IN THE HIGH COURT AT AYER KEROH,

IN THE STATE OF MELAKA, MALAYSIA

CRIMINAL SUIT NO. UCP4612-T9-G? 2022

BETWEEN

AHMAD BIN FIKRI

(NRIC NO. 811212-04-5777) …APPELLANT

AND

DEPUTY PUBLIC PROSECUTOR …RESPONDENT

WRITTEN SUBMISSION OF THE RESPONDENT

Tuan,

Written submission by Deputy Public Prosecutor

A. INTRODUCTION

Tuan Hakim,

1.0 The accused were charged as follows:

CHARGE
That you, Ahmad bin Fikri (NRIC No. 811212-04-5777), on or about the 1st day of
January of 2022 at No. 1, Jalan Malim Jaya 1, Taman Malim Jaya, 75000 Melaka, in
the District of Ayer Keroh, in the state of Melaka together with Basir bin Hassan
(NRIC No. 820101-04-5877) and several others still at large, committed robbery of
the property of Seng Heng Electrical Co. (Co. No. W-3452H), and that as such you or
Basir bin Hassan voluntarily caused hurt to Samad bin Ismail (NRIC No. 900101-04-
5761), and that you thereby committed an offence punishable under section 394 of the
Penal Code read together with section 34 of the same.

1.1 The offence committed stipulated under Section 394 of the Penal Code. The provision
provides as follows:

If any person, in committing or in attempting to commit robbery, voluntarily causes hurt,

such person, and any other person jointly concerned in committing or attempting to
commit such robbery, shall be punished with imprisonment for a term which may extend
to twenty years, and shall also be liable to fine or to whipping.

2.0 BRIEF FACT OF THE CASE

Tuan Hakim,

Ahmad bin Fikri (“the Accused”) with Basir bin Hassan and several others committed
robbery at Seng Heng Electrical Co. and that the Accused or Basir bin Hassan had voluntarily
caused hurt to Samad bin Ismail and thereby committed an offence punishable under Section
394 of the Penal Code read together with Section 34 of the same.
3.0. THE ISSUES IN THIS CASE

Tuan Hakim,

We enumerate the issues advanced in this case as follows:

1) Whether the accused’s arrest made by Corporal Lemat bin Lendut is legal?
2) Whether police officer’s action to deny access justified under Section 28A(8) of
Criminal Procedure Code
3) Whether the trial judge erred in law or fact by disallowing the Appellant’s
application to be furnished with PW-9 witness statement.
4) Whether the trial judge erred in law or fact by in denying the Appellant's
application to submit a statement made by him during a police investigation
to support his defence.
5) Whether the search and seizure carried out by PW-4 is lawful, and as such the
evidence obtained is admissible.

4.0. ISSUE 1: Whether the accused’s arrest made by Corporal Lemat bin Lendut
is legal?

Tuan Hakim,

4.1. Section 15 (1) of the CPC states there are three modes by which a person may be
arrested; actual touching, or confining the body of the person to be arrested or
submission to the custody by word or action. Section 15(2) of Criminal Procedure
Code allows if a person resists an arrest, police officer may use all necessary means to
effect the arrest and Section 15 (3) of CPC states police has no right to cause the
death of person who is not accused of an offence punishable with death/life
imprisonment.

4.2. Section 23(1)(a) of the Criminal Procedure Code (CPC) allows any police officer
without an order from Magistrate and without a warrant arrest any person who has
been concerned in any seizable offence committed in Malaysia, or against whom a
reasonable complaint has been made or credible information has been received or
reasonable suspicion exists.
4.3. The phrase ‘concerned in any offence’ suggests that there must be lawful basis to
effect an arrest, and there must be a clear nexus between the accused and the offence
accused committed. In Polis Di Raja Malaysia v Keong Mei Cheng Audrey
[1994]3 MLJ 296, court explained there must always be some lawful basis for an
arrest and detention including a clear nexus between the suspect and offence. It is for
this reason; arrest of a person is only justified when an offence has been committed.
The powers of a police officer to arrest a person is limited and the exercise of such
powers can only be justified on statutory grounds.

4.4 First Schedule of Criminal Procedure Code (Act 593) Chapter XVII of Robbery
and Gang Robbery stated offence under Section 394 of Penal Code is seizable
offence where a police officer shall arrest a person without warrant. The word
‘seizable offence’, police officer will not be meeting requirement of the law if they
arrest without warrant for an offence which committed by suspect which is not a
seizable offence.

4.5. Important keyword under Section 23(1)(a) of Criminal Procedure Code is there must
be either a reasonable complaint made, or credible info received, or reasonable
suspicion for the police to effect an arrest against the person. In the case of Tan Eng
Hoe v AG (1933) 2 MLJ 151, the applicant fitted the description of an offender in a
cheating case. Both stayed at the same hotel. The applicant was arrested. After
investigation, the police found that the applicant was not the real offender. The
applicant sued for wrongful arrest. It was held a reasonable man would have
suspected the applicant of being the offender in the circumstances. Thus, the police
was justified in arresting him without warrant.

