court issuing the warrant. Issue of warrant in lieu of or in addition to summons. 54. A criminal court may, in any case in which it is empowered to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest (a) if either before the issue of the summons or after the issue of the summons but before the time fixed for his appearance the court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.

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

C) Private Arrest - Private persons powers of arrest are closely circumscribed and exist in only 2 situations ie limited and very clearly stipulated: A) 1st situation:

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

Arrest by private persons. Procedure in such cases. 34. (1) Any private person may arrest any person who, in his view, commits a non-bailable and seizable offence, or who has been proclaimed under section 51, and shall, without unnecessary delay, hand over the person so arrested to the nearest police officer or, in the absence of a police officer, take that person to the nearest police station. 34. -- (2) If there is reason to believe that such person comes under section 32 a police officer shall rearrest him.

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(3) If there is reason to believe that he has committed a non-seizable offence and he refuses on the demand of a police officer to give his name and residence or gives a name or residence which the officer has reason to believe to be false or gives a residence which is not within Singapore he shall be dealt with under section 33. (4) If there is no reason to believe that he has committed any offence he shall be at once released. (5) Any person who commits an offence on or with respect to the person or property of another may, if his name and residence are unknown, be apprehended by the person injured or by any person who is using the property to which the injury is done, or by the employee of either of those persons or by any person authorised by or acting in aid of either of those persons, and may be detained until he gives his name and address and satisfies such person that the name and address so given are correct or until he can be delivered into the custody of a police officer. - Seizable and non-bailable offences (see Schedule A, 3rd and 5th columns and ss.351-352 on bailable and non-bailable offences) When person accused of non-bailable offence may be released on bail. 352. (1) When any person accused of any non-bailable offence is arrested or detained without a warrant by a police officer or appears or is brought before a court, he may be released on bail by any police officer not below the rank of sergeant or by that court, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: Provided that the court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail.

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In his view - must the private person actually witness the commission of an offence or whether it is sufficient if he forms a reasonable opinion that the offence was committed by the suspect? o Definition : - in his sight in his presence. Durga Singh [1963] 1 Cr.L.J. 827 Kartar Singh [1956] AIR (Puri) 122

Indian cases :- offence has to actually be within sight. but later amendments to Indian CPC : in his presence = no need sight

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

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

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the other hand argued that there was a voluntary accession on the part of the plaintiffs to a polite request to follow by the employees of the stor