COMMENCEMENT OF COURT PROCEEDINGS …xa.yimg.com/kq/groups/21556315/948235817/name/Criminal+Procedure+(2...COMMENCEMENT OF COURT PROCEEDINGS & POLICE INVESTIGATIONS ... Tan Hoe Watt

PLC Lecture 2009

COMMENCEMENT OF COURT PROCEEDINGS

&POLICE INVESTIGATIONS

Gillian Koh Tan Deputy Public ProsecutorAttorney-General’s Chambers

OverviewI. COMMENCEMENT OF COURT

PROCEEDINGS1. Arrest Cases (charging in mention courts)2. Magistrate’s Complaints

II. POLICE INVESTIGATIONS1. Commencement of Investigations (First Information Report)2. Powers of Arrest3. Powers of Search & Seizure4. Powers to Compel Attendance5. Powers to Compel Production of Documents and Things6. Powers of Investigation and Recording of Statements7. Identification evidence and identification parades

I. COMMENCEMENT OF COURT PROCEEDINGS

The CPC uses the concept of “taking cognizance of an offence”

COMMENCEMENT OF COURT PROCEEDINGS -

1. Arrest Cases(Charging in Mention

Courts)

Arrest Casess.128(1)(d) CPC -

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

s.35, 36 CPC -Upon arrest without a warrant (see s 32 CPC for circumstances where police may effect arrest without a warrant), the police shall without unnecessary delay and in any event within 48 hours produce a person arrested before a Magistrate’s Court.

Arrest CasesProcedure

Accused physically brought before a Mention Court (Ct 26, 23) for charge to be tendered against him

Assignment of case numberDistrict Arrest Case eg. DAC 3546/2005Magistrate’s Arrest Case eg. MAC 2246/2005Preliminary Inquiry Case eg. PIC 16/2005

Plea taken / No plea takenAccused pleads guilty dealt with immediately or at further mentionAccused claims trial Pre Trial ConferencePossibility of remand for further investigations: s 198 CPC

SEIZABLE OFFENCESOffence committed

FIR

Arrest &Investigations

Charge in court

48 hrs

Release on Station Bail

48 hrs

NFA orStern warning

Investigations

consult AGC

COMMENCEMENT OF COURT PROCEEDINGS -

2. Magistrate’s Complaint

Magistrate’s Complaint

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

“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 or unknown has committed or is guilty of an offence. (s.2 CPC)

Discretion to take cognizance of offence on complaint: Tan Hoe Watt v PP [1980] 2 MLJ 46 (HC , Kota Bahru)

Magistrate’s Complaint

(i) Who can make a complaint?

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

(b) Private Individuals/Companies- Police may decide not to prosecute eg. simple hurt cases involving domestic disputes

Magistrate’s Complaint(ii) Procedureυ When Magistrate takes cognizance of an offence, he shall:

examine the complainant upon oath/affirmation (s.133(1) CPC ); andreduce into writing substance of examination

(s.133(2) CPC)

Examination of complainant: Re Rasiah Munusamy [1983] 2 MLJ 294 (HC, Penang)

υ No examination necessary where complainant is a police officer/public servant acting in official capacity and complaint concerns minor offence; (s.133(3) CPC)

Magistrate’s Complaintυ Upon taking cognizance of complaint,

Magistrate may : 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

if there is no sufficient ground for proceeding, dismiss the complaint - s.134(2) CPC

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)

Principles governing dismissal of complaint:Lim Thian Huat v Fozdar [1974] 1 MLJ 56 (HC Kuching)

Magistrate’s Complaintυ Once summons or warrant issued, normal criminal trial

procedure applies

υ In the case of an arrest pursuant to a warrant, the person arrested must be brought before the court “without unnecessary delay” – s. 50 CPC

υ If a person does not appear in response to a summons, a warrant of arrest may be issued – s. 54 CPC

