Refusal to provide information within rights under s 112 of the Criminal Procedure Code does not constitute obstruction under s 186 of the Penal Code; charge was also deemed defective.

JUDGMENT

Shahnaz Sulaiman JC:

Introduction

[1] This is an appeal against the decision of the learned Magistrate in Johor Bahru given on 28 April 2021 who found the appellant had failed to prove a prima facie case against the respondent and proceeded to acquit and discharge the respondent at the end of the prosecution case.?

Background

The Charge

[2] In this case, the respondent was charged at the Magistrates' Court in Johor Bahru for an offence under s 186 of the Penal Code . The charge against the respondent reads as follows:

"Pertuduhan Pindaan

Bahawa kamu pada 29 May 2019 jam lebih kurang 1230 tengah hari bertempat di Pejabat Siasatan Jenayah Komersial IPD Johor Bahru Selatan, di dalam daerah Johor Bahru, di dalam negeri Johor Darul Takzim, telah dengan sengaja telah menghalang anggota polis menjalankan tugas dengan enggan memberi kerjasama bagi membantu siasatan yang sedang dijalankan. Oleh yang demikian, kamu telah melakukan suatu kesalahan dan boleh dihukum di bawah s 186 Kanun Keseksaan"

Brief Facts

[3] On 29 May 2019 at 12.30noon at the Pejabat Siasatan Jenayah Komersial IPD Johor Bahru Selatan, Insp Calvin Joseph (SP1) recorded the respondent's statement pursuant to s 112 of the Criminal Procedure Code . This was in relation to an investigation involving a commercial crime report number JBS/0158/18 against the respondent.

[4] The complainant in the case JBS/0158/18 alleged the respondent had forged his email resulting in a loss of RM 200,000.00.

[5] As part of SPI's investigation into the police report JBS/0158/18, SP1 had sought the password from the respondent pursuant to s 116B of the Criminal Procedure Code to complete his investigations. The respondent refused to give SP1 his email password during the recording of the respondent's s 112 of the statement.

[6] Following that incident, SP1 lodged a police report Larkin/017578/19 stating that the respondent was in contravention of s 116B of the Criminal Procedure Code for refusing to give his email password to SP1 as part of SP1's investigation.

[7] This case was investigated by Insp Shahrul Hazwan Shamsudin (SP2). The respondent was subsequently charged under s 186 of the Penal Code for obstructing SP1 from carrying out his official duties by not providing his email password.

Learned Magistrate's Decision

[8] At the end of the appellant's case, the learned Magistrate found that the appellant had failed to establish a prima facie case against the respondent. The learned Magistrate went on to acquit and discharge the respondent without calling for defence.

[9] Aggrieved by the decision of the learned Magistrate, the appellant has appealed.

Principles Relating To Appellate Intervention

[10] In relation to appeals, s 316 of the Criminal Procedure Code provides:

"Section 316. Decision on appeal.

At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be re-tried as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction or in an appeal as to sentence-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

(c) in an appeal from any other order, alter or reverse such order."

[11] Mohd Zawawi Salleh JCA (as His Lordship then was) in Png Hun Sun v. Dato' Yip Yee Foo [2013] 2 AMCR 350 explained the principles relating to appellate intervention as follows:

"[13] Application of the correct standard review has not been proved exceedingly difficult in cases involving purely factual or purely legal questions. It is trite that the appropriate standard of review for purely legal questions is de novo review where the appellate Court is not require