JUDGMENT

Mohamed Apandi Ali J:

[1] This is a notice of motion by the applicant arising from an inquest proceeding at the Magistrate's Court. Applicant is the husband of the deceased. In the course of the inquest proceeding counsel for the applicant made an oral application to the Magistrate who was holding the inquest; for the reports (ie post-mortem reports and other medical reports) to be supplied. Magistrate refused and in the order only allowed access to the reports be given after the relevant medical witnesses has given evidence. In the motion (notice usul) - KM2, applicant is asking for:

(i) The order not to have access to the post-mortem report and other medical reports until after medical witnesses have given evidence, be set aside; and.

(ii) That applicant to be supplied with a copy of the post-mortem report and all other medical reports of the deceased.

[2] All parties have filed written submissions on this matter. Counsel for applicant, in his submission-in-reply has now watered down the application, and limiting it to the supply of the post-mortem report only.

[3] Basically this motion is an application for disclosure of documents. The position in law on this issue and subject-matter is governed by two provisions of the law, namely:

(1) Practice Direction No. 1 of 2007, with the heading "GUIDELINES ON INQUEST"; and

(2) Section 51A of the Criminal Procedure Code.

(1) Practice Direction No. 1 of 2007

[4] This Practice Direction is dated 5 January 2007 and is so worded that it "shall be followed ..." with effect from 1 February 2007. It was issued by the then Chief Judge of Malaya, Tan Sri Dato' Siti Norma bt Yaakob. It is therefore imperative for Magistrates to abide by the direction.

[5] To remove any doubt, I must note Practice Directions issued by the Chief Judge of Malaya do have the force of law. This is so because the Chief Judge (meaning Chief Judge of Malaya for Peninsular Malaysia and Chief Judge for Sabah & Sarawak) do have supervisory powers over the Subordinate Courts. This can be seen in s. 4; s. 59(4) and s. 76(3) Subordinate Courts Act 1948 and of which such powers has to be read with s. 35 of the Courts of Judicature Act 1964.

[6] Now let us have a closer look at Practice Direction No. 1/2007. It comprises a very comprehensive guideline for Magistrates to follow in an inquest. The relevant provision is para D under the heading disclosure of documents, at p. 7 of the Practice Direction. It reads: "The Magistrate have the discretion with regard to the release of documents. This discretion should in general be exercised in favour of release."

[7] Here from the wordings, the general rule: is to release (which as per the heading will mean "disclosure") the document; and not releasing the document will be an exception. That being so, any refusal to release (or disclose) must be justified with reasons for such a refusal.

(2) Section 51A Criminal Procedure Code

[8] This is a new provision that came into being by virtue of Amendment Act A 1274/06. This new provision is primarily of legislated to give effect to the changing trend in the administration criminal justice for pre-trial discovery. On this issue parties in today's application took different stands and views.

[9] In my opinion, s. 51A Criminal Procedure Code cannot be read in isolation but it has got to be read together with the proceeding section, namely s. 51 of the Criminal Procedure Code. If one were to read s. 51 Criminal Procedure Code, it is clear in the wordings ... "production of property or document is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceedings under this Code ..." It therefore encompasses an "enquiry" or inquest. Eventhough s. 51A Criminal Procedure Code speaks of "the trial" it should not be limited to trials only.

[10] After all, an inquest is inquisitorial in nature as compared to a trial, which is adversarial in nature. If in an adversarial proceeding pre-trial discovery is allowed,