υ In private summons cases, parties argue themselves or engage counsel to do so

υ Where a private summons ends in an acquittal, PP’s concurrence is required for filing an appeal - s. 245 CPCNo right of appeal in private prosecution without PP’s concurrence: Hawa bte Haji Mohamed Hussain v CJ Miranda [1988] 3 MLJ 397 (HC, Singapore)

NON-SEIZABLE OFFENCESOffence committed

FIR

Police not to charge

Lodge Magistrate’s Complaint

Complainant to charge

Police to charge

Investigations

Magistrate to Issue Summons or Warrant

NFA

II. POLICE INVESTIGATIONS

POLICE INVESTIGATIONS

1. Commencement of Investigations (Information to the Police)

2. Powers of Arrest3. Powers of Search & Seizure4. Powers to Compel Production of Documents

and Things5.Special Powers of Investigation in Seizable

Cases6.Identification Parades

POLICE INVESTIGATIONS -

1. Commencement of Investigations

(First Information Report)

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

(ii) Procedure when information received

(iii) Significance of FIR

(iv) Evidential Value of FIR

(v) Right to FIR

First Information Report (… continued)

(i) What is a First Information Report (FIR)?υ Information received at a police station relating to

the commission of an offence of which no previous information has been received - s.115(1) CPC

υ Radio Division (‘999’ calls) deemed a police station - s.115(5) CPC

υ 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


(ii) Procedure when FIR is Received(a) Written information - date and time made, name

and address of informant - s.115(2)υ Oral information

if practicable, reduce into writing - s.115(3)if impracticable, make a note in Station Diary and record

statement later - s.115(4)υ If FIR discloses

non-seizable offence - s.116 CPC investigate or refer informant to Magistrate; police do not have powers of investigations under ss 120, 121, 125 and 126 CPC unless PP or Magistrate so orders

seizable offence - s.118 CPCexercise powers of investigations under ss 120, 121, 125 and 126 CPC


(iii) Significance of a FIRυ Record circumstances before they are forgotten or

embellishedEmperor v Khwaja Nazir Ahmad [1945] AIR 18 (PC)

υ To give information of a cognisable offence to the police so as to set them in motionTan Pin Seng v PP [1998] 1 SLR 418

υ Statements made to police after FIR lodged generally inadmissible in evidence (s.122(1) CPC)PP v Ramasamy [1939] MLJ 163

υ Conversely, all evidence gathered before FIR is lodged is admissible subject to relevancy


υ When are investigations said to have commenced?

υ Depends on the circumstances of each caseυ Once the suspicion of a police officer has been aroused to

such an extent as to cause him to proceed to any action, investigations have commenced. Another way of looking at the matter is to consider when mere interest changes into suspicion

Vellasamy v PP [1941] 233Lim Kim Chuan v PP [1948] MLJ 117Ng Yan Pee v PP [1959] 3 M.C. 249


(iv) Evidential Value of a FIRυ s.117 CPC - admissible as evidence of contents of

information as well as of the date, time and place the information was received

υ where case depends entirely on complainant’s evidence, failure to produce FIR may deprive accused of cross-examining his accuser: court may presume under s.116 illustration (g) EA that FIR is unfavourableto prosecutionTan Cheng Kooi v PP [1972] 2 MLJ 115

PP v Foong Chee Cheong [1970] 1 MLJ 97


υ The circumstances in which the FIR was lodged have to be borne in mind in considering any discrepancies between the report and the complainant’s testimony in court

Herchun Singh v PP [1969] 2 MLJ 209Sarjit Singh Rapati v PP [2005] 1 SLR 638 (use of FIR to impeach complainant’s credibility; court should be discriminating as regards the use of the FIR for such purpose; consideration of complainant’s anxiety when he lodged the FIR)


(v) Right to FIR

υ Accused is entitled to request for a copy of the FIR Anthony Gomez v Ketua Police Daerah Kuantan [1977] 2 MLJ 24

Query

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

see Husdi v PP [1979] 2 MLJ 304Loo Fang Siang v Ketua Polis [1981] 2 MLJ 272Selvarajan James v PP [2000] 3 SLR 750DT v PP [2001] 3 SLR 587


