Pre-Trial

1) Pre-Trial Discovery and Inspection of Documents

Pre Amendment

S.51

(i) ‘Court may issue a summons to…”

- Method: Application to C by notice of motion

- ‘May’: discretionary power of C

Raymond Chia Kim Chwee [1985] FC

The right for production of docs under s.51 is a right exercisable at
the discretion of the C.

- Effect of C order: Final order; therefor appealable under s.307(1)

Raymond Chia
SC: A decision/order to issue a summons under s. 51 of the Code was
a final order in the sense that it was final in its effect and therefore
appealable under s. 307(i) of the Code

Datuk Tiah Thee Kian [2002] HC, follow Raymond Chia’s

case

DSAI
The effect of the HC's order was that the issue of the production of the
docs and materials by the PP pursuant to s. 51 of the Code had been
finally disposed of whereby the PP was ordered to supply the
docs/materials to the R. The decision of the HC had finally disposed
of the R's notice of motion. As such this would be the correct time for
the PP to appeal against the HC's decision.
(ii) “the person in whose possession or power such property or
document is believed to be.”

Who can be ordered to produce doc?

- ‘Person’ includes Prosecution [P] (in possession of doc). Hence,
the accused [A] may apply for production of docs by P.
Teoh Choon Teck [1963] HC
Raymond Chia

- Can P apply production of doc from A?

Shyam Lal Mohan Lal (1964) SC (Indian case)
Not applicable to A. P cannot apply A to produce doc.

Kamal Hisham bin Jaafar [2016] HC

P can apply. “…nothing in the wording of s.51 to indicate that its
scope is limited to an application by an A”
(iii)“requiring him to attend and produce”

- Enables the applicant to apply for production of docs for

inspection
- But, the applicant has to make copies of the docs himself.

Haji Abdul Ghani bin Ishak [1980] HC

…although s. 51 of the CPC does not place the obligation on the
police as in s. 76 of the Evidence Act to supply certified copies of the
document sought for, the section clearly did not prohibit the
applicant from making copies of them himself.
(iv) When can apply?

(a) Only during trial, not pre-trial; as it will lead to inspection of

evidence of P prior to trial.
Syed Abu Bakar b Ahmad [1982] HC
- strict approach, not longer good law

(b) During trial & Pre-trial

Haji Abdul Ghani bin Ishak [1980] HC
Raymond Chia, FC
An application under that section (s.51) may be made before the
commencement of a trial or in the course of a trial.”

DSAI, COA
Applications under s. 51 can be made at any stage of the
proceedings. The authorities have divided those applications into
two categories, namely, (i) the pre-trial and (ii) in the course
of the trial or proceedings.
(v) How C decide/exercise discretion? What test to apply?

“Whenever any C / police officer making a police investigation

considers that the production of any property or document is
necessary / desirable for the purpose of any investigation,
inquiry, trial / other proceeding under this Code by / before that C
/ officer…”

1st Test: C needs to consider whether the production of doc is

necessary/desirable for the purposes of any trial/other proceeding
under the CPC/before C.
• Liberal approach

Teoh Choon Teck [1963] HC

The need for this section would appear to be that in criminal cases
neither party can obtain evidence from the opposite side by means
of interlocutories/discovery of documents [as in civil procedure].
The language of this section is very wide but before issuing a
summons under it the C is bound to consider judicially whether the
production of the docs is necessary/relevant for the purpose of
the inquiry, trial/other proceeding.
The thing called for must have some relation to, or connection
with, the subject matter of the investigation/inquiry, or throw
some light on the proceeding, or supply some link in the
chain of evidence. Anything which may reasonably be regarded
as forming part of the evidence in the case may be ordered to
be produced, and that is the primary object of these provisions.
(Mallal's Criminal Procedure, 3rd Edn., page 69).
It is not a question at that stage of whether the doc is admissible or
not. It may be that the thing called for may turn out to be wholly
irrelevant to the inquiry, but so long as it is considered to be
necessary/desirable for the purpose of the inquiry, the power is
there. (Sohoni's Code of Criminal Procedure, 15th Edn., Vol. 1 page
239). The important thing is that at the time, it appear to be
relevant to the investigation, inquiry, trial or other proceeding.

