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Public Prosecutor v Mohd Fazil Bin Awaludin [2009] MYMHC 2 (7 January 2009)

IN THE HIGH COURT OF JOHOR BAHRU

CRIMINAL TRIAL NO: MT(3) 45-23-2007

PUBLIC PROSECUTOR

V

MOHD FAZIL BIN AWALUDIN

JUDGMENT

MOHD. ZAWAWI BIN SALLEH, J.C:

[1] This judgment concerns the interpretation of s. 51A of the Criminal Procedure Code ("CPC").

[2] To better understand the issue, regard must be had to the background of the case. I will now narrate it briefly. [3] The accused was charged with two offences of trafficking in dangerous drugs in contravention of s. 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under s. 39B (2) of the same Act. The accused claimed trial to the charge. The prosecution called six witnesses to support its case. In the course of his argument at the end of the prosecution's case, learned counsel raised a point about the effect of non-compliance of s. 51A of the CPC by the prosecution. 2

[4] 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. [5] 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:

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

(b) that without the information being supplied, the accused does not know the strengths and weaknesses 3

of the prosecution's case. In effect, there is a breach of "the equality of arms" principle.

[6] 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.".

[7] 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 4

exercised before the commencement of a trial or during the course of a trial. The section remains in force.

[8] It is well settled law that the prosecution has a duty to ensure the prosecution's case is present properly with fairness to the accused. It is often stated the prosecution's duty is not to obtain a conviction at all means, but simply to lay before the court the whole fact which is relevant to the case. In R v Stinchcome [1991] 3 SCR 326, for example, Sopinka J. stated that:

"the fruits of investigation which are in the possession of counsel for the crown are not property of the crown for use in securing a conviction but the property of the public to ensure that justice is done.".

[9] The principle of a fair trial is sacrosanct in all civilized legal jurisdictions. It is a principle of universal application. In Malaysia the principle of fair trial and fairness have been long-established and recognized in several decisions. Some of these include Cheah Yoke Thong v P.P (1994) 1 AMR 3113 and Azahan bin Mohd Aminallah v P.P (2004) 6 AMR 810.

[10] Learned counsel submitted that the CPC is silent on effect of the non-compliance of s. 51A of the CPC. This provision is new and as such there are no decided decisions in Malaysia of this particular issue. Therefore, learned counsel invites the court to look at the approach undertaken in other jurisdictions. A good starting point would be the common law approach taken by the courts in U.K and Australia.

[11] In support of his argument, learned counsel drew the court attention to two authorities. To do justice to learned counsel, I shall refer to these two cases. In the leading case of R v Brown (1997) 3 All ER 769, Lord Hope Craighead said:

"The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial 5

he must have adequate notice of the case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor of Gosforth C.J. observed in Reg. v. Keane [1994] 1 W.L.R 746, 750G, the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence. These are the rules upon which sections 3 and 7 of the Criminal Procedure and Investigations Act 1996 have been based. But they had already found their expression in decisions by the courts. It is necessary to mention only a few of them in order to identify the extent of the duty of disclosure, and to trace its development, as background to the issue which arises in this case.

In Dallison v. Caffery [1965] 1 Q.B. 348, 369 Lord Denning M.R. described the duty of the prosecution in these terms: "The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly

reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish. Here the solicitor, immediately after the court proceedings [for committal before the

magistrates], gave the solicitor for the defence the statement of Mr. and Mrs. Stamp; and thereby he did his duty."

In the same case, at p. 375G, adopting the words of Lord Goddard C.J. in Rex v Bryant and Dickson (1946) 31 Cr. 6

App. R. 146, Diplock L.J. observed that the proposition that it is the duty of the prosecution to place before the court all the evidence known to him, whether or not it is probative of the guilt of the accused person, was erroneous. It is clear, then, that in his view the principle of open justice did not extend that far. As he put it:

"A prosecutor is under no such duty. His duty is to prosecute, not to defend. If he happens to have

information from a credible witness which is consistent with the guilt of the accused, or, although not

inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence." (emphasis added).