2. Powers of Arrest

Powers of Arrestss.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.24(2) : If such person ‘forcibly resists’ arrest or ‘attempts to evade arrest’, may use ‘all means necessary to effect the arrest’see Mahmood v Govt of Malaysia [1974] 1 MLJ 103 on the extent of force which may be

exercised

s.28(1) : Once arrested, the person ‘shall not be subjected to more restraint than is necessary to prevent his escape’

What amounts to an arrest ?General observations :1. No definition of arrest in the CPC nor at common law,

question of fact in circumstances of the case2. Whether a person is arrested depends not on the

legality of the arrest but whether he has been deprived of the liberty to go where he pleases -Spicer v Holt [1976] RTR 389

3. Stopping a person to make inquiries does not amount to an arrest - Shaaban v Chong Fook Kam [1969] 2 MLJ 219

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

What amounts to an arrest ? (…continued)

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

Zainal Bin Kuning v Michael Chan [1996] 3 SLR 121Shaaban v Chong Fook Kam & Anor [1969] 2 MLJ 219 PP v Shee Chin Wah [1998] 5 MLJ 429PP v David Ackowuah Bonsu [1998] 7 MLJ 451PP v Rosyatimah bte Neza & Anor [1989] 1 MLJ 360Jayamaran & Ors v PP [1982] 2 MLJ 306Alderson v Booth [1969] 2 QB 216

Legality of Arrest ?Saminathan v Public Prosecutor [1937] MLJ 39

Search and entry of accused’s room was illegal because done by a police officer of inadequate rankCourt held illegality of the arrest did not affect its jurisdiction to try the accused whose remedy lay elsewhere (civil proceedings?)

see Saw Kim Hai & Anor v R [1956] MLJ 21SM Summit Holdings Ltd & Anor v PP and another action [1997] 3 SLR 922

R v Sang [1980] AC 402Kuruma v R [1955] AC 197

Types of Arrest

3 types of arrest :

a. Arrest without warrant (ss.32-41 CPC)b. Arrest with warrant (ss.46-49, 54 CPC)c. Private arrest by citizen

Arrest without warrant1. s.32(1) CPC : 11 instances when police may arrest

without a warrant. These include:• person obstruct officer in his duty or if escape/attempt to escape

from lawful custody• person who by repute is a habitual robber, housebreaker etc• person committing a breach of the peace• `may arrest’ implies executive discretion exists on the part of the

police to arrest - Shaaban

2. s.33 CPC - Refusal to give or gives possibly false name or address, or gives a foreign address (person who commits or is accused of committing non-seizable offence)

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

Arrest without warrant (… continued)

General powers of arrest w/o warrant for seizable offences:s.32(1)(a) CPC -`any person who has been concerned in any seizableoffence or against whom a reasonable complainthas been made or credible information has been received or a reasonable suspicion exists of his having been so concerned’

see Hashim bin Saud v Yahaya Hashim [1977] 1 MLJ 259 (three limbs of ‘reasonable complaint’, ‘credible information’ and ‘reasonable suspicion’ are not mutually exclusive)


Seizable offence is defined in s.2 CPC as: `an offence for which…police officer may ordinarily arrest without warrant according to the 3rd column of Schedule A’eg. rioting (s.147 PC), rape (s.376 PC), robbery (s.392 PC) cf. VCH (s.323 PC)

Importance of distinction between seizable and non-seizable offences: extent of powers of investigations (ss 120, 121, 125, 126 CPC).Possible civil action for wrongful arrest eg : false

imprisonment suits

Arrest without warrant (… continued)Reasonable Complaint

Test is objective and not subjective

Tan Kay Teck & Anor v AG [1957] MLJ 237

see also Tims v John Lewis & Co. [1951] 2 KB 459 (whether there is reasonable cause for an arrest is to be determined objectively)