The doc/thing must be clearly specified, that is, it must indicate

the doc to be produced and should be given at such time as to afford
the party a reasonable opportunity for producing the doc at the
trial. A general direction to produce all papers relating to the
subject in dispute will not be enforced it must be directed at a
specific document.
As these docs were specifically referred to in the charges
and as it was essential for the A to have the originals/photostat
copies in order for him properly to prepare his defence, which
could not otherwise be prepared, it seems to me that the PP in order
to ensure that justice was not only done but seen to be done should
not have raised objections, on the particular facts of this case, to the
defence being supplied with photostat copies of the letter and the
cheque and also any other docs removed from his possession which
he required for the furtherance of this defence, for example a letter
or letters in the handwriting of the complainant.

…It is because, as I have already said, without them the A was

not in a position to prepare his defence and in such
circumstances justice was not being done.
Haji Abdul Ghani bin Ishak [1980] HC
As regards the last category of doc applied, i.e, docs seized by the
B.S.N. in respect of this case, the application is made pursuant to s.
51 of the CPC. The section empowers the C to order the production of
docs for the inspection of the opposite party if the C considers such
production is necessary/relevant for the purposes of the trial.
These docs were seized in the course of the investigation of the case
against the applicant and it was submitted to me that they are very
relevant to the applicant in preparing his defence. The
voluminous documents have been particularly described in the
search lists issued by the B.S.N. and counsel limits his right of
inspection to those on the list only.

-The judge then applied Teoh Choon Teck’s case

In conclusion I wish to express that a remarkably higher
standard of justice would have been achieved if the parties
adopt a more liberal approach towards applications of
this kind. Documents produced unexpectedly in Court can
only result in adjournment and delay in the disposal of a
case. An attitude of undue caution in the production of
documents necessary for the defence of an accused person
may unfairly give rise to the insinuation that the prosecution
is resorting to a hide and seek method or reducing the
defence into a game of blind man's buff.
2nd Test: Having regard to the justice of the case and the stage
of proceeding.

Raymond Chia
In exercising its discretion under s.51(i) of the CPC, the C has to
consider the justice of the case and at what stage of the
proceeding the application is made.

DSAI
The authorities have also decided that for each category of
application different considerations must be given by court
in deciding whether to order the production of doc/materials.

The first and foremost requirement of the section is about the doc
being necessary/desirable. The necessity/ desirability would have
to be seen with reference to the stage when a prayer is made for
the production.
a) Before trial

Raymond Chia
“Except in the case of docs referred to in the charge an
application under s. 51 should be made only after the
commencement of the trial.”

“Under s.51 of the CPC, the A is most certainly entitled to have

copies of docs which are specified in the charge. But the A
cannot be expected to be given access to all docs whatsoever taken
by the police during investigation.”

If the discretion is to be exercised before the commencement of

trial the C cannot anticipate how the P will proceed. In other words
the C would not be justified to direct the P to deliver to the A all docs
taken from him for that will not be a correct exercise of the
discretion under s.51 of the CPC. In the first place the A should know
what docs had been taken from him...
•Where the C is asked to exercise its discretion under s. 51 before
the commencement of trial, the C must have regard to the
provisions of ss. 152, 153 and 154 of the CPC relating to the framing
of the charge. There is clearly a specific duty imposed on the P to
particularise the charge sufficiently so as to give adequate notice to
the A person. The A in a criminal trial should have sufficient notice
of what is alleged against him so as to enable him to prepare
his defence. So long as that requirement is satisfied the law is
satisfied.

•The docs which the A is entitled to inspect and take copies of

are: Where the application is made before the commencement of
enquiry/trial as a general rule the docs/materials must be
docs/materials specified/referred to in the charge.