[12] In Jarrod Rags v Magistrate's Court of Victoria (2008) VSC 1 the Supreme Court of Victoria discussed the principle of "equality of arms" in the following manner:

[45] The Criminal trial is "an accusatory and adversarial process". The person accused is presumed to be innocent and does not have to prove or say anything. The

prosecution is the accuser and, from the first to the last, carries the onus of proving each element of the offence according to the criminal standard beyond reasonable doubt. The rationale is that the general objectives of the criminal justice system ­ finding the truth and attributing criminal responsibility ­ are best achieve by a trial conducted before an independent and impartial judge, or judge and jury, in which both sides participate according to their best interests. A number of important rules of law and practice apply to regulate and moderate the adversarial nature of such a trial, but it has the appearance, and often the reality, of a ritual battle. Equality of arms is an international human rights principle that picks up the language of the battle to explain some aspects of the most important of those rules ­ the right to a fair trial.

7

[46] This is the equality of arms principle, which applies to both civil and criminal trials, as stated by the European Court of Human Rights in Foucher v France:

The Court reiterates ... that according to the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present his case on conditions that do not place him at a disadvantaged vis-à-vis his opponent.

[47] Here is the more elaborate statement of the principle given by Stefania Negri in the International Criminal Law Review, which also emphasizes it is one of comprehensive application:

The right to a fair trial entails protecting the "equality of arms" principle, an inherent element of the due process of law in both civil and criminal proceedings. Strict compliance with this principle is required at all stages of the proceedings in order to afford both parties (especially the weaker litigant) a reasonable opportunity to present their case under conditions of equality. Indeed, at the core of the concept of "equality of arms", as elaborated in domestic and international case law, is the idea that both parties should be treated in a manner ensuring that they have a procedurally equal position to make their case during the whole course of the trial. Fundamental procedural safe-guards aimed at securing such equality are guaranteed in most domestic legal orders, enshrined in human rights treaties and other relevant international instruments, and set out in the Statutes and Rules of the major international courts and tribunals.

[48] The equality of arms principle ­ which was probably taken from the civil law tradition --- was originally stated by the European Court of Human Rights set up under the European Convention on Human Rights. The European 8

Convention ­ to use its abbreviated name --- was entered into in 1950 in the aftermath of the Second World War. Articles 6(1) and (3) contain provisions relating to equal right to a fair trial before an independent and impartial court or tribunal that are of fundamental importance. The provisions came from the common law and civil legal traditions of those civilized countries that respected and followed the principle of a fair trial and the rules necessary to produce one." (emphasis added).

[13] And on the prosecutor's duty to promote fairness the court said:

"[69] The principles of the courts establish that the general duty of a prosecutor is to prosecute and not to defend, but the prosecution "must be conducted with fairness towards the accused .. and with a single view to determining and establishing the truth." Therefore prosecutors should see themselves as "minister of justice". Their duty is "assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State". In performing that function, the prosecutor must act with the objective "of establishing the whole truth in accordance with procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one"; As was said in Cannon v Tahche ­ the `duty' is owed to the court and not to the public at large or the accused. It is a significant aspect of the administration of criminal justice and the court's capacity to ensure the accused's right to a fair trial.

[14] And the Court proceeded to give two instances of the prosecution's duty to act fairly:

[70] One specific manifestation of the prosecutor's duty to act fairly towards the accused is the duty to call all material witnesses, whether their evidence will be in favour of the 9

prosecution or the defence, unless there is good reason not to. The duty must be exercised with fairness to the accused. It has been described as a "lonely" and "heavy" responsibility that cannot be shared with the trial judge without jeopardizing their judicial independence in the adversary system. The exercise of this duty is seen to fall within the prosecutor's discretion. It cannot be judicially reviewed, but may be a ground for setting aside a conviction on appeal if, when viewed against the conduct of the trial as a whole, it gave rise to a miscarriage of justice. [71] Another specific manifestation of the prosecutor's duty to act fairly towards the accused is the duty to disclose material documents to the defence. The duty is an incident of the accused's right to a fair trial. It is a continuous duty in the sense that it applies not only in the pre-trial period but also during the course of the trial itself.

[72] The scope of this prosecution's duty to disclose is broad but has limits.