Credible Information

Source of information should be reliable

Hashim bin Saud v Yahya [1977] 1 MLJ 259Source (informant) had previously proved to be reliable and past information had led to an arrest and successful prosecutionInformation given was sufficient to arouse the suspicion of any reasonable person


Reasonable suspicionMust be based on some definite facts tending to show suspicion; honest belief may be inadequateTest of `reasonable suspicion’ is of a lesser standard than a 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

Shaaban [1969] 2 MLJ 219Tan Eng Ho v AG [1933] MLJ 151Ramly & Ors v Jaffar [1968] 1 MLJ 209Zainal Bin Kuning [1996] 3 SLR 121Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul

Rahman & Anor [1999] 6 MLJ 800 SM Summit Holdings [1997] 3 SLR 922

Arrest with a warrant

In all other cases for which a person cannot be arrested without a warrant, a warrant for arrest must be obtained

See ss.46-49 and 54 CPC

Private Arrest

Private person’s powers of arrest are closely circumscribed and exist in only 2 situations :

1st situation:s.34(1) CPC -Any private person may arrest any person who, in his view,

commits a non-bailable and seizable offence…and shall, without unnecessary delay, hand over the person …to the nearest police officer…police stationFollow-up action to be taken by the police - ss 34(2) - (4)Seizable and non-bailable offences (see Schedule A, 3rd and 5th columns and ss.351-352 on bailable and non-bailable offences)

Private Arrest (… continued)

‘In his view’ - must the private person actually witness the commission of an offence or whether it is sufficient if he formsa reasonable opinion that the offence was committed by the suspect ?Durga Singh [1963] 1 Cr.L.J. 827Kartar Singh [1956] AIR (Puri) 122Ivy Hwang, “ Wrongful Arrest by Private Persons” 23 Mal.L.R. 182 (discussing Metro (Golden Mile) Pte Ltd v Paul Chua Wah Liang )PP v Sam Hong Choy (Criminal Trial No 57-1-92 High Court, Johor Bahru Mallal’s4th ed Vol 5 para 524)Chee Siok Chin & Others v Minister for Home Affairs & Another [2006] 1 SLR 582 (obiter – preference expressed for “close proximity” view; see also Sam Hong Choy v PP [1999] 4 MLJ 433)

“without unnecessary delay”see John Lewis & Co. v Tims [1952] 1 AER 1203see also Walters v W.H. Smith [1914] 1 KB 595 on private arrest generally

Private Arrest (… continued)

2nd situation:

Victim of offence, if offender’s name and address are unknown:

s.34(5) CPC -Any person who commits an offence on or with respect to the person or property of another party may, if his name and address 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…person authorised ..person acting in aid..and may be detained until he gives his name and address and satisfies such person that the name and address…are correct or until he can be delivered into the custody of a police officer.

Wrongful Arrests1. False imprisonment; possibility of aggravated damages

under Rookes v Barnard [1964] AC 1129

2. Malicious prosecutionsee Tay Boo Jiang v Chan Yip Tong [1967] 1 MLJ 84

3. Compensation orders under s.402 CPC (frivolous or vexatious prosecutions)

4. Writs of habeas corpus to secure liberty under s.327(1)(b) CPC

Detention and Procedure upon ArrestArrest without warrant :

to take suspect before Magistrate without unnecessary delay, subject to bail - s.35detain for no longer than all the circumstances of the case is reasonable, in any event not exceeding 48 hours -s.36(1)

Arrest with warrant :without unnecessary delay, bring suspect before the court which requires his attendance - s.50

Private Arrest:without unnecessary delay, hand over the person …to the nearest police officer…police station - s.34(1)

Detention and Procedure upon Arrest (… continued)

Art 9(3) Constitution :

“Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

Two rights :

1. To be informed as soon as may be of the grounds of arrest

2. To consult and be defended by a lawyer of his choice and right to counsel

Right to be informed of Grounds of Arrest

“As soon as may be” -within a reasonable time ? at earliest possible moment ?