•A general demand for unspecified materials/docs should

not be entertained.
DSAI
“As can be seen from the authorities mentioned above the exercise of
this discretionary power by the C under s. 51 of the Code with
regard to the application at the pre-trial stage has been
limited. The C construed the section strictly. Except as what is
provided for under s. 51A of the Code the R is not entitled to
discover/inspect evidence/material in the possession of
the prosecution before the commencement of the trial.

Kulwant [1986] 2 MLJ 10

“It is clear that an application before commencement of trial is
only for the purpose of giving adequate particularity to the
charge where the charge itself specifies documents.”
Except in the case of docs referred to in the charge, an
application under s.57(1) (pari materia with s.51) should be made
only after the commencement of the recording of prosecution
evidence.
Teoh Choon Teck
Hepworth J ordered the production of the letter and the cheque
requested by the defence as these doc were specifically
referred to in the charges and as it was essential for the A to
have the originals/photostat copies in order for him to properly
prepare his defence.

Lim Sooi Booi [2003] HC

Post mortem report not referred in the charge.

Hence, a general demand to produce all papers (i.e. fail to

specify) relating to the subject in dispute will not be enforced.

Must be directed at a specific doc.

Datuk Tiah Thee Kian [2002] HC, Hishamuddin Yunus J
(questionable?)
Follow Teoh Choon Teck’s case

The defence is not asking for all the documents but instead has
taken the initiative to specify the docs (the five categories)

I fail to see in what way the P would be prejudiced if the

applications were to be granted. But I have no doubt
whatsoever that the appellants would be seriously handicapped
in answering the charges if they are denied the opportunity of
inspecting the documents before the trial, since it has been conceded
by the prosecution that those documents would be the foundation of
the case for the prosecution.
And considering the numerous docs involved, it is foreseeable that if
these applications are not allowed before trial and that applications
for inspection of docs are only supposed to be made during the trial,
when the documents are tendered piece by piece by the P before the
trial court as the trial progresses, the smooth running of the
trial would be seriously hampered and there would be
substantial delay as the proceeding would be bogged down by a
series of applications for postponement by the defence. That would
certainly be detrimental and prejudicial not only to the appellants
but to the P as well. Based on all these considerations I think it is
necessary or desirable for the purpose of the trial that the
applications be granted.
Although s.51 of the CPC does not place the obligation on the police
as in s.76 of the Evidence Act to supply certified copies of the
document sought for, the section clearly did.

The docs desired must be referred to in the charge, but if they

are not referred to in the charge then the docs must be specified
by the applicants in his application.

What the Supreme Court intended to disallow is an application

for unspecified docs or an application made in general
terms.
What is laid down above by the Supreme Court is, in my opinion,
only meant to be a general rule. I do not think the Supreme
Court intended to lay down a strict or rigid rule that the documents
desired to be inspected by the defence must, in every case, be
specified in the charge before the application can be granted. To my
mind, what is implied by the Supreme Court by saying "as a
general rule" is that there could be exceptions to the general
rule, meaning that there could be situations where the application
for inspection of documents ought to be allowed although the
documents are not specified in the charge if the circumstances of the
case so merit. And it is my judgment that, in the present case, in
view of the complicated nature of the charges, the complexity of the
alleged transactions, the numerous documents involved, and the
relevance of the documents to the charges as conceded by the
prosecution, the situation merits an exception to the general rule.
- Production not allow if intended to fish for information

State of Orissa v. Debendra Nath Padhi [2004] 4 LRI 860,SC

of India
It would also have to be borne in mind that law does not permit a
roving/ fishing inquiry.

Sohoni's Code of Criminal Procedure, 1973, 19th edn, vol.

1, p. 388
If the object of the inspection is merely to fish out for information, it
is not a thing that could be permitted.
b) In the course of trial

Raymond Chia

Where the application under section 51(i) of the CPC is made in the
course of the trial, the rule of relevancy must be strictly
enforced. We feel that this is what Mallal's Criminal Procedure
meant by saying that "anything which may reasonably be
regarded as forming part of the evidence in the case may be
ordered to be produced and that is the primary object of these
provisions."

