1. Three accused charged with drug trafficking under DDA 1952; defence counsel requested copies of s 112 CPC witness statements from prosecution witnesses. (Para 1 , 2 , 3 )
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HIGH COURT MALAYA KUALA LUMPUR
CHRIS CHRISTIAN & ORS – Appellant
Versus
PP – Respondent
[Criminal Trial No: WA 45A-64-10/2017]
1. Three accused charged with drug trafficking under DDA 1952; defence counsel requested copies of s 112 CPC witness statements from prosecution witnesses. (Para 1 , 2 , 3 )
2. Whether prosecution can release s 112 witness statements to defence and whether Siti Aisyah makes such disclosure mandatory. (Para 4 , 10 , 12 , 13 )
3. Court of Appeal held s 112 statements are not absolutely privileged and may be provided to defence under certain circumstances. (Para 14 , 15 )
Yes, the Court of Appeal held that police statements are not absolutely privileged and the prosecution may provide them to the defence when a witness is being cross-examined for impeachment, subject to the court's discretion in the interest of justice. (Para 14 , 15 )
No. The Court of Appeal disagreed with the proposition that police statements were absolutely privileged and held that Husdi v. Public Prosecutor should no longer be followed. (Para 7 , 9 , 15 )
Yes, s 112 statements can be admitted under paras (i) and (ii) of s 32(1) of the Evidence Act 1950 as exceptions to hearsay, provided they fall within the four categories of persons mentioned in that section. (Para 15 )
Yes, when a prosecution witness is being cross-examined and the defence proposes to impeach his credit, the court should refer to the police statement and may direct the defence to be supplied with a copy if expedient in the interest of justice. (Para 13 )
[1] All three applicants/accused were charged on 30 June 2017 for drug trafficking, an offence punishable under s 39B(1)(a) of the DDA 1952. The case for the prosecution had been concluded. On 27 September 2019, I found that the prosecution has made out a prima facie case against the accused and called upon all the accused to enter their defence.
[2] On the same day, the defence counsel for the 2nd accused wrote to the prosecution requesting for a copy of s 112 statement by those witnesses who were offered to the defence to be furnished to the defence counsel. The relevant excerpt is as follows:
"2. Tujuan kami menulis surat ini kepada Tuan adalah untuk memohon supaya sesalinan kenyataan saksi-saksi yang direkodkan di bawah s 112 Kanun Tatacara Jenayah bagi saksi-saksi yang ditawarkan kepada pembelaan dapat dibekalkan kepada pihak kami dengan kadar segera."
[3] The defence counsel, in supporting the request had referred to a recent Court of Appeal case of Siti Aisyah v. PP , [2019] 4 MLJ 46 which concerned similar issue. On 9 October 2019, the prosecution replied the letter and rejected the defence counsel's request. On 16 October 2019, the defence counsel wrote to the Court and requested for a hearing date for the parties to submit before the Court on the issue of release of s 112 statement.
B. Issues
[4] The issues raised before me are reproduced as follows:
[a] Whether prosecution can release a copy of the statement of witnesses recorded under s 112 CPC for witnesses offered to the defence?
[b] Whether the findings under "Siti Aisyah" makes it mandatory for the statement under 112 CPC to be released to the defence counsel?
[5] The provision of s 112 of CPC is as follows:.
"Examination of witnesses by police"
112. (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 answer all questions relating to the case put to him by that officer:
Provided that such person may refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.
(3) A person making a statement under this section shall be legally bound to state the truth, whether or not such statement is made wholly or partly in answer to questions.
(4) A police officer examining a person under subsection (1) shall first inform that person of the provisions of subsections (2) and (3).
(5) A statement made by any person under this section shall, whenever possible, be taken down in writing and signed by the person making it or affixed with his thumbprint as the case may be, after it has been read to him in the language in which he made it and after he has been given an opportunity to make any corrections he may wish."
[6] In summary s 112 CPC states that any person giving a statement to the police is bound to answer all questions relating to the case in question. A person has to tell the truth because in the event he gives a different set of evidence in Court during a trial, his statement will be produced and proved in Court and his credit may be impeached.
C. Judicial Decision On Release Of s 112 Statement
[7] It is noted that the Court has recently taken a different position of s 112 statement, some call it a witness statement or police statement, as a privileged document.
[8] In late 1970s, in Husdi v. Public Prosecutor , 1980 MarsdenLR 41 , Federal Court Judge Syed Othman had the opportunity to decide on the releasing of s 112 statement to the defence counsel. The brief facts were that the petitioner was charged with another in the Sessions Court at Kuala Lumpur with offences of house breaking by night under s 457 of the Penal Code. He first appeared before the Court in September 1978. He engaged his counsel in October 1978, who then made an application to the DPP for copies of the
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