υ How much to inform?sufficient if informed in general terms, no need to be

told in detail or in strict legal terminologyto inform of : - under what power he is being arrested; and- grounds for his arrest

υ Where reasons for arrest are not furnished, suspect entitled to resist arrest and any force used to overcome the resistance would amount to assault

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

Right to be informed of Grounds of Arrest (…continued)

Cases :

Christie v Leachinsky [1947] AC 573

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

Choong Kim Loy v Timbalan Menteri Dalam Negeri, Malaysia [1989] 3 MLJ 121

Police DiRaja Malaysia v Keong Mei Cheng Audrey [1994] 3 MLJ 296

Right to Counsel“...and shall be allowed to consult and be defended by a legal practitioner of his choice”

right arises at point of arrest but its exercise must be balanced against duty of the police to protect the public and to be able to carry out effective investigations

Ooi Ah Phua v OIC, Kedah Perlis [1975] 2 MLJ 18

“within a reasonable time after arrest” - question of fact; access after periods ranging from 2 weeks to 19 days has been held not to be unconstitutional

PP v Leong Siew Chor [2006] 3 SLR 290Leong Siew Chor v PP [2006] SGCA 38Jasbir Singh & Anor v PP [1994] 2 SLR 18Lee Mau Seng v Minister for Home Affairs [1971] 2 MLJ 137R v Lemsatef [1977] 2 AER 835

no further right to be informed of one's right to counsel

Rajeevan Edakalavan v PP [1998] 1 SLR 815


3. Powers of Search & Seizure

Powers of Search & Seizure1. General powers of search & seizure

s.25(1) CPCs.29(2) CPCs.26 CPCs.29(1) CPCs.28(2) CPCss.25(2), 27, 30, 31, 68(1), 125 CPC

2. Search warrants

ss.61 - 70 CPC

General Powers of Search & SeizureSearching a placeυ s.25(1) CPC - Searching a place to arrest a person

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

not a blanket search power, tied in with power to arrest‘Any person acting under a warrant of arrest’ - not necessarily a police officer; may be an enforcement officer.“reason to believe” - objective test, involves a lesser degree of conviction than certainty but a higher one than speculation

see : Koh Hak Boon v PP [1993] 3 SLR 427SM Summit Holdings Ltd v PP [1997] 3 SLR 922

General Powers of Search & Seizure (… continued)

Searching a place (cont’d)υ s.29(2) CPC - Searching for evidence in seizable

offences“A police officer investigating into a seizable offence in the exercise of his powers under Chapter XIII may enter the house orother place of abode of any person who is under arrest in connection with the offence and search such premises for any evidence of the offence.”

whereas s.25(1) operates pre-arrest, once subject is arrested, powers to search his residence arise from s.29(2), provided the offence under investigation is a seizable offencebut search must be in connection with the offence subject is arrested for - Ghani v Jones [1970] 1 QB 693if it is a non-seizable offence, police must apply for a search warrant


Searching of personsυ s.26 CPC - Searching of persons pursuant to search

of a place for a thing

whenever there is/is to be a lawful search of a place for a thing in respect of any offence, all persons found in it may be lawfully detained until the search is completedif the thing sought is capable of being concealed on the person, such persons may be searched but only by or in the presence of :

Magistrate;Justice of the Peace; orPolice Officer not below the rank of Sergeant


υ s.29(1) CPC - Search of arrested persons Whenever a person is arrested for a non-bailable offence or for a bailable one but cannot furnish bail, the police officer may search him and

place in safe custody all articles other than necessary wearing apparel found on him and

detain anything reasonably believed to be the instruments or the fruits or other evidence of the crime until his discharge or acquittal

υ s.28(2) CPC - Search of a woman“Whenever it is necessary to cause a woman to be searched the search shall be made by another woman with strict regard to decency”

General Powers of Search and Seizure (… continued)

Other provisions :

υ s.25(2) CPC - power to break doors and windows to effect entry for search pursuant to s.25(1)