[73] As to the scope of the duty, it clearly extends to material on which the prosecution intends to rely for its own case, including the substance of all statements of a prosecution witness or the statements themselves. The duty also extends to material in the possession of the prosecution that may undermine the prosecution case or which tends to assist the defence case to material which tends to show the accused is innocent, which is inconsistent with the guilt of the accused or which, if not inconsistent, is helpful to the accused, to material going to "exculpate the accused, to the criminal history or other material affecting the credit of prosecution witnesses to statements of material witness who the prosecution does not intend to call, and to documents, photographs and other real evidence, including scientific analysis. The duty does not require the disclosure of material that might undermine the defence case, such as matters affecting the credibility of defence witnesses, the 10

defence is responsible for making its own inquiries in this regard." (emphasis added).

[15] From my own research, it revealed that in English law before 1996, disclosure was governed by common law rules, and by 1994 the position which had been reached was that the duty was held to be one to disclose all material matters which affected the cases relied on by the prosecution, whether they would strengthen or weaken the prosecution case or assist the defence case (R v Ward [1993] 1 WLR 619, R v Keane [1994] 1 WLR 746.). The rule was modified by the Criminal Procedure and Investigation Act (CP1A) 1996, which provided for what is described, in the side-notes, as primary and secondary disclosure. Primary disclosure was required under section 3(1) which provides:

"The prosecutor must:

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)."

Secondary disclosure was required under section 7(2) which provided:

"The prosecutor must:

(a) disclose to the accused any prosecution material which has not previously been disclosed and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement given under section 5 or 6, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)." The defence statement referred to is a written statement setting out in general terms the nature of the accused's 11

defence, indicating the matters on which he takes issue with the prosecution and the reasons why he takes issue. Section 3(1)(a) was amended by the Criminal Justice Act 2003 and as amended requires that the prosecutor must: "(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused."

At the same time section 7 was repealed.

These provisions were commented on in R v H and C [2004] UKHL 3, at paragraph 35:

"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted. The trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the court.".

[16] In Australia, there are differences between the jurisdictions, as explained in the NSW Law Commission Report 2000. In NSW "At common law the prosecution is required to disclose its intention to call a witness at trial who was not called at committal and to give the defence a copy of the relevant witness statement. The prosecution is not generally required to provide the defence with copies of statements of persons whom the prosecution does not intend to call as witnesses (even if the statements could provide the defence with 12

relevant evidence) although it is considered good practice to do so. A decision by the prosecution not to call a particular person as a witness can constitute a ground for setting aside a conviction if it gives rise to a miscarriage of justice." (Petty v The Queen [1991] 173 CLR 95 at 108). However barristers' and solicitors rules and DPP guidelines do require disclosure of all material which "might be relevant to the guilt or innocence of the defendant, including the names and means of locating potential witnesses". [17] While due accord should be extended to learned counsel who has demonstrated a great deal of industry in preparing the submission, I am of the considered view that one must be guarded when making reference to English and Australian authorities on the subject of disclosure because there are differences between the provisions in U.K, Australia and Malaysia.

[18] It ought also to be remembered that the courts should not import common law from other countries where legislation in Malaysia has clearly provided for it. In Raphael Putra v Insas Bhd & Ors [2003] 1 MLJ 513, Abdul Hamid Mohamad FC (as he then was) said at p. 536:

"In my view, this court is bound by the provisions of our own Rules and not that of any other country ....

Furthermore, this court too should be careful and slow to adopt the decisions of the courts in other countries, even on the basis that it forms part of the common law of England, which on this point, it is not. Particular attention must be paid to the written law of this country. In other words, the provisions of s. 3(1) of the Civil Law Act 1956, must be borne in mind".