4.6. Reasonable suspicion was also explained in Shaaban bin Hussien & Ors v Chong
Fook Kam & Anor (1969) 2 MLJ. In this case, the two respondents were arrested
and detained on suspicion of having driven a lorry laden with timber from which a
piece of wood had fallen and hit the windscreen of a passing car killing a man in that
car. The respondents were initially arrested, interrogated and then taken back to the
police station where they were further detained on suspicion of being involved in the
offence. The 2 possible stages of arrest was distinguished, the first detention where
the corporal detained the two respondents when he suspected one of them had driven
the lorry, it was unlawful because there was no reasonable suspicion in the case. Later
 that same day, the respondents attempted to put forward an alibi which was found to
be false. When this alibi was discounted, they were further detained, this second
detention was lawful because reasonable suspicion was present that one of them had
indeed driven the lorry. It was further explained, suspicion in its ordinary meaning is a
state of conjecture or surmise where proof is lacking.

4.7. Applying the case of Tan Eng Hoe v AG (1933) 2 MLJ 151 to the present case, a
reasonable exists as the accused is a a man with 2 previous convictions of theft
under Section 379 and Section 379A of Penal Code which gives the reason to believe
as an offender for committing a robbery. Although the accused was arrested in his
house but the police officers had a reasonable suspicion as he already had history of
theft conviction and according to prosecution witness 2 (Corporal Lemat bin Lendut)
the accused had tried to resist and they had a short struggle for arresting him is
sufficient to create a reasonable suspicion in the mind of a reasonable man.

4.8. The arrest of the accused made by Corporal Lemat bin Lendut is legal as all the
requirements under Section 23(1)(a) of CPC has been fulfilled. The corporal indeed
have the power to effect the arrest. Corporal Lemat bin Lendut also did not act in
contravention with Section 15 of CPC.

5.0. ISSUE 2: Whether police officer’s action to deny access justified under Section
28A(8) of Criminal Procedure Code.

5.1 The rights of an arrested person are clearly spelt out under section 28A of the
Criminal Procedure Code of Malaysia. Under this section an arrested person will have
the right to be informed for his arrest as soon as possible, right to contact legal
practitioner and right to communicate with a relative or friend with regard to his
arrest. However right to communicate with relative or friend will be refuse where is
there is reasonable belief that to do so could result in an accomplice of the person
arrested taking step to avoid apprehension or there would be destruction, concealment
or fabrication of evidence or intimdation of witnesses or where taking regard to the
safety of other persons, the questioning or recording of any statement should not be
delayed according to Section 28A(8) of the Criminal Procedure Code.
5.2. In the case of Theresa Lim Chin Chin & Ors v Inspector General of Police
[1988]1 MLJ 293 that the matter should best be left to the good judgment of the
authority as and when such right might not interfere with police investigations. In the
case of Fadiah Nadwa Fikri & Ors v Konstable Fauziah Mustafa & Ors [2014]
MLJU 1903, Para 23 phrased that “The key words in Section 28A (8) is “reasonably
believes”.

5.3. In the current case, by applying Section 28A(8) of the Criminal Procedure Code the
police officer has the right to deny communicate with relative or friend will be
refuse where is there is reasonable belief that to do so which supported by Para 23 of
case of Fadiah Nadwa Fikri & Ors v Konstable Fauziah Mustafa & Ors and
another case [2014] MLJU 1903 where in this scenario, prosecution witness 10
(Inspector Lembut bin Loyang) acted upon the instructions of his superior officer ASP
Azman bin Kudus where and they also has strong reasonable believe that the accused
is already committed two prosecutions and communicating with family, friends or
counsel would concealment or fabrication of evidence or intimidation of witnesses.
Moreover, the application made by Ahmad bin Fikri’s counsel to the Sessions Court
judge during the cross examination of PW-10, to issue a summons to ASP Azman bin
Kudus also denied and we should accept the correctness of decision made by the
Sessions Court judge as it would lead contempt of court.

6.0. ISSUE 3: Whether the trial judge erred in law or fact by disallowing the
Appellant’s application to be furnished with PW-9 witness statement.

6.1. Wan Yahya J stated in Haji Abdul Ghani bin Ishak v Public Prosecutor [1980] 2
MLJ 196 : “…the applicant was not entitled to copies of the statements of his co-
accused, as the co-accused was a competent witness against him..”