υ s.27 CPC - Police officer or person authorised to arrest may break open any place to liberate himself or any other person if they are detained in the place

υ s.30 CPC - May seize from arrested person any offensive weapons in his possession

υ s.31 CPC - Persons in lawful custody, who by reason of incapacity (eg : intoxication, lunacy etc), cannot give particulars of himself, may be searched to find his name and residence

General Powers of Search and Seizure (… continued)

υ s.68(1) CPC - Any police officer may seize any property alleged/suspected to be stolen or found in circumstances which create suspicion of the commission of any offence

υ s.69 CPC - Power to search place for stolen property by a police officer not below the rank of Sergeant having good grounds for believing that a delay in obtaining a search warrant would allow stolen property to beremoved

υ s.70 CPC - Summary search of premises occupied by person convicted of offence involving fraud, dishonest, DRSP etc, for stolen property upon authorisation by Commissioner of Police

υ s.125 CPC - Search by police officer investigating a seizable case for document or thing necessary to the conduct of the investigation (when s 58 inapplicable or unlikely to be complied with)

Search WarrantsIssue of Search Warrants:υ s.61(1) CPC -Where any court has reason to believe that : (a) summonses under s.58(1) or requisitions under

s.59(1) CPC will not or would not be complied with;(b) document or other thing is not known to the court

to be in the possession of any person; or(c) court considers that the purposes of justice or of any

inquiry, trial or other proceedings under the CPC would be served by a general search or inspection,

the court may issue a search warrant.

Search Warrants (… continued)

υ s.62 CPC -Magistrate’s Court may issue warrant to search premises and seize stolen property, forged documents, or forged or counterfeited trade marks.Powers under s.62 CPC exercisable only by a Magistrate’s CourtScope of s.62 different from s.61 - s.62 confined to stolen property, property unlawfully obtained etc. S.61 is wider and includes documents. S.62 also allows the taking into custody of persons found in the place searched and who appear to have been privy to the deposit, sale etc of the goods.

Lance Court Furnishings v PP [1993] 3 SLR 969

QueryIs making of a summons under s.58 or a requisition under s.59 a pre-requisite

to invoking s.61(1)(c) ?

Read : SM Summit Holdings v PP [1997] 3 SLR 922 (effect of SM Summit Holdings post-Law Society of Singapore v Tan Guat Neo Phyllis [2007] SGHC 207: interpretation of s.61(1)(c) still good law?)

Search Warrants (… continued)

s.64 CPC - Magistrate’s Court may issue a search warrant to search for persons wrongfully confined.

Miscellaneous provisions:

s.63 - Form of search warrant (see also Form 8)

s.65 - Person in charge of a closed place is obliged to allow search; otherwise forced entry is permitted

s.66 - List of all things seized to be made and signed, and a copy to be given to the occupant at his request; occupant or his agent permitted to attend during search

s.67 - Court power to impound document or other thing produced before it

Powers of Search & Seizure

Query

Is illegally obtained evidence admissible?

Illegally or irregularly obtained evidence is admissible if it is relevant

Read: Law Society of Singapore v Tan Guat Neo Phyllis[2007] SGHC 207

Distinction drawn in SM Summit between the admissibility of evidence and the retention of evidence pursuant to illegally obtained search warrants – still relevant?


4. Powers to Compel Production of

Documents & Things

Powers to Compel Production of Documents & Things

s.58(1) CPC -Whenever any court or police officer considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding ... such court may issue a summons or such officer a written order to the person in whose possession or power the document or thing is believed to be requiring him to attend and produce it or to produce it at the time and place stated in the summons or order.

Powers to Compel Production of Documents & Things (… continued)

Points to note :

Issued by any court or police officer

Production of document/thing is `necessary or desirable’ for purposes of any investigation, trial or proceeding under CPC

Directed at person in possession or power over the document/thing

ss.42 – 45 (procedures relating to summons) applies – see s.60


Query

1. Which is the court which has jurisdiction to issue summons ? Must it be the court in which the trial, inquiry or proceeding is being held ? At which stage of proceedings should the application be made ?