In respect of application made in the course of the trial the

materials or documents asked for must be relevant to the issues
for adjudication.
 Court’s
Discretion

If application was made If application was made

before trial in the course of trial

General rule: only docs Court has to consider the

specified/referred to in the question of relevancy to the
charge; if A doesn't have issues for adjudication.
sufficient notice of charge

Datuk Tiah Thee Kian [2002]

there can be exception
# Based on reported cases, it seems that counsel will use s.51 if the
docs sought to be produced are non-public docs.
If public doc, open for inspection e.g. FIR, medical report

Haji Abdul Ghani bin Ishak

This case involving doc seized in the course of investigation.

# S.51 in actuality not confine to non-public docs. What is important

is to satisfy the test.

Lim Sooi Booi [2003] HC

This case involving post mortem report (public doc).
# If it involves public docs, reported cases showed that counsel will
apply s.76 Evidence Act (public doc) and s.44 Specific Relief
Act (C to order public servant to do certain act) to demand
production of doc from P.
e.g. FIR, s.112 statement

Haji Abdul Ghani bin Ishak [1980] HC

In applying this, A must proved,
1) It is a public doc (s.74 EA)
2) It falls under the category of public doc that a person has a right
to inspect. (use the test under common law - the tangible interest
test i.e. A has the right to inspect if he has tangible interest in the
doc)

Antony Gomez v KP Daerah Kuantan [1977] FC

FIR (allowed), using common law test (this case before we have
s.51A)
Khoo Siew Bee
•A cautioned statement is a public doc. It has been held that
the right to inspect a public doc is correlated to the interest
which the person who seeks inspection has in the doc.

•The cautioned statement can be inspected as it has been made by

the A himself (not by others implicating the A), and so there is no
fear of the A tampering with potential witnesses who have given
information against them.

•Also, the statements have been signed by the A, and so it will be

difficult for them to depart radically from what has been recorded.

•This ruling only applies to statements recorded from the A,

not from others who are potential witnesses against or for them -
as to which the prosecution is under no duty to supply to the
defence, [Bryant and Dickson]
Haji Abdul Ghani Ishak
•Uncautioned statement is a public docs and the maker has
tangible interest.
•Co-accused in this case is a competent witness against the
applicant. Whatever statement recorded from the co-accused is a
statement made by a witness
However,

Husdi
• Issue: Whether or not the defence is entitled in advance of the
trial to copies of police statements of prosecution witnesses?
• C answered in the negative.
• Once a police statement is held to be absolutely privileged for one
judicial purpose, it is privileged for other purposes. There can be no
right to inspect. Further, as a matter of public policy, it is
undesirable for the prosecution to supply the defence with police
statements, as there is a real danger of tampering with the
witnesses.
• Exception: Where the defence seeks to impeach the credit of a
prosecution witness, the defence can be supplied with a copy of the
witness's statement to the police.
Post Amendment
S.8 CPC (Amendment) Act 2006 (Act A1274) introduced

S.51A

• (1): “The P shall before the commencement of the trial deliver to

the A the following docs:”
• ‘Shall’:

Mohd Fazil Awaluddin [2009] HC

- Only directory
- Not make the trial a nullity unlesa if prejudice. (curable under
s.422)
- The doc still admissible in evidence
(This case before amendment which introduce s.51(3) – doc still
admissible)
See Kek Chuan [2011] COA
The P’s case would be jeopardised if the trial court refuses to
condone the non-compliance by the P of s. 51A of the CPC.
And s.422 of the CPC may not assist the P if the non-
compliance to s.51A of the CPC is material (prejudice) (Narain
and others v. State of Punjab [1959] AIR SC 484).
Failure to deliver may attract s.114(g)

Distinguish:
IMRAN KHAN JAN GUL SHAH [2015] HC
S.51A mandatory.
Failure to produce before trial, doc not admissible in evidence.
(The trial was 2012 and s.51A(3) not yet included.)
 (a) a copy of the information made under s.107 relating to the
commission of the offence to which A is charged - (FIR)

- This is not a new obligation been introduced since FIR had always
been supplied to A prior to commencement of trial & now only it’s
codified under S.51A (a)
Antony Gomez v Ketua Polis Daerah Kuantan; Husdi