[19] What are the consequences of a failure to disclose material documents before the commencement of the trial? As far as s. 51A of the CPC is concerned, I do not think that the consequence of the non-compliance would make the trial a nullity. My reasons are as follows:

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19.1 Firstly, there is a distinction between provisions which prescribe the manner of trial and provisions which provide for the conduct of the trial. Disregard of a provision under the former is fatal to the trial and at once invalidates the conviction. However,

disregard of the latter, even though prescribed in a mandatory manner is not fatal unless the court is satisfied that the accused has been prejudiced. In my opinion, provisions relating to the delivery of certain documents to the accused before trial like s. 51A of the CPC concerns with the conduct of the

trial. A comparison of s. 399, 402A and s. 51A of the CPC will illustrate the point. Subsection (2) of s. 399 of the CPC sets a precondition, in that, where the public prosecutor intends to give any evidence of the report of a person listed under subsection (2), he has to deliver a copy thereof to the accused not less than 10 clear days before the commencement

of the trial. If the public prosecutor did not comply with the precondition stipulated, the report is not admissible in evidence. Therefore, the service of notice to the accused is not only procedural but it is evidential. So too section 402A of the CPC. This

section was enacted to prevent any person from

fabricating evidence of alibi and to enable the police to interrogate the intended witness or witnesses well before the date of trial to ascertain the validity of the defence. The non-compliance with the requirements of section 402A will render evidence in support of an alibi inadmissible.

19.2 The provisions of s. 51A of the CPC are poles apart from those sections. The non-compliance with s.

51A of the CPC would not statutorily prevent the

prosecution from tendering the documents which

were not delivered to the accused person before

trial as evidence in the course of the trial.

Therefore, it is only procedural and not evidential. It 14

has long been held as a matter of law that even in respect of evidence obtained illegally, it remains admissible. As was stated by Lord Goddard in the

Privy Council case of Karuma v The Queen [1955]

AC 197:

"the test to be applied in considering whether

evidence is admissible is whether it is relevant

to the matter in issue. If it is, it is admissible and the court is not concerned with how the

evidence was obtained.".

19.3 The House of Lords decision in R v Sang [1979] 2 All ER 1222 is frequently quoted by our courts as high authority for the rejection of the court's

discretion to reject illegally obtained evidence on public policy grounds. Lord Diplock said:

"It is part of a judge's function to exercise

disciplinary powers over the police or

prosecution as respects the way in which

evidence to be used at the trial is obtained by

them. If it was obtained illegally there will be a remedy in civil law: if it was obtained illegally but in breach of the rules of conduct for the

police, this is a matter for the appropriate

disciplinary authority to deal with. What the

judge at the trial is concerned with it not how

the evidence sought to be adduced by the

prosecution has been obtained, but how it is

used by the prosecution at the trial.".

19.4 Secondly, unlike in U.K., the scope of s. 51A of the CPC is rather limited. Granted, as I

have said earlier in this judgment, the general

object of legislature in enacting s. 51A of the

CPC is to advance the overall fairness,

justice, efficiency and the truth finding

15

elements of criminal proceedings. And under

the section also the prosecution owes a

general duty to deliver certain documents

which may assist the accused in his defence.

The documents concerned must include not

only that which the prosecution intends to

tender as part of the evidence (subsection

(1)(b)) but also which it does not, i.e. facts

which is favourable to the accused

(subsection (1)(c)). However, it would appear

that the overriding object of legislature in

enacting s. 51A of the CPC is to deal with

cases efficiently and expeditiously. The

section is designed to ensure that there is a

fair system for the disclosure, especially of

unused material which may assist the defence

in the timely preparation and presentation of

its case and enables the court to focus on all

the important issues in the trial so that the trial will not be halted or delayed.

19.5 There are occasions where counsels are

unable to get copy of the charge, first

information report, witnesses statements, the

cautioned statement made by the accused,

medical reports, chemist reports, forensic

reports, photographs, investigation notes until

very late, usually on the eve of hearing. This

of course means that counsels spend

considerable court time examining

prosecution witnesses on point that may be

unnecessary if they had access early to the

said documents. In a state of inadequate

knowledge, counsels steps merrily and this

perforce leads to a much slower progress in

the trial. In P.P v Raymond Chia [1985] 2 MLJ

63, Mohd Azmi J. (as he then was) said

apropos of this problem:

16

"It is true that in the present case the

five documents referred to in the charge

would be produced by the prosecution

at the trial in order to prove their case,

and as and when they are tendered in

evidence, the accused can always apply

for a reasonable adjournments to enable

their counsels to study them. But for

practical purposes, such adjournments

could and should be avoided by

furnishing to the accused before trial.".

