Suffian LP

(delivering the judgment of the Court) (delivered by Wan Suleiman F.J.): This is the judgment of the court.

The applicant (appellant before us) was charged in the Kuantan Magistrate's Court in Arrest Case MA 190/75 as follows:

"That you on June 15, 1975 at about 9.00 a.m. in the compound of St. Thomas Church, Jalan Gambut, in the District of Kuantan, in the State of Pahang, committed criminal intimidation by threatening one Encik V. Bernard Vas with intent to cause alarm to the said Encik Bernard Vas, and that you have thereby committed an offence punishable under section 506 of the Penal Code."

The applicant's solicitor Mr. S. Sivasubramanian suspected that the charge was based on a report lodged by V. Bernard Vas on June 17, 1975, probably under section 107, Criminal Procedure Code. That section and section 108A read as follows:-

"107. (i) Every information relating to the commission of an offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant.

(ii) Every such information shall be entered in a book to be kept by such officer, who shall append to such entry the date and hour on which such information was given, and whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it."

"108A. In any proceeding under this Code a copy of an entry relating to an information reduced to writing under the provisions of section 107 or of section 108, and purporting to be certified to be a true copy by the Officer in Charge of the Police District in which the police station where the information given is situated, shall be admitted as evidence of the contents of the original and of the time, place and manner in which the information was so recorded. (Section added by F.M.S. Enactment 19 of 1936)."

This report may be a first information report in which case it is admissible under section 108A, Criminal Procedure Code.

On December 20, 1975, the applicant's solicitor wrote to the O.C.P.D., Kuantan (respondent here and below), for a certified copy of the report "required by us to prepare our client's defence."

Invariably such a request is granted by the police, but this time it was refused on the ground, explained by the O.C.P.D. in a letter dated March 30, 1976, that the report was

"lodged by some one else, not your client. For your information, a copy of a report is supplied only to the person who makes the report or to his solicitor. Please therefore ask the person who makes the report to make the application himself."

On April 1, 1976, the solicitor wrote complaining to the learned Legal Adviser, Pahang, who is also Deputy Public Prosecutor, saying:-

"We find [the refusal of the O.C.P.D. to supply a copy of the report] a great hindrance in preparing our clients' defence as we must have particulars of the complaint against them. You will agree with us that it is both your duty and ours to see that justice is done and this can only be done if all admissible documents are supplied to the accused. If the first information report and the evidence of the complainant vary, it is the duty of both the prosecution and the defence to point it out the Bench. This can only be done if the defence has a copy of the first information report."

On May 10, 1976, the learned Legal Adviser replied, agreeing with the O.C.P.D.'s action.

On May 19, 1976, the applicant's solicitor applied by motion to the High Court for an order pursuant to section 44(1), Specific Relief Act, 1950 (Act 137), that the O.C.P.D. supply a certified copy of the report to the applicant.

In their correspondence the applicant's solicitor referred the O.C.P.D. to A.G. Circular No. 4 of 1955 as authorising the O.C.P.D. to supply a copy of the report. That circular reads as follows:

"A G.F M. 3/55ATTORNEY-GENERAL'S CHAMBERS,FEDERATION OF MALAYA,KUALA LUMPUR.17th May, 1955.

ATTORNEY-GENERAL'S CIRCULAR NO. 4 OF 1955 To All Deputy Pub