(b) a copy of any doc which would be tendered as part of the

evidence for P

Dato Seri Anwar Ibrahim [2010] COA

Dato Seri Anwar Ibrahim [2010] COA
- Docs only
- Not include:
(i) DNA samples
(ii) Worksheet/case notes of the chemist made during the analysis
and tests carried out in respect of the original samples and swabs –
as it would not be tendered as evidence.
(iii) Witness statement under s.112
- D should not be allowed to fish for information
• The wording of s. 51A is very clear in that what the prosecution
is required to supply are those docs/statements of fact expressly
stipulated therein. The law on the application of s. 51 had
not changed notwithstanding the inclusion of the new s.51A of the
Code. S.51A provided for automatic disclosure. It has nothing to do
with the court's discretion under s. 51.

•With due respect, we were unable to agree with the decision of the
learned judge. In our view the decision of the apex court in
Raymond Chia case and Husdi case are relevant and
applicable in respect of the application for docs not specifically
mentioned in s. 51A of the Code. In this connection we agree with the
submission of the learned Solicitor-General that the law on the
application of s. 51 had not changed notwithstanding the inclusion
of the new s. 51A of the Code.
•The purpose intended by the Parliament in enacting s. 51A as
reflected in the Hansard and the Minister's speech when tabling
the bill must be read in the context of s. 51A only and could
not be extended to s. 51 as s. 51 was already in existence.

•S.51A provided for automatic disclosure. It has nothing to do with

the court's discretion under s. 51. In our view the court therefore
cannot read the parliament's purpose of introducing s. 51A into s.
51 and the court cannot indirectly rely on the reasons given for the
inclusion of s. 51A to interpret s. 51. Section 51 and 51A are two
separate and distinct provisions as clearly spelt out from the
wordings of the respective provision.

# Retnarasa’s case overruled

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

Examples of favourable facts:

• Victim [V] invited A to his house
• Victim not succumb injuries

Exceptions [public interest]:

• Witness statement – this is privileges statements
• A may disturbed Witness [W] & to avoid intimidation of W

- Exception: P does not have to supply if contrary to public

interest: s.51A(2)).
S.51A(3)
A doc shall not be inadmissible in evidence merely because of
non-compliance with s.51A(1).

S.51A(4)
• C may exclude any doc delivered after the commencement of
the trial if it is shown that such delivery was so done deliberately
and in bad faith.

S.51A(5)
• Where a doc is delivered to A after the commencement of the
trial, C must allow A
(a) a reasonable time to examine the doc; and
(b) to recall or re-summon and examine any witness in relation to
the doc.
In Mutter v Eastern and Midlands Railway Co LR 38 Ch D
92, Lindley LJ at page 106 said:

"When the right to inspect and take a copy is expressly conferred by

statute, the limit of the right depends on the true construction
of the statute." – refer Antony Gomez v KP Daerah Kuantan
2) Pre- Trial Processes
• CPC Amendment Act 2010 introduced a new Chapter XVIIIA (18)
into Part VI of the CPC (only taken effect on 1/6/2012) to shorten the
trial period & to expedite the disposal of criminal trials.
• CPC (Amendment) Act 2010 (Amendment) Act 2012 – (also taken
effect on 1/6/2012) amends the CPC(Amendment) Act 2010.

• There are 7 new Sections (s.172A-G)

(i) S.172A: Pre-trial conference (PTC)
(ii) S.172B: Case management (CM)
(iii) S.172C: Plea bargaining (PB)
(iv) S.172D: Disposal of the case (CD)
(v) S.172E: Finality of the judgment
(vi) S.172F: Statements of, or facts stated by, A not to be used for any other
purpose. (AS)
(vii) S.172G: Sentencing if the A, PG before trial.
Pre - Amendment
• No formal procedure for pre-trial process such as CM and PB.

A charged &
Direct Trial
claimed trial

• Informal communication between P & (Defence counsel)DC.

Own initiatives to discuss the case.

• Representation (letter) normally made by DC for PB.