19.6 The right to trial without undue delay was

affirmed in the case of P.P v Choo Chuan

Wong [1992] 3 CLJ (Rep) 329 where the court

had read in a guarantee of the "right to a fair

hearing within a reasonable time by an

impartial court established by law" as part of

the right to life and personal liberty in Article 5(1) of the Federal Constitution. The court

recognized that "the general proposition that

criminal work should be disposed of with the

least possible delay in order to avoid hardship

to the accused who may be in custody or who

in any case has the right to have the criminal

accusation against him determined as soon as

possible", cannot be disputed.

19.7 My view above is fortified by the speech made by the then minister in the prime minister's

department, Y.B. Dato' Seri Radhi bin Sheikh

Ahmad when he tabled the relevant Bill in

Parliament. He said:

"[Seksyen] 51A ini satu peruntukan baru

di mana buat pertama kali dalam

sejarah kita, kita memperkenalkan satu

prosedur yang seolah-olah prosedur

17

dalam mahkamah perbicaraan kes-kes

sivil. Di mana dalam peraturan ini kita

menghendaki pihak pendakwa

mengemukakan beberapa kenyataan,

beberapa keterangan yang menyebelahi

pihak yang kena tuduh sebelum

perbicaraan itu bermula.

Tujuan kita buat demikian ialah untuk

memendekkan perbicaraan dengan cara

itu. Kedua, dengan cara itu, pihak

pembela tidak akan membuat

permohonan kepada mahkamah untuk

menangguhkan kes-kes kerana

kononnya dokumen ini belum dapat

diterima lagi, dia hendakkan dokumen

ini dan sketch plan dan seterusnya

daripada pihak pendakwa. Dengan cara

itu kita memendekkan perbicaraan.

Walau bagaimanapun dimasukkan satu

proviso. Jawatankuasa telah sengaja

mengadakan pengecualian bagi

perenggan c di mana pegawai-pegawai

pendakwa tidaklah membekalkan fakta-

fakta yang menguntungkan terhadap

tertuduh atas alasan ia akan

menjejaskan kepentingan awam

ataupun public interest". (emphasis

added).

19.8 The "purposive approach" adopted above is

consistent with the provision of s. 17A of the

Interpretations Acts 1948 and 1967 (Act 388)

and the same was adopted by the Federal

Court in DYMM Tengku Idris Shah Ibni

Almarhum Sultan Salahuddin Abdul Aziz Shah

v Dikim Holding Sdn. Bhd & Anor [2002] 2

CLJ 57 and Hokkien Cimeterial, Penang v

18

Majlis Perbandaran Pulau Pinang [1979] 1

LNS 122; [1979] 2 MLJ 121.

19.9 Thirdly, provision of s. 51A of the CPC is not mandatory but only directory. How does the

court distinguish between mandatory and

directory duties? The answer is given by Lord

Campbell in Liverpool Borough Bank v Turner

(1860) 30 LJ Ch 379:

"No universal rule can be laid down ...

It is the duty of the courts of justice to try

to get at the real intention of the

legislature by carefully attending to the

whole scope of the statute to be

construed."

In Howard v Bodington (1877) 2 PD 203 at p

211, which was followed by the Federal Court

in Pow Hing & Anor v Registrar of Titles,

Malacca [1981] 1 MLJ 155, Lord Penzance

stated:

"I believe, as far as any rule is

concerned, you cannot safely go further

than that in each case you must look to

the subject matter, consider the

importance of the provision and the

relation of that provision to the general

object intended to be secured by the

Act, and upon a review of the case in

that respect decide whether the

enactment is what called imperative or

only directory".

19.10 N.S. Bindra's Interpretation of Statutes, Eight Edition, had this to say in regard to the word

"shall", at p. 1029 ­ 1030:

19

"The word `shall' in its ordinary

signification is mandatory though there

may be considerations which influence

the Court in holding that the intention of

the Legislature was to give a discretion.

But this word is not necessarily

mandatory, nor always mandatory.