Kulwant Singh v PP [1986] 2 MLJ 10

2. Must applicant specify documents sought to be seized? SM Summit Holdings Ltd v PP [1997] 3 SLR 922


”The thing called for must have some relation to, or connection with, the subject-matter of the investigation or inquiry or throw some light on the proceeding, or supply some link in the chain of evidence. Anything which may reasonably be regarded as forming part of the evidence in the case may be ordered to be produced, and that is the primary object of these provisions.”

PP v Teoh Choon Teck [1963] 1 MLJ 24

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

If the summons is not complied with or there is reason to believe it will not be complied with, apply for a search warrant by invoking complementary provisions in s.61(1) CPC or s.125 CPC (seizable offences)


Summons for accused person’s police statements:

Can defence apply under s.58 CPC for accused’s statements where `necessary or desirable’ (eg. for corroborative purposes)?Where defence witnesses’ have all finished testifying, no more basis for denying defence sight of accused’s statement since fear of tailoring of evidence no longer exists

See Tay Kok Poh Ronnie v PP [1996] 1 SLR 185Png Chong Hua v PP [1997] 2 SLR 417

Query:

Can defence apply under s.58 CPC for production of witness’statements ? Cf also s 122(2) CPC and DT v PP [2001] 3 SLR 587


5. Special Powers of Investigation in Seizable Cases

Special Powers of Investigation in Seizable Cases

s.118 CPC –

Any police officer may, without order of the PP, exercise any of the special powers relating to police investigations in seizable offences : To require attendance of witness (s.120)To examine witness and record his

statement (s.121) To search of documents/other thing which are

necessary to conduct of investigations (s.125)To require bond for appearance of

complainant and witnesses (s.126)

Special Powers of Investigation in Seizable Cases (… continued)

υ s.120 CPC -(1) A police officer making a police investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of Singapore who from the information given or otherwise appears to be acquainted with the circumstances of the case and that person shall attend as so required:Provided that no person shall be required under this section to attend at any place distant more than 11 kilometres from his usual place of abode.

(2) If any such person fails to attend as so required such police officer may report such failure to a Magistrate who may thereupon in his discretion issue a warrant to secure the attendance of that person as required by such order.


υ s.121 CPC -(1) A police officer making a police investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and shall reduce into writing any statement made by the person so examined.

(2) Such person shall be bound to state truly the facts and circumstances with which he is acquainted concerning the case except only that he may decline to make with regard to any fact or circumstance a statement which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

(3) A statement made by any person under this section shall be read over to him and shall, after correction if necessary, be signed by him.


υ s.125 CPC -(1) Whenever a police officer making a police investigation in a seizablecase considers that the production of any document or other thing isnecessary to the conduct of an investigation into any offence which he isauthorised to investigate and

there is reason to believe that a person to whom a summons or order under s.58 has been or might be issued will not or would not produce the document or other thing as directed in the summons or order or

when the document or other thing is not known to be in the possession of any person,the officer may search or cause a search to be made for it in any place.


υ s.126 CPC -(1) If upon a police investigation … it appears to the officer making the investigation that there is sufficient evidence or reasonable ground of suspicion to justify the commencement or continuance of criminalproceedings for a seizable offence against any person, the officer shall require the complainant, if any, and so many of the persons who appear to the officer to be acquainted with the circumstances of the case as he thinks necessary, to execute a bond to appear before a court and give evidence in the matter of the charge against the accused.(3) If any complainant or witness refuses to execute the bond, that officer shall report the matter to the court which may then in its discretion issue a warrant/summons to secure the attendance of the complainant or witness before itself to give evidence in the matter of the charge against the accused.


s.116 CPC –Investigation powers of the police, without order of PP, for non-seizable offences :

Police cannot exercise powers under ss.120, 121, 125 or 126 without order of Magistrate or PP – s.116(2)

Where such orders are received, police can exercise such powers except power to arrest without warrant – s.116(3)


6. Identification evidence and identification parades

Identification EvidenceIssues as regards the identification of accused persons by witnesses can arise in a trial. The quality of identification evidence should be assessed in accordance with the guidelines laid down in R v Turnbull [1977] QB 224.