• Both P & DC was very cautious in their approach. Limited

disclosure of facts and evidences until actual trial. Lead to
backlog of cases due to many adjournment, appeal and revision.
 (i) Pre-trial conference (PTC) [S.172A]

A charged &
PTC CM Trial
claimed trial

30 days/reasonable time
(s.172A (2))

• Before commencement of the CM. (s.172A (1))

• Between DC & PP only (without involving judicial officers). A

must be represented by a DC. Cannot participate by himself.
(s.172A (2))

• May be conducted by any means (e.g. telephone, video

conferencing, email etc.) & can be held at any venue as agreed
by both parties. (s.172A (3))
 (a) identify the factual and legal issues

Matters to be discussed btw (b) narrow down the issues of contention

P & DC (s.172A(4)

(c) clarify each party’s position

(d) ensure compliance with s.51A

(e) discuss the nature of the case for both

parties, and any alibi defence (s.402A)

(f) discuss any PB and reaching any possible

agreement (s.172C)
(g) any other matters as may be agreed upon
by the P & DC that may lead to the
expeditious disposal of the case.
Other matters can be discussed:
• Docs & exhibits to be admitted in CM and dispense with formal proof
in C
• Waiver to any objections as to admissibility of evidence
• List/Number of Witnesses, any expert witness to be called
• Disposal of seized articles (s.407A)
• S.402B - written statement as evidence
• S.402C – formal admission of fact

• PTC enables P & DC to discuss the merits of their respective

cases.

• At the end of the PTC, all matters agreed upon must be put in
writing and signed by A, DC and P i.e. there entered a Pre-trial
agreement. (s.172A (5))

• This written agreement will be admissible as evidence at the

trial. (s.172B(6))
 A

Represented Unrepresented

30 days PTC

CM 60 days
 (ii) Case Management [S.172B]

A charged &
PTC CM Trial
claimed trial

60 days

• Commenced by C in chambers. (S.172B(1))

• Subsequent CM may be held if necessary not less than 2 weeks

before commencement of trial. (s.172B (3)).
 46

(a) Matters to do: if A was represented and PTC was held

(s.172B(2))
(i) PP & DC present to C all matters which they have discussed
and agreed at the PTC (under s. 172A(4)) for C to consider.
(ii) If PB has been agreed during the PTC, C must decide on the
voluntariness of the PB pursuant to s.172C.

(b) Matters to do: if A was unrepresented and no PTC was held

(s.172B(2))
(i) C will discuss with A & P any matter which would have been
considered at the PTC under s.172A(4).
(ii) Assist A who is unrepresented to appoint an advocate.
 47

(iii) Determine the duration of the trial

(iv) Fix a date for the commencement of trial

C shall commence the trial not later than 90 days from the date A
is charged. (s.172B(4))

A charged &
PTM CM Trial
claimed trial

90 days

• Failure to hold CM or commence a trial within the stipulated

time period is not fatal. (S.172B(5))
- not render the charge or prosecution vs A defective/invalid.
- cannot be considered as a ground of appeal/review/revision.
 48

A charged &
PTM CM Trial
claimed trial

Within
30 days

Within
60 days

90 days
 49

(v) Admit any exhibits subject to consent by A & DC.

(vi) Give directions on any mater that will promote a fair and
expeditious trial.

E.g.: (same matters discussed in PTC)

• Witness: Number of witnesses & whether an expert witness will
be called
• Waiver to any objections as to admissibility of evidence
• Determine the need for an interpreter in a particular language
• S.402A - Alibi
• S.402B - written statement as evidence
• S.402C – formal admission of fact
• S.407A – disposal of seized articles
 (iii) Plea Bargaining (PB)
• PB = process whereby A and P work out a mutual agreement
to settle/dispose the case before the trial

• In effect, it is a deal offered by P as an incentive for A to plead

guilty (PG). PG was made in return and under reasonable
expectation of some concession from P.

