Mohd Zawawi bin Salleh, JC

JUDGMENT

This judgment concerns the interpretation of s. 51ACriminal Procedure Code

To better understand the issue, regard must be had to the background of the case. I will now narrate it briefly.

The accused was charged with two offences of trafficking in dangerous drugs in contravention of s. 39B(1)(a)Dangerous Drugs Act 1952s. 39B (2)

In the instant case, it is not disputed that the prosecution has failed to comply with s. 51A of the CPC, in particular, there was no compliance of subsection 51A(b) and (c) of the CPC. With regard to subsection 51A(c), which relates to favourable facts to the defence of the accused, the prosecution is not invoking subsection 51A(2) of the CPC that disclosure would be contrary to public interest. To his credit, learned counsel does not impute any “discreditable conduct” on the part of the learned deputy for the violation of the section. In his submission, the learned deputy candidly admitted that the documents ought to have been, but were not, disclosed before the commencement of the trial. He submits, however, the late disclosure was due to an unintentional oversight and it did not cause any prejudice to the defence. In support of this submission, the learned deputy argues that the documents were disclosed and delivered to the defence forthwith in the course of the trial after the defence reminded him that the documents had not been provided. The learned deputy informs the court that as far as subsection 51A(c) of the CPC is concerned, there are no facts favourable to the defence of the accused which should be disclosed under the said subsection. Therefore, he argues there has not been any impediment to the conduct of the defence such that the defence has not been able to present its case adequately by virtue of the late disclosure.

Learned counsel has argued a number of points before me about the effect of non-compliance of s. 51A of the CPC by the prosecution. I do not think I do him injustice if I summarise his argument in a single sentence. He says that by reason of the non- compliance, there is a miscarriage of justice in that the accused’s right to a fair trial has been substantially compromised. The point being made by learned counsel is that by reason of the non-compliance, the defence sufferes the following:

(1)prejudice in that the accused has been seriously disadvantaged in the preparation and conduct of its case; and

(2)that without the information being supplied, the accused does not know the strengths and weaknesses of the prosecution’s case. In effect, there is a breach of “the equality of arms” principle.

Now, the terms of s. 51A of the CPC are as follows:

“51A. Delivery of certain documents.

(1)The prosecution shall before the commencement of the trial deliver to the accused the following documents:

(a)a copy of the information made under section 107 relating to the commission of the offence to which the accused is charged, if any;

(b)a copy of any document which would be tendered as part of the evidence for the prosecution; and

(c)a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.

(2)Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the accused if its supply would be contrary to public interest.”.

S. 51A of the CPC is a newly inserted provision that came into being by virtue of Amendment Act A1274/06 to govern what is known in criminal procedure as “disclosure” requiring the prosecution to reveal information and disclose documents. Prior to 2006, the general right to disclosure of documents was governed by section 51 of the CPC, which empowers the court to issue a summons or an order to produce the property or document that is necessary or desirable for a trial. The discretion under s. 51 of the CPC may be exercised before the commencement of a trial or during the course of a trial. The section remains in force.

It is well s