The court emphasized the necessity for strict adherence to statutory limitations in document production requests, maintaining that rights to fair trial under s. 51 and s. 51A must be judiciously interpreted.

Abdull Hamid Embong FCJ:

Background

[1] The appellant was originally charged in the Sessions Court on 7 August 2008 under s. 377B of the Penal Code , to which he pleaded not guilty. He is alleged to have committed the offence against one Mohd Saiful Bukhari bin Azlan (the complainant) on 26 June 2008 at Unit 11-5-1, Desa Damansara Condominium Bukit Damansara, Kuala Lumpur between 3.01 and 4pm.

[2] On 5 March 2009, his case was transferred to the High Court on a certificate under s. 418A of the Criminal Procedure Code (CPC) signed by the public prosecutor.

[3] Earlier, in the Sessions Court, the appellant had, through his counsel, made a number of requests to the respondent to have access to various documents and materials. Those requests were denied.

[4] Dissatisfied with the response, the appellant filed an application by way of an originating motion dated 10 June 2009 under s. 51 and/or s. 51A CPC, for an order to compel the respondent and/or other persons having custody, care and control, to produce to the appellant the following documents, materials and items:

(i) the original CCTV recordings allegedly taken from the guardhouse and lifts in Block 11 of Desa Damansara Condominium and any other locations fitted with CCTVs within the Condominium;

(ii) DNA samples - the original samples, original swabs taken off the complainant, slides made during testing, pictures of the slides and the "Electro Pherogram" for each sample;

(iii) the notes of the chemists who did the testing and analysis on the DNA samples;

(iv) the notes from all the doctors who examined the complainant at Hospital Kuala Lumpur;

(v) the doctors' notes, photographs and report of the proctoscopy or other tests done on the complainant at Hospital Kuala Lumpur;

(vi) the report from Hospital Pusrawi and doctor's notes on the examination done on the complainant;

(vii) the video recording of statement by the complainant on 30 June 2008;

(viii) witness statements under s. 112 CPC of:

(a) the complainant,

(b) Haji Hassanudin Abdul Hamid,

(c) Nursham,

(d) Muhamad Rahimi bin Osman,

(e) Mohd Rasid Mohd Rosdi,

(f) Dr. Osman Abdul Hamid, and

(g) any other witnesses not listed above.

(ix) copies of all documents and items which will be produced by the respondent under s. 51A(1)(b) CPC;

(x) a statement of facts favouring the appellant under s. 51A(1)(c) CPC;

(xi) all documents and items that will not be used by the respondent in the trial;

(xii) a list of the prosecution witnesses; and

(xiii) alternatively, the appellant prayed for an order that the respondent to disclose to him and/or that the appellant be allowed to inspect, all the documents and items mentioned above.

[5] Since the application was filed, the respondent had provided the appellant with the following documents and materials:

(i) a CD with a copy of the alleged CCTV recording for 26 June 2008;

(ii) copies of the "Electro Pherogram" of the alleged DNA samples tested;

(iii) notes from the doctor (as opposed to a report) from Pusrawi Hospital; and

(iv) a clearer copy of the appellant's statement.

Order Of The High Court

[6] The High Court allowed most parts of the appellant's application for the production of documents and materials applied for, except for the production of CCTV recordings at