Types of PB

Charge Reduction Sentence Reduction

A & P agree that A should A PG to the original
be allowed to PG to a less charge in exchange for a
serious charge reduced sentence
Pre – Amendment
• PB already been in practice between P v DC
New Tuck Shen [1982] HC
- However, following common law position, C are judicially
prohibited to participate in PB and not bound by it.
- Reduction of charge is within PP’s authority but not sentence.

• C recognised the need for PB.

Hisla Sulai [2008] HC
Hamidon bin Ahmad Mokri [2010] HC

Amendment in 2010
• The introduction of s.172C provides a statutory basis for PB.

Post – Amendment
• Departure from New Tuck Shen – C can participate
Manimaran Manickam [2011] (refer to amendment though not
yet in force)
Common law Position

• The leading English authority: R. v. Turner [1970] 2 All ER

281; R. v. Atkinson [1978] 2 All ER 460
- C are judicially prohibited to participate in PB.

• However, over the years, public policy has shifted towards

accepting PB.
R v. Goodyear [2005] 3 All ER 117
- the English COA decided differently from R v. Turner and allow C
participation in PB.
- approved in Mckinnon v. Government of the United States
of America [2008] 1 WLR 1739.
 (iv)PB Procedure[s.172C]
• PB can be conducted at any time before the commencement
of the trial.

A charged with an
C issue a notice in
offence and claims At the hearing, C
writing to PP and
to be tried; make an examine A in
A to appear before
application for PB camera (chambers)
C on a date fixed for
in Form 28A of the voluntariness of
hearing of the
the Second A’s application
application
Schedule

S.172C(1) & (2) S.172C(3) S.172C(4)

• PB application must contain:(s.172C(2))

(a) a brief description of the offence

(b) a declaration by the accused stating that the application is

voluntarily made by him after understanding the nature and extent of
the punishment provided under the law for the offence that the
accused is charged with; and

(c) information as to whether the PB applied for is in respect of

the sentence or the charge

• Statements made by A in the application cannot not be used for any

other purpose. (S.17F)
 S.172C(4)
if A is if A is
represented - Examination unrepresented -
in the present of PB in the absence
of PP & DC of PP

Voluntarily Involuntarily

C dismiss the
PP and A proceed to mutually
agree upon a satisfactory application; and
S.172C(5)
disposition of the case. the case proceed before
another C

S.172C(4) S.172C(6)

satisfactory disposition satisfactory disposition

agreed – not agreed –
put into writing & C record the observation and the S.172C(8)
signed by A & DC case proceed before another C
 Disposal of the Case [S.172D]
• If a satisfactory disposition (SD) of the case has been agreed
upon under s.172c, C will proceed to dispose of the case as
follows:
(i) Make any order under s.426 (i.e. order for payment of
costs of prosecution & compensation);
(ii) Find A guilty (convict A) & sentence him (depend on type
of PB)

This is final judgment - no appeal lies on conviction except to

the extent and legality of the sentence. (s.172E)
 Find A guilty on
SD in relation to the new charge Sentence A
PB of the charge agreed upon in accordingly
the SD

(i) deal with A under

s.293/294; or
SD in relation Find A guilty
to PB of the on the original
sentence charge (ii) sentence A to not more
than half of the max
punishment of
imprisonment provided
under the law for the
(2) if there is a min term of imprisonment
offence for which A has
provided under the law for the offence, A
been convicted
cannot be sentenced to a lesser term of
(subject to subsections (2)
imprisonment than the min term.
and (3))
 (3)Min 1/2 term of imprisonment not applicable

(a) Involve serious offence + A has a (b) following offences

previous conviction for a
related/same offence

“serious offence” = offence (i) offence with punishment of fine only;

where the max term of
imprisonment that can be
imposed is not less than 10 yrs
(ii) offence with punishment of
imprisonment for natural life;
(iii) sexual related offence;
(iv) offence committed vs. a child who is
below 12 yrs; or
(v) any other offence as may be specified
by PP by order published in the Gazette.
Sentencing before Trial
• S172G: If A PG at any time before the commencement of his trial,
C shall sentence A in accordance with S.172D(1)(c)(ii).