Whether the matter is mandatory or

directory only depends upon the real

intention of the Legislature which is

ascertained by carefully attending to the

whole scope of the statute to be

construed:

The use of the word `shall' would

not by itself make a provision of

the Act mandatory. It is to be

construed with reference to the

context in which it is used.

Similarly, mere use of the word

`shall' or the absence of it, does

not decide the question whether a

provision is directory or

mandatory.

When a statute uses the word

`shall' prima facie, it is mandatory,

but the Court may ascertain the

real intention of the Legislature by

carefully attending to the whole

scope of the statute. For

ascertaining the real intention of

the Legislature, the Court may

consider, inter alia, the nature and

the design of the statute, and the

consequences which would follow

from construing it the one way or

the other, the impact of other

20

provisions whereby the necessity

of complying with the provisions in

question is avoided, the

circumstance, namely, that the

statute provides for a contingency

of the non-compliance with the

provisions, the fact that the non-

compliance with the provisions is

or is not visited by some penalty,

the serious or trivial consequences

that flow therefrom, and, above all,

whether the object of the

legislation will be defeated or

furthered.".

19.11 Therefore, the task of the court is to bear steadily in mind that it is the real intention of the legislature that must be ascertained. It

was held in Lock Wee Kock v Menteri Hal

Ehwal Dalam Negeri & Anor [1993] 4 CLJ

211:

" .... the courts have always construed

these words with reference to the

context in which it is used. In order to

find out whether these words are being

used in directory or mandatory sense,

the intent of the legislature should be

looked into, along with the pertinent

circumstances".

19.12 Having regard to the provision of s. 51A of the CPC and particulary the overriding object of

the section as I have alluded before, it is my

considered opinion that the word `shall' in

subsection (1) of s. 51A of the CPC means

directory. If the requirement of s. 51A of the

CPC has not been timely complied with by the

21

prosecution, I think there is no impediment for

the court to adjourn proceedings to enable

counsel to inspect documents referred to in s.

51A of the CPC. In other words, in applying

and administering s. 51A of the CPC, the

court should keep in mind not only to the

technical non-compliance of the section but

also to the justice of the particular case.

Therefore, the court still has powers and

discretion to grant adjournment to enable

counsel to inspect the documents.

[20] Now, reverting back to the main contention of learned counsel in this instant case that by reason of the non-compliance by the prosecution of s. 51A of the CPC, there is a miscarriage of justice in that the accused's right to a fair trial has been substantially compromised. The court has scrutinized the entire record of proceedings of this case and found that the failure of the prosecution to comply timely with s. 51A of the CPC does not prejudice the right of the accused to make full answer and defence of his case. In the course of the trial, the learned counsel was delivered and handed with the following documents:

(i) Photographs of the exhibits (Exh. P8A ­ Exh. P8M); (ii) Photographs of the scene of the crime (Exh. P9A ­ Exh. P9C);

(iii) A certified copy of "Pendaftaran Barang-Barang Kes" (Exh. P4);

(iv) Search list (Exh. P24);

(v) Sijil Serah-Menyerah (Exh. P25);

(vi) Chemist Report (Exh. P37);

(vii) Sketch plan and key (Exh. P10 and Exh. P10K); (viii) Chemist's Note (Exh. P38); and

(ix) Newspaper cutting (Eks. P39).

[21] No adjournment was sought by learned counsel to enable him to inspect and scrutinize the documents concerned. Learned counsel also did not seek to recall any of the prosecution's witnesses 22

nor has requested more time to prepare for cross-examination. In any event, record of proceedings showed that only a few questions was asked by learned counsel regarding the matters contained in these documents. As regards subsection (1)(c) of s. 51A of the CPC, there was no suggestion whatsoever by learned counsel that any exculpatory and material evidences which is favourable to the defence of the accused was withheld by the prosecution. Moreover, it is material to note that learned counsel had not alleged any specific prejudice to the accused. Learned counsel did not suggest to the prosecution witnesses or in the course of his submission that the following materials were withheld or suppressed:

(a) evidence which may point to the conclusion that no crime has been committed or that no crime was

committed on the date or at place mentioned in the charge;

(b) evidence which may contradict (real or oral) on which the prosecution's case will rely;

(c) information which may cast doubt on the credibility or reliability of the prosecution's witnesses;

(d) information which may be inconsistent with scientific or other experts on which the prosecution will rely or with inferences which may be drawn from such evidence; (e) evidence or information which may point to another person or persons; and

(f) evidence or information which might reduce the degree of the seriousness of the offence.