Guidelines modified into 3-step test in Singapore:

(1) Whether case against accused depends wholly or substantially on correctness of identification evidence which defence alleges is mistaken;(2) If so, is identification evidence of good quality, taking into account circumstances of identification?(3) Where quality of identification evidence is poor, is there supporting evidence of identification to convince judge there is no mistake in identification

See Thomas Heng Aik Ren v PP [1998] 3 SLR 465Ramakrishnan s/o Ramayan v PP [1998] 3 SLR 645PP v L (a minor) [1999] 3 SLR 219Ye Wei Gen v PP [1999] 4 SLR 101

Identification Evidence (… continued)

Factors to be considered in stage 2 in deciding if the identification evidence is of good quality is not exhaustive

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

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

Identification Parade (… continued)

One way of resolving issues pertaining to identification is for the police to conduct an identification parade. Stated in PP v Amar Singh [1948-1949] MLJ Supp 55 that ‘the usual and proper way of identifying persons suspected of a particular crime is to hold a proper identification parade’

However, it is not always necessary to hold an ID parade and whether it is necessary to conduct one depends on the circumstances of each case (e.g. if the accused is arrested while committing the offence or if the accused is known to the witnesses – not necessary to conduct ID parade)

Ang Jwee Herng v PP [2001] 2 SLR 474Awtar Singh s/o Margar Singh v PP [2000] 3 SLR 439Loh Kim Lan and Another v PP [2001] 1 SLR 552Mehtab Singh v State of Madhya Pradesh [1975] AIR SC 274Surjit Singh v State [1986] CRI. LJ 1910PP v Manit Wangjaisuk [1995] 1 SLR 326cf : PP v Sarjeet Singh [1994] 2 MLJ 290Tan Han Tiong v PP [1994] 2 SLR 587


υ No legislative procedures prescribed for the conduct of identification parades. In practice, two types of identification carried out by police :

(a) Rogues’ galleryRecords of photographs of criminals kept by Criminal Records Office, CIDShortlist of possible culprits drawn up from details given by witnesses

(b) ID ParadeActual line-up of suspects for identification through one-way mirror


υ Conduct of ID Parade :

Held at earliest opportunitySpecially constructed room equipped with one-way mirror dividing between line-up room and viewing roomLine-up should be of sufficient numbers and consist of persons of similar appearance, nationality, agesAccused allowed to choose his position and may change it between witnessesAccused may object to any person being present and may comb his hair or change his attireWitness escorted into viewing room for identification Witness’s identity kept confidential from line-upEvery circumstance connected with parade to be recorded


υ Utmost concern is that the conduct of the parade is fair to the accused

Line-up should comprise of persons of same nationality, same station of life with no great age disparity Chan Sin v PP [1949] MLJ 106Breach of procedural requirements in holding ID parade does not automatically lead to inadmissibility, provided that it was conducted fairly; failure to comply with instructions or police orders not fatalHowever, if there is bad faith or `deliberate flouting’ of procedural requirements rather than mere inefficiency, identification will not not be upheldTest is whether de facto prejudice was caused, not mere apparent prejudice

Read Thirumalai Kumar v PP [1997] 3 SLR 434


υ Witnesses are not allowed to see the suspects/line-up until everything is ready

υ Witnesses should also not be assisted by photographs or by any verbal of written description of suspect

υ Witnesses should not be assembled in same room prior to ID parade as this affords opportunity for them to fortify and correct their recollection of suspect

Low Thim Fatt v PP [1989] 1 MLJ 304Ong Lai Khim v PP [1991] 3 MLJ 111PP v Ong Poh Cheng [1996] 4 MLJ 279

The End