(ii) sentence A to not more than half of the max punishment of imprisonment
provided under the law for the offence for which A has been convicted
(subject to subsections (2) and (3))
 60

Admissibility of Evidence During Pre-Trial

1. Alibi [S.402A]
• “Alibi” = Latin origin and means “elsewhere”.

• By claiming he was elsewhere, A would thus be physically

incapable of committing the offence he is charged with.

• However, mere assertion of alibi is insufficient to exculpate A. He

must adduce credible evidence that can cast a reasonable doubt
over the prosecution’s case,

Pre amendment

• Where A sought to forward a defence of alibi, evidence in support would

not be admissible unless A had given a written notice to PP at least
10 days before commencement of the trial.
 61

• It is trite law that the requirement of pre-trial notice is mandatory and

the court has no discretion to waive it.
Ku Lip See [1981] FC
Vasan Singh [1989]
Anwar Ibrahim [2001]

Post amendment

• C must inform A at the time he is being charged as to his right to put

forward a defence of alibi (s.402A(1))

• If A seeks to put forward a defence of alibi, he must put forward a

notice of his alibi during the CM process. (s. 402A(2))

• The notice must state

(i) particulars of the place where A claims to have been at the time of
the commission of the offence; and
(ii) the names and addresses of any witnesses whom he intends to call
for the purpose of establishing his alibi (s. 402A(4))
 62

• If A fail to put forward a notice of his alibi during the CM process,

he is still allowed to adduce evidence in support of an alibi at any
time during the trial, provided:
(i) A has given a written notice of the alibi to the PP; and
(ii) PP is given a reasonable time to investigate the alibi before such
evidence can be adduced. (s.402A(3))
 63

2. Written statements [S.402B]

Pre amendment

• Evidence of witnesses were given in court orally.

• Statements of witnesses which were admitted under S.32 of

Evidence Act 1950 and S.399 of the CPC were admissible.

• There were no statements of agreed and admitted facts by the

parties

63
 64

Post Amendment

• Written statement by any person (include A & witnesses) is

admissible during trial with consent of parties (P & DC). (S.402B
(1))

• Statement is in lieu of examination in chief. Must read the

statement aloud in court. (S.402B(6))

• Party adducing the statement (P/DC) can call the maker to give
additional evidence.

• The maker can be called for cross examination and re-

examination. (S.402B (5))

• Any object or doc referred to in the statement is treated as an

exhibit and will be tendered in the course of the trial.
64
 65

Requirement (s.402B(2) + (4))

(a) Must be signed by the maker; if he cannot read, someone must read and
explained to him before he signs it. The person who read the statement to
must affirm a statutory declaration stating that the statement was so read
and explained.

(b) Must contains a declaration by the maker that it is true to the best of his
knowledge and belief;

(c) Copy of the statement must be served, by or on behalf of the party

proposing to tender it, on each of the other parties to the proceedings not
later than 14 days before the commencement of the trial.

(f) If refers to any other docs or object as an exhibit, the copy served must
be accompanied by a copy of that document or by a photograph of the object
for inspection.

65
 66

3. Admission of Facts [S.402C]

 Both P and A can agree upon certain facts to be adduced at the

trial be admitted before trial. – Statement of admitted facts

• The admission of fact shall be conclusive evidence against that

party in those proceedings.

• The “pre-trial agreement” can contain such admitted facts so as to

narrow down issues.

 Facts admitted must be in writing and signed by both parties.

 S.73AA Evidence Act 1950

66
 67

4. Disposal of Seized Articles [S.407A]

Pre amendment

 Exhibits in connection with the offence generally had to be

produced in court

 There was no provision for pre trial disposal of exhibits

 Chain of evidence had to be intact

67
 68

Post Amendment

• PP may apply for disposal of articles at any time - after CM and

before trial. (s.407A(1))

• S.407A(2) list out the type of seized articles that may be disposed
of. (e.g. drug, money, video, book, vehicles, equipments)

• Must comply the following procedure:

a) Inventory made and certified by C

b) Photographs taken in C presence
c) Where possible, representative samples taken in C presence and
certified
d) Videos, CD, film have been viewed by C and certified as to
contents
68