[22] Learned counsel also did not invite the court to invoke s. 114(g) of the Evidence Act 1950. The reason is very obvious. Based on the evidence adduced, the court could not conclude that the prosecution had withheld or suppressed the evidence including the evidence which is favourable to the defence of the accused. It should 23

be borne in mind, provided that there is no oblique motive, the prosecution has a discretion whether or not to produce certain evidence or to call a particular witness and also has a discretion specifically not to call a witness in whom it does not believe to be a witness of truth. Of course, the prosecution's right to produce certain evidence or to call a witness from whom statements have been taken must always be guided by its duty to discharge the onus of proof. [23] In the instant case, after considering all the evidence that has been adduced by the prosecution, the court has no doubt whatsoever that the accused's right to fair trial has not been compromised or the failure by the prosecution to comply with s. 51A of the CPC had an adverse effect on the accused to prepare full answer and defence to the charge preferred against him. Learned counsel also has failed to establish that such failure could affect the reliability of the trial result and fairness of the trial process. There was no material before the court to enable it to conclude that there is a reasonable possibility that the lines of cross-examination or the lines of inquiry with witnesses could have been different if the documents concerned were made available or had been disclosed to the defence.

[24] Perhaps it is not out of place in this context to quote the decision of Abdul Hamid Mohamad F.C (as he then was) in Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor [2007] 4 MLJ 393, where he said:

"It is true that the courts, through its decisions try to arrive at a "fair and just result." But, it can only do so within the confine of the law, not through some general and vague sense of fairness and justice."

[25] The general propostion that there is a general duty upon the prosecution to deliver to the accused certain relevant material which might assist him in his defence before trial cannot be disputed. On the other hand, the interests of justice do not mean the interest of the accused only for we have to consider interests of society at large in finding out wrongdoers and repressing crime and especially so in the 24

case of a capital charge. The task of the court must therefore to balance these interests. In balancing these interests the court must, take into account the practice and procedure of the courts, the right of the accused for asserting his rights, the prejudice to the accused (if any) and generally, the particular circumstances of the case concerned.

[26] Before departing from the present case, perhaps it would be appropriate for me to make this observation. By delivering certain documents as stipulated in s. 51A of the CPC to the accused before trial, it would go a long way to ensure that the accused has the opportunity to present all relevant information at trial regarding his guilt or appropriate punishment, reinforcing a core principle of the administration of criminal justice, that is, fair trial. Although the prosecutor operates within the adversary system, it is fundamental that the prosecutor's obligation is to protect the innocent, as well as to convict the guilty, to guard the rights of the accused, as well as to enforce the right of the public. In this regard, the U.S. Court in Bradly v Maryland 373 U.S. 83, 87 ­ 88 (1963) had this to say: "Society wins not when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly .... A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts in the role of an architect of a proceeding that does not comport with standards of justice ....".

[27] As regards the role of counsel, the court considers that counsel's diligence in pursuing disclosure by the prosecution pursuant to s. 51A of the CPC is relevant because lack of due diligence is significant factor in determining whether the non- disclosure affected the fairness of the trial process. Counsel who had, or ought to have become, aware of the failure on the part of the prosecution to timely disclosure must not remain passive, but 25

diligently pursue the matter by sending a reminder to the prosecution regarding its obligation under the said section.

Dated: 7th

January 2009

(DATO' HJ. MOHD. ZAWAWI BIN SALLEH)

Pesuruhjaya Kehakiman

Mahkamah Tinggi

Johor Bahru

Bagi Pihak Pendakwa Raya: Encik Husmin Hussin

Timbalan Pendakwa Raya

Pejabat Penasihat Undang-Undang

Negeri Johor

Peguam Bagi Pihak Tertuduh: Tuan Hj. Hisyam Teh Poh Teik Tetuan Teh Poh Teik & Co.

Johor Bahru

Context