6.2. Section 113(3) of CPC allows for the accused to use his statements to support his
defence to show that what he is saying in court is not an afterthought. However, this
does not extend so as to allow the accused to be entitled to the statements provided by
other witnesses.
6.3. In the case of Husdi v PP [1980] 2 MLJ 80, the court allowed the accused a copy of
his cautioned statement but not the statements of prosecution witnesses as there might
be tampering of witnesses.

6.4. In the current case, the High Court rightly disallowed the application by the Accused
to be furnished with a copy of PW-9 witness statement. Applying the principle of the
case of Haji Abdul Ghani bin Ishak v Public Prosecutor [1980] 2 MLJ 196 and
Husdi v PP [1980] 2 MLJ 80, it is clear that the PW-9 is a competent witness against
the Accused, and by providing the witness statement of PW-9 to the Accused, PW-9
could be subject to threat or intimidation, therefore, tampering him as a prosecution
witness.

6.5. Based on the grounds above, the Respondent submits that the learned judge did not
err in denying the Appellant’s application to be furnished with PW-9’s witness
statement.

7.0. ISSUE 4: Whether the trial judge erred in law or fact by in denying the
Appellant's application to submit a statement made by him during a police
investigation to support his defence.

7.1. S. 113(1) of CPC states that “Except as provided in this section, no statement made
by any person to a police officer in the course of a police investigation made under
this Chapter shall be used in evidence.”

7.2. Abdull Hamid Embong JCA in Chung Tain Kong @ Chung Fook Chung v Public
Prosecutor [2009] 5 MLJ 1 at [60] & [67] explained:

“Section 157 of the Evidence Act 1950, (read together with s 113(3) of the CPC)
allows for a former statement of a witness made at about the time when the fact took
place, (such as D2 in this case) to be proved and considered to corroborate a later
testimony as to the same fact… it is our finding that there was nothing in D2, for the
trial judge to consider as corroboration of his defence. What was stated in D2 was
nothing more than a repeat of the appellant’s principal evidence during the trial.”
7.3. During the police investigation, the appellant gave a statement to the police in which
he stated that PW-9 gave him the stolen goods found at his residence as a form
of payment for a sum of money owed to him a few days prior to his arrest.

7.4. Respondent submits that the trial judge did not err in denying the application of
the Appellant’s to admit his statement in support of his defence, as the statement
cannot be regarded as corroboration of his defence.

7.5. The appellant's alibi that he was not present at the crime scene to commit the crime is
not strengthened by the admission that the stolen goods were payment for debts owed
to him. Hence, the statement could not be admitted pursuant to Section 113(3) of the
CPC.

7.6. Based on the ground above, the Respondent submits that the learned judge did not err
in disallowing the Appellant’s application to admit his police statement.

8.0 ISSUE 5 : Whether the search and seizure carried out by PW-4 is lawful, and as
such the evidence obtained is admissible.

8.1. Section 62 of CPC allows for police officers of the rank of Inspector to search in a
specific property without a warrant if he has reasonable cause that the stolen
properties are concealed in the place

8.2. According to the case of Yong Moi Sin v Kerajaan Malaysia & Anor [1999] 8 CLJ
651, the legality of the search on the appellant's property without a warrant is required
in order to gather, secure, and preserve the evidence of a crime. The sanctity of a
person's property must be balanced with the need to uphold law and order, according
to the principles of justice. Once a crime has been committed, search and seizure
would be the fastest way to conduct an investigation, provided that the knowledge
gained leads to a reasonable suspicion that any stolen property is hidden or lodged
somewhere.

8.3. It must be noted that Section 62 of CPC only allows for search, however for seizing it
is provided for under Section 435 of CPC, which allows any member of the police
force to seize properties which is alleged or suspected to be stolen.
8.4. In the Federal Court decision in the case of Dato' Seri Anwar Ibrahim [2015] 2 CLJ
145, it was held that the admissibility of evidence under Malaysian law is not based
on the manner in which such evidence is obtained but rather, on its relevancy.

8.5. Referring to the current case, search and seizure of items was legal by virtue
of Section 62 of the CPC, and Section 435 of CPC.

8.6. Furthermore, as PW-4's is of the rank of an Inspector, he has the authority to search
Ahmad bin Fikri's property, hence the search was legal. The search by PW-4 was
legal because the items that were seized are essential to the. On the other hand, the
items seized are admissible as evidence because they were pertinent to the case
regardless of how they were obtained. The fact that PW-4 served and provided
Ahmad bin Fikri with a search list on which he signed and initialled incriminates him
of the crime as the act of signing the list amounts to a confession of the crime at hand.

8.7. Based on the ground above, the search and seizure of the items obtained by PW4 is
legal and admissible and the signature clearly shows that he is confessing to the
crime.

9.0. CLOSING SUBMISSION

Tuan Hakim,

By all the submissions and authority, we as the prosecuting counsel humbly pray that the
court will decide the best for this case.

DATED THIS 12th DECEMBER 2022